/raid1/www/Hosts/bankrupt/CAR_Public/180413.mbx
C L A S S A C T I O N R E P O R T E R
Friday, April 13, 2018, Vol. 20, No. 75
Headlines
ALLIED WEALTH: Won't Hire Non-U.S. Citizens, Marques Claims
ALPHA CONSTRUCTION: "Tinajero" Suit Seeks to Recover Unpaid OT
AMERICAN WATER: Chemical Spill Proceedings Stayed until April 22
AMERICAN WATER: Water Main Break Class Action Suit Still Pending
AMERIFLIGHT LLC: 9th Cir. Affirms Remand of "Sanchez"
ANGELS LAUNDROMAT: Faces "Rodriguez" Suit in E.D. New York
ASSURITY GROUP: Faces "Young" Suit in S.D. New York
ATLANTIC CREDIT: Faces "Harris" Suit in M.D. North Carolina
ATLAS FINANCIAL: Faces "Fryman" Securities Class Suit in Illinois
BABCOCK & WILSON: Court Refuses to Dismiss Securities Fraud Suit
BANKERS TRUST CO: Plan Members Sue Over Devalued Shares
BIOCRYST PHARMA: Klein Sues Over Merger With Idera, Nautilus
BLUESTONE INDUSTRIES: "Cozart" Suit Seeks Unpaid Wages, Damages
BOSTON SCIENTIFIC: 49,000 Mesh Claims Filed as of January 31
BOSTON SCIENTIFIC: "Stevens" Class Action Lawsuit Remains Stayed
BOSTON SCIENTIFIC: "Turner" Class Action Lawsuit Still Stayed
CALLIDUS SOFTWARE: Franchi Seeks to Halt Sale to SAP America
CAPRI EXPRESS: "Lopez" Labor Suit Seeks Unpaid Overtime Pay
CAREFUSION SOLUTIONS: Del. Dismisses Suit Over Unpaid Wages
CARESOURCE INDIANA: Court Refuses to Stay "Wilkes" TCPA Suit
CENTENNIAL ELEVATOR: Faces "Lorenc" Suit in E.D. New York
CLIFTON BANCORP: Parshall Drops Lawsuit on Kearny Merger Accord
COLLECTED GROUP: Kiler Claims Website Not Blind-Friendly
COMFORT SYSTEMS: Court Dismisses of "Maddison" Wage & Hour Suit
COOK COUNTY, IL: Dismissal of Filing Fee Suit Partly Reversed
CRYSTAL ROCK: Lombardi Sues Over Sale to Cott Corp.
CTI BIOPHARMA: Ct. Grants Final OK of Securities Suit Settlement
DECIBELS OF OREGON: Court Narrows Claims in "Wilson"
DECIBELS OF OREGON: Court Narrows Claims in "Hemming"
DRILFORMANCE LLC: Ct. Won't Strike Late Filers in "Kitigawa"
DUKE UNIVERSITY: Class Certification Limited to Faculty Members
ECOLAB INC: Order on Mediation Completion Issued in "Bankwitz"
ELI LILLY: Still Defends 510 Byetta Product Liability Lawsuits
ELI LILLY: Faces 100 Prozac Claims over Alleged Birth Defects
ELI LILLY: Defendant in 550 Axiron Product Liability Suits in US
ELI LILLY: 150 Cialis Product Liability Lawsuits Still Pending
ELI LILLY: Still Defends Insulin Pricing Lawsuits in New Jersey
ELI LILLY: Glucagon Pricing Class Lawsuit Pending in New Jersey
ELI LILLY: Defends 6,700 Actos Product Liability Suits in the US
ELI LILLY: 3 Purported Actos Class Suits in Canada Still Pending
ELI LILLY: Still Defends 140 Cymbalta Product Liability Lawsuits
ELI LILLY: "Strafford" Plaintiffs Still Contest Nixed Lawsuit
ELI LILLY: Unit Faces Private Chicken Buyers' Antitrust Lawsuits
ESPERION THERAPEUTICS: Appeal in "Dougherty" Class Suit Ongoing
EUROPEAN TILE: Court Grants Prelim Approval of Class Settlement
FIAT CHRYSLER: Putative Class Action in California is Ongoing
FIAT CHRYSLER: 2 Class Action on US Sales Reporting Underway
FIAT CHRYSLER: FCA US Faces Class Suits on UAW-Chrysler Matters
FIAT CHRYSLER: Securities Suit on Emissions Compliance Underway
FIAT CHRYSLER: Koopmann et al. Want Robert Bosch to Produce Docs
FREEPORT-MCMORAN: Subsidiary Defends Amended "Duarte" Complaint
FRESH DEL MONTE: U.S. Subsidiaries Still Defend DBCP Litigation
GIANT EAGLE: "Jones" Suit Seeks Overtime Pay, Damages
GLOBAL EXECUTIVE: Levy Disputes Vague Collection Letter
GONGOS INC: "Kraft" Suit to Recover Unpaid Overtime Wages
GRUBHUB INC: Delivery Driver is Independent Contractor, Ct. Says
GRUPO TELEVISA: Bribery Scam Caused Share Drop, "Gross" Suit Says
HARLEYSVILLE PREFERRED: 4th Amended Complaint OK'd in "Halloran"
HOBBY LOBBY: Court Denies Bid to Dismiss FAC in "Chase"
HSBC HOLDINGS: Settles Class Action on USD Libor-Indexed Swaps
HSBC HOLDINGS: May 2018 Final Approval Hearing in Euribor Case
HSBC HOLDINGS: Bid to Nix SIBOR, SOR, BBSW Cases Still Pending
HSBC HOLDINGS: No Final Hearing Yet for ISDAfix Settlement Pact
HSBC HOLDINGS: Faces Class Suit over Canadian Dealer Offered Rate
HSBC HOLDINGS: US, Canada Suits over Market Manipulation Underway
HSBC HOLDINGS: Class Suits over Forex Benchmark Rates Ongoing
HSBC HOLDINGS: Bid to Stay US Gold Price-Fixing Suit Pending
HSBC HOLDINGS: Gold Price-Fixing Suits in Canada in Early Stages
HSBC HOLDINGS: Bid to Stay U.S. Silver Price-Fixing Suit Pending
HSBC HOLDINGS: Still Defends Silver Price-Fixing Suits in Canada
HSBC HOLDINGS: Bid to Drop 3rd Platinum Class Suit Still Pending
HSBC HOLDINGS: Still Defends Putative Class Suits on SIB Matters
HSBC USA: Still Defends 2 Gold Price-Fixing Lawsuits in Canada
HSBC USA: Plaintiffs' Appeal from Dismissed "Giron" Suit Pending
HSBC USA: Bank Unit Still Defends Suit on Alleged TCPA Breaches
HSBC BANK: Court Denies Bid to Certify Certificate Holders Class
HUNTINGTON BANCSHARES: Finalizing Settlement in "Powell" Lawsuit
HUUUGE INC: Faces "Wilson" Suit in W.D. Washington
INCARE HOME: "Adolphe" Suit Brought Before New York Supreme Court
INTEL CORP: No Bench Trial Date Set in McAfee Shareholder Suit
INTEL CORP: At Least 30 Class Suits Filed over CPU Defects
INTEL CORP: Sheriffs' Fund Sues Over Share Price Drop
INVESTOR'S BUSINESS: Sent Unsolicited SMS Ads, "Armstrong" Says
KOONS OF TYSONS: Car Cleaners Seek to Recover Unpaid Overtime Pay
LENDINGCLUB CORP: Settles Shareholder and Securities Class Suits
LIPOCINE INC: Inks Memorandum of Understanding in "Lewis" Suit
LUXURY SUITES: "Sinanyan" Class Settlement Has Final Approval
M & J CLEANING: Faces "Rodriguez" Suit in E.D. New York
M&T BANK: Illegally Collects Post-Payment Interest, Reyeses Say
MACY'S INC: Reaves Sues over Unsolicited Commercial Text Messages
MARS WRIGLEY: Alejandro and Fernos Sue over Snickers Bar Label
MARTIN MARIETTA: Final Approval of Settlement in "Bass" Affirmed
MDL 1917: Court Sets Aside Order of Default
MDL 2047: Burns Couple Can't Pursue Claims Against InEx
MDL 2818: JPML OK's Bid to Centralize Litigation
MEL'S TRANSPO: "Blair" Seeks Redress for Missed Breaks, Overtime
MONROE CHOCOLATE: "Zhu" Suit Seeks Overtime Wages under FLSA
LINCOLN NATIONAL: Court Allows SAC Amendment in COI Litigation
NIEMANN FOODS: Court Grants Prelim OK of Settlement in "Fikara"
NPAS INC: Debt Collection Practices Not Legal, Kambitsis Says
NUVASIVE INC: Court Allows Nye Expert Witness in "Mauss"
OAKWOOD, OH: Court Certifies Class of Real Estate Sellers
PEP BOYS: Fails to Pay All Wages, Andrade Claims
PETALUMA, CA: Burris Files Class Action Suit
PGE COMPANY: Appeal on Nixed Trojan Class Actions Still Pending
PHILIP MORRIS: Dismissal of Dead Persons' Suit Affirmed
PILGRIM'S PRIDE: Discovery Underway in Broiler Chicken Lawsuit
PILGRIM'S PRIDE: Motion to Dismiss "Fuller" Action Still Pending
PILGRIM'S PRIDE: Still Defends Oklahoma Suit by Chicken Farmers
PRUDENTIAL FINANCIAL: To Appeal Class Status Order in "Huffman"
PRUDENTIAL FINANCIAL: Behfarin Class Suit v. Pruco Life Ongoing
PRUDENTIAL FINANCIAL: "Pica" Case Ruling Affirmed in Part
PRUDENTIAL FINANCIAL: Class Status Bid Pending in Lawsuit v. DB
PRUDENTIAL FINANCIAL: Court Denies Class Status Bid in HSBC Suit
PRUDENTIAL FINANCIAL: Claims in PICA v USBank Narrowed
PRUDENTIAL FINANCIAL: Class Cert. Bid Pending in PICA vs Wells
PRUDENTIAL FINANCIAL: "Bouder" Settlement Has Final Ct. Approval
QUADIS INC: M. Miller & Son Sues over Junk Fax Ads
RAPID CAPITAL: Hardin Sues Over Illegal Telemarketing Calls
ROSE CASTLE: Faces "Esteban" Suit in E.D. New York
RTG Furniture: Faces "Yeomans" Suit in M.D. Florida
SABRE CORP: Still Defends Antitrust Class Action Suit
SABRE CORP: Court Drops Class Claims over Cybersecurity Incident
SABRE CORP: Still Defends 2 Consumer Class Suits over Hotel Taxes
SAMSUNG ELECTRONICS: Court Narrows Claims in Smartwatch Suit
SHIRE PLC: Appeals from Dismissal of ELAPRASE Suits Still Pending
SHUTTERFLY INC: "Taylor" Class Action over Groupon Deal Ongoing
SIMM ASSOCIATES: Wins Summary Judgment in "Maximillano"
SIX FLAGS: Still Defends 4 Suits over Credit, Debit Card Info
SOUTHARD CORP: Charvat Sues Over Illegal Telemarketing Calls
SPECTRA ENERGY: Derivative Claim v General Partner Still Pending
STEARNS LENDING: Illegally Collects Loan Interest, Wooden Says
T. ROWE PRICE: Still Defends ERISA Class Lawsuit in Maryland
TARGET CORPORATION: Times and Smith Seek Back Pay
TENACIOUS TORQUE: "Little" Suit Seeks to Recover Overtime Pay
TEREX CORP: Bid to Dismiss Securities Class Suit Still Pending
TRAVELPORT WORLDWIDE: April 23 Hearing Set for Consumer Suit Pact
TREEHOUSE FOODS: Must Defend Against Investors' Class Action
TRUSTMARK CORP: Class Action Proceedings vs. TNB Still Pending
UBER TECHNOLOGIES: Retirement Fund Can File Omnibus Brief
ULTIMATE SPORTS: Kohen Sues over Unsolicited Text Messages
UNITED FEDERAL: Nev. High Court Flips Dismissal of "Castillo"
UNITED FOOD: 6th Cir. Affirms Dismissal of Dues Checkoff Suit
UNITED STATES: Court Dismisses Suit Over Enhanced Penalties
UNITED STATES: Court Enjoins Removal of Indonesian Christians
US BANK: Court Narrows Claims in "Dolegiewicz"
US IMMIGRATION: Minor Immigrant Detainees Seek Release
VANTAGE RETIREMENT: Dick Sues Over Private Info Disclosure
VERISK ANALYTICS: Supreme Court Denies Plaintiffs' Rehearing Bid
VIGO COUNTY, IN: Court Won't Appoint 3-Judge Panel in "Huerta"
VISHAY INTERTECHNOLOGY: Antitrust Suits in US, Canada Ongoing
VITA-MIX CORP: Court Grants Final OK of "Gooding" Settlement
VIVINT SOLAR: Court Dismisses "Del Llano" FCRA Suit
WAL-MART STORES: 9th Cir. Vacates Order Remanding "Kenny"
WORLDPAC INC: Court Compels Arbitration in "Brown"
Asbestos Litigation
ASBESTOS UPDATE: 3M Co. Still Defends Suits at Dec. 31
ASBESTOS UPDATE: 3M Co. Accrues US$608MM for Respirator Cases
ASBESTOS UPDATE: 3M Accrues $30MM for Aero-Related Liabilities
ASBESTOS UPDATE: Honeywell Had $1.52-Bil. Liabilities at Dec. 31
ASBESTOS UPDATE: Honeywell Records US$907MM NARCO Liabilities
ASBESTOS UPDATE: Honeywell Had US$616MM Bendix Claims at Dec. 31
ASBESTOS UPDATE: NY App. Div. Junks "Montanez" Asbestos Appeal
ASBESTOS UPDATE: Summary Ruling Favoring Moore Dry Dock Affirmed
ASBESTOS UPDATE: American Precision Must Answer Discovery
ASBESTOS UPDATE: Court Affirms $64MM Judgment in Favor of Utica
ASBESTOS UPDATE: Newcastle Family Fights for Asbestos Justice
ASBESTOS UPDATE: Montana County Sued for Asbestos Contamination
ASBESTOS UPDATE: Asbestos Concerns Prompts Beach Boxes Audit
ASBESTOS UPDATE: Asbestos Found in Yonkers Public School
ASBESTOS UPDATE: NSW Properties Destroyed by Fire Have Asbestos
ASBESTOS UPDATE: Ban Won't End Asbestos-Related Diseases
ASBESTOS UPDATE: Environmental Board to Review Asbestos Survey
ASBESTOS UPDATE: Owner Asked to Demolish Abandoned Asbestos Bldg
ASBESTOS UPDATE: $7MM Asbestos Removal Nearly Done at AMA Project
ASBESTOS UPDATE: DOJ's Role to Clean Up Asbestos Litigation Mess
ASBESTOS UPDATE: Reid Hospital Asbestos Removal Almost Done
ASBESTOS UPDATE: J&J Says at Trial's Close Talc Has No Asbestos
ASBESTOS UPDATE: Hopeman Seeks Limits on Asbestos Claims Coverage
ASBESTOS UPDATE: Asbestos Plagued Bastrop County Bldgs for Years
ASBESTOS UPDATE: Asbestos Removed From Auckland School
ASBESTOS UPDATE: Pawtucket to Remediate Asbestos at City Hall
ASBESTOS UPDATE: School Closes Due to Mold and Asbestos Issues
ASBESTOS UPDATE: Bill to Return Asbestos Claims to Workers Comp
ASBESTOS UPDATE: Blue Mountain Sites Cleared After Testing
ASBESTOS UPDATE: Asbestos Concerns Halted Workers Club Demolition
ASBESTOS UPDATE: University Ordered to Pay Again for Asbestos
ASBESTOS UPDATE: School Trust Slammed After Asbestos Revelation
ASBESTOS UPDATE: New Rules to Make Mumbai Asbestos-Free
ASBESTOS UPDATE: Rise in Mechanics Making Asbestos Claims
ASBESTOS UPDATE: Asbestos Bans in Southeast Asia Pushed
ASBESTOS UPDATE: Limetree Bay Warns Workers About Asbestos
ASBESTOS UPDATE: Senate Shelves Limits on Asbestos Injury Suits
ASBESTOS UPDATE: New Insights on Asbestos-Related Disease
ASBESTOS UPDATE: ADAO Opposes PROTECT Asbestos Victims Act
ASBESTOS UPDATE: Asbestos Caused 5 Deaths in Isle of Man
ASBESTOS UPDATE: Tiles at Stevens Memorial Library Has Asbestos
ASBESTOS UPDATE: Asbestos Warning on Victoria Bushfire
ASBESTOS UPDATE: Samples Show Asbestos in Burnt Buildings
ASBESTOS UPDATE: Asbestos Abatement in Developer's Hand
ASBESTOS UPDATE: Wife Dies After Washing Asbestos Clothes
ASBESTOS UPDATE: Puerto Rico Residents Learn of Asbestos Risks
ASBESTOS UPDATE: Next Generation Urged to Help Asbestos Affected
ASBESTOS UPDATE: Asbestos Find Delays Recreation Centre Rehab
ASBESTOS UPDATE: St. Clair Has Most Asbestos-Related Illnesses
ASBESTOS UPDATE: Asbestos Warning After Glasgow Inferno
ASBESTOS UPDATE: Senate Passes Bills on Asbestos Claims
ASBESTOS UPDATE: Asbestos Found in Rubbish Dumped in Rural Layby
ASBESTOS UPDATE: Man Blames GE for Failing to Warn Asbestos
ASBESTOS UPDATE: Researcher Has 5Yrs After Asbestos Exposure
ASBESTOS UPDATE: Hospice Gets GBP12,000 for PE Teacher's Death
*********
ALLIED WEALTH: Won't Hire Non-U.S. Citizens, Marques Claims
-----------------------------------------------------------
DANIEL MARQUES, Individually and On Behalf of All Others
Similarly Situated, the Plaintiff, v. LPD ENTERPRISES, LLC (dba
ALLIED WEALTH PARTNERS), the Defendant, Case No. 2:18-cv-05589
(D.N.J., April 5, 2018), seeks to recover all damages sustained
as a result of Allied Wealth Partners' conduct, including damages
for emotional distress, humiliation, embarrassment, and anguish,
according to proof.
According to the complaint, Allied Wealth Partners denies
employment opportunities to entire categories of individuals
authorized to work in the United States based on their alienage.
Specifically, Allied Wealth Partners categorically denies
employment contracts to applicants for the position of
Independent Financial Advisor within the company if they are
lawfully present noncitizens whose valid federal work
authorization is subject to renewal after a future date of
expiration. This facially discriminatory company-wide policy
and/or practice constitutes intentional discrimination based on
alienage and is unlawful under the Civil Rights Act of 1866, as
codified.[BN]
The Plaintiff is represented by:
Bruce D. Greenberg, Esq.
LITE DEPALMA GREENBERG, LLC
570 Broad Street, Suite 1201
Newark, NJ 07102
Telephone: (973) 623 3000
Facsimile: (973) 623 0858
E-mail: bgreenberg@litedepalma.com
- and -
Thomas Saenz, Esq.
Nina Perales, Esq.
Burth Lopez, Esq.
THE MEXICAN AMERICAN LEGAL
DEFENSE AND EDUCATIONAL FUND
634 Spring St., 11th Floor
Los Angeles, CA 90014
Telephone: (213) 629-2512
E-mail: nperales@maldef.org
blopez@maldef.org
ALPHA CONSTRUCTION: "Tinajero" Suit Seeks to Recover Unpaid OT
--------------------------------------------------------------
Pedro Torres-Tinajero, on behalf of himself and all other
similarly situated persons, Plaintiffs, v. Alpha Construction of
the Triad, Inc., Judith J. Bautista and Jeffrey W. Alley,
Defendants., Case No. 18-cv-00160, (M.D. N.C., March 5, 2018),
seeks payment of back wages and an equal amount of liquidated
damages, attorney fees, interest, and costs under the Fair Labor
Standards Act and the NC Wage and Hour Act.
Alpha is a commercial and residential construction business
enterprise operating in and around Greensboro and Kernersville,
Guilford and Forsyth County, North Carolina where Tinajero worked
as a construction laborer and construction crew foreman. He
claims to have worked more than forty hours in the same workweek
but was not paid at the overtime rate. [BN]
Plaintiff is represented by:
Robert J. Willis, Esq.
LAW OFFICE OF ROBERT J. WILLIS, P.A.
P.O. Box 1828
488 Thompson Street
Pittsboro, NC 27312
Tel: (919) 821-9031
Fax: (919) 821-1763
Email: rwillis@rjwillis-law.com
AMERICAN WATER: Chemical Spill Proceedings Stayed until April 22
----------------------------------------------------------------
American Water Works Company, Inc. disclosed in its Form 10-K
filed with the U.S. Securities and Exchange Commission for the
fiscal year ended December 31, 2017, that the Mass Litigation
Panel has stayed its proceedings in the West Virginia Elk River
Freedom Industries Chemical Spill until April 22, 2018.
On January 9, 2014, a chemical storage tank owned by Freedom
Industries, Inc. leaked two substances, 4-methylcyclohexane
methanol ("MCHM"), and PPH/DiPPH, a mix of polyglycol ethers,
into the Elk River near the WVAWC treatment plant intake in
Charleston, West Virginia. After having been alerted to the leak
of MCHM by the West Virginia Department of Environmental
Protection, WVAWC took immediate steps to gather more information
about MCHM, augment its treatment process as a precaution, and
start consultations with federal, state and local public health
officials. As soon as possible after it was determined that the
augmented treatment process would not fully remove the MCHM, a
joint decision was reached in consultation with the West Virginia
Bureau for Public Health to issue a "Do Not Use" order for all of
its approximately 93,000 customer accounts in parts of nine West
Virginia counties served by the Charleston treatment plant. By
January 18, 2014, none of WVAWC's customers were subject to the
Do Not Use order.
Following the Freedom Industries chemical spill, numerous
lawsuits were filed against WVAWC and certain other Company-
affiliated entities (collectively, the "American Water
Defendants") with respect to this matter in the U.S. District
Court for the Southern District of West Virginia or West Virginia
Circuit Courts in Kanawha, Boone and Putnam counties, and to
date, more than 70 cases remain pending. Four of the cases
pending before the U.S. district court were consolidated for
purposes of discovery, and an amended consolidated class action
complaint for those cases (the "Federal action") was filed in
December 2014 by several plaintiffs. In January 2016, all of the
then-filed state court cases were referred to West Virginia's
Mass Litigation Panel for further proceedings, which have been
stayed until April 22, 2018 pending the approval by the court in
the Federal action of a global agreement to settle all of such
cases. The court in the Federal action has continued the start
of the trial indefinitely pending ongoing settlement approval
activities.
Proposed Global Class Action Settlement
In October 2016, the court in the Federal action approved the
preliminary principles, terms and conditions of a binding global
agreement in principle to settle claims among the American Water
Defendants, and all class members, putative class members,
claimants and potential claimants, arising out of the Freedom
Industries chemical spill. On April 27, 2017, the parties filed
with the court in the Federal action a proposed settlement
agreement providing details of the terms of the settlement of
these matters and requesting that the court in the Federal action
grant preliminary approval of such settlement. On July 6, 2017,
the court in the Federal action issued an opinion denying without
prejudice the joint motion for preliminary approval of the
Settlement. On August 25, 2017, the parties filed a proposed
amended settlement agreement and related materials addressing the
matters set forth in the July 6, 2017 order.
On September 21, 2017, the court in the Federal action issued an
order granting preliminary approval of a settlement class and
proposed class action settlement (the "Settlement") with respect
to claims against the American Water Defendants by all putative
class members (collectively, the "Plaintiffs") for all claims and
potential claims arising out of the Freedom Industries chemical
spill. The Settlement proposes a global resolution of all
federal and state litigation and potential claims against the
American Water Defendants and their insurers. Under the terms
and conditions of the Settlement and the proposed amended
settlement agreement, the American Water Defendants have not
admitted, and will not admit, any fault or liability for any of
the allegations made by the Plaintiffs in any of the actions to
be resolved.
Under federal class action rules, claimants had the right, until
December 8, 2017, to elect to opt out of the final Settlement, in
which case such claimant would not receive any benefit from or be
bound by the terms of the Settlement.
As of January 31, 2018, less than 100 of the 225,000 estimated
putative Plaintiffs have submitted opt-out notices. The deadline
to file a claim in the Settlement was February 21, 2018.
The proposed aggregate pre-tax amount of the Settlement with
respect to the Company is US$126 million. The aggregate portion
of the Settlement to be contributed by WVAWC, net of insurance
recoveries, is US$43 million (approximately US$26 million after-
tax), taking into account the September 2017 settlement with one
of the Company's general liability insurance carriers. Another
defendant to the Settlement is to contribute up to US$25 million
to the Settlement. Two of the Company's general liability
insurance carriers, which provide an aggregate of US$50 million
in insurance coverage to the Company under these policies, had
been originally requested to participate in the Settlement at the
time of the initial filing of the binding agreement in principle
with the court in the Federal action, but did not agree to do so
at that time. WVAWC filed a lawsuit against one of these
carriers alleging that the carrier's failure to agree to
participate in the Settlement constituted a breach of contract.
On September 19, 2017, the Company and the insurance carrier
settled this lawsuit for US$22 million, out of a maximum of US$25
million in potential coverage under the terms of the relevant
policy, in exchange for a full release by the Company and WVAWC
of all claims against the insurance carrier related to the
Freedom Industries chemical spill. WVAWC and the settling
insurer have agreed to stay this litigation pending final
approval of the Settlement. The Company and WVAWC continue to
pursue vigorously their rights to insurance coverage for
contributions by WVAWC to the Settlement in mandatory arbitration
with the remaining non-participating carrier. This arbitration
proceeding remains pending. Despite these efforts, the Company
may not ultimately be successful in obtaining full or further
reimbursement under this insurance policy for amounts that WVAWC
may be required to contribute to the Settlement.
The proposed Settlement would establish a two-tier settlement
fund for the payment of claims, comprised of (i) a simple claim
fund, which is also referred to as the "guaranteed fund," of
US$76 million, of which US$29 million will be contributed by
WVAWC, including insurance deductibles, and US$47 million would
be contributed by two of the Company's general liability
insurance carriers, and (ii) an individual review claim fund of
up to US$50 million, of which up to US$14 million would be
contributed by WVAWC and up to US$36 million would be contributed
by a number of the Company's general liability insurance
carriers.
Separately, up to US$25 million would be contributed to the
guaranteed fund by another defendant to the Settlement. If any
final approval order by the court in the Federal action with
respect to the Settlement is appealed and such appeal would delay
potential payment to claimants under the Settlement, WVAWC and
the other defendant to the Settlement will contribute up to US$50
million and US$25 million, respectively, to the Settlement (not
including, in the case of WVAWC, any contributions by the
Company's general liability insurance carriers which would not be
made until such time as a final, non-appealable order is issued)
into an escrow account during the pendency of such appeals. For
certain claims, WVAWC and the other defendant to the Settlement
may, in lieu of these escrowed contributions, make advance
payments of such claims if agreed to by the parties. All
administrative expenses of the Settlement and attorneys' fees of
class counsel related thereto would be paid from the funds
designated to pay claims covered by the Settlement.
As a result of these events, in the third quarter of 2016, the
Company recorded a charge to earnings, net of insurance
receivables, of US$65 million (US$39 million after-tax).
Additionally, in the third quarter of 2017, the Company recorded
a benefit of US$22 million (US$13 million after-tax) as an
additional insurance receivable reflecting the settlement with
the insurance carrier. The Company intends to fund WVAWC's
contributions to the Settlement through existing sources of
liquidity, although no contribution by WVAWC will be required
unless and until the terms of the Settlement are finally approved
by the court in the Federal action. Furthermore, under the terms
of the Settlement, WVAWC has agreed that it will not seek rate
recovery from the PSC for approximately US$4 million in direct
response costs expensed in 2014 by WVAWC relating to the Freedom
Industries chemical spill as well as for amounts paid by WVAWC
under the Settlement.
The Company's insurance policies operate under a layered
structure where coverage is generally provided in the upper
layers after claims have exhausted lower layers of coverage. The
US$36 million to be contributed by a number of the Company's
general liability insurance carriers to the individual review
claim fund is from higher layers of the insurance structure than
the insurance carrier that was requested, but presently has not
agreed, to participate in the Settlement. Any recovery by WVAWC
or the Company from the remaining non-participating carrier would
reimburse WVAWC for its contributions to the guaranteed fund.
Notice of the terms of the Settlement to members of the
settlement class commenced on October 11, 2017. Following the
notice period, on January 9, 2018, the court in the Federal
action held a fairness hearing to consider final approval of the
Settlement, which was continued on February 1, 2018 to address
certain open matters. At this hearing, the court in the Federal
action indicated that it intended to enter an order approving the
Settlement, and the parties submitted a proposed order to the
court on February 2, 2018.
There can be no assurance that the Settlement will not be amended
further or that the court will provide its final approval as to
any agreement negotiated between the parties reflecting the terms
of the Settlement.
The American Water Defendants believe that WVAWC has responded
appropriately to, and, other than through the Settlement, has no
responsibility for, the Freedom Industries chemical spill, and
that the American Water Defendants have valid, meritorious
defenses to the lawsuits. Nevertheless, WVAWC and the Company
are unable to predict the outcome of any lawsuit against the
American Water Defendants brought or maintained by a claimant
that has elected to opt out of the Settlement, and any such
outcome or outcomes could have a material adverse effect on the
Company's financial condition, results of operations, cash flows,
liquidity and reputation.
Through its subsidiaries, American Water Works Company, Inc. is
the largest and most geographically diverse investor-owned
publicly-traded water and wastewater utility company in the
United States, as measured by both operating revenue and
population served.
AMERICAN WATER: Water Main Break Class Action Suit Still Pending
----------------------------------------------------------------
American Water Works Company, Inc. disclosed in its Form 10-K
filed with the U.S. Securities and Exchange Commission for the
fiscal year ended December 31, 2017, that the Dunbar, West
Virginia Water Main Break Class Action Litigation is still
pending.
On the evening of June 23, 2015, a 36-inch pre-stressed concrete
transmission water main, installed in the early 1970s, failed.
The water main is part of WVAWC's West Relay pumping station
located in the City of Dunbar. The failure of the main caused
water outages and low pressure to up to approximately 25,000
WVAWC customers. In the early morning hours of June 25, 2015,
crews completed a repair, but that same day, the repair developed
a leak. On June 26, 2015, a second repair was completed and
service was restored that day to approximately 80% of the
impacted customers, and to the remaining approximately 20% by the
next morning. The second repair showed signs of leaking but the
water main was usable until June 29, 2015 to allow tanks to
refill. The system was reconfigured to maintain service to all
but approximately 3,000 customers while a final repair was
completed safely on June 30, 2015. Water service was fully
restored on July 1, 2015 to all customers affected by this event.
On June 2, 2017, a class action complaint was filed in West
Virginia Circuit Court in Kanawha County against WVAWC on behalf
of a purported class of residents and business owners who lost
water service or pressure as a result of the Dunbar main break.
The complaint alleges breach of contract by WVAWC for failure to
supply water, violation of West Virginia law regarding the
sufficiency of WVAWC's facilities and negligence by WVAWC in the
design, maintenance and operation of the water system. The
plaintiffs seek unspecified alleged damages on behalf of the
class for lost profits, annoyance and inconvenience, and loss of
use, as well as punitive damages for willful, reckless and wanton
behavior in not addressing the risk of pipe failure and a large
outage.
The Company and WVAWC believe that WVAWC has valid, meritorious
defenses to the claims raised in this class action complaint.
On October 12, 2017, WVAWC filed with the court a motion seeking
to dismiss all of the plaintiffs' counts alleging statutory and
common law tort claims. Furthermore, WVAWC asserts that the PSC,
and not the court, has primary jurisdiction over allegations
involving violations of the applicable tariff, the public utility
code and related rules. This motion remains pending.
Through its subsidiaries, American Water Works Company, Inc. is
the largest and most geographically diverse investor-owned
publicly-traded water and wastewater utility company in the
United States, as measured by both operating revenue and
population served.
AMERIFLIGHT LLC: 9th Cir. Affirms Remand of "Sanchez"
-----------------------------------------------------
The United States Court of Appeals, Ninth Circuit, affirmed the
District Court's judgment affirming Plaintiff's Motion to Remand
the case captioned DAVID SANCHEZ, on behalf of himself and all
others similarly situated, Plaintiff-Appellee, v. AMERIFLIGHT,
LLC, Defendant-Appellant, No. 17-56089 (9th Cir.).
The district court granted Sanchez's motion, finding that, as of
the time of filing, the parties were not diverse. The Court
granted Ameriflight permission to appeal.
Ameriflight, LLC, is an interstate air cargo carrier with
operations in more than 10 states, currently organized under
Nevada law, with its headquarters in Texas. In 2014, David
Sanchez, a California resident and former Ameriflight cargo
pilot, filed a class action suit on behalf of himself and
similarly situated employees who were trained or employed by
Ameriflight in California since 2010. The complaint alleged that
Ameriflight improperly paid wages in violation of the California
Labor Code and the California Business and Professions Code.
Ameriflight argues in the alternative that minimal diversity has
been met because some members of the putative class included non-
California citizens. However, Ameriflight failed to carry its
burden of establishing minimal diversity with at least one
putative class member. None of the declarations relied on by
Ameriflight identify any specific putative class member that was
diverse from Ameriflight as of the date the suit was commenced.
A full-text copy of the Ninth Circuit's February 1, 2018
Memorandum is available at https://tinyurl.com/y89cx7pq from
Leagle.com.
ANGELS LAUNDROMAT: Faces "Rodriguez" Suit in E.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Angels Laundromat
Corp. The case is styled as Martha Reynoso Rodriguez,
individually and on behalf of others similarly situated,
Plaintiff v. Angels Laundromat Corp. doing business as: Angels
Laundromat, Anna M Cuervo and Angel O Sanchez, Defendants, Case
No. 1:18-cv-02076 (E.D. N.Y., April 6, 2018).
Angels Laundromat Corp operates a coin-operated laundries and
cleaning business.[BN]
The Plaintiff appears PRO SE.
ASSURITY GROUP: Faces "Young" Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Assurity Group,
LLC. The case is styled as Lawrence Young and on behalf of
himself and all others similarly situated, Plaintiff v. Assurity
Group, LLC and Assurity Life Insurance Company of New York,
Defendants, Case No. 1:18-cv-03069 (S.D. N.Y., April 6, 2018).
Assurity is an engineering, design and consulting firm with
offices in New York and Atlanta.[BN]
The Plaintiff is represented by:
Bradly Gurion Marks, Esq.
The Marks Law Firm PC
175 Varick Street 3rd Floor
New York, NY 10014
Tel: (646) 770-3775
Fax: (646) 867-2639
Email: bmarkslaw@gmail.com
ATLANTIC CREDIT: Faces "Harris" Suit in M.D. North Carolina
-----------------------------------------------------------
A class action lawsuit has been filed against Atlantic Credit &
Finance, Inc. The case is styled as Angela Harris, on behalf of
herself and all others similarly situated, Plaintiff v. Atlantic
Credit & Finance, Inc., Defendant, Case No. 1:18-cv-00270 (M.D.
N.C., April 6, 2018).
Atlantic Credit & Finance Inc. is a bad debt buyer who purchases
bad debt from lending institutions.[BN]
The Plaintiff is represented by:
CRAIG M. SHAPIRO, Esq.
LAW OFFICES OF JOHN T. ORCUTT, P.C.
1738 HILLANDALE RD., SUITE D
DURHAM, NC 27705
Tel: (919) 286-1695
Email: cshapiro@johnorcutt.com
ATLAS FINANCIAL: Faces "Fryman" Securities Class Suit in Illinois
-----------------------------------------------------------------
Philip Fryman, Individually and on behalf of all others similarly
situated, Plaintiff, v. Atlas Financial Holdings, Inc., Scott D.
Wollney and Paul A. Romano, Defendants, Case No. 18-cv-01640,
(N.D. Ill., March 5, 2018), seeks to pursue remedies under the
Securities Exchange Act of 1934.
Atlas Financial provides specialty commercial transportation
insurance for taxi, limousine, paratransit and other transport
businesses around the United States.
The Plaintiff says the Defendants failed to disclose that the
Company failed to employ internal controls to ensure appropriate
accounting practices, including, but not limited to the
calculation of certain loss reserves that resulted in a decline
in the market value of the company's securities. Stock prices
fell $7.70 per share, over 40%, to close at $11.10 per share on
March 2, 2018, on unusually heavy trading volume. [BN]
Plaintiff is represented by:
Mitchell B. Goldberg, Esq.
Peter E. Cooper, Esq.
Marielise Fraioli, Esq.
LAWRENCE, KAMIN, SAUNDERS & UHLENHOP LLC
300 S. Wacker Drive, Suite 500
Chicago, IL 60606
Telephone: (312) 372-1947
Email: mgoldberg@lksu.com
pcooper@lksu.com
mfraioli@lksu.com
- and -
Lionel Z. Glancy, Esq.
Robert V. Prongay, Esq.
Charles H. Linehan, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
BABCOCK & WILSON: Court Refuses to Dismiss Securities Fraud Suit
----------------------------------------------------------------
The United States District Court for the Western District of
North Carolina, Charlotte Division, denied Defendant's Motion to
Dismiss the Second Amended Complaint in the case captioned ERIC
OLLILA, Individually and on Behalf of All Others Similarly
Situated, Plaintiff, v. BABCOCK & WILSON ENTERPRISES, INC., E.
JAMES FERLAND, AND JENNY L. APKER, Defendants, No. 3:17-cv-109
(W.D.N.C.).
Defendant Babcock & Wilson Enterprises, Inc., (B&W) is a
technology-based provider of fossil and renewable power
generation equipment. This matter is a securities class action
brought against defendants on behalf of a class consisting of all
persons and entities who purchased B&W publicly-traded common
stock on the New York Stock Exchange (NYSE) or other U.S.
exchanges or in a U.S. transaction between June 17, 2015 and
August 9, 2017. The action arises under Sections 10(b) and 20(a)
of the Securities Exchange Act of 1934 (Exchange Act), 15 U.S.C.
Sections 78j(b) and 78t(a), as well as SEC Rule 10b-5, 17 C.F.R.
Section 240.10b-5.
In support of their motion to dismiss, defendants argue that:
(1) plaintiff has failed to plead both a strong inference of
scienter and an actionable misstatement or omission;
(2) that mere corporate mismanagement is not actionable under
securities laws; and
(3) that the complaint fails to state a proper claim for
control person liability to attach.
Scienter
Defendants argue that plaintiff failed to plead a strong
inference of scienter, as plaintiff did not allege actual
knowledge or severe recklessness. Defendants also argue that the
allegations from confidential informants do not support scienter,
and there are more compelling inferences of non-fraudulent
intent.
Plaintiff's pleading of recklessness above is satisfactory to
survive a motion to dismiss and finds the allegations
sufficiently lay out an inference of scienter just as plausible
as defendants' competing explanations. Furthermore, plaintiff's
allegations need not be "the most plausible of competing
inferences. And while it is true that plaintiff has yet to
provide a strong explanation of what motivated defendants'
alleged obfuscation of what was supposedly occurring in the field
in favor of a more favorable report to shareholders than the
facts would support, the absence of a motive allegation is not
fatal.
Ultimately, the Court finds that plaintiff has allegations of
scienter are both plausible and sufficient to survive a Rule
12(b)(6) motion to dismiss, and will thus deny defendants' motion
on this basis.
Actionable misstatement or omission
Defendants argue their statements are no more than puffery, and
that statements of optimism and opinion are similarly
inactionable.
To state a claim under Section 10(b), a plaintiff must allege an
actionable misrepresentation or omission of material fact. A
securities fraud complaint adequately pleads a false or
misleading statement by specifying each statement alleged to have
been misleading, [and] the reason or reasons why the statement is
misleading.
Defendants' argue that plaintiff's allegations focus on
inactionable opinions, as opinions are only actionable if
defendants did not believe what they said they believed.
Defendants argue that many of the statements are prefaced with we
believe or we think and are thus non-actionable. However,
plaintiff has sufficiently alleged that these "opinions" could
not have been sincerely held given defendants' contemporaneous
knowledge of problems within the Renewable division. As
plaintiff alleges that they were not sincerely held, they are
actionable.
Thus, the Court will not dismiss on this basis.
Corporate mismanagement
Defendants argue that plaintiff's claim is not actionable under
federal securities laws, as claims that constitute no more than
internal corporate mismanagement are not actionable under the
securities laws.
However, the Court finds that, by claiming fraud, plaintiff has
pled more than mere internal mismanagement as various courts
recognize that pleading lies and omissions raises a claim above
internal mismanagement and into the realm of securities fraud As
already stated, the Court has found that plaintiff has properly
pled scienter and actionable misstatements and omissions; as
such, plaintiff's allegations go beyond mere internal
mismanagement, and the Court will thus not dismiss plaintiff's
claims on this basis.
Control Person
Finally, defendants argue that, since plaintiff has failed to
state a primary claim for securities fraud under Section 10(b),
control person liability cannot attach. However, as this Court
has found above that plaintiff has satisfactorily pled a claim
for securities fraud under Section 10(b), control person
liability may exist. As defendants made no other argument to
justify dismissal, the Court will not dismiss plaintiff's claims
on this basis.
For these reasons, the Defendant's Motion to Dismiss Plaintiff's
Second Amended Consolidated Complaint for Violations of Federal
Securities Law is denied.
A full-text copy of the District Court's February 8, 2018 Order
is available at https://tinyurl.com/yc662jaw from Leagle.com.
Eric Ollila, Individually and on Behalf of All Others Similarly
Situated, Plaintiff, represented by L. Bruce McDaniel --
mcdas@mcdas.com -- McDaniel & Anderson, L.L.P.
Babcock & Wilcox Enterprises, Inc., E. James Ferland & Jenny L.
Apker, Defendants, represented by Jason R. Outlaw --
jason.outlaw@alston.com -- Alston & Bird, LLP, pro hac vice, John
Ludlow Latham -- john.latham@alston.com -- Alston & Bird, LLP,
pro hac vice, Susan E. Hurd -- susan.hurd@alston.com -- Alston &
Bird, pro hac vice & Thomas G. Walker -- thomas.walker@alston.com
-- Alston & Bird, LLP.
City of Birmingham Retirement and Relief System, Movant,
represented by L. Bruce McDaniel, McDaniel & Anderson, L.L.P.
BANKERS TRUST CO: Plan Members Sue Over Devalued Shares
-------------------------------------------------------
Shela M. Blackwell and Jo Ann Battieste, on behalf of the Sta-
Home Health & Hospice, Inc. Employee Stock Ownership Plan, and on
behalf of a class of all other persons similarly situated,
Plaintiffs, v. Bankers Trust Company of South Dakota, Defendant,
Case No. 18-cv-00459, (S.D. Miss., March 6, 2018), asserts breach
of fiduciary duties in accordance with Sections 406, 409, and
502(a) of the Employee Retirement Income Security Act of 1974.
The Plaintiffs seek to recover the losses incurred by the Plan,
as well as attorney fees and costs incurred by counsel for
Plaintiffs.
Bankers Trust Company of South Dakota is the trustee for the Sta-
Home Health & Hospice, Inc. Employee Stock Ownership Plan of
which Plaintiffs are participants. In January 17, 2014, the Plan
purchased stock of Sta-Home for $75,500,000, which was financed
by Sta-Home in a fully leveraged transaction with a loan bearing
interest at 3.45% that was to mature on December 31, 2038.
Said transaction were re-valued at $9,360,000 in December 31,
2014, and plummeted further in 2015 to $2,091,000, with the
valuator reassessing the value of the company stock downward in
2015 by more than 77% as of December 31, 2015. At the end of
2015, the Plan's investment in Sta-Home stock represented only
44% of the Plan's total assets. Plan's participants, including
Plaintiffs, received diminished stock allocations, took on
excessive debt to finance the transaction, and suffered losses to
their individual Plan accounts, says the complaint. [BN]
Plaintiff is represented by:
W. Eric Stracener, Esq.
W. Andrew Neely, Esq.
STRACENER & NEELY PLLC
304 N. Congress St.
Jackson, MS 39201
Telephone: (601) 206-0885
Email: eric@sn-law.net
andrew@sn-law.net
- and -
Gregory Y. Porter, Esq.
Ryan T. Jenny, Esq.
BAILEY & GLASSER LLP
1054 31st Street, NW, Suite 230
Washington, DC 20007
Telephone: (202) 463-2101
Facsimile: (202) 463-2103
Email: gporter@baileyglasser.com
rjenny@baileyglasser.com
BIOCRYST PHARMA: Klein Sues Over Merger With Idera, Nautilus
------------------------------------------------------------
Melvyn Klein, individually and on behalf of all others similarly
situated, Plaintiff, v. Biocryst Pharmaceuticals, Inc., George B.
Abercrombie, Stanley C. Erck, Jon P. Stonehouse, Nancy J. Hutson,
Sanj K. Patel, Robert A. Ingram, Fred E. Cohen, Kenneth B. Lee,
Jr., Idera Pharmaceuticals, Inc., Nautilus Holdco, Inc., Island
Merger Sub, Inc. and Boat Merger Sub, Inc., Defendants, Case No.
18-cv-00358 (D. Del., March 6, 2018), seeks to enjoin defendants
and all persons acting in concert with them from proceeding with,
consummating or closing the merger between Biocryst
Pharmaceuticals, Inc., Idera Pharmaceuticals, Inc. and Nautilus
Holdco, Inc., rescinding it in the event defendants consummate
the merger, rescissory damages, costs of this action, including
reasonable allowance for plaintiff's attorneys' and experts' fees
and such other and further relief under the Securities Exchange
Act of 1934.
Each share of common stock, par value $0.01 per share, of
Biocryst issued and outstanding will be converted into the right
to receive 0.50 of a newly issued share of the "Holdco Common
Stock," par value $0.01 per share. Eventually, Biocryst common
stockholders will own approximately 51.6% of the shares of Holdco
Common Stock on a fully diluted basis, and Idera common
stockholders will own 48.4%.
Biocryst designs, optimizes and develops novel small molecule
drugs that block key enzymes involved in the pathogenesis of
diseases while Idera focuses on the discovery, development and
commercialization of novel oligonucleotide therapeutics for
oncology and rare diseases.
The Merger agreement provides for a "no solicitation' clause that
prevents Biocryst from soliciting alternative proposals and
constrains its ability to negotiate with potential buyers, says
the complaint. Plaintiff claims that the consideration paid to
the company's shareholders is inadequate considering that the
intrinsic value of the company is more than the amount offered in
the proposed mergers. [BN]
Plaintiff is represented by:
Ryan M. Ernst, Esq.
Daniel P. Murray, Esq.
901 N. Market Street, Suite 1000
Wilmington, DE 19801
Tel: (302) 778-4000
Email: rernst@oelegal.com
dmurray@oelegal.com
- and -
Thomas J. McKenna, Esq.
Gregory M. Egleston, Esq.
GAINEY, McKENNA, & EGLESTON
440 Park Avenue South, 5th Floor
New York, NY 10016
Telephone: (212) 983-1300
Facsimile: (212) 983-0383
Email: tjmckenna@gme-law.com
gegleston@gme-law.com
BLUESTONE INDUSTRIES: "Cozart" Suit Seeks Unpaid Wages, Damages
---------------------------------------------------------------
Kenneth Cozart, in his own right and on behalf of others
similarly situated, Plaintiff, v. Bluestone Industries, Inc.,
Defendants, Case No. 18-cv-00397, (S.D. W.V., March 6, 2018),
seeks minimum wages, compensatory and liquidated damages,
interest, attorneys' fees, costs and all other legal and
equitable remedies under the Fair Labor Standards and Act and the
West Virginia Wage Payment and Collection Act.
Cozart was issued a paycheck which he deposited to his bank
account. Said check bounced, causing bad check fees to be charged
against him. Bluestone wired to the Plaintiff wages owed him due
to the bad check deposited on February 23, 2018, and was charged
a wire transfer fee for this payment. [BN]
Plaintiff is represented by:
Anthony J. Majestro, Esq.
POWELL & MAJESTRO, PLLC
405 Capitol Street, Suite P1200
Charleston, WV 25301
Phone: (304) 346-2889
Fax: (304) 346-2895
- and -
Anthony M. Salvatore, Esq.
Greg A. Hewitt, Esq.
HEWITT & SALVATORE, PLLC
204 North Court Street
Fayetteville, WV 25840
Phone: (304) 574-0272
Fax: (304) 574-0273
BOSTON SCIENTIFIC: 49,000 Mesh Claims Filed as of January 31
------------------------------------------------------------
Boston Scientific Corporation disclosed in its Form 10-K filed
with the U.S. Securities and Exchange Commission for the fiscal
year ended December 31, 2017, that as of January 31, 2018,
approximately 49,000 product liability cases or claims related to
transvaginal surgical mesh products designed to treat stress
urinary incontinence and pelvic organ prolapse have been asserted
against the Company. The pending cases are in various federal
and state courts in the U.S. and include eight putative class
actions. There were also fewer than 25 cases in Canada,
inclusive of one certified and three putative class actions and
fewer than 20 claims in the United Kingdom.
The Company said, "Generally, the plaintiffs allege personal
injury associated with use of our transvaginal surgical mesh
products. The plaintiffs assert design and manufacturing claims,
failure to warn, breach of warranty, fraud, violations of state
consumer protection laws and loss of consortium claims. Over
3,100 of the cases have been specially assigned to one judge in
state court in Massachusetts. On February 7, 2012, the Judicial
Panel on Multi-District Litigation (MDL) established MDL-2326 in
the U.S. District Court for the Southern District of West
Virginia and transferred the federal court transvaginal surgical
mesh cases to MDL-2326 for coordinated pretrial proceedings.
During the fourth quarter of 2013, we received written discovery
requests from certain state attorneys general offices regarding
our transvaginal surgical mesh products. We have responded to
those requests.
"As of January 31, 2018, we have entered into master settlement
agreements in principle or are in the final stages of entering
one with certain plaintiffs' counsel to resolve an aggregate of
approximately 44,000 cases and claims. These master settlement
agreements provide that the settlement and distribution of
settlement funds to participating claimants are conditional upon,
among other things, achieving minimum required claimant
participation thresholds. Of the approximately 44,000 cases and
claims, approximately 20,000 have met the conditions of the
settlement and are final. All settlement agreements were entered
into solely by way of compromise and without any admission or
concession by us of any liability or wrongdoing."
Boston Scientific Corporation is a worldwide developer,
manufacturer and marketer of medical devices that are used in a
broad range of interventional medical specialties.
BOSTON SCIENTIFIC: "Stevens" Class Action Lawsuit Remains Stayed
----------------------------------------------------------------
Boston Scientific Corporation disclosed in its Form 10-K filed
with the U.S. Securities and Exchange Commission for the fiscal
year ended December 31, 2017, that the class action lawsuit by
Teresa L. Stevens is still stayed.
The Company said, "On or about January 12, 2016, Teresa L.
Stevens filed a claim against us and three other defendants
asserting for herself and on behalf of a putative class of
similarly situated women, that she was harmed by a vaginal mesh
implant that she alleges contained a counterfeit or adulterated
resin product that we imported from China. The complaint was
filed in the U.S. District Court for the Southern District of
West Virginia, before the same Court that is hearing the mesh
MDL. The complaint, which alleges Racketeer Influenced and
Corrupt Organizations Act (RICO) violations, fraud,
misrepresentation, deceptive trade practices and unjust
enrichment, seeks both equitable relief and damages under state
and federal law.
"On January 26, 2016, the Court issued an order staying the case
and directing the plaintiff to submit information to allow the
FDA to issue a determination with respect to her allegations. In
addition, we are in contact with the U.S. Attorney's Office for
the Southern District of West Virginia and are responding
voluntarily to their requests in connection with that office's
review of the allegations concerning the use of mesh resin in the
complaint. We deny the plaintiff's allegations and intend to
defend ourselves vigorously."
Boston Scientific Corporation is a worldwide developer,
manufacturer and marketer of medical devices that are used in a
broad range of interventional medical specialties.
BOSTON SCIENTIFIC: "Turner" Class Action Lawsuit Still Stayed
-------------------------------------------------------------
Boston Scientific Corporation disclosed in its Form 10-K filed
with the U.S. Securities and Exchange Commission for the fiscal
year ended December 31, 2017, that the class action lawsuit by
Carolyn Turner is still stayed.
The Company said, "On February 27, 2017, Carolyn Turner filed a
complaint against us and five other defendants asserting for
herself and on behalf of a putative class of similarly situated
women, that she was harmed by a vaginal mesh implant that she
alleges contained a counterfeit or adulterated resin product that
we imported from China. The complaint was filed in the U.S.
District Court for the Middle District of Florida, Orlando
Division and alleges violations of the RICO, negligence, strict
liability, breach of an express or implied warranty, intentional
and negligent misrepresentation, fraud and unjust enrichment.
Ms. Turner served this complaint against us on April 7, 2017. As
of April 27, 2017, this case has been stayed, pending resolution
of the transfer petition to the mesh multidistrict litigation.
We deny the plaintiff's allegations and intend to defend
ourselves vigorously."
Boston Scientific Corporation is a worldwide developer,
manufacturer and marketer of medical devices that are used in a
broad range of interventional medical specialties.
CALLIDUS SOFTWARE: Franchi Seeks to Halt Sale to SAP America
------------------------------------------------------------
Anthony Franchi, individually and on behalf of all others
similarly situated, Plaintiff, v. Callidus Software Inc., Charles
M. Boesenberg, Mark A. Culhane, Kevin M. Klausmeyer, Nina L.
Richardson, Murray D. Rode, Leslie J. Stretch and James D. White,
Defendants, Case No. 18-cv-01443 (N.D. Cal., March 6, 2018),
seeks to enjoin defendants and all persons acting in concert with
them from proceeding with, consummating or closing the
acquisition of Callidus Software Inc. by SAP America, Inc. and
Emerson One Acquisition Corp., rescinding it in the event
defendants consummate the merger, rescissory damages, costs of
this action, including reasonable allowance for plaintiff's
attorneys' and experts' fees and such other and further relief
under the Securities Exchange Act of 1934.
Callidus shareholders will receive $36.00 in cash for each share
of Callidus common stock they own.
Callidus is into cloud-based sales, marketing, learning and
customer experience solutions. It generates revenue from cloud
subscriptions, services and term licenses.
Franchi is a shareholder of Callidus.
The complaint says the proxy statement omitted financial
projections and analyses performed by the company's financial
advisor, Qatalyst Partners LP and failed to disclose earnings,
interest, taxes, and depreciation and amortization, discretionary
cash flow and free cash flow. Said disclosures provides
stockholders with a basis to project the future financial
performance of a company, and allows stockholders to better
understand the financial analyses. [BN]
Plaintiff is represented by:
Michael Schumacher, Esq.
RIGRODSKY & LONG, P.A.
155 Jackson Street, #1903
San Francisco, CA 94111
Telephone: (415) 855-8995
Facsimile: (302) 654-7530
Email: ms@rl-legal.com
- and -
Brian D. Long, Esq.
Gina M. Serra, Esq.
RIGRODSKY & LONG, P.A.
300 Delaware Avenue, Suite 1220
Wilmington, DE 19803
Tel: (302) 295-5310
Facsimile: (302) 654-7530
Email: bdl@rl-legal.com
gms@rl-legal.com
CAPRI EXPRESS: "Lopez" Labor Suit Seeks Unpaid Overtime Pay
-----------------------------------------------------------
Miguel Lopez, on behalf of himself and similarly situated
persons, Plaintiff, v. Capri Express, Inc. and Philip J.
Salamone, individually, Defendants, Case No. 18-cv-01621, (N.D.
Ill., March 5, 2018), seeks overtime wages for all time worked in
excess of forty hours in individual workweeks pursuant to the
Fair Labor Standards Act and the Illinois Minimum Wage Law.
Defendants own and operate a restaurant, "Capri Express," located
at 114 Burr Ridge Parkway in Burr Ridge, Illinois where Lopez was
employed as a cook. He regularly worked in excess of forty hours
in individual work weeks, but was not compensated for one and a
half times his regular rate of pay. [BN]
Plaintiff is represented by:
Javier Castro, Esq.
Lydia Colunga-Merchant, Esq.
RAISE THE FLOOR ALLIANCE - LEGAL DEPT.
1 N. LaSalle, Suite 1275
Chicago, IL 60602
Tel: (312) 795-9115
CAREFUSION SOLUTIONS: Del. Dismisses Suit Over Unpaid Wages
-----------------------------------------------------------
The Superior Court of Delaware granted Defendant's Motion to
Dismiss the case captioned STEVE WARD and FRANCIS TRESSA,
individually and on behalf of all other similarly situated
persons, Plaintiffs, v. CAREFUSION SOLUTIONS, LLC, Defendant,
C.A. No. N17C-10-199 MMJ (Del.).
CareFusion has filed this Motion to Dismiss, arguing that the
California laws on which Plaintiffs rely do not apply to work
performed outside of California.
This is a class action suit brought to recover allegedly unpaid
wages and work expenses. Plaintiffs allege that they should be
classified as CareFusion's employees, not independent
contractors. Plaintiffs further allege that, as employees,
Sections 510, 1194, 1198, and 2802 of the California Labor Code
entitle them to recover for CareFusion's failure to reimburse
Plaintiffs for work-related expenses and CareFusion's failure to
pay Plaintiffs overtime wages.
Plaintiffs argue that the presence of a choice-of-law agreement
creates the opposite presumption; that is, a law will apply
extraterritorially unless it states otherwise. The basis of their
argument is Gravquick A/S v. Trimble Navigation International
Limited.
The Gravquick court held that if a state law does not have
limitations on its geographical scope, courts will apply it to a
contract governed by that state's law, even if parts of the
contract are performed outside of the state.
However, later cases analyzing Gravquick clarified that when a
choice-of-law clause imports California law, it necessarily
brings California's presumption against extraterritorial
application along with it. This means that California's
presumption against extraterritoriality is the sort of limitation
on geographical scope contemplated by Gravquick.
In O'Connor v. Uber Technologies, Inc., 58 F.Supp.3d 989, 1006
(N.D. Cal. 2014). the court concluded that Labor Code Section
2802 did not apply extraterritorially because it found no
legislative intent to the contrary. The O'Connor court reasoned,
in part, that where it so desired, the California legislature
provided for extraterritorial applications; the California
legislature did not so provide with respect to Section 2802.
When considering related statutes, California courts have
demonstrated an intent to narrowly apply its wage laws, limiting
who qualifies as a wage earner of California to a person who
resides in California, receives pay in California, and works
exclusively, or principally, in California. No part of the Labor
Code and no case interpreting the Labor Code suggests that the
law should apply extraterritorially on the sole basis of a
choice-of-law clause.
Therefore, the Motion to Dismiss must be granted, because an
employee cannot create by contract a cause of action that
California law does not provide. The choice-of-law clauses would
govern claims that arise from the agreement itself; they cannot
create "claims that exist independent of the contract.
Plaintiffs' Complaint is dismissed without prejudice.
A full-text copy of the Supreme Court's February 8, 2018 Opinion
is available at https://tinyurl.com/y9s382ar from Leagle.com.
Daniel C. Herr, Esq., 1225 N. King Street, Suite 1000. 6 South
State Street. Wilmington, DE 19801. (Argued), Jack D. McInnes,
Esq., 3500 West 75th Street, Suite 200, Prairie Village, KS
66208, Attorneys for Plaintiffs and the Putative Class.
Elizabeth S. Fenton, Esq. Elizabeth.Fenton@saul.com --, Danielle
N. Petaja, Esq.- dpetaja@saul.com -- Saul Ewing Arnstein & Lehr
LLP, Matthew J. Hank, Esq -. mhank@littler.com -- (Argued),
Helga P. Spencer, Esq.- hspencer@littler.com -- Littler
Mendelson P.C., Attorneys for Defendant CareFusion Solutions,
LLC.
CARESOURCE INDIANA: Court Refuses to Stay "Wilkes" TCPA Suit
------------------------------------------------------------
The United States District Court for the Northern District of
Indiana, Hammond Division, Lafayette, refused to stay proceedings
in the case captioned MELISSA WILKES and BENJAMIN WILKES, on
behalf of themselves and all others similarly situated,
Plaintiffs, v. CARESOURCE INDIANA, INC., et al., Defendants, Case
No. 4:16-CV-38-JVB-PRC (N.D. Ind.).
This matter is before the Court on Plaintiffs' Motion to Stay
Proceedings on Defendants' Motion for Summary Judgment Pending
Determination of Class Certification filed by Plaintiffs.
Plaintiffs initiated this cause of action by filing a Class
Action Complaint alleging violations of the Telephone Consumer
Protection Act.
Federal Rule of Civil Procedure 23(c)(1)(A) provides that at an
early practicable time after a person sues or is sued as a class
representative, the court must determine by order whether to
certify the action as a class action.
Here, Defendants have moved for summary judgment, arguing that
the named Plaintiffs consented to receive the phone calls at
issue. This narrow issue, which appears to draw on facts
particular to the named Plaintiffs, can be efficiently handled at
this stage of the litigation. If Defendants are successful in
their bid for summary judgment, then Plaintiffs will likely be
disqualified as proper class representatives, which in turn would
moot the question whether to certify the suit as a class action
unless the lawyers for the class manage to find another
representative.
In this scenario, the parties' and the Court's resources need not
be spent litigating and determining whether class certification
is appropriate. Therefore, the Court finds that, in this case, it
is in the interests of judicial economy and efficiency for the
Court to not stay proceedings on the Motion for Summary Judgment.
The Court now denies Plaintiffs' Motion to Stay Proceedings on
Defendants' Motion for Summary Judgment Pending Determination of
Class Certification.
A full-text copy of the District Court's February 1, 2018
Decision and Order is available at https://tinyurl.com/y9rpyejo
from Leagle.com
Melissa Wilkes, on behalf of themselves and all others similarly
situated & Benjamin Wilkes, on behalf of themselves and all
others similarly situated, Plaintiffs, represented by Eric S.
Pavlack -- Eric@PavlackLawFirm.com -- Pavlack Law LLC.
Caresource Indiana Inc & Caresource Management Group Co,
Defendants, represented by John R. Maley -- jmaley@btlaw.com --
Barnes & Thornburg LLP & Todd A. Dixon -- todd.dixon@btlaw.com --
Barnes & Thornburg LLP.
CENTENNIAL ELEVATOR: Faces "Lorenc" Suit in E.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Centennial Elevator
Industries, Inc. The case is styled as Mariusz Lorenc,
individually and on behalf of others similarly situated,
Plaintiff v. Centennial Elevator Industries, Inc., Automatic Data
Processing, Inc. and John Doe 1-3, Defendants, Case No. 1:18-cv-
02068 (E.D. N.Y., April 6, 2018).
Centennial Elevator Industries Inc. is an elevator service
company.[BN]
The Plaintiff appears PRO SE.
CLIFTON BANCORP: Parshall Drops Lawsuit on Kearny Merger Accord
---------------------------------------------------------------
Clifton Bancorp Inc. disclosed in its Form 8-K filed with the
U.S. Securities and Exchange Commission that on March 9, 2018,
Paul Parshall filed a voluntary notice of dismissal without
prejudice on his putative class action lawsuit related to the
Company's merger deal with Kearny Financial Corp.
Pursuant to the Merger, Clifton will merge with and into Kearny.
On February 16, 2018, Paul Parshall, a purported stockholder of
Clifton, filed a putative class action lawsuit in the United
States District Court for the District of New Jersey, captioned
Parshall v. Clifton Bancorp Inc., et al. (2:18-cv-02273-SDW-CLW),
against Clifton, the members of Clifton's Board of Directors and
Kearny on behalf of all of Clifton's public stockholders. The
relief sought in the lawsuit includes preliminary and permanent
injunction against the consummation of the Merger, rescission or
rescissory damages if the Merger is completed, costs and
attorney's fees.
Clifton Bancorp Inc. operates as the holding company for Clifton
Savings Bank that provides various financial services to
consumers and businesses in New Jersey. The Company was founded
in 1928 and is headquartered in Clifton, New Jersey.
COLLECTED GROUP: Kiler Claims Website Not Blind-Friendly
--------------------------------------------------------
Marion Kiler, Individually and as the representative of a class
of similarly situated persons, Plaintiff, v. The Collected Group
Retail, LLC and The Collected Group Company, LLC, Defendants,
Case No. 18-cv-01383, (E.D. N.Y., March 6, 2018), seeks
preliminary and permanent injunction, compensatory, statutory and
punitive damages and fines, prejudgment and post-judgment
interest, costs and expenses of this action together with
reasonable attorneys' and expert fees and such other and further
relief under the Americans With Disabilities Act, New York State
Human Rights Law and New York City Human Rights Law.
Defendants own and operate Joie Stores located in New York State
and throughout the United States offering women's clothing and
shoes. It also provides a website, joie.com which allows the
ability to view the various lines of clothing and shoes, make
purchases, learn about promotions and learn about Joie Stores and
information about the
Stores locations. Kiler browsed and intended to make an online
purchase of a sweater on Joie.com. He is legally blind and claims
that Defendant's website cannot be accessed by the visually-
impaired. [BN]
Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
44 Court St., Suite 1217
Brooklyn, NY 11201
Tel. (917) 373-9128
E-mail: ShakedLawGroup@Gmail.com
COMFORT SYSTEMS: Court Dismisses of "Maddison" Wage & Hour Suit
---------------------------------------------------------------
The United States District Court for the Northern District of New
York denied Defendant's Motion to Dismiss the case captioned
KEVIN T. MADDISON, individually and on behalf of all other
persons similarly situated, Plaintiffs, v. COMFORT SYSTEMS USA
(SYRACUSE), INC, d/b/a ABJ FIRE PROTECTION CO., INC., Defendant,
No. 5:17-CV-0359 (LEK/ATB) (N.D.N.Y.).
Defendant moves to dismiss this action or, in the alternative, to
strike Plaintiff's class allegations.
Plaintiff was employed by Defendant. Defendant's employees
install, service, and maintain fire and security alarm systems in
buildings for Defendant's clients. Plaintiff alleges that
Defendant entered into numerous public works contracts with its
clients.
In those contracts, Defendant either expressly promised, or was
obligated as a matter of law, to pay New York-mandated prevailing
wages to those of its employees who performed work on the public
works projects. Plaintiff alleges that Defendant did not pay him
and other employees' wages at the prevailing rate for work
performed on public works projects, and did not pay these
employees overtime pay at 1.5 times the prevailing wage rate.
Defendant argues in support of its motion to dismiss that
(1) Plaintiff's FLSA claim is partially time-barred; (2)
Plaintiff's allegation that Defendant paid him and other
employees overtime pay at less than the prevailing wage is not
cognizable under the FLSA; (3) Plaintiff pleads his FLSA claim
with insufficient specificity; and (4) the Court should decline
to exercise supplemental jurisdiction over Plaintiff's state
contract law claims.
Statute of Limitations
The Court rejects Defendant's belated statute of limitations
defense. Issues raised for the first time in a reply brief are
generally deemed waived. Connecticut Bar Ass'n v. United States,
620 F.3d 81, 91 n.13 (2d Cir. 2010) (citing Norton v. Sam's Club,
145 F.3d 114, 117 (2d Cir. 1998)). In Charlotten v. Heid, the
court deemed the defendant's statute of limitations defense
waived because it was raised for the first time in the
defendant's reply brief.
Therefore, the Court deems Defendant's statute of limitations
defense waived.
Whether Plaintiff's Unpaid Overtime Claim is Cognizable under the
FLSA
Plaintiff alleges that he and other employees of Defendant were
required to receive New York-mandated prevailing wages when
working on public works contracts. He claims that Defendant
regularly paid him and other employees at a rate below the
prevailing wage rate, and that, when Plaintiff and other
employees worked over forty hours in one week, Defendant paid
them overtime at 1.5 times the lower rate instead of 1.5 times
the prevailing wage rate.
Defendant argues that the FLSA does not provide employees a cause
of action when an employer fails to provide overtime pay at 1.5
times the prevailing wage rate.
In any event, the interpretation does not foreclose Plaintiff's
theory of liability. Section 778.108 states: "The Supreme Court
has described the regular rate as the hourly rate actually paid
the employee for the normal, non-overtime week for which he is
employed an actual fact. Section 778.108 (citing Walling, 325
U.S. at 424)." While this provision initially appears to support
Defendant's interpretation of the regular rate, the
interpretation, and the Supreme Court opinion on which it relies,
must be read in context. Walling, and, thus, Section 778.108,
reflect the concern that parties could simply designate through
an employment contract] a regular rate' that does not reflect the
reality of how employees are actually paid under the contract.
The primary purpose of that rule is to avoid having employees
paid less than they should be, because of an artificially low
regular rate. Walling and Section 778.108 do not ask courts to
ignore the contractually-agreed wage rate when determining the
regular rate.
Because neither Grochowski v. Phoenix Construction 318 F.3d 80,
87 (2d Cir. 2003)), Lundy v. Catholic Health Sys. of Long Island,
Inc., 711 F.3d 106 (2d Cir. 2013)), Nakahata v. New York-
Presbyterian Healthcare Sys., 723 F.3d 192, 201 (2d Cir. 2013))
nor the Department of Labor's interpretative bulletin prohibit
Plaintiff's claim that Defendant should have calculated his
overtime pay using New York's prevailing wage rate, and because
the weight of authority supports Plaintiff's theory of liability,
the Court denies Defendant's motion to dismiss based on its
interpretation of the regular rate.
The Sufficiency of Plaintiff's FLSA Claim
Preclusion
In its Reply, Defendant offers a more targeted preclusion
argument, stating that Plaintiff's FLSA claim for liquidated
damages could have been evaluated at the time of the NYSDOL
settlement and is, thus, barred by res judicata. The doctrine of
res judicata provides that a final judgment on the merits in one
action bars subsequent re-litigation of the same claim by the
same parties. Settlements supervised by an administrative agency
can have preclusive effect if the parties to the settlement so
intended.
The intent of the parties is to be determined from the language
of the agreement itself. While Defendant provides records from
the settlement showing that it made restitution to several of its
employees, it does not provide the actual settlement agreement.
Therefore, the Court cannot say that the parties intended the
settlement to be "a final settlement regarding all liability of
Defendant with respect to this matter.
Therefore, Plaintiff's FLSA liquidated damages claim is not
barred by res judicata.
Sufficiency
Defendant argues that, without Plaintiff's Tompkins Site
allegations, his FLSA claim should be dismissed because it is not
pleaded with the specificity required by Lundy, Nakahata, and
DeJesus v. HF Mgmt. Servs., LLC, 726 F.3d 85 (2d Cir. 2013).
Plaintiff's FLSA overtime allegations do not suffer from the
defects in the trio of cases cited by Defendant. Instead, using
his work at the Tompkins Site as an example, Plaintiff provides
sufficient factual detail to create a plausible inference that,
for at least two weeks a year from 2011-15, he worked more than
forty hours per week and Defendant failed to pay him overtime at
1.5 times the prevailing wage rate. various district courts
have denied motions to dismiss where the plaintiff sufficiently
alleges that they regularly worked forty hours per week, and are
uncompensated for specified overtime work performed beyond that.
Therefore, Plaintiff's FLSA claim survives dismissal.
State Law Claims
Plaintiff alleges a breach of contract claim on behalf of himself
and the Rule 23 Class based on Defendant's alleged breach of
public works contracts that required it to pay its employees'
wages at the prevailing rate.
The Court has federal question jurisdiction over Plaintiff's FLSA
claim, which arises under the laws of the United States. Like
Plaintiff's FLSA claim, his state law claims concern Defendant's
underpayment of wages to him and similarly situated employees for
work that these employees performed pursuant to public works
contracts. Therefore, Plaintiff's FLSA and state law claims form
part of the same case or controversy. Defendant does not
challenge this conclusion -- instead, in support of its motion to
dismiss, it asks the Court to decline to exercise supplemental
jurisdiction over Plaintiff's state law claims because it assumed
the Court would dismiss Plaintiff's FLSA claim.
Because the Court did not dismiss Plaintiff's FLSA claim,
exercising supplemental jurisdiction over his state law claims is
plainly appropriate.
A full-text copy of the District Court's February 1, 2018
Memorandum Decision and Order is available at
https://tinyurl.com/ybpjhfn9 from Leagle.com.
Kevin T. Maddison, individually and on behalf of all other
persons similarly situated, Plaintiff, represented by Jason J.
Rozger -- jrozger@bmbblaw.com -- Beranbaum, Menken Law Firm.
Comfort Systems USA (Syracuse), Inc., doing business as ABJ Fire
Protection CO., Inc., Defendant, represented by Jacqueline P.
Polito -- jpolito@littler.com, -- Littler, Mendelson Law Firm &
Jessica F. Pizzutelli -- jpizzutelli@littler.com, -- Littler,
Mendelson Law Firm.
COOK COUNTY, IL: Dismissal of Filing Fee Suit Partly Reversed
-------------------------------------------------------------
The Appellate Court of Illinois, First District, Fourth Division
affirmed in part and reversed in part the Circuit Court's
judgment dismissing the case captioned MIDWEST MEDICAL RECORDS
ASSOCIATION, INC.; RENX GROUP, LLC, f/k/a Big Blue Capital
Partners, LLC; and TOMICA PREMOVIC, Individually, and on Behalf
of All Others Similarly Situated, Plaintiffs-Appellants, v.
DOROTHY BROWN, Clerk of the Circuit Court of Cook County,
Illinois; MARIA PAPPAS, Treasurer of Cook County, Illinois; and
COOK COUNTY, ILLINOIS, a Body Politic and Corporate, Defendants-
Appellees, No. 1-16-3230 (Ill. App.).
Plaintiffs timely appealed the circuit court's granting
defendants' motion on grounds of voluntary payment and other
reasons set forth in the court's order and it dismissed the
complaint with prejudice.
Plaintiffs, Midwest Medical Records Association, Inc., Renx
Group, LLC, and Tomica Premovic, appeal following the circuit
court's dismissal of their consolidated class action complaint
challenging the practice of defendant, Dorothy Brown, Clerk of
the Circuit Court of Cook County (Clerk), charging a fee for
filing a petition or motion to reconsider, vacate, or modify
interlocutory judgments or orders in the circuit court.
The circuit court granted the motion to dismiss under section 2-
615 but denied the motion as to section 2-619. Concerning count
I, the circuit court rejected plaintiffs' claim that they paid
the filing fees under duress because they would have lost the
opportunity to contest the rulings of the court unless they paid
the fees. The circuit court concluded that plaintiffs failed to
adequately plead duress, they did not sufficiently show that they
were denied access to a service that was necessary or essential,
and plaintiffs were represented by counsel when they paid the
fees.
With respect to count II, the circuit court held that there was
no implied private cause of action under section 27.2a(g) as
plaintiffs were not members of the class intended to be benefited
by the statute and plaintiffs failed to show that a private right
of action was necessary to provide an adequate remedy, as
plaintiffs could have simply paid the fees under protest and then
pursued their remedies.
The circuit court also dismissed counts III and IV as they
depended on counts I and II. The court dismissed the consolidated
amended class action complaint without prejudice.
On appeal, this court reviews the judgment, not the reasoning, of
the trial court, and we may affirm on any grounds in the record,
regardless of whether the trial court relied on those grounds or
whether the trial court's reasoning was correct.
Section 27.2a(g) of the Clerks of Courts Act provides, in
pertinent part:
"The fees of the clerks of the circuit court in all counties
having a population of 3,000,000 or more inhabitants in the
instances described in this Section shall be as provided in this
Section. In those instances where a minimum and maximum fee is
stated, the clerk of the circuit court must charge the minimum
fee listed and may charge up to the maximum fee if the county
board has by resolution increased the fee. The fees shall be paid
in advance and shall be as follows:
(g) Petition to Vacate or Modify
(1) Petition to vacate or modify any final judgment or order of
court, except in forcible entry and detainer cases and small
claims cases or a petition to reopen an estate, to modify,
terminate, or enforce a judgment or order for child or spousal
support, or to modify, suspend, or terminate an order for
withholding, if filed before 30 days after the entry of the
judgment or order, a minimum of $50 and a maximum of $60.
(2) Petition to vacate or modify any final judgment or order of
court, except a petition to modify, terminate, or enforce a
judgment or order for child or spousal support or to modify,
suspend, or terminate an order for withholding, if filed later
than 30 days after the entry of the judgment or order, a minimum
of $75 and a maximum of $90."
On appeal, plaintiffs dispute defendants' contention in the
circuit court that section 27.2a(g) authorized the Clerk to
charge a fee for filing a motion contesting an interlocutory
order.
Collateral Estoppel
The Court note that plaintiffs also contend on appeal that the
circuit court properly rejected defendants' collateral estoppel
argument.
Here, as stated, there is no dispute that payment of the fees was
unlawful under Gassman. Gassman v. Clerk of the Circuit Court,
2017 IL App (1st) 151738. In Gassman, this court held that the
word final in section 27.2a(g) modifies both of the terms
judgment and order in the statute.
In addition, plaintiffs do not dispute that they failed to note
any protest on the written instruments with which they paid the
fees. Plaintiffs also do not allege that they lacked knowledge of
the facts upon which to protest payment of the fees. Instead,
they contend that their payment of the filing fees was
involuntary and under duress as failure to pay would have denied
them access to the courts and the right to a hearing, subjecting
them to adverse judgments and their lawyers to legal malpractice
claims.
To that end, plaintiffs assert that the circuit court erred in
concluding that nonpayment would not have resulted in loss of
access to necessary goods or services. Plaintiffs urge that the
modern trend is against harsh application of the voluntary
payment doctrine and a plaintiff need not show that the product
or service is a necessity in order to establish duress.
Accordingly, the Ill. App. finds that the trial court erred in
holding that plaintiffs' claims were insufficient to plead duress
and failed to show they were denied access to a service that was
necessary to them. Plaintiffs alleged that they paid the fees
under duress because non-payment would have resulted in loss of
access to a necessary good or service, access to the courts to
challenge adverse judgments entered against them. At a minimum,
the circuit court should not have resolved the issue of duress as
a matter of law on the pleadings, as it is generally a question
of fact.
In count II, plaintiffs alleged that defendants violated section
27.2a(g) by imposing and collecting the filing fees and that
plaintiffs were overcharged or paid fees they did not owe and
suffered monetary damages as a result. Plaintiffs requested a
declaration that charging the fees was unlawful and also sought a
return of the fees collected pursuant to section 27.2a(g), in
addition to attorney fees and other costs. Defendants asserted in
their motion to dismiss that count II should be dismissed under
Marshall, 2016 IL App (1st) 142864, because there is no implied
private cause of action for an alleged violation of section
27.2a(g). Defendants argued that plaintiffs have an adequate
remedy in the form of a restitution claim.
The circuit court agreed.
Here, the Ill. App. finds that plaintiffs do not have a basis to
pursue a private action to impose tort liability on defendants
under Marshall, and consequently, they do not have a basis upon
which to seek damages to compensate for costs and expenses beyond
restitution. However, plaintiffs can proceed with a declaratory
action, similar to the mandamus action pursued by the plaintiffs
in Gassman. Much like the mandamus action by the plaintiffs in
Gassman, plaintiffs here need not pursue a private right of
action under the Clerks of Courts Act in seeking the equitable
relief of a declaratory judgment and return of the fees
unlawfully imposed in the form of restitution.
Moreover, to the extent that plaintiffs argue that they are
seeking attorney fees, the Ill. App. notes that "Illinois has
long adhered to the general American rule that the prevailing
party in a lawsuit must bear the costs of litigation, unless a
statutory provision or an agreement between the parties allows
the successful litigant to recover attorney fees and the expenses
of suit."
Here, plaintiffs have shown no statutory provision or agreement
authorizing such fees.
The Ill. App. finds the circuit court erred in dismissing
plaintiffs' count I claim on the basis that it was barred by the
voluntary payment doctrine. As to count II, the Ill. App. finds
that no private right of action is implied in the Clerks of
Courts Act. However, plaintiffs may proceed on their declaratory
action to prevent the Clerk from charging filing fees under
section 27.2a(g) for interlocutory motions and to recover such
fees paid by plaintiffs as restitution.
Affirmed in part, reversed in part, and remanded.
A full-text copy of the Ill. App.'s February 1, 2018 Opinion is
available at https://tinyurl.com/yazfmf25 from Leagle.com.
CRYSTAL ROCK: Lombardi Sues Over Sale to Cott Corp.
---------------------------------------------------
Frank Lombardi, individually and on behalf of all others
similarly situated, Plaintiff, v. Crystal Rock Holdings, Inc.,
Ross S. Rapaport, John B. Baker, Peter K. Baker, Martin A.
Dytrych, John M. Lapides, Lori J. Schafer, Bruce S. MacDonald,
Cott Corporation, and CR Merger Sub, Inc., Defendants, Case No.
18-cv-00398 (D. Conn., March 5, 2018), seeks to enjoin defendants
and all persons acting in concert with them from proceeding with,
consummating, or closing the acquisition of Crystal Rock by Cott
Corp. and CR Merger Sub, rescinding it and setting it aside or
awarding rescissory damages in the event defendants consummate
the merger. The Plaintiff also seeks costs of this action,
including reasonable allowance for attorneys' and experts' fees
and such other and further relief under the Securities Exchange
Act of 1934.
Crystal Rock shareholders stand to receive $0.97 in cash for each
share of stock they own.
The complaint says the proxy statement omitted material
information regarding Crystal Rock's financial projections and
the financial analyses performed by its financial advisor, Mirus
Securities, Inc. and failed to disclose the unlevered/unleveraged
free Cash flows for Crystal Rock and the underlying line items,
the terminal value for Crystal Rock, the individual multiples and
financial metrics for the companies observed by Mirus in the
analysis and the transactions observed by Mirus in the analysis
and the premiums paid in such transactions.
Secondly, notes the complaint, the Solicitation Statement fails
to disclose whether any non-disclosure agreements executed by the
Company and the prospective bidders contained standstill and/or
provisions that are or were preventing those counterparties from
submitting superior offers to acquire the Company.
Without this information, stockholders may have the mistaken
belief that, if these potentially interested parties wished to
come forward with a superior offer, they are or were permitted to
do so, when in fact they are or were contractually prohibited
from doing so, the complaint adds. [BN]
Plaintiff is represented by:
RIGRODSKY & LONG, P.A.
300 Delaware Avenue, Suite 1220
Wilmington, DE 19801
Telephone: (302) 295-5310
Facsimile: (302) 654-7530
- and -
Brian S. Cohen, Esq.
LACHTMAN COHEN PC
500 West Putnam Ave., Suite 400
Greenwich CT 06830
Tel: (203) 404-4960
CTI BIOPHARMA: Ct. Grants Final OK of Securities Suit Settlement
----------------------------------------------------------------
The United States District Court for the Western District of
Washington, Seattle, granted final approval of the class
settlement in IN RE CTI BIOPHARMA CORP. SECURITIES LITIGATION,
Case No. 2:16-cv-00216-RSL (W.D. Wash.).
DAFNA LifeScience, LP and DAFNA LifeScience Select, LP (DAFNA, on
behalf of itself and the Settlement Class; (b) defendant CTI
BioPharma Corp. (CTI); (c) defendants James A. Bianco, Louis A.
Bianco, Jack W. Singer, Frederick W. Telling, Reed V. Tuckson,
Phillip M. Nudelman, John H. Bauer, Karen Ignagni, Richard L.
Love, and Mary O. Mundinger (Individual Defendants" and, together
with CTI, CTI Defendants); and (d) defendants Piper Jaffray &
Co., Landenburg Thalmann & Co. Inc., Roth Capital Partners, LLC,
and National Securities Corporation (Underwriter Defendants) and,
together with the CTI Defendants), collectively, the Parties,
have entered into a Stipulation and Agreement of Settlement dated
September 15, 2017 (Stipulation), that provides for a complete
dismissal with prejudice of the claims asserted against
Defendants in the Action on the terms and conditions set forth in
the Stipulation, subject to the approval of this Court
(Settlement).
The Court affirms its determinations in the Preliminary Approval
Order certifying, for the purposes of the Settlement only, the
Action as a class action pursuant to Rules 23(a) and (b)(3) of
the Federal Rules of Civil Procedure on behalf of the Settlement
Class consisting of all persons and entities who purchased or
otherwise acquired CTI Securities during the period from March 9,
2015 through February 9, 2016, inclusive (the "Class Period"),
and were damaged thereby. Excluded from the Settlement Class are
(a) Defendants; (b) the Officers and directors of CTI during the
Class Period (the "Excluded Officers and Directors"); (c) the
Immediate Family Members of the Individual Defendants and
Excluded Officers and Directors; (d) any entity in which any
Defendant, any Excluded Officer or Director, or any of their
respective Immediate Family Members had during the Class Period
and/or has a controlling interest; (e) Defendants' liability
insurance carriers; (f) any affiliates, parents, or subsidiaries
of CTI; (g) all CTI plans that are covered by ERISA; and (h) the
legal representatives, heirs, agents, affiliates, successors-in-
interest, or assigns of any excluded person or entity, in their
respective capacity as such. Also excluded from the Settlement
Class is the person listed on Exhibit 1 hereto who is excluded
from the Settlement Class pursuant to request.
Pursuant to, and in accordance with, Rule 23 of the Federal Rules
of Civil Procedure, the Court fully and finally approves the
Settlement; the Releases provided for therein; and the dismissal
with prejudice of the claims asserted against Defendants in the
Action), and finds that the Settlement is, in all respects, fair,
reasonable, and adequate to the Settlement Class. The Parties are
directed to implement, perform, and consummate the Settlement in
accordance with the terms and provisions contained in the
Stipulation.
A full-text copy of the District Court's February 1, 2018 Order
is available at https://tinyurl.com/ybr433cr from Leagle.com.
Marcello Zucca, Paul Sapan, Ernie Lemoi & Stefano D'Agostino,
Movants, represented by Dan Drachler -- ddrachler@zsz.com --
ZWERLING SCHACHTER & ZWERLING.
James Lessard & Rebecca Lessard, Movants, represented by Juli E.
Farris -- jfarris@KellerRohrback.com -- KELLER ROHRBACK.
IPConcept (Luxemburg) S.A., Movant, pro se.
Medical Opportunities Fund, Movant, represented by Stuart W.
Emmons -- swe@federmanlaw.com -- FEDERMAN & SHERWOOD, pro hac
vice, William B. Federman -- wbf@federmanlaw.com -- FEDERMAN &
SHERWOOD, pro hac vice & Juli E. Farris, KELLER ROHRBACK.
CTI BioPharma Corp, James A Bianco & Louis A Bianco, Defendants,
represented by Leah Godesky -- lgodesky@omm.com -- O'MELVENY &
MYERS LLP, pro hac vice, Reuben Goetzl -- rgoetzl@omm.com --
O'MELVENY & MYERS LLP, pro hac vice, Ross Bradley Galin --
rgalin@omm.com -- O'MELVENY & MYERS LLP, pro hac vice & Brendan
Thomas Mangan -- brendanmangan@dwt.com -- DAVIS WRIGHT TREMAINE.
DECIBELS OF OREGON: Court Narrows Claims in "Wilson"
----------------------------------------------------
The United States District Court for the District of Oregon,
Medford Division, granted in part and denied in part Defendant's
Partial Motion to Dismiss in the case captioned DANIEL WILSON,
Plaintiff, v. DECIBELS OF OREGON, INC.; DENNIS SNYDER; LEO BROWN,
Defendants, Civ. No. 1:17-cv-01558-MC (D. Ore.).
Plaintiff Daniel Wilson was employed by Defendant Decibels of
Oregon, Inc. as an installation technician. Plaintiff alleges he
was subjected an unfair and unlawful system of payment while
employed by Defendants, which deprived him of wages for time
spent working and overtime pay to which he was entitled.
Plaintiff alleges that other installation technicians employed by
Defendants were subjected to the same unlawful system and seeks
to bring a collective action pursuant to the Fair Labor Standards
Act (FLSA).
Two other installation technicians, Matthew Wilson and Ryan
Hemming, have brought substantially similar actions in Matthew
Wilson v. Decibels of Oregon, Inc. et al., 1:16-cv-00855-CL
(Matthew Wilson) and Hemming v. Decibels of Oregon, Inc. et al.,
1:17-cv-01624-MC (Hemming) Matthew Wilson, Hemming, and Plaintiff
are all represented by the same counsel and all three cases
include a claim for collective action against Defendants under
the FLSA.
Defendants argue (1) that Plaintiff's claim for collective action
is barred by collateral estoppel based on the Court's ruling in
Matthew Wilson and (2) that Plaintiff's FLSA and state law
overtime and premium pay claims are at least partially time-
barred.
Collateral estoppel applies where it is established that (1) the
issue necessarily decided at the previous proceedings is
identical to the one which is sought to be relitigated; (2) the
first proceeding ended with a final judgment on the merits; and
(3) the party against whom collateral estoppel is asserted was a
party or in privity with a party in the first proceeding.
To support his position, Plaintiff relies on the Supreme Court's
decision in Smith v. Bayer Corp., 564 U.S. 299 (2011). In Smith,
the Supreme Court held that, in the context of a class action
under Rule 23, an unnamed member of a proposed but uncertified
class was not a party to earlier class litigation and was not
bound under principles of nonparty preclusion.
In Phillips v. Randy's Trucking, Inc., 1:16-cv-00753-LJO-JLT,
2016 WL 6248264 (E.D. Cal. Oct. 26, 2016), the district court
rejected a similar attempt to apply Smith to FLSA opt-in parties.
As in the present case, the Phillips plaintiff had affirmatively
opted in to a prior collective action class before the court
denied conditional certification.
Given the strong factual similarity between Phillips and the
present case, the Court finds the reasoning of Phillips to be
especially persuasive. Plaintiff affirmatively opted in to the
collective action claim in Matthew Wilson before the Court denied
conditional certification. In doing so, Plaintiff agreed to be
bound by the Court's decision.
The Court therefore concludes that Plaintiff was a party in the
Matthew Wilson case for purposes of the collateral estoppel
analysis.
In this case, Plaintiff agrees that his claims are essentially
the same as those advanced in Matthew Wilson, with some minor
tweaks and adjustments. Plaintiff was employed in the same
position, by the same company, and in the same city as the
Matthew Wilson plaintiff. Except for the addition of Leo Brown,
Plaintiff brings his claims against the same Defendants. While
these similarities would seem to weigh in favor of a finding of
close identity of issues, the Court is not convinced the
similarities compel that conclusion.
On the specific question of identity of issues, the Phillips
court observed that: "In its decision, the prior court relied not
only on the allegations in the complaint, but also on
declarations from the named plaintiffs." Here, the Court only has
the Complaint and cannot yet know whether Plaintiff could put
forward evidence in support of his motion for class certification
that would show that he is similarly situated to other putative
plaintiffs. If he can so do, that new evidence would be 'of
controlling significance' and could lead to a different outcome
at the certification stage. Plaintiff is entitled to put forth
evidence to show that this class should proceed as a collective
action at the appropriate time.
The Court finds this reasoning persuasive. As in Phillips, the
Court is not in a position to know whether the evidence presented
in a motion to conditionally certify a collective action in this
case will be identical to the evidence presented in Matthew
Wilson. If Plaintiff presents new evidence, it might prove to be
of controlling significance, and could lead to a different
outcome.
Accordingly, the Court declines to find that collateral estoppel
is justified based on identity of issues.
Based on the pleadings and affidavits of the Matthew Wilson
plaintiffs, Judge Clarke determined that the plaintiffs had
failed to show that the installation technicians who have asked
to join this suit, as well as any putative plaintiffs who would
later be encompassed into the putative class, are similarly
situated. Judge Clarke did not conclude that evidentiary record
showed that the action was categorically unsuitable for
collective action treatment, except with regard to the specific
individuals who sought to join the class. Nor did this Court
expand the scope of Judge Clarke's ruling in its Order adopting
the Report and Recommendation.
Once again, the Court finds the reasoning of Phillips persuasive.
The decision to deny conditional certification in Matthew Wilson
was not sufficiently firm to exercise a preclusive effect on
Plaintiff's claim for collective action at this stage of the
present case.
Defendants' motion to dismiss Plaintiff's collective action claim
based on collateral estoppel is denied.
FLSA actions must be commenced within two years unless the
plaintiff can prove a willful violation, in which case they must
be commenced within three years of the date on which the claims
accrued.
In this case, Plaintiff did not initiate this action until
October 2, 2017, but is asserting both FLSA claims and state law
claims for the entire period of his employment, which ran from
April 2014 to May 2016. Under the circumstances, the Court
concludes that the running of the statute of limitations is
apparent on the face of the Complaint and Defendants' timeliness
argument is appropriately raised in a motion to dismiss.
The running of the statute is apparent on the face of the
Complaint and Plaintiff admits that the facts and factors which
might justify equitable tolling or equitable estoppel have not
been included in his pleadings. Accordingly, Defendants' Partial
Motion to Dismiss is granted on the issue of timeliness and
Plaintiff's FLSA and state law claims are dismissed to the extent
that they seek to reach beyond the applicable limitations period.
Defendants' Partial Motion to Dismiss is granted in part and
denied in part. Plaintiff's FLSA and state law overtime and
premium pay claims are DISMISSED to the extent that they seek to
reach beyond the applicable statutes of limitations.
A full-text copy of the District Court's February 1, 2018 Opinion
and Order is available at https://tinyurl.com/y6u7b5j9 from
Leagle.com.
Daniel Wilson, Plaintiff, represented by Quinn E. Kuranz --
quinn@kuranzlaw.com -- The Office of Q.E. Kuranz Attorney at Law,
LLC.
Decibels of Oregon, Inc., Dennis Snyder & Leo Brown, Defendants,
represented by John Baird Dudrey -- john.dudrey@stoel.com --
Stoel Rives LLP, Karen L. O'Connor -- kloconnor@stoel.com --
Stoel Rives LLP & Caroline J. Livett -- caroline.livett@stoel.com
-- Stoel Rives LLP.
DECIBELS OF OREGON: Court Narrows Claims in "Hemming"
-----------------------------------------------------
The United States District Court for the District of Oregon,
Medford Division, granted in part and denied in part Defendant's
Partial Motion to Dismiss in the case captioned RYAN HEMMING,
Plaintiff, v. DECIBELS OF OREGON, INC.; DENNIS SNYDER; LEO BROWN,
Defendants, Civ. No. 1:17-cv-01624-MC (D. Ore.).
Plaintiff Ryan Hemming was employed by Defendant Decibels of
Oregon, Inc. as a Senior Technician. Plaintiff alleges he was
subjected an unfair and unlawful system of payment while employed
by Defendants, which deprived him of wages for time spent working
and overtime pay to which he was entitled. Plaintiff alleges that
other installation technicians employed by Defendants were
subjected to the same unlawful system and seeks to bring a
collective action pursuant to the Fair Labor Standards Act
(FLSA).
Two other installation technicians, Matthew Wilson and Daniel
Wilson, have brought substantially similar actions in Matthew
Wilson v. Decibels of Oregon, Inc. et al., 1:16-cv-00855-CL
(Matthew Wilson) and Daniel Wilson v. Decibels of Oregon, Inc. et
al., 1:17-cv-01558-MC (Daniel Wilson). Daniel Wilson, Matthew
Wilson, and Plaintiff are all represented by the same counsel and
all three cases include a claim for collective action against
Defendants under the FLSA.
Defendants argue (1) that Plaintiff's claim for collective action
is barred by collateral estoppel based on the Court's ruling in
Matthew Wilson and (2) that Plaintiff's FLSA and state law
overtime and premium pay claims are at least partially time-
barred.
Identity of Parties
To support his position, Plaintiff relies on the Supreme Court's
decision in Smith v. Bayer Corp., 564 U.S. 299 (2011). In Smith,
the Supreme Court held that, in the context of a class action
under Rule 23, an unnamed member of a proposed but uncertified
class was not a party to earlier class litigation and was not
bound under principles of nonparty preclusion.
In Phillips v. Randy's Trucking, Inc., 1:16-cv-00753-LJO-JLT,
2016 WL 6248264 (E.D. Cal. Oct. 26, 2016), the district court
rejected a similar attempt to apply Smith to FLSA opt-in parties.
As in the present case, the Phillips plaintiff had affirmatively
opted in to a prior collective action class before the court
denied conditional certification.
Given the strong factual similarity between Phillips and the
present case, the Court finds the reasoning of Phillips to be
especially persuasive. Plaintiff affirmatively opted in to the
collective action claim in Matthew Wilson before the Court denied
conditional certification. In doing so, Plaintiff agreed to be
bound by the Court's decision.
The Court therefore concludes that Plaintiff was a party in the
Matthew Wilson case for purposes of the collateral estoppel
analysis.
Identity of Issues
In this case, Plaintiff agrees that his claims are essentially
the same as those advanced in Matthew Wilson, with some minor
tweaks and adjustments. Plaintiff was employed in the same
position, by the same company, and in the same city as the
Matthew Wilson plaintiff. Except for the addition of Leo Brown,
Plaintiff brings his claims against the same Defendants. While
these similarities would seem to weigh in favor of a finding of
close identity of issues, the Court is not convinced the
similarities compel that conclusion.
On the specific question of identity of issues, the Phillips
court observed that: "In its decision, the prior court relied not
only on the allegations in the complaint, but also on
declarations from the named plaintiffs." Here, the Court only
has the Complaint and cannot yet know whether Plaintiff could put
forward evidence in support of his motion for class certification
that would show that he is similarly situated to other putative
plaintiffs. If he can so do, that new evidence would be 'of
controlling significance' and could lead to a different outcome
at the certification stage. Plaintiff is entitled to put forth
evidence to show that this class should proceed as a collective
action at the appropriate time.
The Court finds this reasoning persuasive. As in Phillips, the
Court is not in a position to know whether the evidence presented
in a motion to conditionally certify a collective action in this
case will be identical to the evidence presented in Matthew
Wilson. If Plaintiff presents new evidence, it might prove to be
of controlling significance, and could lead to a different
outcome.
Accordingly, the Court declines to find that collateral estoppel
is justified based on identity of issues.
Finality of the Prior Determination
Based on the pleadings and affidavits of the Matthew Wilson
plaintiffs, Judge Clarke determined that the plaintiffs had
failed to show that the installation technicians who have asked
to join this suit, as well as any putative plaintiffs who would
later be encompassed into the putative class, are similarly
situated. Judge Clarke did not conclude that evidentiary record
showed that the action was categorically unsuitable for
collective action treatment, except with regard to the specific
individuals who sought to join the class. Nor did this Court
expand the scope of Judge Clarke's ruling in its Order adopting
the Report and Recommendation.
Once again, the Court finds the reasoning of Phillips persuasive.
The decision to deny conditional certification in Matthew Wilson
was not sufficiently firm to exercise a preclusive effect on
Plaintiff's claim for collective action at this stage of the
present case.
Defendants' motion to dismiss Plaintiff's collective action claim
based on collateral estoppel is denied.
Statute of Limitations
FLSA actions must be commenced within two years unless the
plaintiff can prove a willful violation, in which case they must
be commenced within three years of the date on which the claims
accrued.
In this case, Plaintiff did not initiate this action until
October 2, 2017, but is asserting both FLSA claims and state law
claims for the entire period of his employment, which ran from
April 2014 to May 2016. Under the circumstances, the Court
concludes that the running of the statute of limitations is
apparent on the face of the Complaint and Defendants' timeliness
argument is appropriately raised in a motion to dismiss.
The running of the statute is apparent on the face of the
Complaint and Plaintiff admits that the facts and factors which
might justify equitable tolling or equitable estoppel have not
been included in his pleadings. Accordingly, Defendants' Partial
Motion to Dismiss is granted on the issue of timeliness and
Plaintiff's FLSA and state law claims are dismissed to the extent
that they seek to reach beyond the applicable limitations period.
Defendants' Partial Motion to Dismiss is granted in part and
denied in part. Plaintiff's FLSA and state law overtime and
premium pay claims are dismissed to the extent that they seek to
reach beyond the applicable statutes of limitations.
A full-text copy of the District Court's February 1, 2018 Opinion
and Order is available at https://tinyurl.com/ydggest3 from
Leagle.com.
Daniel Wilson, Plaintiff, represented by Quinn E. Kuranz --
quinn@kuranzlaw.com -- The Office of Q.E. Kuranz Attorney at Law,
LLC.
Decibels of Oregon, Inc., Dennis Snyder & Leo Brown, Defendants,
represented by John Baird Dudrey -- john.dudrey@stoel.com --
Stoel Rives LLP, Karen L. O'Connor -- kloconnor@stoel.com --
Stoel Rives LLP & Caroline J. Livett -- caroline.livett@stoel.com
-- Stoel Rives LLP.
DRILFORMANCE LLC: Ct. Won't Strike Late Filers in "Kitigawa"
------------------------------------------------------------
The United States District Court for the Southern District of
Texas, Houston Division, denied Defendant's Motion to Strike the
two plaintiffs who opted in after the October 3, 2017 deadline
for the class in the case captioned CASEY KITAGAWA and BRANDON
SHELDON, individually and on behalf of all others similarly
situated, Plaintiffs, v. DRILFORMANCE, LLC, Defendant, Civil
Action No. H-17-726 (S.D. Tex.).
Casey Kitagawa and Brandon Sheldon are the lead plaintiffs in
this Fair Labor Standards Act (FLSA) suit. The plaintiffs allege
that they worked as applications engineers for Drilformance and
were misclassified as exempt from the FLSA overtime requirement.
They allege that after June 2015, they were paid a salary that
was reduced without payment of overtime compensation.
The FLSA does not specify when a person must opt in to a
collective action. The court sets that deadline. Nor does the
FLSA provide a standard for courts to decide whether to include
opt-in plaintiffs who file consent forms after the court-imposed
deadline. Courts have broad discretion to determine whether to
permit late opt-in filers to join a collective action.
The plaintiffs demonstrate good cause for the two late filings.
The defendant did not disclose the month-late filer's name to the
plaintiffs and he did not receive the notice and consent form by
the deadline for filing consents. The week-late filer received
the consent form but misplaced it and did not know the deadline.
He asked another recipient about the opt-in deadline and received
incorrect information a date after the deadline. He called class
counsel after the deadline had passed, got a new consent form,
and filed it only a week after the deadline. These explanations
are good cause for the late submission.
Even when a late filer fails to demonstrate good cause, this
factor may be discounted because a rigid application of a good
cause test does not fully respond to the various factors with
which the court must concern itself. In this case, factors
besides good cause weigh in favor of allowing the late opt-in
filers to remain in the collective action.
The defendant's motion to strike the two late opt-in filers is
denied. The plaintiffs' motion for leave to file late opt-ins is
granted.
A full-text copy of the District Court's February 1, 2018
Memorandum and Order is available at https://tinyurl.com/ybvahwqo
from Leagle.com.
Casey Kitagawa & Brandon Sheldon, Plaintiffs, represented by
Warren A. Berlanga -- wberlanga@wylycooklaw.com -- Wyly & Cook,
PLLC & Kelly Earl Cook -- kcook@wylycooklaw.com -- Wyly & Cook,
PLLC.
Drilformance, LLC, Defendant, represented by Michael A. Harvey --
mharvey@munsch.com -- Munsch Hardt Kopf Harr PC.
DUKE UNIVERSITY: Class Certification Limited to Faculty Members
---------------------------------------------------------------
The United States District Court for the Middle District of North
Carolina granted in part and denied in part Plaintiffs' Motion
for Class Certification in the case captioned DANIELLE SEAMAN,
individually and on behalf of all others similarly situated,
Plaintiff, v. DUKE UNIVERSITY, DUKE UNIVERSITY HEALTH SYSTEM,
WILLIAM L. ROPER, and DOES 1-20, Defendants, No. 1:15-CV-462
(M.D.N.C.).
Plaintiff's seeks to certify a class of faculty, physicians,
nurses, and skilled medical staff that worked for the defendants.
Dr. Danielle Seaman, a radiologist at Duke University, inquired
about a posted opening in the UNC radiology department. Via
email, the UNC department head told her that he had confirmed
that the deans at Duke and UNC had agreed not to permit lateral
moves of faculty between Duke and UNC. She has sued Duke and UNC,
alleging that this agreement not to hire the other's medical
school faculty violates the antitrust laws and suppressed
compensation throughout the defendants' medical schools and
healthcare facilities.
As against the Duke defendants and pursuant to Federal Rule of
Civil Procedure 23, Dr. Seaman asks the Court to certify the
following class:
All natural persons employed by Defendants and their co-
conspirators in the United States during the period from January
1, 2012 through the present (the Class Period) as a faculty
member, physician, nurse, or other skilled medical employee.
Excluded from the Class are: members of the boards of directors
and boards of trustees, boards of governors, and senior
executives of Defendants and their co-conspirators who entered
into the illicit agreements alleged herein; and any and all
judges and justices, and chambers' staff, assigned to hear or
adjudicate any aspect of this litigation.
There are two requirements under Rule 23(b)(3): predominance and
superiority.
The predominance requirement is satisfied when questions of law
or fact common to the members of the class predominate over any
questions affecting only individual members.
The superiority requirement ensures that a class action is
superior to other available methods for the fair and efficient
adjudication of the controversy. This inquiry looks at whether
the class action would achieve economies of time, effort, and
expense, and promote uniformity of decision as to persons
similarly situated.
Antitrust Violation
Both parties will present common evidence to determine whether
the defendants did, or did not, enter into a no-hire agreement
that violated Section 1 of the Sherman Antitrust Act. As
previously mentioned, Dr. Seaman received an e-mail from a UNC
School of Medicine department chief that indicates there was an
agreement with Duke not to hire each other's faculty. In
addition, Dr. Seaman will rely on testimony from the defendants'
employees as well as the defendants' internal and external
correspondence discussing recruitment to prove that the no-hire
agreement existed and was enforced.
Likewise, Duke has indicated that it will dispute the existence
of the no-hire agreement with common evidence, such as testimony
from the employees alleged to have made and enforced the
agreement. There is no indication that individual questions will
arise in determining whether the defendants violated the Sherman
Act.
The Court finds that the issue of antitrust violation is a common
question that will be addressed with common proof for all
proposed class members.
Faculty
Dr. Seaman's theories of violation, antitrust impact, and anti-
trust damages present common questions for faculty members and
she presents common proof to support her claims.
Duke also asserts that Dr. Seaman's proposed common proof is
unsupported, insufficient, or otherwise flawed and, therefore,
that Dr. Seaman has not established that common issues will
predominate over individual issues Duke does not argue, and this
Court does not find, that no reasonable juror could believe Dr.
Seaman's common evidence such that her proffered evidence should
be disregarded. Duke's assertions, therefore, go to the
persuasiveness of Dr. Seaman's evidence and do not negate the
fact that her evidence is common proof.
Non-Faculty
Dr. Seaman's theories and evidence differ between faculty and
non-faculty class members. It is apparent from the briefing on
this motion and on the plaintiff's motion to exclude defendants'
experts that the inclusion of faculty and non-faculty in the same
class is likely to cause significant confusion.
The evidence as to non-faculty is substantially weaker, at least
on this record, since it is based on several inferences-on-
inferences; this gives rise to the possibility that the strength
of the faculty claim or the weakness of the non-faculty claim
might tend to bleed over to the other claim in the jury's mind.
Finally, the plaintiff has put forth one theory as to non-faculty
that seems to be driven by individualized evidence.
Collectively these problems different evidence, the likelihood of
substantial confusion, potential for unfairness at trial, and the
possibility of individual issues as to non-faculty will make it
very difficult to manage the class. Trial of the relatively
straightforward faculty claims would be unduly complicated and
there is a real potential for unfairness to both the class
members and the defendant.
The Court finds that including non-faculty in the class would
defeat predominance and superiority.
RULE 23(a)
Numerosity
The plaintiff's proposed class includes approximately 5,469
faculty members. Several thousand persons is so numerous that
joinder of all members is impracticable. The proposed class meets
the numerosity requirements of Rule 23(a)(1), and the Court so
finds.
Commonality
To satisfy the commonality requirements, there must be questions
of law or fact common to the class. Commonality does not require
that all, or even most questions be common and "even a single
common question will do.
This case presents at least one question common to the faculty
whether the no-hire agreement existed. This one common issue is
sufficient to meet the Rule 23(a)(2) requirements, and the Court
so finds.
Typicality
To satisfy the typicality requirement, the claims of the named
plaintiff must be typical of the claims of the class.
In this case, Dr. Seaman's claims and the faculty class members'
claims are based on the same alleged facts and legal theory that
a no-hire agreement existed between the defendants and that the
agreement injured the faculty by suppressing their compensation
and causing monetary damages. Therefore, this Court finds that
the typicality requirement of Rule 23(a)(3) is satisfied.
Adequacy
Rule 23(a)(4) requires that class representatives fairly and
adequately protect the interests of the class.
The Court also reviewed qualifications of proposed class counsel
and finds that they meet the requirements of Rule 23(g).
Dr. Seaman is an appropriate class representative and Lieff,
Cabraser, Heimann & Bernstein, LLP, and Elliot Morgan Parsonage,
P.A., are appropriate class counsel. The Court finds the
requirements of Rule 23(a)(4) are satisfied.
The plaintiff's motion for certification of a litigation class is
granted, in part, and the following faculty class is certified:
All natural persons employed by Defendants and their co-
conspirators in the United States during the period from January
1, 2012 through the present (the Class Period) as a faculty
member with an academic appointment at the Duke or UNC Schools of
Medicine. Excluded from the Class are: members of the boards of
directors and boards of trustees, boards of governors, and senior
executives of Defendants and their co-conspirators who entered
into the illicit agreements alleged herein; and any and all
judges and justices, and chambers' staff, assigned to hear or
adjudicate any aspect of this litigation.
A full-text copy of the District Court's February 1, 2018
Memorandum Opinion and Order is available at
https://tinyurl.com/ycgnectd from Leagle.com.
DANIELLE SEAMAN, individually and on behalf of all others
similarly situated, Plaintiff, represented by ROBERT M. ELLIOT
rmelliot@emplawfirm.com -- ELLIOT MORGAN PARSONAGE, P.A., ABBYE
R. KLAMANN -- aklamann@lchb.com -- LIEFF CABRASER HEIMANN &
BERNSTEIN, LLP, ANNE B. SHAVER -- ashaver@lchb.com -- LIEFF
CABRASER HEIMANN & BERNSTEIN, LLP, BRENDAN P. GLACKIN --
bglackin@lchb.com -- LIEFF CABRASER HEIMANN & BERNSTEIN,
LLP,DANIEL C. LYON -- dlyon@emplawfirm.com -- ELLIOT MORGAN
PARSONAGE, PLLC, DEAN M. HARVEY -- dharvey@lchb.com -- LIEFF
CABRASER HEIMANN & BERNSTEIN, LLP, JOY A. KRUSE --
jkruse@lchb.com -- LIEFF CABRASER HEIMANN & BERNSTEIN,
LLP,KATHERINE C. LUBIN -- kbenson@lchb.com -- LIEFF CABRASER
HEIMANN & BERNSTEIN, LLP, KELLY M. DERMODY -- kdormody@lchb.com -
- LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP, R. MICHAEL ELLIOT,
ELLIOT MORGAN PARSONAGE, PLLC & WILSON M. DUNLAVEY, LIEFF
CABRASER HEIMANN & BERNSTEIN, LLP.
DUKE UNIVERSITY & DUKE UNIVERSITY HEALTH SYSTEM, INC.,
Defendants, represented by DEREK LUDWIN -- dludwin@cov.com --
COVINGTON & BURLING, LLP, GREGG H. LEVY -- glevy@cov.com --
COVINGTON & BURLING, LLP, KELLY MARGOLIS DAGGER-
kelly.dagger@elliswinters.com -- ELLIS & WINTERS, LLP, PAUL K.
SUN, Jr. -- paul.sun@elliswinter.com -- ELLIS & WINTERS, LLP,SEAN
W. FERNANDES -- sean.fernandes@elliswinters.com -- ELLIS &
WINTERS, LLP, LAUREN S. WILLARD -- lwillard@cov.com -- COVINGTON
& BURLING, LLP & MARIANNE F. KIES -- mkies@cov.com -COVINGTON &
BURLING LLP.
ECOLAB INC: Order on Mediation Completion Issued in "Bankwitz"
--------------------------------------------------------------
The United States District Court for the Northern District of
California issued an Order for Mediation Completion and Related
Case Deadlines in the case captioned ROBERT BANKWITZ, an
individual; WILLIAM JACOBO, an individual; and JOSHUA HERNANDEZ,
an individual; Plaintiffs, v. ECOLAB INC., a Delaware
corporation; and DOES 1 through 100, inclusive, Defendants, Case
No. 3:17-cv-02924-EMC (N.D. Cal.).
Pursuant to the stipulation of the parties, the mediation
completion deadline in this matter, presently scheduled for March
15, 2018, is vacated.
A full-text copy of the District Court's February 8, 2018 Order
is available at https://tinyurl.com/y7ey8ezp from Leagle.com.
Robert Bankwitz, William Jacobo & Joshua Hernandez, Plaintiffs,
represented by Alejandro Pedro Gutierrez --
agutierez@hathawaylawfirm.com -- Hathaway Building, Daniel Jay
Palay -- dtp@palaylaw.com -- Palay Law Firm, Michael Anthony
Strauss -- mike@strausslawyers.com -- Strauss & Strauss, APC,
Brian Daniel Hefelfinger -- bdh@calemploymentcounsel.com -- Palay
& Hefelfinger, APC & Andrew Clayton Ellison --
andrew@strausslawyers.com -- Palay Law Firm.
Ecolab, Inc., a Delaware corporation, a Delaware corporation,
Defendant, represented by Jody Ann Landry -- jlandry@littler.com
-- Littler Mendelson & John Anthony Ybarra -- jybarra@littler.com
-- Littler Mendelson, P.C., pro hac vice.
ELI LILLY: Still Defends 510 Byetta Product Liability Lawsuits
--------------------------------------------------------------
Eli Lilly and Company still defends approximately 510 Byetta
product liability lawsuits in the U.S. involving approximately
775 plaintiffs, according to the Company's Form 10-K filed with
the U.S. Securities and Exchange Commission for the fiscal year
ended December 31, 2017.
The Company said, "We are named as a defendant in approximately
510 Byetta product liability lawsuits in the U.S. involving
approximately 775 plaintiffs. Approximately 60 of these
lawsuits, covering about 320 plaintiffs, are filed in California
state court and coordinated in a Los Angeles Superior Court.
Approximately 450 lawsuits, covering about 450 plaintiffs, are
filed in federal court, the majority of which are coordinated in
a multidistrict litigation (MDL) in the U.S. District Court for
the Southern District of California. Three lawsuits,
representing approximately five plaintiffs, have also been filed
in various state courts. Approximately 500 of the lawsuits,
involving approximately 735 plaintiffs, contain allegations that
Byetta caused or contributed to the plaintiffs' cancer (primarily
pancreatic cancer or thyroid cancer); most others allege Byetta
caused or contributed to pancreatitis. The federal and state
trial courts granted summary judgment in favor of us and our co-
defendants on the claims alleging pancreatic cancer. The
plaintiffs appealed those rulings.
"In November 2017, the U.S. Court of Appeals for the Ninth
Circuit reversed the U.S. District Court's grant of summary
judgment based on that court's discovery rulings and remanded the
cases for further proceedings.
"We are aware of approximately 20 additional claimants who have
not yet filed suit. These additional claims allege damages for
pancreatic cancer or thyroid cancer. We believe these lawsuits
and claims are without merit and are prepared to defend against
them vigorously."
Eli Lilly said in its Form 10-Q Report for the quarterly period
ended September 30, 2017, that the company was a defendant in
approximately 505 Byetta(R) product liability lawsuits in the
U.S. involving approximately 770 plaintiffs.
Eli Lilly and Company discovers, develops, manufactures, and
markets pharmaceutical products worldwide. It operates through
two segments, Human Pharmaceutical Products and Animal Health
Products. The Company was founded in 1876 and is headquartered
in Indianapolis, Indiana.
ELI LILLY: Faces 100 Prozac Claims over Alleged Birth Defects
-------------------------------------------------------------
Eli Lilly and Company said in its Form 10-K filed with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that they are aware of approximately 100
claims primarily related to allegations that the antidepressant
Prozac caused or contributed to birth defects in the children of
women who ingested the drug during pregnancy.
The Company said, "These claims have not yet been filed. We
believe these claims are without merit and are prepared to defend
against them vigorously."
Eli Lilly and Company discovers, develops, manufactures, and
markets pharmaceutical products worldwide. It operates through
two segments, Human Pharmaceutical Products and Animal Health
Products. The Company was founded in 1876 and is headquartered
in Indianapolis, Indiana.
ELI LILLY: Defendant in 550 Axiron Product Liability Suits in US
----------------------------------------------------------------
Eli Lilly and Company said in its Form 10-K filed with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that they are named as a defendant in
approximately 550 Axiron product liability lawsuits in the U.S.
involving approximately 550 plaintiffs.
The Company said, "In about one-third of the cases, other
manufacturers of testosterone are named as co-defendants. Nearly
all of these lawsuits have been consolidated in a federal MDL in
the U.S. District Court for the Northern District of Illinois. A
small number of lawsuits have been filed in state courts. The
cases generally allege cardiovascular and related injuries. We
have reached agreement on a settlement framework that provides
for a comprehensive resolution of nearly all of these personal
injury claims alleging cardiovascular and related injuries from
Axiron treatment. There can be no assurances, however, that a
final settlement will be reached.
"Medical Mutual of Ohio has filed a class action complaint
against multiple manufacturers of testosterone products in the
Northern District of Illinois, on behalf of third party payers
who paid for those products. The plaintiff is seeking damages
under the federal Racketeer Influenced and Corrupt Organizations
Act (the federal RICO Act).
"We believe all of these lawsuits and claims are without merit
and are prepared to defend against them vigorously."
Eli Lilly and Company discovers, develops, manufactures, and
markets pharmaceutical products worldwide. It operates through
two segments, Human Pharmaceutical Products and Animal Health
Products. The Company was founded in 1876 and is headquartered
in Indianapolis, Indiana.
ELI LILLY: 150 Cialis Product Liability Lawsuits Still Pending
--------------------------------------------------------------
Eli Lilly and Company disclosed in its Form 10-K filed with the
U.S. Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that they are named as a defendant in
approximately 150 Cialis product liability lawsuits in the U.S.
These cases, originally filed in various federal courts, contain
allegations that Cialis caused or contributed to the plaintiffs'
cancer (melanoma).
In December 2016, the Judicial Panel on Multidistrict Litigation
(JPML) granted the plaintiffs' petition to have the filed cases
and an unspecified number of future cases coordinated into a
federal MDL in the U.S. District Court for the Northern District
of California, alongside an existing coordinated proceeding
involving Viagra(R). The JPML ordered the transfer of the
existing cases to the now-renamed MDL In re: Viagra (Sildenafil
Citrate) and Cialis (Tadalafil) Products Liability Litigation.
Eli Lilly said in its Form 10-Q Report for the quarterly period
ended September 30, 2017, that the company was a defendant in
approximately 135 Cialis product liability lawsuits in the U.S.
The Company said, "We believe these lawsuits and claims are
without merit and are prepared to defend against them
vigorously."
Eli Lilly and Company discovers, develops, manufactures, and
markets pharmaceutical products worldwide. It operates through
two segments, Human Pharmaceutical Products and Animal Health
Products. The Company was founded in 1876 and is headquartered
in Indianapolis, Indiana.
ELI LILLY: Still Defends Insulin Pricing Lawsuits in New Jersey
---------------------------------------------------------------
Eli Lilly and Company continues to defend itself against lawsuits
in New Jersey related to alleged insulin pricing, according to
the Company's Form 10-K filed with the U.S. Securities and
Exchange Commission for the fiscal year ended December 31, 2017.
The Company said, "We, along with Sanofi and Novo Nordisk, are
named as defendants in a consolidated purported class action
lawsuit, In re. Insulin Pricing Litigation, in the U.S. District
Court of New Jersey relating to insulin pricing. The
consolidated lawsuit incorporates three other purported class
action lawsuits, Barnett v. Novo Nordisk Inc., Boss v. CVS Health
Corp., and Christensen v. Novo Nordisk Inc., which were
previously filed in the same court against the three
manufacturers and various pharmacy benefit managers. The
plaintiffs in In re. Insulin Pricing Litigation are seeking
damages under various state consumer protection laws and the
federal RICO Act. We believe these claims are without merit and
are prepared to defend against them vigorously.
"Separately, we, along with Sanofi, Novo Nordisk, and various
pharmacy benefit managers, were named as defendants in a
purported class action lawsuit in the U.S. District Court of
Western District of Texas, MSP Recovery Claims, Series, LLC et
al. v. CVS Health Corp., et al., relating to insulin pricing.
That case was dismissed without prejudice on January 19, 2018 to
allow plaintiffs to refile in the District of New Jersey. The
plaintiffs have since filed MSP Recovery Claims, Series, LLC et
al. v. Sanofi Aventis U.S. LLC in the District of New Jersey
against the manufacturers and are seeking damages under various
state consumer protection laws, common law fraud, unjust
enrichment, and the federal RICO Act."
Eli Lilly and Company discovers, develops, manufactures, and
markets pharmaceutical products worldwide. It operates through
two segments, Human Pharmaceutical Products and Animal Health
Products. The Company was founded in 1876 and is headquartered
in Indianapolis, Indiana.
ELI LILLY: Glucagon Pricing Class Lawsuit Pending in New Jersey
---------------------------------------------------------------
Eli Lilly and Company still defends itself against a potential
class action lawsuit in New Jersey related to glucagon pricing,
according to the Company's Form 10-K filed with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2017.
The Company said, "We, along with Novo Nordisk and various
pharmacy benefit managers, are named as defendants in a lawsuit
seeking class action status in the U.S. District Court of New
Jersey (transferred from the U.S. District Court of the Western
District of Washington) relating to glucagon pricing. The
plaintiffs are seeking damages under various state consumer
protection laws, the federal RICO Act, the Sherman Act, and other
state and federal laws. We believe this lawsuit and these claims
are without merit and are prepared to defend against them
vigorously."
Eli Lilly and Company discovers, develops, manufactures, and
markets pharmaceutical products worldwide. It operates through
two segments, Human Pharmaceutical Products and Animal Health
Products. The Company was founded in 1876 and is headquartered
in Indianapolis, Indiana.
ELI LILLY: Defends 6,700 Actos Product Liability Suits in the US
----------------------------------------------------------------
Eli Lilly and Company continues to defend itself against
approximately 6,700 product liability cases in the U.S. related
to the diabetes medication Actos, according to the Company's Form
10-K filed with the U.S. Securities and Exchange Commission for
the fiscal year ended December 31, 2017.
The Company said, "We were named along with Takeda Chemical
Industries, Ltd. and Takeda affiliates (collectively, Takeda) as
a defendant in approximately 6,700 product liability cases in the
U.S. related to the diabetes medication Actos, which we co-
promoted with Takeda in the U.S. from 1999 until 2006. In
general, plaintiffs in these actions alleged that Actos caused or
contributed to their bladder cancer. Almost all of these cases
were included as part of a resolution program announced by Takeda
in April 2015 in which Takeda has paid approximately US$2.4
billion to resolve the vast majority of the U.S. product
liability lawsuits involving Actos. Although the vast majority
of U.S. product liability lawsuits involving Actos are included
in the resolution program, there may be additional cases pending
against Takeda and us following completion of the resolution
program."
Eli Lilly and Company discovers, develops, manufactures, and
markets pharmaceutical products worldwide. It operates through
two segments, Human Pharmaceutical Products and Animal Health
Products. The Company was founded in 1876 and is headquartered
in Indianapolis, Indiana.
ELI LILLY: 3 Purported Actos Class Suits in Canada Still Pending
----------------------------------------------------------------
Eli Lilly and Company continues to defend against three purported
product liability class actions in Canada related to the diabetes
medication Actos, according to the Company's Form 10-K filed with
the U.S. Securities and Exchange Commission for the fiscal year
ended December 31, 2017.
Specifically, the Company is named, along with Takeda Chemical
Industries, Ltd. and Takeda affiliates (collectively, Takeda), as
a defendant in three purported product liability class actions in
Canada related to Actos, including one in Ontario (Casseres et
al. v. Takeda Pharmaceutical North America, Inc., et al. and
Carrier et al. v. Eli Lilly et al.), one in Quebec (Whyte et al.
v. Eli Lilly et al.), and one in Alberta (Epp v. Takeda Canada et
al.).
The Company promoted Actos in Canada until 2009.
The Company said, "We believe these lawsuits are without merit,
and we and Takeda are prepared to defend against them
vigorously."
No further updates were provided in the Company's SEC report.
Eli Lilly and Company discovers, develops, manufactures, and
markets pharmaceutical products worldwide. It operates through
two segments, Human Pharmaceutical Products and Animal Health
Products. The Company was founded in 1876 and is headquartered
in Indianapolis, Indiana.
ELI LILLY: Still Defends 140 Cymbalta Product Liability Lawsuits
----------------------------------------------------------------
Eli Lilly and Company said in its Form 10-K filed with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that they are named in approximately 140
lawsuits involving approximately 1,470 plaintiffs filed in
various federal and state courts alleging injuries arising from
discontinuation of treatment with Cymbalta.
The Company further stated, "These include approximately 40
individual and multi-plaintiff cases filed in California state
court, centralized in a California Judicial Counsel Coordination
Proceeding pending in Los Angeles. The first individual product
liability cases were tried in August 2015 and resulted in defense
verdicts against four plaintiffs. We believe all these Cymbalta
lawsuits and claims are without merit. We have reached a
settlement framework that provides for a comprehensive resolution
of nearly all of these personal injury claims, filed or unfiled,
alleging injuries from discontinuing treatment with Cymbalta.
There can be no assurances, however, that a final settlement will
be reached."
Eli Lilly and Company discovers, develops, manufactures, and
markets pharmaceutical products worldwide. It operates through
two segments, Human Pharmaceutical Products and Animal Health
Products. The Company was founded in 1876 and is headquartered
in Indianapolis, Indiana.
ELI LILLY: "Strafford" Plaintiffs Still Contest Nixed Lawsuit
-------------------------------------------------------------
Eli Lilly and Company disclosed in its Form 10-K filed with the
U.S. Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that plaintiffs continue to contest the
dismissal of the purported class-action lawsuit captioned
Strafford et al. v. Eli Lilly and Company.
The Company said, "We were named as a defendant in a purported
class-action lawsuit in the U.S. District Court for the Central
District of California (now called Strafford et al. v. Eli Lilly
and Company) involving Cymbalta. The plaintiffs, purporting to
represent a class of all persons within the U.S. who purchased
and/or paid for Cymbalta, asserted claims under the consumer
protection statutes of four states, California, Massachusetts,
Missouri, and New York, and sought declaratory, injunctive, and
monetary relief for various alleged economic injuries arising
from discontinuing treatment with Cymbalta.
"In December 2014, the district court denied the plaintiffs'
motion for class certification. Plaintiffs filed a petition with
the U.S. Court of Appeals for the Ninth Circuit requesting
permission to file an interlocutory appeal of the denial of class
certification, which was denied.
"Plaintiffs filed a second motion for certification under the
consumer protection acts of New York and Massachusetts. The
district court denied that motion for class certification in July
2015.
"The district court dismissed the suits and plaintiffs appealed
to the U.S. Court of Appeals for the Ninth Circuit."
Eli Lilly said in its Form 10-Q Report for the quarterly period
ended September 30, 2017, that in June 2017, the company moved to
dismiss the appeal for lack of jurisdiction based on the U.S.
Supreme Court's recent decision in Microsoft v. Baker. In October
2017, the U.S. Court of Appeals for the Ninth Circuit granted our
motion.
In its Form 10-K report, the Company said, "In November 2017, the
U.S. Court of Appeals for the Ninth Circuit dismissed the suit.
Plaintiffs continue to contest the dismissal."
Eli Lilly and Company discovers, develops, manufactures, and
markets pharmaceutical products worldwide. It operates through
two segments, Human Pharmaceutical Products and Animal Health
Products. The Company was founded in 1876 and is headquartered
in Indianapolis, Indiana.
ELI LILLY: Unit Faces Private Chicken Buyers' Antitrust Lawsuits
----------------------------------------------------------------
Eli Lilly and Company disclosed in its Form 10-K filed with the
U.S. Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that subsidiary Agri Stats, Inc. has been
named as a co-defendant in four antitrust suits, including one
putative class-action, filed in the U.S. District Court for the
Northern District of Illinois.
Plaintiffs consist of private direct and indirect purchasers of
broiler chickens who allege that the defendants engaged in a
conspiracy to limit U.S. chicken production and inflate prices.
The Company said, "We believe these claims are without merit and
are prepared to defend against them vigorously."
Eli Lilly and Company discovers, develops, manufactures, and
markets pharmaceutical products worldwide. It operates through
two segments, Human Pharmaceutical Products and Animal Health
Products. The Company was founded in 1876 and is headquartered
in Indianapolis, Indiana.
ESPERION THERAPEUTICS: Appeal in "Dougherty" Class Suit Ongoing
---------------------------------------------------------------
An appeal from a court order denying the plaintiff's request to
change the judgment on the dismissed case captioned Kevin L.
Dougherty v. Esperion Therapeutics, Inc., et al. is still
pending, according to Esperion Therapeutics, Inc.'s Form 10-K
filed with the U.S. Securities and Exchange Commission for the
fiscal year ended December 31, 2017.
The Company said, "On January 12, 2016, a purported stockholder
of the Company filed a putative class action lawsuit in the
United States District Court for the Eastern District of
Michigan, against us and Tim Mayleben, captioned Kevin L.
Dougherty v. Esperion Therapeutics, Inc., et al. (No. 16-cv-
10089). The lawsuit alleges that we and Mr. Mayleben violated
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934
and SEC Rule 10b-5 by allegedly failing to disclose in an August
17, 2015, public statement that the FDA would require a
cardiovascular outcomes trial before approving our lead product
candidate. The lawsuit seeks, among other things, compensatory
damages in connection with an allegedly inflated stock price
between August 18, 2015, and September 28, 2015, as well as
attorneys' fees and costs.
"On May 20, 2016, an amended complaint was filed in the lawsuit
and on July 5, 2016, we filed a motion to dismiss the amended
complaint. On December 27, 2016, the court granted our motion to
dismiss with prejudice and entered judgment in our favor. On
January 24, 2017, the plaintiffs in this lawsuit filed a motion
to alter or amend the judgment. In May 2017, the court denied
the plaintiff's motion to alter or amend the judgment."
Esperion said in its Form 10-Q Report for the quarterly period
ended September 30, 2017, that on June 19, 2017, the plaintiffs
filed a notice of appeal to the Sixth Circuit Court of Appeals
and on September 14, 2017, they filed their opening brief in
support of the appeal.
The appeal was fully briefed on December 7, 2017, according to
the 10-K report.
The Company is the lipid management company, a late-stage
pharmaceutical company focused on developing and commercializing
convenient, complementary, cost-effective, once-daily, oral
therapies for the treatment of patients with elevated low density
lipoprotein cholesterol ("LDL-C").
EUROPEAN TILE: Court Grants Prelim Approval of Class Settlement
---------------------------------------------------------------
The United States District Court for the Middle District of
Florida, Tampa Division, granted the Unopposed Motion for
Preliminary Approval of Class Action Settlement and Notice to the
Class in the case captioned ZURICH AMERICAN INSURANCE COMPANY, as
successor by merger to MARYLAND CASUALTY COMPANY, Plaintiff, v.
EUROPEAN TILE AND FLOORS, INC., and ROBERT A. DALZELL, INC.,
Defendants, Case No. 8:16-cv-729-T-AAS (M.D. Fla.).
Pursuant to Rule 23(b)(3) of the Federal Rules of Civil
Procedure, by stipulation of the parties, and for the purpose of
settlement, the court certifies the following class (Settlement
Class):
All persons who (1) on or after August 28, 2005, (2) were
sent telephone facsimile messages advertising the commercial
availability of any property, goods, or services by or on behalf
of European Tile and Floors, Inc. (European Tile), (3) with
respect to whom European Tile did not have prior express
permission or invitation for the sending of such faxes, and (4)
with whom European Tile did not have an established business
relationship.
The court finds that certification for purposes of settlement is
appropriate because (a) the class is so numerous that joinder of
all members is impractical; (b) there are questions of law and
fact common to the class and they predominate over any questions
affecting only individual class members; (c) Robert A. Dalzell
Inc.'s (Dalzell) claims are typical of the claims of the class;
(d) Dalzell and its attorneys will fairly and adequately protect
the interests of the class; and (e) a class action is the
superior means of resolving this controversy.
The court appoints Robert A. Dalzell, Inc., as the representative
of the Settlement Class pursuant to Rule 23(a), and appoints
Dalzell's attorneys (Phillip A. Bock of Bock, Hatch, Lewis &
Oppenheim LLC, Ryan M. Kelly of Anderson + Wanca, and Michael C.
Addison of Addison Law Office, P.A.) as Settlement Class Counsel
pursuant to Rule 23(g).
A full-text copy of the District Court's February 1, 2018 Order
is available at https://tinyurl.com/yc28kcej from Leagle.com.
Zurich American Insurance Company, individually and as the
representative of a certified class, Plaintiff, represented by
Karen Marie Dixon -- kdixon@hinshawlaw.com -- Hinshaw &
Culbertson, LLP, pro hac vice, Kristina L. Marsh --
kmarsh@hinshawlaw.com -- Hinshaw & Culbertson, LLP, Michael Miron
Marick mmarick@hinshawlaw.com -- Hinshaw & Culbertson, LLP, pro
hac vice, Robert K. Tucker, II -- rtucker@hinshawlaw.com --
Hinshaw & Culbertson, LLP & Sergio Enrique Acosta --
sacosta@hinshawlaw.com -- Hinshaw & Culbertson, LLP, pro hac
vice.
Robert A. Dalzell, Inc., Defendant, represented by David Max
Oppenheim -- david@classlawyers.com -- Bock, Hatch, Lewis &
Oppenheim, LLC, 134 N. La Salle Street Suite 1000 Chicago, IL
60602, pro hac vice, Michael C. Addison, Addison Law Office,
P.A., 1304 Alicia Ave Tampa, FL 33604-6406, Phillip Bock --
phil@classlawyers -- Bock, Hatch, Lewis & Oppenheim, LLC & Ryan
M. Kelly -- rkelley@andersonwanca.com -- Anderson & Wanca.
FIAT CHRYSLER: Putative Class Action in California is Ongoing
-------------------------------------------------------------
Fiat Chrysler Automobiles N.V. disclosed in its Form 20-F filed
with the U.S. Securities and Exchange Commission for the fiscal
year ended December 31, 2017, that a putative class action is
proceeding in U.S. federal court in the Northern District of
California related to approximately 100,000 2014-2016 model year
light-duty Ram 1500 and Jeep Grand Cherokee diesel vehicles.
On January 12, 2017, the U.S. Environmental Protection Agency
("EPA") and the California Air Resource Board issued Notices of
Violation related to certain software-based features in the
emissions control systems in approximately 100,000 2014-2016
model year light-duty Ram 1500 and Jeep Grand Cherokee diesel
vehicles. On May 23, 2017, the Environmental and Natural
Resources Division of the U.S. Department of Justice ("DOJ-ENRD")
filed a civil lawsuit against the Company in connection with the
concerns raised by the EPA. The complaint alleges that software-
based features were not disclosed to the EPA as required during
the vehicle emissions certification process, resulting in
violations of the Clean Air Act. The complaint also alleges that
certain of the software features bypass, defeat or render
inoperative the vehicles' emission control systems, causing the
vehicles to emit higher levels of oxides of nitrogen (NOx) during
certain normal real world driving conditions than during federal
emissions tests.
A number of private lawsuits relating to the vehicles have been
filed in U.S. state and federal courts principally on behalf of
consumers asserting fraud, violation of consumer protection laws,
and other civil claims, including a putative class action that is
proceeding in U.S. federal court in the Northern District of
California, and a number of other governmental agencies and
authorities including the U.S. Department of Justice, the U.S.
Securities and Exchange Commission and various states Attorneys
General have commenced related investigations.
Fiat Chrysler Automobiles N.V., together with its subsidiaries,
designs, engineers, manufactures, distributes, and sells
vehicles, components, and production systems. The Company
operates through six segments: NAFTA, LATAM, APAC, EMEA,
Maserati, and Components. The Company was formerly known as Fiat
S.p.A. and changed its name to Fiat Chrysler Automobiles N.V. in
October 2014. Fiat Chrysler Automobiles N.V. was founded in 1899
and is based in London, the United Kingdom.
FIAT CHRYSLER: 2 Class Action on US Sales Reporting Underway
------------------------------------------------------------
Fiat Chrysler Automobiles N.V. disclosed in its Form 20-F filed
with the U.S. Securities and Exchange Commission for the fiscal
year ended December 31, 2017, that it is aware of two putative
securities class action lawsuits pending against the Company in
the U.S. District Court for the Eastern District of Michigan
making allegations with regard to the Company's reporting of
vehicle unit sales to end consumers in the U.S.
The Company said, "In July 2016, we confirmed that the U.S.
Securities and Exchange Commission had commenced an investigation
into our reporting of vehicle unit sales to end customers in the
U.S. and that inquiries into similar issues have been received
from the U.S. Department of Justice. These vehicle unit sales
reports relate to unit sales volumes primarily by dealers to
consumers, while we generally recognize revenues based on
shipments to dealers and other customers and not on vehicle unit
sales to consumers. We continue to cooperate with these
investigations.
"We are also aware of two putative securities class action
lawsuits pending against us in the U.S. District Court for the
Eastern District of Michigan making allegations with regard to
our reporting of vehicle unit sales to end consumers in the U.S.
At this stage, we are unable to reliably evaluate the likelihood
that a loss will be incurred or estimate a range of possible
loss."
Fiat Chrysler Automobiles N.V., together with its subsidiaries,
designs, engineers, manufactures, distributes, and sells
vehicles, components, and production systems. The Company
operates through six segments: NAFTA, LATAM, APAC, EMEA,
Maserati, and Components. The Company was formerly known as Fiat
S.p.A. and changed its name to Fiat Chrysler Automobiles N.V. in
October 2014. Fiat Chrysler Automobiles N.V. was founded in 1899
and is based in London, the United Kingdom.
FIAT CHRYSLER: FCA US Faces Class Suits on UAW-Chrysler Matters
---------------------------------------------------------------
FCA US LLC is facing several putative class action lawsuits
related to the UAW-Chrysler National Training Center
Investigation, according to Fiat Chrysler Automobiles N.V.'s Form
20-F filed with the U.S. Securities and Exchange Commission for
the fiscal year ended December 31, 2017.
The Company said, "In connection with an on-going government
investigation into matters at the UAW-Chrysler National Training
Center, the U.S. Department of Justice has brought charges
against a number of individuals including two former FCA US
employees and individuals associated with the UAW for, among
other things, tax fraud and conspiring to provide money or other
things of value to a UAW officer and UAW employees while acting
in the interests of FCA US, in violation of the Labor Management
Relations (Taft-Hartley) Act. We believe that FCA US was a
victim of these acts and we continue to cooperate with this
investigation. Several putative class action lawsuits have been
filed against FCA US in U.S. federal court alleging harm to UAW
workers as a result of these acts. At this early stage, we are
unable to reliably evaluate the likelihood that a loss will be
incurred or estimate a range of possible loss."
Fiat Chrysler Automobiles N.V., together with its subsidiaries,
designs, engineers, manufactures, distributes, and sells
vehicles, components, and production systems. The Company
operates through six segments: NAFTA, LATAM, APAC, EMEA,
Maserati, and Components. The Company was formerly known as Fiat
S.p.A. and changed its name to Fiat Chrysler Automobiles N.V. in
October 2014. Fiat Chrysler Automobiles N.V. was founded in 1899
and is based in London, the United Kingdom.
FIAT CHRYSLER: Securities Suit on Emissions Compliance Underway
---------------------------------------------------------------
Fiat Chrysler Automobiles N.V. continues to face a putative
securities class suit over material misstatements regarding
emissions compliance, according to the Company's Form 20-F filed
with the U.S. Securities and Exchange Commission for the fiscal
year ended December 31, 2017.
The Company said, "On September 11, 2015, a putative securities
class action complaint was filed in the U.S. District Court for
the Southern District of New York against us alleging material
misstatements regarding our compliance with regulatory
requirements and that we failed to timely disclose certain
expenses relating to our vehicle recall campaigns. On October 5,
2016, the district court dismissed the claims relating to the
disclosure of vehicle recall campaign expenses but ruled that
claims regarding the alleged misstatements regarding regulatory
requirements would be allowed to proceed. On February 17, 2017,
the plaintiffs amended their complaint to allege material
misstatements regarding emissions compliance. On November 13,
2017, the Court denied our motion to dismiss the emissions-
related claims. At this stage of the proceedings, we are unable
to reliably evaluate the likelihood that a loss will be incurred
or estimate a range of possible loss."
Fiat Chrysler Automobiles N.V., together with its subsidiaries,
designs, engineers, manufactures, distributes, and sells
vehicles, components, and production systems. The Company
operates through six segments: NAFTA, LATAM, APAC, EMEA,
Maserati, and Components. The Company was formerly known as Fiat
S.p.A. and changed its name to Fiat Chrysler Automobiles N.V. in
October 2014. Fiat Chrysler Automobiles N.V. was founded in 1899
and is based in London, the United Kingdom.
FIAT CHRYSLER: Koopmann et al. Want Robert Bosch to Produce Docs
----------------------------------------------------------------
GARY KOOPMANN, TIMOTHY KIDD and VICTOR PIRNIK, Individually and
on Behalf of All Others Similarly Situated, the PETITIONERS, v.
ROBERT BOSCH, LLC, the RESPONDENT, Case No. 2:18-cv-11101-VAR-RSW
(E.D. Mich., April 5, 2018), seeks an Order compelling Bosch to
produce documents demanded in a subpoena.
The Subpoena was issued in connection with a class action lawsuit
pending in the Southern District of New York: Pirnik, et al. v.
Fiat Chrysler Automobiles, N.V., et al., Civil Action No. 15-cv-
07199 (Furman, J.). As set forth in the Complaint, the Plaintiffs
brought the lawsuit against Fiat Chrysler Automobiles N.V., FCA
US LLC, and defendants Sergio Marchionne Scott Kunselman, Michael
Dahl, Steve and Robert E. Lee, alleging claims for violation of
the federal securities laws based upon statements the Defendants
made concerning their compliance with emissions regulations. The
Plaintiffs allege that certain vehicles manufactured by
Defendants contain illegal and undisclosed engine software and
hardware that constitute "defeat devices" which were placed in
the vehicles' electronic diesel control in order to evade
emissions regulations by operating differently under vehicle
testing conditions than on-road driving conditions.
Bosch tested, manufactured and sold the EDC system used in the
vehicles manufactured by FCA and worked with FCA to create a
unique set of specifications and software code to manage the
Subject Vehicles' engine operation. The Complaint alleges that
Bosch and FCA worked together to surreptitiously evade emissions
regulations. Bosch is a Defendant in a Multidistrict Litigation
pending before Judge Chen in the Northern District of California
In re Chrysler-Dodge-Jeep EcoDiesel Marketing, Sales Practices
and Products Liability Action, 3:17-md-02777-EMC, in which FCA is
also a Defendant that involves consumer claims alleging that
consumers would not have purchased the Subject Vehicles had they
known they contained emissions-cheating "defeat devices." Like
Petitioners' complaint the MDL Complaint alleges that certain of
FCA's vehicles contained defeat devices and that Bosch and FCA
worked together to surreptitiously evade emissions regulations by
installing the defeat devices.[BN]
The Plaintiff is represented by:
Alexander Hood, Esq.
Jeremy A. Lieberman, Esq.
Michael J. Wernke, Esq.
Patrick V. Dahlstrom, Esq.
J. Alexander Hood II
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661 1100
Facsimile: (212) 661 8665
E-mail: jalieberman@pomlaw.com
ahood@pomlaw.com
mjwernke@rosenlegal.com
pdahlstrom@pomlaw.com
- and -
Sara Fuks, Esq.
Laurence M. Rosen, Esq.
Phillip Kim, Esq.
Sara Fuks, Esq.
THE ROSEN LAW FIRM, P.A.
275 Madison Avenue, 34th Floor
New York, NY 10016
Telephone: (212) 686 1060
Facsimile: (212) 202 3827
E-mail: lrosen@rosenlegal.com
pkim@rosenlegal.com
sfuks@rosenlegal.com
FREEPORT-MCMORAN: Subsidiary Defends Amended "Duarte" Complaint
---------------------------------------------------------------
A wholly subsidiary of Freeport-McMoRan Inc. (FCX), Freeport
Minerals Corporation (FMC), is facing a class action lawsuit by
Juan Duarte, et al., according to the Company's Form 10-K filed
with the U.S. Securities and Exchange Commission for the fiscal
year ended December 31, 2017. FCX was previously a party to the
lawsuit but has been removed in an amended complaint.
From 1920 until 1986, United States Metal Refining Company
(USMR), an indirect wholly owned subsidiary of Cyprus Amax
Minerals Company, owned and operated a copper smelter and
refinery in the Borough of Carteret, New Jersey. Since the early
1980s, the site has been the subject of environmental
investigation and remediation, primarily under the supervision of
the New Jersey Department of Environmental Protection.
On January 30, 2017, a class action titled Juan Duarte, Betsy
Duarte and N.D., Infant, by Parents and Natural Guardians Juan
Duarte and Betsy Duarte, Leroy Nobles and Betty Nobles, on behalf
of themselves and all others similarly situated v. United States
Metals Refining Company, Freeport-McMoRan Copper & Gold Inc. and
Amax Realty Development, Inc., Docket No. 734-17, was filed in
the Superior Court of New Jersey against USMR, FCX, and Amax
Realty Development, Inc.
The defendants have removed this litigation to the U.S. District
Court for the District of New Jersey, where it remains pending.
Pursuant to an amendment of the complaint in December of 2017,
FCX is no longer a party to the lawsuit and FMC has been added to
the lawsuit. The suit alleges that USMR generated and disposed
of smelter waste at the site and allegedly released contaminants
onsite and offsite through discharges to surface water and air
emissions over a period of decades and seeks unspecified damages
for economic losses, including loss of property value, medical
monitoring, punitive damages and other damages.
FCX intends to vigorously defend this matter.
FCX is an international mining company with headquarters in
Phoenix, Arizona.
FRESH DEL MONTE: U.S. Subsidiaries Still Defend DBCP Litigation
---------------------------------------------------------------
Fresh Del Monte Produce Inc.'s subsidiaries continue to defend
themselves in DBCP Litigation, according to the Company's Form
10-K filed with the U.S. Securities and Exchange Commission for
the fiscal year ended December 29, 2017.
The Company said, "Beginning in December 1993, certain of our
U.S. subsidiaries were named among the defendants in a number of
actions in courts in Texas, Louisiana, Hawaii, California and the
Philippines involving claims by numerous non-U.S. plaintiffs
alleging that they were injured as a result of exposure to a
nematocide containing the chemical dibromochloropropane ("DBCP")
during the period 1965 to 1990. As a result of a settlement
entered into in December 1998, the remaining unresolved DBCP
claims against our U.S. subsidiaries are pending or subject to
appeal in Hawaii, Delaware and the Philippines.
"On October 14, 2004, two of our subsidiaries were served with a
complaint in an action styled Angel Abarca, et al. v. Dole Food
Co., et al. filed in the Superior Court of the State of
California for the County of Los Angeles on behalf of more than
2,600 Costa Rican banana workers who claim injury from exposure
to DBCP. On January 2, 2009, three of our subsidiaries were
served with multiple complaints in related actions styled Jorge
Acosta Cortes, et al. v. Dole Food Company, et al. filed in the
Superior Court of the State of California for the County of Los
Angeles on behalf of 461 Costa Rican residents. An initial
review of the plaintiffs in the Abarca and Cortes actions found
that a substantial number of the plaintiffs were claimants in
prior DBCP actions in Texas and may have participated in the
settlement of those actions. On June 27, 2008, the court
dismissed the claims of 1,329 plaintiffs who were parties to
prior DBCP actions. On June 30, 2008, our subsidiaries moved to
dismiss the claims of the remaining Abarca plaintiffs on grounds
of forum non conveniens in favor of the courts of Costa Rica. On
September 22, 2009, the court granted the motion to dismiss and
on November 16, 2009 entered an order conditionally dismissing
the claims of those remaining plaintiffs who allege employment on
farms in Costa Rica exclusively affiliated with our subsidiaries.
Those dismissed plaintiffs re-filed their claim in Costa Rica on
May 17, 2012. On January 18, 2013, all remaining plaintiffs in
California filed Requests for Dismissal effecting the dismissal
of their claims without prejudice. On September 25, 2013, our
subsidiaries filed an answer to the claim re-filed with the
courts of Costa Rica. Two additional DBCP-related lawsuit were
filed in Costa Rica in 2015, as to which the Company has not yet
been served.
"On May 31 and June 1, 2012, eight actions were filed against one
of our subsidiaries in the United States District Court for the
District of Delaware on behalf of approximately 3,000 plaintiffs
alleging exposure to DBCP on or near banana farms in Costa Rica,
Ecuador, Panama, and Guatemala. We and our subsidiaries have
never owned, managed or otherwise been involved with any banana
growing operations in Panama and were not involved with any
banana growing operations in Ecuador during the period when DBCP
was in use. The plaintiffs include 229 claimants who had cases
pending in the United States District Court for the Eastern
District of Louisiana which were dismissed on September 17, 2012.
On August 30, 2012, our subsidiary joined a motion to dismiss the
claims of those plaintiffs on the grounds that they have first-
filed claims pending in the United States District Court for the
Eastern District of Louisiana. The motion was granted on March
29, 2013 and appealed to the United States Court of Appeals for
the Third Circuit. On September 21, 2012, our subsidiary filed
an answer with respect to the claims of those plaintiffs who had
not already filed in Louisiana. On May 27, 2014, the court
granted a motion made by a co-defendant and entered summary
judgment against all remaining plaintiffs based on the September
19, 2013 affirmance by the United States Court of Appeals for the
Fifth Circuit of the dismissal on statute of limitations grounds
of related cases by the United States District Court for the
Eastern District of Louisiana. On July 7, 2014, our subsidiary
joined in a motion for summary judgment on statute of limitations
grounds as to all remaining plaintiffs on the basis of the
court's May 27, 2014 ruling."
"Plaintiffs agreed that judgment be entered in favor of all
defendants for the claims still pending in the United States
District Court for the District of Delaware on the basis of the
summary judgment granted on May 27, 2014 and the district court
entered judgment dismissing all plaintiffs' claims on September
22, 2014. On October 21, 2014, a notice of appeal was filed with
the United States Court of Appeals for the Third Circuit
expressly limited the appeal to the claims of 57 (out of the more
than 2,600) plaintiffs who had not previously filed claims in
Louisiana. On August 11, 2015, a panel of the Court of Appeals
affirmed the dismissal of the claims of these plaintiffs.
Plaintiffs filed a Motion for Rehearing en Banc with the Third
Circuit, which was granted on September 22, 2015. On September
2, 2016, the Third Circuit en banc reversed the District Court's
dismissal on first-filed doctrine grounds of the claims of
approximately 229 of the plaintiffs and remanded the case back to
the District Court for further proceedings. The United States
Court of Appeals for the Third Circuit has canceled the hearing
previously scheduled for March 9, 2017 to hear oral argument in
the appeal from the grant of summary judgment to defendants on
the statute of limitations issue and has advised the parties that
its decision on the appeal, which remains pending, will be issued
on the basis of the written pleadings filed by the parties. On
June 2, 2017, the Third Circuit issued a Petition for
Certification of State Law to the Delaware Supreme Court to
resolve the complex procedural question pending on appeal
regarding the applicability of the first-filed doctrine for
tolling the statute of limitations on class actions claims. The
Delaware Supreme Court has accepted certification of the pending
question of law and the parties have filed their respective
briefs with the court. Oral argument before the court took place
on January 17, 2018.
"In Hawaii, plaintiffs filed a petition for certiorari to the
Hawaii Supreme Court based upon the Hawaii Court of Appeals
affirmance in March 2014 of a summary judgment ruling in
defendants' favor at the trial court level. The Hawaii Supreme
Court accepted the petition and oral argument was held on
September 18, 2014 with respect to whether the claims of the six
named plaintiffs were properly dismissed on statute of
limitations grounds. On October 21, 2015, the Hawaii Supreme
Court reversed the Hawaii Court of Appeals and the Hawaii state
trial court's grant of partial summary judgment against the DBCP
plaintiffs on statute of limitations grounds. The Hawaii Supreme
Court remanded the claims of six remaining plaintiffs back to the
Hawaii state trial court for further proceedings."
Fresh Del Monte is one of the world's leading vertically
integrated producers, marketers and distributors of high-quality
fresh and fresh-cut fruit and vegetables, as well as a leading
producer and marketer of prepared fruit and vegetables, juices,
beverages and snacks in Europe, Africa, the Middle East and
countries formerly part of the Soviet Union.
GIANT EAGLE: "Jones" Suit Seeks Overtime Pay, Damages
-----------------------------------------------------
Jordan Jones, individually and on behalf of all others similarly
situated, Plaintiff, v. Giant Eagle, Inc., Defendant, Case No.
18-cv-00282, (W.D. Pa., March 6, 2018), seeks overtime
compensation, liquidated damages, interest, pre-judgment interest
and attorney's fees and costs pursuant to the Fair Labor
Standards Act.
Giant Eagle is a food retailer, supermarket chain and distributor
where Jones was employed as a team leader in two of their stores
in Pennsylvania, regularly working more than 40 hours in a
workweek without overtime. [BN]
Plaintiff is represented by:
Jason Conway, Esq.
CONWAY LEGAL, LLC
1700 Market Street, Suite 1005
Philadelphia, PA 19103
Telephone: (215) 278-4782
Fax: (215) 278-4807
Email: jconway@conwaylegalpa.com
- and -
Camar R. Jones, Esq.
Gregg I. Shavitz, Esq.
Logan A. Pardell, Esq.
SHAVITZ LAW GROUP, PA
1515 S. Federal Highway, Suite 404
Boca Raton, FL 33432
Tel: (561) 447-8888
Fax: (561) 447-8831
Email: cjones@shavitzlaw.com
gshavitz@shavitzlaw.com
lpardell@shavitzlaw.com
- and -
Michael J. Palitz, Esq.
SHAVITZ LAW GROUP, P.A.
830 3rd Avenue, 5th Floor
New York, NY 10022
Telephone: (800) 616-4000
Email: mpalitz@shavitzlaw.com
- and -
Daniel C. Levin, Esq.
LEVIN, SEDRAN & BERMAN
510 Walnut Street
Philadelphia, PA 19106
Telephone: (215) 592-1000
Fax: (215) 592-4663
Email: dlevin@lfsblaw.com
GLOBAL EXECUTIVE: Levy Disputes Vague Collection Letter
-------------------------------------------------------
Nurit Levy (f/k/a Nurit Lavertovsky), on behalf of herself and
others similarly situated, Plaintiff, v. Global Executive
Solutions, LLC, Defendant, Case No. 18-cv-80284 (S.D. Fla., March
6, 2018), seeks statutory and punitive damages, reasonable costs
and attorneys' fees incurred in this action, including expert
fees and other and further relief under the Fair Debt Collection
Practices Act.
Global Executive is a consumer debt collection agency based in
Palm Beach County, Florida. On or about September 1, 2017,
Defendant sent an initial written communication to Levy in
connection with the collection of a debt allegedly owed to
Medical Specialists of the Palm Beaches. Said collection letter
failed to give her statutorily-mandated disclosures to which she
was entitled, including the right to dispute the debt in any
other form other than in writing and by implying that she had
less than thirty days to obtain verification of the debt. [BN]
Plaintiff is represented by:
James L. Davidson, Esq.
GREENWALD DAVIDSON RADBIL PLLC
5550 Glades Road, Suite 500
Boca Raton, FL 33431
Telephone: (561) 826-5477
Fax: (561) 961-5684
Email: jdavidson@gdrlawfirm.com
- and -
Benjamin W. Raslavich, Esq.
KUHN RASLAVICH, P.A.
2124 W. Kennedy Blvd., Suite B
Tampa, FL 33606
Tel: (813) 422-7782
Fax: (813) 422-7783
Email: ben@thekrfirm.com
GONGOS INC: "Kraft" Suit to Recover Unpaid Overtime Wages
---------------------------------------------------------
Heather Kraft, on behalf of herself and others similarly
situated, Plaintiff, v. Gongos, Inc., Gongos Research, Inc. and
Debra Pomorski, Defendants, Case No. 18-cv-10745 (E.D. Mich.,
March 6, 2018), seeks unpaid overtime compensation, liquidated
damages, costs, attorneys' fees, declaratory and injunctive
relief and any such other relief pursuant to the Fair Labor
Standards Act of 1938.
Defendants are into research services where Kraft worked as a
research coordinator for Defendants from December 12, 2016 until
December 22, 2017. Defendants required or permitted Plaintiff to
work in excess of 40 hours per week, but failed to compensate
Plaintiff at a rate of 1.5 times her regular rate of pay for
hours worked in excess of 40 per week, despite the fact that
Plaintiff was a non-exempt employee, says the complaint. [BN]
Plaintiffs are represented by:
Caitlin E. Malhiot, Esq.
Maia Johnson Braun, Esq.
GOLD STAR LAW, P.C.
2701 Troy Center Dr., Ste. 400
Troy, MI 48084
Tel: (248) 275-5200
Email: cmalhiot@goldstarlaw.com
mjohnson@goldstarlaw.com
GRUBHUB INC: Delivery Driver is Independent Contractor, Ct. Says
----------------------------------------------------------------
The United States District Court for the Northern District of
California decreed that plaintiff Raef Lawson, a restaurant
delivery driver for Grubhub Inc., is an independent contractor in
the case captioned RAEF LAWSON, Plaintiff, v. GRUBHUB, INC., et
al., Defendants, Case No. 15-cv-05128-JSC (C.D. Cal.).
Raef Lawson worked as a restaurant delivery driver for Grubhub in
Southern California for four months in late 2015 and early 2016.
He complains that Grubhub improperly classified him as an
independent contractor rather than an employee under California
law and in doing so violated California's minimum wage, overtime
and employee expense reimbursement laws. He brings his claims in
his individual capacity and as a representative action pursuant
to the California Private Attorney General Act (PAGA).
This lawsuit began when San Francisco Grubhub driver Andrew Tan
filed a putative wage and hour class action in a California state
court. Grubhub subsequently removed the action to this Court
pursuant to the Class Action Fairness Act. Shortly thereafter,
Mr. Tan filed a First Amended Complaint that added Raef Lawson as
a plaintiff and the proposed class representative, and as a co-
plaintiff on the PAGA claim. Mr. Tan was only a plaintiff on the
PAGA claim and no longer sought to represent a Rule 23 class.
Following a ruling on Grubhub's motion to dismiss, Plaintiffs
filed a Second Amended Complaint with the same claims.
Grubhub is an internet food ordering service that connects diners
to local restaurants. The company was founded in 2004 as an
online platform where diners could order food from local
restaurants. Grubhub began offering food delivery in select
markets in 2014. Customers order food through Grubhub's online
platform and Grubhub transmits the orders to restaurants. The
food is then delivered either by a restaurant delivery person or
a Grubhub driver. Diners may also pick up their own meals ordered
through Grubhub.
Mr. Lawson performed food deliveries for Grubhub over a four-
month period: from October 25, 2015 through February 14, 2016.
Prior to performing Grubhub food deliveries, Mr. Lawson worked
for other so-called gig economy companies, including Lyft, Uber,
Postmates, and Caviar. He drove for these companies, including
Grubhub, because the flexible scheduling allowed him to pursue
his acting career. Mr. Lawson continued to deliver food for
Postmates and Caviar during the four months he was delivering for
Grubhub.
Mr. Lawson's Work for Grubhub
Onboarding
Before Mr. Lawson began working as a Grubhub driver, Grubhub did
not require Mr. Lawson to attend any mandatory training or
onboarding. Grubhub did provide Mr. Lawson with certain training
videos; however, Grubhub does not monitor whether drivers watch
the videos. After Mr. Lawson executed the Agreement, Mr. Lawson
watched Grubhub online training videos which provided instruction
on how to use the Grubhub driver app, the proper etiquette with
restaurants and customers, and how drivers should be prompt with
orders so customers receive warm food.
Payment
Grubhub paid Mr. Lawson on a weekly basis by direct deposit. It
nearly always paid Mr. Lawson the hourly true up guarantee. On
one occasion Mr. Lawson was paid per delivery rather than the
true up amount because the cumulative per delivery pay was
greater than the true up amount. On five days when he did not
qualify for the true up, and the "per delivery fee" would pay him
below minimum wage, Mr. Lawson received the minimum wage of $9 an
hour in Los Angeles. Mr. Lawson was not reimbursed for expenses,
although he incurred costs for gas and his cell phone.
Mr. Lawson's Delivery Attire
When making deliveries Mr. Lawson usually wore the Grubhub hat
and shirt, but not always. Grubhub did not monitor Mr. Lawson to
ensure that he wore the uniform which he had agreed to do in
exchange for use of Grubhub's insulated bags.
Mr. Lawson's Gaming of the Grubhub Driver App
When Mr. Lawson first began delivering for Grubhub, he would
sometimes accept an offer he did not intend to deliver to
maintain his acceptance rate and eligibility for the true up
minimum guarantee. He would then contact the Grubhub driver
hotline and ask that the delivery be reassigned; reassignment
following acceptance did not affect his acceptance rate for
purposes of the true up. According to Mr. Lawson, "everybody did
this." But after Grubhub began counting driver requested
reassignments against the acceptance rate for purposes of the
true up, Mr. Lawson ceased this practice.
Mr. Lawson's Credibility
Mr. Lawson's claimed ignorance of his dishonest conduct is not
credible. Mr. Lawson would remember if after he filed this
lawsuit against Grubhub he cheated Grubhub. If he had not moved
his smart phone to airplane mode, intentionally toggled available
late, or deliberately engaged in other conduct to get paid for
doing nothing he would have denied doing so at trial. But he did
not.
Mr. Lawson using an alias (Ray Lawson) and a different email
address applied to deliver for Grubhub. In his application he
falsely represented that he had never before driven for Grubhub.
At trial he admitted that he had lied on the application.
The principle test of an employment relationship is whether the
person to whom service is rendered has the right to control the
manner and means of accomplishing the result desired.
Right-to-Control
Grubhub exercised little control over the details of Mr. Lawson's
work during the four months he performed delivery services for
Grubhub. Grubhub did not control how he made the deliveries
whether by car, motorcycle, scooter or bicycle. Nor did it
control the condition of the mode of transportation Mr. Lawson
chose. Grubhub never inspected or even saw a photograph of Mr.
Lawson's vehicle. Grubhub did ensure that Mr. Lawson's chosen
vehicle was registered and insured, and that he had a valid
driver's license. But given that he could not legally drive the
car without these conditions being satisfied, Grubhub's oversight
in this respect does not weigh in favor of employee status.
Termination at Will
For Mr. Lawson, not so much. He waited two months after he
contracted with Grubhub to even start delivering meals. He
delivered for other companies during the four months he delivered
for Grubhub, sometimes at the same time he was on block for
Grubhub. He worked only when he wanted so that he could pursue
his acting career, and generally less than 20 hours a week. He
did not have to purchase any special equipment or tools to
perform the work; all he needed was a cell phone and a mode of
transportation which he already had. He did not even have to
invest in a uniform or insulated bags. In these circumstances,
Grubhub's right to terminate at will is neutral in the right to
control analysis.
The Borello Secondary Factors
Distinct Occupation or Business
Mr. Lawson's identification of himself on his tax return as self-
employed does not persuade the Court otherwise. Given that
Grubhub and the other gig economy companies for whom he performed
services classified him as an independent contractor that is what
he had to put on his return.
Whether the Work is Performed Under the Principal's Direction or
Supervision
Mr. Lawson did not have a supervisor. He did not report to anyone
at Grubhub; indeed, he never met in person with anyone at
Grubhub. Grubhub did not supervise Mr. Lawson's work in nearly
any respect other than eventually terminating him after he did
not perform deliveries when he said he would but was nonetheless
paid as if he had.
The Skill Required in the Occupation
This factor favors an employment relationship as anyone with a
means of delivery can contract to deliver for Grubhub no special
skills are needed.
The Provision of Tools and Equipment
This factor favors an independent contractor finding as Mr.
Lawson provided his own mode of transportation, his own smart
phone, and could even provide his own insulated food bags.
Indeed, Grubhub does not provide, finance nor require any
specific equipment or tools.
Length of Time for Performance of Services
Mr. Lawson could sign up for blocks when he wanted and not sign
up when he did not want to deliver, without any penalty of any
kind. Grubhub had no expectation that Mr. Lawson would register
for any particular block on any given day. And there is nothing
in the record that suggests Mr. Lawson's short-lived engagement,
although involuntarily terminated, was unique in its minimal
length.
The Method of Payment
Nonetheless, this factor still weighs slightly in favor of an
employment relationship because on all but one occasion when Mr.
Lawson did not satisfy the delivery percentage for the true up,
Grubhub paid him minimum wage rather than what he would have been
entitled to on a fee-per-delivery basis. While Grubhub no doubt
paid Mr. Lawson (and presumably) other drivers the minimum wage
as a hedge against a possible subsequent court ruling that the
drivers are employees, that excuse does not mean this factor
favors Grubhub. Grubhub, in practice, paid Mr. Lawson as an
hourly employee.
Whether the Work is Part of Grubhub's Regular Business
Grubhub deliberately entered the food delivery business in
certain urban markets. It developed an entire mobile app and
algorithm and created entire company departments to facilitate
Grubhub's delivery services. The payroll company, in contrast,
did not provide traffic and crowd control services.
Similarly, in Lara v. Workers Comp. Appeals Bd., 182 Cal.App.4th
393 (2010), the restaurant that hired the gardener to trim the
bushes was not in the gardening business. Grubhub, in contrast,
is in the business of online restaurant ordering and, in the Los
Angeles market, of also providing food delivery for certain
restaurants. Just because it is not the majority of its business
does not mean it is not a regular part of its business in those
markets where Grubhub offers delivery service.
The Parties' Intent
In the circumstances here, where the hirer unilaterally
determines the contract's terms for a low wage, low-skilled job,
the parties' label warrants little weight. Mr. Lawson had to
check the box stating that he understood he was an independent
contractor if he wanted to drive for Grubhub; Grubhub offers no
evidence that it would have hired him regardless.
Grubhub also makes much of the evidence that Mr. Lawson contacted
Plaintiff's counsel regarding a lawsuit before he ever joined
Grubhub. But even if he signed up with Grubhub believing that he
was improperly classified (as he alleged in a complaint shortly
thereafter), that just means he did not intend to create an
independent contractor relationship.
Based on what the Court observed at trial and the facts found,
and after applying the Borello test, the Court finds that during
the four months Mr. Lawson performed delivery services for
Grubhub he was an independent contractor. Since he was not an
employee, he cannot prevail on his individual Labor Code or PAGA
claims.
A full-text copy of the District Court's February 8, 2018 Opinion
is available at https://tinyurl.com/yabgnyqx from Leagle.com.
Raef Lawson, in his capacity as Private Attorney General
Representative; individually and on behalf of all other similarly
situated individuals, Plaintiff, represented by Matthew David
Carlson mcarlson@llrlaw.com, Lichten & Liss-Riordan, P.C.,
Shannon Liss-Riordan -- sliss@llrlaw.com -- Lichten & Liss-
Riordan, P.C., pro hac vice & Thomas Fowler -- tfowler@llrlaw.com
-- pro hac vice.
Grubhub, Inc. & Grubhub Holdings Inc, Defendants, represented by
Theodore J. Boutrous, Jr.- tboutrous@gibsondunn.com -- Gibson
Dunn & Crutcher LLP, Brandon J. Stoker --
brandonjstoker@gmail.com -- Gibson Dunn and Crutcher LLP,
Dhananjay Saikrishna Manthripragada --
dmanthripragada@gibsondunn.com -- Gibson Dunn and Crutcher,
Justin Tyler Goodwin -- jgoodwin@gibsondunn.com -- Gibson Dunn
and Crutcher, Kevin Joseph Ring-Dowell, Gibson, Dunn & Crutcher
LLP, Megan M. Cooney -- mcooney@gibsondunn.com -- Gibson Dunn
Crutcher LLP, Michele Leigh Maryott -- mmaryott@gibsondunn.com --
Gibson Dunn & Crutcher LLP & Theane Evangelis Kapur --
tevangelis@gibsondunn.com -- Gibson, Dunn & Crutcher LLP.
GRUPO TELEVISA: Bribery Scam Caused Share Drop, "Gross" Suit Says
-----------------------------------------------------------------
Melvin Gross, Individually and on behalf of all others similarly
situated, Plaintiff, v. Grupo Televisa, S.A.B., Emilio Fernando
Azcarraga Jean and Salvi Rafael Folch Viadero, Defendants, Case
No. 18-cv -01979 (S.D. N.Y., March 5, 2018) seeks to recover
damages caused by violations of the federal securities laws and
to pursue remedies under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934.
Grupo Televisa S.A.B. operates media and entertainment businesses
in the Spanish speaking world. It has interests in television
production and broadcasting, programming, direct-to-home
satellite services, publishing and publishing distribution, cable
television, radio production, show business, feature films and
Internet portals. Televisa is based in Mexico City, Mexico, and
its American Depositary Receipts (ADR) trade on the New York
Stock Exchange.
The complaint says Defendants failed to disclose that Televisa
executives engaged in unlawful bribery schemes involving
Federation Internationale de Football Association executives that
subjected the company to heightened regulatory scrutiny, and that
Televisa lacked effective internal controls over financial
reporting resulting in Televisa's ADRs traded at artificially
inflated prices.
On this news, Televisa's ADR share price fell $0.29 or 1.38%, to
close at $20.66 on January 26, 2018. Gross owns Televisa's
American Depositary Receipts and claims to have lost
substantially. [BN]
The Plaintiff is represented by:
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
Email: jalieberman@pomlaw.com
ahood@pomlaw.com
- and -
Patrick V. Dahlstrom, Esq.
POMERANTZ LLP
10 South La Salle Street, Suite 3505
Chicago, IL 60603
Telephone: (312) 377-1181
Facsimile: (312) 377-1184
Email: pdahlstrom@pomlaw.com
HARLEYSVILLE PREFERRED: 4th Amended Complaint OK'd in "Halloran"
----------------------------------------------------------------
The United States District Court for the District of Connecticut
granted Plaintiffs' Motion for Leave to File a Fourth Amended
Complaint in the case captioned MICHAEL HALLORAN, et al.,
Plaintiffs, v. HARLEYSVILLE PREFERRED INSURANCE COMPANY, et al.,
Defendants, No. 3:16-cv-00133 (VAB) (C. Conn.).
Plaintiffs are individuals who either own homes or previously
owned homes in Hartford, Tolland and Windham Counties in
Connecticut. They allege that each of their homes' basement
walls are crumbling due to the oxidation of iron sulfide minerals
present in the concrete; the oxidation causes the concrete to
swell and crack and, ultimately, the Plaintiffs' homes will fall
into their basements. Additionally, Plaintiffs claim their homes
are impossible to sell and that the only solution to fix the
cracking is to replace the basement walls. They allege breach of
contract, breach of the implied warranty of good faith and fair
dealing, and violations of the Connecticut Unfair Trade Practices
Act (CUTPA) and the Connecticut Unfair Insurance Practice Act
(CUIPA).
Rule 15 of the Federal Rules of Civil Procedure provides that
parties may either amend once as a matter of course or, once the
time period has elapsed, move for leave to file an amended
complaint. Parties who fail to file an amended complaint within
15(a)(1)'s time period, or who seek additional amendments, may
seek the consent of their opposing party or the court's leave to
amend. The "court should freely give leave when justice so
requires.
Delay
Certain Defendants argue that leave to amend should be denied
because, after nearly two years, this case has not progressed
beyond the threshold pleadings phase.
Neither Certain Defendants nor Middlesex Mutual Assurance Company
("MMAC") have shown bad faith or dilatory tactics on behalf of
the Plaintiffs. MMAC asserts that "Plaintiffs seek to amend the
complaint to allow Plaintiffs David and Patricia Kandrysawtz and
Plaintiff Kathleen Noblet to add eight entirely new claims
against MMAC." MMAC also asserts only that both Noblet's and the
Kandrysawtzs' new claims are based on facts that plaintiffs knew
before filing the previous amended complaint in this case. While
MMAC correctly asserts that failure to allege known facts might
be a grounds for denial of a leave to amend, Plaintiffs argue
that despite diligent inquiry, Plaintiffs' counsel was unable to
assert the Kandrysawtzs' or Noblet's claims against MMAC at that
time.
Additionally, Plaintiffs state that they seek to align the
pleadings with the most complete information available.
Plaintiffs have sought to amend their complaint as they have
discovered new information and, while there has been some delay,
it is not unreasonable such that the Court considers it to be
dilatory or in bad faith.
Certain Defendants and MMAC have also not shown that they would
face any prejudice. While both point to the partially-briefed
motions to dismiss as reasons to deny amendment, the burden
parties would face in redrafting these motions is minimal and
such burdens are a necessary aspect of defending a valid claim.
In sum, the parties' arguments for denying the amendment fall
short here. The Court therefore chooses to exercise its
discretion and allow the leave to amend.
Futility
MMAC raises an additional argument with respect to the
Kandrysawtzs' newly alleged claims: that they are barred by a
contractual provision and thus the amendment would be futile.
The determination of when a collapse occurred and, therefore,
when the limitation period starts to run, is also likely to be
fact-intensive. In Belz, for instance, this Court addressed a
similar argument on summary judgment in a concrete case on nearly
identical policy language. Belz, 204 F. Supp. 3d at 464-65. The
insurance company there had argued that the collapse of the
Belzes' basement walls actually occurred closer to the time of
purchase in 2001 and therefore it would be time-barred in a suit
filed years later. This Court noted that courts in this District
have determined that the 'date of loss' for purposes of an
insurance policy's Suit Against Us provision is the date on which
the insured learned or should have learned of the covered loss
and ultimately concluded this was an issue of material fact best
left to the jury.
The Court holds that the Kandrysawtzs have asserted a colorable
claim that is not frivolous, and therefore amendment would not be
futile.
Accordingly, Plaintiffs Motion for Leave to Amend is granted.
A full-text copy of the District Court's February 8, 2018 Ruling
is available at https://tinyurl.com/ycfhcles from Leagle.com.
Michael Halloran, Individually and on behalf of those similarly
situated, Joyce Halloran, Individually and on behalf of those
similarly situated, Kenneth Masciovecchio, Individually and on
behalf of those similarly situated, Victoria Masciovecchio,
Individually and on behalf of those similarly situated, Steven
Brozek, Individually and on behalf of those similarly situated,
Patricia Brozek, Individually and on behalf of those similarly
situated & Michael Dyer, Individually and on behalf of those
similarly ituated, Plaintiffs, represented by Anthony Joseph
Spinella, Barry & Barall, LLC, 202 W Center St # 1
Manchester, CT, 06040-4855, Marilyn Beth Fagelson --
mfagelson@murthalaw.com -- Murtha Cullina, Melissa A. Federico --
mfederico@murthalaw.com, Murtha Cullina LLP, Ryan P. Barry, Barry
& Barall, LLC, 202 W Center St # 1, Manchester, CT, 06040-4855,
Ryan McAndrew Suerth -- rsuerth@murthalaw.com -- Murtha Cullina
LLP & Sarah Michelle Gruber -- sgruber@murthalaw.com -- Murtha
Cullina LLP.
Harleysville Preferred Insurance Company & Nationwide Property &
Casualty Insurance Company, Defendants, represented by Daniel
Michael Blouin -- dblouin@seyfarth.com -- Seyfarth Shaw LLP &
Wystan M. Ackerman -- wackerman@rc.com -- Robinson & Cole, LLP.
Homesite Ins. Co., Defendant, represented by Judy Y. Barrasso
JBarrasso@BarrassoUsdin.com -- Barrasso Usdin Kupperman Freeman &
Sarver, L.L.C., Stephen R. Klaffky -- sklaffy@barrassousdin.com -
- Barrasso Usdin Kupperman Freeman & Sarver, L.L.C. & Wystan M.
Ackerman, Robinson & Cole, LLP.
HOBBY LOBBY: Court Denies Bid to Dismiss FAC in "Chase"
-------------------------------------------------------
The United States District Court for the Southern District of
California denied Defendant's Motion to Dismiss the case
captioned CHRISTINA CHASE, on behalf of herself and all others
similarly situated, Plaintiff, v. HOBBY LOBBY STORES, INC., an
Oklahoma corporation, and DOES 1 through 50, inclusive,
Defendants, Case No. 17-cv-00881-GPC-BLM (S.D. Cal.).
Plaintiff alleges that Hobby Lobby is engaging in the unlawful
business practice of advertising fictitious prices and phantom
discounts by referencing a fake Marked price, that is then
offered for sale at a deeper discounted price. Plaintiff alleges
that the Marked price on Hobby Lobby's merchandise is a total
fiction because the merchandise is never offered for sale, nor
actually sold at the represented Marked price.
Plaintiff's FAC alleges three causes of action: (1) Violation of
California's Unfair Competition Law (UCL) pursuant to California
Business and Professions Code Section 17200, et seq.; (2)
Violation of California's False Advertising Law pursuant to
California Business and Professions Code Section 17500, et seq.;
(3) Violation of California's Consumers Legal Remedies Act (CLRA)
pursuant to California Civil Code Section 1750, et seq.
Rule 9(b)
With regard to claims sounding in fraud, Plaintiff must satisfy a
heightened pleading standard that must state with particularity
the circumstances surrounding fraud.
The Reasonable Consumer Test
To allege a claim under the UCL, FAL, and CLRA, plaintiffs must
allege that the defendant's purported misrepresentations are
likely to deceive a reasonable consumer.
The Court concludes that it is plausible that a reasonable
consumer viewing the ad from a distance could have failed to take
note of the word ALWAYS and ignored disclaimers in light of the
size and bolded font of the 50 % off language in the overall
context of the advertisement.
Further, given the factual inquiry required to adequately assess
the merits of the reasonable consumer standard, the court cannot
find at the motion to dismiss stage that Hobby Lobby's
advertising scheme would not mislead a reasonable consumer. This
determination can be aided by the benefit of extrinsic evidence,
including that of expert witnesses. The Court concludes it would
be inappropriate to resolve at this stage whether a reasonable
consumer would be deceived under the circumstances alleged.
Accordingly, the Court denies Defendant's Motion to Dismiss
Plaintiff's First Amended Complaint.
A full-text copy of the District Court's February 8, 2018 Order
is available at https://tinyurl.com/y9augtfa from Leagle.com.
Christina Chase, on behalf of herself and all others similarly
situated, Plaintiff, represented by Todd D. Carpenter --
tcarpenter@carlsonlynch.com -- Carlson Lynch Sweet Kilpela &
Carpenter, LLP.
Hobby Lobby Stores, Inc., an Oklahoma corporation, Defendant,
represented by Michael John Hassen -- mhassen@jmbm.com -- Jeffer
Mangels Butler & Mitchell LLP.
HSBC HOLDINGS: Settles Class Action on USD Libor-Indexed Swaps
--------------------------------------------------------------
HSBC Holdings plc disclosed in its Form 20-F filed with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that in February 2018, HSBC reached an
agreement with plaintiffs to resolve a putative class action
brought on behalf of persons who purchased US dollar Libor-
indexed interest rate swaps and other instruments directly from
the defendant banks and their affiliates. These settlements are
subject to court approval.
Beginning in 2011, HSBC and other panel banks have been named as
defendants in a number of private lawsuits filed in the US with
respect to the setting of US dollar Libor. The complaints assert
claims under various US laws, including US antitrust and
racketeering laws, the US Commodity Exchange Act ('US CEA'), and
state law. The lawsuits include individual and putative class
actions, most of which have been transferred and/or consolidated
for pre-trial purposes before the New York District Court.
The New York District Court has issued decisions dismissing
certain of the claims in response to motions filed by the
defendants. Those decisions resulted in the dismissal of the
plaintiffs' federal and state antitrust claims, racketeering
claims and unjust enrichment claims. The dismissal of the
antitrust claims was appealed to the US Court of Appeals for the
Second Circuit, which reversed the decisions in May 2016.
In July 2016, the defendants filed a joint motion to dismiss the
antitrust claims on additional grounds not previously addressed
by the court and, in December 2016, the New York District Court
granted in part and denied in part the motion, leaving only
certain antitrust claims to be litigated.
Certain plaintiffs have appealed the December 2016 order to the
US Court of Appeals for the Second Circuit. Separately, in
October 2016, the New York District Court granted a motion to
dismiss claims brought by certain individual plaintiffs for lack
of personal jurisdiction, which is also on appeal to the Second
Circuit.
Finally, in January 2017, the District Court granted the
defendants' motion to dismiss certain of the remaining antitrust
claims against defendants that did not serve on the US dollar
Libor submission panel.
In the New York District Court, the cases with remaining claims
against HSBC have been stayed while the court considers motions
to certify classes in several putative class actions that are
pending against HSBC's co-defendants.
In 2017, HSBC reached agreements with plaintiffs to resolve three
putative class actions brought on behalf of persons who purchased
US dollar Libor-indexed bonds, persons who purchased US Libor-
indexed-exchange-traded instruments and US based lending
institutions that made or purchased US dollar Libor-indexed
loans.
In February 2018, HSBC reached an agreement with plaintiffs to
resolve a putative class action brought on behalf of persons who
purchased US dollar Libor-indexed interest rate swaps and other
instruments directly from the defendant banks and their
affiliates. These settlements are subject to court approval.
HSBC Holdings plc provides banking and financial products and
services. The Company operates through Retail Banking and Wealth
Management, Commercial Banking, Global Banking and Markets, and
Global Private Banking segments. HSBC Holdings plc was founded
in 1865 and is headquartered in London, the United Kingdom.
HSBC HOLDINGS: May 2018 Final Approval Hearing in Euribor Case
--------------------------------------------------------------
Final approval hearing of HSBC Holdings plc's settlement
agreement related to a putative class action over Euribor is set
for May 2018, according to the Company's Form 20-F filed with the
U.S. Securities and Exchange Commission for the fiscal year ended
December 31, 2017.
In November 2013, HSBC and other panel banks were named as
defendants in a putative class action filed in the New York
District Court on behalf of persons who transacted in euro
futures contracts and other financial instruments allegedly
related to Euribor. The complaint alleges, among other things,
misconduct related to Euribor in violation of US antitrust laws,
the US CEA and state law. In December 2016, HSBC reached an
agreement with plaintiffs to resolve this action, subject to
court approval. The court issued an order granting preliminary
approval in January 2017, and has scheduled the final approval
hearing in May 2018.
HSBC Holdings plc provides banking and financial products and
services. The Company operates through Retail Banking and Wealth
Management, Commercial Banking, Global Banking and Markets, and
Global Private Banking segments. HSBC Holdings plc was founded
in 1865 and is headquartered in London, the United Kingdom.
HSBC HOLDINGS: Bid to Nix SIBOR, SOR, BBSW Cases Still Pending
--------------------------------------------------------------
The requests to dismiss the putative class actions related to
Singapore Interbank Offered Rate ('SIBOR'), Singapore Swap Offer
Rate ('SOR') and Australia Bank Bill Swap Rate ('BBSW') are still
pending, according to HSBC Holdings plc's Form 20-F filed with
the U.S. Securities and Exchange Commission for the fiscal year
ended December 31, 2017.
In July 2016 and August 2016, HSBC and other panel banks were
named as defendants in two putative class actions filed in the
New York District Court on behalf of persons who transacted in
products related to the SIBOR, SOR and BBSW benchmark rates. The
complaints allege, among other things, misconduct related to
these benchmark rates in violation of US antitrust, commodities
and racketeering laws, and state law. In August 2017, the
defendants moved to dismiss the SIBOR and SOR case, and this
motion remains pending. The defendants moved to dismiss the BBSW
case in February 2017 and this motion also remains pending.
No further updates were provided in the Company's SEC report.
HSBC Holdings plc provides banking and financial products and
services. The Company operates through Retail Banking and Wealth
Management, Commercial Banking, Global Banking and Markets, and
Global Private Banking segments. HSBC Holdings plc was founded
in 1865 and is headquartered in London, the United Kingdom.
HSBC HOLDINGS: No Final Hearing Yet for ISDAfix Settlement Pact
---------------------------------------------------------------
HSBC Holdings plc disclosed in its Form 20-F filed with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that the court has yet to set a date for the
final approval hearing of its settlement agreement for the
consolidated putative class action related to US dollar
International Swaps and Derivatives Association fix ('ISDAfix').
In September 2014, HSBC and other panel banks were named as
defendants in a number of putative class actions consolidated in
the New York District Court on behalf of persons who transacted
in interest rate derivatives or purchased or sold financial
instruments that were either tied to ISDAfix rates or were
executed shortly before, during, or after the time of the daily
ISDAfix setting window. The consolidated complaint alleges,
among other things, misconduct related to these activities in
violation of US antitrust laws, the US CEA and state law.
HSBC's motion to dismiss the complaint was denied in March 2016.
In June 2017, HSBC reached an agreement with plaintiffs to
resolve this consolidated action, subject to court approval.
The court issued an order granting preliminary approval in July
2017, but has not yet set a date for the final approval hearing.
No further updates were provided in the Company's SEC report.
HSBC Holdings plc provides banking and financial products and
services. The Company operates through Retail Banking and Wealth
Management, Commercial Banking, Global Banking and Markets, and
Global Private Banking segments. HSBC Holdings plc was founded
in 1865 and is headquartered in London, the United Kingdom.
HSBC HOLDINGS: Faces Class Suit over Canadian Dealer Offered Rate
-----------------------------------------------------------------
Various HSBC Holdings plc entities are facing a putative class
action filed in the New York District Court in January 2018, in
relation to the Canadian Dealer Offered Rate, according to the
Company's Form 20-F filed with the U.S. Securities and Exchange
Commission for the fiscal year ended December 31, 2017.
The claim, which is at an early stage, asserts various breaches
of US laws, including US antitrust and racketeering laws, the US
CEA, and common law.
The Company said, "There are many factors that may affect the
range of outcomes, and the resulting financial impact, of these
matters, which could be significant."
HSBC Holdings plc provides banking and financial products and
services. The Company operates through Retail Banking and Wealth
Management, Commercial Banking, Global Banking and Markets, and
Global Private Banking segments. HSBC Holdings plc was founded
in 1865 and is headquartered in London, the United Kingdom.
HSBC HOLDINGS: US, Canada Suits over Market Manipulation Underway
-----------------------------------------------------------------
Various companies of HSBC Holdings plc continue to face putative
class actions in the U.S. and in Canada over alleged conspiracy
to manipulate the market for US dollar-denominated supranational,
sovereign and agency bonds, according to the Company's Form 20-F
filed with the U.S. Securities and Exchange Commission for the
fiscal year ended December 31, 2017.
In April 2017, various HSBC companies, among other banks, were
added as defendants in a putative class action alleging a
conspiracy to manipulate the market for US dollar-denominated
supranational, sovereign and agency bonds between 2005 and 2015
in violation of US antitrust laws. In November 2017, plaintiffs
filed an amended consolidated complaint which omitted certain
HSBC defendants. The remaining HSBC defendants moved to dismiss
the amended consolidated complaint, and this motion remains
pending.
In November 2017, various HSBC companies and other financial
institutions were named as defendants in a putative class action
issued in Canada making similar allegations under Canadian law.
The claim has not yet been served.
The Company said, "Based on the facts currently known, it is not
practicable at this time for HSBC to predict the resolution of
these matters, including the timing or any possible impact on
HSBC, which could be significant."
HSBC Holdings plc provides banking and financial products and
services. The Company operates through Retail Banking and Wealth
Management, Commercial Banking, Global Banking and Markets, and
Global Private Banking segments. HSBC Holdings plc was founded
in 1865 and is headquartered in London, the United Kingdom.
HSBC HOLDINGS: Class Suits over Forex Benchmark Rates Ongoing
-------------------------------------------------------------
HSBC Holdings plc continues to face putative class actions
related to foreign exchange benchmark rates, according to the
Company's Form 20-F filed with the U.S. Securities and Exchange
Commission for the fiscal year ended December 31, 2017.
Various regulators and competition and law enforcement
authorities around the world, including in the US, the EU,
Switzerland, Brazil, South Korea and South Africa, are conducting
civil and criminal investigations and reviews into trading by
HSBC and others on the foreign exchange markets. HSBC is
cooperating with these investigations and reviews.
In late 2013 and early 2014, HSBC and other banks were named as
defendants in various putative class actions consolidated in the
New York District Court. The consolidated complaint alleged,
among other things, that the defendants conspired to manipulate
the WM/Reuters foreign exchange benchmark rates. In September
2015, HSBC reached an agreement with plaintiffs to resolve the
consolidated action, subject to court approval. In December
2015, the court granted preliminary approval of the settlement,
and HSBC made payment of the agreed settlement amount into an
escrow account. The settlement remains subject to final approval
by the court.
In June 2015, a putative class action was filed in the New York
District Court making similar allegations on behalf of Employee
Retirement Income Security Act of 1974 ('ERISA') plan
participants. The court dismissed the claims in the ERISA
action, and the plaintiffs have appealed to the US Court of
Appeals for the Second Circuit.
In May 2015, another complaint was filed in the US District Court
for the Northern District of California making similar
allegations on behalf of retail customers. HSBC filed a motion
to transfer that action from California to New York, which was
granted in November 2015. In March 2017, the New York District
Court dismissed the retail customers' complaint in response to
the defendants' joint motion to dismiss.
In August 2017, the retail customer plaintiffs filed an amended
complaint and the defendants moved to dismiss. The motion
remains pending.
In April and June 2017, putative class actions making similar
allegations on behalf of purported 'indirect' purchasers of
foreign exchange products were filed in New York. Those
plaintiffs subsequently filed a consolidated amended complaint.
HSBC's motion to dismiss the consolidated amended complaint was
filed in August 2017 and remains pending.
In September 2015, two additional putative class actions making
similar allegations under Canadian law were issued in Canada
against various HSBC companies and other financial institutions.
In June 2017, HSBC reached an agreement with the plaintiffs to
resolve these actions. The settlement received final court
approval in October 2017.
HSBC Holdings plc provides banking and financial products and
services. The Company operates through Retail Banking and Wealth
Management, Commercial Banking, Global Banking and Markets, and
Global Private Banking segments. HSBC Holdings plc was founded
in 1865 and is headquartered in London, the United Kingdom.
HSBC HOLDINGS: Bid to Stay US Gold Price-Fixing Suit Pending
------------------------------------------------------------
HSBC Holdings plc is awaiting Court order on its request for a
stay of discovery in the lawsuit pending in the US related to
alleged price-fixing of gold and gold derivatives, according to
the Company's Form 20-F filed with the U.S. Securities and
Exchange Commission for the fiscal year ended December 31, 2017.
Beginning in March 2014, numerous putative class actions were
filed in the New York District Court and the US District Courts
for the District of New Jersey and the Northern District of
California, naming HSBC and other members of The London Gold
Market Fixing Limited as defendants. The complaints allege that,
from January 2004 to June 2013, defendants conspired to
manipulate the price of gold and gold derivatives for their
collective benefit in violation of US antitrust laws, the US CEA
and New York state law.
The actions were consolidated in the New York District Court.
The defendants' motion to dismiss the consolidated action was
granted in part and denied in part in October 2016. In June
2017, the court granted plaintiffs leave to file a third amended
complaint, which names a new defendant. The court has denied the
pre-existing defendants' request for leave to file a joint motion
to dismiss. HSBC and the other pre-existing defendants have
requested a stay of discovery.
No further updates were provided in the Company's SEC report.
HSBC Holdings plc provides banking and financial products and
services. The Company operates through Retail Banking and Wealth
Management, Commercial Banking, Global Banking and Markets, and
Global Private Banking segments. HSBC Holdings plc was founded
in 1865 and is headquartered in London, the United Kingdom.
HSBC HOLDINGS: Gold Price-Fixing Suits in Canada in Early Stages
----------------------------------------------------------------
HSBC Holdings plc continues to defend itself against putative
class actions in Canada related to alleged manipulation of the
price of gold and its derivatives, according to the Company's
Form 20-F filed with the U.S. Securities and Exchange Commission
for the fiscal year ended December 31, 2017.
Beginning in December 2015, numerous putative class actions under
Canadian law were filed in the Ontario and Quebec Superior Courts
of Justice against various HSBC companies and other financial
institutions. The plaintiffs allege that, among other things,
from January 2004 to March 2014, defendants conspired to
manipulate the price of gold and gold derivatives in violation of
the Canadian Competition Act and common law. These actions are
at an early stage.
HSBC Holdings plc provides banking and financial products and
services. The Company operates through Retail Banking and Wealth
Management, Commercial Banking, Global Banking and Markets, and
Global Private Banking segments. HSBC Holdings plc was founded
in 1865 and is headquartered in London, the United Kingdom.
HSBC HOLDINGS: Bid to Stay U.S. Silver Price-Fixing Suit Pending
----------------------------------------------------------------
HSBC Holdings plc's request for a stay of discovery in the
lawsuit in the New York District Court related to alleged price-
fixing of silver and silver derivatives remains pending,
according to the Company's Form 20-F filed with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2017.
Beginning in July 2014, numerous putative class actions were
filed in the US District Courts for the Southern and Eastern
Districts of New York, naming HSBC and other members of The
London Silver Market Fixing Ltd as defendants. The complaints
allege that, from January 2007 to December 2013, the defendants
conspired to manipulate the price of silver and silver
derivatives for their collective benefit in violation of US
antitrust laws, the US CEA and New York state law. The actions
were consolidated in the New York District Court. The
defendants' motion to dismiss the consolidated action was granted
in part and denied in part in October 2016.
In June 2017, the court granted plaintiffs leave to file a third
amended complaint, which names several new defendants. The court
has denied the pre-existing defendants' request for leave to file
a joint motion to dismiss. HSBC and the other pre-existing
defendants have requested a stay of discovery.
No further updates were provided in the Company's SEC report.
HSBC Holdings plc provides banking and financial products and
services. The Company operates through Retail Banking and Wealth
Management, Commercial Banking, Global Banking and Markets, and
Global Private Banking segments. HSBC Holdings plc was founded
in 1865 and is headquartered in London, the United Kingdom.
HSBC HOLDINGS: Still Defends Silver Price-Fixing Suits in Canada
----------------------------------------------------------------
HSBC Holdings plc continues to defend itself against putative
class actions in Canada related to alleged manipulation of the
price of silver and silver derivatives, according to the
Company's Form 20-F filed with the U.S. Securities and Exchange
Commission for the fiscal year ended December 31, 2017.
In April 2016, two putative class actions under Canadian law were
filed in the Ontario and Quebec Superior Courts of Justice
against various HSBC companies and other financial institutions.
Plaintiffs in both actions allege that, from January 1999 to
August 2014, the defendants conspired to manipulate the price of
silver and silver derivatives in violation of the Canadian
Competition Act and common law. The Ontario action is at an
early stage. The Quebec action has been temporarily stayed.
No further updates were provided in the Company's SEC report.
HSBC Holdings plc provides banking and financial products and
services. The Company operates through Retail Banking and Wealth
Management, Commercial Banking, Global Banking and Markets, and
Global Private Banking segments. HSBC Holdings plc was founded
in 1865 and is headquartered in London, the United Kingdom.
HSBC HOLDINGS: Bid to Drop 3rd Platinum Class Suit Still Pending
----------------------------------------------------------------
HSBC Holdings plc disclosed in its Form 20-F filed with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that the defendants' joint motion to dismiss
the third amended consolidated complaint related to alleged
price-fixing of platinum group metals ('PGM') and PGM-based
financial products is still pending.
Between late 2014 and early 2015, numerous putative class actions
were filed in the New York District Court, naming HSBC and other
members of The London Platinum and Palladium Fixing Company
Limited as defendants. The complaints allege that, from January
2008 to November 2014, the defendants conspired to manipulate the
price of platinum group metals ('PGM') and PGM-based financial
products for their collective benefit in violation of US
antitrust laws and the US CEA.
In March 2017, the defendants' motion to dismiss the second
amended consolidated complaint was granted in part and denied in
part.
In June 2017, plaintiffs filed a third amended complaint.
The defendants filed a joint motion to dismiss, which remains
pending.
The Company said, "There are many factors that may affect the
range of outcomes, and the resulting financial impact, of these
matters, which could be significant."
HSBC Holdings plc provides banking and financial products and
services. The Company operates through Retail Banking and Wealth
Management, Commercial Banking, Global Banking and Markets, and
Global Private Banking segments. HSBC Holdings plc was founded
in 1865 and is headquartered in London, the United Kingdom.
HSBC HOLDINGS: Still Defends Putative Class Suits on SIB Matters
----------------------------------------------------------------
HSBC Holdings plc continues to defend the putative class action
lawsuits in the US District Court for the Northern District of
Texas related to Stanford matters, according to the Company's
Form 20-F filed with the U.S. Securities and Exchange Commission
for the fiscal year ended December 31, 2017.
In January 2018, HSBC Bank plc received a letter of claim from
the Antiguan Joint Liquidators of Stanford International Bank Ltd
('SIB') asserting various claims in connection with HSBC Bank
plc's role as a correspondent bank to SIB from 2003 to 2009.
HSBC Bank plc denies the allegations and is preparing its
response.
HSBC Bank plc continues to defend putative class action lawsuits
in the US District Court for the Northern District of Texas
against HSBC Bank plc and other bank and individual defendants.
The complaints, filed by the Official Stanford Investors
Committee and a putative class of persons who held monies on
deposit and/or certificates of deposit issued by SIB, allege
various fraudulent transfer, statutory and tort claims.
In November 2017, the court denied the class plaintiffs' motion
for class certification. Permission to appeal that ruling has
been requested by the class plaintiffs.
The Company said, "Based on the facts currently known, it is not
practicable at this time for HSBC to predict the resolution of
these matters, including the timing or any possible impact on
HSBC, which could be significant."
HSBC Holdings plc provides banking and financial products and
services. The Company operates through Retail Banking and Wealth
Management, Commercial Banking, Global Banking and Markets, and
Global Private Banking segments. HSBC Holdings plc was founded
in 1865 and is headquartered in London, the United Kingdom.
HSBC USA: Still Defends 2 Gold Price-Fixing Lawsuits in Canada
--------------------------------------------------------------
HSBC USA Inc. continues to defend itself against lawsuits filed
by "DiFilippo and Caron" in Ontario Province and "Benoit" in
Quebec Province related to alleged fixing of the price of gold
and gold derivatives, according to the Company's Form 10-K filed
with the U.S. Securities and Exchange Commission for the fiscal
year ended December 31, 2017.
In December 2015 a putative class action, DiFilippo and Caron v.
The Bank of Nova Scotia, et al., was filed in the Superior Court
of Justice, Ontario Province, Canada, against, among others,
HSBC, HSBC Bank plc, HSBC USA, HSI, HSBC Bank Canada and HSBC
Securities Canada. The claim alleges, among other things, that
defendants conspired to manipulate the price of gold and gold
derivatives during the London Gold Fix.
Another gold fix proceeding entitled Benoit v. Bank of Nova
Scotia, et al. was filed in May 2017 in the Court in the Quebec
Province. In addition to the HSBC defendants named above, the
action names HUSI as a defendant, among others. The parties are
seeking to stay this action during the pendency of the Ontario
gold fix proceedings.
HSBC USA Inc., incorporated under the laws of Maryland, is a New
York State based bank holding company and a wholly-owned
subsidiary of HSBC North America Holdings Inc., which is an
indirect wholly-owned subsidiary of HSBC Holdings plc.
HSBC USA: Plaintiffs' Appeal from Dismissed "Giron" Suit Pending
----------------------------------------------------------------
HSBC USA Inc. disclosed in its Form 10-K filed with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that the plaintiffs' appeal from a November
2017 court ruling dismissing the case, Ramiro Giron, et al. v.
Hong Kong and Shanghai Bank Company, Ltd., et al., remains
pending.
In November 2015, a putative class action was filed in the U.S.
District Court for the Central District of California against
Hong Kong and Shanghai Bank Company, Ltd. and HSBC Bank USA by
investors in a Ponzi scheme allegedly orchestrated by Phil Ming
Xu and companies he controlled, including World Capital Markets
and WCM777 entities.
Plaintiffs allege violations of RICO, 18 U.S.C. Section 1961, et
seq., common claims of aiding and abetting fraud and breach of
fiduciary duty and California state statutory claims based on
Hong Kong and Shanghai Banking Company's claimed acceptance of
U.S. wire transfers to WCM777 from investors after U.S. federal
and state authorities had shut down WCM777 in the U.S. in 2014.
HSBC Bank USA is alleged to have acted as Hong Kong and Shanghai
Banking Company's correspondent bank for certain wire transfers.
Transfers to Hong Kong and Shanghai Banking Company are alleged
to have totaled at least US$37 million. Plaintiffs also seek a
trebling of damages under RICO and punitive damages under
California law.
In June 2016, the court granted in part and denied in part HSBC
Bank USA's motion to dismiss, and in October 2016, granted the
Hong Kong and Shanghai Banking Company's motion to dismiss. In
November 2017, the court granted HSBC Bank USA's motion for
summary judgment and dismissed plaintiffs' fourth amended
complaint and denied plaintiffs' motion for class certification.
Plaintiffs filed a notice of appeal in December 2017.
HSBC USA Inc., incorporated under the laws of Maryland, is a New
York State based bank holding company and a wholly-owned
subsidiary of HSBC North America Holdings Inc., which is an
indirect wholly-owned subsidiary of HSBC Holdings plc.
HSBC USA: Bank Unit Still Defends Suit on Alleged TCPA Breaches
---------------------------------------------------------------
HSBC USA Inc.'s principal U.S. banking subsidiary, HSBC Bank USA,
National Association, still defends itself against a class action
complaint related to alleged violations of the Telephone Consumer
Protection Act, according to the Company's Form 10-K filed with
the U.S. Securities and Exchange Commission for the fiscal year
ended December 31, 2017.
In March 2017, plaintiff filed a consolidated and amended
putative class action in the U.S. District Court for the Central
District of California, Ahmed and Monteleone v. HSBC Bank USA,
National Association (Case 5:16-cv-02057).
The consolidated action alleges that the defendants contacted
plaintiffs, or the members of the class that they seek to
represent, on their cellular telephones using an automatic
telephone dialing system or an artificial or prerecorded voice,
without prior express consent or despite revocation of prior
consent, in violation of the Telephone Consumer Protection Act,
47 U.S.C. Section 227, et seq.
Plaintiffs seek statutory damages of up to US$1,500 for each
violation. HSBC Mortgage Corporation responded to the complaint,
and discovery is underway.
HSBC USA Inc., incorporated under the laws of Maryland, is a New
York State based bank holding company and a wholly-owned
subsidiary of HSBC North America Holdings Inc., which is an
indirect wholly-owned subsidiary of HSBC Holdings plc.
HSBC BANK: Court Denies Bid to Certify Certificate Holders Class
----------------------------------------------------------------
The United States District Court for the Southern District of New
York denied Plaintiffs' Motion for Class Certification in the
case captioned ROYAL PARK INVESTMENTS SA/NV, Plaintiff, v. HSBC
BANK USA, N.A., Defendant. BLACKROCK BALANCED CAPITAL PORTFOLIO
(FI), et al., Plaintiffs, v. HSBC BANK USA, N.A., Defendant, Nos.
14 Civ. 8175 (LGS), 14 Civ. 9366 (LGS) (S.D.N.Y.).
Certificate holders of RMBS trusts are suing trustee HSBC Bank
USA, N.A. (HSBC), asserting claims for breach of contract and
breach of trust for violations of the agreements outlining HSBC's
obligations as trustee.
BlackRock Plaintiffs move to certify a class of:
All individuals who purchased or otherwise acquired a
beneficial interest in a security issued from the Bellwether
Trusts between the date of offering and 60 days from the final
order certifying the class and who hold that beneficial interest
in the security through the date of final judgment in the
District Court, and who were damaged as a result of Defendant
HSBC Bank USA, National Association's (HSBC or Defendant) alleged
breaches of contract and violations of the Trust Indenture Act of
1939 (TIA).
Royal Park Plaintiff moves to certify a class of:
All persons and entities who held Certificates in the
Covered Trusts at any time between the date of issuance to no
later than 60 days after notice of class certification and
opportunity to opt-out is issued and were damaged as a result of
HSBC Bank USA, N.A.'s conduct alleged in the Complaint.
Where, as here, Plaintiff seeks to certify a class under Rule
23(b)(3), Plaintiff also must show that the questions of law or
fact common to class members predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods for fairly and efficiently
adjudicating the controversy.
The Royal Park and BlackRock motions to certify the proposed
classes are denied. Both the proposed classes fail because
Plaintiffs have not proven predominance.
While some members of the proposed class are original certificate
holders, others, including many named Plaintiffs such as PIMCO
and BlackRock, are seeking losses incurred by previous holders of
their securities.
Standing To Sue
Investors claiming losses incurred by previous holders must prove
that they have the standing to do so. Lawsuits by assignees are
cases and controversies of the sort traditionally amenable to,
and resolved by, the judicial process. Sprint Commc'ns Co., L.P.
v. APCC Servs., Inc., 554 U.S. 269, 285 (2008).
The class members in this case are from all over the country as
well as from outside the United States, including Europe and
Asia. These certificateholders traded through brokers potentially
located in yet other jurisdictions.
The fact-intensive individualized inquiry necessary to determine
standing and class membership would undermine any economies
achieved by class treatment and would fail to establish liability
as to any potential absent class member whose certificates were
traded on the secondary market. Assuming for this decision that
issues as to HSBC's conduct are common to all certificate holders
of a given trust, there is no great advantage in trying the
common issues in this case as a class action. The predominance
requirement is meant to ensure that the class will be certified
only when it would achieve economies of time, effort, and
expense, and promote uniformity of decision as to persons
similarly situated.
Class certification would achieve none of these benefits as
compared to bellwether trials.
Plaintiffs assert that the certificates at issue either contain
or incorporate by reference to the PSAs New York choice-of-law
provisions that require the application of New York law to all
transfers of the certificates. Plaintiffs thus argue that under
N.Y.G.O.L. Section 13-107(1), the right to sue the trustee is
transferred along with each assignment of the certificates.
This choice of law argument is unconvincing. The choice-of-law
provisions in the PSAs govern the rights and duties of the
parties to the agreements as relevant here, the trustee and the
certificate holders. They do not purport to govern the separate
contracts between buyers and sellers of the certificates. Such
contracts contain terms and consideration outside the purview of
the PSAs and the certificates themselves. For the same reason,
the choice of law provisions in certificates for six of the
trusts, which state that the certificates themselves are governed
by New York Law, do not dictate the governing law for separate
contracts transferring these certificates from one holder to the
next.
Here, Plaintiffs seek to skip the New York choice of law
analysis. They seek a ruling that, regardless of the many
jurisdictions and individual circumstances involved in the
contracts transferring the certificates at issue, these transfer
contracts are all governed by New York law because the
certificates being transferred are. Without examining the
individual transfer contracts, there is no reason to conclude
that the choice of law governing a particular asset must be the
same as the choice of law governing a contract conveying that
asset.
Plaintiffs' motion to certify a class in this action, appoint
these Plaintiffs as class representative and appoint their
counsel as class counsel is denied.
A full-text copy of the District Court's February 1, 2018 Opinion
and Order is available https://tinyurl.com/ya3lb5ar from
Leagle.com.
Royal Park Investments SA/NA, individually and on behalf of all
others similarly situated, Plaintiff, represented by Arthur C.
Leahy -- artl@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP,
Kevin S. Sciarani -- ksciarani@rgrdlaw.com -- Robbins Geller
Rudman & Dowd LLP, Regis C. Worley, Jr. -- rworley@rgrdlaw.com --
Robbins Geller Rudman & Dowd LLP, Samuel Howard Rudman --
srudman@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Steven
W. Pepich -- stevenp@rgrdlaw.com -- Robbins Geller Rudman & Dowd
LLP, pro hac vice, Benjamin Galdston -- beng@blbglaw.com,
Bernstein Litowitz Berger & Grossmann LLP, Christopher M. Wood --
cwood@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Darryl J.
Alvarado dalvarado@rgrdlaw.com -- Robbins Geller Rudman & Dowd
LLP, Joseph Marco Janoski Gray -- mjanoski@rgrdlaw.com -- Robbins
Geller Rudman & Dowd LLP, Juan Carlos Sanchez --
jsanchez@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac
vice, Lucas F. Olts -- lolts@rgrdlaw.com -- Robbins Geller Rudman
& Dowd LLP & Scott K. Attaway -- sattaway@khhte -- Kellogg,
Huber, Hansen, Todd & Evans, P.L.L.C.
HSBC Bank USA National Association, as trustee, Defendant,
represented by Andrew Wheeler Rudge, Williams & Connolly LLP,
Edward C. Reddington -- ereddington@wc.com -- Williams & Connolly
LLP, George Anthony Borden -- gborden@wc.com -- Williams &
Connolly LLP, Kevin Michael Hodges -- khodges@wc.com -- Williams
& Connolly LLP, pro hac vice, Eric Alan Kuhl -- ekuhl@wc.com --
Williams & Connolly LLP, Eric Christopher Wiener ewiener@wc.com -
- Williams & Connolly LLP, Jonah Perlin -- jperlin@wc.com --
Williams & Connolly LLP, Lauren Heather Uhlig -- luhlig@wc.com --
Williams & Connolly LLP, Matthew Boyd Underwood --
munderwood@wc.com -- Williams & Connolly LLP, Meghan A. Ferguson
-- mferguson@wc.com -- Williams & Connolly LLP, Noah Malachai
Weiss -- nweiss@wc.com -- Williams & Connolly LLP, Tanya Marie
Abrams -- tabrams@wc.com -- Williams & Connolly LLP, Vidya Atre
Mirmira -- vmirmira@wc.com -- Williams & Connolly LLP, pro hac
vice & William Pruitt Ashworth -- washworth@wc.com -- Williams &
Connolly LLP. 725 Twelfth Street, NW. Washington, DC 20005.
HUNTINGTON BANCSHARES: Finalizing Settlement in "Powell" Lawsuit
----------------------------------------------------------------
Huntington Bancshares Incorporated said in its Form 10-K filed
with the U.S. Securities and Exchange Commission for the fiscal
year ended December 31, 2017, that it is in the process of
finalizing a written settlement agreement for the putative class
action filed by "Powell".
The Bank is a defendant in a putative class action filed on
October 15, 2013 alleging Huntington charged late fees on
mortgage loans in a method that violated West Virginia law and
the loan documents. Plaintiffs seek statutory civil penalties,
compensatory damages and attorney's fees. Huntington filed a
motion for summary judgment on the plaintiffs' claims, which was
granted by the U.S. District Court for the Southern District of
West Virginia on December 28, 2016. Plaintiffs appealed to the
U.S. Fourth Circuit Court of Appeals. Oral arguments were held
on October 25, 2017. The parties reached an agreement in
principle on February 1, 2018 to settle the matter. The parties
are in the process of finalizing a written settlement agreement.
Huntington Bancshares Incorporated is a multi-state diversified
regional bank holding company organized under Maryland law in
1966 and headquartered in Columbus, Ohio. Through The Huntington
National Bank, the Company has 150 years of servicing the
financial needs of its customers. Through its subsidiaries, the
Company provides full-service commercial and consumer banking
services, mortgage banking services, automobile financing,
recreational vehicle and marine financing, equipment leasing,
investment management, trust services, brokerage services,
insurance service programs, and other financial products and
services.
HUUUGE INC: Faces "Wilson" Suit in W.D. Washington
--------------------------------------------------
A class action lawsuit has been filed against HUUUGE, Inc. The
case is styled as Sean Wilson, individually and on behalf of all
others similarly situated, Plaintiff v. HUUUGE, Inc. a Delaware
corporation, Defendant, Case No. 3:18-cv-05276 (W.D. Wash., April
6, 2018).
Huuuge, Inc. develops an application network that exclusively
focuses on mobile social casino games. The company was founded in
2015 and is based in Palo Alto, California.[BN]
The Plaintiff is represented by:
Cecily C Shiel, Esq.
TOUSLEY BRAIN STEPHENS
1700 SEVENTH AVE, STE 2200
SEATTLE, WA 98101
Tel: (206) 682-5600
Email: cshiel@tousley.com
- and -
Janissa Ann Strabuk, Esq.
TOUSLEY BRAIN STEPHENS
1700 SEVENTH AVE, STE 2200
SEATTLE, WA 98101
Tel: (206) 682-5600
Email: jstrabuk@tousley.com
INCARE HOME: "Adolphe" Suit Brought Before New York Supreme Court
-----------------------------------------------------------------
The case styled as Fridane Adolphe and individually and on behalf
of all other persons similarly situated who were employed by
Incare Home Health care Group LLC and/or Ageless Home Health Care
LLC, along with other entities affiliated or controlled by Incare
Home Health Care Group LLC and/or Ageless Home Health Care LLC,
Plaintiff v. Incare Home Health Care Group LLC, Ageless Home
Health Care LLC and and/or any other related entities, Defendant,
Case No. 506865/2018 was brought before the New York Supreme
Court on April 6, 2018.
Incare Home Health Care Group LLC is a home health agency in
Brooklyn, New York.[BN]
The Plaintiff is represented by:
Virginia & Ambinder, LLP
40 Broad St, New York
NY 10004, USA
Tel: +1 212-943-9080
The Defendant is represented by:
HODGSON RUSS, LLP
140 PEARL STREET STE 100
BUFFALO, NY 14202
Tel: (716) 856-4000
INTEL CORP: No Bench Trial Date Set in McAfee Shareholder Suit
--------------------------------------------------------------
Intel Corporation said in its Form 10-K filed with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 30, 2017, that no bench trial date has been set in the
class action related to its acquisition of McAfee common stock.
The Company said, "On August 19, 2010, we announced that we had
agreed to acquire all of the common stock of McAfee, Inc.
(McAfee) for US$48.00 per share. Four McAfee shareholders filed
putative class-action lawsuits in Santa Clara County, California
Superior Court challenging the proposed transaction. The cases
were ordered consolidated in September 2010. Plaintiffs filed an
amended complaint that named former McAfee board members, McAfee,
and Intel as defendants, and alleged that the McAfee board
members breached their fiduciary duties and that McAfee and Intel
aided and abetted those breaches of duty. The complaint
requested rescission of the merger agreement, such other
equitable relief as the court may deem proper, and an award of
damages in an unspecified amount. In June 2012, the plaintiffs'
damages expert asserted that the value of a McAfee share for the
purposes of assessing damages should be US$62.08.
"In January 2012, the court certified the action as a class
action, appointed the Central Pension Laborers' Fund to act as
the class representative, and scheduled trial to begin in January
2013. In March 2012, defendants filed a petition with the
California Court of Appeal for a writ of mandate to reverse the
class certification order; the petition was denied in June 2012.
In March 2012, at defendants' request, the court held that
plaintiffs were not entitled to a jury trial and ordered a bench
trial. In April 2012, plaintiffs filed a petition with the
California Court of Appeal for a writ of mandate to reverse that
order, which the court of appeal denied in July 2012. In August
2012, defendants filed a motion for summary judgment. The trial
court granted that motion in November 2012, and entered final
judgment in the case in February 2013. In April 2013, plaintiffs
appealed the final judgment. The California Court of Appeal
heard oral argument in October 2017, and in November 2017,
affirmed the judgment as to McAfee's nine outside directors,
reversed the judgment as to former McAfee director and chief
executive officer David DeWalt, Intel, and McAfee, and affirmed
the trial court's ruling that the plaintiffs are not entitled to
a jury trial. No bench trial date has been set.
"Because the resolution of pretrial motions may materially impact
the scope and nature of the proceeding, and because of
uncertainties regarding theories that may be asserted at trial
following the appellate court's remand of only certain claims in
the proceeding and the extent of Intel's responsibility, if any,
with respect to such claims, we are unable to make a reasonable
estimate of the potential loss or range of losses, if any,
arising from this matter. We dispute the class-action claims and
intend to continue to defend the lawsuit vigorously."
Intel Corporation designs, manufactures, and sells computer,
networking, and communications platforms worldwide. It operates
through Client Computing Group, Data Center Group, Internet of
Things Group, Non-Volatile Memory Solutions Group, Intel Security
Group, Programmable Solutions Group, and All Other segments. The
company was founded in 1968 and is based in Santa Clara,
California.
INTEL CORP: At Least 30 Class Suits Filed over CPU Defects
----------------------------------------------------------
Intel Corporation is facing at least 30 customer class action
lawsuits and two securities class action lawsuits related to the
"Spectre" and "Meltdown" security vulnerabilities as of February
15, 2018, according to the Company's Form 10-K filed with the
U.S. Securities and Exchange Commission for the fiscal year ended
December 30, 2017.
The Company said, "In June 2017, a Google research team notified
us and other companies that it had identified security
vulnerabilities (now commonly referred to as "Spectre" and
"Meltdown") that affect many types of microprocessors, including
our products. As is standard when findings like these are
presented, we worked together with other companies in the
industry to verify the research and develop and validate software
and firmware updates for impacted technologies. On January 3,
2018, information on the security vulnerabilities was publicly
reported, before software and firmware updates to address the
vulnerabilities were made widely available. Numerous lawsuits
have been filed against Intel and, in certain cases, our
executives and directors, in U.S. federal and state courts and in
certain courts in other countries relating to the Spectre and
Meltdown security vulnerabilities.
"As of February 15, 2018, 30 customer class action lawsuits and
two securities class action lawsuits have been filed. The
customer class action plaintiffs, who purport to represent
various classes of end users of our products, generally claim to
have been harmed by Intel's actions and/or omissions in
connection with the security vulnerabilities and assert a variety
of common law and statutory claims seeking monetary damages and
equitable relief. The securities class action plaintiffs, who
purport to represent classes of acquirers of Intel stock between
July 27, 2017 and January 4, 2018, generally allege that Intel
and certain officers violated securities laws by making
statements about Intel's products and internal controls that were
revealed to be false or misleading by the disclosure of the
security vulnerabilities. Additional lawsuits and claims may be
asserted on behalf of customers and shareholders seeking monetary
damages or other related relief. We dispute the claims and
intend to defend the lawsuits vigorously. Given the procedural
posture and the nature of these cases, including that the
proceedings are in the early stages, that alleged damages have
not been specified, that uncertainty exists as to the likelihood
of a class or classes being certified or the ultimate size of any
class or classes if certified, and that there are significant
factual and legal issues to be resolved, we are unable to make a
reasonable estimate of the potential loss or range of losses, if
any, that might arise from these matters.
"In addition to these lawsuits, in January 2018, Joseph Tola,
Joanne Bicknese, and Michael Kellogg each filed a shareholder
derivative action in the Superior Court of the State of
California in San Mateo County against certain members of our
Board of Directors and certain officers. The complaints allege
that the defendants breached their duties to Intel in connection
with the disclosure of the security vulnerabilities and the
failure to take action in relation to alleged insider trading.
The complaints seek to recover damages from the defendants on
behalf of Intel."
Intel Corporation designs, manufactures, and sells computer,
networking, and communications platforms worldwide. It operates
through Client Computing Group, Data Center Group, Internet of
Things Group, Non-Volatile Memory Solutions Group, Intel Security
Group, Programmable Solutions Group, and All Other segments. The
company was founded in 1968 and is based in Santa Clara,
California.
INTEL CORP: Sheriffs' Fund Sues Over Share Price Drop
-----------------------------------------------------
Louisiana Sheriffs' Pension & Relief Fund, on behalf of itself
and all others similarly situated, Plaintiff, v. Intel
Corporation, Brian M. Krzanich, Robert H. Swan and Navin Shenoy,
Defendants, Case No. 18-cv-01460, (N.D. Cal., March 6, 2018),
seeks compensation, jointly and severally, including interest
thereon, reasonable costs and expenses incurred in this action,
including attorneys' fees and expert fees and such
equitable/injunctive or other further relief for violation of
federal Securities Laws.
Intel manufactures the central processing units (CPU) that power
most servers, laptops, desktop computers, tablets, smartphones,
and other computing devices. Said CPUs suffer from several
defects that allow hackers to access to what was supposed to be
secure data. These Defects cannot be fixed remotely via a
software update while any mitigation efforts would seriously
affect CPU performance.
On this news, the price of Intel stock declined from $46.85 per
share on January 2, 2018, to $45.26 per share on January 3, 2018,
or approximately 3%.
Louisiana Sheriffs' Pension and Relief Fund is a multi-employer,
defined benefit, governmental retirement plan providing
retirement, disability and death benefits to approximately 25,000
active and retired employees of the sheriff's offices in all 64
Louisiana parishes. It purchased shares of Intel stock on the
NASDAQ Stock Market and lost substantially. [BN]
Plaintiff is represented by:
David R. Stickney, Esq.
David Kaplan, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
12481 High Bluff Drive, Suite 300
San Diego, CA 92130
Tel: (858) 720-3183
Fax: (858) 793-0323
Email: davids@blbglaw.com
davidk@blbglaw.com
- and -
Avi Josefson, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
1251 Avenue of the Americas, 44th Floor
New York, NY 10020
Tel: (212) 554-1493
Fax: (212) 554-1444
Email: avi@blbglaw.com
INVESTOR'S BUSINESS: Sent Unsolicited SMS Ads, "Armstrong" Says
---------------------------------------------------------------
Clifford Armstrong, individually and on behalf of all others
similarly situated, Plaintiffs, v. Investor's Business Daily,
Inc. and Marketsmith, Inc., Defendants, Case No. 18-at-00258,
(E.D. Cal., March 6, 2018), seeks injunctive relief, requiring
the Defendants to cease all solicitation text-messaging
activities to cellular telephones without first obtaining prior
express written consent, as well as an award of statutory damages
and reasonable attorney's fees for violation of the Telephone
Consumer Protection Act.
Investor's Business Daily, Inc. and MarketSmith sent text
messages to consumers' cellular telephones in an attempt to
solicit business by building brand awareness and ultimately to
increase their bottom lines. However, they used an autodialer
without prior express written consent, says the complaint. [BN]
Plaintiff is represented by:
Bryan Theis, Esq.
THEIS LAW GROUP, P.C.
533 Second Street, Suite 400
Encinitas, CA 92024
Tel: (213) 261-4240
Email: bryan@theislaw.com
- and -
Ross Howard Schmierer, Esq.
DENITTIS OSEFCHEN PRINCE PC
315 Madison Avenue 3rd Floor
New York, NY 10017
Tel: (646) 979-3642
Email: rschmierer@denittislaw.com
KOONS OF TYSONS: Car Cleaners Seek to Recover Unpaid Overtime Pay
-----------------------------------------------------------------
Jeral Baten, Ysabel Uchupe, Israel Ramirez, And Cecilio Mendez,
on behalf of themselves and others similarly-situated,
Plaintiffs, v. Koons of Tysons Corner, Inc. (Koons Chrysler Dodge
Jeep Ram) and Dejaun Cornilous Moore (d/b/a Auto Assets), Case
No. 18-cv-00242 (E.D. Va., March 6, 2018), seeks back wages owed,
permanent injunctive relief and damages for violation of the Fair
Labor Standards Act of 1938.
Defendants are in the business of selling Chrysler, Dodge, Jeep
and Ram automobiles, servicing and repairing automobiles where
Plaintiffs were employed to wash, clean, and detail automobiles
at the premises of their dealership located at 8610 Leesburg
Pike, Vienna, VA 22182. They claim to have worked in excess of
forty hours every workweek without overtime. [BN]
Plaintiff are represented by:
Thomas F. Hennessy, Esq.
THE HENNESSY LAW FIRM, PLLC
4015 Chain Bridge Road, Suite G
Fairfax, VA 22030
Phone: (703) 865-8836
Fax: (703) 865-7633
Email: thennessy@virginiawage.net
LENDINGCLUB CORP: Settles Shareholder and Securities Class Suits
----------------------------------------------------------------
LendingClub Corporation disclosed in its Form 8-K filed with the
U.S. Securities and Exchange Commission that it entered into a
settlement, pending court approval, to resolve the class actions
with the named plaintiffs and certain of the other remaining
defendants in class action lawsuits in federal and California
state courts, referred to as In re LendingClub Corporation
Securities Litigation and In re LendingClub Corporation
Shareholder Litigation, respectively. The Preliminary Settlement
is subject to certain conditions, including court approval of a
final settlement agreement.
The Company said, "There can be no assurance that the settlement
will be finalized and approved."
LendingClub Corporation operates an online marketplace platform
that connects borrowers and investors in the United States. It
founded in 2006 and is headquartered in San Francisco,
California.
LIPOCINE INC: Inks Memorandum of Understanding in "Lewis" Suit
--------------------------------------------------------------
Lipocine Inc. has entered into a memorandum of understanding to
settle a purported securities class action litigation, according
to the Company's amended Form 10-K filed with the U.S. Securities
and Exchange Commission on March 12, 2018, for the fiscal year
ended December 31, 2017.
The Company said, "On July 1, 2016, the Company and certain of
its officers were named as defendants in a purported shareholder
class action lawsuit, David Lewis v. Lipocine Inc., et al., 3:16-
cv-04009-BRM-LHG, filed in the United States District Court for
the District of New Jersey. This initial action was followed by
additional lawsuits also filed in the District of New Jersey. On
December 2, 2016, the court granted plaintiff's motion to
consolidate the various lawsuits and appointed Pomerantz LLP as
lead counsel and Lipocine Investor Group as lead plaintiff. The
court also stated that all filings shall bear the caption In re
Lipocine Inc. Securities Litigation. On March 14, 2017, the
court granted our motion to transfer the action to the United
States District Court for the District of Utah. On April 27,
2017, Plaintiff filed an Amended Complaint against the Company
and certain of its officers and/or directors in the United States
District Court for the District of Utah. This is a purported
class action seeking relief for violations of Section 10(b) and
20(a) of the Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder. The Amended Complaint alleges that the
defendants made false and/or misleading statements and/or failed
to disclose that our filing of the NDA for TLANDO to the FDA
contained deficiencies and as a result the defendants' statements
about our business and operations were false and misleading
and/or lacked a reasonable basis in violation of federal
securities laws. Plaintiff seeks certification as a class
action, compensatory damages of an unspecified amount, pre-
judgment and post-judgment interest, reasonable attorneys' fees,
expert fees, and unspecified other costs, as well as any further
relief the court deems just and proper.
"We filed a motion to dismiss the Amended Complaint on June 12,
2017, in compliance with the scheduling order entered by the
court on December 20, 2016. Oral arguments on the motion to
dismiss were held on October 24, 2017, and the judge denied our
motion to dismiss. On February 15, 2018 we and the other
defendants entered into a memorandum of understanding to settle
the purported securities class action litigation. The memorandum
of understanding contemplates that the parties will enter into a
settlement agreement, which, if entered into, will be subject to
customary conditions including court approval following notice to
our stockholders, and a hearing at which time the court will
consider the fairness, reasonableness and adequacy of the
settlement. If a settlement is finally approved by the court, it
will resolve all of the claims that were or could have been
brought in the action being settled. We continue to believe that
the claims in the lawsuits are without merit and, to the extent
the parties do not enter into a settlement agreement or the court
does not approve a settlement, will defend against them
vigorously. We maintain insurance for claims of this nature,
which management believes is adequate. Moreover, we believe,
based on information currently available, that the filing and
ultimate outcome of the lawsuits will not have a material impact
on our financial position, although we will have to pay up to the
insurance retention amount in connection with the lawsuit."
Lipocine is a specialty pharmaceutical company focused on
applying oral drug delivery technology for the development of
pharmaceutical products in the area of men's and women's health.
LUXURY SUITES: "Sinanyan" Class Settlement Has Final Approval
-------------------------------------------------------------
The United States District Court for the District of Nevada
granted Parties' Joint Motion for Final Approval of Class Action
Settlement with Luxury Suites International, LLC, in the case
captioned ALICE SINANYAN, an individual; JAMES KOURY, an
individual and trustee of the Koury Family Trust; and SEHAK TUNA,
an individual, on behalf of themselves and others similarly
situated, Plaintiffs, v. LUXURY SUITES INTERNATIONAL, LLC, a
Nevada limited liability company; RE/MAX PROPERTIES, LLC, a
Nevada limited liability company; JETLIVING HOTELS, LLC, a Nevada
limited liability company; and DOES 1 through 100, inclusive,
Defendants, Case No. 2:15-cv-00225-GMN-VCF (D. Nev.).
This action involves claims brought by Plaintiffs/ individually
and on behalf of a putative class of 432 condominium owners,
against property rental manager Luxury Suites International, LLC
(LSI). Plaintiffs' Complaint alleged that LSI violated its
contractual, statutory, and common law duties by failing to
disclose its collection of a resort fee from rental guests all of
which LSI disputed and denied.
The Court is satisfied that the parties have reached a fair,
reasonable and adequate settlement that is not the result of
collusion. The ostensible strength of Plaintiffs' claims
concerning their share of resort fees collected and owed by LSI
is countered by LSI's seemingly plausible defense of an offset
for reimbursable expenses incurred by LSI in connection with its
rental management services.
Accordingly, the interests of the Class are better served through
the certainty of settlement, which guarantees the Class a
significant benefit amounting to approximately 22% of the total
resort fees collected by LSI during the class period, which
Plaintiffs would only have been in a position to recover under a
best case scenario in which they prevailed on all claims without
any offsets.
Given the competing interpretations of resort fees and amounts
owed, and the inherent risks, expenses, and uncertainty involved
in litigating the case and proceeding to trial, including the
pendency of Defendants' summary judgment motion, the immediate
benefits to the Class reached by settlement outweigh any
countervailing considerations. Further, as a result of the class
notice period following preliminary certification by this Court,
according to the class administrator, none of the Class Members
opposed the agreement.
The final settlement also appears to be the direct result of
extensive, hard fought negotiations between capable counsel on
both sides, and no evidence of fraud or collusion is present.
Concerning Class Counsel's proposed award of fees and costs, the
parties must, to some degree, justify the award at the final
stage because any award of fees will directly reduce the amount
payable to the Class, and thus bears on the present fairness
inquiry.
As the Ninth Circuit has explained, because in common fund cases
the relationship between plaintiffs and their attorneys turns
adversarial at the fee-setting stage, courts have stressed that
when awarding attorneys' fees from a common fund, the district
court must assume the role of fiduciary for the class plaintiffs.
Accordingly, fee applications must be closely scrutinized.
Rubber-stamp approval, even in the absence of objections, is
improper.
Here, Class Counsel seeks an award of attorney's fees in the
amount of $131,500, or 25 percent of the common fund. Counsel's
proposed award aligns with the Ninth Circuit's benchmark of
twenty-five percent, and the Court therefore need not conduct a
cross check with the loadstar amount. Finding the percentage
requested by Counsel not unreasonable, and having previously
signaled its approval, the Court hereby approves Class Counsel's
fee request. Class Counsel's request for reimbursement of costs
in the amount of $60,526.77, as set forth in Class Counsel's
Motion for Attorneys' Fees and Costs, accords with the proposed
settlement terms, and is also approved.
A full-text copy of the District Court's February 8, 2018 Order
is available at https://tinyurl.com/yaaw55j6 from Leagle.com.
Alice Sinanyan & James Koury, Plaintiffs, represented by Don
Springmeyer -- dspringmeyer@wrslawyers.com -- Wolf, Rifkin,
Shapiro, Schulman and Rabkin, LLP, Justin C. Jones, Jones
Lovelock, 400 S. Fourth St., Ste. 500. Las Vegas, NV, 89101. &
Royi Moas -- rmoas@wrslawyers.com -- Wolf, Rifkin, Shapiro,
Schulman & Rabkin, LLP.
Luxury Suites International, LLC, Defendant, represented by Amy
R. Lancaster, Law Offices of Gary P. Sinkeldam APC, Erin L.
Plunkett, Law Office of Gary P. Sinkeldam, Gary Sinkeldam, Law
Office of Gary P. Sinkeldam, at 844 E Sahara Ave, Las Vegas, NV,
John Scott Burris -- j.scott.burris@wilsonelser.com --, Wilson
Elser Moskowitz Edelman & Dicker & Reuben H. Cawley, Wilson,
Elser, Moskowitz, Edelman & Dicker LLP. 300 South 4th Street,
11th Floor, Las Vegas, NV 89101
Jab Affiliates, LLC dba Las Vegas Suites, Defendant, represented
by Kevin E. Beck, Beck Pingel, 3137 E. Warm Springs Rd. Suite
200, Las Vegas, NV, 89120& Steven R. Dunn, Dunn Firm, P.C., pro
hac vice.
M & J CLEANING: Faces "Rodriguez" Suit in E.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against M & J Cleaning
Solutions LLC. The case is styled as Andrea Rodriguez, on behalf
of herself and others similarly situated, Plaintiff v. M & J
Cleaning Solutions LLC, Juan Kraemer and Michael Militello,
Defendants, Case No. 2:18-cv-02051 (E.D. N.Y., April 6, 2018).
M&J Cleaning Service is a cleaning company which provides offices
cleaning, residential cleaning, quality cleaning, commercial
cleaning services in Las Vegas.[BN]
The Plaintiff appears PRO SE.
M&T BANK: Illegally Collects Post-Payment Interest, Reyeses Say
---------------------------------------------------------------
FABIOLA M. REYES and KERBY W. REYES, individually and on behalf
of a class of similarly situated persons, the Plaintiffs, v. M&T
BANK, Defendant, Case No. 2018-CH-04470 (Ill Cir. Ct., Cook
County, April 5, 2018), alleges that the Defendant has systemic
practice of collecting post-payment interest on loans insured by
the Federal Housing Administration without first complying with
the uniform provisions of the promissory notes and the FHA
regulations governing these loans. As a result, Defendant has
unfairly collected and unjustly retained hundreds of millions of
dollars in post-payment interest in an unlawful manner. The
Defendant breached its contract with Plaintiffs and other class
members and was unjustly enriched through its unlawful practice.
Post-payment interest refers to interest that a lender collects
after the borrower has paid the full unpaid principal of the
loan. For example, if a borrower pays off the loan in full on
November 21, and the lender continues collecting interest for the
remainder of November, the lender has collected post-payment
interest from the borrower. Any interest collected after the
borrower makes payment of the full unpaid principal is post-
payment interest.
M&T Bank Corporation is a bank holding company headquartered in
Buffalo, New York. It operates more than 800 branches in New
York, New Jersey, Pennsylvania, Maryland, Delaware, Virginia,
West Virginia, Washington, D.C., and Connecticut.[BN]
The Plaintiff is represented by:
Arthur C. Czaja, Esq.
THE LAW OFFICES OF ARTHUR C. CZAJA AND ASSOC.
7521 N. Milwaukee Avenue Niles, IL 60714
Telephone: (847) 647 2106
Facsimile: (847) 647 2057
E-mail: arthur@czajalawoffices.com
MACY'S INC: Reaves Sues over Unsolicited Commercial Text Messages
-----------------------------------------------------------------
DERRICK REAVES, on behalf of himself and all others similarly
situated, the Plaintiff, v. MACY'S, INC., the Defendant, Case No.
1:18-cv-02032 (E.D.N.Y., April 5, 2018), seeks statutory or
treble damages caused by Defendant's unsolicited and unconsented-
to commercial text messages in violation of the Telephone
Consumer Protection Act 47 U.S.C. section 227 et seq.
The TCPA was enacted by Congress in 1991 and is implemented by
the Federal Communications Commission. In its June 18, 2015
Declaratory Ruling and Order, the FCC The TCPA makes it "unlawful
for any person to make any call (other than a call made for
emergency purposes or made with the prior express consent of the
called party) using any automatic telephone dialing system or an
artificial or prerecorded voice to any telephone number assigned
to a paging service, cellular telephone service or any service
for which the called party is charged for the call.
On March 22, 2018, the Plaintiff visited a Macy's website and saw
advertising that he would receive 25% of his purchase by texting
the provided number. Macy's continuously posts the images on its
websites. The Plaintiff texted the provided number in the
advertisement in the hopes of gaining 25% off an online purchase.
The Plaintiff received a code to use on his purchase. However,
when Plaintiff typed the code into the allocated space while
purchasing the items he wanted to purchase, he found out that the
code did not apply to his purchase. Nevertheless, the Plaintiff
bought the items that he intended to purchase from Macy's.
Afterwards, Plaintiff began receiving frequent texts about
promotions at Macy's. On March 26, 2018, Plaintiff texted STOP
multiple times to 62297, but Macy's continued to send Plaintiff
messages. On March 27 and March 28, the Defendant sent the
Plaintiff a total of four text messages, four text messages which
were unsolicited. The Plaintiff did not consent to any of the
messages that he received after he texted STOP to the Defendant.
The Defendant sent similar unsolicited marketing texts using an
automated telephone texting system to other similarly situated
persons, who likewise never consented to receiving them. The text
messages sent to the Plaintiff were unwanted, annoying, and a
nuisance. The Plaintiff would often expect important messages
such as family emergency updates, and would open his phone to
Defendants invasive messages instead. To identify the sender,
the Plaintiff would have to unlock his phone and view the actual
message. The messages were disruptive, and diminished the
Plaintiff's usage and enjoyment of his phone.
Macy's, Inc. is an American holding company headquartered in
Cincinnati, Ohio. It is the owner of department store chains
Macy's and Bloomingdale's.[BN]
Attorneys for Plaintiff and the Class
C.K. Lee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP, PLLC
30 East 39th Street, Second Floor
New York, NY 10016
Telephone: 212 465 1188
Facsimile: 212 465 1181
MARS WRIGLEY: Alejandro and Fernos Sue over Snickers Bar Label
--------------------------------------------------------------
MIGUEL ALEJANDRO, FAUSTO FERNOS, each individually and on behalf
of all others similarly situated, the Plaintiff, v., the
Defendant, Case No. 2018-CH-04439 (Ill. Cir. Ct., Cook County,
April 5, 2018), is a consumer class action brought on behalf of
consumers who purchased Defendant's Snicker's Protein Bars. The
lawsuit claims the Defendant has engaged in unfair and/or
deceptive business practices by misrepresenting the nature and
quality of its Snickers Protein Bars and has been unjustly
enriched at the expense of Illinois consumers, including
Plaintiffs.
Additionally, the Defendant does not comply with federal and
parallel state regulations regarding the testing methodology of
its protein content and daily value percentage, making the
Snickers Protein Bar's protein content claims false and
misleading. The Plaintiffs and each of the Class members suffered
an injury in fact caused by the false, fraudulent, unfair,
deceptive, and misleading practices, and seek compensatory and
other damages provided by relevant statute or common law.
Mars Wrigley manufactures chocolate, chewing gum, mints, and
fruity confections, announced today its intent to base its U.S.
headquarters in New Jersey.[BN]
Attorneys for Plaintiff and the Putative Class:
Ryan F. Stebhan, Esq.
James B. Zouras, Esq.
Haley R. Jenkins, Esq.
STEPHAN ZOURAS, LLP
205 N. Michigan
A venue Suite 2560
Chicago, lL 60601
Telephone: 312 233 1550
Facsimile: 312 233 1560
E-mail: lawvers@stephanzouras.com
- and -
Brandon Wise, Esq.
Paul A. Lesko, Esq.
PEIFFER ROSCA WOF ABDULLAH CARR & KANE, APLC
818 Lafayette Ave., Floor 2
St. Louis, MO 63104
Telephone: (314) 833 4825
E-mail: bwise@prwlegal.com
plesko@prwlegal.com
MARTIN MARIETTA: Final Approval of Settlement in "Bass" Affirmed
----------------------------------------------------------------
The Supreme Court, New York County, denied Plaintiffs' Motion for
Final Approval of Settlement Agreement in the case captioned CITY
TRADING FUND, LAWRENCE BASS and ANDRES CARULLO AS ALL OF THE
PARTNERS OF CITY TRADING FUND, A GENERAL PARTNERSHIP, SUING ON
BEHALF OF THEMSELVES and ALL OTHERS SIMILARLY SITUATED,
Plaintiffs, v. C. HOWARD NYE, STEPHEN P. ZELNAK, JR., SUE W.
COLE, DAVID G. MAFFUCCI, WILLIAM E. McDONALD, FRANK H. MENAKER,
JR., LAREE E. PEREZ, MICHAEL J. QUILLEN, DENNIS L. REDIKER,
RICHARD A. VINROOT, MARTIN MARIETTA MATERIALS, INC., and TEXAS
INDUSTRIES, INC., Defendants, 651668/2014 (N.Y.).
This case concerns the acquisition of Texas Industries, Inc.
(TXI) by Martin Marietta Materials, Inc. (the Company), a North
Carolina Corporation. The plaintiffs, stockholders of the
Company, alleging that the Company breached its fiduciary duties
to its shareholders by making material misstatements and
omissions in the definitive proxy, which was provided to the
shareholders for the purpose of evaluating and voting on the
proposed merger.
Simply put, this is a case where a stockholder sought to enjoin a
merger on the ground of inadequate disclosures. The stockholder
moved for a preliminary injunction, and on the eve of the
hearing, the parties settled for a peppercorn and a fee. In
other words, they entered into a disclosure-only settlement that
provides no monetary relief to the stockholders, but which calls
for a significant payment of attorneys' fees to plaintiffs'
counsel (here, $500,000). The supplemental disclosures are the
gravamen of the settlement. They purportedly remedy the alleged
deficiencies in the proxy. These new disclosures are supposed to
help the shareholders make a more informed decision on the merger
by providing them with additional useful information about the
deal.
Since the Company is a North Carolina corporation, the internal
affairs doctrine dictates that plaintiffs' claims for breach of
fiduciary duty, their inadequate disclosure claims, are governed
by North Carolina law.
In Hart v Gen. Motors Corp., 129 A.D.2d 179, 182 (1st Dept 1987)
and Davis v Scottish Re Group Ltd., 30 N.Y.3d 247, 253 (2017),
the internal affairs doctrine, which provides that relationships
between a company and its directors and shareholders are
generally governed by the substantive law of the jurisdiction of
incorporation.
Hence, the applicable materiality standard for determining
whether plaintiffs' disclosure claims have merit and whether the
supplemental disclosures are material are governed by Delaware
law.
In the 2015 Decision, the court extensively addressed the ten
categories of allegedly inadequate disclosures set forth in the
amended complaint.
This is the first category of disclosure plaintiffs complained
about. The replacement language in the supplemental disclosure
states:
Martin Marietta's directors and executive officers will not
receive any special compensation the payment of which is payable
upon completion of the merger. Certain of Martin Marietta's
executive officers, including Chief Executive Officer Nye, may
receive compensation under Martin Marietta's executive
compensation programs attributable to additional responsibilities
in connection with the merger and subsequent integration process.
All this discloses is that Mr. Nye is one of the directors whose
compensation might increase after the merger. The supplemental
disclosure adds nothing further. Without this disclosure, this
was an obvious assumption since Mr. Nye is the Company's
President and CEO. One would imagine that those shareholders (if
any) who actually bother to read until page 72 are likely to know
who Mr. Nye is, and, likewise, are savvy enough to know that the
CEO of the acquiring company will probably make more money after
the merger.
In asking the court to approve their settlement, plaintiffs rely
on two of the court's post-Gordon (Gordon, 148 AD3d at 166)
decisions in which final approval of a disclosure-only class
action settlement was granted. Roth v Phoenix Cos., 56 Misc.3d
191 (Sup Ct, NY County 2017); Saska v Metro. Museum of Art, 57
Misc.3d 218 (Sup Ct, NY County 2017). That reliance is misplaced.
Neither case was a strike suit seeking the extraction of a merger
tax. Both cases involved seemingly meritorious claims that were
settled in exchange for highly beneficial disclosures that
directly remedied the wrongs alleged by plaintiffs.
Roth concerned the reduction of a company's reporting obligations
by virtue of a going private transaction and the allegedly
inadequate disclosure of the transaction's implications to the
company's bondholders.
Here, plaintiffs call the court's attention to its remarks in the
first half of footnote 4 in Roth, where the court stated that
Gordon's 'some benefit' test cannot be viewed as anything other
than an outright rejection of Trulia's (Trulia, 129 A.3d 884 at
896) plainly material' standard. But plaintiffs ignore the rest
of that footnote, where the court stated that the disclosure suit
here is worthy of being brought, the Settlement provides real
benefit to the class, and the way in which counsel litigated and
resolved the case is praiseworthy, and that the remedial
disclosures would pass muster under Trulia (meaning that Gordon's
lower standard is easily satisfied).
Saska did not involve allegations of inadequate disclosures
regarding a proposed merger. In granting approval of the parties'
disclosure-only class action settlement, the court explained the
potential merit in plaintiffs' claims and the significant
benefits of the new disclosures. Specifically, the court found
that the Museum's new signage would significantly improve the
public's awareness that it could enter the Museum for as little
as a penny, and that the Museum was merely seeking a voluntary,
suggested admission fee.
The Gordon Approval Factors
While it is clear to the court that the supplemental disclosures
are utterly worthless because they would not matter to any
reasonable shareholder and provide no benefit to the class the
court will not eschew its obligation to formally evaluate each of
the Gordon approval factors.
These factors are: (1) the likelihood of success on the merits;
(2) the extent of support from the parties; (3) the judgment of
counsel; (4) the presence of bargaining in good faith; (5) the
nature of the issues of law and fact; (6) whether the agreed upon
disclosures (or other non-monetary relief) are in the best
interests of all of the members of the class; and (7) whether the
settlement is in the best interest of the corporation.
The first and fifth factors militate against approval because
plaintiffs have not established a likelihood of success on the
merits. As discussed, it is well settled that to state a claim
for breach of fiduciary duty for omitting material facts to
shareholders considering a merger, the plaintiff must plead the
omission of a material fact.
A plaintiff who does not plead a material misstatement or
omission will have its disclosure claims dismissed on a pre-
answer motion. Ergo, that plaintiff will not prevail on the
merits.
Turning to the second factor, the extent of support from the
parties, the only shareholder who supports the settlement is
plaintiff CTF. By contrast, shareholders that own shares worth
hundreds of thousands of dollars more than CTF's nominal holding
of ten shares have objected. Contrary to plaintiffs'
protestations, the court does not view their objections cynically
on the ground that they would rather not have the Company pay any
legal fees to plaintiffs' counsel.
As for the third factor, the judgment of counsel, it does not
weigh in favor of settlement. There is much that is wrong with
the approach of plaintiffs' counsel.
The supplemental disclosures, at best, are of the tell me more
sort that countless courts have recognized are of little to no
value, and which certainly do not substantially alter the total
mix of available information. In other words, after having
received the supplemental disclosures, the universe of
information upon which shareholders decided whether to vote in
favor of the merger did not meaningfully change. The
institutional investors who weighed in here explained that
reasonable shareholders would have been indifferent to the
supplemental disclosures.
To be sure, under controlling and persuasive authority, a
stockholder's counsel deserves at least some reward if he can
procure information that, while not landscape changing is of some
benefit to the stockholders. Plaintiffs' counsel has not done so
in this case. The shareholders are not better off. In fact, the
shareholders are net losers here, for at least two reasons. The
first, obvious reason, is the payment of counsel fees in exchange
for worthless supplemental disclosures. The second, less obvious
reason is that there is a cost to the shareholders if, in fact,
management concealed material facts about the merger.
Even though the settlement only calls for a release of disclosure
violations, there is no reason the shareholders should lose the
right to eventually file a post-closing action alleging
inadequate disclosures if, in fact, some subsequent revelation
makes clear that, unlike those at issue in this case, there were
material facts withheld from them. To be clear, the court has no
reason to believe that is the case here. However, shareholders do
not benefit from giving up the right to pursue future meritorious
claims in exchange for relief from patently baseless ones. In
other words, settling a baseless claim should not create immunity
for a related, but currently unknown meritorious claim.
In sum, the court cannot find any benefit in the settlement for
the Company or its shareholders. The Company and its shareholders
are net losers here. Consequently, the court will not grant final
approval of the settlement.
Plaintiffs' motion for final approval of the settlement is
denied.
A full-text copy of the Supreme Court's February 8, 2018 Opinion
is available at https://tinyurl.com/ybjjr2ho from Leagle.com.
Mintz & Gold LLP and The Brualdi Firm, P.C., for plaintiffs.
Cravath, Swaine & Moore LLP, for defendant Martin Marietta
Materials, Inc. and the individuals defendants.
Wachtell, Lipton, Rosen & Katz, for defendant Texas Industries,
Inc.
MDL 1917: Court Sets Aside Order of Default
-------------------------------------------
The United States District Court for the Northern District of
California sets aside the order of default in the case captioned
IN RE: CATHODE RAY TUBE (CRT) ANTITRUST LITIGATION, This Order
Relates To: ALL DIRECT PURCHASER ACTIONS, MDL No. 1917, Case No.
C-07-5944 JST (N.D. Cal.).
Defendants Irico Group Corporation (Irico Group) and Irico
Display Devices Co., Ltd. (Irico Display) (Irico Defendants)'s
motion to set aside default.
The case arises from an alleged conspiracy to fix prices of
cathode ray tubes (CRTs), a now-obsolete technology used in the
manufacture of televisions and computer monitors.
The DPPs served the complaint and summons on the Irico Defendants
on June 3, 2008. Several weeks later, attorneys from Pillsbury
Winthrop Shaw Pittman, LLP (Pillsbury) entered appearances on
behalf of the Irico Defendants. On May 18, 2009, the Irico
Defendants joined a number of other Defendants in filing a motion
to dismiss the then operative Consolidated Amended Complaint. The
Court denied the motion on March 30, 2010. Although the order
denying the motion to dismiss set a deadline to answer of April
29, 2010, the Irico Defendants failed to file an answer or any
other motion.
At the time the DPPs filed their original complaint in 2007.
Irico Group was a State-Owned Enterprise of the State Council of
the People's Republic of China. According to a declaration by
Wenkai Zhang, the legal counsel at Irico Group, Irico decided not
to answer the complaint because it believed that Irico Group and
Irico Display were immune from suit in the United States. The
Irico entities believed they were immune from DPP's suit under
notion of foreign sovereign immunity and accordingly did not
participate in this action beyond joining a motion to dismiss.
The Court ordered the DPPs to apply for entry of default against
the Irico Defendants within ten days, reasoning that in their
effort to show good cause, the DPPs conflated entry of default
with entry of default judgment. On July 18, 2016, the Court
ordered the IPPs to file entry of default against the Irico
Defendants within ten days under similar reasoning. On July 18,
2016, the DPPs filed for entry of default. On July 20, 2016, the
IPPs filed for entry of default. The clerk entered default
against both. A month later, the IPPs filed a letter of non-
opposition to Pillsbury's motion, stating they no longer planned
to seek default judgment against the Irico Defendants. On
November 11, 2016, the Court granted the motion as to the IPPs,
but not the DPPs.
The Irico Defendants argue that the Court lacks subject matter
jurisdiction over them under the Foreign Sovereign Immunities Act
(FSIA).
To determine whether a court had jurisdiction over a defendant
under the FSIA, the Ninth Circuit applies the following burden
shifting framework: The defendant must establish a prima facie
case that it is a sovereign state and that the plaintiff's claim
arises out of a public act. A presumption then arises that the
foreign state is protected by immunity. Once the plaintiff has
met the threshold of alleging that the defendant was not entitled
to immunity due to one of the FSIA exceptions, the defendant may
make either a facial or factual challenge to the district court's
subject matter jurisdiction. Terenkian v. Republic of Iraq, 694
F.3d 1122, 1131 (9th Cir. 2012).
Sufficiency of the Zhang Declaration
While the Zhang declaration purports to be made on personal
knowledge, it explains only that Zhang has served as legal
counsel for Irico Group since January 2017. The Irico Defendants
cite cases holding that personal knowledge can be inferred from
an affiant's position.
At best, these cases support the notion that Zhang knows what the
Irico Defendants' current legal status is. Neither those cases,
nor anything in Zhang's declaration, explain how Zhang is able to
know what those entities' status was in 2007. Because the
affidavit does not describe how Zhang has personal knowledge of
the Irico Defendants' status ten years before he served as legal
counsel for Irico Group, the Court concludes that the evidence is
not sufficient to support a finding under the FSIA.
Prima facie showing of sovereign entity status
There are two ways a defendant can establish a prima facie case
that it was an agency or instrumentality as of the time the
complaint was filed. First, it can show that a majority of its
shares were owned by the foreign state or political subdivision
thereof.
The second way a defendant can establish that it was an agency or
instrumentality is to show that it was an organ of the state.
The Irico Defendants do not present evidence sufficient to show
that Irico Display is an organ of the state. According to the
Zhang Declaration, Irico Group was managed directly by the State
Council-appointed management of Irico Group who directly
appointed the management of Irico Display. Some decisions, such
as material investments or mergers and acquisitions, were so
major that the State Council, rather than Irico Group, approved
them. As stated above, however, the Zhang declaration is not
sufficient evidence and the Court has not considered it.
Accordingly, the Court concludes that the Irico Defendants have
not made out a prima facie case that Irico Display was an organ
of the state. Because the Irico Defendants have made out a prima
facie case that Irico Group was an instrumentality of the state,
however, the Court proceeds to the next step of the burden
shifting analysis.
Exceptions to immunity
Commercial activity exception
The DPPs argue that the Irico Defendants' activity falls within
the commercial activity exception to FSIA immunity.
That exception applies when (1) the action is based upon a
commercial activity carried on in the United States by the
foreign state; or (2) upon an act performed in the United States
in connection with a commercial activity of the foreign state
elsewhere; or (3) upon an act outside the territory of the United
States in connection with a commercial activity of the foreign
state elsewhere and that act causes a direct effect in the United
States.
The Court concludes that the DPPs have sufficiently alleged facts
showing that the anticompetitive behavior of the Irico
Defendants, as part of the broader conspiracy, had a direct
effect on prices of CRTs in the United States. The DPPs point to
evidence that Irico participated in a conspiracy, including an
industry report and emails showing that it attended over 70
conspiratorial meetings.
Moreover, the DPPs' expert report by economist Dr. Leizinger
showed that the U.S. was the second largest market for CRTs at
18% of the market. The report shows that the conspiracy resulted
in higher prices, including in the United States, because the CRT
accounted for up to 50 percent of the cost of manufacturing a
television or computer monitor. These facts support a finding
that the Irico Defendant's commercial activities had a direct
effect in the United States.
Moreover, the Court earlier concluded that at least at the
summary judgment stage, the Plaintiffs showed conduct which
surpassed the FTAIA directness standard. The Court concludes
that the DPPs have adequately shown, for purposes of determining
jurisdiction, that the commercial activities exception applies to
any FSIA immunity for the Irico Group because they have
adequately alleged a direct effect.
Waiver exception
The DPPs also argue that the Irico Defendants waived foreign
sovereign immunity when they failed to raise the defense in
response to a stipulation regarding discovery of personal
jurisdiction.
First, this statement only pertains to a defense against
discovery, and does not cover, by its terms, all jurisdictional
defenses. Moreover, the alleged wavier itself contains a waiver
in the same paragraph: Neither executing this Stipulation and
Order nor complying with its terms, including, but not limited
to, serving the short statement referenced herein shall
constitute of waiver of an undersigned defendant's jurisdictional
defense. Finally, the Irico Defendants did not sign the
stipulation and the stipulation provides that "defendants who
have not signed this stipulation reserve all objections to any
discovery.
The Court concludes that this stipulation does not constitute an
implied waiver to FSIA immunity.
MOTION TO SET ASIDE DEFAULT
Pursuant to Federal Rule of Civil Procedure 55(c), the court may
set aside an entry of default for good cause. In assessing
whether to set aside a default for good cause, a court looks to
whether (1) the plaintiff would be prejudiced if the judgment is
set aside, (2) [the] defendant has no meritorious defense, or (3)
the defendant's culpable conduct led to the default.
The DPPs' prejudice argument is substantially undercut by their
own delay in seeking entry of default. The DPPs knew that the
Irico Defendants were in default by April 29, 2010, when the
deadline to file an answer passed. But the DPPs did not move for
entry of default against the Irico Defendants until over six
years later, on July 18, 2016. And it is not clear that the DPPs
would have moved for default at all but for the Court's prompting
to do so on June 28, 2016. The DPPs argue that their delay was
justified because moving for default made little sense until the
remaining defendants' liability was established, given that
conspiracy liability is joint and several. As the Court
previously concluded, this argument conflates the entry of
default with default judgment.
Nothing prevented the DPPs from seeking entry of default. In
short, the DPPs have established prejudice, but must lay some
blame at their own feet.
Meritorious defenses
The Irico Defendants' strongest potential meritorious defense,
however, is that the Court lacks jurisdiction over them.. The
Irico Defendants have raised significant doubt as to whether the
Court has jurisdiction under the FSIA as to Irico Group. While
the case as to Irico Display is much weaker, the Court has cast
doubt on the evidentiary sufficiency of the Zhang Declaration,
which is the only evidence submitted as to Irico Display,
Defendants' showing is nonetheless sufficient to present the
issue. While a defendant seeking to vacate a default judgment
must present specific facts that would constitute a defense, it
can do so through factual allegations, rather than evidence
deemed admissible at trial.
Moreover, because judgment by default is a drastic step
appropriate only in extreme circumstances; and a case should,
whenever possible, be decided on the merits, our rules for
determining when a default should be set aside are solicitous
towards movants.
The Court therefore concludes the Irico Defendants have raised
potential meritorious defenses as to both Group and Display, and
this factor weighs in favor of setting aside the default.
Culpability
The Ninth Circuit has explained: "A defendant's conduct is
culpable if he has received actual or constructive notice of the
filing of the action and intentionally failed to answer. In this
context the term intentionally means that a movant cannot be
treated as culpable simply for having made a conscious choice not
to answer; rather, to treat a failure to answer as culpable, the
movant must have acted with bad faith, such as an intention to
take advantage of the opposing party, interfere with judicial
decision-making, or otherwise manipulate the legal process."
The Court have typically held that a defendant's conduct was
culpable where there is no explanation of the default
inconsistent with a devious, deliberate, willful, or bad faith
failure to respond.
While efficiency and economy suggest that the Irico Defendants
should have presented their immunity defense to the Court in the
first instance, rather than simply disappear from the litigation,
the law does not support a finding of bad faith.
Accordingly, this factor weighs in favor of setting aside the
default. The Court grants the Defendants' motion to set aside
default.
A full-text copy of the District Court's February 1, 2018 Order
is available at https://tinyurl.com/ydek43u3 from Leagle.com.
Crago, Inc., on behalf of itself and others similarly situated
dba Dash Computers, Inc. a Kansas City corporation, Plaintiff,
represented by Bruce Lee Simon -- bsimon@pswlaw.com -- Pearson
Simon & Warshaw, LLP, Guido Saveri -- guido@saveri.com -- Saveri
& Saveri, Inc., Ashlei Melissa Vargas, Pearson, Simon & Warshaw
LLP, 44 Montgomery Street Suite 2450 San Francisco, CA 94104,
Christopher Wilson -- cwilson@polsinelli.com -- Polsinelli
Shughart PC, Clifford H. Pearson -- cpearson@pswplaw.com --
Pearson, Simon & Warshaw LLP, Daniel D. Owen --
dowen@polsinelli.com -- Polsinelli, Daniel L. Warshaw --
dwarshaw@pswlaw.com -- Pearson, Simon & Warshaw, LLP, Esther L.
Klisura -- eklisura@slenvironment.com -- SL Environmental Law
Group PC, Jonathan Mark Watkins, Pearson Simon Warshaw & Penny
LLP, Suite 400, Sherman Oaks, CA 91403, Patrick John Brady --
jbrady@polsinelli.com -- Polsinelli PC, Anne M. Nardacci --
anardacci@bsfllp.com -- Boies, Schiller & Flexner, LLP & James P.
McCarthy -- jmccarthy@lindquist.com -- Lindquist & Vennum.
Chunghwa Picture Tubes, LTD., (Chunghwa PT) is a Taiwanese
company & Chunghwa Picture Tubes (Malaysia) Sdn. Bhd., (Chunghwa
Malaysia) is a Malaysian company, Defendants, represented by Joel
Steven Sanders -- jsanders@gibsondunn.com -- Gibson, Dunn &
Crutcher LLP, Adam C. Hemlock -- adam.hemlock@weil.com -- Weil
Gotshal and Manges LLP, Austin Van Schwing --
aschwing@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, David C.
Brownstein -- dbrownstein@farmerbrownstein.com -- Farmer
Brownstein Jaeger LLP, Jacob P. Alprenj --
alpren@farmerbrownstein.com -- Farmer Brownstein Jaeger LLP,
William S. Farmer -- wfarmer@fbj-law.com -- Farmer Brownstein
Jaeger LLP & Rachel S. Brass -- rbrass@gibsondunn.com -- Gibson
Dunn & Crutcher LLP.
MDL 2047: Burns Couple Can't Pursue Claims Against InEx
-------------------------------------------------------
The United States District Court for the Eastern District of
Louisiana issued an Order and Reasons granting Defendant Interior
Exterior Building Supply (InEx)'s Motion for Injunctive Relief in
the case captioned IN RE: CHINESE-MANUFACTURED DRYWALL PRODUCTS
LIABILITY LITIGATION. THIS DOCUMENT RELATES TO: WINSTON BURNS,
JR. AND WENDY BURNS SECTION "L" (5), Civil Action No. 09-02047
(E.D. La.).
InEx asks the Court to halt an ongoing Louisiana judicial
proceeding against it based on a settlement agreement reached in
the Chinese-Manufactured Drywall multidistrict litigation.
From 2004 through 2006, the housing boom in Florida and
rebuilding efforts necessitated by Hurricanes Rita and Katrina
led to a shortage of construction materials, including drywall.
As a result, drywall manufactured in China was brought into the
United States and used to construct and refurbish homes in
coastal areas of the country, notably the Gulf Coast and East
Coast. Sometime after the installation of the Chinese drywall,
homeowners began to complain of emissions of foul-smelling gas,
the corrosion and blackening of metal wiring, surfaces, and
objects, and the breaking down of appliances and electrical
devices in their homes. Many of these homeowners also began to
complain of various physical afflictions believed to be caused by
the Chinese drywall.
The Knauf Defendant
The Knauf Entities are German-based, international manufacturers
of building products, including drywall, whose Chinese
subsidiary, Knauf Plasterboard (Tianjin) Co., Ltd. (KPT),
advertised and sold its Chinese drywall in the United States. The
Knauf Entities are named defendants in numerous cases
consolidated with the MDL litigation and litigation in state
courts.
Interior Exterior Building Supply
As a result of its role in purchasing and supplying allegedly
defective Chinese drywall, InEx is among the defendants in the
Knauf Entities' chain-of-commerce litigation.
Because of its role with Chinese drywall, InEx became the subject
of a class certification hearing and a jury trial, both of which
were initially scheduled for the summer of 2011. In preparation
for these proceedings, extensive discovery was conducted. As a
result, various mediations between the Plaintiffs' Steering
Committee, InEx, and the Insurers were held in an effort to
resolve the claims against InEx, which resulted in the InEx
Settlement Agreement.
Knauf and InEx Settlement Agreements
In February 2013, the Court issued an Order and Judgment
concerning the Knauf entities. The Order and Judgment certified
five settlement classes InEx, Banner, Knauf, L&W Supply
Corporation, and Global Settlement and granted final approval to
five individual class settlements between the plaintiffs
suffering property damages and personal injuries from Chinese
drywall and the various Knauf entities responsible for the use of
Chinese drywall in affected properties (Settling Defendants).
InEx was one of the named Settling Defendants in the Order and
Judgment, and Livers was named as one of the downstream
releasees. InEx entered into a settlement agreement that provided
for the tendering of all of InEx's primary insurance proceeds in
the amount of $8,000,000 for the benefit of a national class with
claims against InEx involving Chinese drywall (InEx Settlement
Class).
Winston Burns, Jr. and Wendy Burns
The instant motion pertains to a lawsuit filed by Winston Burns,
Jr. and Wendy Burns (Burns) in state court against Livers
Construction, Inc. for property damage and personal injuries
arising from Livers' alleged installation of Chinese drywall in
the Burns' home.
The Burns filed suit against Livers in the Civil District Court
for the Parish of Orleans, seeking to recover for the damages
they suffered from Livers' installation of the toxic drywall and
its failure to advise the Burns of the existence of the Chinese
drywall and the multidistrict litigation involving Chinese-
manufactured drywall. In response, Livers filed peremptory
exceptions of res judicata and peremption, relying on the terms
of the InEx Settlement.
PRESENT MOTION
In response to the state court action, InEx has filed the instant
motion for injunctive relief pursuant to the All Writs Act,
asking this Court to enjoin the state court action against it.
InEx believes two exceptions to the Anti-Injunction Act apply:
the injunction is (1) necessary in aid of" this Court's
jurisdiction, and (2) necessary to protect and effectuate" this
Court's judgment.
Whether the Burns Are Members of the InEx Settlement Class
An appellate court in Louisiana recently faced an identical issue
before this Court. In Cepriano v. B Square Builders, L.L.C.,
Cepriano v. B Square Builders, L.L.C., 170 So.3d 1043, 1048 (La.
1st Cir. 2015), the First Circuit Court of Appeal of Louisiana
held that the settlement of a Chinese drywall class action in
Georgia, brought against a nationwide retailer, is binding on a
homeowner in Louisiana, who learned of the presence of the
drywall in his house only after a final judgment in the class
action was entered. The court first found that plaintiff was a
member of the settlement class because plaintiff owned his house
in June 2009, and the class was defined as anyone who owned
property containing the defective drywall from the beginning of
time through July 27, 2010 (when the Preliminary Approval Order
was signed by the Georgia court).
The court concluded that it is irrelevant that plaintiff was
unaware his house contained Chinese drywall until June 6, 2011,
after the class period had ended, because the final order and
judgment forever discharged the retailer from any and all claims,
whether known or unknown, asserted or unasserted. The Cepriano
court recognized that the purpose of a class action settlement is
to achieve finality regarding the settling defendant's liability
to class members. To deny [the settling defendant] of this
benefit by allowing plaintiff's claim in this lawsuit would
discourage class action settlements in the future.
Similar to the Cepriano court, this Court finds that the Burns
and Livers are members of the settlement class against InEx. The
Court is sympathetic to the Burns: They cannot have their day in
court against InEx even though they have allegedly never received
actual notice of the existence of drywall (until 2015), the
instant MDL, or the settlement. But this is legally correct under
modern class action jurisprudence.
Therefore, the Burns and Livers cannot pursue claims arising from
Chinese drywall against InEx.
The State Court Action Against InEx Is, Therefore, Enjoined.
The Anti-Injunction Act permits injunctions where necessary to
protect and effectuate judgments of a federal court. This
exception, commonly called the relitigation exception, authorizes
an injunction to prevent state litigation of a claim or issue
'that previously was presented to and decided by the federal
court.'
MDL transferee courts have applied the relitigation exception to
effectuate judgments issued in connection with a global
settlement, like the one here. Because the Burns are members of
the InEx Settlement Class, and this Court has certified the class
and entered Judgment, thereby giving force to the settlement
terms, the Burns and Livers are barred from pursuing claims
against InEx. Accordingly, the issuance of an injunction --
enjoining Chinese drywall-related claims against InEx is
necessary to protect this Court's Judgment.
The Court Refuses to Enjoin Action Against Livers.
During oral argument and in their briefs, the Burns have argued
separately that their inability to participate in the benefits of
the Knauf/InEx Settlement resulted from fraudulent activities by
Livers to conceal the Chinese-Manufactured Drywall MDL and the
settlement program. This allegation, if true, is beyond the scope
of the Court's Settlement Judgment. Accordingly, the Court
refuses to enjoin the state court action against Livers, and
defers to the state court for further proceedings consistent with
the Court's InEx Settlement Judgment and this opinion.
Accordingly, the Court ordered InEx's motion for injunctive
relief is granted. The Burns and Livers are enjoined from
pursuing claims against third-party defendant, InEx, in Burns v.
Livers Construction and Fireman's Fund Insurance Company, Case
No. 16-4002, in the Civil District Court of the Parish of
Orleans, State of Louisiana.
A full-text copy of the District Court's February 8, 2018 Order
and Reasons is available at https://tinyurl.com/y8gbxz4u from
Leagle.com.
Lynn C. Greer, Special Master, pro se.
Plaintiff, Plaintiff, represented by Russ M. Herman --
rherman@hhklawfirm.com -- Herman, Herman & Katz, LLC & Leonard A.
Davis -- ldavis@hhklawfirm.com -Herman, Herman & Katz, LLC.
Homebuilders and Installers Steering Committee, Defendant,
represented by Phillip A. Wittmann -- pwittman@stonepigman.com --
Stone, Pigman, Walther, Wittmann, LLC.
Insurer Steering Committee, Defendant, represented by Judy Y.
Barrasso JBarrasso@BarrassoUsdin.com -- Barrasso, Usdin,
Kupperman, Freeman & Sarver, LLC.
MDL 2818: JPML OK's Bid to Centralize Litigation
------------------------------------------------
The United States Judicial Panel on Multidistrict Litigation
granted Defendant's Motion to Centralize Litigation in the case
captioned IN RE: GENERAL MOTORS CORP AIR CONDITIONING MARKETING
AND SALES PRACTICES LITIGATION, MDL No. 2818 (JPML).
Before the Panel is the Defendants move under 28 U.S.C. Section
1407 to centralize this litigation concerning allegedly defective
vehicle air conditioning systems in the Eastern District of
Michigan.
This litigation consists of four actions pending in four
districts.
After considering the argument of counsel, the JPML finds that
the actions in this litigation involve common questions of fact,
and that centralization in the Eastern District of Michigan will
serve the convenience of the parties and witnesses and promote
the just and efficient conduct of the litigation.
The JPML is persuaded that the Eastern District of Michigan is an
appropriate transferee district. The district, which enjoys the
support of most responding parties, is where relevant documents
and witnesses may be found, inasmuch as defendant is based there.
A full-text copy of the Judicial Panel's February 1, 2018 Order
is available https://tinyurl.com/yc7u84h9 from Leagle.com.
MEL'S TRANSPO: "Blair" Seeks Redress for Missed Breaks, Overtime
----------------------------------------------------------------
Raynell Blair, on behalf of himself and all others similarly
situated, Plaintiff, v. Mel's Transportation, II, LLC and Melissa
Falls, Defendants, Case No. 18-cv-02380 (E.D. La., March 6,
2018), seeks unpaid minimum wages and overtime, liquidated
damages as mandated by the Fair Labor Standards Act as well as
unlawful deductions wrongfully withheld from his pay and unpaid
accrued vacation pay, plus 90 days penalty wages under
Louisiana's Final Wage Payment Act.
The complaints says Defendants operate a taxi service whereby
they transport patients to various medical facilities in the
Greater New Orleans Area. Blair worked for Mel's as a driver,
generally worked around 12 hours per day, in excess of 40 hours
per week. Defendants automatically deducted 30 minutes from each
shift he worked for a "meal break," despite the fact that Blair
was not fully relieved from his duties to take this break. In
addition, Defendants repeatedly took deductions from his pay for
long term disability insurance that they did not pay to the
insurance company. Plaintiff earned and has accrued 32 hours of
paid vacation time, but Defendant refuses to pay him for that
time. Plaintiff ceased working for Defendants in April, 2017 but
his final wages has not yet been paid. [BN]
Plaintiff is represented by:
Jody Forester Jackson, Esq.
Mary Bubbett Jackson, Esq.
JACKSON JACKSON
201 St. Charles Avenue, Suite 2500
New Orleans, LA 70170
Tel: (504) 599-5953
Fax: (888) 988-6499
Email: jjackson@jackson-law.net
mjackson@jackson-law.net
MONROE CHOCOLATE: "Zhu" Suit Seeks Overtime Wages under FLSA
------------------------------------------------------------
Baozhi Zhu, individually and on behalf all other employees
similarly situated, the Plaintiff, v. Monroe Chocolate Spa &
Nails Inc., Xiang Ji, Le Han and "John" (First Name Unknown) Xu,
the Defendants, Case No. 1:18-cv-03024 (S.D.N.Y., April 5, 2018),
seeks to recover overtime wages, liquidated damages, prejudgment
and post-judgment interest; and attorneys' fees and costs
pursuant to the Fair Labor Standards Act and the New York Labor
Law.
From April 28, 2017 to February 28, 2018 Plaintiff was hired by
Defendants to work as a Nail Technician for Defendants' Nail
salon business located at 475 NY-17M Ste. 5A, Monroe, NY 10950.
The Plaintiff provides nail services such as manicure, pedicure,
foot massage, and foot spa.
The Defendants have willfully and intentionally committed
widespread violations of the FLSA and NYLL by engaging in a
pattern and practice of failing to pay their employees, including
Plaintiffs, compensation for overtime compensation for all hours
worked over 40 each workweek.
Monroe Chocolate Spa & Nails Inc. owns and operates a Nail Salon
named Monroe Chocolate Spa & Nails located at 475 NY-17M Ste. 5A,
Monroe, NY 10950.[BN]
Attorneys for Plaintiff:
Jian Hang, Esq.
HANG & ASSOCIATES, PLLC
136-20 38th Ave., Suite 10G
Flushing, NY 11354
Telephone: (718) 353 8588
E-mail: jhang@hanglaw.com
LINCOLN NATIONAL: Court Allows SAC Amendment in COI Litigation
--------------------------------------------------------------
The United States District Court for the Eastern District of
Pennsylvania granted in part and denied in part Plaintiffs'
Motion to Amend/Correct and Files its Second Amended Consolidated
Class Complaint in the case captioned IN RE: LINCOLN NATIONAL COI
LITIGATION, Civil Action No. 16-06605 (E.D. Pa.).
This case is a consolidated class action brought on behalf of the
named Plaintiffs and all similarly situated owners of JP Legend
300 and JP Lifewriter Legend 100, 200 and 400 life insurance
policies. Among other things, the Plaintiffs challenge a Cost of
Insurance (COI) rate increase imposed on certain policyholders by
Lincoln National Life Insurance Co. (Lincoln), a wholly-owned
subsidiary of Lincoln National Corporation (Lincoln National).
The Plaintiffs contend Lincoln based the COI increases on
impermissible considerations, failed to apply the changes
uniformly to policyholders in the same rate class and wrongfully
refused to provide some policyholders with illustrations when
requested.
The Plaintiffs seek to amend their Amended Compliant to include a
claim for tortious breach of good faith and fair dealing on
behalf of the California Sub-Class.
The decision to grant leave to amend is within the discretion of
the district court. A court may deny leave to amend a complaint
on grounds such as prejudice, undue delay, bad faith, dilatory
motive, and futility. None of those grounds are present here.
Lincoln contends that the Plaintiffs' decision to exclude this
claim from prior iterations of the complaint was deliberate and
strategic. The Plaintiffs sought leave to add this claim after a
similar claim survived Lincoln's motion to dismiss in the EFG
Action. Lincoln argues that gamesmanship and wait-and-see tactics
are indicative of bad faith. Plaintiffs sought leave to add this
claim after the EFG Action was decided and prior to the
consolidation of the class action complaints in this case, two of
which included the tortious breach claim which the Plaintiffs now
seek to include.
This does not demonstrate that the Plaintiffs acted in bad faith.
In cases where courts have found bad faith, plaintiffs inserted
new theories into cases several years after the beginning of
litigation or sought to add claims solely to avoid summary
judgment at a later stage in the proceedings.
Denial of leave to amend based on futility requires the Court to
find that viewing the amended complaint under the Rule 12(b)(6)
standard, plaintiffs would fail to state a claim under which
relief could be granted.
The Court cannot conclude at this time that the additional count
would fail to state a claim.
The Plaintiffs also seek to amend their Amended Complaint to
include Plaintiff Tutor on behalf of himself and all other
similarly situated (Tutor Plaintiffs) from Tutor v. Lincoln
National Corp., et al., No. 17-cv-04150 (E.D. Pa. Sept. 18,
2017).
Plaintiffs bear the burden of demonstrating that joinder is
proper under Rule 20(a). They have failed to do so. Indeed, their
Motion and initial brief focuses primarily on the issue of
whether or not their proposed amendment would be futile. They
address the joinder question for the first time in their Reply to
Lincoln's response, which argued that the proposed amendment was
impermissible under Rule 20(a).
In that Reply, the Plaintiffs contend that the same policy
language and actuarial standards and principles govern the 2016
and 2017 COI Increases. They further describe the 2017 COI
Increase as comparable to the 2016 COI Increase. The PSAC
supports a showing of the allegedly comparable behavior but does
not demonstrate that the COI increases arose out of the same
transaction or series of transactions.
The Plaintiffs make one conclusory statement that the 2016 and
2017 increases are part and parcel of a common plan or scheme,
yet fail to allege specific facts to support this statement.
A full-text copy of the District Court's February 1, 2018
Memorandum is available https://tinyurl.com/y9mw3y5f from
Leagle.com.
LINCOLN NATIONAL COI LITIGATION, Plaintiff, represented by STACEY
J. RAPPAPORT -- SRappaport@milbank.com -- MILBANK, TWEED, HADLEY
& MCCLOY LLP.
BHARTI R. BHARWANI & ROBERT A. ZIRINSKY, INDIVIDUALLY AND ON
BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs, represented
by JEFFREY W. GOLAN -- jgolan@barrack.com -- BARRACK RODOS &
BACINE, ANDREW S. FRIEDMAN, afriedman@bffb.com -- BONNETT,
FAIRBOURN, FRIEDMAN AND BALINT, P.C., FRANCIS JOSEPH BALINT, Jr.
-- fbalint@bffb.com -- BONNETT FAIRBOURN FRIEDMAN & BALINT,
JILLIAN HEWITT -- jhewitt@susmangodfrey.com -- SUSMAN GODFREY LLP
& JOHN G. EMERSON -- jemerson@emersonfirm.com -- EMERSON SCOTT
LLP.
LINCOLN NATIONAL CORP., Defendant, represented by AARON L.
RENENGER, -- arenenger@milbank.com -- MILBANK TWEED HADLEY &
MCCLOY, JOHN WESLEY SCOTT -- scottj@ballardspahr.com -- BALLARD
SPAHR LLP, MICHAEL L. HIRSCHFELD -- mhirschfeld@milbank.com --
MILBANK, TWEED, HADLEY & MCCLOY LLP, STACEY J. RAPPAPORT --
srappaport@milbank.com -- MILBANK, TWEED, HADLEY & MCCLOY LLP &
TIMOTHY D. KATSIFF- katsifft@ballardspahr.com -- BALLARD SPAHR
LLP.
NIEMANN FOODS: Court Grants Prelim OK of Settlement in "Fikara"
---------------------------------------------------------------
The United States District Court for the Central District of
Illinois, Springfield Division, granted Plaintiff's Unopposed
Motion for Preliminary Approval of Class Action Settlement in the
case captioned LARRY FIKARA, on behalf of himself and others
similarly situated, Plaintiff, v. NIEMANN FOODS, INC., an
Illinois corporation, Defendant, No. 16-cv-3285 (C.D. Ill.).
The Court finds for the purposes of preliminary approval, that
the proposed settlement is fair, reasonable, adequate, and in the
best interest of the Class. The Court therefore preliminarily
approves the proposed Settlement Agreement subject to the
provisions of this Opinion and Order.
The Court preliminarily approves certification of this matter to
proceed as a class action for purposes of settlement under the
Settlement Agreement. The Court conditionally certifies of the
following class (Class):
All applicants or employees of Niemann Foods for whom a
consumer report or investigative consumer report was procured by
Niemann Foods from October 19, 2011 to February 16, 2016.
The Court provisionally approves this matter to proceed as a
class action for purposes of settlement and conditionally
approves the class. The Court preliminarily approves Plaintiff
Larry Fikara as the Class Representative and his counsel of
record as counsel for the class. The Court appoints CPT Group,
Inc. as the third-party Claims Administrator. The Court directs
the parties and Claims Administrator to comply with the terms and
conditions of the Settlement Agreement as modified by this
Opinion and Order.
The Court sets a final hearing to consider the fairness and
adequacy of the Settlement Agreement, final approval of the
Settlement Agreement, and entry of a Final Approval Order and
Judgment on Monday, May 14, 2018 at 1:30 p.m. in Courtroom 3,
U.S. Courthouse, 600 East Monroe Street, Springfield, Illinois
62701.
A full-text copy of the District Court's February 1, 2018 Opinion
and Order is available at https://tinyurl.com/y9xmnf3f from
Leagle.com.
Larry Fikara, Plaintiff, represented by Benjamin Michael Lopatin
-- blopatin@elplawyers.com -- EGGNATZ LOPATIN & PASCUCCI LLP,
Anthony J. Orshansky -- anthony@counselonegroup.com -- COUNSELONE
PC, Justin K. Kachadoorian -- justin@counselonegroup.com --
COUNSELONE PC & David C. Nelson -- dnelson@nelsonlawpc.com --
NELSON & NELSON ATTORNEYS AT LAW PC.
Niemann Foods Inc, Defendant, represented by Eric L. Samore --
esamore@salawus.com --, SMITH AMUNDSEN LLC, James L. Palmer --
jpalmer@slpsd.com -- SCHOLZ LOOS PALMER SIEBERS & DUESTERHAUS,
Jonathan D. Hoag -- jhoag@salawus.com -- SMITH AMUNDSEN LLC,
Ronald David Balfour, SMITHAMUNDSEN LLC & William S. Meckes --
wmeckes@slpsd.com -- SCHOLZ LOOS PALMER SIEBERS & DUESTERHAUS.
NPAS INC: Debt Collection Practices Not Legal, Kambitsis Says
-------------------------------------------------------------
SOPHIA KAMBITSIS, Individually and on behalf of all others
similarly situated, the Plaintiff(s), v. NPAS, INC., the
Defendant(s), Case No. 9:18-cv-80428-DMM (S.D. Fla., April 5,
2018), seeks to recover damages and other relief pursuant to the
Federal Fair Debt Collection Practices Act.
According to the complaint, on January 20, 2017, the Plaintiff
was injured in a car crash and received treatment at Palms West
Hospital. On March 16, Palms West Hospital billed the Plaintiff
for services for which the Plaintiff did not pay and the debt was
then in default. On July 7, Palms West Hospital billed the
Plaintiff for services for which the Plaintiff did not pay and
the debt was in default.
On July 31, 2017, NPAS sent their initial written debt collection
communication to the Plaintiff. According to the lawsuit, the
Defendant's letter did not disclose that the debt collector is
attempting to collect a debt and that any information obtained
will be used for that purpose as required by 15 U.S.C. 1692e(11).
The letter was a false, deceptive, or misleading representation
or means in connection with the collection of debts in violation
of 15 U.S.C. section 1692e, and an unfair or unconscionable means
to collect or attempt to collect any debt in violation of 15
U.S.C. section 1692f, for the Defendant's failure to disclose
that the debt collector is attempting to collect a debt and that
any information obtained will be used for that purpose.
The lawsuit contends the Defendant drafted their debt collection
letter in a deliberate attempt to confuse, confound, and baffle
the least sophisticated consumer and to obfuscate the debtor's
rights and overshadow the protections of the FDCPA. The Plaintiff
and the members of Class have suffered damages by virtue of the
violations of the law by Defendant NPAS, INC., and will continue
to suffer those damages until the Court takes affirmative action
against NPAS, INC., to hault the violations.[BN]
The Plaintiff is represented by:
Jerome F. Skrandel, Esq.
300 Prosperity Farms Road, Suite D
North Palm Beach, FL 33408-5212
Telephone (561) 863 1605
Facsimile (561) 863 1606
E-mail JFSPA@MSN.COM
NUVASIVE INC: Court Allows Nye Expert Witness in "Mauss"
--------------------------------------------------------
The United States District Court for the Southern District of
California denied Defendant's Motion for Summary Judgment and to
Exclude Expert Witness' Testimony in the case captioned BRAD
MAUSS and DANIEL POPOV, on behalf of themselves and all others
similarly situated, Plaintiffs, v. NUVASIVE, INC.; ALEXIS V.
LUKIANOV; and MICHAEL J. LAMBERT, Defendants, Case No. 13cv2005
JM (JLB) (S.D. Cal.).
Defendants move the court for summary judgment on the issue of
loss causation and to exclude the testimony of Plaintiffs'
expert, Zachary Nye, Ph.D. (Dr. Nye).
The Plaintiffs commenced this securities-fraud class action on
behalf of those individuals who purchased NuVasive securities.
The Plaintiffs' sixth amended complaint (6AC) asserts two claims,
for (1) securities fraud, in violation of Section 10(b) of the
Securities Exchange Act of 1934 and Rule 10b-5, against all
Defendants.
NuVasive's Statements Regarding Compliance with the Law and Risk
of Regulatory Scrutiny
In the 6AC, the Plaintiffs identify the following statements by
NuVasive and assert that they are false and misleading and/or
omitted material information: "We are subject to the federal
anti-kickback statute, which, among other things, prohibits the
knowing and willful solicitation, offer, payment or receipt of
any remuneration direct or indirect, in cash or in kind, in
return for or to induce the referral of patients for items or
services covered by Medicare, Medicaid and certain other
governmental health programs. We believe that our operations
materially comply with the anti-kickback statutes; however,
because these provisions are interpreted broadly by regulatory
authorities, we cannot be assured that law enforcement officials
or others will not challenge our operations under these
statutes."
The Defendants, as the moving party, bear the initial burden to
demonstrate the absence of a genuine issue of material fact.
Defendants argue that there is no genuine issue of material fact
because Plaintiffs have not shown that the market learned of
actual fraud by NuVasive. However, the Ninth Circuit does not
require that fraud be affirmatively revealed to the market to
prove loss causation.
As a result, the Defendants have not met their burden for summary
judgment, and the burden does not shift to the Plaintiffs to
demonstrate specific facts showing that there is a genuine issue
for trial. Accordingly, the Defendants' motion for summary
judgment on the issue of loss causation is denied.
The Defendants' arguments for excluding Dr. Nye's expert
testimony echo their motion for summary judgment. Because Dr. Nye
does not provide or rely on evidence that the market learned that
fraudulent conduct actually occurred at NuVasive, the Defendants
contend that Dr. Nye's loss causation and damages opinions are
unreliable, lack foundation, contradict established Ninth Circuit
law, and should be excluded because they are inadmissible.
Here, Dr. Nye conducted a standard event study via regression
analysis evaluating analyst and news reports regarding the July
30, 2013 10Q disclosure of the OIG investigation, the
announcement of Lukianov's resignation on April 1, 2015,
NuVasive's announcement about its agreement in principle with the
DOJ on April 29, 2015, and NuVasive and the DOJ's respective
announcements about the settlement in late July 2015. Dr. Nye not
only looked at the effect these disclosures had on NuVasive's
stock price, but also measured the relationship between
NuVasive's stock returns and (1) changes in market-wide factors
that would be expected to impact all stocks; and (2) changes in
industrywide factors that would be expected to impact stocks in
the medical device industry.
In doing so, Dr. Nye isolated NuVasive's stock price response to
Company-specific news during the Class Period.
The revelation of fraud standard for which the Defendants argue
is too restrictive and not required in the Ninth Circuit.
Therefore, Dr. Nye's purported failure to determine that the
Defendants' alleged fraud was affirmatively revealed to the
market does not render his testimony inadmissible.
Accordingly, the court denies the Defendants' motion to exclude
Dr. Nye's testimony.
A full-text copy of the District Court's February 1, 2018
Judgment is available at https://tinyurl.com/y7hy4jv8 from
Leagle.com.
Brad Mauss, Individually and on Behalf of All Other Persons
Similarly Situated, Plaintiff, represented by Adam G. Kurtz --
agkurtz@pomlaw.com -- Pomerantz LLP, pro hac vice, Emma Gilmore -
- egilmore@pomlaw.com -- Pomerantz LLP, pro hac vice, Jennifer
Pafiti -- jpafiti@pomlaw.com -- Pomerantz LLP, Justin Solomon
Nematzadeh -- jnematzadeh@pomlaw.com -- Pomerantz LLP, pro hac
vice, Lionel Z. Glancy -- lglancy@glancylaw.com -- Glancy Prongay
& Murray LLP, Louis Ludwig -- lcludwig@pomlaw.com -- Pomerantz
LLP, pro hac vice, Michael M. Goldberg --
mgoldberg@softtissuelawyer.com -- Goldberg Law PC, Michele S.
Carino, Pomerantz LLP & Jeremy A. Lieberman --
jalieberman@pomlaw.com -- Pomerantz LLP, pro hac vice.
Nuvasive, Inc. & Michael J. Lambert, Defendants, represented by
Kellin Maurine Chatfield -- kellin.chatfield@dlapiper.com -- DLA
Piper LLP, Robert W. Brownlie -- kellin.chatfield@dlapiper.com --
DLA Piper LLP & Noah A. Katsell, DLA Piper LLP.
OAKWOOD, OH: Court Certifies Class of Real Estate Sellers
---------------------------------------------------------
The United States District Court for the Southern District of
Ohio, Western Division, Dayton, granted Plaintiffs' Motion for
Class Certification in the case captioned JASON THOMPSON and 2408
HILLVIEW, LLC, Plaintiffs, v. CITY OF OAKWOOD, OHIO, and ETHAN
KROGER, Defendants, Case No. 3:16-cv-169 (S.D. Ohio).
A municipal ordinance in the City of Oakwood, Ohio, made it
unlawful to transfer ownership of any real estate, or change a
tenant, without having obtained a pre-sale inspection of the
property under the municipal code. Plaintiffs own and have sold
residential homes in Oakwood.
They brought this action under 42 U.S.C. Section 1983 against
Oakwood and Ethan Kroger, one of its code enforcement officers,
for allegedly infringing their constitutional rights by requiring
them to submit to warrantless searches or risk criminal
punishment before permitting them to sell their homes. Plaintiffs
seek to represent a class of similarly situated individuals who
sold real estate in Oakwood and were coerced into paying pre-sale
inspection fees.
Plaintiffs' Proposed Class
Plaintiffs seek to certify a class of all individuals and
businesses that have (1) sold houses within the City of Oakwood
since May 25, 2010; and (2) paid pre-sale inspection fees to the
City of Oakwood in conjunction with the sale of their houses.
Numerosity
The first prerequisite under Rule 23 is that the class be so
numerous that joinder of all members is impracticable.
Plaintiffs have shown that the class is so numerous that joinder
of all members is impracticable. There are administrative and
logistical issues associated with litigation involving numerous
parties, even with far fewer than the hundreds of likely class
members in this case. It is unlikely that such class members
would be motivated to return to Ohio to litigate this case,
especially in light of the small sums at issue. The small amount
of any likely recovery when compared to the burden and cost of
the litigation further supports the finding that joinder is
impracticable.
Common Questions of Law or Fact
This requirement is easily met in this case. The Court has
determined that the pre-sale inspection ordinance was
unconstitutional on its face, an issue identical as to all class
members regardless of their particular circumstances. All class
members would also be subject to Oakwood's assertion of sovereign
immunity against the unjust enrichment claim. These common
questions satisfy Rule 23(a)(2).
Typicality of Claims or Defenses
In order to satisfy Fed. R. Civ. P. 23(a)(3), the claims or
defenses of the representative parties must be typical of the
claims or defenses of the class. Plaintiffs' claims meet this
requirement for the same reasons that they meet the commonality
requirement discussed above. Their facial challenge to the
ordinance and restitution claim are identical to those asserted
by every class member.
The typicality requirement is satisfied.
Named Plaintiffs' Protection of the Interests of the Class
Rule 23(a)(4) allows certification only if the class
representatives also "will fairly and adequately protect the
interests of the class."
Plaintiffs have demonstrated that they will vigorously prosecute
the interests of the class through qualified counsel. They
engaged counsel experienced with these types of matters and
participated in the discovery process. Their counsel, the 1851
Center for Constitutional Law, is a public interest law firm
organized under Section 501(c)(3) of the Internal Revenue Code
whose mission is the protection of Ohioans' constitutional
rights.
Thus far, Plaintiffs' counsel have demonstrated their familiarity
with the issues raised and ability to prosecute the claims of the
class in a diligent manner.
Rule 23(b) Requirements
Regardless, certification under Rule 23(b)(3) is appropriate
because, in light of the Court's ruling on the motions for
summary judgment, common questions predominate over any questions
affecting only individual members and a class action is the
superior method for adjudication of Plaintiffs' claims.
The most salient individual issue remaining is the question of
whether the class members or their respective real estate agents
paid the $60 fee. Plaintiffs claim that this question may be
resolved, as a factual matter, by reviewing Oakwood's records.
Without prejudging the issue, it might be appropriate for
Plaintiffs to later move to certify subclasses -- one containing
those individuals who paid the fee themselves, and another
containing those individuals whose agents paid the fee. The
parties also may litigate how the identity of the payer affects
damages, but this potential split in the class is manageable and
does not preclude certification.
Accordingly, the Court certifies the following class under Fed.
R. Civ. P. 23(b)(3):
All individuals and businesses that have (1) sold houses
within the City of Oakwood since May 25, 2010; and (2) paid pre-
sale inspection fees to the City of Oakwood in conjunction with
the sale of their houses.
A full-text copy of the District Court's February 8, 2018 Order
is available at https://tinyurl.com/yay4585m from Leagle.com.
Jason Thompson & 2408 Hillview, LLC, Plaintiffs, represented by
Maurice A. Thompson, 1851 Center for Constitutional Law &
Christopher P. Finney -- chris@finneylawfirm.com -- Finney Law
Firm, LLC.
City of Oakwood & Ethan Kroger, Defendants, represented by
Lynnette Dinkler -- lynnette@dinklerpregon.com -- Dinkler Pregon
LLC, Jamey T. Pregon -- Jamey@dinklerpregon.com -- Dinkler
Pregon, LLC & Robert F. Jacques.
PEP BOYS: Fails to Pay All Wages, Andrade Claims
------------------------------------------------
MARTIN ANDRADE, an individual; on behalf of the Plaintiff, v.
THE PEP BOYS MANNY MOE & JACK OF CALIFORNIA, a California
Corporation; and DOES 1 through 20, inclusive, the Defendants,
Case No. BC700988 (Cal. Super. Ct., April 5, 2018), seeks to
recover unpaid wages under the California Labor Code.
According to the complaint, the Defendant has maintained a policy
and practice of failing to provide Plaintiff, and all others
similarly situated, with meal periods, failing to pay additional
hour's pay for each instance in which Defendant failed to provide
them with such meal periods, failing to pay additional hour's pay
for each instance in which Defendant failed to provide them with
such rest periods, failing to pay all wages upon separation,
failing to furnish itemized wage statements, failing to pay wages
owed every pay period, and failing to reimburse business expenses
under Labor Code.
Pep Boys retails automotive parts and accessories.[BN]
The Plaintiff is represented by:
Anoeles Marh, Esq.
MARH & ASSOCIATES
3325 Wilshire Blvd., Ste. 1350
Los Angeles, CA 90010
Telephone: (213) 487 9190
PETALUMA, CA: Burris Files Class Action Suit
--------------------------------------------
A class action lawsuit has been filed against City of Petaluma.
The case is styled as Kevin Burris, on behalf of himself and all
similarly situated individuals, Plaintiff v. City of Petaluma,
Defendant, Case No. 3:18-cv-02102 (N.D. Cal., April 6, 2018).
Petaluma is a city in Sonoma County, California, part of the
North Bay sub-region of the San Francisco Bay Area, located 37 mi
north of San Francisco.[BN]
The Plaintiff appears PRO SE.
PGE COMPANY: Appeal on Nixed Trojan Class Actions Still Pending
---------------------------------------------------------------
Portland General Electric Company (PGE) continues to face
investment recovery class actions regarding its Trojan nuclear
power plant. These proceedings are still subject to a decision in
the plaintiffs' appeal pending in the Court of Appeals for the
State of Oregon, according to the Company's Form 10-K filed with
the U.S. Securities and Exchange Commission on February 16. 2018,
for the fiscal year ended December 31, 2017.
In 1993, PGE closed the Trojan nuclear power plant (Trojan) and
sought full recovery of, and a rate of return on, its Trojan
costs in a general rate case filing with the Public Utility
Commission of Oregon (OPUC). In 1995, the OPUC issued a general
rate order that granted the Company recovery of, and a rate of
return on, 87% of its remaining investment in Trojan.
Numerous challenges and appeals were subsequently filed in
various state courts on the issue of the OPUC's authority under
Oregon law to grant recovery of, and a return on, the Trojan
investment. In 2007, following several appeals by various
parties, the Oregon Court of Appeals issued an opinion that
remanded the matter to the OPUC for reconsideration.
In 2003, in two separate legal proceedings, lawsuits were filed
against PGE on behalf of two classes of electric service
customers: Dreyer, Gearhart and Kafoury Bros., LLC v. Portland
General Electric Company, Marion County Circuit Court; and Morgan
v. Portland General Electric Company, Marion County Circuit
Court. The class action lawsuits seek damages totaling US$260
million, plus interest, as a result of the Company's inclusion,
in prices charged to customers, of a return on its investment in
Trojan.
In August 2006, the Oregon Supreme Court (OSC) issued a ruling
ordering the abatement of the class action proceedings. The OSC
concluded that the OPUC had primary jurisdiction to determine
what, if any, remedy could be offered to PGE customers, through
price reductions or refunds, for any amount of return on the
Trojan investment that the Company collected in prices.
In 2008, the OPUC issued an order (2008 Order) that required PGE
to provide refunds of US$33 million, including interest, which
were completed in 2010. Following appeals, the 2008 Order was
upheld by the Oregon Court of Appeals in February 2013 and by the
OSC in October 2014.
In June 2015, based on a motion filed by PGE, the Marion County
Circuit Court (Circuit Court) lifted the abatement and in July
2015, the Circuit Court heard oral argument on the Company's
motion for Summary Judgment. In March 2016, the Circuit Court
entered a general judgment that granted the Company's motion for
Summary Judgment and dismissed all claims by the plaintiffs. On
April 14, 2016, the plaintiffs appealed the Circuit Court
dismissal to the Court of Appeals for the State of Oregon.
Briefing on the appeal is now complete, with a Court of Appeals
decision pending.
The Company said, "PGE believes that the October 2, 2014 OSC
decision and the recent Circuit Court decisions have reduced the
risk of a loss to the Company in excess of the amounts previously
recorded and discussed above. However, because the class actions
remain subject to a decision in the appeal, management believes
that it is reasonably possible that such a loss to the Company
could result. As these matters involve unsettled legal theories
and have a broad range of potential outcomes, sufficient
information is currently not available to determine the amount of
any such loss."
Portland General Electric Company, an integrated electric utility
company, engages in the generation, wholesale purchase,
transmission, distribution, and retail sale of electricity in the
state of Oregon. The Company operates seven thermal plants;
seven hydroelectric plants; and two wind farms. It was founded
in 1930 and is headquartered in Portland, Oregon.
PHILIP MORRIS: Dismissal of Dead Persons' Suit Affirmed
-------------------------------------------------------
The District Court of Appeal of Florida, First District, issued
an Opinion affirming the judgment of the Trial Court denying
Plaintiff's Motion for Leave to Amend the Complaints and
Substitute New Party in the case captioned IN RE 73 ENGLE-RELATED
CASES, No. 1D16-2651 (Fla. Dist. App.).
The trial court dismissed the cases and in doing so denied
plaintiffs' counsel's request for leave to amend the complaints
and substitute new party plaintiffs into the actions. Plaintiffs'
counsel appealed these decisions.
Plaintiffs' counsel in this case filed 73 Engle, personal injury
lawsuits on behalf of dead persons just before the statute of
limitations expired in January 2008. Most of the named plaintiffs
had been dead for many years, some for only months, but none were
alive when counsel filed lawsuits in their names. Once the
defendant tobacco companies discovered in 2015 that the
plaintiffs had been dead from the start of the cases, they moved
to dismiss them.
The Fla. App. finds no error in the trial court's decision to
dismiss the personal injury lawsuits filed by plaintiffs' counsel
on behalf of dead plaintiffs. The lawsuits filed here were
nullities because a dead person cannot file and maintain a
lawsuit. It is a basic legal truth that unless an in rem
proceeding is before the court, a cause of action must be
conducted by or opposed by a person' recognized under the laws of
this state.
Before filing suit, plaintiffs' counsel had ethical obligations
to confirm the allegations it made and to receive authorization
from clients to file the cases. The Florida Supreme Court gave
plaintiffs' counsel the same time and opportunity as other
counsel to investigate their clients' claims, to find survivors
if necessary, and to join relevant estates and personal
representatives to lawsuits as needed during the year allotted to
file Engle-progeny lawsuits.
But plaintiffs' counsel didn't verify their claims before filing
them. Instead, they alleged patently false things, such as that
the plaintiffs' injuries and losses were continuing and would be
suffered into the future. Then, once the cases were filed, they
let the cases sit on the court's docket for almost eight years,
still without checking with their clients or their estates to
verify the allegations and amend them if necessary. Plaintiffs'
counsel ultimately left it to the court to flush out the truth
about their supposed clients and their non-viable claims.
And even then, once plaintiffs' counsel had disclosed to the
court that the plaintiffs had been dead since before the case was
filed, plaintiffs' counsel did not proactively correct their
allegations. They waited instead for the defendants to seek
dismissal. Under these circumstances, it is easy to conclude that
allowing plaintiffs' counsel to amend their pleadings would be an
abuse of the privilege to amend and prejudicial to the
defendants.
State legal policy didn't require the court to breathe first-life
into these cases in 2016. And dismissal under these circumstances
actually furthered justice. The Fla. App. therefore cannot
conclude that the trial court abused its discretion by dismissing
these never-valid complaints with prejudice some eight years
after the expiration of the statute of limitations.
The Court finds no error in the court's decision dismissing the
seventy-three personal injury cases filed by plaintiffs' counsel
on behalf of deceased plaintiffs and denying leave for
plaintiffs' counsel to amend the complaints and substitute new
party plaintiffs.
A full-text copy of the Fla. App.'s February 8, 2018 Opinion is
available at https://tinyurl.com/y8gbxz4u from Leagle.com.
Norwood S. Wilner -- nwilner@wilnerfirm.com -- and Richard J.
Lantinberg of The Wilner Firm, 444 East Duval Street, Floor 2.
Jacksonville, Florida 32202.
Charles Farah -- cfarah@farahandfarah.com -- and Eddie Farah --
efarah@farahandfarah.com -- of Farah & Farah, P.A., Jacksonville;
and Michael Jaffe -- jaffe@whafh.com -- of Wolf Haldenstein Adler
Freeman & Herz LLP, New York, for Appellants.
Geoffrey J. Michael -- geoffrey.michael@arnoldporter.com -- and
Daphne O'Connor daphne.o'connor@arnoldporter.com -- of Arnold &
Porter Kaye Scholer LLP, Washington, D.C., for Appellee Philip
Morris USA Inc.; Charles R.A. Morse of Jones Day, New York, for
Appellee R.J. Reynolds Tobacco Company.
PILGRIM'S PRIDE: Discovery Underway in Broiler Chicken Lawsuit
--------------------------------------------------------------
Discovery in the case, In re Broiler Chicken Antitrust
Litigation, Case No. 1:16-cv-08637, is scheduled to be completed
by June 13, 2019, according to Pilgrim's Pride Corporation's Form
10-K filed with the U.S. Securities and Exchange Commission for
the fiscal year ended December 31, 2017.
Between September 2, 2016 and October 13, 2016, a series of
purported class action lawsuits styled as In re Broiler Chicken
Antitrust Litigation, Case No. 1:16-cv-08637 were filed with the
U.S. District Court for the Northern District of Illinois against
the Company and 13 other producers by and on behalf of direct and
indirect purchasers of broiler chickens alleging violations of
federal and state antitrust and unfair competition laws. The
complaints seek, among other relief, treble damages for an
alleged conspiracy among defendants to reduce output and increase
prices of broiler chickens from the period of January 2008 to the
present. The plaintiffs have filed three consolidated amended
complaints: one on behalf of direct purchasers and two on behalf
of distinct groups of indirect purchasers. The defendants,
including the Company, filed motions to dismiss these actions.
On November 20, 2017, the court denied all pending motions to
dismiss with the exception of certain state-law claims by
indirect purchasers that were dismissed or narrowed in scope.
Discovery is proceeding and is currently scheduled to be complete
by June 13, 2019.
In December 2017 and January 2018 four individual complaints
(Affiliated Foods, Inc. v. Claxton Poultry Farms, Inc., Case No.
1:17-cv-08850; Winn Dixie Stores, Inc. v. Koch Foods, Inc., Case
No. 1:18-cv-00245; Sysco Corp. v. Tyson Foods Inc., et al; Case
No. 1:18-cv-00700; and U.S. Foods Inc. v. Tyson Foods Inc., et
al; Case No. 1:18-cv-00702) were filed, mirroring the class
action complaints. The class complaints were answered in January
2018. A schedule for answers to the individual complaints will
be set and the court has indicated it intends to coordinate
scheduling for the individual complaints with the class
complaints to the greatest extent possible.
Pilgrim's Pride is one of the largest chicken producers in the
world, with operations in the United States, Mexico and Puerto
Rico.
PILGRIM'S PRIDE: Motion to Dismiss "Fuller" Action Still Pending
----------------------------------------------------------------
The U.S. District Court for the District of Colorado has yet to
make a decision on a bid to dismiss the putative class action
with George James Fuller as the lead plaintiff, according to
Pilgrim's Pride Corporation's Form 10-K filed with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2017.
On October 10, 2016, Patrick Hogan, acting on behalf of himself
and a putative class of persons who purchased shares of the
Company's stock between February 21, 2014 and October 6, 2016,
filed a class action complaint in the U.S. District Court for the
District of Colorado against the Company and its named executive
officers.
The complaint alleges, among other things, that the Company's SEC
filings contained statements that were rendered materially false
and misleading by the Company's failure to disclose that (i) the
Company colluded with several of its industry peers to fix prices
in the broiler-chicken market as alleged in the In re Broiler
Chicken Antitrust Litigation, (ii) its conduct constituted a
violation of federal antitrust laws, (iii) the Company's revenues
during the class period were the result of illegal conduct and
(iv) that the Company lacked effective internal control over
financial reporting, as well as stating that the Company's
industry was anticompetitive.
On April 4, 2017, the court appointed another stockholder, George
James Fuller, as lead plaintiff. On April 26, 2017, the court
set a briefing schedule for the filing of an amended complaint
and the defendants' motion to dismiss.
On May 11, 2017, the plaintiff filed an amended complaint, which
extended the end date of the putative class period to November
17, 2016. Defendants moved to dismiss on June 12, 2017, and the
plaintiff filed its opposition on July 12, 2017. Defendants
filed their reply on August 1, 2017. The Colorado Court's
decision on the motion is pending.
Pilgrim's Pride is one of the largest chicken producers in the
world, with operations in the United States, Mexico and Puerto
Rico.
PILGRIM'S PRIDE: Still Defends Oklahoma Suit by Chicken Farmers
---------------------------------------------------------------
Pilgrim's Pride Corporation continues to defend itself against a
class action lawsuit in Oklahoma by chicken farmers, according to
the Company's Form 10-K filed with the U.S. Securities and
Exchange Commission for the fiscal year ended December 31, 2017.
On January 27, 2017, a purported class action on behalf of
broiler chicken farmers was brought against the Company and four
other producers in the Eastern District of Oklahoma alleging,
among other things, a conspiracy to reduce competition for grower
services and depress the price paid to growers.
Plaintiffs allege violations of the Sherman Act and Packers and
Stockyards Act and seek, among other relief, treble damages. The
complaint was consolidated with a subsequently filed consolidated
amended class action complaint styled as In re Broiler Chicken
Grower Litigation, Case No. CIV-17-033-RJS. The defendants,
including the Company, jointly moved to dismiss the consolidated
amended complaint on September 9, 2017.
During oral argument on January 19, 2018, the court considered
and granted other defendants' motions challenging jurisdiction
and, as a result, granted the plaintiffs time to determine
whether they will proceed forward with the case or dismiss the
lawsuit.
According to the 10-K report, the plaintiffs were given until
February 2, 2018 to inform the district court of their plan
course of action, and oral argument on remaining motions will be
scheduled as necessary.
In addition, on August 29, 2017, the Company filed a Motion to
Enforce Confirmation Order Against Growers in the U.S. Bankruptcy
Court in the Eastern district of Texas, seeking an order
enjoining the In re Broiler Chicken Grower Litigation plaintiffs
from pursuing the class action against the Company. A hearing on
this motion was held in October 2017 and a second was scheduled
for February 13, 2018. A court decision on this motion is
pending.
No further updates were provided in the Company's SEC report.
Pilgrim's Pride is one of the largest chicken producers in the
world, with operations in the United States, Mexico and Puerto
Rico.
PRUDENTIAL FINANCIAL: To Appeal Class Status Order in "Huffman"
---------------------------------------------------------------
Prudential Insurance filed a petition with the Third Circuit
Court of Appeals in February 2018, seeking permission to appeal
the class certification decision in the case, Huffman v. The
Prudential Insurance Company of America, according to Prudential
Financial, Inc.'s Form 10-K filed with the U.S. Securities and
Exchange Commission for the fiscal year ended December 31, 2017.
In September 2010, Huffman v. The Prudential Insurance Company of
America, a purported nationwide class action brought on behalf of
beneficiaries of group life insurance contracts owned by the
Employee Retirement Income Security Act ("ERISA")-governed
employee welfare benefit plans was filed in the United States
District Court for the Eastern District of Pennsylvania,
challenging the use of retained asset accounts in employee
welfare benefit plans to settle death benefit claims as a
violation of ERISA and seeking injunctive relief and disgorgement
of profits. In July 2011, Prudential Insurance's motion for
judgment on the pleadings was denied.
In February 2012, plaintiffs filed a motion to certify the class.
In April 2012, the court stayed the case pending the outcome of a
case involving another insurer that is before the Third Circuit
Court of Appeals. In August 2014, the court lifted the stay, and
in September 2014, plaintiffs filed a motion seeking leave to
amend the complaint.
In July 2015, the court granted plaintiffs' motion to file an
amended complaint. Plaintiffs' amended complaint added two new
class representatives, a new common law breach of fiduciary duty
claim, and a prohibited transactions claim under Section
406(a)(1)(C) of ERISA. In August 2015, Prudential Insurance
filed its answer to the first amended complaint.
In February 2016, plaintiffs filed a class certification motion.
In September 2016, plaintiffs' motion for class certification was
denied, and in October 2016, plaintiffs filed a motion for
reconsideration. In December 2016, the motion for
reconsideration was denied.
In February 2017, all parties filed motions for summary judgment.
In December 2017, the court granted plaintiffs' motion for
summary judgment as to their breach of fiduciary duty claims
under ERISA, dismissed plaintiffs' state law claim, and denied
the motions for summary judgment on the prohibited transaction
claim.
In December 2017, plaintiffs filed a motion to alter or amend the
prior orders denying class certification.
In January 2018, the court denied in part, and granted in part,
plaintiffs' class certification motion and certified a class
limited to participants in the two employer plans involving the
named plaintiffs.
In February 2018, Prudential Insurance filed a petition with the
Third Circuit Court of Appeals seeking permission to appeal the
class certification decision.
Prudential Financial, a financial services leader with
approximately $1.334 trillion of assets under management as of
June 30, 2017, has operations primarily in the United States,
Asia, Europe and Latin America. Through its subsidiaries and
affiliates, Prudential offers a wide array of financial products
and services, including life insurance, annuities, retirement-
related services, mutual funds, and investment management.
PRUDENTIAL FINANCIAL: Behfarin Class Suit v. Pruco Life Ongoing
---------------------------------------------------------------
The case Behfarin v. Pruco Life remains ongoing, according to
Prudential Financial, Inc.'s Form 10-K filed with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2017.
In July 2017, a putative class action complaint entitled Richard
Behfarin v. Pruco Life Insurance Company was filed in the United
States District Court for the Central District of California,
alleging that the Company imposes charges on owners of universal
life policies to cure defaults and/or reinstate lapses, that are
inconsistent with the applicable universal life policy. The
complaint includes claims for breach of contract, breach of
implied covenant of good faith and fair dealing, and violation of
California law, and seeks unspecified damages along with
declaratory and injunctive relief. In September 2017, the
Company filed its answer to the complaint.
No further updates were provided in the Company's SEC report.
Prudential Financial, a financial services leader with
approximately $1.334 trillion of assets under management as of
June 30, 2017, has operations primarily in the United States,
Asia, Europe and Latin America. Through its subsidiaries and
affiliates, Prudential offers a wide array of financial products
and services, including life insurance, annuities, retirement-
related services, mutual funds, and investment management.
PRUDENTIAL FINANCIAL: "Pica" Case Ruling Affirmed in Part
---------------------------------------------------------
In the case, PICA et al. v. Citibank N.A., the Appellate Division
of the Supreme Court of New York, First Department, affirms in
part a June 2017 decision denying, in part, Citibank's motion to
dismiss the case, according to Prudential Financial, Inc.'s Form
10-K filed with the U.S. Securities and Exchange Commission for
the fiscal year ended December 31, 2017.
Specifically, in January 2018, the First Department: (i) affirmed
the trial court's ruling upholding the breach of contract claim
based on the trustee's failure to give written notice of breaches
of representations and warranties; and (ii) reversed the trial
court's order that sustained plaintiffs' breach of contract and
implied covenant of good faith and fair dealing claims concerning
servicing violations.
The case is a Residential Mortgage-Backed Securities ("RMBS")
Trustee Litigation.
In February 2015, defendants filed a motion to dismiss the
amended complaint.
In September 2015, the court issued a decision involving
Citibank's motion to dismiss: (i) with respect to the PSA trusts,
granting the motion and declining to exercise supplemental
jurisdiction; (ii) with respect to the Indenture trusts, denying
the motion regarding claims for breach of contract, violations of
the Trust Indenture Act of 1939, negligence and breach of
fiduciary duty concerning the duty to avoid conflicts of
interest; and (iii) with respect to the Indenture trusts,
granting the motion to dismiss claims for negligence and breach
of fiduciary duty concerning the duty of care.
In November 2015, the Company, together with other institutional
investors, filed a complaint in New York State Supreme court,
captioned Fixed Income Shares: Series M, et al. v. Citibank N.A.,
asserting claims relating to the PSA trusts.
In February 2016, Citibank filed a motion to dismiss the state
court complaint.
In August 2016, plaintiffs filed an amended complaint in state
court, and in September 2016, Citibank filed a motion to dismiss
the amended complaint and plaintiffs filed in federal court a
motion for class certification.
In April 2017, Citibank filed a motion for summary judgment in
the federal court action.
In June 2017, the state court issued a decision regarding
defendants' motion to dismiss the amended complaint: (i)
sustaining plaintiffs' breach of contract claims concerning
Citibank's pre-Event of Default obligations; (ii) dismissing
plaintiffs' breach of contract claims concerning Citibank's post-
Event of Default obligations; (iii) sustaining plaintiffs'
implied covenant of good faith and fair dealing claim; (iv)
dismissing plaintiffs' claim for breach of fiduciary duty; and
(v) dismissing plaintiffs' claim for breach of duty to avoid
conflicts of interest.
In July 2017, Citibank filed an appeal to the Appellate Division
of the Supreme Court of New York, First Department, from the June
2017 decision denying, in part, its motion to dismiss.
In January 2018, the First Department: (i) affirmed the trial
court's ruling upholding the breach of contract claim based on
the trustee's failure to give written notice of breaches of
representations and warranties; and (ii) reversed the trial
court's order that sustained plaintiffs' breach of contract and
implied covenant of good faith and fair dealing claims concerning
servicing violations.
Prudential Financial, a financial services leader with
approximately $1.334 trillion of assets under management as of
June 30, 2017, has operations primarily in the United States,
Asia, Europe and Latin America. Through its subsidiaries and
affiliates, Prudential offers a wide array of financial products
and services, including life insurance, annuities, retirement-
related services, mutual funds, and investment management.
PRUDENTIAL FINANCIAL: Class Status Bid Pending in Lawsuit v. DB
---------------------------------------------------------------
Plaintiffs in the case, PICA et al. v. Deutsche Bank, et al., has
filed motions for class certification in the state and federal
court actions in January 2018, according to Prudential Financial,
Inc.'s Form 10-K filed with the U.S. Securities and Exchange
Commission for the fiscal year ended December 31, 2017.
The case is a Residential Mortgage-Backed Securities ("RMBS")
Trustee Litigation.
In April 2015, defendants filed a motion to dismiss the amended
complaint. In January 2016, the court issued a decision
involving Deutsche Bank's motion to dismiss: (i) with respect to
the PSA trusts, granting the motion and declining to exercise
supplemental jurisdiction; and (ii) with respect to the Indenture
trusts, granting leave for plaintiffs to file an amended
complaint.
In February 2016, the Company, together with other institutional
investor plaintiffs, filed an amended complaint in federal court.
In March 2016, the Company, together with other institutional
investors, filed a complaint in California State Superior court,
captioned BlackRock Balanced Capital Portfolio (FI), et al. v.
Deutsche Bank Trust Company Americas, asserting claims relating
to the PSA trusts.
In May 2016, the Company, together with other institutional
investors, filed an amended class action complaint in California
State Superior court.
In July 2016, defendant filed a motion to dismiss the amended
federal court complaint. In August 2016, defendant filed a
demurrer and motion to strike the amended state court class
action complaint.
In October 2016, the court issued a decision regarding
defendants' motion to dismiss: (i) sustaining plaintiffs' breach
of contract claims concerning the trust at issue; (ii) dismissing
plaintiffs' tort claims for breach of fiduciary duty; and (iii)
dismissing plaintiffs' claims of breach of duty to avoid
conflicts of interest. The court granted plaintiffs' leave to
file an amended complaint.
In January 2017, the federal court issued a decision involving
Deutsche Bank's motion to dismiss: (i) granting the motion with
respect to plaintiff's conflicts of interest claims; and (ii)
denying the motion with respect to plaintiffs' representations-
and-warranties claims, servicer-notification claims, event-of-
default claims and Trust Indenture Act claims.
In February 2017, the court issued a decision regarding
defendants' motion to dismiss the amended complaint: (i)
sustaining plaintiffs' breach of contract claims concerning the
failure to remedy known servicing violations as to all sixty-two
trusts at issue; (ii) sustaining plaintiffs' breach of contract
claims concerning the failure to enforce seller representation
and warranty claims as to forty-one trusts, and dismissing such
claims as to the remaining twenty-one trusts; (iii) dismissing
plaintiffs' claim for breach of fiduciary duty; and (iv)
dismissing plaintiffs' claim for breach of duty to avoid
conflicts of interest.
In January 2018, plaintiffs filed motions for class certification
in the state and federal court actions.
Prudential Financial, a financial services leader with
approximately $1.334 trillion of assets under management as of
June 30, 2017, has operations primarily in the United States,
Asia, Europe and Latin America. Through its subsidiaries and
affiliates, Prudential offers a wide array of financial products
and services, including life insurance, annuities, retirement-
related services, mutual funds, and investment management.
PRUDENTIAL FINANCIAL: Court Denies Class Status Bid in HSBC Suit
----------------------------------------------------------------
The court has denied, in February 2018, plaintiffs' motion for
class certification in the case, PICA et al. v. HSBC, et al.,
according to Prudential Financial, Inc.'s Form 10-K filed with
the U.S. Securities and Exchange Commission for the fiscal year
ended December 31, 2017.
The case is a Residential Mortgage-Backed Securities ("RMBS")
Trustee Litigation.
In January 2015, defendants filed a motion to dismiss the amended
complaint.
In June 2015, the court granted in part, and denied in part,
defendants' motion to dismiss the complaint for failure to state
a claim and granted leave to file an amended complaint.
In July 2015, plaintiffs filed an amended complaint.
In January 2017, plaintiffs filed a motion seeking class
certification and appointing class representatives and class
counsel.
In February 2018, the court denied plaintiffs' motion for class
certification.
Prudential Financial, a financial services leader with
approximately $1.334 trillion of assets under management as of
June 30, 2017, has operations primarily in the United States,
Asia, Europe and Latin America. Through its subsidiaries and
affiliates, Prudential offers a wide array of financial products
and services, including life insurance, annuities, retirement-
related services, mutual funds, and investment management.
PRUDENTIAL FINANCIAL: Claims in PICA v USBank Narrowed
------------------------------------------------------
In the Residential Mortgage-Backed Securities ("RMBS") Trustee
Litigation filed against U.S. Bank N.A., the court has denied the
plaintiffs' motion for class certification in the federal court
action, according to Prudential Financial, Inc.'s Form 10-K filed
with the U.S. Securities and Exchange Commission for the fiscal
year ended December 31, 2017.
In February 2015, defendants filed a motion to dismiss the
amended complaint in the RMBS case, PICA et al. v. U.S. Bank N.A.
In May 2015, the court granted defendants' motion to dismiss: (i)
declining to exercise supplemental jurisdiction regarding claims
involving the PSA trusts; and (ii) granting leave for plaintiffs
to file an amended complaint asserting direct claims involving
the Indenture trusts.
In June 2015, the Company, together with other institutional
investors, filed a complaint in New York State Supreme court,
captioned BlackRock Balanced Capital Portfolio (FI), et al. v.
U.S. Bank Nat'l Ass'n, asserting claims relating to the PSA
trusts.
In July 2015, plaintiffs filed with the court an amended
complaint asserting direct claims relating to the Indenture
trusts.
In August 2015, defendant filed a motion to dismiss the amended
class action complaint in the federal court action. In September
2015, defendant filed a motion to dismiss the class action
complaint in the state court action.
In February 2016, the federal district court issued a decision
involving U.S. Bank's motion to dismiss: (i) upholding the breach
of contract and Trust Indenture Act claims; and (ii) dismissing
the breach of fiduciary duty and extra-contractual claims.
In September 2016, the Company together with other institutional
investor plaintiffs filed an amended complaint in state court.
In October 2016, U.S. Bank filed a motion to dismiss the amended
state court complaint.
In November 2016, plaintiffs filed in federal court motions
seeking class certification and appointing class representatives
and class counsel.
In January 2018, the state court issued a decision on U.S. Bank's
motion to dismiss the amended complaint: (i) upholding the
representation and warranty breach of contract claims for all 770
trusts; (ii) upholding the breach of contract claims related to
servicer violations for 77 trusts; and (iii) dismissing the
breach of fiduciary duty, negligence, and implied covenant of
good faith and fair dealing claims.
In January 2018, the court denied plaintiffs' motion for class
certification in the federal court action.
Prudential Financial, a financial services leader with
approximately $1.334 trillion of assets under management as of
June 30, 2017, has operations primarily in the United States,
Asia, Europe and Latin America. Through its subsidiaries and
affiliates, Prudential offers a wide array of financial products
and services, including life insurance, annuities, retirement-
related services, mutual funds, and investment management.
PRUDENTIAL FINANCIAL: Class Cert. Bid Pending in PICA vs Wells
--------------------------------------------------------------
A bid for class certification filed in January 2018 remains
pending in the federal court action related to the case, PICA et
al. v. Wells Fargo Bank, et al., according to Prudential
Financial, Inc.'s Form 10-K filed with the U.S. Securities and
Exchange Commission for the fiscal year ended December 31, 2017.
The case is a Residential Mortgage-Backed Securities ("RMBS")
Trustee Litigation.
In April 2015, defendants filed a motion to dismiss the amended
complaint in the case, PICA et al. v. Wells Fargo Bank, et al.
In January 2016, the court issued a decision involving Wells
Fargo's motion to dismiss: (i) with respect to the PSA trusts,
granting the motion and declining to exercise supplemental
jurisdiction; and (ii) with respect to the Indenture trusts,
granting leave for plaintiffs to file an amended complaint.
In February 2016, the Company, together with other institutional
investor plaintiffs, filed an amended complaint in federal court.
In March 2016, the Company, together with other institutional
investors, filed a complaint in California State Superior court,
captioned BlackRock Balanced Capital Portfolio (FI), et al. v.
Wells Fargo Bank, Nat'l Ass'n., asserting claims relating to the
PSA trusts.
In May 2016, defendant filed a motion to dismiss or to stay the
state court action. In July 2016, defendant filed a motion to
dismiss the amended complaint filed previously in federal court.
In October 2016, the court dismissed the state court complaint.
In December 2016, the Company, together with other institutional
investors, filed a complaint in New York State Court, captioned
BlackRock Core Bond Portfolio, et al. v. Wells Fargo Bank, Nat'l
Ass'n., asserting claims related to the PSA trusts.
In March 2017, the federal court issued an order concerning
defendant's motion to dismiss as to the Indenture trusts: (i)
sustaining plaintiffs' breach of contract claims; plaintiffs'
claims for violations of the Trust Indenture Act of 1939; and
plaintiffs' claims for breach of the duty to avoid conflicts of
interest; and (ii) dismissing plaintiffs' claims for breach of
fiduciary duty as duplicative of the sustained contract claims.
In May 2017, Wells Fargo filed a third-party complaint for
contribution against PGIM, Inc., alleging that, in the event the
Prudential plaintiff Funds prevail on their claims for damages
against Wells Fargo, PGIM must contribute to the award due to
PGIM's alleged breach of fiduciary duties owed to the Funds in
managing the Funds' RMBS investments.
In June 2017, Wells Fargo filed a motion to dismiss the complaint
in New York State Court.
In October 2017, PGIM filed a motion to dismiss the third-party
complaint filed by Wells Fargo seeking contribution.
In January 2018, plaintiffs filed a motion for class
certification in the federal court action.
Prudential Financial, a financial services leader with
approximately $1.334 trillion of assets under management as of
June 30, 2017, has operations primarily in the United States,
Asia, Europe and Latin America. Through its subsidiaries and
affiliates, Prudential offers a wide array of financial products
and services, including life insurance, annuities, retirement-
related services, mutual funds, and investment management.
PRUDENTIAL FINANCIAL: "Bouder" Settlement Has Final Ct. Approval
----------------------------------------------------------------
The Honorable Claire C. Cecchi granted final approval to the
settlement of, and dismissed, the cases:
-- JEFFREY BOUDER, et al., on behalf of themselves, the
general public, and all others similarly situated,
Plaintiffs, vs PRUDENTIAL FINANCIAL, INC., THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA,1 et al., Defendants; and
-- JIM WANG, individually and on behalf of all others
similarly situated, Plaintiffs, vs PRUDENTIAL FINANCIAL,
INC., THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,1 DOES,
Defendants.
The consolidated lawsuits share the same docket number, Civil
Action No. 06-04359 (CCC) (MF).
Prudential is paying $12,500,000 in full and final settlement of
the Lawsuits. Payment of the Gross Settlement Amount will be used
to pay: (a) the claims presented by Covered Agents who submit a
timely and valid Qualifying Claim Form; (b) Class Counsel's fees
and litigation costs; (c) Enhancement Payments to the plaintiffs
who filed the lawsuit; (d) Incentive Awards to Opt-In Plaintiffs
who become Participating Claimants and to Named Plaintiffs who
timely opted into the FLSA collective action as a party plaintiff
and did not subsequently opt-out; and (e) the costs of
administering the Settlement.
Prudential Financial said in its Form 10-Q Report filed with the
Securities and Exchange Commission for the quarterly period ended
September 30, 2017, that the Court issued an order granting
preliminary approval of the parties' class action settlement in
the case Bouder v. PFI.
In June 2017, the parties filed a consent motion for preliminary
approval of the class action settlement. In August 2017, the
Court issued an order granting preliminary approval of the
parties' class action settlement.
Class counsel:
John Halebian, Esq.
Adam C. Mayes, Esq.
LOVELL STEWART HALEBIAN JACOBSON LLP
420 Lexington Avenue, Suite 2400
New York, New York 10170
Telephone: (212) 500-5010
- and -
JERRY K. CIMMET
Attorney at Law
177 Bovet Road, Suite 600
San Mateo, California 94402
Telephone: (650) 866-4700
- and -
Kenneth Kaufmann Lehn, Esq.
WINNE, BANTA, BASRALIAN & KAHN, P.C.
Court Plaza South - East Wing, Suite 101
21 Main Street
P.O. Box 647
Hackensack, New Jersey 07602
Telephone: (201) 487-3800
- and -
Peter Muhic, Esq.
KESSLER TOPAZ MELTZER & CHECK, LLP
Monique Myatt Galloway, Esq.
280 King of Prussia Road
Radnor, Pennsylvania 19087
Telephone: (610) 667-7706
- and -
John M. Kelson, Esq.
LAW OFFICES OF JOHN M. KELSON
483 Ninth Street, Suite 200
Oakland, California 94607
Telephone: (510) 465-1326
Counsel for Prudential are:
David B. Ross, Esq.
Lorie Almon, Esq.
Gena Usenheimer, Esq.
SEYFARTH SHAW LLP
620 Eighth Avenue
New York, New York 10018
Telephone: (212) 218-5500
Additional information on the settlement is available at:
http://www.pficlassactionsettlement.com/
QUADIS INC: M. Miller & Son Sues over Junk Fax Ads
--------------------------------------------------
M. MILLER & SON, LLC Individually, and on behalf of all others
similarly situated, the Plaintiff, v. QUADIS, INC., Case No.
3:18-cv-05568 (D.N.J., April 5, 2018), seeks to recover damages,
and declaratory and injunctive relief in violation of the
Telephone Consumer Protection Act and the New Jersey Consumer
Fraud Act.
The Congress enacted the TCPA because they believed that
unsolicited fax advertisements improperly shift advertising costs
to the unwilling fax recipients and interfere with the use of fax
machines by these recipients, who are consumers and businesses.
Specifically, Congress found that "this type of telemarketing is
problematic for two reasons. First, it shifts some of the costs
of advertising from the sender to the recipient. Second, it
occupies the recipient's facsimile machine so that it is
unavailable for legitimate business messages while processing and
printing the junk fax."
The Defendants have recently sent out thousands of unsolicited
fax advertisement in violation of the TCPA and CFA.[BN]
Attorneys for Plaintiff:
Ari H. Marcus, Esq.
MARCUS & ZELMAN, LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Telephone: (732) 695 3282
Facsimile: (732) 298 6256
RAPID CAPITAL: Hardin Sues Over Illegal Telemarketing Calls
-----------------------------------------------------------
Tenley Hardin, individually and on behalf of all others similarly
situated, Plaintiff, v. Rapid Capital Funding, LLC and Does 1
through 10, inclusive, and each of them, Defendant, Case No. 18-
cv-01815, (C.D. Cal., March 5, 2018), seeks statutory damages and
injunctive relief resulting from violations of the Telephone
Consumer Protection Act and the Rosenthal Fair Debt Collection
Practices Act.
Around May 2017, Defendant contacted Hardin on his cellular
telephone number in an attempt to solicit their services for
which Plaintiff incurs a charge for incoming calls. Hardin did
not give Rapid Capital prior express consent to receive calls
using an automatic telephone dialing system or an artificial or
prerecorded voice.
Rapid Capital Funding -- www.rapidcapitalfunding.com -- is a
direct funder that offers a variety of financing solutions for
the small business community that are available nationwide. [BN]
Plaintiffs are 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
mgeorge@toddflaw.com
abacon@toddflaw.com
ROSE CASTLE: Faces "Esteban" Suit in E.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Rose Castle Party
Services Corp. The case is styled as Emerio Najera Esteban,
individually and on behalf of others similarly situated,
Plaintiff v. Rose Castle Party Services Corp. doing business as:
Rose Castle Corporation, Rose Castle Catering Inc. doing business
as: Rose Castle Corporation, Rose Castle Hall Inc. doing business
as: Rose Castle Corporation, Abraham Rosenberg also known as:
Juda Abe Rosenberg and Chaya Braun, Defendants, Case No. 1:18-cv-
02062 (E.D. N.Y., April 6, 2018).
Rose Castle Corporation is a Reception Venue in Brooklyn, NY.[BN]
The Plaintiff appears PRO SE.
RTG Furniture: Faces "Yeomans" Suit in M.D. Florida
---------------------------------------------------
A class action lawsuit has been filed against R.T.G. Furniture
Corp. The case is styled as Conor S. Yeomans, individually and on
behalf of all others similarly situated, Plaintiff v. R.T.G.
Furniture Corp., Defendant, Case No. 8:18-cv-00825-SDM-JSS (M.D.
Fla., April 6, 2018).
RTG Furniture Corporation retails home furniture. The Company
offers sofas, chairs, dining room sets, bedroom furniture, lamps,
table sets, ottomans, chaises, and other related products. RTG
Furniture serves customers throughout the United States.[BN]
The Plaintiff is represented by:
Craig C. Marchiando, Esq.
Consumer Litigation Associates P.C.
763 J Clyde Morris Blvd Ste 1-A
Newport News, VA 23601
Tel: (757) 930-3660
Fax: (757) 930-3662
Email: craig@clalegal.com
- and -
Elizabeth W. Hanes, Esq.
Consumer Litigation Associates P.C.
763 J Clyde Morris Blvd Ste 1-A
Newport News, VA 23601
Tel: (757) 930-3660
Fax: (757) 930-3662
Email: elizabeth@clalegal.com
- and -
Leonard A. Bennett, Esq.
Consumer Litigation Associates P.C.
763 J Clyde Morris Blvd Ste 1-A
Newport News, VA 23601
Tel: (757) 930-3660
Fax: (757) 930-3662
Email: lenbennett@clalegal.com
- and -
Marc Reed Edelman, Esq.
Morgan & Morgan, PA
One Tampa City Center Ste 700
201 N Franklin Street
Tampa, FL 33602-5157
Tel: (813) 223-5505
Fax: (813) 257-0572
Email: MEdelman@forthepeople.com
SABRE CORP: Still Defends Antitrust Class Action Suit
-----------------------------------------------------
Sabre Corporation still defends against claims in a putative
class action lawsuit on antitrust matters, according to the
Company's Form 10-K filed with the U.S. Securities and Exchange
Commission for the fiscal year ended December 31, 2017.
The Company said, "In July 2015, a putative class action lawsuit
was filed against us and two other GDSs, in the United States
District Court for the Southern District of New York. The
plaintiffs, who are asserting claims on behalf of a putative
class of consumers in various states, are generally alleging that
the GDSs conspired to negotiate for full content from the
airlines, resulting in higher ticket prices for consumers, in
violation of various federal and state laws. The plaintiffs
sought an unspecified amount of damages in connection with their
state law claims, and they requested injunctive relief in
connection with their federal claim.
"In July 2016, the court granted, in part, our motion to dismiss
the lawsuit, finding that plaintiffs' state law claims are
preempted by federal law, thereby precluding their claims for
damages. The court declined to dismiss plaintiffs' claim seeking
an injunction under federal antitrust law. The plaintiffs may
appeal the court's dismissal of their state law claims upon a
final judgment. We believe that the losses associated with this
case are neither probable nor estimable and therefore have not
accrued any losses as of December 31, 2017. We may incur
significant fees, costs and expenses for as long as this
litigation is ongoing. We intend to vigorously defend against
the remaining claims."
Sabre is a technology solutions provider to the global travel and
tourism industry. Sabre operates through two business segments:
(i) Travel Network, its global business-to-business travel
marketplace for travel suppliers and travel buyers, and (ii)
Airline and Hospitality Solutions, an extensive suite of leading
software solutions primarily for airlines and hoteliers.
SABRE CORP: Court Drops Class Claims over Cybersecurity Incident
----------------------------------------------------------------
The United States District Court for the Central District of
California has granted Sabre Corporation's motion to dismiss a
putative class action lawsuit related to a cybersecurity
incident, according to the Company's Form 10-K filed with the
U.S. Securities and Exchange Commission for the fiscal year ended
December 31, 2017.
The Company said, "In July 2017, a putative class action lawsuit
was filed against us in the United States District Court for the
Central District of California. The plaintiffs are asserting
various claims under state law, including tort, contract and
statutory claims, on behalf of a putative class of individuals
residing in the United States and whose personally identifiable
information allegedly was disclosed, in connection with the
cybersecurity incident involving unauthorized access to payment
information contained in a subset of hotel reservations process
through the HS Central Reservation System. The plaintiffs are
seeking equitable relief and an unspecified amount of damages in
connection with their claims.
"In December 2017, we filed a motion to dismiss the lawsuit with
prejudice. On January 25, 2018, the court granted our motion and
dismissed the plaintiffs' claims in their entirety, with
prejudice. The plaintiffs may appeal the court's decision, but
must file the appeal within 30 days of the ruling. We believe
that the losses associated with this case are neither probable
nor estimable and therefore have not accrued any losses as of
December 31, 2017. We may incur significant fees, costs and
expenses for as long as this litigation is ongoing. We intend to
vigorously defend against this matter."
Sabre is a technology solutions provider to the global travel and
tourism industry. Sabre operates through two business segments:
(i) Travel Network, its global business-to-business travel
marketplace for travel suppliers and travel buyers, and (ii)
Airline and Hospitality Solutions, an extensive suite of leading
software solutions primarily for airlines and hoteliers.
SABRE CORP: Still Defends 2 Consumer Class Suits over Hotel Taxes
-----------------------------------------------------------------
Sabre Corporation continues to defend itself against two consumer
class action lawsuits related to hotel occupancy taxes, according
to the Company's Form 10-K filed with the U.S. Securities and
Exchange Commission for the fiscal year ended December 31, 2017.
The Company said, "Two consumer class action lawsuits have been
filed against us in which the plaintiffs allege that we made
misrepresentations concerning the description of the fees
received in relation to facilitating hotel reservations.
Generally, the consumer claims relate to whether Travelocity
provided adequate notice to consumers regarding the nature of our
fees and the amount of taxes charged or collected. One of these
lawsuits is pending in Texas state court, where the court is
currently considering the plaintiffs' motion to certify a class
action; and the other is pending in federal court, but has been
stayed pending the outcome of the Texas state court action. We
believe the notice we provided was appropriate and therefore have
not accrued any losses related to these cases."
Sabre is a technology solutions provider to the global travel and
tourism industry. Sabre operates through two business segments:
(i) Travel Network, its global business-to-business travel
marketplace for travel suppliers and travel buyers, and (ii)
Airline and Hospitality Solutions, an extensive suite of leading
software solutions primarily for airlines and hoteliers.
SAMSUNG ELECTRONICS: Court Narrows Claims in Smartwatch Suit
------------------------------------------------------------
The United States District Court for the District of New Jersey
granted in part and denied in part Defendant Samsung Electronics
America, Inc.'s (Samsung) motion to dismiss Plaintiff David
Noble's (Plaintiff) First Amended Class Action Complaint in the
case captioned DAVID W. NOBLE, individually and on behalf of
others similarly situated, Plaintiff, v. SAMSUNG ELECTRONICS
AMERICA, INC., Defendant, Civil Action No. 15-3713, (D.N.J.).
Samsung made several public statements about the Smartwatch's
battery life. It claimed on its website that the Smartwatch's
battery would typically last 24 to 48 hours without being
recharged, though the claim was removed from the website in early
2015 without explanation.
Plaintiff's Purchase of the Smartwatch and Battery Issues
He paid $199 for the product and entered into a two-year
agreement with AT&T to provide 3G mobile telecommunication
technology on the Smartwatch, for approximately $10 per month.
Upon using the watch, however, Noble noticed that the battery
only lasted about four hours until he had to recharge it. This
happened even though his usage was normal and within the typical
parameters of the product's intended use.
Plaintiff filed an Amended Complaint on behalf of himself and a
putative class of other purchasers of the Smartwatch, asserting
causes of action for (1) fraud under the New Jersey Consumer
Fraud Act (NJCFA), (2) common law fraud; (3) negligent
misrepresentation; (4) breach of express warranty; (5) breach of
the implied warranty of merchantability; and (6) unjust
enrichment.
The New Jersey Consumer Fraud Act Claim (Count One)
Defendant argues that Georgia law, not New Jersey law, should
apply to the consumer fraud claims. Plaintiff replies that a
conflict of law analysis is premature and New Jersey law applies
regardless.
Plaintiff contends that New Jersey law should apply because
Samsung is headquartered in New Jersey, because Samsung maintains
its Executive Customer Relations center in New Jersey, and
because Samsung's "offensive conduct emanated from New Jersey.
But the mere fact that a company is headquartered in New Jersey
or that unlawful conduct emanated from New Jersey will not
supersede the numerous contacts with the consumer's home state
for purposes of determining which state has the most significant
relationship under Restatement Section.
Plaintiff has not identified anything linking this case to New
Jersey other than the fact that Defendant is based there and its
misrepresentations emanated from there. That is not enough where,
as here, all other pertinent activities occurred in Georgia. As
such, Georgia law applies to Plaintiff's consumer fraud claim.
The NJCFA claim is dismissed.
Common Law Fraud (Count Two)
Defendant argues that Plaintiff has failed to allege with
specificity his claim that Samsung defrauded him. Plaintiff
contends he pled his fraud claim with sufficient particularity by
alleging that Samsung knowingly misrepresenting how long the
Smartwatch would last on a single charge.
The Court agrees with Plaintiff.
Plaintiff pleads facts sufficient to satisfy the heightened
burden under Rule 9(b). He alleges that misleading claims
appeared in advertisements, press releases, and on Samsung's
website, and he pleads with specificity that those claims
included the assertion that the Smartwatch battery would last up
to two days without needing to be charged. He alleges that these
statements were made in early November 2014 and he claims that he
viewed them prior to purchasing his Smartwatch. These allegations
are sufficient to put Defendant on notice of the 'precise
misconduct with which it is charged.
And Plaintiff alleges that Samsung knew or believed the
statements were false because the battery was technologically
incapable of supporting the advertised battery life. Plaintiff
has pled facts sufficient to survive a motion to dismiss on Count
Two.
Negligent Misrepresentation (Count Three)
To state a claim for negligent misrepresentation, a plaintiff
must show (1) an incorrect statement, (2) negligently made, (3)
upon which plaintiff justifiably relied, and (4) resulted in
economic loss or injury as a consequence of that reliance.
Plaintiff has adequately pled that he viewed specific misleading
claims by Samsung on its website, in advertisements, and in press
releases that represented that the Smartwatch battery would last
at least 24 hours without needing to be recharged, and that he
relied on those claims in deciding to purchase the Smartwatch.
Plaintiff has pled facts sufficient to survive a motion to
dismiss on Count Three.
Breach of Express or Implied Warranty (Counts Four and Five)
Defendant moves to dismiss Plaintiff's express and implied
warranty claims on the basis that Samsung's written warranty
expressly disclaims the express warranty and the implied warranty
of merchantability.
The Court disagrees.
The implied warranty of merchantability provides that a merchant
warrants that goods sold are fit for the ordinary purposes for
which the goods are used. To be merchantable, a good need not be
exactly as the buyer expected" but must satisfy a minimum level
of quality.
Samsung contends that Plaintiff who describes the purpose of a
Smartwatch as independently functioning as a phone and running
applications including GPS, does not allege that the Smartwatch
is not fit for any of those purposes. But this argument ignores
the central purpose of a smartwatch: to function as a mobile
device capable of operating as a phone and running applications
including GPS while lasting throughout the day, presumably all
while attached to a person's wrist. A smartwatch that needs to be
recharged every three to four hours is inherently not a mobile
device and does not satisfy a minimum level of quality. Plaintiff
has sufficiently pled his claim for breach of the implied
warranty of merchantability and for breach of express warranty.
Counts Four and Five may go forward.
Unjust Enrichment (Count Six)
Defendant moves to dismiss Plaintiff's unjust enrichment count on
the ground that Plaintiff did not purchase the Smartwatch
directly from Samsung. Plaintiff contends that there is no
privity requirement under New Jersey law. The Court agrees with
Samsung.
Defendant cites to nine cases10 in this District which take the
position that under New Jersey law, an indirect purchaser cannot
succeed on a claim for unjust enrichment. Weske v. Samsung Elecs.
Am. Inc., No, 10-4811, 2012 WL 833003, at * 7 (D.N.J. Mar. 12,
2012).
The Court therefore follows the substantial majority of courts in
this District in holding that a plaintiff cannot bring an unjust
enrichment claim in the absence of a direct relationship between
the parties. As there is no direct relationship between Plaintiff
and Samsung, Plaintiff's unjust enrichment claim is dismissed.
Accordingly, Defendant's motion to dismiss is granted as to
Counts One and Six, and denied as to Counts Two, Three, Four, and
Five.
A full-text copy of the District Court's February 8, 2018 Opinion
is available at https://tinyurl.com/y8z9kcz2 from Leagle.com.
DAVID W. NOBLE, individually and on behalf of others similarly
situated, Plaintiff, represented by JOSEPH J. DEPALMA --
depalma@litedepalma.com -- LITE, DEPALMA, GREENBERG, LLC &
BENJAMIN DAVID ELGA -- belga@cuneolaw.com -- CUNEO GILBERT &
LADUCA LLP.
SAMSUNG ELECTRONICS AMERICA, INC., Defendant, represented by
SAMUEL PARKER MOULTHROP -- smoulthrop@riker.com -- RIKER, DANZIG,
SCHERER, HYLAND, PERRETTI, LLP & STEPHANIE R. WOLFE, --
swolfe@riker.com -RIKER DANZIG.
SHIRE PLC: Appeals from Dismissal of ELAPRASE Suits Still Pending
-----------------------------------------------------------------
The appeals of the State of Sao Paulo and the Brazilian Public
Attorney's office on the dismissed class action against the Shire
plc's Brazilian affiliate remain pending, according to Shire
plc's Form 10-K filed with the U.S. Securities and Exchange
Commission for the fiscal year ended December 31, 2017.
On September 24, 2014, Shire's Brazilian affiliate, Shire
Farmaceutica Brasil Ltda, was served with a lawsuit brought by
the State of Sao Paulo and in which the Brazilian Public
Attorney's office has intervened alleging that Shire is obligated
to provide certain medical care including ELAPRASE for an
indefinite period at no cost to patients who participated in
ELAPRASE clinical trials in Brazil, and seeking recoupment to the
Brazilian government for amounts paid on behalf of these patients
to date, and moral damages associated with these claims.
On May 6, 2016, the trial court judge ruled on the case and
dismissed all the claims under the class action, which was
appealed.
On February 20, 2017, the Court of Appeals in Sao Paulo issued
the final decision on merit in favor of Shire and dismissed all
the claims under the class action.
Shire said in its Form 10-Q Report for the quarterly period ended
September 30, 2017, that the Public Prosecutor on July 12, 2017,
filed an appeal addressed to the Supreme Court on the Court of
Appeals of Sao Paulo's final decision on merit in favor of Shire
Farmaceutica Brasil Ltda.
In its Form 10-K report, the Company said that during the last
quarter of 2017, the State of Sao Paulo filed appeals addressed
to the Superior Court of Justice and to the Supreme Court.
Shire plc is a global biotechnology company focused on serving
people with rare diseases and other highly specialized
conditions.
SHUTTERFLY INC: "Taylor" Class Action over Groupon Deal Ongoing
---------------------------------------------------------------
Shutterfly, Inc. is defending itself against a purported class
action complaint filed by Megan Taylor related to a Groupon deal,
according to the Company's Form 10-K filed with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2017.
On December 12, 2017, Megan Taylor filed a purported class action
complaint on behalf of herself and other customers that is
currently in U.S. District Court for the Northern District of
California. Taylor alleges that Shutterfly misrepresents a deal
it currently offers through Groupon because it does not allow
purchasers of the Groupon offer to combine or "stack" it with
other promotional codes offered by Shutterfly.
The Company said, "We believe the suit is without merit and
intend to vigorously defend against it."
Shutterfly, Inc. manufactures and retails personalized products
and services primarily in the United States, Canada, and the
European Community. The Company operates through Consumer and
Shutterfly Business Solutions segments. It was founded in 1999
and is headquartered in Redwood City, California.
SIMM ASSOCIATES: Wins Summary Judgment in "Maximillano"
-------------------------------------------------------
The United States District Court for the Southern District of
Florida issued an Order granting Defendant's Motion for Summary
Judgment in the case captioned SERGIO MAXIMILIANO, Plaintiff, v.
SIMM ASSOCIATES, INC., Defendant, Case No. 17-cv-80341-
BLOOM/Valle (S.D. Fla.).
Plaintiff, Sergio Maximiliano (Plaintiff), has filed a putative
class action against Defendant Simm Associates, Inc. (Simm)
asserting claims for purported violations of the Fair Debt
Collection Practices Act (FDCPA). Plaintiff's claims are based
upon a September 12, 2016 demand letter sent by Simm seeking
payment of a consumer debt.
PayPal Credit
PayPal Credit allows consumers to make online purchases without
using a credit card by offering an open-ended credit plan from
Comenity. PayPal Credit works like a virtual credit card in that
Comenity pays the merchant on the consumer's behalf, and then
seeks repayment from the consumer for all extensions of credit it
has been authorized to charge to the consumer's account.
In this case, Plaintiff opened a Comenity account that was
branded and marketed as PayPal Credit.
A court may grant a motion for summary judgment if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.
Plaintiff has filed suit under the FDCPA, which is a consumer-
protection statute intended to eliminate abusive debt collection
practices' to ensure that debt collectors who refrain from using
abusive debt collection practices are not competitively
disadvantaged, and to promote consistent state action in
protecting consumers against debt collection abuses.
Section 1692g
Plaintiff first argues that Simm violated Section 1692g(a)(2) by
failing to disclose the name of the creditor to whom the debt is
owed" in that the demand letter identifies Comenity as the
original creditor and PayPal Credit as the "client" but fails to
identify Comenity as the current creditor.
Simm argues that it complied with the requirements and spirit of
the FDCPA by disclosing the actual creditor, Comenity, and by
also identifying PayPal Credit as the client the name the
consumer would recognize.
The Court agrees with Simm.
In this case, Simm's demand letter left no room for confusion in
the eyes of the least sophisticated consumer. The letter allowed
the consumer to easily identify the nature of the debt by
disclosing PayPal Credit as Simm's client, Comenity as the
original creditor, the amount of the debt, and the PayPal Credit
account number. The first paragraph of the demand letter states:
"Your account has been forwarded to Simm's office for
collections. Significantly, the top portion of the letter
identifies the complete PayPal Credit account number, eliminating
any doubt as to which account has been forwarded to Simm for
collections."
In addition, the demand letter informs Plaintiff that Simm's
client, PAYPAL CREDIT has authorized it to accept a discounted
payoff to settle the account in full. Id. Again, the letter
references PayPal Credit the name by which Comenity has been
transacting business with Plaintiff on the PayPal Credit account.
When read as a whole, the demand letter clearly identifies the
creditor in the way the consumer is accustomed to transacting
business with it, PayPal Credit, while still identifying the
technical name of the creditor, Comenity, and while providing
additional details, such as balance and account number, that
dispel any doubt as to the nature of the debt.
Nowhere in Section 1692g is there a requirement that such
verbiage be used. All that is required is that the debt collector
disclose the creditor to whom the debt is owed and for the
reasons explained above, the Court finds that Simm adequately
satisfied this requirement.
Section 1692e
Plaintiff next seeks to hold Simm liable under Section 1692e for
using a false, deceptive, or misleading representation in its
demand letter when it did not identify Comenity as the current
creditor.
The demand letter's statement that PayPal Credit has authorized
Simm to collect payment on its behalf is consistent with the
consumer's experience of issuing payments only to PayPal Credit.
Put simply, payment to PayPal Credit is all the consumer has
known since the inception of the credit relationship. For that
reason, the least sophisticated consumer receiving the letter at
issue would not be concerned about the possibility of being
defrauded or paying the incorrect creditor. Critically, analyzing
the letter as a whole, it is neither confusing or misleading to
the least sophisticated consumer. Thus, the Court finds as a
matter of law that there does not exist a violation of Section
1692e.
Accordingly, Defendant's Motion for Summary Judgment is granted.
A full-text copy of the District Court's February 8, 2018 Order
is available at https://tinyurl.com/ya2v5nks from Leagle.com.
Sergio Maximiliano, Plaintiff, represented by Leo Wassner
Desmond. 5070 Highway A1A Ste D Vero Beach, FL 32963-1229
Simm Associates, Inc., Defendant, represented by Dale Thomas
Golden -- dgolden@gsgfirm.com -- Golden Scaz Gagain, PLLC &
Joseph Charles Proulx -- jproulx@gsgfirm.com -- Golden Scaz
Gagain.
SIX FLAGS: Still Defends 4 Suits over Credit, Debit Card Info
-------------------------------------------------------------
Six Flags Entertainment Corporation still defends itself against
four potential class action complaints related to credit or debit
card information on customers' receipts, according to the
Company's Form 10-K filed with the U.S. Securities and Exchange
Commission for the fiscal year ended December 31, 2017.
During 2017, four potential class action complaints were filed
against Six Flags Entertainment Corporation or one of its
subsidiaries. Complaints were filed on August 11, 2017 in the
Circuit Court of Lake County, Illinois; on September 1, 2017 in
the United States District Court for the Northern District of
Georgia; on September 11, 2017 in the Superior Court of Los
Angeles County, California; and on November 30, 2017 in the
Superior Court of Ocean County, New Jersey.
The complaints allege that the Company, in violation of federal
law, printed more than the last five digits of a credit or debit
card number on customers' receipts, and/or the expiration dates
of those cards. A willful violation may subject a company to
liability for actual damages or statutory damages between US$100
and US$1,000 per person, punitive damages in an amount determined
by a court, and reasonable attorneys' fees, all of which are
sought by the plaintiffs. The complaints do not allege that any
information was misused.
The Company said, "We intend to vigorously defend ourselves
against this litigation. Since this litigation is in an early
stage, the outcome is currently not determinable and a reasonable
estimate of loss or range of loss cannot be made."
Six Flags Entertainment Corporation the largest regional theme
park operator in the world based on the number of parks we
operate. Of our 20 regional theme and water parks, 17 are located
in the United States, two are located in Mexico and one is
located in Montreal, Canada. The company is based in Grand
Prairie, Texas.
SOUTHARD CORP: Charvat Sues Over Illegal Telemarketing Calls
--------------------------------------------------------------
Philip Charvat, on behalf of himself and others similarly
situated, Plaintiff, v. The Southard Corporation, Defendant, Case
No. 18-cv-00190 (S.D. Ohio, March 6, 2018) seeks statutory
damages and injunctive relief pursuant to the Telephone Consumer
Protection Act.
Southard is a company that sells residential renovation services,
including window replacement services. It initiated telemarketing
calls to a residential telephone number Mr. Charvat had
registered on the National Do Not Call Registry for the purposes
of advertising their goods and services. [BN]
The Plaintiff is represented by:
Brian K. Murphy, Esq.
Jonathan P. Misny, Esq.
MURRAY MURPHY MOUL & BASIL LLP
1114 Dublin Road
Columbus, OH 43215
Tel: (614) 488-0400
Fax: (614) 488-0401
Email: murphy@mmmb.com
misny@mmmb.com
- and -
Anthony I. Paronich, Esq.
Edward A. Broderick, Esq.
BRODERICK & PARONICH, P.C.
99 High St., Suite 304
Boston, MA 02110
Tel: (508) 221-1510
Email: anthony@broderick-law.com
ted@broderick-law.com
- and -
Matthew P. McCue, Esq.
THE LAW OFFICE OF MATTHEW P. MCCUE
1 South A venue, Suite 3
Natick, MA 01760
Tel: (508) 655-1415
Email: mmccue@massattorneys.net
SPECTRA ENERGY: Derivative Claim v General Partner Still Pending
----------------------------------------------------------------
Spectra Energy Partners (DE) GP, LP, continues to defend itself
against a putative class action lawsuit asserting derivative
claim in the Delaware Court of Chancery, according to Spectra
Energy Partners, LP's Form 10-K filed with the U.S. Securities
and Exchange Commission for the fiscal year ended December 31,
2017.
The case is Paul Morris v. Spectra Energy Partners (DE) GP, LP,
Spectra Energy Corp, Defendants, and Spectra Energy Partners, LP,
Nominal Defendant.
The Company said, "A putative class action lawsuit asserting
direct and derivative claims was filed in the Delaware Court of
Chancery in March of 2016 by Paul Morris (Plaintiff), a
unitholder of Spectra Energy Partners. The claims in the lawsuit
relate to a transaction in October 2015 whereby 33% ownership
interests in the Sand Hills and Southern Hills pipelines were
sold by us to Spectra Energy and, subsequent to that transaction,
Spectra Energy contributed those ownership interests to DCP
Midstream, LLC, a joint venture in which Spectra Energy owns a
50% ownership interest. The lawsuit alleges that the
consideration paid to us by Spectra Energy in exchange for those
ownership interests was approximately US$525 million less than
the purported value of such ownership interests. The lawsuit
asserted direct and derivative claims of breach of contract and
breach of the implied duty of good faith and fair dealing against
the General Partner and direct and derivative claims against
Spectra Energy of tortious interference with the Second Amended
and Restated Agreement of Limited Partnership of Spectra Energy
Partners, LP dated as of November 1, 2013, as amended by
Amendment No. 1 dated as of July 2, 2015 (our partnership
agreement in effect at the time). Spectra Energy Partners is
also named as a "nominal" defendant in the lawsuit for the
derivative claims.
"On January 13, 2017, Plaintiff withdrew all of his direct claims
in the lawsuit. On June 27, 2017, the Delaware Court of Chancery
issued a Memorandum and Opinion dismissing the derivative claims
of tortious interference against Spectra Energy and the breach of
the implied duty of good faith and fair dealing against the
General Partner, leaving only the derivative claim for breach of
our partnership agreement in effect at the time against the
General Partner pending. The relief sought in the complaint
includes rescission of the transaction, damages, interest and
attorneys' fees."
Spectra Energy Partners, LP operates as an investment arm of
Spectra Energy Corp. Spectra Energy Partners, LP, through its
subsidiaries, engages in the transportation of natural gas
through interstate pipeline systems, and the storage of natural
gas in underground facilities in the United States. Spectra
Energy Partners (DE) GP, LP, operates as the general partner to
Spectra Energy Partners, LP. The company is based in Houston,
Texas.
STEARNS LENDING: Illegally Collects Loan Interest, Wooden Says
--------------------------------------------------------------
GLORIA J. WOODEN, individually and on behalf of a class of
similarly situated persons, the Plaintiff, v. STEARNS LENDING,
LLC, the Defendant, Case No. 2018-CH-04467 (Ill. Cir. Ct., April
5, 2018), seeks to recover all unlawfully collected post-payment
interest, disgorgement and restitution of all such post-payment
interest revenue gained through Defendant's unjust enrichment at
the expense of Wooden and the Class.
The case is a class action for breach of contract, and for unjust
enrichment. The Defendant has a systemic practice of collecting
post-payment interest on loans insured by the Federal Housing
Administration without first complying with the uniform
provisions of the promissory notes and the FHA regulations
governing these loans. As a result, Defendant has unfairly
collected and unjustly retained hundreds of millions of dollars
in post-payment interest in an unlawful manner. The Defendant
breached its contract with Plaintiff and other class members and
was unjustly enriched through its unlawful practice. Post-payment
interest refers to interest that a lender collects after the
borrower has paid the full unpaid principal of the loan.
For example, if a borrower pays off the loan in full on August 5,
and the lender continues collecting interest for the remainder of
August, the lender has collected post-payment interest from the
borrower. Any interest collected after the borrower makes payment
of the full unpaid principal is post-payment interest.
Stearns Lending is an American wholesale, retail and
correspondent lender. Stearns is one of the largest mortgage
lenders in the US and the fifth-largest privately held lender
nationwide.[BN]
The Plaintiff is represented by:
Gloria J. Wooden, Esq.
Arthur C. Czaja, Esq.
THE LAW OFFICES OF ARTHUR C. CZAJA AND ASSOC.
7521 N. Milwaukee Avenue
Niles, IL 60714
Telephone: (847) 647 2106
Facsimile: (847) 647 2057
E-mail: arthur@czajalawoffices.com
T. ROWE PRICE: Still Defends ERISA Class Lawsuit in Maryland
------------------------------------------------------------
T. Rowe Price Group, Inc. still defends itself against a putative
class suit related to alleged violations of the Employee
Retirement Income Security Act (ERISA), according to the
Company's Form 10-K filed with the U.S. Securities and Exchange
Commission for the fiscal year ended December 31, 2017.
On February 14, 2017, T. Rowe Price Group, Inc., T. Rowe Price
Associates, Inc., T. Rowe Price Trust Company, current and former
members of the management committee, and trustees of the T. Rowe
Price U.S. Retirement Program were named as defendants in a
lawsuit filed in the United States District Court for the
District of Maryland. The lawsuit alleges breaches of ERISA's
fiduciary duty and prohibited transaction provisions on behalf of
a class of all participants and beneficiaries of the T. Rowe
Price 401(k) Plan from February 14, 2011, to the time of
judgment. The plaintiffs are seeking certification of the
complaint as a class action.
No further updates were provided in the Company's SEC report.
The Company said, "T. Rowe Price believes the claims are without
merit and is vigorously defending the action. This matter is in
the early stages of litigation and we cannot predict the eventual
outcome or whether it will have a material negative impact on our
financial results, or estimate the possible loss or range of loss
that may arise from any negative outcome."
T. Rowe Price Group, Inc. is a publicly owned investment manager.
The firm provides its services to individuals, institutional
investors, retirement plans, financial intermediaries, and
institutions. The firm was previously known as T. Rowe Group,
Inc. and T. Rowe Price Associates, Inc. The Company was founded
in 1937 and is based in Baltimore, Maryland.
TARGET CORPORATION: Times and Smith Seek Back Pay
-------------------------------------------------
CARNELLA TIMES and ERVING SMITH, on behalf of themselves and all
others similarly situated, and THE FORTUNE SOCIETY, INC., the
Plaintiffs, v. TARGET CORPORATION, the Defendant, Case No. 1:18-
cv-02993 (S.D.N.Y., April 5, 2018), seeks to recover back pay
accruing as a result of a delay in hiring Plaintiffs and Class
Members caused by the illegal policies and practices.
In this class action complaint, the Plaintiffs allege that Target
-- one of the largest private retail corporations in the United
States, which owns and operates over 1800 stores nationwide and
employs over 300,000 workers annually -- has in the past and
continues to utilize a job applicant screening process that
systematically eliminates thousands of qualified African
Americans and Latinos from jobs based on their race or national
origin in violation of Title VII of the Civil Rights Act of 1964,
as amended 42 U.S.C. section 2000e et seq.
At issue is Target's use of criminal background checks to screen
applicants for prior convictions, many of which are unrelated to
the job sought by the applicant or occurred long before the
individual's application for employment at Target to the
detriment of thousands of African American and Latino job
applicants.
Target has also systematically eliminated from consideration job
applicants who it contends "falsified" their criminal histories
in their applications without probing the nature of any
discrepancy between the application and the result of the
criminal history search. The jobs at issue in this case are
hourly and entry-level non-exempt positions. They include jobs
such as food service workers, stockers, cashiers, and cart
attendants. Such jobs could be a source of stable employment for
many individuals who lack formal education or technical job
skills and who are trying to get their lives back on track after
some interaction with the criminal justice system. Such stable
employment has proven to be important in preventing recidivism.
Target's hiring practices and procedures are unlawful under Title
VII because they have a significant adverse impact upon African
Americans and Latinos (who, because of systemic discrimination in
the criminal justice system are arrested and incarcerated at
rates substantially higher than whites), and because these
practices are neither job-related nor consistent with business
necessity.
Target Corporation is the second-largest discount store retailer
in the United States, behind Walmart, and a component of the S&P
500 Index.[BN]
The Plaintiff is represented by:
Adam T. Klein, Esq.
Ossai Miazad, Esq.
Lewis Steel, Esq.
Cheryl-Lyn Bentley, Esq.
Christopher McNerney, Esq.
OUTTEN & GOLDEN LLP
685 Third Avenue, 25th Floor
New York, New York 10017
- and -
Sherrilyn Ifill, Esq.
Samuel Spital, Esq.
Coty Montag, Esq.
NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC.
40 Rector Street, 5th Floor
New York, NY 10006
TENACIOUS TORQUE: "Little" Suit Seeks to Recover Overtime Pay
-------------------------------------------------------------
Ricky Little, individually and on behalf of all similarly
situated employees, Plaintiff, v. Tenacious Torque, LLC and
Robert Bryan Mills, Defendants, Case No. 18-cv-00225 (W.D. Tex.,
March 6, 2018), seeks to recover overtime wages owed, liquidated
damages, reasonable and necessary attorneys' fees, costs, expert
fees, mediator fees, and out-of-pocket expenses under the Fair
Labor Standards Act.
Defendants provide a full range of torque turning services to oil
and natural gas production operators, including monitoring casing
pipe installation and the speed of casing make up on the surface.
Plaintiff worked between 60-80 hours a week almost every week
from December 2016 through February 2018 without receiving time-
and-a-half for each hour that exceeded 40, notes the complaint.
[BN]
Plaintiff is represented by:
Dennis A. Clifford, Esq.
THE CLIFFORD LAW FIRM, PLLC
712 Main Street, Suite 900
Houston, TX 77002
Tel: (713) 999-1833
Fax: (866) 232-0999
Email: dennis@cliffordemploymentlaw.com
TEREX CORP: Bid to Dismiss Securities Class Suit Still Pending
--------------------------------------------------------------
Terex Corporation's motions to dismiss a securities class action
lawsuit are still pending, according to the Company's Form 10-K
filed with the U.S. Securities and Exchange Commission for the
fiscal year ended December 31, 2017.
In 2010, the Company received complaints seeking certification of
class action lawsuits as follows:
* A consolidated class action complaint for violations of
securities laws was filed in the United States District Court,
District of Connecticut on November 18, 2010 and is entitled
Sheet Metal Workers Local 32 Pension Fund and Ironworkers St.
Louis Council Pension Fund, individually and on behalf of all
others similarly situated v. Terex Corporation, et al.
* A stockholder derivative complaint for violation of the
Securities and Exchange Act of 1934, breach of fiduciary duty,
waste of corporate assets and unjust enrichment was filed on
April 12, 2010 in the United States District Court, District of
Connecticut and is entitled Peter Derrer, derivatively on behalf
of Terex Corporation v. Ronald M. DeFeo, Phillip C. Widman,
Thomas J. Riordan, G. Chris Andersen, Donald P. Jacobs, David A.
Sachs, William H. Fike, Donald DeFosset, Helge H. Wehmeier, Paula
H.J. Cholmondeley, Oren G. Shaffer, Thomas J. Hansen, and David
C. Wang, and Terex Corporation.
These lawsuits generally cover the time period from February 2008
to February 2009 and allege, among other things, that certain of
the Company's SEC filings and other public statements contained
false and misleading statements which resulted in damages to the
Company, the plaintiffs and the members of the purported class
when they purchased the Company's securities and that there were
breaches of fiduciary duties. The stockholder derivative
complaint also alleges waste of corporate assets relating to the
repurchase of the Company's shares in the market and unjust
enrichment as a result of securities sales by certain officers
and directors. The complaints seek, among other things,
unspecified compensatory damages, costs and expenses. As a
result, the Company is unable to estimate a possible loss or a
range of losses for these lawsuits. The stockholder derivative
complaint also seeks amendments to the Company's corporate
governance procedures in addition to unspecified compensatory
damages from the individual defendants in its favor.
The Company believes that the allegations in the suits are
without merit, and Terex, its directors and the named executives
will vigorously defend against them. The Company believes that
it has acted, and continues to act, in compliance with federal
securities laws and Delaware law with respect to these matters.
Accordingly, the Company has filed motions to dismiss the
securities lawsuit. The plaintiff in the stockholder derivative
lawsuit has agreed with the Company to put this lawsuit on hold
pending the outcome of the motion to dismiss in connection with
the securities lawsuit. However, the outcome of the lawsuits
cannot be predicted and, if determined adversely, could
ultimately result in the Company incurring significant
liabilities.
Terex is a global manufacturer of lifting and material processing
products and services that deliver lifecycle solutions to
maximize customer return on investment.
TRAVELPORT WORLDWIDE: April 23 Hearing Set for Consumer Suit Pact
-----------------------------------------------------------------
A final approval hearing of the settlement agreement in the
Consumer Antitrust Class Action against Travelport Worldwide
Limited, et al, is set for April 23, 2018, according to the
Company's Form 10-K filed with the U.S. Securities and Exchange
Commission for the fiscal year ended December 31, 2017.
The Company said, "On July 14, 2015 and July 17, 2015,
approximately 24 plaintiffs filed purported class action lawsuits
against us, Amadeus and Sabre in the United States District Court
for the Southern District of New York (Gordon et al. v. Amadeus
IT Group, S.A et al.). A consolidated, amended complaint was
filed on October 2, 2015 (the "Amended Complaint"). The Amended
Complaint alleges violations of the Sherman Act, state antitrust
laws and state consumer protection laws by defendants beginning
in 2006. In particular, the plaintiffs claim there was a
conspiracy among us and the other defendants to impose contract
terms on airlines, which the plaintiffs allege had the effect of
maintaining higher fees and restricting competition.
"On January 15, 2016, the defendants moved to dismiss the Amended
Complaint. On July 6, 2016, the court granted in part and denied
in part defendants' motion thereby dismissing the plaintiffs'
state law claims for damages in full, but declined to dismiss the
plaintiffs' Sherman Act claim, which seeks injunctive relief.
"On November 7, 2017, we entered into a settlement agreement with
the plaintiffs, which, if approved by the court, would resolve
all claims against us. The court granted preliminary approval of
the settlement on December 29, 2017, and will consider final
approval of the settlement at a hearing on April 23, 2018.
"At this time, the outcome of this lawsuit cannot be determined,
nor can we determine whether the court will grant final approval
of the proposed statement."
Travelport Worldwide Limited, together with its subsidiaries,
operates a travel commerce platform that offers distribution,
technology, payment, and other solutions for the travel and
tourism industry in the United States, the United Kingdom, and
internationally. It facilitates travel commerce by connecting
travel providers with online and offline travel buyers in a
business-to-business travel platform. The Company was
incorporated in 2006 and is headquartered in Langley, the United
Kingdom.
TREEHOUSE FOODS: Must Defend Against Investors' Class Action
------------------------------------------------------------
Bonnie Eslinger, writing for Law360, reported that an Illinois
federal judge on February 12, 2018, rejected TreeHouse Foods' bid
to toss a putative class action claiming it deceptively touted
acquisitions of a $2.7 billion ConAgra Foods business and another
food maker as successful, saying the suit adequately alleges the
manufacturer knowingly made false or misleading statements to
investors.
U.S. District Judge Samuel Der-Yeghiayan wrote in his 12-page
opinion that the investors who filed the litigation sufficiently
allege that TreeHouse Foods Inc. made material misstatements.
* * *
The class action case Public Employees' Retirement Systems of
Mississippi v. TreeHouse Foods, Inc., et al., continues,
according to Treehouse Foods, Inc.'s Form 10-K filed with the
U.S. Securities and Exchange Commission for the fiscal year ended
December 31, 2017.
On November 16, 2016, a purported TreeHouse shareholder filed a
putative class action captioned Tarara v. TreeHouse Foods, Inc.,
et al., Case No. 1:16-cv-10632, in the United States District
Court for the Northern District of Illinois against TreeHouse and
certain of its officers. This complaint, amended on March 24,
2017, is purportedly brought on behalf of all purchasers of
TreeHouse common stock from January 20, 2016 through and
including November 2, 2016, asserts claims under Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder and seeks, among other things, damages and
costs and expenses.
Since its initial docketing, the Tarara matter has been re-
captioned as Public Employees' Retirement Systems of Mississippi
v. TreeHouse Foods, Inc., et al., in accordance with the Court's
order appointing Public Employees' Retirement Systems of
Mississippi as the lead plaintiff. The defendants have filed a
motion to dismiss, which has been fully briefed. A status date
for the Public Employees' matter was set for March 8, 2018.
On December 22, 2016, another purported TreeHouse shareholder
filed an action captioned Wells v. Reed, et al., Case No. 2016-
CH-16359, in the Circuit Court of Cook County, Illinois, against
TreeHouse and certain of its officers. This complaint,
purportedly brought derivatively on behalf of TreeHouse, asserts
state law claims against certain officers for breach of fiduciary
duty, unjust enrichment, and corporate waste.
On February 7, 2017, another purported TreeHouse shareholder
filed an action captioned Lavin v. Reed, Case No. 17-cv-01014, in
the Northern District of Illinois, against TreeHouse and certain
of its officers. This complaint, like Wells, is purportedly
brought derivatively on behalf of TreeHouse, and it asserts state
law claims against certain officers for breach of fiduciary duty,
unjust enrichment, abuse of control, gross mismanagement, and
corporate waste.
All three complaints make substantially similar allegations
(though the amended complaint in Tarara now contains additional
detail). Essentially, the complaints allege that TreeHouse,
under the authority and control of the individual defendants: (i)
made certain false and misleading statements regarding the
Company's business, operations, and future prospects; and (ii)
failed to disclose that (a) the Company's private label business
was underperforming; (b) the Company's Flagstone business was
underperforming; (c) the Company's acquisition strategy was
underperforming; (d) the Company had overstated its full-year
2016 guidance; and (e) TreeHouse's statements lacked reasonable
basis. The complaints allege that these actions artificially
inflated the market price of TreeHouse common stock during the
class period, thus purportedly harming investors.
The Company said, "We believe that these claims are without merit
and intend to defend against them vigorously."
Additionally, due to the similarity of the complaints, the
parties in Wells and Lavin have entered stipulations deferring
the litigation until the earlier of (i) the court in Public
Employees' entering an order resolving defendants' anticipated
motion to dismiss therein or (ii) plaintiffs' counsel receiving
notification of a settlement of Public Employees' or until
otherwise agreed to by the Parties. The next status date in
Wells is April 27, 2018. There is no set status date in Lavin at
this time.
TreeHouse Foods, Inc. is a manufacturer of packaged foods and
beverages with more than 50 manufacturing facilities across the
United States, Canada, and Italy that focuses primarily on
private label products for both retail grocery and food away from
home customers.
TRUSTMARK CORP: Class Action Proceedings vs. TNB Still Pending
--------------------------------------------------------------
Trustmark Corporation's principal subsidiary, Trustmark National
Bank (TNB), continues to defend itself in a class action
proceeding related to the collapse of the Stanford Financial
Group, according to the Company's Form 10-K filed with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2017.
The purported class action complaint was filed on August 23, 2009
in the District Court of Harris County, Texas, by Peggy Roif
Rotstain, Guthrie Abbott, Catherine Burnell, Steven Queyrouze,
Jaime Alexis Arroyo Bornstein and Juan C. Olano (collectively,
Class Plaintiffs), on behalf of themselves and all others
similarly situated, naming TNB and four other financial
institutions unaffiliated with Trustmark as defendants. The
complaint seeks to recover (i) alleged fraudulent transfers from
each of the defendants in the amount of fees and other monies
received by each defendant from entities controlled by R. Allen
Stanford (collectively, the Stanford Financial Group) and (ii)
damages allegedly attributable to alleged conspiracies by one or
more of the defendants with the Stanford Financial Group to
commit fraud and/or aid and abet fraud on the asserted grounds
that defendants knew or should have known the Stanford Financial
Group was conducting an illegal and fraudulent scheme.
Plaintiffs have demanded a jury trial. Plaintiffs did not
quantify damages.
In November 2009, the lawsuit was removed to federal court by
certain defendants and then transferred by the United States
Panel on Multidistrict Litigation to federal court in the
Northern District of Texas (Dallas) where multiple Stanford
related matters are being consolidated for pre-trial proceedings.
In May 2010, all defendants (including TNB) filed motions to
dismiss the lawsuit. In August 2010, the court authorized and
approved the formation of an Official Stanford Investors
Committee (OSIC) to represent the interests of Stanford investors
and, under certain circumstances, to file legal actions for the
benefit of Stanford investors. In December 2011, the OSIC filed
a motion to intervene in this action. In September 2012, the
district court referred the case to a magistrate judge for
hearing and determination of certain pretrial issues. In
December 2012, the court granted the OSIC's motion to intervene,
and the OSIC filed an Intervenor Complaint against one of the
other defendant financial institutions. In February 2013, the
OSIC filed a second Intervenor Complaint that asserts claims
against TNB and the remaining defendant financial institutions.
The OSIC seeks to recover: (i) alleged fraudulent transfers in
the amount of the fees each of the defendants allegedly received
from Stanford Financial Group, the profits each of the defendants
allegedly made from Stanford Financial Group deposits, and other
monies each of the defendants allegedly received from Stanford
Financial Group; (ii) damages attributable to alleged
conspiracies by each of the defendants with the Stanford
Financial Group to commit fraud and/or aid and abet fraud and
conversion on the asserted grounds that the defendants knew or
should have known the Stanford Financial Group was conducting an
illegal and fraudulent scheme; and (iii) punitive damages. The
OSIC did not quantify damages.
In July 2013, all defendants (including TNB) filed motions to
dismiss the OSIC's claims. In March 2015, the court entered an
order authorizing the parties to conduct discovery regarding
class certification, staying all other discovery and setting a
deadline for the parties to complete briefing on class
certification issues. In April 2015, the court granted in part
and denied in part the defendants' motions to dismiss the Class
Plaintiffs' claims and the OSIC's claims. The court dismissed
all of the Class Plaintiffs' fraudulent transfer claims and
dismissed certain of the OSIC's claims. The court denied the
motions by TNB and the other financial institution defendants to
dismiss the OSIC's constructive fraudulent transfer claims.
On June 23, 2015, the court allowed the Class Plaintiffs to file
a Second Amended Class Action Complaint (SAC), which asserted new
claims against TNB and certain of the other defendants for (i)
aiding, abetting and participating in a fraudulent scheme, (ii)
aiding, abetting and participating in violations of the Texas
Securities Act, (iii) aiding, abetting and participating in
breaches of fiduciary duty, (iv) aiding, abetting and
participating in conversion and (v) conspiracy. On July 14,
2015, the defendants (including TNB) filed motions to dismiss the
SAC and to reconsider the court's prior denial to dismiss the
OSIC's constructive fraudulent transfer claims against TNB and
the other financial institutions that are defendants in the
action. On July 27, 2016, the court denied the motion by TNB and
the other financial institution defendants to dismiss the SAC and
also denied the motion by TNB and the other financial institution
defendants to reconsider the court's prior denial to dismiss the
OSIC's constructive fraudulent transfer claims. On August 24,
2016, TNB filed its answer to the SAC. On October 20, 2017, the
OSIC filed a motion seeking an order lifting the discovery stay
and establishing a trial schedule.
On November 7, 2017, the court denied the OSIC's motion seeking
class certification and designation of class representatives and
counsel, finding that common issues of fact did not predominate.
The court granted the OSIC's motion to lift the discovery stay
that it had previously ordered.
No further updates were provided in the Company's SEC report.
Trustmark Corporation is a bank holding company headquartered in
Jackson, Mississippi. Through its subsidiaries, Trustmark
operates as a financial services organization providing banking
and financial solutions to corporate institutions and individual
customers through 194 offices in Alabama, Florida, Mississippi,
Tennessee and Texas.
UBER TECHNOLOGIES: Retirement Fund Can File Omnibus Brief
---------------------------------------------------------
The United States District Court for the Northern District of
California permitted Plaintiffs to file an omnibus brief in
opposition to Defendants' Motion to Dismiss the case captioned
IRVING FIREMEN'S RELIEF & RETIREMENT FUND, Individually and on
Behalf of All Others Similarly Situated, Plaintiff, v. UBER
TECHNOLOGIES INC., et al., Defendants, Case No. 4:17-cv-05558-HSG
(N.D. Cal.).
Plaintiff Irving Firemen's Relief & Retirement Fund moved for
permission to file one omnibus brief in opposition to defendants'
motions to dismiss not to exceed 50 pages. The Court, having
considered the papers filed, grants plaintiff's administrative
motion to file an omnibus brief in opposition to defendants'
motions to dismiss not to exceed 50 pages.
A full-text copy of the District Court's February 8, 2018 Order
is available at https://tinyurl.com/yc6f9q9a from Leagle.com.
Irving Firemen's Relief & Retirement Fund, Plaintiff, represented
by Angel Puimei Lau -- alaw@rgrdlaw.com -- Robbins Geller Rudman
Dowd LLP, Brian Edward Cochran -- bcochran@rgrdlaw.com -- Robbins
Geller, et al., Jason A. Forge -- jforge@rgrdlaw.com -- Robbins
Geller Rudman and Dowd LLP, Jeffrey James Stein --
jstein@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, Luke O.
Brooks -- lukeb@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP,
Shawn A. Williams -- shawnw@rgrdlaw.com -- Robbins Geller Rudman
& Dowd LLP, Darryl James Alvarado -- dalvarado@rgrdlaw.com -
Robbins Geller Rudman Dowd LLP, Erika Limpin Oliver --
eoliver@rgrdlaw.com -- Robbins Geller Rudman Dowd LLP & Darren
Jay Robbins -- darrenr@rgrdlaw.com -- Robbins Geller Rudman &
Dowd LLP.
Uber Technologies, Defendant, represented by Alvin Matthew Ashley
-- mashley@irell.com -- Irell & Manella LLP, Andra Barmash Greene
-- agreene@irell.com -- Irell & Manella LLP, David Siegel --
dsiegel@irell.com -- Irell & Manella LLP, Michael David Harbour -
- mharbour@irell.com -- Irell and Manella & Nathaniel H.
Lipanovich -- alfredo@asstlawyers.com -- Irell & Manella LLP.
ULTIMATE SPORTS: Kohen Sues over Unsolicited Text Messages
----------------------------------------------------------
MATTHEW KOHEN, individually and on behalf of all others similarly
situated, the Plaintiff, v. ULTIMATE SPORTS CAMP, LLC, and JUNIOR
ATHLETES, INC, the Defendant, Case No. 1:18-cv-21361-UU (S.D.
Fla., April 5, 2018), seeks to enjoin Defendants' illegal
conduct, which has resulted in an invasion of privacy,
harassment, aggravation, and disruption of the daily lives of
hundreds or thousands of individuals, and statutory damages on
behalf of himself and members of the Class, and any other
available legal or equitable remedies.
The case is a class action alleging violations of the TCPA
resulting from Defendants' unsolicited, harassing, autodialed
text-messages, sent to the cellphones of Plaintiff and the class.
Defendants own and operate sports camps in New Jersey. In its
persistent efforts to solicit business, Defendants regularly
engage in text-message-marketing campaigns, with no regard for
the law or consumers' privacy rights.
The Plaintiff is and the Class member are "persons" as broadly
defined by 47 U.S.C. section 153(39). Defendants, in order to
advertise, promote, and solicit business, obtained the cellphone
numbers of Plaintiff and the Class members. Defendants likely
purchased these numbers from a person or company that buys and
sells consumer data. Regardless of how Defendants obtained the
numbers, Defendants did not obtain the required express written
consent to place calls or send text-messages to Plaintiff or the
Class. Despite lacking the requisite consent, Defendants then
proceeded to send or cause others to send unsolicited
telemarketing text-messages to Plaintiff and the Class, using
automatic telephone dialing equipment.[BN]
The Plaintiff is represented by:
Jordan Haw, Esq.
Kimberly A. Slaven, Esq.
ZEBERSKY PAYNE, LLP
110 S.E. 6th Street, Suite 2150
Ft. Lauderdale, FL 33301
Telephone: (954) 989 6333
Facsimile: (954) 989 7781
E-mail: jshaw@zpllp.com
mperez@zpllp.com
UNITED FEDERAL: Nev. High Court Flips Dismissal of "Castillo"
-------------------------------------------------------------
The Supreme Court of Nevada reversed the District Court's Order
dismissing the case captioned LUCIA CASTILLO, AN INDIVIDUAL,
Appellant, v. UNITED FEDERAL CREDIT UNION, A FEDERAL CREDIT
UNION, Respondent, No. 70151 (Nev.).
The issue in this appeal concerns whether the justice court or
the district court had original jurisdiction over this matter,
and thus, the state Supreme Court is asked whether the district
court erred in granting respondent's motion to dismiss based on
lack of subject matter jurisdiction.
Appellant Lucia Castillo and a co-buyer entered into a vehicle
and security agreement with respondent United Federal Credit
Union. After respondent repossessed and sold the vehicle,
respondent notified appellant that she owed a deficiency balance
in the amount of $6,841.55.
Appellant and the co-buyer, as individuals, filed a complaint
against respondent, alleging that respondent's notice of sale
violated the Uniform Commercial Code (UCC). In the complaint,
appellant further alleged that her case met the prerequisites for
a class action under NRCP 23(a) and that the class was
maintainable under NRCP 23(b).
Appellant argues that the district court erred in dismissing the
action based on lack of subject matter jurisdiction because (1)
the damages of each individual class member should have been
aggregated to determine the amount in controversy, (2)
appellant's claim for statutory damages should have been combined
with the deficiency amount she owed respondent to determine
jurisdiction, and (3) the court had original jurisdiction due to
the injunctive relief appellant requested.
Whether the district court erred in granting respondent's motion
to dismiss based on lack of subject matter jurisdiction
The district court did not err in declining to aggregate putative
class member claims to determine subject matter jurisdiction
Justice courts only have original jurisdiction as specified by
statute, whereas district courts have original jurisdiction in
all cases excluded by law from the original jurisdiction of
justices' courts. In pertinent part, justice courts have original
jurisdiction in actions where the damage claimed does not exceed
$10,000.
The novel issue before the state Supreme Court is whether the
district court should aggregate putative class member claims to
effectively divest the justice court of jurisdiction for class
actions. Other jurisdictions have allowed for aggregation;
however, the state Supreme Court is not persuaded by such
distinguishable authority. Notably, those courts have recognized
the lack of an adequate forum for class actions in their
respective jurisdictions if aggregation was not permitted.
Nevada, unlike other jurisdictions, recognizes that justice
courts have the ability to hear class actions. Accordingly,
because class action members with small claims still have a forum
to litigate, the state Supreme Court distinguishes its state from
other jurisdictions and decline to aggregate individual class
member claims to determine the amount necessary for the district
court to establish subject matter jurisdiction.
Therefore, the state Supreme Court concludes that the district
court did not err by rejecting this claim.
The district court erred in precluding appellant from combining
her claim for statutory damages with the deficiency amount
demanded by respondent to determine subject matter jurisdiction
Appellant sought statutory relief under NRS 104.9625(3)(b), which
states as follows: "If the collateral is consumer goods, a person
that was a debtor or a secondary obligor at the time a secured
party failed to comply with this part may recover for that
failure in any event an amount not less than the credit service
charge plus 10 percent of the principal amount of the obligation
or the time-price differential plus 10 percent of the cash
price."
Accordingly, the appellant could potentially recover $6,330.28 or
$6,140.59, respectively. The Appellant combined her higher
statutory claim for $6,330.28 with the deficiency amount of
$6,841.55 demanded by the respondent to assert that the amount in
controversy was $13,171.83. The district court determined that
NRS 104.9625(4) precluded the appellant from adding the statutory
damages she sought with the deficiency amount respondent claimed.
In this case concerning consumer transactions, the appellant
never sought recovery under NRS 104.9625(2); rather, the
appellant sought recovery under NRS 104.9625(3).
Therefore, the district court erred in determining that the
appellant could not seek elimination of the deficiency and
statutory damages. Accordingly, the appellant could combine her
higher statutory claim with the deficiency amount asserted to
determine the jurisdictional amount. Moreover, irrespective of
whether the monetary threshold was met to establish jurisdiction
with the district court, the court independently acquired
jurisdiction due to the appellant's request for injunctive
relief.
The district court erred in declining to assert original
jurisdiction on the basis that the appellant sought injunctive
relief.
Because the state Supreme Court accept all factual allegations in
the complaint as true and construe all inferences in the
complainant's favor, the appellant alleged actual and threatened
injury. Therefore, in light of pleading injunctive relief, the
state Supreme Court concludes that the district court erred in
granting the respondent's motion to dismiss based on lack of
subject matter jurisdiction. Accordingly, the state Supreme Court
reverses the district court's order and remands this matter to
the district court for further proceedings consistent with this
opinion.
A full-text copy of the state Supreme Court's February 1, 2018
Opinion is available at https://tinyurl.com/ycyek2fn from
Leagle.com.
Robert W. Murphy, 1212 SE 2nd Ave, Fort Lauderdale, FL 33316,
USA, Florida -- michaellehners@yahoo.com, Reno; Nathan R.
Zeltzer, 232 Court St, Reno, NV 89509, USA, for Appellant.
Howard & Howard Attorneys PLLC and James A. Kohl --
Jkohl@howardandhoward.com -- and Robert Hernquist --
Rhernqujst@howardandhoward.com -- Las Vegas, for Respondent.
UNITED FOOD: 6th Cir. Affirms Dismissal of Dues Checkoff Suit
-------------------------------------------------------------
The United States Court of Appeals, Sixth Circuit, affirmed the
dismissing of the complaint as a matter of law in the case
captioned ROBBIE OHLENDORF; SANDRA ADAMS, and all others
similarly situated, Plaintiffs-Appellants, v. UNITED FOOD &
COMMERCIAL WORKERS INTERNATIONAL UNION, LOCAL 876, Defendant-
Appellee, No. 17-1864 (6th Cir.).
The Labor Management Relations Act makes it a crime for an
employer to deduct union dues from an employee's paycheck and for
the union to accept the dues, except if the employee consents by
signing an authorization form, often called a dues checkoff.
Robbie Ohlendorf and Sandra Adams signed dues checkoff
authorizations with their employer in 2013. When they tried to
revoke them three years later, they did not follow the protocol
for revoking their consent, and the union insisted that they do
so. Ohlendorf and Adams sued the union in response.
Section 302 of the Labor Management Relations Act makes it a
crime for an employer to willfully give money to a labor union
and for a labor union to willfully accept money from an employer.
The prohibition contains several exemptions. Pertinent here, the
Act exempts money deducted from the wages of employees in payment
of membership dues in a labor organization if the employer has
received from each employee, on whose account such deductions are
made, a written assignment.
Under the exception, written assignments shall not be irrevocable
for a period of more than one year, or beyond the termination
date of the applicable collective agreement, whichever occurs
sooner.
Ohlendorf and Adams insist that Section 302(e) confers an express
cause of action.
Section 302(e) provides the courts with jurisdiction to enjoin
violations of Section 302 in lawsuits brought under express
private rights of action, as a needed exception to the Clayton
Act and the Norris-LaGuardia Act's ban on labor-dispute
injunctions. Consider a couple examples. Suppose that a union
files a Section 301 lawsuit (for breach of a collective
bargaining agreement) seeking to enforce a provision of a
collective bargaining agreement that violates Section 302.
In that situation, Section 302(e) gives the court the power to
enjoin the union from enforcing the collective bargaining
agreement notwithstanding the Clayton and Norris-LaGuardia Acts.
Anheuser-Busch, Inc. v. Int'l Bhd. of Teamsters, Local 822, 584
F.2d 41 (4th Cir. 1978).
Or suppose that an arbitrator finds that an employer breached a
provision of a collective bargaining agreement and awards damages
to the union. The company might challenge the arbitration award
under the Federal Arbitration Act, 9 U.S.C. Section 10, by
arguing that the provision of the collective bargaining agreement
violates Section 302 and therefore cannot be enforced. In that
situation, the district court may set the arbitration award
aside. Jackson Purchase Rural Elec. Coop. Ass'n v. Local Union
816, Int'l Bhd. of Elec. Workers, 646 F.2d 264(6th Cir. 1981).
And under Section 302(e), it also may enjoin the union from
seeking to enforce the agreement notwithstanding the Clayton and
Norris-LaGuardia Acts.
Ohlendorf and Adams claim that two Supreme Court decisions
already have decided the question in their favor.
Not true.
Local 144 Nursing Home Pension Fund v. Demisay, 508 U.S. 581
(1993), never addressed today's issue. Plus, the claimants lost
the injunction case on the merits anyway, which is why the
opinion merely quotes Section 302(e) but never analyzes whether
it or any other provision creates a private right of action.
Sinclair Refining Co. v. Atkinson, 370 U.S. 195 (1962), is of a
piece, though even less relevant. That claimant too lost on the
merits. And all it does is refer to the language of Section
302(e) in addressing an issue unconnected to this dispute.
Neither case says anything about a money-damages private right of
action.
None of this leaves the employees without recourse. They may wait
for the Attorney General to prosecute the union for violating
Section 302. Or they may ask the Attorney General to seek an
injunction. Or they may file a complaint with the National Labor
Relations Board on the ground that a violation of Section 302 or
a similar statute amounts to an unfair labor practice under the
National Labor Relations Act.
Ohlendorf and Adams separately argue that the union breached its
duty of fair representation under Section 9(a) of the National
Labor Relations Act.
To prove such a claim, the employees must show that the union's
conduct was arbitrary, discriminatory, or in bad faith.
The union's decision to enforce the requirements does not qualify
as bad faith. To demonstrate bad faith, a plaintiff must show
that the union acted with an improper intent, purpose, or motive
encompassing fraud, dishonesty, and other intentionally
misleading conduct.
The employees have not met that standard. They do not allege that
the union's decision to enforce the requirements was misleading
or a product of fraud or dishonesty. The authorization form
signed by each of them spelled out the requirements they would
need to follow to revoke their assignments. In holding the
employees and itself to this contract, the union did not act in
bad faith.
For these reasons, the Sixth Circuit affirms the district court's
judgment.
A full-text copy of the Sixth Circuit's February 1, 2018 Opinion
is available at https://tinyurl.com/y88c66zt from Leagle.com.
ARGUED: Amanda K. Freeman -- akf@nrtw.org -- NATIONAL RIGHT TO
WORK LEGAL DEFENSE FOUNDATION, INC., Springfield, Virginia, for
Appellants.
J. Douglas Korney, LAW OFFICES OF J. DOUGLAS KORNEY, 32300
Northwestern Highway, Suite 200. Farmington Hills, MI 48334 for
Appellee.
ON BRIEF: Amanda K. Freeman, William L. Messenger -- wlm@nrtw.org
-- Glenn M. Taubman -- gmt@nrtw.org -- NATIONAL RIGHT TO WORK
LEGAL DEFENSE FOUNDATION, INC., Springfield, Virginia, for
Appellants.
J. Douglas Korney, LAW OFFICES OF J. DOUGLAS KORNEY, Farmington
Hills, Michigan, for Appellee.
UNITED STATES: Court Dismisses Suit Over Enhanced Penalties
-----------------------------------------------------------
The United States District Court, District of Columbia, dismissed
the complaint in the case captioned OMAR ANCHICO MOSQUERA, et
al., Plaintiffs, v. UNITED STATES OF AMERICA, et al., Defendants,
Civ. No. 17-2160 (UNA)(D.D.C.).
The plaintiffs are federal prisoners who have been convicted
pursuant to the federal drug statutes and whose sentences reflect
the 100 to 1 enhanced penalties for crack cocaine. The plaintiff
allege that such enhanced penalties are racially discriminative
against African Americans.
Of particular importance here is the requirement that the
prospective class representative fairly and adequately protect
the interests of the class. Plaintiffs are without legal
training, and therefore cannot represent the interests of the
proposed class of inmates.
The Court cannot permit any pro se litigant to prosecute a case
in federal court on behalf of others. Therefore, the Court
dismisses the complaint and this civil action without prejudice
and denies the plaintiff's remaining motions without prejudice.
A full-text copy of the District Court's February 1, 2018
Memorandum Opinion is available at https://tinyurl.com/yauh6efr
from Leagle.com.
OMAR ANCHICO MOSQUERA, Plaintiff, pro se.
CALVIN SOLOMON, Plaintiff, pro se.
MARK ANDREWS, Plaintiff, pro se.
TIMOTHY GRIMSLEY, Plaintiff, pro se.
MICHAEL BLAKENSHIP, Plaintiff, pro se.
UNITED STATES: Court Enjoins Removal of Indonesian Christians
-------------------------------------------------------------
The United States District Court for the District of
Massachusetts granted Plaintiffs' Motion for Preliminary
Injunction in the case captioned LIA DEVITRI, et al.,
Petitioners/Plaintiffs, v. CHRIS CRONEN, et al.,
Respondents/Defendants, Civil Action No. 17-11842-PBS (D. Mass.).
Plaintiffs seek a preliminary injunction staying their removal.
Petitioners are 50 Indonesian Christians subject to final Orders
of Removal. Residing with Government permission in New Hampshire
under a humanitarian program called Operation Indonesian
Surrender, they have complied with the conditions of their Orders
of Supervision, some for more than a decade. Last summer, the
Government informed them that the program was being terminated,
and they were ordered to return to Indonesia within sixty days.
Petitioners now seek to file motions to reopen their immigration
proceedings based on changed country conditions, on the ground
that they are likely to face persecution or torture in Indonesia
because of their Christian faith. Challenging their lack of
meaningful access to the motion to reopen procedure as a
violation of the Due Process Clause of the Fifth Amendment and
contrary to the Immigration and Nationality Act (INA) and the
Convention Against Torture (CAT).
The Humanitarian Program
Petitioners are Christian Indonesian nationals who have lived in
New Hampshire for many years (some for over a decade), but are
subject to final Orders of Removal. In 2010, Immigration and
Customs Enforcement (ICE) instituted a humanitarian program
called Operation Indonesian Surrender in New Hampshire.
Fears of Persecution
Petitioners' expert, Jeffrey Winters, Ph.D., states that
Indonesian society has recently faced a rising tide of extremist
Islam. Petitioners have presented evidence that they may face
intimidation, physical harm, and threats to their personal safety
and well-being, based on their Christian religion, if they
returned to Indonesia.
BIA Procedures
Congress created a statutory right for each alien to file a
motion to reopen immigration proceedings. Based on the alleged
changed conditions in Indonesia, Petitioners seek to file motions
to reopen with the Board of Immigration Appeals (BIA). There is
no time limit on the filing of a motion to reopen based on
changed country conditions.
Preliminary Injunction
Legal Standard
In order to be granted a preliminary injunction, a plaintiff must
show the Court that he is likely to succeed on the merits, that
he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public interest.
Likelihood of Success on the Merits
In arguing that Petitioners are not likely to succeed on the
merits, the Government primarily returns to its challenge to this
Court's jurisdiction, which the Court has already rejected.
The Government's central argument is that the motion to reopen
process is an adequate administrative alternative to habeas
corpus relief, and therefore the jurisdiction-stripping language
in 8 U.S.C. Section 1252(g) does not violate the Suspension
Clause of the United States Constitution.9Congress may provide
adequate substitutes for habeas corpus without offending the
Suspension Clause.
Plaintiffs allege that removing Petitioners without giving them
access to the motion to reopen process their core procedural
entitlement violates [the] due process guarantee of the Fifth
Amendment.
Here, there is a statutory right to move to reopen and an
entitlement to not be deported to a country where persecution
would occur. Thus, Petitioners do have a significant interest in
the right to file a motion to reopen and the opportunity to have
their fears of persecution and torture adjudicated before
removal.
For some essential entitlements, only a pre-deprivation
opportunity to be heard will provide sufficient procedural due
process. The legal question here is whether the right to post-
removal consideration of a motion to reopen and motion to stay
meets due process standards in a change of country conditions
case where there is a colorable claim of persecution. In my view,
such a procedure does not meet the requirements of due process
because of the significance of the liberty interests at stake.
Based on the record, the Court finds that Petitioners have proven
a likelihood of success on their due process claim that they will
suffer prejudice through a denial of a meaningful opportunity to
have a motion to reopen and motion to stay ruled on by the BIA
and Court of Appeals prior to removal to a country where they
have a credible fear of persecution.
Irreparable Harm
A preliminary injunction must only issue when the moving party
demonstrates that it would likely suffer irreparable harm before
a decision on the merits could be rendered.
Petitioners have presented unrebutted evidence to show that, if
they were deported to Indonesia, they would face the threat of
persecution or torture. Indeed, Dr. Winters states: "While I am
not able to speak to legal consequences, I wish to express in the
strongest terms that if these Plaintiffs, whose stories are now
well-known in Indonesia, are returned, they are highly likely to
face retribution by the Indonesian authorities for having spoken
out as Christians, and will certainly never be permitted to leave
Indonesia for the U.S. again. The Indonesian government is
extremely sensitive about negative portrayals of the country
abroad, and officials take an especially negative view of
Indonesians who are the source of the criticism."
Petitioners have also submitted evidence that this case has been
covered by the Indonesian press, which has expressly stated the
names of some of the Petitioners and that Evangelical Christians
will be targeted by extremist groups without government
protection.
It is true that there is no individualized evidence concerning
the specific threats each Petitioner faces in Indonesia. The
Court is unfamiliar with the quantum of evidence the BIA demands
to meet that individualized burden, particularly for persons who
left their native country over a decade ago. Still, based on the
record, including the supplemental filings, the Court finds that
Petitioners have presented a sufficient basis for fearing
persecution to demonstrate a motion to reopen is non-frivolous.
The Court further finds that Petitioners have demonstrated a
successful motion to reopen will not necessarily result in a
restoration of immigration status for many.
The Government is, accordingly, stayed from removing any named
Petitioner from the United States until one of the following
conditions occurs:
(1) If any named Petitioner fails to file a motion to reopen
and motion to stay with the BIA or Immigration Court within
ninety days after receiving his or her Afile, the preliminary
injunction will terminate as to that particular Petitioner. If a
named Petitioner fails to file a timely appeal of the Immigration
Court's denial of a motion to reopen to the BIA, the stay shall
terminate as to that particular Petitioner.
(2) If any named Petitioner fails to file a motion for relief
with the First Circuit within seven business days of the BIA
denying his or her motion to reopen, the preliminary injunction
will terminate as to that particular Petitioner.
(3) If an appeal of a denial of a motion to reopen is filed in
the First Circuit within seven business days, the stay will
terminate as to that particular Petitioner unless the First
Circuit orders otherwise.
A full-text copy of the District Court's February 1, 2018
Memorandum and Order is available at https://tinyurl.com/y7nbw437
from Leagle.com.
Lia Devitri, Eva Grasje, Syane Kaloh, John Londa, Meldy
Lumangkun, Martin Lumingkewas, Meive Lumingkewas, Terry Rombot,
Agus Setiawan, Freddy Sombah & Poppy Sombah, Plaintiffs,
represented by Ronaldo Rauseo-Ricupero --
rrauseoricupero@nixonpeabody.com -- Nixon Peabody, LLP, Sydney
Pritchett -- spritchett@nixonpeabody.com -- Nixon & Peabody, LLP,
W. Daniel Deane -- ddeane@nixonpeabody.com -- Nixon Peabody LLP,
Adriana Lafaille -- alafaille@aclum.org -- American Civil
Liberties Union, Anand Balakrishnan -- abalakrishnan@aclu.org
American Civil Liberties Union Foundation Immigrants' Rights
Project, pro hac vice, Gilles R. Bissonnette, American Civil
Liberties Union of New Hampshire, Judy Rabinovitz --
jrabinovitz@aclu.org -- American Civil Liberties Union, pro hac
vice, Lee Gelernt -- lgelernt@aclu.org -- American Civil
Liberties Union Foundation Immigrants' Rights Project, pro hac
vice, Matthew Segal, American Civil Liberties Union, 211 Congress
Street. Boston, MA 02110. & Nathan P. Warecki, Nixon Peabody LLP,
900 Elm Street. Manchester, NH 03101
Chris M. Cronen, Boston Field Office Director for Enforcement and
Removal Operations, U.S. Immigration and Customs Enforcement,
Timothy Stevens, Manchester Sub-Office Director for Enforcement
and Removal Operations, U.S. Immigration and Customs Enforcement
& Elaine C. Duke, Acting Secretary of the U.S. Department of
Homeland Security, Defendants, represented by Rayford A.
Farquhar, United States Attorney's Office, Michael A. Celone,
United States Department of Justice; Civil Division Office of
Immigration Litigation-District Court Section, Michael P. Sady,
United States Attorney's Office & William C. Silvis, United
States Department of Justice.
US BANK: Court Narrows Claims in "Dolegiewicz"
----------------------------------------------
The United States District Court for the Northern District of
Illinois, Eastern Division, issued a Memorandum Opinion and Order
granting in part and denying in part Defendant's Motion to
Dismiss the case captioned MARIUSZ DOLEGIEWICZ, Individually and
on behalf of all others similarly situated, Plaintiff, v. U.S.
BANK TRUST, N.A., as Trustee for LSF9 Master Participation Trust;
and CALIBER HOME LOANS, INC., a Delaware Corporation, Defendants,
Case No. 17 C 4737 (N.D. Ill.).
The Plaintiff, Mariusz Dolegiewicz (Plaintiff), defaulted on his
mortgage loan by failing to make the required payments and
failing to maintain casualty insurance coverage. The loan is
owned by U.S. Bank Trust, N.A. (Trustee) and serviced by Caliber
Home Loans, Inc. (Caliber) (Defendants).
Plaintiff also alleges that the Defendants charged him fees for
unnecessary inspections, and fees for inspections that did not
occur. Based on the forgoing, Plaintiff has filed a five-count
putative class action Complaint charging: (1) breach of contract
(Count I); (2) implied covenant of good faith and fair dealing
(Count II); (3) unjust enrichment (Count III); (4) truth in
lending (Count IV); and (5) Federal Debt Collection Practices Act
(Count V).
Count I -- Breach of Contract
The plaintiff, as does the Plaintiff here, contended that the
excessive premium amounted to an illegal kickback.
While Plaintiff argues that this is notice pleading so it is not
necessary for him to go into great detail as to the kickback
allegations, nevertheless the Seventh Circuit noted, to satisfy
Iqbal and Twombly, it is necessary to state facts that are more
than consistent with a defendant's liability. Here the sum and
substance of the Plaintiff's kickback allegations are:
1. The forced-placed insurance is not individually under
written and is placed without regard to the borrower's ability to
afford the coverage (Paragraph 13);
2. The borrowers have no say in selection of policies or
insurers (Paragraph 14);
3. The insurance charges are exorbitant, higher than what a
borrower would expect to pay and are less comprehensive
(Paragraph 15);
4. Instead of charging borrowers with the actual cost,
Defendants enter into agreements with exclusive insurance
companies which are disguised as kickbacks (Paragraph 17); and
5. The kickbacks include unearned commissions, expense
reimbursements, payment of reinsurance premiums that carry no
commensurate transfer of risk, and free or below cost mortgage
servicing functions that the insurance provider performs for
Defendants (Paragraph 18).
The Seventh Circuit pointed out was that merely labeling a matter
a "kickback" does not make it so.
Therefore, the Court dismisses the breach of contract claim,
Count I, except to the extent that Plaintiff claims that he was
charged for non-existent, fictitious inspections.
Count II -- Implied Covenant of Good Faith
Count II, implied covenant of good faith and fair dealing is
likewise dismissed except to the extent of the claim for non-
existent inspections.
Defendants clearly had the right to purchase lender-placed
insurance and to conduct home inspections and charge Plaintiff
for them. Count II is dismissed with respect with the overcharges
but denied with respect to the fictitious inspections.
Count III -- Unjust Enrichment
The claim for unjust enrichment must likewise be dismissed
because Plaintiff has clearly pled the existence of a contract,
the mortgage and note. Plaintiff argues that he has only pled in
the alternative but nowhere in his Complaint does he bring into
question the validity of his mortgage. There also is no
allegation that Plaintiff paid any of the fees for inspection or
insurance, so as to enrich defendants. Count III is dismissed
with prejudice.
Count IV -- Truth in Lending Act
Plaintiff claims that the Defendants violated the Truth in
Lending Act (TILA) by the unauthorized purchase of Lender Placed
Insurance. However, the Complaint clearly alleges the existence
of contractual provisions giving Defendants the contractual right
to purchase insurance in the event borrower fails to maintain
insurance. As Plaintiff admits, Regulation Z exempts insurance
premiums from the finance charge disclosure requirement if the
loan documents allow the borrower to obtain insurance from an
insurer of his choice. Here the mortgage and the note clearly
allow this. Count IV (TILA) is dismissed with prejudice.
Count V -- Federal Debt Collection Practices Act
The FDCPA is a fraud statute and therefore Rule 9's requirement
of specificity applies. The Complaint is short on specifics with
regard to the FDCPA claim as it relates to the fictitious
inspections. The main shortcoming is the lack of specifics as to
the fictitious inspections, which charges were for fictitious
inspections.
Therefore, unlike the Court's ruling as to the breach of
contract, the Motion to Dismiss is granted without prejudice.
Count I, except to the extent that Plaintiff claims that he was
charged for non-existent inspections, is dismissed. Count II is
dismissed with respect to the overcharges, but denied with
respect to fees charged for fictitious inspections. Count III is
dismissed with prejudice. Count IV is dismissed with prejudice;
and Count V is dismissed without prejudice.
A full-text copy of the District Court's February 8, 2018
Memorandum Opinion and Order is available at
https://tinyurl.com/y8fq7f4c from Leagle.com.
Mariusz Dolegiewicz, individually, and on behalf of all others
similarly situated, Plaintiff, represented by Arthur C. Czaja,
Law Office of Arthur C. Czaja, 7521 N Milwaukee Ave, Niles, IL
60714, USA, Maebetty Kirby, Zimmerman Law Offices, P.c., Nickolas
J. Hagman, Zimmerman Law Offices, P.C., Sharon Harris, Zimmerman
Law Offices, P.C. & Thomas A. Zimmerman, Jr., Zimmerman Law
Offices, P.C,. 77 W. Washington Street, Suite 1220, Chicago,
Illinois 60602
U.S. Bank Trust, N.A., as Trustee for LSF9Master Participation
Trust & Caliber Home Loans, Inc., a Deleware Corporation,
Defendants, represented by Jonathan N. Ledsky --
jonathan.ledsky@huschblackwell.com -- Husch Blackwell LLP, Erik
W. Kemp -- ek@severson.com -- Severson & Werson, pro hac vice &
Scott J. Helfand -- scott.helfand@huschblackwell.com -- Husch
Blackwell LLP.
US IMMIGRATION: Minor Immigrant Detainees Seek Release
------------------------------------------------------
Wilmer Garcia Ramirez and Sulma Hernandez Alfaro, on behalf of
themselves and others similarly situated, Plaintiffs, v. U.S.
Immigration and Customs Enforcement (ICE), Thomas Homan, Acting
Director of ICE, Department of Homeland Security, Kirstjen
Nielsen, Secretary of Homeland Security, Case No. 18-cv-00508 (D.
D. C.,
March 5, 2018), seeks declaratory and injunctive relief, to
enjoin Defendants from detaining Plaintiffs without considering
placement in the least restrictive setting available after taking
into account their danger to themselves and others and risk of
flight and making alternative to detention programs available,
including release to individual and organizational sponsors and
supervised group homes under the Trafficking Victims Protection
Reauthorization Act.
Plaintiffs are immigrant teenagers held in the custody of U.S.
Immigration and Customs Enforcement who automatically placed them
in adult detention without considering any alternatives. Wilmer
Garcia Ramirez entered the United States without inspection on
March 26, 2017, at the age of 17 and is currently detained at the
Eloy Detention Center in Eloy, Arizona. Sulma Hernandez Alfaro
entered the United States in December 2016 at the age of 16 and
is currently detained at the Port Isabel Service Detention Center
in Los Fresnos, Texas. [BN]
Plaintiff is represented by:
Tia T. Trout-Perez, Esq.
KIRKLAND & ELLIS LLP
655 Fifteenth St., NW
Washington, DC 20005
Tel: (202) 879-5000
Fax: (202) 879-5200
Email: tia.trout-perez@kirkland.com
- and -
Stephen R. Patton, Esq.
Anne K.H. Reser, Esq.
KIRKLAND & ELLIS LLP
300 North LaSalle
Chicago, IL 60654
Tel: (312) 862-2000
Fax: (312) 862-2200
Email: stephen.patton@kirkland.com
anne.reser@kirkland.com
- and -
Katherine Melloy Goettel, Esq.
NATIONAL IMMIGRANT JUSTICE CENTER
208 South LaSalle Street, Suite 1300
Chicago, IL 60604
Tel: (312)660-1335
Fax: (312)660-1505
Email: kgoettel@heartlandalliance.org
VANTAGE RETIREMENT: Dick Sues Over Private Info Disclosure
----------------------------------------------------------
Nathan Dick, individually and on behalf of himself and all other
similarly situated, Plaintiff, v. Vantage Retirement Plans LLC,
an Arizona limited liability company and Does 1-20, Defendants,
Case No. 18-cv-00730 (D. Ariz., March 6, 2018), seeks damages,
prejudgment and post-judgment interest, as well as reasonable
attorney's fees, expert fees, and other costs and such other and
further relief resulting from violation of the Stored
Communications Act, public disclosure of private facts,
negligence and breach of contract.
Vantage is a retirement plan administration company that
specializes in self-directed IRAs. In February 16, 2018, Vantage
sent its customers, including Dick, an email regarding an annual
valuation required for one of its IRA accounts. In this email,
Vantage publicly revealed the email addresses of about 400
customers, violating their privacy rights and its own policies.
[BN]
Plaintiff is represented by:
Taylor W. Tondevold, Esq.
TONDEVOLD LAW, PLC
4140 E. Baseline Road, Suite 101
Mesa, AZ 85206
Tel: (480) 447-5357
Email: taylor@tondevoldlaw.com
VERISK ANALYTICS: Supreme Court Denies Plaintiffs' Rehearing Bid
----------------------------------------------------------------
Verisk Analytics, Inc. disclosed in its Form 10-K filed with the
U.S. Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that the Supreme Court has denied plaintiffs'
petition for rehearing of the Insurance Services Office, Inc.
Litigation.
The Company said, "On August 1, 2014, we were served with an
Amended Complaint filed in the United States District Court for
the District of Colorado titled Snyder, et al. v. ACORD Corp., et
al. The action is brought by nineteen individual plaintiffs, on
their own behalf and on behalf of a putative class, against more
than 120 defendants, including us and ISO. Except for us, ISO
and the defendant Acord Corporation, which provides standard
forms to assist in insurance transactions, most of the other
defendants are property and casualty insurance companies that
plaintiffs claim conspired to underpay property damage claims.
Plaintiffs claim that we and ISO, along with all the other
defendants, violated state and federal antitrust and racketeering
laws as well as state common law.
"On September 8, 2014, the Court entered an Order striking the
Amended Complaint and granting leave to the plaintiffs to file a
new complaint.
"On October 13, 2014, plaintiffs filed their Second Amended
Complaint, which was re-filed by plaintiffs to correct errors as
the Third Amended Complaint. The Third Amended Complaint
similarly alleges that the defendants conspired to underpay
property damage claims, but does not specifically allege what
role we or ISO played in the alleged conspiracy. It claims that
we and ISO, along with all the other defendants, violated state
and federal antitrust and racketeering laws as well as state
common law, and seeks all available relief including injunctive,
statutory, actual and punitive damages as well as attorneys'
fees. On January 15, 2016, the Court granted defendants' motions
to dismiss all claims asserted in the Third Amended Complaint.
Plaintiffs filed a motion for reconsideration of this dismissal
on February 16, 2016. The Court granted defendants' motion to
strike the motion for reconsideration on March 2, 2016 and gave
plaintiffs leave to file another motion for reconsideration in
accordance with the rules which plaintiffs filed on March 11,
2016 and, which was denied by the Court on April 25, 2016.
"On April 1, 2016, plaintiffs also filed a Notice of Appeal of
the Court's January 15, 2016 Order, which dismissed all claims in
the Third Amended Complaint. Plaintiffs also filed an appeal of
the Court's denial of the motion for reconsideration, which the
Court of Appeals for the 10th Circuit consolidated with the
appeal of the Court's January 15, 2016 dismissal.
"Appellants filed their brief in support of the consolidated
appeal on July 21, 2016 and Appellees filed their brief in
response on September 21, 2016. On April 6, 2017, the Court of
Appeals for the 10th Circuit affirmed the Court's dismissal of
the Third Amended Complaint. Appellants filed a motion for en
banc reconsideration of the 10th Circuit's affirmance of the
dismissal of the Third Amended Complaint which was denied on May
26, 2017.
"Appellants filed their petition for a writ of certiorari in the
Supreme Court on August 24, 2017 which was denied on October 30,
2017. Plaintiffs filed a Petition for Rehearing to the Supreme
Court on November 27, 2017 which was denied on January 8, 2018.
Verisk Analytics is a data analytics provider serving customers
in insurance, natural resources and financial services.
VIGO COUNTY, IN: Court Won't Appoint 3-Judge Panel in "Huerta"
--------------------------------------------------------------
The United States District Court for the Southern District of
Indiana, Terre Haute Division, denied Plaintiffs' Motion for the
Appointment of a Three-Judge Panel in the case captioned JAUSTON
HUERTA, THOMAS BOLTON, JR., CURTIS GILLIE, CARL SHERB, DEREK
HICKS, and DURAND RANDLE, individually and on behalf of present
and future inmates of Vigo County Jail, Plaintiffs, v. SHERIFF
GREG EWING, VIGO COUNTY COMMISSIONERS, VIGO COUNTY COUNCIL, ET
AL., Defendants, No. 2:16-cv-00397-JMS-MJD (S.D. Ind.).
After attempting without success to reach an agreement with
Defendants regarding overcrowding at the Jail, Plaintiffs have
moved for the appointment of a three-judge panel.
Plaintiff Jauston Huerta, an inmate at the Vigo County Jail
(Jail) initiated this litigation as a putative class action
against Vigo County Sheriff Greg Ewing, the Vigo County
Commissioners, and the Vigo County Council alleging that the Jail
is overcrowded, does not adequately protect inmates against
exposure to disease, and does not provide adequate due process to
inmates in violation of the United States Constitution. The
following month, Mr. Huerta filed an Amended Complaint adding
several additional named plaintiffs.
Plaintiffs argue that Defendants, in spite of many promises and
hoped-for resolutions, have not committed to building a new jail,
which is the only feasible solution in the long run to address
the chronic overcrowding conditions.
Plaintiffs discuss a Private Consent Settlement Agreement that
was reached in a different case related to overcrowding at the
Jail, David Acosta, et al. v. William Harris, et al., Case No.
TH00-081-C-Y/H (Acosta Agreement).
Plaintiffs note that the American Civil Liberties Union then
brought an enforcement action related to the Acosta Agreement in
Vigo County Superior Court, Hos v. Ewing, et al., Case No. 84D01-
1308-PL-007173, which is currently pending in Sullivan Superior
Court before a Special Judge.
Plaintiffs here have failed to meet the first requirement for
appointment of a three-judge panel that a court has previously
entered an order for less intrusive relief that has failed to
remedy the deprivation of the Federal right sought to be remedied
through the prisoner release order. Plaintiffs discuss failed
negotiations with Defendants in this case, the Acosta Agreement,
and the Hos enforcement action. But they do not point to a court
order that has been entered in this case, in Acosta, or in Hos
related to the claims raised in this litigation. This failure is
fatal to their request for appointment of a three-judge panel at
this point in the proceedings, and mandates that the Court deny
their motion.
Accordingly, the Court denies Plaintiffs' Motion for the
Appointment of a Three Judge Panel.
A full-text copy of the District Court's February 8, 2018 Order
is available at https://tinyurl.com/yakrsmcw from Leagle.com.
JAUSTON HUERTA, Individually and o/b/o present and future inmates
of Vigo County Jail, THOMAS BOLTON, JR., Individually and o/b/o
the Present and Future Inmates of Vigo County Jail, CURTIS
GILLIE, Individually and o/b/o the Present and Future Inmates of
Vigo County Jail, CARL SHERB, Individually and o/b/o the Present
and Future Inmates of Vigo County Jail, DEREK HICKS, Individually
and o/b/o the Present and Future Inmates of Vigo County Jail &
DURAND RANDLE, Individually and o/b/o The Present and Future
Inmates of Vigo County Jail, Plaintiffs, represented by Michael
K. Sutherlin -- msutherlin@michaelsutherlin.com -- MICHAEL K.
SUTHERLIN & ASSOCIATES, PC.
VIGO COUNTY COMMISSIONERS, VIGO COUNTY COUNCIL, BRAD ANDERSON, In
official role as Vigo County Commissioner, JUDY ANDERSON, In
official role as Vigo County Commissioner, JON MARVEL, In
official role as Vigo County Commissioner, MIKE MORRIS, In
official role as Vigo County Council, MARK D. BIRD, In official
role as Vigo County Council, RICK BURGER, In official role as
Vigo County Council, TIMOTHY CURLEY, In official role as Vigo
County Council, KATHY MILLER, In official role as Vigo County
Council, ED PING, In official role as Vigo County Council & BILL
THOMAS, In official role as Vigo County Council, Defendants,
represented by David P. Friedrich --
dpfriedrich@wilkinsonlaw.com -- WILKINSON GOELLER MODESITT
WILKINSON AND DRUMMY & Michael James Wright, MICHAEL J. WRIGHT,
ATTORNEY AT LAW, 500 Ohio Street, Terre Haute, Indiana 47807
VISHAY INTERTECHNOLOGY: Antitrust Suits in US, Canada Ongoing
-------------------------------------------------------------
Vishay Intertechnology, Inc.'s subsidiary still defends itself
against purported antitrust class action complaints in the United
States and Canada, according to the Company's Form 10-K filed
with the U.S. Securities and Exchange Commission for the fiscal
year ended December 31, 2017. The Company is also a party to
similar cases filed in Canada. Moreover, Holy Stone Enterprises
Co., Ltd. continues to indemnify the Company and its subsidiary
for losses related to the lawsuits.
The Company said, "Vishay Polytech Co., Ltd. ("VPC"), a
subsidiary of Vishay which was purchased from Holy Stone
Enterprises Co., Ltd. ("Holy Stone") in June 2014, is a named
defendant, among other manufacturers, in purported antitrust
class action complaints in the United States and Canada. The
complaints allege restraints of trade in aluminum and tantalum
electrolytic capacitors, and in some cases, film capacitors, and
seek injunctive relief and unspecified joint and several treble
damages. Vishay Intertechnology, Inc. is a party to similar
cases filed in Canada."
"Holy Stone has agreed to indemnify Vishay and VPC for losses,
including penalties and expenses associated with the litigation
and investigation described above. Notwithstanding this indemnity
obligation, the Company and VPC intend to defend vigorously
against the civil complaints."
Vishay Intertechnology, Inc. manufactures and supplies discrete
semiconductors and passive components in the United States,
Europe, and Asia. The Company was founded in 1962 and is based
in Malvern, Pennsylvania.
VITA-MIX CORP: Court Grants Final OK of "Gooding" Settlement
------------------------------------------------------------
The United States District Court for the Central District of
California issued an Amended Final Judgment granting final
approval of the class settlement in the case captioned RAINOLDO
GOODING and NADEEN GOODING, as individuals and on behalf of all
others similarly situated, Plaintiffs, v. VITA-MIX CORPORATION,
d.b.a. VITAMIX and KELLY SERVICES, INC., Defendants, Case No. 16-
cv-03898-OWD-JEM (C.D. Cal.).
This matter came on for hearing on January 22, 2018, at 1:30
p.m., in the United States District Court for the Central
District of California before the Honorable Otis D. Wright, II.
Due and adequate notice having been given to the Classes.
The following classes are certified:
California Class: All individuals who worked for Defendants in a
Covered Position1 in California at any time from June 3, 2012
through March 13, 2017.
Non-California Rule 23 Class: All individuals who worked for
Defendants in a Covered Position in the states of Arkansas,
Connecticut, Georgia, Hawaii, Idaho, Illinois, Kansas, Maryland,
Massachusetts, Minnesota, Missouri, Montana, New Hampshire, New
Jersey, New Mexico, New York, North Carolina, North Dakota,
Oklahoma, Oregon, Pennsylvania, Rhode Island, West Virginia,
Wisconsin, and/or Wyoming, at any time from June 3, 2013 through
March 13, 2017.
FLSA Class: All individuals who worked for Defendants in a
Covered Position in the United States at any time from June 3,
2013 through March 13, 2017, and who are not members of either
the California Class or the Non-California Rule 23 Class, and who
affirmatively opted in to the Settlement.
The Court approves the payment from the Maximum Settlement Amount
of settlement administration costs in the amount of $20,000 to
CPT Group, Inc., the Settlement Administrator, for services
rendered in this matter. The Court also approves payment from the
Maximum Settlement Amount of Service Awards to the Class
Representatives in the amounts of $5,000.00 each, to reimburse
the Class Representatives for their valuable services in
initiating and maintaining this litigation and the benefits
conferred onto the Classes as a result of the Action. The Court
finds that these payments are fair and reasonable. The Settlement
Administrator is directed to make the foregoing payments in
accordance with the terms of the Settlement Agreement.
The Court approves a payment from the Maximum Settlement Amount
of $50,000.00 to the California Labor & Workforce Development
Agency for its share of penalties under the Labor Code Private
Attorneys General Act, pursuant to Cal. Labor Code Sec 2699(i),
in accordance with the terms of the Settlement Agreement. The
Settlement Administrator is directed to make this payment in
accordance with the terms of the Settlement Agreement.
The Court awards to Class Counsel (Haines Law Group, APC and
Kilgore & Kilgore, PLLC) the amount of $400,000.00 for attorney's
fees, and the amount of $12,357.75 (including $6,554.75 to Haines
Law Group, APC and $5,803.00 to Kilgore & Kilgore PLLC) for
costs. As explained in the Final Approval Order, the Court finds
that the requested attorneys' fees, which amount to 25% of the
Maximum Settlement Amount, are reasonable under the percentage-
of-the-recovery method, with a lodestar "cross-check." The
Settlement Administrator is ordered to make these payments to
Class Counsel in accordance with the terms of the Settlement
Agreement.
A full-text copy of the District Court's February 1, 2018
Judgment is available at https://tinyurl.com/yd8axhkj from
Leagle.com.
Rainoldo Gooding & Nadeen Gooding, Plaintiffs, represented by
Sean M. Blakely -- sblakely@haineslawgroup.com -- Haines Law
Group APC, Fletcher W.H. Schmidt, Haines Law Group APC, 222 N.
Sepulveda Blvd., Suite 1550, El Segundo, CA 90245, John H.
Crouch, IV -- fschmidt@haineslawgroup.com -- Kilgore and Kilgore
PLLC, pro hac vice, Paul Keith Haines --
phaines@haineslawgroup.com -- Haines Law Group APC, Tuvia
Korobkin -- tkorobkin@haineslawgroup.com -- Haines Law Group APC
& Christine Ann Hopkins -- cah@kilgorelaw.com -- Kilgore and
Kilgore PLLC.
Vita-Mix Corporation, doing business as Vitamix, Defendant,
represented by David P. Fuad -- dfuad@orrick.com -- Orrick
Herrington and Sutcliffe LLP.
VIVINT SOLAR: Court Dismisses "Del Llano" FCRA Suit
---------------------------------------------------
The United States District Court for the Southern District of
California granted Defendant's Motion to Dismiss the case
captioned VICTOR R. DEL LLANO, individually and on behalf of
others similarly situated, Plaintiff, v. VIVINT SOLAR INC., AND
SOLAR MOSAIC INC., Defendants, Case No. 17-cv-1429-AJB-MDD (S.D.
Cal.).
Presently before the Court is Defendant Vivint Solar Inc.'s
(Vivint) motion to dismiss for failure to state a claim and for
lack of Article III standing.
Vivint installs solar rooftop panels and Mosaic offers consumer
financing for home improvements, including for solar systems. the
Plaintiff received a notice that someone had accessed his credit
report. The Plaintiff then reviewed his Trans Union credit file
and discovered that both the Defendants had checked his credit
information by making a general or specific certification to
Trans Union that they sought the information because the
Plaintiff had an existing credit account with each of them. The
Plaintiff argues that he has never conducted business nor
incurred any financial obligations with either the Defendant nor
provided them permission to conduct a credit check.
The Plaintiff filed his complaint alleging two causes of action:
(1) Violations of the Fair Credit Reporting Act (FCRA); and (2)
Violations of the California Consumer Credit Reporting Agencies
Act (CCRAA).
A motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of the pleadings and allows a court to dismiss a
complaint upon a finding that the plaintiff has failed to state a
claim upon which relief may be granted. The court may dismiss a
complaint as a matter of law for: (1) lack of a cognizable legal
theory or (2) insufficient facts under a cognizable legal claim.
Plaintiff Does Not Adequately Plead Standing
In pleading standing, the Plaintiff alleges four main
contentions:
(1) the Plaintiff suffered an invasion of a legally protected
interest -- an invasion of his privacy when the Defendants
accessed his highly confidential personal information on his
credit report at a time when they had no right to do so;
(2) the Plaintiff was affected both psychologically and
physiologically because when he realized the behavior of the
Defendants, the Plaintiff felt that his privacy had been invaded
through the disclosure of his personal and private information;
(3) the injury suffered by the Plaintiff is concrete as the
Defendants' actions caused the Plaintiff's credit score to drop,
directly impacting his credit availability and finances; and
(4) the Defendants increased the risk that the Plaintiff and
the class members will be injured if there is a data breach on
the Defendants' computer systems.
First, as to the Plaintiff's fourth contention, the Court,
without hesitation, finds the risk of a data breach to be a
speculative or possible future injury that does not satisfy the
elements of Article III standing.
Next, the Court turns to the Plaintiff's first and second
contentions that argue that he has standing based off of his
invasion of privacy claim.
To state a common law invasion of privacy tort claim, a plaintiff
must allege (1) intrusion into a private place, conversation or
matter (2) in a manner highly offensive to a reasonable person.
In light of the applicable legal principles, the Court finds that
the downfall to the Plaintiff's theory of standing through a
claim of invasion of privacy is that he has failed to allege that
his private information has been disclosed or released. Moreover,
even if disclosure was pled, both the California Constitution and
the common law set a high bar for an invasion of privacy claim
where even disclosure of personal information, including social
security numbers, does not constitute an egregious breach of
social norms.
The Court clarifies that this Order does not seek to conclude
that an invasion of privacy claim within the context of the FCRA
will never confer standing. In fact, it is quite the opposite
with many districts finding that an invasion of privacy under the
FCRA can be a concrete harm that meets the injury in fact
requirements of Article III.
The Plaintiff's invasion of privacy claim is not adequately pled.
Plaintiff has not sufficiently asserted that his private
information was disclosed or that the disclosure was egregious.
Consequently, his theory of standing employing a claim for
invasion of privacy fails as a matter of law.
Presently, the Court is more persuaded by the Seventh Circuit as
well as holdings from this district that have concluded that the
drop in the Plaintiff's credit score is not an articulated
concrete harm. The Court notes that the Plaintiff's opposition
brief ardently argues that a hard credit inquiry, like the one
that Vivint allegedly requested on the Plaintiff, affects a
consumer's credit score. Thus, the Plaintiff contends that he has
suffered an injury in fact to confer Article III standing.
Unfortunately, the assertion that the Defendants requested a
"hard credit inquiry" is not pled anywhere in the Plaintiff's
operative complaint and thus the Court cannot take this
allegation under consideration.
In sum, even despite being at the pleading stage where general
factual allegations of injury resulting from the defendant's
conduct may suffice, and despite the Plaintiff's valiant efforts,
the Court is not persuaded that the Plaintiff's allegations are
sufficient to demonstrate standing.
Accordingly, the Court grants Vivint's motion to dismiss
Plaintiff's complaint for lack of standing.
A full-text copy of the District Court's February 1, 2018 Order
is available at https://tinyurl.com/ycf7ww4h from Leagle.com.
Victor R. Del Llano, individually and on behalf of others
similarly situated, Plaintiff, represented by Asil A. Mashiri,
Mashiri Law Firm A Professional Corporation, 11251 Rancho Carmel
Dr, Unit 500694, San Diego, CA 92150-8029 & Tamim Jami --
tamim@jamilaw.com -- The Jami Law Firm.
Vivint Solar Inc., Defendant, represented by Chet A. Kronenberg -
- ckronenberg@stblaw.com -- Simpson Thacher and Bartlett LLP.
Solar Mosaic Inc., Defendant, represented by Mark G. Rackers --
mrackers@sheppardmullin.com -- Sheppard Mullin Richter & Hampton,
LLP, Robert James Guite -- rguite@sheppardmullin.com -- Sheppard
Mullin Richter & Hampton & Shannon Z. Petersen --
spetersen@sheppardmullin.com -- Sheppard, Mullin, Richter &
Hampton, LLP.
WAL-MART STORES: 9th Cir. Vacates Order Remanding "Kenny"
---------------------------------------------------------
The United States Court of Appeals, Ninth Circuit, vacated the
District Court's Order remanding to state court the case
captioned KRIS KENNY, on behalf of himself and all others
similarly situated, Plaintiff-Appellee, v. WAL-MART STORES, INC.,
a Delaware Corporation; WAL-MART ASSOCIATES, INC., a Delaware
Corporation, Defendants-Appellants, No. 17-56809 (9th Cir.).
Plaintiff Kris Kenny filed a putative class action Complaint
against Defendants Wal-Mart Stores, Inc., Wal-Mart Associates,
Inc., and U.S. Healthworks Medical Group,1 in California state
court, challenging Wal-Mart's policy requiring employees who have
suffered workplace-related injuries to submit to drug and/or
urine testing. Kenny did not serve the Complaint on any of the
Defendants.
The District Court Erred in Remanding Sua Sponte Based on a Non-
Jurisdictional Defect.
A district court lacks authority under 28 U.S.C. Section 1447(c)
to remand sua sponte based on a non-jurisdictional defect. Here,
the district court erred by remanding sua sponte on a non-
jurisdictional ground. Neither the district court nor Kenny
questioned the court's subject matter jurisdiction under CAFA.
Instead, the district court stated, without explanation, that
Wal-Mart waived its right to remove by filing a demurrer to
Kenny's FAC in state court. Plainly, waiver, a common-law
doctrine, does not implicate the court's original jurisdiction
over the action.
Thus, the district court exceeded its statutory authority in
remanding sua sponte on a non-jurisdictional ground, and its
order warrants reversal for this reason alone.
The District Court Erred in Concluding that Wal-Mart Waived its
Right to Remove the Action.
Here, nothing on the face of the FAC put Wal-Mart on notice of
the case's removability, and Kenny has not pointed to any other
paper that would have done so. Under these circumstances, Wal-
Mart could not have clearly and unequivocally waived its right to
remove by responding to the FAC.
Two additional points lend further support for our conclusion.
First, Wal-Mart filed a demurrer on the last day to respond to
Kenny's FAC. While Kenny faults Wal-Mart for filing a response
addressing the merits of the FAC, Kenny cannot dispute the fact
that Wal-Mart had to respond in some manner to the FAC, or risk
entry of a default judgment. Wal-Mart's choice to file a
demurrer, rather than another form of responsive pleading, to
Kenny's indeterminate FAC did not amount to a waiver of its right
to remove.
Second, Wal-Mart removed the case before Kenny opposed Wal-Mart's
demurrer, and before any hearing was held, let alone any ruling
issued. Clearly, Wal-Mart did not manifest an intent to litigate
in state court, much less an intent to affirmatively abandon its
right to a federal forum.
The Ninth Circuit holds that the district court erred in
concluding that Wal-Mart waived its right to remove.
The Ninth Circuit vacates the district court's order remanding
this action to California state court, and remands this action to
the district court for further proceedings.
A full-text copy of the Ninth Circuit's February 1, 2018 Opinion
is available at https://tinyurl.com/y8eyx8bd from Leagle.com.
Mark D. Kemple -- kemplem@gtlaw.com -- (argued) and Ashley
Farrell-Picket -- farrellpicketa@gtlaw.com -- Greenberg Traurig
LLP, Los Angeles, California, for Defendants-Appellants.
David M. deRubertis -- David@deRubertisLaw.com -- (argued) and
Jeff D. Neiderman -- jdneider@yahoo.com -- The deRubertis Law
Firm APC, Studio City, California; Ellen R. Serbin --
Ellen@PLBLaw.com -- Todd H. Harrison -- toddharrison@plblaw.com -
- and Brennan S. Kahn -- brennankahn@plblaw.com -- Perona Langer
Beck Serbin Mendoza & Harrison APC, Long Beach, California; for
Plaintiff-Appellee.
WORLDPAC INC: Court Compels Arbitration in "Brown"
--------------------------------------------------
The United States District Court for the Northern District of
Illinois, Eastern Division, granted in part and denied in part
Defendant's Motion to Dismiss the case captioned WILHELMINA
BROWN, KENTON JOHNSON, and NIKIA DUNBAR, individually and on
behalf of all others similarly situated, Plaintiffs, v. WORLDPAC,
INC., Defendant, No. 17 CV 6396 (N.D. Ill.).
The Defendant has moved, pursuant to the Federal Arbitration Act
(FAA) to dismiss and compel individual arbitrations, or to stay
the proceedings.
Plaintiffs Wilhelmina Brown, Kenton Johnson, and Ava Nikia Dunbar
filed a five-count complaint against defendant Worldpac based on
plaintiffs' alleged employment relationship with the defendant.
The Plaintiffs' complaint alleges the following: violation of the
Fair Labor Standards Act (FLSA)(Counts I and II); violation of
the Illinois Minimum Wage Law (IMWL), 820 ILCS 105, et seq.
(Counts III and IV); and violation of the Chicago Minimum Wage
Ordinance (CMWO), Chicago, IL, Municipal Code, Section 1-24-020
(Count V).
The Defendant is a wholesale distributor of automotive parts. It
contracts with a third party staffing company, Partsfleet, that
provides drivers who deliver the automotive parts that the
defendant sells to its customers.
The Plaintiffs provided these services to the defendant through
Partsfleet. Before the plaintiffs began delivering automotive
parts for the defendant, Partsfleet required them to sign an
Independent Contractor Agreement (Agreement).
Under the FAA, federal courts are in the gatekeeper position of
determining whether a dispute is one that the parties intended to
arbitrate and is therefore arbitrable. Accordingly, when
presented with a question of arbitrability, the court will defer
to the parties' intent to determine: (1) whether there is a valid
arbitration agreement; and (2) whether the parties' dispute falls
within the scope of that agreement.
The Court finds that the Defendant is entitled to enforce the
arbitration provision in the Agreement the plaintiffs signed
because it is susceptible to the interpretation that the parties
intended that nonsignatories would derive benefits from it, as
Illinois law requires. This is so for at least two reasons.
First, the word customer is, in fact, included in the arbitration
provision, which reads: "This Arbitration Provision is intended
broadly to apply to all controversies hereafter arising out of or
related to the parties' relationship or CONTRACTOR'S performance
of services for PARTSFLEET or its customers, as well as any
existing controversy that has arisen from the parties'
relationship or CONTRACTOR'S performance of services for
PARTSFLEET or its customers, as is permitted under Section 2 of
the Federal Arbitration Act."
Second, the arbitration provision explicitly provides that it
applies to disputes regarding any city, county, state or federal
wage-hour law, including the FLSA. Additionally, the entire
purpose of the Agreement that the plaintiffs entered into with
defendant was to establish the terms applicable to all services
arranged by PARTSFLEET or its customer [Worldpac] and performed
by CONTRACTOR.
Given that the plaintiffs entered into the Agreement for the
purpose of performing services for Partsfleet's customers, the
arbitration provision explicitly includes disputes arising out of
the plaintiffs' performance of services for Partsfleet's
customers, and the plaintiffs concede that the defendant is
Partsfleet's customer, the plaintiffs cannot now claim that they
never agreed to arbitrate with the defendant.
Courts generally compel arbitration upon finding a valid
arbitration agreement. In the instant case, however, the
arbitration provision in the Agreement entered into by the
plaintiffs and the defendant contained a Class Action Waiver.
That waiver provides that the plaintiffs are permitted to
proceed, even in arbitration, on an individual basis only. The
Seventh Circuit has held such provisions invalid. That issue is
now before the United States Supreme Court, and was argued
October 2, 2017. See Epic Sys. Corp. v. Lewis, 137 S.Ct. 809, 196
L. Ed. 2d 595 (2017).
The parties agree that this court should defer final ruling on
the defendant's motion to dismiss and compel individual
arbitration until that issue is resolved. The court agrees that
this is the most sensible way to proceed. Accordingly, the court
grants the defendant's motion to stay the proceedings.
The court grants in part and denies in part the defendant's
motion to dismiss and compel individual arbitrations or to stay
the proceedings. The court finds that the Independent Contractor
Agreement compels individual arbitration, and stays further
proceedings pending the final ruling in Epic Sys. Corp. v. Lewis,
137 S.Ct. 809.
A full-text copy of the District Court's February 1, 2018
Memorandum Opinion and Order is available at
https://tinyurl.com/y7gg4pro from Leagle.com.
Wilhelmina Brown, Kenton Johnson & Nikia Dunbar, on behalf of
themselves and others similarly situated, Plaintiffs, represented
by Matthew J. Piers -- mpiers@hsplegal.com -- Hughes Socol Piers
Resnick & Dym Ltd. & Christopher J. Wilmes --
cwilmes@hsplegal.com -- Hughes Socol Piers Resnick & Dym, Ltd.
Worldpac, Inc., Defendant, represented by Eric R. Magnus --
MagnusE@jacksonlewis.com -- Jackson Lewis P.c. & Kirsten Ann
Milton -- Kirsten.Milton@jacksonlewis.com -- Jackson Lewis P.C.
Asbestos Litigation
ASBESTOS UPDATE: 3M Co. Still Defends Suits at Dec. 31
------------------------------------------------------
3M Company still defends itself against numerous lawsuits in
various courts that purport to represent approximately 2,230
individual claimants, according to the Company's Form 10-K filing
with the U.S. Securities and Exchange Commission for the fiscal
year ended December 31, 2017.
The Company states, "The vast majority of the lawsuits and claims
resolved by and currently pending against the Company allege use
of some of the Company's mask and respirator products and seek
damages from the Company and other defendants for alleged
personal injury from workplace exposures to asbestos, silica,
coal mine dust or other occupational dusts found in products
manufactured by other defendants or generally in the workplace.
A minority of the lawsuits and claims resolved by and currently
pending against the Company generally allege personal injury from
occupational exposure to asbestos from products previously
manufactured by the Company, which are often unspecified, as well
as products manufactured by other defendants, or occasionally at
Company premises.
"The Company's current volume of new and pending matters is
substantially lower than it experienced at the peak of filings in
2003. The Company expects that filing of claims by unimpaired
claimants in the future will continue to be at much lower levels
than in the past. Accordingly, the number of claims alleging
more serious injuries, including mesothelioma and other
malignancies, will represent a greater percentage of total claims
than in the past. The Company has prevailed in all twelve cases
taken to trial, including ten of the eleven cases tried to
verdict, and an appellate reversal in 2005 of the 2001 jury
verdict adverse to the Company. The remaining case, tried in
2009, was dismissed by the court at the close of plaintiff's
evidence, based on the court's legal finding that the plaintiff
had not presented sufficient evidence to support a jury verdict.
In August 2016, 3M received a unanimous verdict in its favor from
a jury in state court in Kentucky, in 3M's first respirator trial
involving coal mine dust. The estate of the plaintiff alleged
that the 3M 8710 respirator is defective and caused his death
because it did not protect him from harmful coal mine dust. The
jury rejected plaintiff's claim and returned a verdict finding no
liability against 3M. The verdict is final as the plaintiff did
not file an appeal. In September 2017, 3M received a unanimous
verdict in its favor from a jury in state court in Kentucky in
3M's second respirator trial involving coal mine dust. The jury
ultimately determined that the plaintiff's claims were barred by
the statute of limitations. In November 2017, the court denied
the plaintiff's motion for a new trial. The plaintiff did not
file an appeal, thereby ending the litigation.
"The Company has demonstrated in these past trial proceedings
that its respiratory protection products are effective as claimed
when used in the intended manner and in the intended
circumstances. Consequently the Company believes that claimants
are unable to establish that their medical conditions, even if
significant, are attributable to the Company's respiratory
protection products. Nonetheless the Company's litigation
experience indicates that claims of persons with malignant
conditions are costlier to resolve than the claims of unimpaired
persons, and it therefore believes the average cost of resolving
pending and future claims on a per-claim basis will continue to
be higher than it experienced in prior periods when the vast
majority of claims were asserted by medically unimpaired
claimants."
A full-text copy of the Form 10-K is available at
https://is.gd/rQrET6
ASBESTOS UPDATE: 3M Co. Accrues US$608MM for Respirator Cases
-------------------------------------------------------------
3M Company had an accrual of US$608 million as of December 31,
2017, for liabilities associated with respirator mask and
asbestos cases, according to the Company's Form 10-K filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended December 31, 2017.
3M Company states, "The Company regularly conducts a
comprehensive legal review of its respirator mask/asbestos
liabilities. The Company reviews recent and historical claims
data, including without limitation, (i) the number of pending
claims filed against the Company, (ii) the nature and mix of
those claims (i.e., the proportion of claims asserting usage of
the Company's mask or respirator products and alleging exposure
to each of asbestos, silica, coal or other occupational dusts,
and claims pleading use of asbestos-containing products allegedly
manufactured by the Company), (iii) the costs to defend and
resolve pending claims, and (iv) trends in filing rates and in
costs to defend and resolve claims, (collectively, the "Claims
Data"). As part of its comprehensive legal review, the Company
regularly provides the Claims Data to a third party with
expertise in determining the impact of Claims Data on future
filing trends and costs. The third party assists the Company in
estimating the costs to defend and resolve pending and future
claims. The Company uses these estimates to develop its best
estimate of probable liability.
"Developments may occur that could affect the Company's estimate
of its liabilities. These developments include, but are not
limited to, significant changes in (i) the key assumptions
underlying the Company's accrual, including, the number of future
claims, the nature and mix of those claims, the average cost of
defending and resolving claims, and in maintaining trial
readiness (ii) trial and appellate outcomes, (iii) the law and
procedure applicable to these claims, and (iv) the financial
viability of other co-defendants and insurers.
"As a result of the Company's review of its respirator
mask/asbestos liabilities and as a result of the cost of
resolving claims of persons who claim more serious injuries,
including mesothelioma and other malignancies, the Company
increased its accruals in 2017 for respirator mask/asbestos
liabilities by US$71 million. In 2017, the Company made payments
for legal fees and settlements of US$58 million related to the
respirator mask/asbestos litigation.
"As of December 31, 2017 and 2016, the Company had an accrual for
respirator mask/asbestos liabilities (excluding Aearo accruals)
of US$608 million and US$595 million, respectively. This accrual
represents the Company's best estimate of probable loss and
reflects an estimation period for future claims that may be filed
against the Company approaching the year 2050.
"The Company cannot estimate the amount or upper end of the range
of amounts by which the liability may exceed the accrual the
Company has established because of the (i) inherent difficulty in
projecting the number of claims that have not yet been asserted
or the time period in which future claims may be asserted, (ii)
the complaints nearly always assert claims against multiple
defendants where the damages alleged are typically not attributed
to individual defendants so that a defendant's share of liability
may turn on the law of joint and several liability, which can
vary by state, (iii) the multiple factors that the Company
considers in estimating its liabilities, and (iv) the several
possible developments that may occur that could affect the
Company's estimate of liabilities.
"As of December 31, 2017, the Company's receivable for insurance
recoveries related to the respirator mask/asbestos litigation was
US$4 million. The Company is seeking coverage under the policies
of certain insolvent and other insurers. Once those claims for
coverage are resolved, the Company will have collected
substantially all of its remaining insurance coverage for
respirator mask/asbestos claims."
A full-text copy of the Form 10-K is available at
https://is.gd/rQrET6
ASBESTOS UPDATE: 3M Accrues $30MM for Aero-Related Liabilities
--------------------------------------------------------------
3M Company, through its Aearo Technologies subsidiary, had
accruals of US$30 million for product liabilities and defense
costs related to current and future Aearo-related asbestos and
silica-related claims, according to the Company's Form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended December 31, 2017.
The Company states, "On April 1, 2008, a subsidiary of the
Company purchased the stock of Aearo Holding Corp., the parent of
Aearo Technologies ("Aearo"). Aearo manufactured and sold
various products, including personal protection equipment, such
as eye, ear, head, face, fall and certain respiratory protection
products.
"As of December 31, 2017, Aearo and/or other companies that
previously owned and operated Aearo's respirator business
(American Optical Corporation, Warner-Lambert LLC, AO Corp. and
Cabot Corporation ("Cabot")) are named defendants, with multiple
co-defendants, including the Company, in numerous lawsuits in
various courts in which plaintiffs allege use of mask and
respirator products and seek damages from Aearo and other
defendants for alleged personal injury from workplace exposures
to asbestos, silica-related, or other occupational dusts found in
products manufactured by other defendants or generally in the
workplace.
As a result of the review of Aearo's respirator mask/asbestos
liabilities, the Company increased Aearo's accruals in 2017 for
respirator mask/asbestos liabilities by US$13 million. As of
December 31, 2017, the Company, through its Aearo subsidiary, had
accruals of US$30 million for product liabilities and defense
costs related to current and future Aearo-related asbestos and
silica-related claims. This accrual represents the Company's
best estimate of Aearo's probable loss and reflects an estimation
period for future claims that may be filed against the Aearo
approaching the year 2050. Responsibility for legal costs, as
well as for settlements and judgments, is currently shared in an
informal arrangement among Aearo, Cabot, American Optical
Corporation and a subsidiary of Warner Lambert and their
respective insurers (the "Payor Group"). Liability is allocated
among the parties based on the number of years each company sold
respiratory products under the "AO Safety" brand and/or owned the
AO Safety Division of American Optical Corporation and the
alleged years of exposure of the individual plaintiff. Aearo's
share of the contingent liability is further limited by an
agreement entered into between Aearo and Cabot on July 11, 1995.
This agreement provides that, so long as Aearo pays to Cabot a
quarterly fee of US$100,000, Cabot will retain responsibility and
liability for, and indemnify Aearo against, any product liability
claims involving exposure to asbestos, silica, or silica products
for respirators sold prior to July 11, 1995. Because of the
difficulty in determining how long a particular respirator
remains in the stream of commerce after being sold, Aearo and
Cabot have applied the agreement to claims arising out of the
alleged use of respirators involving exposure to asbestos, silica
or silica products prior to January 1, 1997. With these
arrangements in place, Aearo's potential liability is limited to
exposures alleged to have arisen from the use of respirators
involving exposure to asbestos, silica, or silica products on or
after January 1, 1997. To date, Aearo has elected to pay the
quarterly fee. Aearo could potentially be exposed to additional
claims for some part of the pre-July 11, 1995 period covered by
its agreement with Cabot if Aearo elects to discontinue its
participation in this arrangement, or if Cabot is no longer able
to meet its obligations in these matters."
A full-text copy of the Form 10-K is available at
https://is.gd/rQrET6
ASBESTOS UPDATE: Honeywell Had $1.52-Bil. Liabilities at Dec. 31
----------------------------------------------------------------
Honeywell International Inc. recorded total liabilities of
US$1,523 million related to asbestos matters at December 31,
2017, according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2017.
The Company states, "Honeywell is a defendant in asbestos related
personal injury actions related to two predecessor companies:
* North American Refractories Company ("NARCO"), which was
sold in 1986, produced refractory products (bricks and cement
used in high temperature applications). Claimants consist
largely of individuals who allege exposure to NARCO asbestos-
containing refractory products in an occupational setting.
* Bendix Friction Materials ("Bendix") business, which was
sold in 2014, manufactured automotive brake parts that contained
chrysotile asbestos in an encapsulated form. Claimants consist
largely of individuals who allege exposure to asbestos from
brakes from either performing or being in the vicinity of
individuals who performed brake replacements.
A full-text copy of the Form 10-K is available at
https://is.gd/IBn8R4
ASBESTOS UPDATE: Honeywell Records US$907MM NARCO Liabilities
-------------------------------------------------------------
Honeywell International Inc. recorded US$907 million at December
31, 2017, in asbestos-related liabilities involving predecessor
company North American Refractories Company (NARCO), according to
the Company's Form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended December 31, 2017.
NARCO, which was sold in 1986, produced refractory products
(bricks and cement used in high temperature applications).
The Company states, "In connection with NARCO's emergence from
bankruptcy on April 30, 2013, a federally authorized 524(g) trust
(NARCO Trust) was established for the evaluation and resolution
of all existing and future NARCO asbestos claims. Both Honeywell
and NARCO are protected by a permanent channeling injunction
barring all present and future individual actions in state or
federal courts and requiring all asbestos related claims based on
exposure to NARCO asbestos-containing products to be made against
the NARCO Trust. The NARCO Trust reviews submitted claims and
determines award amounts in accordance with established Trust
Distribution Procedures approved by the Bankruptcy Court which
set forth the criteria claimants must meet to qualify for
compensation including, among other things, exposure and medical
criteria that determine the award amount. In addition, Honeywell
provided, and continues to provide, input to the design of
control procedures for processing NARCO claims, and has on-going
audit rights to review and monitor the claims processor's
adherence to the established requirements of the Trust
Distribution Procedures.
"Honeywell is obligated to fund NARCO asbestos claims submitted
to the NARCO Trust which qualify for payment under the Trust
Distribution Procedures (Annual Contribution Claims), subject to
annual caps of US$140 million in 2018 and US$145 million for each
year thereafter. However, the initial US$100 million of claims
processed through the NARCO Trust (the Initial Claims Amount)
will not count against the annual cap and any unused portion of
the Initial Claims Amount will roll over to subsequent years
until fully utilized. In 2015, Honeywell filed suit against the
NARCO Trust in Bankruptcy Court alleging breach of certain
provisions of the Trust Agreement and Trust Distribution
Procedures. The parties agreed to dismiss the proceeding without
prejudice pursuant to an 18 month Standstill Agreement. Claims
processing continued during this period as the parties attempted
to resolve disputed issues. The Standstill Agreement expired on
October 12, 2017. Notwithstanding its expiration, claims
processing continues, and Honeywell continues to negotiate and
attempt to resolve remaining disputed issues (that is, instances
where Honeywell believes the Trust is not processing claims in
accordance with established Trust Distribution Procedures).
Honeywell reserves its right to seek judicial intervention should
negotiations fail or prove futile. As of December 31, 2017,
Honeywell has not made any payments to the NARCO Trust for Annual
Contribution Claims.
"Honeywell is also responsible for payments due to claimants
pursuant to settlement agreements reached during the pendency of
the NARCO bankruptcy proceedings that provide for the right to
submit claims to the NARCO Trust subject to qualification under
the terms of the settlement agreements and Trust Distribution
Procedures criteria (Pre-established Unliquidated Claims), which
amounts are estimated at US$150 million and are expected to be
paid during the initial years of trust operations (US$5 million
of which has been paid since the effective date of the NARCO
Trust). Such payments are not subject to the annual cap.
"Our consolidated financial statements reflect an estimated
liability for Pre-established Unliquidated Claims (US$145
million), as well as unsettled claims pending as of the time
NARCO filed for bankruptcy protection and operating and legal
costs related to the Trust (collectively US$19 million) and for
the estimated value of future NARCO asbestos claims expected to
be asserted against the NARCO Trust (US$743 million). The
estimate of future NARCO claims was prepared in 2002, in the same
year NARCO filed for bankruptcy protection, using NARCO tort
system litigation experience based on a commonly accepted
methodology used by numerous bankruptcy courts addressing 524(g)
trusts. Accordingly, the estimated value of future NARCO
asbestos claims was prepared before there was data on claims
filings and payment rates in the NARCO Trust under the Trust
Distribution Procedures and also prepared when the stay of all
NARCO asbestos claims was in effect (which remained in effect
until NARCO emerged from Bankruptcy protection). Some critical
assumptions underlying this commonly accepted methodology
included claims filing rates, disease criteria and payment values
contained in the Trust Distribution Procedures, estimated
approval rates of claims submitted to the NARCO Trust and
epidemiological studies estimating disease instances. The
estimated value of the future NARCO liability reflects claims
expected to be asserted against NARCO over a fifteen year period.
This projection resulted in a range of estimated liability of
US$743 million to US$961 million. We believe that no amount
within this range is a better estimate than any other amount and
accordingly, we have recorded the minimum amount in the range.
Given the Trust's lack of sufficient claims processing experience
since NARCO emerged from bankruptcy protection, it is not yet
possible to reliably estimate future claim costs based on actual
Trust experience.
"Our insurance receivable corresponding to the estimated
liability for pending and future NARCO asbestos claims reflects
coverage which reimburses Honeywell for portions of NARCO-related
indemnity and defense costs and is provided by a large number of
insurance policies written by dozens of insurance companies in
both the domestic insurance market and the London excess market.
We conduct analyses to estimate the probable amount of insurance
that is recoverable for asbestos claims. While the substantial
majority of our insurance carriers are solvent, some of our
individual carriers are insolvent, which has been considered in
our analysis of probable recoveries. We made judgments
concerning insurance coverage that we believe are reasonable and
consistent with our historical dealings and our knowledge of any
pertinent solvency issues surrounding insurers.
"Projecting future events is subject to many uncertainties that
could cause the NARCO-related asbestos liabilities or assets to
be higher or lower than those projected and recorded. Given the
uncertainties, we review our estimates periodically, and update
them based on our experience and other relevant factors.
Similarly, we will reevaluate our projections concerning our
probable insurance recoveries in light of any changes to the
projected liability or other developments that may impact
insurance recoveries."
A full-text copy of the Form 10-K is available at
https://is.gd/IBn8R4
ASBESTOS UPDATE: Honeywell Had US$616MM Bendix Claims at Dec. 31
----------------------------------------------------------------
Honeywell International Inc. recorded US$616 million at December
31, 2017 in asbestos-related liabilities involving predecessor
company Bendix Friction Materials (Bendix) business, according to
the Company's Form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended December 31, 2017.
The Company states, "Claimants consist largely of individuals who
allege exposure to asbestos from brakes from either performing or
being in the vicinity of individuals who performed brake
replacements.
"It is not possible to predict whether resolution values for
Bendix-related asbestos claims will increase, decrease or
stabilize in the future.
"Our consolidated financial statements reflect an estimated
liability for resolution of pending (claims actually filed as of
the financial statement date) and future Bendix-related asbestos
claims. We have valued Bendix pending and future claims using
average resolution values for the previous five years. We update
the resolution values used to estimate the cost of Bendix pending
and future claims during the fourth quarter each year.
"The liability for future claims represents the estimated value
of future asbestos related bodily injury claims expected to be
asserted against Bendix over the next five years. Such estimated
cost of future Bendix-related asbestos claims is based on
historic claims filing experience and dismissal rates, disease
classifications, and resolution values in the tort system for the
previous five years. In light of the uncertainties inherent in
making long-term projections, as well as certain factors unique
to friction product asbestos claims, we do not believe that we
have a reasonable basis for estimating asbestos claims beyond the
next five years. The methodology used to estimate the liability
for future claims is similar to that used to estimate the
liability for future NARCO-related asbestos claims.
"Our insurance receivable corresponding to the liability for
settlement of pending and future Bendix asbestos claims reflects
coverage which is provided by a large number of insurance
policies written by dozens of insurance companies in both the
domestic insurance market and the London excess market. Based on
our ongoing analysis of the probable insurance recovery,
insurance receivables are recorded in the financial statements
simultaneous with the recording of the estimated liability for
the underlying asbestos claims. This determination is based on
our analysis of the underlying insurance policies, our historical
experience with our insurers, our ongoing review of the solvency
of our insurers, judicial determinations relevant to our
insurance programs, and our consideration of the impacts of any
settlements reached with our insurers.
"Honeywell believes it has sufficient insurance coverage and
reserves to cover all pending Bendix-related asbestos claims and
Bendix-related asbestos claims estimated to be filed within the
next five years. Although it is impossible to predict the
outcome of either pending or future Bendix-related asbestos
claims, we do not believe that such claims would have a material
adverse effect on our consolidated financial position in light of
our insurance coverage and our prior experience in resolving such
claims. If the rate and types of claims filed, the average
resolution value of such claims and the period of time over which
claim settlements are paid (collectively, the Variable Claims
Factors) do not substantially change, Honeywell would not expect
future Bendix-related asbestos claims to have a material adverse
effect on our results of operations or operating cash flows in
any fiscal year. No assurances can be given, however, that the
Variable Claims Factors will not change."
A full-text copy of the Form 10-K is available at
https://is.gd/IBn8R4
ASBESTOS UPDATE: NY App. Div. Junks "Montanez" Asbestos Appeal
--------------------------------------------------------------
The Appellate Division of the Supreme Court of New York, at the
behest of Defendant-respondent Beck/Arnley Worldparts, Inc., has
dismissed the appeal taken from an order of the Supreme Court,
New York County, entered on or about February 9, 2017, in the
case styled In Re New York County Asbestos Litigation: Ivette
Montanez and Peter Montanez, Plaintiffs-Appellants, v.
Beck/Arnley Worldparts, Inc., et al., Defendants-Respondents,
(N.Y. App. Div.).
A full-text copy of the Decision dated March 8, 2018, is
available at https://tinyurl.com/y83nvsbf from Leagle.com.
ASBESTOS UPDATE: Summary Ruling Favoring Moore Dry Dock Affirmed
----------------------------------------------------------------
The First District of the Court of Appeals of California affirmed
the summary judgment in the appealed case Sandra Foglia, et al.,
Plaintiffs and Appellants, v. Moore Dry Dock Company, Defendant
and Respondent, No. A142125, (Cal. Ct. App. 1d), ruling that the
evidence was not sufficient to support a reasonable inference
that Felix Foglia was exposed to asbestos at Moore Dry Dock.
Plaintiffs Sandra Foglia, individually and on behalf of the
estate of Ronald Foglia (decedent), Michael Foglia and Annette
Rackley appeal the summary judgment entered against them on their
wrongful death claim against Defendant Moore Dry Dock (MDD),
based on the allegation that decedent developed mesothelioma
after secondary exposure to asbestos brought home by his father,
Felix Foglia (Father) from Father's work at a shipyard operated
by MDD.
MDD moved for summary judgment claiming it owed no duty of care
to decedent for secondary exposure and that Plaintiffs did not
have and could not reasonably obtain evidence to show that
decedent was exposed to asbestos from the clothing and person of
Father as a result of Father's employment at MDD from 1942 to
1945. The motion argued that decedent, who would have been barely
five years old when his father allegedly ceased work at MDD, had
been deposed and could provide only a vague recollection that
Father worked for MDD.
MDD argued that it had served plaintiffs with "state all facts"
special interrogatories and standard asbestos interrogatories and
that plaintiffs responded with nothing but allegations as to what
they believed "could have" happened.
Plaintiffs offered no evidence as to what the asbestos-containing
products consisted of, or the manner in which exposure occurred.
MDD asserted these responses were factually devoid and supplied
prima facie evidence that plaintiffs did not possess and could
not reasonably obtain evidence to support their claims.
Plaintiffs' evidence included the following:
(1) Additional excerpts from decedent's deposition stating
that Father was a lead electrician and worked on ship conversions
at MDD and was employed by MDD, though he might have gone to
Kaiser and other places during this time and that Father would
come home without changing his clothes and they would play
(physical rough-housing, Father would pick decedent up and throw
him over Father's shoulder).
(2) A declaration from Amelia L. Garcia, decedent's aunt and
Father's sister, who stated her brother Felix Phil Foglia was
decedent's father that he worked as an electrician on ships at
MDD in the early 1940s and that decedent lived with Father and
they would visit her and decedent's grandfather at grandfather's
home.
(3) Excerpts from previous trial testimony and depositions
of James R. Moore, who had been designated in other cases as
MDD's Person Most Knowledgeable, and who testified therein that
outside contractors had installed asbestos-containing insulation
aboard MDD's ships, that there may have been asbestos in some
electrical equipment or material that MDD employees installed.
It's possible that there was asbestos in joiner work. Moore also
testified that at just about any given time during the ship
building period, laborers would be dry sweeping up asbestos dust
with brooms and dust pans.
(4) Excerpts from the deposition of Barry Castleman, and a
declaration by Barry R. Horn, proffered experts.
Following a hearing on the motion, the court rejected MDD's claim
it owed no duty to decedent as a matter of law. The court found a
duty of care could arise on the part of an employer to protect
family members of its employees from exposure to harmful
substances encountered by its employees in the course and scope
of their employment. The court next concluded MDD had made a
sufficient showing based on plaintiff's factually devoid
discovery responses to shift the burden of proof to plaintiffs
regarding Father's exposure.
The trial court granted summary judgment, ruling the evidence was
not sufficient to support a reasonable inference that Father was
exposed to asbestos at MDD.
Plaintiffs contend the trial court erred in finding MDD made a
sufficient showing, based on plaintiffs' factually devoid
discovery responses, to shift the burden of proof to them on the
issue of the exposure of Father. Plaintiffs further assert that
even if the burden did shift, their evidence raised triable
issues as to Father's exposure to asbestos from his employment at
MDD. Finally, Plaintiffs contend the court erroneously excluded
lay and expert testimony that raised a triable issue as to
Father's exposure to asbestos from his employment at MDD.
The Court notes that a threshold issue in asbestos litigation is
exposure to the Defendant's product. If there has been no
exposure, there is no causation. Plaintiffs bear the burden of
"demonstrating that exposure to asbestos products was, in
reasonable medical probability, a substantial factor in causing
or contributing to the risk of developing cancer." Factors
relevant to assessing whether such a medical probability exists
include frequency of exposure, regularity of exposure and
proximity of the asbestos product.
Therefore, the Court says that Plaintiffs cannot prevail without
evidence of exposure to asbestos-containing materials
manufactured or furnished by a defendant with enough frequency
and regularity as to show a reasonable medical probability that
this exposure was a factor in causing the Plaintiff's injuries.
While there are many possible causes of any injury, a possible
cause only becomes probable when, in the absence of other
reasonable causal explanations, it becomes more likely than not
that the injury was a result of its action.
The Court also finds that Defendants did propound comprehensive
interrogatories, including specially-prepared interrogatories,
requesting that plaintiffs "state all facts" supporting their
contention that decedent and Father's alleged exposure to
asbestos-containing material was caused by MDD. Further, at his
deposition, decedent was asked about the basis for his testimony
as to the circumstances of his Father's alleged employment at MDD
and responded that his father and his aunt had told him so and
acknowledged he had no other basis for such knowledge.
The Court holds that a witness must have personal knowledge of a
subject for the testimony about it to be admissible, unless the
witness is testifying as an expert. "Personal knowledge means a
present recollection of an impression derived from the exercise
of the witness's own senses. A witness cannot competently testify
to facts of which he or she has no personal knowledge.
The trial court excluded decedent's testimony that Father was a
lead electrician for the shipyards, supervising a crew of men
working on ship conversions and that he believed Father worked at
MDD and was employed by MDD. Decedent was less than five years
old at the time and acknowledged he had no personal knowledge of
Father's employment and that his knowledge was based on what
Father and decedent's aunt had told him. Decedent admittedly
lacked personal knowledge as to this testimony, which was
entirely based on hearsay statements made to him. That a family
member is testifying as to what other family members told him
does not make this testimony admissible.
The Court determines that neither decedent nor Garcia was an
expert witness, and neither decedent's deposition testimony nor
Garcia's declaration disclosed the type of factual foundation or
explanation, from which an inference of personal knowledge or
expertise could be drawn. As such, the trial court did not err in
excluding decedent's testimony about his father's alleged work at
MDD.
The trial court sustained MDD's objections to those portions of
Garcia's declaration that her brother worked as an electrician at
MDD in the early 1940s, ruling Garcia did "not disclose any
source of knowledge about her brother's job duties other than
statements made by him." Garcia declared the matters stated
therein were based upon her "personal knowledge." But that
recitation carries no weight.
Plaintiffs argue that the court could reasonably infer that
Garcia had personal knowledge of her brother's occupation from
her statement that she lived at home with her mother and father
at the time and saw decedent and Father when they would visit.
The trial court determined the evidence in Garcia's declaration
was not sufficient to sustain a finding that Garcia had personal
knowledge that Father worked as an electrician on ships at MDD in
the early 1940s. Garcia's statement that "she lived at home with
her parents and saw Father and decedent" does not provide a
foundation of personal knowledge regarding father's alleged
employment as an electrician working on ships at MDD.
Plaintiffs further contend that Garcia's statement as to Father's
employment was not hearsay, as there was no sentence in the
declaration that was "an out of court statement offered to prove
the truth of the matter stated." In the absence of any foundation
indicating personal knowledge in the declaration, the trial court
did not err in concluding the only source of Garcia's knowledge
was inadmissible hearsay from Father or her parents.
The trial court concluded that even if it had admitted decedent's
deposition testimony and Garcia's declaration, "there would still
be an absence of admissible evidence that Felix Foglia worked
with asbestos-containing materials, or that his work with
asbestos-containing materials would have released asbestos fibers
into the air as a result of MDD activities." It appears the court
was correct in this regard, as even placing Father as an
electrician working at MDD during the early 1940s does not
provide evidence he was exposed to asbestos.
As the trial court explained: "Plaintiffs suggest that because
there was insulation work being performed at MDD during the
relevant period of time, decedent's father must have been exposed
to asbestos from that work. However, there is no evidence in the
record of the amount of asbestos work that was being conducted at
MDD, what the levels of asbestos would have been at the shipyard
or on any ship, or that Felix Foglia was in the vicinity of
asbestos work while it was being performed. Even if the
declaration of Amelia Garcia and the deposition testimony of
decedent were admitted, the evidence is not sufficient to support
a reasonable inference of decedent's exposure resulting from MDD
activities.
Plaintiffs challenge the court's exclusion of the Castleman and
Horn testimony, claiming there was ample foundation for the
assumption that Father was "somewhere in the shipyard," citing to
decedent's deposition testimony. The trial court excluded the
testimony because there was no admissible evidence that Father
worked with or around asbestos insulation on ships at MDD. The
Court maintains that there was no foundation for the opinions
that Father brought home asbestos fibers on his clothes from work
at MDD or that Father worked with or around asbestos.
The Court points out that an expert's speculations do not rise to
the status of contradictory evidence, and a court is not bound by
expert opinion that is speculative or conjectural. The Court says
that parties cannot manufacture a triable issue of fact through
use of an expert opinion with self-serving conclusions devoid of
any basis, explanation, or reasoning.
The Court opines that the Castleman deposition was focused on the
issues of what MDD would have known about asbestos fiber
transportability in the early 1940s and the question of secondary
asbestos exposure. Castleman's opinion as to Father's exposure is
based on decedent's testimony that father worked at as an
electrician at MDD during World War II and would come home in his
dusty work clothing without changing. Such testimony is clearly
without foundation, absent other admissible evidence that Father
worked as an electrician in MDD shipyards during this period,
worked with or around asbestos, and would have been exposed to
asbestos due to his work. Further, Castleman's testimony did not
tend to prove or disprove any facts relating to Father's exposure
to asbestos and was therefore irrelevant to that issue.
As the trial court observed, Horn's declaration assumes that
Father worked on a ship at MDD, and there was no evidence
supporting that assumption. Horn's testimony is without
foundation where there was no admissible evidence that Father
worked on ships or in the shipyards around asbestos insulation or
other sources of asbestos at MDD.
On the record before the Court, admissible evidence connecting
Father with MDD was thin at best. In any event MDD did not appear
to dispute in its motion for summary judgment or in its separate
statement that Father worked for MDD. Moreover, for purposes of
the summary judgment motion the court assumed the records showed
Moore Securities Company and MDD were the same entity and that
Father worked at MDD.
Even so, the trial court accurately concluded that the records
"do not show where decedent's father was employed or his job
duties. There is no admissible evidence that decedent's father
worked as an electrician, that he worked at the shipyard or on
ships at MDD, that he worked with or in proximity to asbestos-
containing materials, or that he worked with or in proximity to
asbestos-containing materials that would have released asbestos
fibers into the air to which he was exposed. Plaintiffs suggest
that because there was substantial insulation work being
performed at MDD during the relevant period of time, or other
asbestos products on ships, decedent's father would inevitably
have been exposed to asbestos simply by being present on ships or
at the shipyard.
Plaintiffs concede that there is no evidence on this record of
the amount of asbestos work that was being conducted at MDD or
what the levels of asbestos would have been at the shipyard or on
any ship and that there is no evidence that decedent's father was
in the vicinity of insulation work while it was being performed
or work involving any other asbestos containing product."
Consequently, the court concluded there was no evidence of the
time, locations, or actual circumstances of the alleged exposure
and the record establishes that no such evidence exists.
A full-text copy of the Decision dated March 8, 2018 is available
at https://tinyurl.com/y73j3bok from Leagle.com.
ASBESTOS UPDATE: American Precision Must Answer Discovery
---------------------------------------------------------
American Precision Industries, Inc., commenced an action on
December 16, 2014, seeking a declaration that the defendant
Insurers, Federal Insurance Company, Fireman's Fund Insurance,
and North River Insurance Company, must defend and indemnify
American Precision Industries "in connection with all pending and
future asbestos-related claims asserted against American
Precision Industries," and reimburse defense fees and costs and
settlement amounts "previously incurred by American Precision
Industries in connection with these asbestos-related claims."
Federal sold American Precision Industries five annual
comprehensive general liability insurance policies covering the
period from April 1, 1992 through April 1, 1997. Fireman's is
alleged to have sold American Precision Industries consecutive
primary comprehensive general liability insurance policies
covering April 1, 1985 through April 1, 1989. Finally, North
River allegedly issued a primary comprehensive general liability
insurance policy covering the period from December 31, 1974
through December 31, 1977.
American Precision Industries was formed as a corporation under
New York law in 1946. In 1996, American Precision Industries
formed three subsidiary companies: API AirTech, Inc., API Basco,
Inc., and API Heat Transfer, Inc. American Precision Industries
transferred certain assets to AirTech and Basco in return for all
outstanding shares of those companies. That same year, American
Precision Industries transferred all of the outstanding shares of
AirTech and Basco to Heat Transfer in return for all of the
shares of Heat Transfer. American Precision Industries never
transferred any asbestos liabilities to Heat Transfer, AirTech,
or Basco during these transactions.
Thereafter, Heat Transfer merged into AirTech and the surviving
company retained the name Heat Transfer. At the end of 1998,
Basco, and two other entities, API Ketema, Inc., and API Schmid-
Bretten Inc., merged into Heat Transfer. At that time, American
Precision Industries owned all of Heat Transfer as a subsidiary.
In 2002, American Precision Industries sold Heat Transfer to API
Heat Transfer Technologies Corporation.
According to the Complaint, American Precision Industries has
been named as a defendant in hundreds of asbestos claims in
numerous states since approximately 2002. These asbestos claims
allege third-party bodily injuries resulting from exposure to
asbestos contained in products manufactured and/or sold by
American Precision Industries, specifically, in heat exchangers
manufactured and/or sold by American Precision Industries. The
alleged third-party bodily injuries occurred during one or more
of the periods covered by the policies issued by the Defendant
Insurers.
The Defendant Insurers allege that "it has become abundantly
clear during this lawsuit that American Precision Industries is
actually seeking reimbursement of the defense costs it incurred
in connection with underlying asbestos suits against companies
other than American Precision Industries." According to Federal,
of the 753 underlying asbestos suits identified by American
Precision Industries in its "bordereaux" or claims report,
American Precision Industries was a named defendant in only one
lawsuit. In the vast majority of cases, the named defendant was
Heat Transfer, not American Precision Industries.
Federal requested that American Precision Industries admit that
it is "named as a Defendant in only one of the 753 Underlying
Asbestos Suits identified in the bordereaux" and if American
Precision Industries' response was anything other than an
unequivocal admission, "identify each and every Underlying
Asbestos Suit in which American Precision Industries is named as
a defendant."
American Precision Industries objected to the request on the
ground "that it seeks information with no relevance to this
action because the liabilities for the underlying Asbestos Suits
belong to American Precision Industries, rather than the
improperly named defendants." Federal also sought an admission
from American Precision Industries that Basco, Heat Transfer, and
AirTech are not named insureds or additional insureds under any
of the Federal Policies. American Precision Industries objected
to these requests "on the grounds that they seek legal
conclusions, rather than facts, and have no relevance to this
litigation because [Basco, Heat Transfer, and AirTech have no
liabilities for the Underlying Asbestos Suits."
Federal further requested that American Precision Industries
admit that it is "seeking reimbursement for amounts it spent for
the defense of non-API entities in 752 Underlying Asbestos Suits"
to which American Precision Industries objected on the ground
"that the phrase 'non- American Precision Industries entities' is
vague and ambiguous." American Precision Industries admitted that
"it seeks, among other things, coverage for amounts expended to
defend actions alleging liabilities retained by American
Precision Industries in 1996 in lawsuits improperly naming other
entities as defendants." American Precision Industries had a
nearly identical response to Federal's request that American
Precision Industries admit that it "is seeking defense for non-
API entities in current and future Underlying Asbestos Suits."
Attempts on behalf of the parties to resolve the discovery
dispute were unsuccessful. American Precision Industries takes
the legal position that because American Precision Industries
retained all pre-1997 asbestos liabilities in connection with its
1997 reorganization, it is entitled to coverage for amounts it
spent to defend Basco, AirTech, and Heat Transfer because
American Precision Industries owns the liabilities of those
companies. American Precision Industries seeks recovery of
amounts it spent to defend its own liabilities regardless of the
incorrectly named defendants." Federal argues that American
Precision Industries' relevance objection is improper at this
juncture in the litigation; and that, in any event, "the
requested matter is relevant from Federal's legal perspective
because no coverage is owed for defense of non-insured entities
regardless of whether the underlying plaintiffs sued the wrong
entities."
Federal, along with Fireman's and North River, now seek an Order
from the Court deeming the following matters admitted: that
American Precision Industries is named as a defendant in only one
of the 753 Underlying Asbestos Suits; that " American Precision
Industries is seeking reimbursement for amounts it spent for the
defense of non- American Precision Industries entities in 752
Underlying Asbestos Suits"; and that Heat Transfer, AirTech, and
Basco are not insured under the defendant Insurers' policies.
Magistrate Judge H. Kenneth Schroeder, Jr., of the U.S. District
Court for the Western District of New York finds that the
defendant Insurers have demonstrated that Request Nos. 32, 40-42,
50, 57-59, 67, 74-76, 84 are relevant in that they directly bear
on the issue of whether the parties named in the underlying
claims are covered under the insurance policies issued to
American Precision Industries. "It is well established under New
York law that a policyholder bears the burden of showing that the
insurance contract covers the loss." In this regard, American
Precision Industries will ultimately need to prove that the past,
present, and future asbestos-related claims for which it seeks
reimbursement, defense, and/or indemnification are covered under
the defendant Insurers' policies. Thus, contrary to American
Precision Industries' arguments, the identity of the defendants
in the asbestos-related claims and that of the named and
additional insureds is entirely relevant to Defendants' "coverage
obligations" and their defense that they are not obligated to
cover the losses under the policies issued to American Precision
Industries.
Although the fact that the process of identifying the named
defendants and insureds may be "burdensome," it does not change
the fact that it is necessary for American Precision Industries
to prevail in this action. American Precision Industries claims
that its bordereaux does not identify the specific defendants or
products in the asbestos lawsuits listed and that to respond to
the Requests, "it would have to work with its defense counsel in
each asbestos lawsuit to ensure [he or she] had reviewed every
operative pleading," and would have to "pull files for nearly 600
closed matters." But the Court says that whatever burden this
task might place on American Precision Industries or its counsel
must be weighed against the significant amount at stake in this
litigation, roughly $6.5 million, based on the addendum.
American Precision Industries apparently seeks over $6.5 million
for defense expenses from the defendant Insurers. Federal argues,
and the Court agrees, that "given the significant amount of the
defense costs, it is difficult to believe that American Precision
Industries' defense counsel did not perform the rudimentary task
[of ascertaining the named defendants] at the outset of each
lawsuit."
Even if no such inquiry was made before undertaking the defense
of these cases, the fact remains that American Precision
Industries is in the best position to identify the named
defendants in each of the asbestos-related claims for which it
seeks coverage and to determine if Heat Transfer, AirTech, and/or
Basco are named or additional insureds under the alleged
policies, issues absolutely central to this declaratory judgment
action. Accordingly, the Court directs American Precision
Industries to answer Federal Request Nos. 32, 40-42, 50, 57-59,
67, 74-76, 84, and the analogous Requests from Fireman's and
North River, within 45 days of the Decision and Order.
Regarding Federal Request No. 33, calling for an admission that
"American Precision Industries is seeking reimbursement for
amounts it spent for the defense of non-API entities in 752
Underlying Asbestos Suits," the Court finds that American
Precision Industries' response was sufficient given the vague and
misleading term "non-API entities." Defendants define "non-API
entities" as: "any and all entities not named American Precision
Industries Inc. for whom American Precision Industries expended
money to defend underlying Asbestos Suits for which American
Precision Industries is seeking reimbursement in this Declaratory
Judgment Action, and/or any and all entities not named American
Precision Industries for whom American Precision Industries is
seeking a defense in the Declaratory Judgment Action for in
current and future Underlying Asbestos Suits."
American Precision Industries objected to Defendants definition
of "non-API entities" on the ground that the phrase "non-API
entities" is vague and ambiguous. Subject to and without waiving
its objections, American Precision Industries admits that it
seeks, among other things, coverage for amounts expended to
defend actions alleging liabilities retained by American
Precision Industries in 1996 in lawsuits improperly naming other
entities as defendants.
Accordingly, the Court denies defendants' motion to deem this
matter admitted, explaining that American Precision Industries
cannot be compelled to abandon its legal theory that the
liabilities of Basco, Heat Transfer, and AirTech are in fact
American Precision Industries' own liabilities.
The case is American Precision Industries, Inc., Plaintiff, v.
Federal Insurance Company, Fireman's Fund Insurance Company, and
North River Insurance Company, Defendants, No. 14-CV-1050-RJA,
(W.D. N.Y.).
A full-text copy of the Decision and Order dated March 8, 2018,
is available at https://tinyurl.com/yasf4l27 from Leagle.com.
American Precision Industries, Inc., Plaintiff, represented by
Adam J. Budesheim -- abudesheim@mccarter.com -- McCarter &
English, David C. Kane -- dkane@mccarter.com -- McCarter &
English & Gita F. Rothschild -- grothschild@mccarter.com --
McCarter & English.
Federal Insurance Company, Defendant, represented by Emmett
Eugene McGowan , Siegal & Park & Seth Goodman Park , Siegal &
Park.
Fireman's Fund Insurance Company, Defendant, represented by Jay
David Kenigsberg -- jay.kenigsberg@rivkin.com -- Rivkin, Radler
LLP, Lawrence A. Levy -- larry.levy@rivkin.com -- Rivkin, Radler
LLP, Michael Kotula -- michael.kotula@rivkin.com -- Rivkin,
Radler LLP & Peter P. McNamara -- peter.mcnamara@rivkin.com --
Rivkin, Radler LLP.
North River Insurance Company, Defendant, represented by Douglas
J. Steinke -- douglas.steinke@kennedyscmk.com -- Kennedys CMK
LLP, Michael J. Tricarico -- michael.tricarico@kennedyslaw.com --
Kennedys CMK LLP & Martha E. Conlin --
martha.conlin@kennedyscmk.com -- Kennedys CMK LLP.
ASBESTOS UPDATE: Court Affirms $64MM Judgment in Favor of Utica
---------------------------------------------------------------
A jury trial was held between November 27, 2017, and December 13,
2017, at the conclusion of which the jury returned a verdict in
favor of plaintiff Utica Mutual Insurance Company ("Utica") on
its sole claim for breach of contract. The jury awarded plaintiff
$35 million in damages plus interest running from September 22,
2008. Prejudgment interest was calculated at $29,092,192 and
judgment entered in favor of Utica for $64,092,192.
Defendant Fireman's Fund Insurance Company ("FFIC") now renews
its motion for judgment as a matter of law pursuant to Rule
50(b), arguing that it is entitled to judgment as a matter of law
under Rule 50 both because Utica failed to present legally
sufficient proof that there was a breach of contract and because
FFIC proved its late notice defense as a matter of law.
FFIC raises three bases on which it claims the evidence was
lacking and consequently require the granting of its Rule 50
motion for judgment as a matter of law. First, FFIC argues that
the reinsurance certificates do not cover the loss at issue.
Second, the follow the settlements doctrine does not apply.
Third, notice was late and FFIC was economically prejudiced or
Utica's failure to implement routine procedures constituted gross
negligence or recklessness.
Utica opposes and contends that the presence or absence of
aggregate limits in the primary policies and the therefore
subsequent question of whether the reinsurance certificates cover
the loss at issue is irrelevant to the instant inquiry and it was
not required to prove such at trial. Instead, the evidence was
sufficient for a jury to conclude that its settlement decisions
were objectively reasonable and that FFIC failed to meet its
burden on its late notice defense.
Judge David N. Hurd of the U.S. District Court for the Northern
District of New York finds Utica correct in that it was not
required to prove by a preponderance of the evidence that the
primary policies contained aggregate limits for bodily injury in
order for the "follow the settlements clause" to apply and
obligate FFIC to pay under the reinsurance certificates. Instead,
the "follow the settlements clause" applied unless FFIC could
show that Utica's settlement decisions were objectively
unreasonable. The jury was instructed to decide whether Utica's
decision to settle with Goulds on the basis that its 1966 through
1972 primary policies contained aggregate limits was among the
objectively reasonable options available to Utica. Therefore,
FFIC's continued claim that there was no coverage in the first
place -- that the primary policies either lacked aggregate limits
and thus did not trigger the umbrella policies whatsoever, or in
the alternative, that if the primary policies included such
limits, the reinsurance certificates did not provide coverage
based on the umbrella declarations -- will not be entertained
here.
The Court notes that at the outset, neither party had a witness
with personal knowledge of the primary policies. Plaintiff
presented the following evidence in support of its position that
its settlement with Goulds was objectively reasonable. First,
Utica General Counsel Bernard Turi testified that Utica engaged
in a "full blown effort" to try to find copies of the missing
1966 to 1972 primary policies: Utica extensively searched its own
records, gathered records from Goulds, spoke with the brokers
that placed the coverage, examined comparable polices and
insurance certificates, and retained outside counsel to determine
the terms and scope of the missing policies.
California coverage counsel for Utica, Ron Robinson, testified
about the "virtual policy project" he completed in order to
reconstruct the missing policies. The "virtual policy project"
was based upon state filings, underwriting drafts, certificates
of insurance, and other secondary evidence respecting the missing
policies. Utica presented evidence that Goulds' summaries of its
own insurance program from the 1966 to 1972 period showed
aggregate limits for products liability. Two of the primary
policies from that time period showed an aggregate limit. Utica
argued that in the absence of evidence that Goulds intended to
change its insurance program, this "book end" proof provided
evidence to Utica that the intervening policies had the same
limits.
Further, Kristen Martin, the Utica attorney with day-to-day
responsibility for the underlying Goulds litigation testified
that the gathered evidence clearly established that the missing
primary polices contained aggregate limits and that Utica never
wavered from that position. In sum, the results of Utica's
investigation, Mr. Robinson's virtual policy project, and the
final advice from Utica's outside counsel all confirmed to Utica
that the 1966 to 1972 primary polices contained aggregate limits.
Dennis Connolly, one of plaintiff's experts, opined that
aggregate limits were standard in the 1960s and 70s and confirmed
the reasonableness of Utica's position on same. Utica also
introduced evidence that Brian Gagan, one of FFIC's prior experts
in the underlying litigation, agreed with that position.
Considering this and other evidence together, the Court
determines that a reasonable jury could have concluded that Utica
had a sufficient basis on which to reach the conclusion that the
Goulds primary polices contained aggregate limits and thus make
the settlement decisions that it did. Further in support of the
jury's verdict was testimony and documentary evidence from Utica
witnesses that the settlement itself was the result of arms-
length negotiations: the settlement negotiations began in 2004,
two years before the final settlement agreement; Utica and Goulds
held lengthy mediation discussions; in a stipulated order, the
overseeing judges found that the settlement was "fair, just and
reasonable" and had been "entered at arm's length and in good
faith by the parties."
In sum, the jury had ample evidence from which it could conclude
that Utica acted objectively reasonable in its decision to settle
with Goulds for $325 million on the basis that the primary
policies contained aggregate limits for bodily injury. Therefore,
the Court says that there was sufficient evidence to conclude
that the follow the settlements doctrine applied and FFIC was
obligated to pay under the reinsurance certificates.
While FFIC also put forth ample evidence refuting Utica's
contention that it acted reasonably, the Court points out that
evidence was not such that there could have been only a verdict
in defendant's favor. Regarding the umbrella declarations which
FFIC relied heavily on to support the position that the primary
policies lacked aggregate limits and thus Utica was not
reasonable in settling on the basis that there were such limits,
the pages themselves nor the testimony supporting this position
required the jury to find that Utica's determination of the
primary policy terms was unreasonable. Even if the jury
interpreted the umbrella policies as evidence that the primary
policies lacked aggregate limits, that evidence did not
automatically render Utica's evidence insufficient to permit a
reasonable juror to find in Utica's favor, particularly when now
considering the evidence in the light most favorable to Utica,
the opposing party on the instant motion.
Accordingly, the Court denies FFIC's Rule 50 motion for judgment
as a matter of law on a legally sufficient evidentiary basis that
a reasonable jury could have concluded that Utica's settlement
decisions were objectively reasonable and thus the follow the
settlements doctrine applied.
Likewise, FFIC could not sustain its burden on its late notice
defense because there was sufficient evidence for a jury to
conclude that FFIC failed to prove either both late notice and
either material breach or demonstrable prejudice. The Court
explains that a reasonable jury could have concluded that FFIC
failed to carry its burden to prove tangible economic injury.
While FFIC employee Jeffrey Svestka testified regarding FFIC's
commutation prejudice chart, which was a summary of FFIC's
alleged prejudice. However, FFIC presented no witness involved in
any of FFIC's actual negotiations with its commuting reinsurers.
The Court notes that a reasonable jury could have afforded Mr.
Svestka's testimony little or no weight. From his testimony,
Utica attorneys submitted that he did not take into account the
following: any affirmative defenses that FFIC was asserting to
the billing; the amount of losses that Utica had paid as of 1996
or any other time; any objections to payment by FFIC's
reinsurers; the fact that 5 of the 13 reinsurers were insolvent
at the time of their commutations; and whether notice was in fact
due in 1996. By contrast, Utica put forth evidence that as of
1996 it had paid only about $100,000 over the past 10 years and,
at the same rate, it would have taken over 10,000 years to reach
FFIC's reinsurance layer. Considering this testimony, a jury
could have found Mr. Svestka's assumption that FFIC was faced
with a full limits loss in 1996 not credible.
Mr. Svestka testified that in 8 of the 13 commutations, FFIC
attributed zero dollars in liability for commutation of the $90
million in limits that FFIC had written as a direct insurer of
Goulds. While FFIC disputes the applicability of that evidence, a
jury could have found that there was no reason to believe FFIC
would have treated the Utica reinsurance claim any differently
than a direct insurance claim. Further, Utica evidence showed
that even after FFIC received formal notice of the Utica (Goulds)
reinsurance claim in July 2008, FFIC failed to take it into
account in two subsequent commutations. Considering this
evidence, a reasonable jury could have concluded that FFIC failed
to show that it suffered tangible economic injury from any late
notice. Therefore, the Court finds no reason to consider the late
notice prong.
The bulk of FFIC's evidence centered around Utica's specific
document retention policies and the fact that the primary
policies were never located. Utica's document retention policy
was 11 years, which met the industry standard. Testimony
established that missing or incomplete contract files from the
1960s and 1970s was not out of the ordinary for insurers dealing
with these types of liability claims in the 1990s and 2000s.
Utica put forth evidence that with respect to Goulds itself,
three of its five direct insurers lacked complete contract files
when coverage was being litigated.
Utica also put forth evidence that it provided early notice to
over a dozen facultative reinsurers that Utica was aware of
before notice was due. This evidence considered together formed a
sufficient basis for a jury to conclude that Utica had
implemented routine practices and controls to ensure notification
to reinsurers which worked in the majority of cases, and to the
extent those practices did not work in the FFIC matter, such
failure did not constitute bad faith, gross negligence, or
recklessness.
Accordingly, the Court denies FFIC's Rule 50 motion for judgment
as a matter of law because FFIC failed to sustain its burden to
prove its late notice defense.
FFIC moves in the alternative for a new trial under Rule 59 on
the same grounds as its Rule 50 motion. Even considering the
evidence under the less stringent standard of Rule 59, FFIC has
failed to meet its burden to be granted a new trial for the same
reasons considered under Rule 50. The jury apparently assigned
more weight to Utica's witnesses or evidence and it cannot be
said that the jury's conclusions on the follow the settlements or
the late notice defense were either seriously erroneous or a
miscarriage of justice. Considering the admissible evidence, the
jury's verdict was not egregious or against the weight of the
evidence. The jury's evaluations in resolving the credibility of
witnesses and other fact finding duties will not be disturbed in
this case.
The Court finds the record contained sufficient evidence to allow
the jury to determine that Utica provided a sufficient proof of
loss as of September 22, 2008, when it delivered a claims
narrative and billings to FFIC. FFIC employee Gary Ibello
testified that the materials Utica sent on September 22, 2008
were a standard format in the industry for a proof of loss. Utica
also put forth evidence that FFIC had direct knowledge of the
details of the Goulds asbestos claims because it insured Goulds
directly and was involved in the same Goulds coverage lawsuit as
plaintiff. Based on Mr. Ibello's and Christy Bresson's (the FFIC
employee who handled the Utica reinsurance claim) testimony, the
jury could have concluded that FFIC had sufficient information as
of September 22, 2008, intelligently to form some estimate of its
rights and liabilities. The verdict was thus not against the
weight of the evidence. Therefore, the Court also denies FFIC's
alternative Rule 59 motion for a new trial.
FFIC also moves to correct the judgment under Rule 60(a) and
requests correction of a manifest clerical error in the
calculation of interest reflected in the judgment. Specifically,
it contends the interest should be reduced from the current
$29,092,192 to $27,637,815 based on New York Civil Practice Law
and Rule section 5001.
FFIC asserts that the error resulted from the incorrect
assumption that the entire amount owed under the reinsurance
certificates ($35 million) became payable on September 22, 2008,
the date of Utica's initial billing. Instead, Utica's initial
bill was only for $16,794,738, and it sent six additional
billings to FFIC over the following 21 months for the remaining
balance of the $35 million. Therefore, because Utica issued its
billings over time and did not bill the entire amount on
September 22, 2008, FFIC contends interest began to accrue only
from the date of each subsequent billing. FFIC argues that under
New York law, prejudgment interest runs from the date of breach,
and it could not have breached until performance was due, i.e.,
the date each demand for payment was made. It contends that such
a recalculation is merely a mathematical and clerical one.
The Court finds FFIC's motion procedurally improper because such
a revision would be substantive rather than clerical and is thus
not the sort of recalculation appropriate under Rule 60(a). A
revision to the interest calculation here would require a finding
of fact regarding the (additional) dates from which the interest
would run. Those facts are properly ones for a jury to decide,
and they did so when they chose September 22, 2008 as the date
Utica provided sufficient proof of loss. Accordingly, the Court
also denies FFIC's motion to correct the interest calculation in
the judgment pursuant to Rule 60.
A full-text copy of the Memorandum-Decision and Order dated
February 28, 2018, is available at https://tinyurl.com/ydd3ql92
from Leagle.com.
Utica Mutual Insurance Company, Plaintiff, represented by Syed S.
Ahmad -- sahmad@hunton.com -- Hunton & Williams, LLP, Walter J.
Andrews -- wandrews@hunton.com -- Hunton & Williams, LLP, pro hac
vice, Daniel R. Thies -- DTHIES@SIDLEY.COM -- Sidley, Austin Law
Firm, pro hac vice, Patrick M. McDermott -- pmcdermott@hunton.com
-- Hunton & Williams, LLP, pro hac vice, Thomas D. Cunningham --
TCUNNINGHAM@SIDLEY.COM -- Sidley, Austin Law Firm, pro hac vice &
William M. Sneed -- WSNEED@SIDLEY.COM -- Sidley, Austin Law Firm,
pro hac vice.
Fireman's Fund Insurance Company, Defendant, represented by John
B. Williams -- jbwilliams@williamslopatto.com -- Williams,
Lopatto Law Firm, pro hac vice, Mary A. Lopatto --
malopatto@williamslopatto.com -- Williams, Lopatto Law Firm, pro
hac vice & Fara N. Kitton -- fnkitton@williamslopatto.com --
Williams, Lopatto Law Firm.
Fireman's Fund Insurance Company, Counter Claimant, represented
by John B. Williams -- jbwilliams@williamslopatto.com --
Williams, Lopatto Law Firm, pro hac vice & Mary A. Lopatto --
malopatto@williamslopatto.com -- Williams, Lopatto Law Firm, pro
hac vice.
Utica Mutual Insurance Company, Counter Defendant, represented by
Syed S. Ahmad -- sahmad@hunton.com -- Hunton & Williams, LLP,
Walter J. Andrews -- wandrews@hunton.com -- Hunton & Williams,
LLP, pro hac vice & Patrick M. McDermott -- pmcdermott@hunton.com
-- Hunton & Williams, LLP, pro hac vice.
ASBESTOS UPDATE: Newcastle Family Fights for Asbestos Justice
-------------------------------------------------------------
Lisa Hutchinson of ChronicleLive reported that former labourer
Tommy Baldwin is fighting justice from the grave after he died
not knowing he was suffering from an asbestos-related disease.
Now his family are appealing to his former colleagues for help in
discovering where their father was exposed to asbestos after a
coroner found that industrial disease had contributed towards his
death.
Newcastle-born Tommy, whose real name was Thomas, died last year
on April 12, aged 87. Although not diagnosed with cancer during
his life, a post-mortem examination discovered he was suffering
from asbestos-related lung cancer.
In August, at an inquest into his death, the coroner recorded a
narrative verdict in which she said the father-of-three had died
due a combination of natural causes and industrial disease.
Since then Tommy's daughter, Denise Thompson, has instructed
specialist asbestos-related disease lawyers to investigate where
her father was exposed to the deadly dust and fibres that
contributed to his death.
Denise, 58, from Battlefield in Newcastle, said: "Dad's death was
devastating for the entire family. Seeing his health deteriorate
near the end of his life was heart-breaking, and we didn't know
what was causing it.
"When the post-mortem found that dad had been suffering from an
asbestos related lung cancer, the whole family was determined to
discover where and how he had been exposed to asbestos.
"We urge anyone who remembers working with our dad at the various
companies he worked for throughout the 1950s to the end of the
1970s, to please contact our legal team at Irwin Mitchell."
Denise, who is a general assistant at Newcastle University,
added: "We lived on the same estate all our lives and I moved not
far away from him. I saw him every day and I'm devastated.
"I still have to pass dad's front door on my way into work and
it's awful not seeing him there."
Tommy, who was married to Peggy for 30 years prior to her death,
worked as a steel fixer, scaffolder and labourer for numerous
firms across the North East.
Denise's legal team are keen to speak to anyone who remembers
Tommy from Swan Hunter in the 1950s.
They would also like to speak to those who remember working with
Tommy at Sir Robert McAlpine & Sons Limited in 1961 and 1962,
at Taylor Woodrow between 1968 to 1971 and 1974 and 1975, at
Gilbert Ash (Northern) Limited between 1971 and 1973, and finally
at Shepherd Construction Limited from 1975 to 1979.
Due to the nature of the work carried out by these firms, the
legal specialists at Irwin Mitchell believe that Tommy may have
been exposed to asbestos in various manners during his work for
these firms.
Evelyn Parker, Tommy's 86-year-old sister, has recalled to the
family's legal team that Tommy told her on occasions that his
work would require him to remove asbestos lagging from pipes in
order to access them for repair and maintenance purposes.
Emma Tordoff, a specialist at Irwin Mitchell representing Denise,
said: "Unfortunately we often see cases like Tommy's, where those
suffering from an asbestos-related disease are unaware of it
until it is too late.
"Due to the asbestos-related lung cancer being found after his
death, we were unable to speak to Tommy while he was alive to
establish where he may have come into contact with fatal asbestos
dust and fibres."
ASBESTOS UPDATE: Montana County Sued for Asbestos Contamination
---------------------------------------------------------------
Susan Dunlap of Helena Independent Record reported that Just as
the town of Jackson -- population 28 -- gets ready to fix its
water quality problems, the U.S. Department of Justice sued the
town's water and sewer district for the years the unincorporated
town has been out of compliance.
The U.S. Department of Justice sued the town's water and sewer
district Wednesday in federal court for 16 claims of
contamination exceedances, failure to monitor and failure to
provide public notice.
The contamination includes arsenic, radium and radioactive
substances. The district has also failed to monitor for a host of
contamination, including asbestos, according to the court
document.
But Beaverhead County commissioner Mike McGinley said the suit
comes just as Jackson is about to fix the issues. The town has
received $588,000 in grant money within the last year to tackle
the problem. Some of the money came from last year's legislative
session, McGinley said. Another grant came through a federal
community development block grant. Work is to begin this summer
to drill three new wells to get the town back into water quality
compliance, he said.
A message left on the home phone of one of the water service
district members Friday was not immediately returned.
The issues goes back as far as 2005 when the Department of
Environmental Quality notified the water service district that a
recent sample was considerably over the new standard for arsenic
that regulators were about to establish in 2006.
Then in 2008, DEQ gave the town an exemption to allow Jackson
time to secure a consultant to search for a solution. But the
district had to begin monitoring quarterly for arsenic starting
that same year.
A sampling result in 2009 exceeded arsenic. There were also
failures to produce a consumer confidence report telling its
customers of the issue and failures to monitor, according to
court documents.
McGinley said, however, that "it's really hard to believe" the 28
people who live in Jackson are not aware of the problem in their
drinking water. A water service district functions like a public
board, with board members making decisions.
"People have been working on this for nine years now," McGinley
said. "The people in that district have got to make the
decisions."
The Jackson School, an elementary school serving 12 students, is
aware, McGinley said.
A fax machine answered a call to the school Friday afternoon.
There was no opportunity to leave a message.
But according to court documents, the violations mounted after
2009, with the district apparently struggling to comply by
submitting a schedule with deadlines leading up to 2015, when the
town expected to be in compliance.
But it passed that deadline.
DEQ found a sample of water taken in the fall of 2011 exceeded
standards for radioactive substances.
The water service district also failed to monitor for pesticides
and herbicides, asbestos and failed to provide a consumer notice
on lead contamination, according to the court document.
The district's water exceeded the arsenic standard "on numerous
occasions" from 2009 to the present, exceeded the radium standard
"on numerous occasions" since 2011 and exceeded the standard for
radioactive substances from late 2015 to present, according to
the court document.
McGinley said Beaverhead County's sanitary department has been
working with the water district. He said the district tried to
come up with a filter system, looked at options including
trucking water in and building water towers, but finally decided
the best solution was to drill new wells.
McGinley said one resident of Jackson is 100 years old, another
is 95 years old and "they've been living there all their lives,"
he said.
However, contamination affects people differently. Not everyone
gets sick after exposure to environmental contaminants and the
amount of exposure and the health of the person exposed matter,
according to the Agency for Toxic Substances and Disease
Registry.
"There are 20 people and it's a $600,000 fix," McKinley said.
"Hopefully this project (to drill the new wells) will go this
summer. It's a terribly slow process."
ASBESTOS UPDATE: Asbestos Concerns Prompts Beach Boxes Audit
------------------------------------------------------------
Madeleine Heffernan of The Age reported that asbestos concerns
have prompted a sweeping audit of beach boxes on the Mornington
Peninsula, with some warning they may need to be urgently
replaced.
Mornington Peninsula Shire will assess all beach boxes in its
area after the chief executive of the Asbestos Safety and
Eradication Agency raised concerns about the condition of the
structures in Dromana.
Peter Tighe said photos taken at Dromana showed corrugated
asbestos roofs, typical of the material now being categorised as
high risk.
"These are corrugated asbestos roofs and would have been fine at
the time," he told The Age.
"It's the 60 years of degradation that is now the problem. They
are now in a deteriorated state so the longer they stay, the
greater risk it's going to be."
ASBESTOS UPDATE: Asbestos Found in Yonkers Public School
--------------------------------------------------------
Ardina Seward of HamletHub reported that on March 3, 2018, local
news service, Yonkers Voice, received a call from a Mr Alberto
Velazquez expressing a concern for the possibility of asbestos
presence at School #23 where Velazquez is a custodian.
He claimed that the school was notified on or around June/July
2016 but nothing was investigated. Yonkers Voice subsequently
called the Yonkers Public School Public Relations' Office for
clarification. According to Yonkers Voice, the information was
registered but there was no follow up from the school.
Yonkers Voice then went to the school where they found a City
Employee and a school staffer. They attempted to speak with a Mr.
John Carr but he had no comment. Also present was a vehicle,
driven by a person who appeared to be an inspector. That person
said that he was there to check on the "asbestos situation." He
was allegedly overheard to say, "asbestos is everywhere."
As of 4/1/2018, there is an official notice which states that
asbestos has been found in pipe insulation at the school. Clean
up will commence on 4/5/2018-4/7/2018. According to the school
calendar, it will be closed during that period.
ASBESTOS UPDATE: NSW Properties Destroyed by Fire Have Asbestos
---------------------------------------------------------------
SBS reported that tourists have flocked back to the NSW south
coast town of Tathra weeks after a massive bushfire reduced
dozens of homes to ash.
The small community, outside Bega, confronted a firestorm on
March 18 which destroyed more than 60 homes as well as 30
caravans and cabins.
Hundreds of residents face months or years of displacement as
their destroyed properties are cleared of asbestos, assessed by
insurance companies and -- hopefully -- rebuilt.
But many quickly identified tourism would be critical to getting
the town, on the whole, back on its feet.
Bega Valley Shire Council, in a message posted online, said
tourism is a major economic driver for the region and would be
crucial for local restaurants, shops and, ultimately, families.
Council encouraged holidaymakers to not cancel travel plans to
Tathra, adding "the closer to normal the community gets after a
disaster like this, the better we all feel".
"People understand Tathra is open for business and it's pleasing
to see people heeding our message," Bega Valley Shire Mayor
Kristy McBain told AAP on Monday.
Ms McBain said more than 50 per cent of local businesses were
geared toward hospitality and tourism -- and people from across
the region were visiting the town to pour money back in.
"There is a long road ahead but I am taken aback by the support
of people from near and far," she said.
"And I'm astounded by the resilience people have shown just
wanting to get on with things and move on."
Preliminary investigations have pointed to power lines as the
suspected origin of the blaze but two inquiries hope to establish
the exact cause.
Questions also linger about the co-operation between the RFS and
Fire and Rescue NSW after the former refused help from the urban
brigade during the fire.
About 30 per cent of the properties destroyed in the fire are
believed to contain asbestos, Ms McBain said.
A $10 million grant from the NSW Government will help hasten that
cleanup effort but there is still no firm schedule for
rebuilding.
"It's not a quick fix," Ms McBain said.
"We'll be working the next 18 months to two years to make sure
that people have been able to deal with their issues --
rebuilding their properties and restoration of bushland areas."
ASBESTOS UPDATE: Ban Won't End Asbestos-Related Diseases
--------------------------------------------------------
Tim Povtak of Asbestos.com reported that banning all forms of
asbestos won't end the problem of asbestos-related diseases.
It is merely a good starting point.
As more countries around the world move closer to an outright
ban, Australia has become a reminder to guard against false hope.
The Australian experience proves how unrelenting this problem is
and how much more work must be done.
Fifteen years after its much-celebrated ban of the toxic mineral,
Australia has just reached its peak of asbestos-related diseases
such as malignant mesothelioma cancer.
"It took many years, and efforts from many organizations, for a
complete ban to be put in place," epidemiologist Dr. Matthew
Soeberg of the Asbestos Diseases Research Institute (ADRI) told
Asbestos.com. "But Australia's asbestos legacy will continue for
many decades to come, posing an ongoing public health risk."
Australia Sets Example for Others to Follow
Soeberg is the lead author of a study published recently in the
International Journal of Environmental Research and Public Health
that examined his country's ongoing asbestos problem, long after
the laws were passed.
"The Australian asbestos consumption story continues to impose
health, social and economic costs today," he said. "In addition
to the battles fought to achieve a complete asbestos ban, there
are battles to preserve the essential disease surveillance and
safety efforts that we will need to prevent future cases of
asbestos disease."
The fight continues.
There were 16,679 people diagnosed with malignant mesothelioma in
Australia between 1982 and 2016, according to the study. There
were 766 diagnosed in 2016, the last year figures were available.
An estimated 4,048 asbestos-related deaths in Australia were
linked to occupational exposure in 2016, according to the
Institute of Health Metrics and Evaluation. More than 75 percent
of those involved asbestos-related lung cancer.
"Almost 15 years later, Australia is only now seeing the peak of
its asbestos-related disease epidemic," the study concludes. "The
Australian community needs to remain vigilant to the public
health risks of exposure from existing asbestos."
Long Latency Prolongs the Problem
The continued high rate of mesothelioma diagnosis stems partially
from the lengthy latency period that is typical of the disease.
It can take anywhere from 10 to 50 years after asbestos exposure
before mesothelioma is diagnosed.
The consumption of asbestos in Australia, like in many
industrialized nations, peaked in the mid-1970s. According to the
study, more than 700,000 metric tons of asbestos were consumed
during that period for myriad uses, much of it in the
construction and shipbuilding industries.
Asbestos, a naturally-occurring mineral, was valued for both its
versatility and affordability. Asbestos could be mixed with
almost anything to improve strength and heat resistance.
Unfortunately, much of that asbestos is still around -- in homes,
businesses, machinery and vessels -- and becoming more dangerous
as it ages.
Plumbers, electricians and anyone renovating older structures are
at risk today when asbestos products are disturbed.
The Unfinished Story
The threat remains, which explains the creation of the Asbestos
Safety and Eradication Agency (ASEA) in Australia. The ASEA is
the first national-level organization of its kind in the world.
The ASEA focuses on coordinating, monitoring, encouraging and
reporting on the implementation of a National Strategic Plan on
Asbestos Awareness and Management. It serves as a national
framework for increasing awareness of the risks of exposure to
asbestos-containing materials (ACMs).
The National Strategic Plan has six key goals:
* Raise awareness of the health risks of working with or being
exposed to asbestos.
* Share best practices in asbestos management, including the
transport, storage and disposal of the toxic mineral.
* Improve the identification of asbestos and information
sharing about the location of ACMs.
* Promote safe removal of asbestos where ACMs present the
biggest risk.
* Commission, monitor and promote research into the prevention
of asbestos exposure.
* Take a leadership role in promoting an international ban on
asbestos.
The ADRI in Australia is the world's only research institute
focused exclusively on asbestos-related diseases. It has been
actively assisting other countries in working toward a ban.
Yet it also reminds them a ban doesn't finish their work.
"Understanding the pathway to Australia's asbestos ban is
critical for the many countries continuing to use asbestos,"
Soeberg wrote in the study.
"However, it is important to realize that this is only part of an
unfinished story."
ASBESTOS UPDATE: Environmental Board to Review Asbestos Survey
--------------------------------------------------------------
Ben Coley of Lexington Dispatch reported that the Davidson County
Board of Commissioners will hear the results of an asbestos
survey conducted on several buildings in the county.
In October, the commissioners unanimously approved an asbestos
survey that checked 38 facilities across the county.
The county received a proposal from Trinity Environmental to
provide the comprehensive asbestos survey. In addition to
describing the condition of asbestos-containing materials, the
company will also give advice on how to maintain buildings and
train staff. The total cost of the survey was $42,000.
The board will later discuss a request by the Davidson County
Sheriff's Office to fund a school resource intelligence officer.
The position would establish a liaison and single point of
contact between the Sheriff's Office, schools and other agencies
and aid in the coordination of investigations. Currently, all
threats are investigated by the Sheriff's Office Detective
Division and school resource officer personnel.
Other items up for discussion include:
* Annual report by the Community Child Protection Team
* Presentation on a litter reporting application for the
county's website
* Hangar space lease agreement with Wake Aircare
* The commissioners will meet at 8 a.m. in the Commissioners'
Meeting Room on the fourth floor of the Davidson County
Governmental Building.
ASBESTOS UPDATE: Owner Asked to Demolish Abandoned Asbestos Bldg
----------------------------------------------------------------
The Daily Telegraph reported that the words asbestos have been
smeared across an abandoned building in Five Dock that residents
believe poses a health risk to the community. Canada Bay Council
has ordered the owners of the Henry St building to repair or
replace the damaged fibro at the centre.
ASBESTOS UPDATE: $7MM Asbestos Removal Nearly Done at AMA Project
-----------------------------------------------------------------
Jonathan D. Epstein of Buffalo News reported that crews are
nearing completion of the asbestos removal at the former AM&A's
building in downtown Buffalo, but it took a lot more work and
cost more than the New York City-based developers and their
Buffalo contractors had expected.
An investor group called Landco H&L is spending up to $70 million
to convert the 375,000-square-foot vacant complex into a new
hotel, at least two restaurants and multiple other features.
The project was already approved by the city, and work got
underway more than 18 months ago, but it was interrupted by a
contractor dispute and then delayed by the vast amount of
asbestos and other environmental contamination in the long-
abandoned building.
Brian Frost, CEO of Loung Construction, a company formed to
perform the project for Landco, said the scope of work was held
up and then expanded at the direction of the state Department of
Labor, which oversees asbestos removal work. He said the state
asked the contractors to completely "gut the building" because of
the "level of contamination" that was left behind by a prior
contractor.
"So to be safe, we removed anything that was not historically
required to stay," he said, referring to the historic
preservation status of the project, and the oversight of that
component of the project by state and federal regulators.
ASBESTOS UPDATE: DOJ's Role to Clean Up Asbestos Litigation Mess
----------------------------------------------------------------
Glenn G. Lammi of Forbes reported that asbestos -- the heat-
resistant, naturally occurring silicate mineral -- disappeared
from the manufacturing marketplace over 40 years ago.
In those four decades, litigation involving asbestos has been as
impervious to resolution as the mineral itself is to high
temperatures. When we've asked mass-tort litigators "what's the
next asbestos?" some have answered -- not entirely in jest --
"asbestos."
The reasons for asbestos litigation's endurance are many, but
defendants, judges, and public officials have started to
spotlight the role of bankruptcy trusts and plaintiffs' lawyers'
use of them as both shield and sword. Numerous voices, including
state attorneys general and Members of Congress, have called on
the U.S. Department of Justice (DOJ) to investigate misconduct
and potential fraud. DOJ has a number of potent oversight and
enforcement options at its disposal.
Distrust of the Trusts
Forty years of litigation drove companies that mined and sold
asbestos for industrial and other uses out of business. Over 60
bankrupt businesses set up trusts meant to compensate individuals
who contracted mesothelioma or other diseases from asbestos
exposure. Lawyers who represent asbestos plaintiffs dominate the
advisory committees of these trusts. Litigation-reform proponents
justifiably complain that the trusts dole out payments on minimal
proof of exposure and fail to police inconsistent claims that are
made to multiple trusts.
Bankruptcy trusts operate parallel to, but independent from, the
civil justice system. Plaintiffs' lawyers can thus file claims
with the trusts and also sue solvent defendants that manufactured
products or component parts that contained asbestos (e.g.
gaskets, brakes). In civil asbestos litigation, the source of a
plaintiff's asbestos exposure often determines the outcome. The
plaintiffs' lawyers know if their clients had additional or
different exposures, but the defendants are routinely left in the
dark because the lawyer-run bankruptcy trusts block access to
claims information.
The "ah ha" moment for litigation-reform proponents and solvent
defendants occurred during the 2013 creation of an asbestos
bankruptcy trust for Garlock Sealing Technologies. Plaintiffs'
lawyers demanded the trust provide $1.3 billion to cover injury
claims, but the presiding federal bankruptcy judge was skeptical.
He allowed Garlock to conduct discovery on 15 settlements into
which it had entered. Discovery revealed that the plaintiffs had
withheld exposure evidence in all 15 settlements and also delayed
filing claims with bankruptcy trusts until after resolving suits
against Garlock.
The bankruptcy court released a breathtaking opinion on the
Garlock matter in early 2014 that documented a "startling pattern
of misrepresentation." It concluded that Garlock's "last ten
years of its participation in the tort system was infected by the
manipulation of exposure evidence by plaintiffs and their
lawyers." The court decided that Garlock should contribute $125
million, not $1.3 billion to the trust.
In re Garlock emboldened common asbestos-litigation defendants
and civil-justice reformers, and its impact continues to
reverberate to this day.
Possible Federal Action
In each session since 2014, the U.S. House of Representatives has
passed legislationrequiring asbestos bankruptcy trust reporting.
The Senate has never passed its version of the bill. The lack of
a viable legislative solution has inspired serious discussion
about DOJ action.
Civil RICO. One option would be for the U.S. to investigate and
bring civil racketeering charges under the Racketeer Influenced
and Corrupt Organization Act (RICO) against lawyers and law firms
that have committed fraud in their conduct of asbestos
litigation. Prior to filing an action, prosecutors could do
extensive discovery through civil investigative demands (CID).
RICO accords federal prosecutors nationwide service of process,
as well as powerful financial and equitable remedies such as
forfeiture, restitution, and disgorgement.
Several victims of the misconduct unveiled in In re Garlock have
filed private RICO actions. Just prior to the January 2014
bankruptcy court's ruling, Garlock filed a civil RICO action
against some of the firms involved in the 15 settled liability
actions. That suit survived a motion to dismiss in September
2015, with the court ruling that Garlock "successfully alleges
that Defendants engaged in a wide-ranging, systematic, and well-
concealed fraud designed to suppress evidence and inflate
settlement values for mesothelioma claims." Garlock settled the
suit for $358 million, and the complaints as well as Garlock's
evidence have since been unsealed.
In June 2016, John Crane filed civil RICO actions citing evidence
of a scheme to commit fraud and obstruct justice gained from the
Garlock actions. A federal trial judge held that John Crane
lacked jurisdiction to file the claims, a decision that the
plaintiff has appealed to the U.S. Court of Appeals for the
Seventh Circuit.
Federal False Claims Act. A November 6, 2017 letter from 6 state
attorneys general to Attorney General Jeff Sessions urged DOJ to
consider pursuing action under the False Claims Act (FCA) "to put
an end to asbestos trusts' pattern of obstructionism." The letter
explained that Utah Attorney General Sean Reyes had issued CIDs
to several asbestos trusts seeking information that might support
a state false claims action for failing to reimburse Medicaid.
The trusts refused to comply and General Reyes asked a state
court to enforce the CIDs. The court held the state lacked
jurisdiction and dismissed the complaint. Utah has appealed that
ruling.
In a confirmation hearing and in follow-up written questions,
members of the Senate Judiciary Committee asked Civil Division
Assistant Attorney General-Designee Chad Readler about the FCA
and asbestos litigation. Mr. Readler acknowledged the issues and
the possible use of the FCA, stating that fraud in asbestos
trusts was "one of the areas I want to focus on." As with a
possible RICO action, DOJ could first investigate possible FCA
violations by issuing CIDs.
Failure of the trusts to reimburse Medicare for its payment of
medical care for an asbestos claimant's alleged injuries could
give rise to FCA liability. As with the RICO claims discussed
above, a private legal action might show the way. Several
Medicare Advantage plans, relying upon information from the
Garlock matter, have filed suit under the Medicare Secondary
Payer Act seeking reimbursement from law firms that secured trust
disbursements for clients. Humana, United Healthcare, and Aetna
assert that they covered medical expenses for those who received
asbestos trust money.
The U.S. Trustee Program. As discussed in a December 2017 WLF
Legal Opinion Letter, the Justice Department houses the U.S.
Trustee Program, an office that protects the integrity of the
U.S. bankruptcy system. In their letter to the Attorney General,
the 6 state attorneys general suggested that the U.S. Trustee
"could immediately move to require disclosures from the trusts."
WLF's paper supported that conclusion.
The U.S. Trustee acknowledged to the House Judiciary Committee
that without an "independent policeman," there are "risks for
abuse" in asbestos trusts. The office's director, however, stated
that the U.S. Trustee lacks "significant jurisdiction [over such
trusts] post-confirmation." Perhaps motivated by this belief,
three Senators have introduced legislationthat in part confirms
the U.S. Trustee's authority.
If the U.S. Trustee is hesitant to examine asbestos bankruptcy
trusts in the abstract, a recent court decision may create an
opportunity for a targeted action. The U.S. District Court for
the District of Delaware has affirmed a federal bankruptcy
judge's decision to deny Ford and Honeywell unlimited access to
exhibits from nine asbestos bankruptcy matters. If the companies
appeal that outcome to the Third Circuit, the U.S. Trustee could
contemplate a role in the case.
Action in the Public Interest
Asbestos litigation has grown into a multi-billion dollar
industry. Though the plaintiffs' bar clamors for oversight of
every other successful American industry, it wants a hands-off
approach to asbestos litigation. The reason is obvious: they're
the only ones that really profit. Americans as consumers,
employees, shareholders, and pensioners lose when companies spend
millions to defend themselves or go out of business. Even the
asbestos litigation industry's supposed beneficiaries --
asbestos-exposure sufferers -- lose when uninjured parties siphon
off funds from the bankruptcy trusts.
This DOJ has been rightfully circumspect in using its broad
authority. After fulling assessing the situation and its options,
we're confident that the leadership will see the public interest
in its taking action.
ASBESTOS UPDATE: Reid Hospital Asbestos Removal Almost Done
-----------------------------------------------------------
Jason Truitt of Palladium-Item reported that before the walls can
start coming down at the former Reid Hospital site, asbestos has
to be removed from the buildings that make up the campus.
That work began in December, and with hard demolition set to
start next week, the end of the asbestos portion of the project
isn't too far away.
Brooks Bertl of TRC Environmental Corporation was at Monday's
Richmond Common Council meeting to give members his monthly
update on the progress being made at 1401 Chester Blvd.
"We've been working our way back up the hill from the newer
buildings to the older buildings, which have significantly more
asbestos in them," he said.
"We're essentially complete with the newer buildings down the
hill. We've been spending the last month in Reller Hall, in
Jenkins Hall and we're getting ready to start in A Wing, which is
the oldest portion of the property. The significance of that is
it's the last building that we're going to work on, so the
asbestos is moving towards a conclusion in the not-too-distant
future."
The progress sets the stage for major demo work to get under way
next Monday. Bertl said a pre-hard demolition meeting will take
place Wednesday to finalize the details with the contractor on
the project, Renascent.
In addition to hearing Bertl's update, council took action Monday
night to formally accept the first of two $500,000 donations from
Reid Health that will be put toward paying the project's
anticipated price tag of $4.33 million. Reid's second donation
will come next year.
The health network is one of two entities that have contributed
toward tearing down the old hospital buildings. Wayne County is
giving $1.42 million in the form of an Economic Development
Income Tax grant from the Economic Development Corporation of
Wayne County.
Councilman Clay Miller asked Mayor Dave Snow if any other groups
would be approached about helping cover the project's final cost.
"Right now, we have the funds in place to get through what we
need to get through," Snow said. "I'm not going to reach out at
this time for those contributions. I want to see the project
through a little farther and see if that's something we need in
the long run."
The city plans to use money from the Richmond Redevelopment
Commission through funds generated by the city's Tax Increment
Financing (TIF) district to pay for the remaining amount. Snow
also pointed to the fact that the city now owns the propertyand
will benefit from a sale of it in the future.
"Right now, it would be difficult to ask for money from other
entities when in fact we have money in place -- at this time --
to get through the foreseeable future in the project," he said.
Councilman Jamie Lopeman said he still would like to see the
administration reach out to other groups about potentially giving
money.
"I appreciate that point of view, however, every dollar we get is
a dollar saved from (taxpayers), right? So if there's anything
that I can do or any other council (member) can do to help you
approach these entities, please let us know," he said.
ASBESTOS UPDATE: J&J Says at Trial's Close Talc Has No Asbestos
---------------------------------------------------------------
Law360 reported that unbroken decades of testing records reveal
that Johnson & Johnson Consumer's talcum powder has never
contained asbestos, J&J's counsel told a New Jersey jury during
closing arguments in a trial over whether a man contracted his
mesothelioma from the company's products.
The roughly two-month long trial in New Brunswick saw plaintiff
Stephen Lanzo III making the case that it was his daily use of
J&J's products, including its baby powder, starting in the 1970s
and continuing for roughly four decades.
ASBESTOS UPDATE: Hopeman Seeks Limits on Asbestos Claims Coverage
-----------------------------------------------------------------
Law360 reported that ship interior company Hopeman Brothers Inc.
can seek the full limits of AIG Inc. and CNA Financial Corp.
excess insurance policies in a single year to cover costs tied to
asbestos injury claims, a Virginia federal judge ruled, rejecting
the insurers' bid to restrict their potential coverage to a
proportional share of the company's losses.
As part of a sprawling 105-page decision, U.S. District Judge
Mark S. Davis granted Hopeman's request to apply an "all sums"
allocation framework to its coverage battle with AIG.
Rebecca M. Lightle of Virginia Lawyers Weekly reported that
general-liability insurers could enforce their policy limits as
to completed-operations and products hazard claims against the
insured, stemming from decades-old asbestos exposure. Background
This insurance-coverage dispute involves the applicability of two
insurers' policies to past, pending, and future asbestos-related
bodily injury claims against the insured, Appellant The Walter E.
Campbell Company.
ASBESTOS UPDATE: Asbestos Plagued Bastrop County Bldgs for Years
----------------------------------------------------------------
Brandon Mulder of Austin American-Statesman reported that Bastrop
County has been grappling with asbestos in three of its buildings
for years, according to documents obtained through a public
information request.
In February, nine county employees were evacuated from the
historic jailhouse, one of the county's oldest buildings that is
used today for jury assemblies and department offices, after an
analysis of the building revealed that plaster walls damaged by
Hurricane Harvey contained trace amounts of the dangerous fibrous
material.
Then, in March, test samples showed that parts of the Grady Tuck
Building at 104 Texas 150 Loop -- where several of the nine
employees were relocated to from the jailhouse -- also contained
the material in a restroom, which was being considered for a
remodel, as well as in the building's mechanical room, which
staff used for storage.
But old reports obtained from the county show that the Grady Tuck
Building, formerly known as the Bastrop Community Hospital, had
undergone an asbestos assessment and abatement in 1991 when the
building was owned by the city.
A 2017 report also shows that just next door, at the county's
Juvenile Services Building at 106 Texas 150 Loop, tile flooring
throughout the building contained asbestos.
"The flooring tile throughout the building contains 2 percent
Chrysotile asbestos and the associated black mastic contains 4
percent chrysotile asbestos. This material is in good condition,
currently non-friable," meaning that the materials are unlikely
to release the asbestos into the air if left undisturbed, "and a
few tiles are loose but currently covered with an entry rug," the
2017 report read.
Abatement work completed in February 2017 by AAR, Inc. removed
floor tile, mastic, and drywall for $5,400.
A contract between the city of Bastrop and Professional Service
Industries, Inc. for asbestos abatement of the old hospital in
1991 included provisions that the city would have an accredited
inspector identify specific materials at least once every three
years. Ownership of the building transferred from the city to the
county in 1999, according to the county clerk's office.
After the county learned of the remaining asbestos materials in
the Grady Tuck Building last month, County Judge Paul Pape
ordered asbestos-awareness training for county employees. That
training was offered on March 22 and was conducted by the
Scientific Investigation and Instruction Institute.
"A lot of these county buildings were remodeled during a time
when asbestos was the material of choice," Pape said during a
County Commissioners meeting last month. "So, as we remodel them
and find work to do on them, we're going to run into that. It's
not unusual. It's not the first time we've run into it and it's
not the last time."
Several current and former employees who work out of the
jailhouse or Grady Tuck building declined to comment for this
story.
Asbestos assessment and abatement procedures are set and
regulated by the Asbestos Hazard Emergency Response Act of 1986,
which sets regulatory requirements to protect schools and the
public from the carcinogenic material. The rules are enforced
through the Environmental Protection Agency and the Occupational
Safety and Health Administration.
County officials were first ordered to test the jailhouse's air
quality by the Federal Emergency Management Agency after the
building suffered plaster damages during Hurricane Harvey.
Assessment reports show that damages to asbestos-infused plasters
released some of the particles into the air; however, only
minimal airborne asbestos particles were found during testing.
Other asbestos particles were found on office furnishings, files
and electronics. Those items have since been cleaned or disposed
of, officials have said.
In the Grady Tuck Building, the two rooms that tested positive
for asbestos -- the mechanical room and a bathroom -- have either
been sealed off or will require abatement, a county official
said.
It is still too soon to know when County Commissioners will
consider an abatement plan for the historic jailhouse and the
Grady Tuck Building, Pape said. "Bastrop County will continue to
conduct assessments in advance of renovation and repair," he
said.
ASBESTOS UPDATE: Asbestos Removed From Auckland School
------------------------------------------------------
Kendall Hutt of Stuff.co.nz reported that asbestos has been
removed from an Auckland primary school, after leaky building
repairs revealed the asbestos in one of its buildings.
Pacific Decontamination Services carried out the removal work
occured over the Easter break on March 30 and 31.
Earlier, work to upgrade pupil and staff toilets and address
weathertightness issues at Chelsea Primary School in Birkenhead
had revealed the asbestos-containing materials, the fibres of
which were hazardous to human health.
The asbestos was discovered in Block 3, built in 1981, which
principal Amanda Douglas said housed toilet blocks, resource
rooms and a staff room and was not a teaching space.
Douglas said the contractors notified WorkSafe NZ and the
school's neighbours, while the school followed the ministry's
asbestos management process and notified its direct community.
Chelsea Primary School also noted the presence of the asbestos in
its hazard and risk register, Douglas said.
She said the asbestos removal was a Class B, meaning the material
was likely to be removed without breaking up and described the
asbestos as "low risk" and in "good condition".
Asbestos and asbestos-containing materials only posed risks to
human health when it was disturbed or deteriorated, causing
fibres to become airborne, which were then breathed in.
"There is no immediate risk or danger to the community," Douglas
told Stuff.
Rob Giller, acting head of education infrastructure service for
the Ministry of Education, said a full asbestos survey, along
with testing on Blocks 2 and 3, was done on August 16, 2016 prior
to the school's project commencing as part of a normal practice
where the presence of asbestos was likely.
After construction commenced in October 2017, 50sqm of asbestos
cladding was removed by contractors outside of school hours,
Giller said.
Following a change in the scope of the project, he said a further
survey and testing on Block 3 was carried out on March 13, 2018,
which identified the presence of asbestos contained in fibre
cement that was "non-friable with no visible damage".
"Non-friable means that it is in good condition and much less
likely to crumble, turn into dust and get into the air," he
explained.
The fire-resistant properties of asbestos meant it was widely
used both in New Zealand and overseas in building materials until
the 1980s, when knowledge of its dust's health risks -- scarring
of lung tissue, malignant tumours, thickening of membranes around
the lungs and lung cancer -- saw it heavily restricted, phased
out or banned.
According to the Ministry of Education, school buildings built
prior to January 1, 2000 may contain some form of asbestos-
containing material.
ASBESTOS UPDATE: Pawtucket to Remediate Asbestos at City Hall
-------------------------------------------------------------
Kate Nagle of GoLocalProv reported that the City of Pawtucket has
been ordered to put forth a remediation plan in response to
asbestos found at Pawtucket City Hall by state inspectors.
And while the city said it is moving forward to comply, a critic
of the administration is questioning why a complaint had to be
filed to prompt action -- and how the city can afford to address
infrastructure issues at a time it is trying to move to the
Pawtucket Red Sox to a new publicly backed stadium at the former
Apex site.
On March 20, Barbara Morin, Principal Health Toxicologist with
the Department of Health wrote the following to Pawtucket Mayor
Donald Grebien.
"In response to a complaint, industrial hygienists from the Rhode
Island Department of Health (RIDOH), Center for Healthy Homes and
Environment (CHHE), conducted an inspection of the fourth floor
of the Pawtucket City Hall on March 14, 2018. The inspectors
reported that ceiling tiles are extremely saturated and stained
and that tarps are being used to funnel water leaking through the
roof in the tower area into a recycling bin," wrote Morin.
"They also observed areas were the ceiling tiles are missing,
exposing pipes that are covered with asbestos pipe wrap. Due to
the water damage, the pipe wrap has become friable. Note that
friable asbestos can crumble or become a powder that can be
inhaled by building occupants," continued Morin.
The letter then went on to instruct the Mayor's office to contact
a chief compliance manager by April 13 with the city's "plans for
addressing this issue."
Pawtucket resident "Riley" Farinelli said that she had
outstanding questions pertaining to why the issue has not been
addressed until now.
"Last year, I contacted [Mayor Grebien and the city] about the
air in the City Hall building. My concerns were met with silence.
I let them know that I always have breathing issues after leaving
that building and felt someone should take a look to see why,"
said Farinelli. "Visiting that building 2-3 times a month and
noticing that my breathing was affected, I could only imagine
what the people that work here are feeling."
"So with the continued silence and many people reaching out to me
about how they have breathing issues in this building, we formed
a volunteer group to test the 4th floor. We took samples and had
those samples tested at a DOH approved lab. When our testing came
back positive for lead and asbestos, DOH jumped in," continued
Farinelli. "DOH Inspected the City Hall 4th floor and confirmed
it is a health issue. The report came back as friable Asbestos
meaning it is crumbling from that 4th floor.
"We have a closed fire station in Pawtucket because that building
isn't safe, we have schools that are in deplorable conditions.
Our team has also got information that the schools have not
passed fire code and calls about this have gone unanswered.
[Grebien] seems to want to spend our money on the PawSox but
letting our city building fall apart. If all our buildings were
brought up to health and safety standards, our city would
bankrupt," said Farinelli. "The taxpayers voted in 2016 to spend
over $5 million on that tower and nothing has moved forward."
The City acknowledged in a response on March 23 that they are
working to address the issue.
"The health and well-being of our employees and constituents of
the City of Pawtucket is our highest priority," wrote William
Viera, the Acting Department of Public Works Director.
"Addressing this potential risk has been authorized for immediate
remediation. We have contacted qualified abatement contractors
to provide a plan to remedy the asbestos situation."
ASBESTOS UPDATE: School Closes Due to Mold and Asbestos Issues
--------------------------------------------------------------
Kathy Chang of centraljersey.com reported that it has been a
whirlwind month for the 600 students at Indiana Avenue Elementary
School No. 18.
Schools Superintendent Robert Zega said school officials are
working with environmental consultants to determine the best
course of action for remediation after air quality issues of mold
and asbestos have resulted in the closure, reopening and again
re-closure of the elementary school on Indiana Avenue in the
Iselin section of the township.
Students had been attending split sessions at Iselin Middle
School since March 5.
The elementary school reopened on March 19 after test results of
mold had been resolved; however, on March 28, the students were
back at Iselin Middle School.
"Recent test results have caused us to temporarily close the
school, out of an abundance of caution," Zega said in a statement
on March 28. "The health of our students and staff is, and always
will be, our top priority.
Therefore, the students will be attending Iselin Middle School on
split sessions until we are able to re-open. We appreciate the
patience of our entire school community throughout this difficult
process."
As of March 29, asbestos was found in a classroom on desks,
according to a test report posted on the school district's
website.
School officials did not give a time frame on how long Indiana
School will be closed.
On Jan. 27, RAMM Environmental Services, Inc., of Fairlawn,
Bergen County, conducted an indoor air/surface quality assessment
report for the school's principal's office, main office and a
classroom, which found levels of mold exceeding outdoor
concentrations in the tested areas.
The elementary school was temporarily closed on Feb. 23 and the
students were off from school for a week.
On March 1, Zega sent a letter to parents and guardians of
students at Indiana School to explain the temporary closure of
the school and the decision to hold split sessions at Iselin
Middle School.
Zega said in the letter Iselin Middle was a reasonable choice
because it is relatively close and it has the capacity for the
600 students from School No. 18.
The Woodbridge Township Education Association (WTEA) had McCabe
Environmental Services, LLC, of Lyndhurst, Bergen County, collect
various types of asbestos samples from within the school.
Asbestos contamination was found in a debris sample that was
collected from atop of a suspended ceiling tile system.
"Based on the data we have collected we can conclude that the
locations tested are not considered an asbestos hazard for
occupancy at this time," John H. Chiaviello, vice president at
McCabe Environmental Services, said in a letter to Brian
Geoffroy, president of the WTEA, on March 16.
However, he said any disturbance of the ceiling system could pose
a potential health hazard if the debris is not addressed.
"Based on our observations, there is no evidence of remnant
ceiling plaster, fireproofing, pipe or other insulation above the
drop ceiling that could be the source of the asbestos detected in
the sample," Chiaviello said. "Since the school is a one-story
building, along with recent solar panel modifications to the roof
deck, we suspect the source to be the roofing materials that have
been disturbed and penetrated through to the ceiling system
below."
ASBESTOS UPDATE: Bill to Return Asbestos Claims to Workers Comp
---------------------------------------------------------------
Law360 reported that Pennsylvania lawmaker introduced a bill that
would once again make the workers' compensation system the
exclusive remedy for job-related asbestos claims following a
landmark ruling by the state's Supreme Court allowing employers
to face civil lawsuits over certain long-latency diseases.
The bill seeks to remedy what Rep. Eli Evankovich, R-
Westmoreland, said was the "significant uninsured liability" that
businesses could face following the Pennsylvania Supreme Court's
decision in Tooey v. AK Steel allowing workers to sue their
employers for asbestos-related conditions.
ASBESTOS UPDATE: Blue Mountain Sites Cleared After Testing
----------------------------------------------------------
Damien Madigan of Blue Mountains Gazette reported that extensive
asbestos testing at three high-profile sites in the Blue
Mountains has revealed only "negligible" levels of the material.
Sites in Lawson and Lapstone have been cleared, and a third at
Valley Heights is waiting clearance, following the results from
the licensed asbestos assessors.
Council has been advised no further action is required at the
Lawson Mechanics Institute carpark/Lawson stockpile site after
multiple testing. It found one piece of legacy asbestos
containing material (ACM) detected below the soil testing depth
of 500mm set by the Environment Protection Authority.
This was also below the depth of soil taken from the Lawson
stockpile. The testing also found a few small bonded fragments of
ACM detected under a piece of tin.
The Lawson site involved testing a quantity of holes greater than
the industry standard.
The Gazette understands a final report from the asbestos assessor
found no friable asbestos of any kind at the Lawson carpark site.
Bonded asbestos was found at depths below 500mm but the
concentration of asbestos in the soil did not need remediating.
One 4.5kg piece of asbestos pipe was found at a depth of 300mm
but the asbestos concentration levels in the soil in this area
also did not require remediation.
Failures in correctly handling the Lawson stockpile soil was the
one of the key findings in a recent independent report to
council.
Lapstone Oval has also been cleared after testing found "one tiny
fragment of bonded ACM" which was removed during inspection.
Testing at private land at Valley Heights found one isolated area
of detected asbestos material. This was found to be marginally
above established industry standards but still deemed very low
risk.
Council was due to remove the asbestos material after consulting
with the land owner this week, before the site is formally
cleared.
The test results come after the NSW Ombudsman's office confirmed
it is "currently conducting inquiries of SafeWork NSW about
asbestos related matters in the Blue Mountains".
"As the Ombudsman Act has strict secrecy provisions, we will not
be able to discuss this matter in more detail," said a
spokeswoman.
A source close to council said: "The concern here is that
SafeWork, which is an excellent organisation that cares about the
community and worker safety, appears to be subject to influence
from outside, where decisions made on the ground are being
overturned somewhere else later on."
Another senior council source suggested the exhaustive testing
may have been politically motivated over 100 holes have been dug
and a much higher standard applied than one might normally
expect, and it's starting to feel political.
"It's clear that there have been problems at council, no one
denies that. But now, over 100 holes have been dug and a much
higher standard applied than one might normally expect, and it's
starting to feel political."
Blue Mountains mayor Mark Greenhill said the test results did not
alter the fact council had lessons to learn.
"The point is that change is needed. We accept that and change is
happening. Our workers and our community deserve nothing less,"
he said.
"We want a workplace that is as safe as it can be where people
are encouraged to raise concerns.
"The reports from Clyde and Co. are very important in providing a
roadmap to guide the organisational reform relating to asbestos
management and workplace safety that is needed."
SafeWork NSW has been kept fully informed of the conduct of the
testing and the test results.
ASBESTOS UPDATE: Asbestos Concerns Halted Workers Club Demolition
-----------------------------------------------------------------
Cameron Myles of The Sydney Morning Herald reported that Tests
have revealed no traces of asbestos in samples taken from Lance
Holt Primary School in Fremantle's West End, after work at a
demolition site across the road was halted over concerns about
the presence of the deadly mineral fibre.
Work at the former Fremantle Workers Club will also remain
suspended, as the City of Fremantle confirmed that asbestos was
found to be present at the site.
The City of Fremantle halted works pending tests to shed light on
the scenario, with samples taken from the nearby school, as well
as the site itself.
But City of Fremantle chief executive Philip St John confirmed an
independent analysis of nine samples taken from locations around
the school found no trace of asbestos.
Mr St John said testing of samples taken from the demolition site
revealed the presence of some asbestos.
"We took four solid samples of rubble from the site, of which two
were positive for asbestos and two were negative. Soil samples
from the site were also negative," he said.
"The demolition permit issued to the developers by the City of
Fremantle includes specific conditions around dust suppression
and the safe removal of asbestos. Work on the site will remain
suspended until the City is satisfied those conditions are being
met."
The City was confident material remained contained to the site
and posed no risk to the general public.
Adam Zorzi, executive director of the site's developers,
Australian Development Capital, said all demolition works had
been undertaken by licensed demolition sub-contractors in
accordance with health and safety requirements and the demolition
permit issued by the City of Fremantle.
"Licenced asbestos professionals attended the site in January
2018 and removed some non-friable asbestos vinyl floor tiles," he
said.
"These tiles were removed and disposed and the developer is not
aware of any other tangible quantities of asbestos on site.
"Worksafe attended the site and did not identify any issue with
the work or procedures in place, and additional water flow
equipment was provided to site to address the issue of brick dust
that has emanated from the site as walls have been demolished."
Mr Zorzi said City health and safety officers had been on site
Tuesday and the developers had been advised they were also
satisfied there was no public health or safety issue with the
works.
But a Fremantle architect who flagged concerns over the site with
the City told WAtoday materials he sent to be tested, independent
of the City's samples, had also revealed the presence of asbestos
at the construction site.
Shane Braddock -- who lives close to the site, and whose children
attend Lance Holt Primary School -- told WAtoday he contacted the
City and Worksafe after noticing an increase in dust and
particulate matter blowing across the street and towards the
school.
He again walked past the site, this time finding what he believed
could be pieces of asbestos sheet.
Mr Braddock sent the materials to be tested, and to the relief of
parents of students at the school results showed there was no
asbestos in the Lance Holt Primary School samples.
But Mr Braddock said samples from the demolition site he had
tested revealed two types of asbestos.
For the time being, Mr Braddock said the school could breathe a
sigh of relief, and said it had handled the situation admirably.
"The school has behaved exceptionally well," he said.
WAtoday understands students were due to return to class today
after the Easter long weekend, but the school was closed after
news of the asbestos threat broke.
Parents and students returning to the school have been advised of
the situation and encouraged to stay clear of the development,
approaching from the Phillimore Street end of Henry Street.
The Henry Street site -- formerly the Fremantle Workers Club --
is slated to be developed into The Social: a boutique apartment
complex touted by developers to become "the town's most sought-
after address".
ASBESTOS UPDATE: University Ordered to Pay Again for Asbestos
-------------------------------------------------------------
Heba Made of Sonoma State Star reported that in a disturbing
trend that continues to turn up across the U.S., the California
Occupational Safety and Health Administration charged Sonoma
State University with nearly $6,000 in fines.
SSU discovered a low level of asbestos during the removal of two
long-jump tracks near the football field last spring. Asbestos
refers to six naturally occurring fibrous minerals that have the
ability to resist heat, fire and electricity that may be harmful
to health if exposed to.
The track material was tested for the presence of materials but
all tests came back negative or with non-hazardous levels;
therefore, the removal of the track continued while following
standard construction regulations. Soon after, two percent
chrysotile asbestos in a layer below the rubber matting was found
resulting in discontinuation of construction work and the hiring
of an outside abatement company to remove the materials, said SSU
Environmental Health and Safety officials.
"The university has taken steps to ensure that additional testing
is performed in future similar situations," said Tyson Hill,
senior director for risk management and safety services.
Cal-OSHA cited SSU for multiple violations, including not
providing workers with protective clothing and respirators and
ensuring the proper disposal of the outdoor track to minimize
asbestos.
"It's important to note that when the issue arose in the spring
of 2017," Hill said, "The SSU Environmental Health and Safety
Department contacted and worked with Ca-lOSHA to ensure proper
notification was made and that the abatement of the low level of
asbestos was disposed correctly and employees were informed."
Three employees and a student-worker were informed about it and
were provided the options of filing an injury report, seeing an
occupational physician and requesting a chest X-ray. None pursed
the offered course of action, officials said.
The former asbestos-related incident in Stevenson Hall of March
2017 resulted in more than $2.9 million in penalties, in addition
to the $3.5 million paid in legal fees to take the case to trial.
ASBESTOS UPDATE: School Trust Slammed After Asbestos Revelation
---------------------------------------------------------------
News & Star reported that a government chief has slammed the
trust that runs Whitehaven Academy saying it has "failed
abysmally" -- as it is revealed there is asbestos in the school.
MP Meg Hillier, chair of the Government's public accounts
committee, has hit out at Bright Tribe for its management of the
troubled academy saying the public has been "sold down the
river".
The MP has scrutinised issues at the academy -- including
asbestos -- and has questioned top government bosses about the
trust.
She said: "When Bright Tribe took it over, it promised to raise
standards as a deal with the dilapidated estate.
"Both of the local MPs have contacted me to say that that is very
far from what happened. I have had information from parents who
are very upset about what is going on.
"Teachers have raised concerns about the inadequacy of the
buildings. There is asbestos on site, with no real assurance
about what will be done about that.
"Haven't the people of Whitehaven and the pupils at that school
been sold down the river? The trust was given the opportunity to
take it on and has failed abysmally."
Mrs Hillier questioned Eileen Milner, chief executive of the
Education and Skills Funding Agency, saying: "What safeguards
were in place to make sure this was caught before this
catastrophic failure? This school is crumbling physically, it has
no resources, and results are dipping because of the trust's
inadequate management."
Mrs Milner, responded, saying: "We work with the regional
school's commissioner to address things where we see poor
practice or things that are not being dealt with in the way that
we want for our children."
She said they work as a team, and they also work with governing
bodies, headteachers and trustees.
Schools will be asked to account more fully for what they are
doing about asbestos, she added.
Julie Rayson, of Whitehaven Academy Action Group, submitted a
Freedom of Information request to the trust about asbestos.
A report to the government committee said she faced "barriers"
and it was "very difficult to get the information".
"There is definitely asbestos in the part of the school that is
open but it's managed and safe," she told the News & Star.
She said there is asbestos in a lot of schools especially if they
are old buildings. But, her main concern is that the information
about where it was at the academy, and how it was being managed,
was not readily available.
Mrs Rayson added: "If they [Bright Tribe] provide information
that it is being managed and recorded there should be no
problems. "
She called for "transparency" and suggested the trust should
publish its asbestos records on the school's website.
However, Bright Tribe said the asbestos register is "held at the
school and is available for parents to review".
A trust spokesperson said: "As listed on the asbestos register
there is asbestos throughout the school site. Asbestos is closely
monitored with annual inspections ensuring condition and
identifying any remedial works which are commissioned promptly.
"The Trust will continue with annual inspections and remedial
works whilst it continues to sponsor the school."
Cumbria Education Trust has been named as the "preferred sponsor"
of the academy, after Bright Tribe announced it is set to go.
ASBESTOS UPDATE: New Rules to Make Mumbai Asbestos-Free
-------------------------------------------------------
Sharad Vyas of The Hindu reported that the State government has
framed new rules to prevent the use of asbestos in manufacturing
units following health concerns over the mushrooming asbestos
factories in Maharashtra.
The government has inserted a 'No use of asbestos' clause in the
recently-released development plans (DP) of 12 regions, including
some on the outskirts of Mumbai. The clause is part of the
regulations specified by the Urban Development Department for
2011-2031 for development of tourism and hospitality services
under the regional plans.
'Setting an example'
Experts have warned of the risk posed by the use of asbestos as
there are 2,696 workers employed in 20-odd major manufacturing
units in the State. The regional plans cover Thane-Palghar,
Wardha, Bhandara, Gondia, Dhule, Nandurbar, Parbhani, Beed,
Hingoli, Usmanabad, Yavatmal and Buldhana. Senior government
officials said the notification under the Maharashtra Regional &
Town Planning Act, 1966, has set an example for the rest of the
country.
The move has also been hailed by the National Human Rights
Commission and organisations working to end the use of asbestos.
An UDD official said, "The notification is part of our initiative
to create an environment-friendly tourism infrastructure in the
State, especially around sanctuaries and parks." Officials said
the clause has for now only been added to zones around
sanctuaries but will be extended to other areas to make
Maharashtra an asbestos-free State. Many factories are located
near forest and sanctuaries in Mumbai, Pune, Kolhapur, Kalyan,
Nashik, Thane and Aurangabad.
According to the World Health Organization guidelines, exposure
to asbestos poses increased risks for asbestosis, lung cancer and
mesothelioma in a 'dose-dependent manner'. Mesothelioma is an
aggressive form of cancer which develops in internal organs.
Poor record
'According to experts, the State's record in addressing health
concerns has been poor. In 2008, about 260 workers were surveyed
by the State government as part of a drive to assess the impact
of asbestos on the health of workers in manufacturing units. A
total of 133 cases of asbestosis were confirmed during the drive.
However, neither the government nor the Directorate of Industrial
Safety & Health have paid compensation to the victims.
A Central government inspection in 2015 revealed that there were
23 asbestos factories employing 2,583 workers in the State.
However, the report showed that several factories in the Mumbai
Metropolitan Region were not conducting the mandatory membrane
filter test to monitor the presence of asbestos fibre in the work
environment and awareness training programmes for workers.
Gopal Krishna, an anti-asbestos activist and convenor of Ban
Asbestos Network of India, said, "Asbestos products are visible
everywhere in Maharashtra.
Although the Maharashtra Pollution Control Board is aware of the
unacknowledged public health crisis lurking in the State, it has
failed to undertake any action to make the State asbestos-free."
ASBESTOS UPDATE: Rise in Mechanics Making Asbestos Claims
---------------------------------------------------------
Herald Sun reported that an increasing number of former mechanics
are among the growing toll of Victorians seeking help for
asbestos-related illnesses.
Law firm Slater and Gordon said there had been a distinct spike
in the number of the car repairers who were exposed to asbestos
decades ago.
Senior asbestos lawyer Tracy Madden said that over the past two
years, there had been a staggering 200 per cent increase in
mechanics seeking legal support.
"Because asbestos-related illnesses tend not to show for decades,
we are only now starting to see and understand the real impact,"
Ms Madden said.
"As a result, there is also a danger for people who work in their
cars at home who are pulling these parts out of the car.
"It really doesn't take a lot of exposure to asbestos for someone
to potentially develop a life-threatening disease."
Asbestos-related diseases, such as mesothelioma, pleural disease,
asbestosis and lung cancer, can develop up to four decades after
the initial exposure.
Typically, mechanics were exposed to asbestos when replacing
brake pads and clutches and using compressed air to remove dust.
Ms Madden said that surprisingly asbestos was still being used in
auto parts such as brake pads as recently as the early 2000s.
Asbestos becomes a potential risk to health if fibres become
airborne and are breathed into the lungs, potentially leading to
a number of extremely serious conditions.
Anyone who believes they have been exposed can register their
details on the firm's National Asbestos register at:
slatergordon.com.au/compensation-law/asbestos/national-asbestos-
register
ASBESTOS UPDATE: Asbestos Bans in Southeast Asia Pushed
-------------------------------------------------------
Tim Povtak of Asbestos.com reported that Dr. Ken Takahashi is
doing more than just talking about a global ban on asbestos
products and the eventual end of asbestos-related diseases.
He is traveling the world to help make it happen -- one small
step at a time.
Takahashi, who is the director of the Asbestos Diseases Research
Institute (ADRI) and consultant for the World Health Organization
(WHO), met recently with government officials in Laos, currently
one of the highest per capita consumers of asbestos.
And he liked what he heard.
"I am optimistic there, but with caution," Takahashi told
Asbestos.com.
"Ultimately, it is a battle for the cause, whether to prioritize
long-term health or short-term economic gains."
He was part of a second annual workshop sponsored by the Laos
Ministry of Health (MOH), which is discussing a National Action
Plan to implement a ban of chrysotile asbestos.
Takahashi is among an international collaboration of global
leaders who are helping still-developing countries map out their
plan.
"My role is to assist the country in making the transition, which
requires careful steps," he said. "The country now lacks
awareness, knowledge and expertise on health hazards of
asbestos."
Asbestos Use Prevalent in Southeast Asia
There currently are 62 countries that have banned asbestos,
according to the International Ban Asbestos Secretariat (IBAS),
leaving more than 100 others that continue to use it.
Like Laos, many of the largest consumers of asbestos today are
Asian nations.
Asbestos is a naturally occurring mineral still coveted in some
countries as a building material for its tensile strength, heat
resistance and affordability.
Unfortunately, it also is toxic, particularly as it ages.
Asbestos can lead to a wide range of serious health problems,
including mesothelioma, lung cancer and asbestosis.
Despite the large amounts of asbestos used in Southeast Asia,
mesothelioma incidence rates are relatively low in comparison to
Western nations.
ADRI, which is the world's only research institute focused
exclusively on asbestos and asbestos-related diseases, is based
in Australia but spreading its influence everywhere.
There are asbestos-related plans to work with the Secretariat of
the Basel, Rotterdam and Stockholm Conventions within the United
Nations Environmental Programme (UNEP).
Asbestos Industry Booming in Laos
Takahashi anticipates working in the near future with Thailand,
the Philippines and other countries throughout South Asia.
In Laos, a country of 7 million people, there are at least 15
factories using large amounts of asbestos to make plasterboards,
tiles and other roofing materials.
Laos has been importing an estimated 8,000-9,000 tons of asbestos
annually, mostly for the building industry.
Those factories are being encouraged to substitute other
materials -- many are more costly -- but the response has not
been overwhelming.
Even with various government agencies in Laos, there has been
disagreement. While the Ministry of Labour and Social Welfare and
the health ministry support a future ban of asbestos, the
Ministry of Industry is against it.
Dr. Bounpheng Philavong of the Ministry of Health told the
gathering last week that the government's goal is to end the use
of asbestos in factories by 2020.
"There will be a tug of war across ministries," Takahashi said.
"Strong political will is most important. Pro-chrysotile lobbies
already are active in Laos, and to an extent, already succeeded
in influencing some ministries."
Long-Term Implications of Asbestos Use
As part of the workshop, different speakers emphasized that
current exposure to asbestos, which is at its peak in Laos, will
be killing people 15-40 years from now because of the long
latency period that accompanies many of these diseases.
The majority of the deaths are likely to involve occupational
exposure, which today is being discussed in Laos more than ever
before.
"Efforts to stop using asbestos are important because there
should be zero tolerance to occupational cancer. No person should
die from a disease due to work," Takahashi said. "If these
developing countries do not stop using asbestos, we have to
anticipate a serious burden of asbestos-related disease down the
road."
ASBESTOS UPDATE: Limetree Bay Warns Workers About Asbestos
----------------------------------------------------------
Brian O'Connor of Virgin Islands Daily News reported that
Limetree Bay Terminals has warned its workers that officials
don't know how far asbestos may have strayed in the wake of
hurricanes Irma and Maria.
As Hurricane Maria battered St. Croix on Sept. 19 and 20, among
the sites that suffered at least some damage was the former
HOVENSA oil refinery, according to a company memo obtained by The
Daily News.
The memo -- written Oct. 9 by Vice President of Operations Nate
Werner -- says at least some of the damaged buildings likely
contained asbestos.
The subject came up at a safety meeting, Werner wrote.
"During the weekly safety topic, we discussed damage to
insulation in the idled refinery process units from the storm and
potential hazards it might present," he wrote. "Limetree Bay is
required to assume most of this insulation contains asbestos, but
only testing will confirm that. Insulation is being kept damp
while removal/disposal operations are underway. Access to areas
where damaged insulation is present has been restricted and
proper PPE is required."
According to the EPA, by keeping the materials wet it makes it
more difficult for the material to become airborne and easier to
cleanup.
PPE is a common abbreviation for Personal Protective Equipment.
The notification was taken both to meet Occupational Safety and
Health Administration requirements, as well as out of an
abundance of caution, Werner wrote.
"When asbestos removal and management operations are conducted at
a site, OSHA regulations require a formal notification to
employees and other employers at the site who are in or may be
near the work areas of the presence, location and quantity of
asbestos containing materials or potentially asbestos containing
materials," Werner wrote. "To ensure everyone is aware of
potential hazards, Limetree Bay has decided to notify all of our
employees and other employers on site, even those who work in
areas that are asbestos-free."
The memo was addressed to all employees and contractors working
at the site.
Werner directed questions about the memo and the measures that
have been taken to Limetree Bay Terminals spokeswoman Tara
Graham, who did not respond to a call for comment.
V.I. Planning and Natural Resources spokesman Jamal Nielsen said
the department had not been notified of any release from the
facility, though he pointed out that the site also contains an
asbestos dump site. Enforcement at the site is usually conducted
by the EPA, Nielsen said.
EPA officials did not return calls for comment.
The refinery isn't the only source of asbestos on St. Croix. The
former Alcoa plant, portions of which were visibly damaged by
Maria, also has been the subject of asbestos warnings from the
EPA in the past.
Asbestos is a mineral material used as insulation in construction
in the past, capable of causing lung disease and cancer in people
exposed to it.
According to the National Cancer Institute, low levels of
asbestos exposure do not usually constitute a threat.
According to the institute, "people who become ill from asbestos
usually have been exposed to it on a regular basis, most often in
a job where they have worked directly with the material or
through substantial environmental contact."
Education Department officials have said that asbestos was also
discovered in three Virgin Islands schools in the wake of the
2017 hurricanes.
The presence of asbestos in the schools wasn't enough to close
any of the facilities, all of which are currently in use by
students, V.I. Education Commissioner Sharon McCollum said.
ASBESTOS UPDATE: Senate Shelves Limits on Asbestos Injury Suits
---------------------------------------------------------------
Kevin Landrigan of The Union Leader reported that The opposition
of leading veteran groups and trial lawyers convinced the state
Senate to reject a bill critics said would have limited the legal
rights of those with asbestos-related injuries from recovering
for damages in court.
Instead the Senate approved a study committee of four lawmakers
to examine the legal landscape for asbestos injury claims in New
Hampshire courts.
"It is extremely complicated and it would ask us to create an
asbestos docket here in New Hampshire that we don't have," said
State Sen. Sharon Carson, R-Londonderry, who chairs the Senate
Judiciary Committee.
"The study committee will look at what can we do to make these
claims go through the process faster and create transparency at
the same time."
But the Senate did embrace a second measure (SB 427) to cap how
much a company would have to pay out in total damages caused by a
company it acquired that had an asbestos history.
New Hampshire has a higher-than-average mortality rate for
asbestos-related diseases.
Legal advocates and their clients had claimed the first bill (SB
335) had sought to delay if not deny financial payouts to
victims.
"This proposal is designed with one goal in mind -- to run out
the clock on asbestos victims in New Hampshire so they die before
their cases even make it to court," said Col. Peter J. Duffy,
U.S. Army (ret.) of Manchester.
"People who were unknowingly sickened by asbestos deserve
justice, and the companies responsible for poisoning them should
be held accountable."
Supporters said its intent was simply to require victims and
their lawyers to identify the sources of money they've already
gotten in or out of court.
Ohio was the first state to adopt an asbestos trust transparency
law in 2013; since then 11 other states have followed suit.
Most companies that made asbestos have filed for bankruptcy
protection. They often created trusts to settle current and
future claims.
As proposed, the legislation would:
* Compel victims to first seek recovery from the bankruptcy
trust before filing a civil lawsuit against an ongoing business;
* Force asbestos victims to disclose confidential settlement
agreements;
* Alter procedural rules by keeping cases open for years after
judgment and;
* Allow corporations to delay trials.
The original bill's supporters point out lawyers for the victims
in New Hampshire who seek damages do not have to identify whether
they have already received a settlement from the trust.
Michael McLaughlin, who lobbies for the Property Casualty
Insurers of America Association, said while there's been no case
in New Hampshire that could soon change.
"Turn on any cable TV channel and you'll see the ads of national
trial lawyers trolling for the tragic victims of mesothelioma,"
McLaughlin said. "They then sell the names of any takers to local
law firms.
"There's been an explosion of this advertising in the past few
years in New England. It's really a matter of time before a case
comes here."
As passed by the Senate, this study committee would complete a
report by Nov. 1.
"We would prefer the bill to pass obviously but this allows us to
keep working on it," McLaughlin said.
The Senate passed over to the House the second bill pursued by
Crown Cork and Seal, a multinational company based in
Philadelphia that makes cork-lined bottle caps.
In 1963, the company exposed itself to lawsuits because it bought
Mundet Cork that produced insulation and cement that contained
large amounts of toxic asbestos.
Crown only paid $7 million to buy Mundet and sold it off two
years later.
But to date it's paid out $700 million in asbestos injury damage
claims.
The Senate-passed bill would limit any company's future claims to
twice what it paid to acquire the "guilty" party; in Crown's case
this would have limited awards to $14 million.
"Crown never sold products in the asbestos industry. They bought
a competitor with an ancillary business that did this and to the
trial lawyers, it is never enough," said State Sen. Andy Sanborn,
R-Bedford, who backed the measure.
The conservative American Legislative Exchange Council has
promoted the legislation that 25 states have adopted in some
form.
Sen. Donna Soucy, D-Manchester, said Crown has net sales of more
than $8 billion and employs 23,000 people in 25 countries.
"This is hardly two little, Mom and Pop companies," Soucy said.
"What we are talking about here creates a special exclusion and
insulates asbestos companies from all claims to folks dying from
cancer. This sets a very bad precedent."
The Senate approved it, 14-9, largely along party lines with Sen.
Lou D'Allesandro of Manchester the only Democrat in support of
it.
All 13 Senate Republicans who were present gave their approval.
"I was surprised how easily it went through. You could certainly
argue it limited recovery for victims more than our bill would
have," McLaughlin added.
ASBESTOS UPDATE: New Insights on Asbestos-Related Disease
---------------------------------------------------------
Asbestos exposure is widely known to cause human disease,
including the deadly cancer mesothelioma -- although researchers
aren't sure why. While asbestos is inhaled into the lungs,
mesothelioma develops in physically remote mesothelial cells. No
successful methods exist for early detection of exposure to
asbestos.
New research published online in The FASEB Journal, however, may
have unlocked the first piece of this puzzle.
"Our findings suggest that cells in one region of the body are
capable of sending messages to cells in a distant location, and
can cause significant genetic changes," said Arti Shukla, PhD,
Associate Professor of Pathology and Laboratory Medicine at the
University of Vermont's Larner College of Medicine. "This
communication from injured or diseased cells to healthy cells has
the potential to initiate changes that might lead to cancer or
other diseases."
To conduct the experiment, Shukla and colleagues used two groups
of cells known to be the first to encounter asbestos fibers once
inhaled: lung epithelial cells and macrophages. The researchers
split these cells into one group that was exposed to asbestos,
and another that served as a control group and was left to grow
normally. The team let the cells grow in these conditions for
three days, then collected the exosomes released by the cells.
First, the researchers examined the proteins inside the exosomes,
discovering that the asbestos-exposed group had significant
increases in many proteins of interest. Second, they added the
exosomes to healthy mesothelial cells (which eventually can
become mesothelioma cancer cells) and assessed gene changes after
four days. They found that the exosomes from asbestos-exposed
cells caused dramatic changes to many cancer-related genes in
mesothelial cells.
These findings have implications for how asbestos exposure may
cause cancer by sending exosomes that detrimentally alter the
genetics of cells. The study also points to the remarkable
potential of these exosomes and the proteins they contain to act
as biomarkers, indicating the development or progression of
asbestos-related disease.
"These intriguing findings go a good ways toward explaining the
conundrum of how a pulmonary irritant triggers distant effects,"
said Thoru Pederson, PhD, Editor-in-Chief of The FASEB Journal.
"They also add to the burgeoning array of studies that link
exosome-based communication to pathogenic events."
This research was supported financially by the U.S. Department of
Defense and the National Institute of Environmental Health
Sciences, National Institutes of Health (NIH).
Submit to The FASEB Journal by visiting
http://fasebj.msubmit.net,and receive monthly highlights by
signing up at http://www.faseb.org/fjupdate.aspx.The FASEB
Journal is published by the Federation of the American Societies
for Experimental Biology (FASEB). It is the world's most cited
biology journal according to the Institute for Scientific
Information and has been recognized by the Special Libraries
Association as one of the top 100 most influential biomedical
journals of the past century.
FASEB is composed of 30 societies with more than 125,000 members,
making it the largest coalition of biomedical research
associations in the United States. Our mission is to advance
health and well-being by promoting research and education in
biological and biomedical sciences through collaborative advocacy
and service to our societies and their members.
ASBESTOS UPDATE: ADAO Opposes PROTECT Asbestos Victims Act
----------------------------------------------------------
The Asbestos Disease Awareness Organization (ADAO), an
independent nonprofit dedicating to ending asbestos exposure
through education, advocacy, and community work; strongly opposes
the "PROTECT Asbestos Victims Act" (S. 2564). Authored by
Senators Tom Tillis (R-NC), John Cornyn (R-TX), and Chuck
Grassley (R-IA), this is just the latest tactic in the ongoing
efforts to protect the asbestos industry and insurers from being
held responsible for poisoning of Americans.
The new legislation follows a path of more than 25 pro-asbestos
industry bills masking as protective legislation for asbestos
victims, when, in reality, they are protecting those who caused
the asbestos man-made disasters. This latest bill claims to help
diminish fraud but instead delays claims payments for those
impacted by asbestos and denies them their rights.
"Whether you call it the FAIR Act, the FACT Act, or the new
'PROTECT Asbestos Victims Act' -- it's always the same industry
driven legislation to delay and deny justice to present and
future asbestos victims. This newest bill's name is misleading
and offensive with claims to protect victims but instead protects
trust money, instead of focusing on a much needed asbestos ban,
while continuing to give the asbestos industry a pass," stated
ADAO President and Co-founder, Linda Reinstein. "Since 2004, ADAO
has strongly opposed congressional efforts to push both the
asbestos industry and U.S. Chamber of Commerce's agendas at the
expense of asbestos victims. We urgently call on the Senate to
stand up for asbestos victims, their constituents oppose this
dangerous and irresponsible legislation.
During the past two decades, an estimated 300,000 Americans have
died from preventable, asbestos-caused deaths, and 89,000 metric
tons of asbestos has been imported in order to meet
'manufacturing needs' at the expense of Americans.
We are holding the sponsors and others who may think about
supporting S. 2564 responsible for this shameless attack on
innocent victims who have built and defended our country, their
families who washed their clothes, and their children who hugged
them, and those exposed after disaster. Asbestos has still not
been banned and we continue to see it in many parts of our lives,
including makeup and other consumer products. The time is now to
protect public health and our environment -- not the companies
who knowingly exposed and killed Americans."
About the Asbestos Disease Awareness Organization
The Asbestos Disease Awareness Organization (ADAO) was founded by
asbestos victims and their families in 2004. ADAO is the largest
non-profit in the U.S. dedicated to providing asbestos victims
and concerned citizens with a united voice through our education,
advocacy, and community initiatives. ADAO seeks to raise public
awareness about the dangers of asbestos exposure, advocate for an
asbestos ban, and protect asbestos victims' civil rights. For
more information, visit www.asbestosdiseaseawareness.org. ADAO, a
registered 501(c)(3) nonprofit organization, does not make legal
referrals.
ASBESTOS UPDATE: Asbestos Caused 5 Deaths in Isle of Man
--------------------------------------------------------
Isle of Man Today reported that asbestos was the direct cause of
death in five cases since 2016, the coroner's office has
revealed.
In 2016, there was one recorded death at inquest, with two in
2017 and the same so far in 2018.
A spokesperson said: 'By way of context, in any case where
exposure to asbestos is cited as the direct cause of death, such
as asbestosis, mesotheliom, the death is reported to the coroner
and an inquest held.'
The figures do not record the number of Manx residents who suffer
from asbestos related diseases and in the case of someone with a
related disease but who dies from another event, such as a heart
attack, this would not be recorded as industrial cause.
As asbestos is a historic like disease in that exposure and
diagnosis can be decades apart, it cannot be assumed that the
cause was in the island as its use was worldwide and as such,
exposure could've occurred at any time.
The spokesperson added: 'During the inquests, the individuals'
work history would have been reviewed, but the verdicts don't
tell us where or when the exposure occurred.'
ASBESTOS UPDATE: Tiles at Stevens Memorial Library Has Asbestos
---------------------------------------------------------------
Jessica Dillon of The Daily News Online reported that If you've
ever stepped foot inside Stevens Memorial Community Library,
browsed through rows of shiny new paperbacks and aging threadbare
titles, you likely haven't noticed something sinister lurking
silently beneath your feet -- asbestos.
Recent testing, performed by accredited laboratory Lozier Labs,
Inc., revealed the vinyl floor tiles at the front of the library
contain a less-harmful form of the silicate -- bonded, or non-
friable, asbestos.
The term means, quite simply, that the asbestos is firmly bound
in the matrix of the material -- it is unlikely to release
measurable levels of asbestos fiber into the air if left
undisturbed.
"Non-friable refers to the type of asbestos that does NOT present
a health risk in its lowest form," said Jeffrey Clark, president
of the library Board of Trustees, in a letter. "However, the
Board of Trustees felt it prudent at this time to have it removed
by professional contractors who are experienced and licensed to
perform this type of work."
Asbestos was used in many different building applications before
it was partly banned in the late 1980s -- the affected portion of
the library was built in the '70s. It poses no threat to humans
or animals unless broken, but, should that happen, needle-like
particles will break away and fill the air.
If ingested, they're known to cause mesothelioma -- an
"aggressive and deadly" type of cancer that occurs in the thin
layer of tissue that covers the majority of a person's internal
organs, according to the Mayo Clinic.
"The abatement is not a real serious thing or anything," said
Library Director Nancy Burns. "We don't have to do it, this is
the kind of asbestos that's non-friable, but we just thought for
the future of the library and the future of Attica that we
should."
Inmates from the Wyoming County Correctional Facility cleared the
way for the abatement process, taking down thousands of books,
de-constructing shelves and carefully packing everything into a
tractor-trailer parked at the rear entrance of the library. The
work took place over a several-day period and wrapped up -- now
the dirty work begins.
"I will give a real 'shout out' to the inmates," Burns said. "We
would never have been able to do that ourselves."
Removal firm Flower City Monitor Services Ltd. set to work early
on Tuesday, sealing off the front end of the library and
installing temporary air removal and filtering equipment to
ensure the safety of the process.
The firm will, during a period expected to last three days,
remove all asbestos-containing tile while a third-party firm --
Envoy Environmental -- monitors and certifies the removal, as
directed by environmental law.
"As to government oversight of this process, we have notified the
New York State Department of Labor, who are responsible for this
type of process," Clark said.
The asbestos removal comes as part of "Phase II" of renovations
and remodeling to the 125-year-old library. Ground broke on the
project last August, thanks to a combination of community
donations, a New York State construction grant and a Community
Development Block grant.
Phase I focused mainly on construction on the back half of the
library, which now features an updated ADA-complaint entrance
with a vestibule.
"The back is almost totally complete," Burns said. "We're really
just waiting for the paint."
Now, focus will shift to the front end, where, after abatement is
complete, a new porch and front steps will come to fruition.
Additionally, "One whole side of this tile is over hardwood
floors, so we're hoping to be able to rejuvenate the hardwood
floors underneath," Burns explained.
Double-hung, energy efficient windows and doors, as well as
insulated walls and a new rubber flat roof, will soon make
themselves at home in the library, too.
Construction on that portion will begin after the Easter holiday.
The library will remain open throughout -- new books, magazines
and DVDs will be available and the children's room will be open,
but old collections of fiction, nonfiction, mystery and young
adult novels won't always be accessible, Burns said.
"The contractor wants to march right along, so we're hoping it
will be done certainly by the end of July," Burns said. "And then
we're going to have a big party. It all is very well planned out,
we've got the best people helping us."
ASBESTOS UPDATE: Asbestos Warning on Victoria Bushfire
------------------------------------------------------
9news.com.au reported that a bushfire alert has eased in
southwest Victoria where residents face a new threat -- asbestos.
The fire-ravaged region is littered with dead livestock, fallen
trees and powerlines, and on Tuesday came warnings of another
hazard.
"The chances that asbestos-containing material will be found in
many of the fire-affected buildings are high," WorkSafe spokesman
Michael Coffey said.
At least 18 homes, 42 dairy and machinery sheds and hundreds of
livestock have been destroyed, but the tally could rise as people
re-enter devastated areas.
While recovery efforts get under way, almost 200 firefighters
continue to scour 15,000 hectares of burnt land to suppress
embers amid fears of flare-ups.
Five alerts remain in place, including for the main farming
communities of Terang, Cobden, Penshurst and Camperdown, where
fires are contained.
"The community will continue to see smoke for some time, however
this is not related to an increase in fire activity," Colac
Incident Control Centre's Les Vearing said.
"We have been working closely with the EPA on smoke management
planning and they have deployed air monitoring systems so we can
keep an eye on conditions."
In cases where asbestos is found, licensed experts will need to
remove the material.
On another front, as the fire threat eased, authorities felt the
heat over criticism of the state's emergency alert system.
In some cases, residents received alerts hours after they had
seen the fire first-hand on Saturday night.
Emergency Services Minister James Merlino said the timing of the
fires made it difficult to alert residents.
"Alerts are sent out as soon as information is provided, but
gathering that information is so much harder in the dead of
night," he told reporters.
"It's the visibility, the fact you at the moment can't have
aircraft in the air, it's much harder on the ground to gather
that information in the middle of a fire fight in the evening."
He also said it was "despicable" that cash, including charitable
donations, were stolen from a Terang cafe as the town was
evacuated.
Bureau of Meteorology forecaster Stephen King said cooler
conditions were on the way for the region, but no rain was
expected.
Easterly winds would peak up to 50km/h which may affect the
fires, he added.
The Insurance Council of Australia said it was "too soon" to
estimate the total damage bill for the Victorian fires.
Agriculture Victoria is yet to tally the animal death count,
which is likely to run into the thousands.
Lightning strikes on Saturday were likely responsible for the
blazes, but police are investigating the exact cause.
Victoria has gone for more than 45 days without significant rain.
ASBESTOS UPDATE: Samples Show Asbestos in Burnt Buildings
---------------------------------------------------------
Morgan Rumpf of KMVT reported that the two buildings in Burley
that burnt down in January after an arson fire have tested
positive for asbestos.
Building owner Brian Tibbets hired Idaho Abatement and Insulation
out of Idaho Falls to come in and test the building.
Tibbets confirmed the company took 28 samples and four came back
testing positive for less than 4 percent of asbestos.
The positive samples were all from black tar insulation in the
roof.
Tibbets said this doesn't affect demolition of the buildings as
the dangerous insulation will be removed then tear down will
continue, and a parking lot built in its place.
A spokesman for the U.S. Environmental Protection Agency issued a
statement Tuesday saying the EPA, along with the Idaho Department
of Environmental Quality collected samples at the demolition site
on March 13. The team collected samples and examined debris. Test
results confirmed the presentence of asbestos on the debris.
"We are working with the property owner to secure the site,
advising them to not disturb the pile until further notice from
EPA," Mark MacIntyre said. "The property owner was also directed
to apply water to the debris to control dust and fence the
property to secure access. EPA And IDEQ are now awaiting further
lab analysis and reviewing the situation to determine the
appropriate clean up and disposal steps."
ASBESTOS UPDATE: Asbestos Abatement in Developer's Hand
-------------------------------------------------------
Christopher Bouchard of The County reported that City councilors
were reluctant to take on any additional responsibilities for
asbestos removal at two former Caribou schools -- Hilltop and
Sincock -- and voted following lively discussion at the March 12
city council meeting to put the costs in the hands of a developer
and RSU 39.
City Manager Dennis Marker proposed at the meeting putting five
properties out to bid for asbestos abatement -- the two former
schools and three residential properties the city has acquired at
66 York Street and 32 and 29 Patten Street.
Councilors agreed to seek bids for asbestos removal at the three
residential properties, but balked at the city's involvement in
the school properties.
The two former school properties are part of a land swap deal
worked out previously to pave the way for a roughly $45 million
PreK to 8 school project that has been approved by both local
voters and the state of Maine. With the new school being built on
Teague Park, a land exchange needs to occur so an equivalent
amount of property is being used for park purposes.
Much of this land will be across the street, next to the Caribou
Wellness and Recreation Center, once the Caribou Learning Center
is demolished, and another piece of the land will be on Main
Street, once the Sincock building is torn down.
While many of Caribou's existing schools are scheduled to be torn
down to make way for one consolidated facility, Hilltop
Elementary School will be repurposed into a senior home. The City
Council unanimously approved an ordinance authorizing the sale of
Hilltop to Caribou Senior Housing, LLC on Jan. 8 of this year.
Marker previously has stated that once RSU 39 turns over
ownership of Hilltop Elementary to the city, the city will give
the school building and 7.14 acres of surrounding land to Caribou
Senior Housing, LLC. In turn, the limited liability corporation,
Marker said, will give the city the 0.66 acres surrounding the
former Sincock Administrative building on Main street, and also
take care of demolition and asbestos abatement at both Hilltop
and Sincock. Studies done on the former schools have estimated
the cost of asbestos removal at $233,000 for Hilltop and $12,200
for the Sincock building.
In an effort to expedite the processes of tearing down Sincock
and transitioning Hilltop to a senior home, Marker indicated in
the council's latest meeting packet that "any costs associated
with the Sincock and Hilltop schools would be reimbursable under
the land exchange agreement between the city, RSU 39 and Caribou
Assisted Living. Reimbursements would either come directly from
Caribou Assisted Living or through the proposed Hilltop Tax
Increment Finance District."
Tax increment financing, or TIF, is a system in which future
taxes on a particular piece of land (or TIF district) can be used
to fund public or private projects within a municipality for up
to 30 years.
Councilor Hugh Kirkpatrick asked, however, why the city should
solicit bids on something "that we're in agreement is not our
cost to bare."
"I think, ultimately, [Caribou Senior Housing] should solicit a
bid," Kirkpatrick said. "A bid in RSU 39's name would be fine,
but I think we need to keep our name off it."
Marker said the reasoning behind this request is that it would
allow the senior housing project to be finished as quickly as
possible.
"They [Caribou Senior Housing] want to be open in late fall,"
Marker said, "and in order to do that they need to have the
asbestos cleaned out as soon as possible. Even if we put it out
to bid next week, and all the stars were aligned, the asbestos
wouldn't be cleaned out until June. It's just a matter of getting
everything ready for them to take ownership."
While councilors approved the sale early this year, Caribou
Senior Housing, LLC will not own the property until April 1 at
the earliest. Marker said this is so the city can establish "tax
increment financing options for redevelopment of the property."
Mayor David Martin asked if the Sincock property should be put
out to bid for asbestos removal, since the city technically owns
that building.
Councilor Joan Theriault suggested that, since Caribou Senior
Housing, LLC agreed to arrange asbestos removal and demolition,
the LLC should ultimately be responsible for handling those two
issues.
Marker has indicated in the past that Caribou Senior Housing, LLC
has many owners, but the only one that has been named publicly is
Carl Soderberg, owner of Soderberg Construction in Caribou.
Marker suggested creating a separate agreement or contract with
Soderberg Construction in which that firm is responsible for
demolition of the building.
Councilors then motioned and voted in favor of authorizing Carl
Soderberg to take down the Sincock building and handle the
asbestos within.
Martin then discussed Hilltop, which is still owned by RSU 39,
the school system that serves Caribou, Limestone, and Stockholm.
"We don't own Hilltop," said Martin. "What happens if we say we
don't want Hilltop? What does RSU 39 do, then? Can they make a
deal with Caribou Senior Housing?"
Councilor Phil McDonough agreed with Martin.
"The RSU budgeted for this, and it is reimbursed, so why don't we
let them deal with the expense and get reimbursed? It's their
responsibility," he said.
Marker said there are some nuances associated with establishing
the property as a TIF district, and that it's a "matter of who is
doing the work and making sure we have the credit enhancement
agreement" set up to reimburse those who bare the expenses.
Councilors then unanimously voted to have RSU 39 take care of the
asbestos abatement, and Marker added that the credit enhancement
agreement would be "adjusted accordingly."
ASBESTOS UPDATE: Wife Dies After Washing Asbestos Clothes
---------------------------------------------------------
Andrew Jameson of Daily Star reported that Annette Faram breathed
in deadly fibres while laundering husband Leonard's dirty uniform
in the 1960s.
The particles gave her mesothelioma, a cancer caused by asbestos
dust which affects the lungs and digestive duct.
Mum-of-two Annette was not diagnosed with the condition until
2012, and died aged 82 in 2015.
Devastated Leonard, 81, said: "It feels like I've become the
murderer. It's so hard. I feel like a very guilty person."
Leonard worked as a bargeman at London Docks, moving raw asbestos
fibres from ships along the Thames to the Cape Asbestos factory
in Barking, Essex.
Annette was exposed to the killer dust when she washed his
overalls.
Leonard, who was awarded an MBE in 2000 for charity work, added:
"I've been witness to so many people that died because of it and
then it eventually caught up with my wife."
The family, from Rainham, Essex, has now received a six-figure
payout from the government.
Lorna Webster, of Thompsons Solicitors, who negotiated the deal,
said: "On our doorstep in Barking, the Cape Asbestos factory was
churning out asbestos materials constantly until the factory
closed in the late 1960s. Workers and their families are now
paying the price, through no fault of their own."
ASBESTOS UPDATE: Puerto Rico Residents Learn of Asbestos Risks
--------------------------------------------------------------
In Puerto Rico and across the Caribbean, asbestos-containing
materials can still be found in countless homes, schools and
businesses. This is a result of the regrettable realty that
asbestos was used for decades in thousands of products, in fact,
the Minnesota Department of Health states there are over 3,000
known products that may contain the carcinogen.
A partial list of just a few of these building products is
provide by the New Hampshire Department of Environmental Services
and includes: Cement Pipes, Cement Wallboard, Cement Siding,
Asphalt Floor Tile, Vinyl Floor Tile, Vinyl Sheet Flooring,
Flooring Backing, Construction Mastics (floor tile, carpet,
ceiling tile, etc.), Acoustical Plaster, Decorative Plaster,
Textured Paints/Coatings, Ceiling Tiles and Lay-in Panels, Spray-
Applied Insulation, Blown-in Insulation, Fireproofing Materials,
Taping Compounds (thermal), Packing Materials (for wall/floor
penetrations), High Temperature Gaskets, Laboratory Hoods/Table
Tops, Laboratory Gloves, Fire Blankets, Fire Curtains, Elevator
Equipment Panels, Elevator Brake Shoes, HVAC Duct Insulation,
Boiler Insulation, Breaching Insulation, Ductwork Flexible Fabric
Connections, Cooling Towers, Pipe Insulation (corrugated air-
cell, block, etc.), Heating and Electrical Ducts, Electrical
Panel Partitions, Electrical Cloth, Electric Wiring Insulation,
Chalkboards, Roofing Shingles, Roofing Felt, Roll Roofing, Roof
Patching Cement, Base Flashing, Thermal Paper Products, Fire
Doors, Caulking/Putties, Adhesives, Wallboard, Joint Compounds,
Vinyl Wall Coverings, and Spackling Compounds.
"Unfortunately, these and so many other asbestos-containing
building materials still remain in properties and if they are
disturbed or become friable with age, could lead to serious
exposure hazards," said Harry Pena, President of Zimmetry
Environmental. "The major health effects associated with exposure
include lung cancer; mesothelioma, a rare form of cancer that is
found in the thin lining of the lung, chest and the abdomen and
heart; and asbestosis, a serious progressive, long-term, non-
cancer disease of the lungs."
To help protect residents of Puerto Rico from exposure risks,
there are health and safety regulations associated with asbestos-
containing materials, especially if they may be disturbed during
certain demolition, remodeling and renovation activities. To help
people, companies and institutions comply with these regulations,
Zimmetry Environmental offers comprehensive testing, monitoring
and consulting services.
To learn more about Zimmetry Environmental and their asbestos,
indoor air quality (IAQ), environmental, or compliance testing
and consulting services, please visit www.zimmetry.com, call
(787) 995.0005, or emailinfo@zimmetry.com
About Zimmetry Environmental
Since 2002, Zimmetry Environmental has been providing
environmental consulting services to building owners and
managers, architects, engineers, EHS professionals, and Fortune
500 companies. The company is based in Puerto Rico and provides
services across the Caribbean and Central America. The
professionals at Zimmetry offer environmental compliance, indoor
air quality, asbestos, lead-based paint, Phase I ESAs, and
general environmental consulting services.
ASBESTOS UPDATE: Next Generation Urged to Help Asbestos Affected
----------------------------------------------------------------
Fiona McKay of HeraldScotland reported that a woman who has
dedicated her life to helping those affected by the killer
substance asbestos has said the next generation need to step up
and help those whose lives have been afflicted by the deadly
material.
Hope Robertson's tradesman husband, David died after contracting
mesothelioma -- a fatal cancer in the outer lining of the lung.
An electrician who started out as a 15-year-old apprentice on the
Clyde shipyards, Mr Robertson had no idea he was breathing in
asbestos fibres which would lead to his death.
Retired typist Mrs Robertson, from Clydebank, said: "The only
reason we went to the doctor that day was because he had been
losing some weight and struggling to eat and drink.
"We thought he might have caught a wee bug or something but when
we were sent to hospital we knew it wasn't good."
The GP was concerned about the sound of David's lungs after
listening through a stethoscope and immediately referred the
electrician to Gartnavel Hospital.
He died one month later on April 17 -- just 52 days after being
diagnosed.
Mrs Robertson, 74, said: "I sat on the bed beside him and he just
looked up at me, nodded and said 'You'll be alright, pet', shut
his eyes and that was it. He just closed his eyes and he passed
very peacefully."
Once dubbed a "miracle" substance by the construction industry,
asbestos was widely used for insulation and fireproofing
throughout the 20th Century.
However the damage done from the substance is now widely known.
Inhaling just one fibre can be enough to trigger mesothelioma --
with more than 500 people dying from it every year in Scotland.
Clydebank in particular, with its history of heavy industry,
means than a high number of people working and living in the area
are dealing with asbestos-related diseases, leading it to be
dubbed the Asbestos Capital of Europe.
Mrs Robertson now devotes her time volunteering at the Clydebank
Asbestos Group (CAG) -- a charity she joined 18 years ago, on the
very day her husband was diagnosed.
The volunteer organisation -- which helps thousands of people
across the west of Scotland who have suffered from asbestos-
related diseases -- is this year celebrating its 25th
anniversary.
She said now the next generation need to step in to help the
loved ones of the 2,600 sufferers asbestos-related diseases who
die in the UK every year.
She added: "The use of asbestos might be confined to the history
books but its shadow reaches into our present with pain and
clouds our future with fear.
"Asbestos-related conditions can take up to 40 years to surface
and it's thought we'll keep seeing new cases emerge for the next
30 years.
"So the next generation really need to consider what support will
be in place because we physically won't be around for much
longer.
For more information visit www.clydebankasbestos.org or call 0141
951 1008
ASBESTOS UPDATE: Asbestos Find Delays Recreation Centre Rehab
-------------------------------------------------------------
Elise Stolte -- estolte@postmedia.com -- of Edmonton Journal
reported that The West Jasper Place recreation centre renovations
were delayed after crews discovered more asbestos in the aging
facility than anticipated.
It's in the wall cavities and in small dots of glue scattered
across the entire concrete ceiling dome.
All of it has to be chemically treated and removed by workers
lying on their backs to scrape the ceiling, then double bagged
and sent to a special, regulated landfill, said city general
supervisor Jack Ashton: "It's very tedious."
The asbestos removal adds about $2 million to the $13-million
project. The pool opening will be delayed roughly three months to
the spring of 2019.
In the future, Edmonton will try to do more testing ahead of time
or assume the worst-case scenario in their planning, said Adam
Laughlin, the city's head of infrastructure.
Transit buses
The city's contract for diesel transit buses with air
conditioning is also delayed, partly because of the large number
of Canadian municipalities all ordering buses with the recent
federal funding. It means riders could suffer through one more
season of heat before the new buses arrive.
The buses replace ones in the current fleet that reached the end
of their life.
However, the city's electric bus initiative is running on
schedule. City officials received three bids. They're evaluating
bids now, hoping to get seven buses this year to operate out of
the Centennial Garage. The remaining buses will come when the
northeast garage opens.
Yellowhead Trail
Edmonton's Yellowhead Trail upgrade is on schedule, even though
residents have seen little work since federal and provincial
officials announced support for the 10-year, $1-billion freeway
project in 2016.
A year ago February, council approved borrowing up to $510
million, with a 1.76 per cent tax increase over 10 years.
Since then, city officials have hired staff and started to
strategize, said Laughlin. They'll report back to council members
this summer or fall with an update, then start further public
consultation.
It will take at least two years to confirm which interchanges
come first, how procurement will be handled and the scope of the
work, he said. Meanwhile, the city is also buying land as it goes
up for sale.
The idea is to make Yellowhead Trail a free-flow freeway from 149
Street to the river crossing. That will take time, Laughlin said:
"It's important to plan and make sure we invest in planning
before we get into the construction phase."
Metro Line
City administration is working with Thales Canada to an April 30
deadline to get Edmonton's most notoriously behind project back
on track.
The Metro Line is running at speed now, but service to the
northeast is still reduced as it diverts trains from the main
line to serve NAIT rather than weaving Metro Line trains between
trains on the original Capital Line as it was supposed to.
In December, council voted to work on a way to run the Metro Line
without Thales' communication-based train control signalling
system. City officials are developing that, said Laughlin. They
pulled head of transit Eddie Robar onto the team to help.
"We will have more to say about that next month. Testing
continues," said Mayor Don Iveson. "I know everyone is working
very hard."
ASBESTOS UPDATE: St. Clair Has Most Asbestos-Related Illnesses
--------------------------------------------------------------
Ann Maher of Madison County Record reported that while the
number of new asbestos cases in hotspot jurisdictions across the
country is declining overall -- and in all types of diseases --
the docket in St. Clair County is surging almost exclusively with
lung cancer cases.
According to analysis of 2017 filings conducted by Washington-
based consulting group KCIC, the St. Clair County docket tripled
from 69 in 2016 to 207 last year, marking a 200 percent increase
in filings.
And of those new cases, 199 of them were filed on behalf of
plaintiffs alleging lung cancer. Most of them were brought by the
Gori & Julian firm based in Edwardsville.
Gori & Julian not only filed most of St. Clair County's lung
cancer cases, it was the firm that filed the most asbestos
lawsuits of any firm last year and in any category -- 13 percent
of all cases; 15 percent of all mesothelioma cases and 23 percent
of all lung cancer cases, according to the report.
KCIC processes approximately 90 percent of total complaints in
the U.S., providing it with "a significant amount of data and a
fairly holistic snapshot of the asbestos litigation industry
today," the report states.
The report notes that a lag time exists between when a case is
filed and when it is received by KCIC, and that the data used for
this analysis was received through Jan. 31. It states that when
its 2018 report is published, the numbers for 2017 will increase
"somewhat."
It further states that in the past two years it received
additional information after publishing, indicating that the Law
Offices of Peter G. Angelos in Baltimore exceeded the number of
cases filed by Gori & Julian.
"It is possible that will be the case again this year," the
report states.
"We will continue to monitor these filings."
Top 10 Firms 2015 2016 2017 %Change '16-'17
------------ ----- ----- ----- ---------------
Gori & Julian 478 544 588 8.1%
Peter Angelos 644 555 467 -15.9%
Weitz & Luxenberg 439 436 449 3.0%
Simmons 386 505 379 -25.0%
Maune Raichle 233 244 254 4.1%
Cooney Conway 179 176 211 19.9%
Goldberg Persky 225 201 147 -26.9%
SWMW Law 122 121 104 -14.0%
Napoli Shkolnik 48 129 85 -34.1%
Michael B. Serling 40 45 73 62.2%
----- ----- ----- ---------------
Subtotal 2,794 2,956 2,757 -6.7%
----- ----- ----- ---------------
Grand Total 5,336 4,812 4,450 -7.5%
For the first time, Gori & Julian in 2017 exceeded the Simmons
firm of Alton as the top filer of mesothelioma claims 329 to 324.
Though in 2016, Gori & Julian for the first time exceeded the
Simmons firm in overall asbestos claims, 544 to 505.
Gori & Julian's growth has been accelerating in recent years with
expansion into other jurisdictions -- St. Louis, Louisiana,
California, New York, Pennsylvania, Maryland, Florida and
Washington.
Another first goes to St. Clair County with its rapid growth last
year earning the court a spot on KCIC's "top 10" jurisdictions It
ranked fifth behind Philadelphia, New York City, Baltimore City,
Md., and the perennial top jurisdiction of Madison County.
While Madison County saw a 13.4 percent drop in filings -- from
1,303 in 2016 to 1,128 in 2017 -- it by far remains the preferred
jurisdiction with more than twice the number of filings than its
closest competing jurisdiction in Baltimore.
Top 10 2015 2016 2017 %Change '16-'17
------ ----- ----- ----- ---------------
Madison County 1,191 1,303 1,128 -13.4%
Baltimore City, Md. 694 548 495 -9.7%
New York City 401 369 346 -6.2%
Philadelphia 233 247 263 6.5%
St. Clair County 109 69 207 200.0%
St. Louis 236 315 188 -40.3%
Wayne County, Mich. 312 190 185 -2.6%
Cook County 187 143 164 14.7%
New Castle, Del. 132 144 130 -9.7%
Kanawha, W.V. 94 98 122 24.5%
----- ----- ----- ---------------
Subtotal Top 10 3,589 3,426 3,228 -5.8%
----- ----- ----- ---------------
Grand Total of All 5,336 4,812 4,450 -7.5%
In terms of overall numbers decreasing, the report shows a
decline of approximately 17 percent from 2015, when 5,336 cases
were filed nationally, to 4,450 in 2017. A decline of 10 percent
is reported between 2016, when 4,812 cases were filed, and 2017.
From 2016-2017:
* Mesothelioma claims decreased by 5.2 percent -- 2,311 to
2,190;
* Lung cancer claims decreased by 9.8 percent -- 1,220 to 2,190;
* Other cancer claims decreased by 11,8 percent -- 153 to 135;
* Non-malignant claims decreased by 9.2 percent -- 754 to 685.
Mark Behrens, a Washington attorney involved in asbestos
litigation reform efforts, said that decreases in filings "do not
necessarily reflect the whole picture with regard to the cost of
the litigation if plaintiff firms demand higher values for the
cases they file or if defense costs rise."
"That data is not available," he said. "Even with a slight
decrease in filings the asbestos litigation is still extremely
costly for employers and needs to be reformed."
Behrens also said the data could reflect the "beginning of a
long, slow decline in filings that may go on for several
decades."
"The decline also may reflect that the dominant plaintiff law
firms are diversifying into other litigation such as opioids or
that some of the less reliable or weaker claims are being pursued
in the trust system. Tort reforms such as asbestos trust
transparency laws and court rulings excluding some plaintiff
experts also could be a factor."
BMS effect?
KCIC's report also discusses effects of personal jurisdiction
rulings, saying that recent high court decisions favoring
defendant companies in limiting where they can be sued could
change the litigation landscape. The Bristol-Myers Squibb
decision issued by the U.S. Supreme Court last June, for
instance, has had profound impact in jurisdictional rulings
across the country.
And in September, the Illinois Supreme Court reinforced the BMS
decision in Aspen American Insurance Co. v. Interstate
Warehousing, Inc. The decision held that for an Illinois court to
exercise general personal jurisdiction over a case, a defendant
corporation must be incorporated in Illinois, have its principal
place of business in Illinois or the "defendant's contacts with
Illinois are so substantial as to render this an exceptional
case."
The report says it "may be too early to know" what impact Aspen
American will have on Illinois with its three asbestos hubs --
Madison, St. Clair and Cook counties -- which hosted 34 percent
of all asbestos claims filed in the country and where most were
brought by plaintiffs from other states. At least for Madison
County's asbestos caseload, previous analysis has indicated that
more than 90 percent of all plaintiffs are from out of state.
"As the Illinois opinion is still recent, the effects of the
ruling are not yet apparent, but the decrease of filings in 2017
could be a sign that plaintiff firms are moving their cases to
states with a more favorable (or non-existent) personal
jurisdiction legal environment," it states.
Bankruptcy trust transparency (BTT)
With 13 states having passed legislation that adds transparency
to the asbestos trust submission process -- to help ensure
claimants don't "double-dip" from both the courts and trusts --
the report looked at whether legislation has made a difference in
filing patterns.
Its analysis focused on Ohio because it was one of the first
states to pass BTT legislation in 2013, and because it was also
the first state with a significant number of asbestos cases to do
so.
The report found a significant decrease in filings of 45 percent
between 2013 and 2014. By comparison, overall filings in the U.S.
decreased less significantly at 19 percent during that period.
It also found that mesothelioma claims in Ohio dropped during the
same period, by 36 percent, while the decrease of mesothelioma
claims in the U.S. was only 2 percent.
"The disproportionate decrease in Ohio may not be completely due
to BTT legislation; there could be other factors impacting that
state's filing rates," the report states. "However, from these
findings, we can start to make some inferences about the effect
that BTT legislation may have."
The report also found that since BTT legislation was passed in
Ohio, there was a "clear increase" in the percentage of Ohio
residents filings in state courts -- rather than out of state
claimants.
John Pastuovic, president of the Illinois Civil Justice League,
suggests the Illinois General Assembly adopt similar BTT
legislation.
"The Illinois legislature should look to Ohio as an example of a
state that has passed necessary asbestos trust transparency
legislation," he said.
"This type of legislation is critical in Madison County where
one-third of all new asbestos cases were filed last year and St
Clair County, which saw their asbestos docket grow. If changes
are not made, plaintiffs' lawyers in Madison as well as St. Clair
counties, will continue to exploit the disconnect that exists
between the asbestos trust and personal injury lawsuit system."
ASBESTOS UPDATE: Asbestos Warning After Glasgow Inferno
-------------------------------------------------------
The Guardian reported that a major fire which took hold of a
building in Glasgow city centre has been contained but an
asbestos warning has been issued to local residents and
businesses.
More than 120 firefighters dealt with the incident on the busy
shopping thoroughfare of Sauchiehall Street. The blaze started in
the roof of the building which houses Victoria's nightclub at
about 8.20am.
Chief fire officer Alasdair Hay said the fire was one of the
biggest the service has had to deal with.
"It's an incredibly complex fire in hazardous conditions and I
want to praise the firefighters for their professionalism in the
way they are dealing with this incident," he said. "It is one of
the biggest incidents we've had in the Scottish fire and rescue
service since its inception."
No one was injured in the incident. Shows at the Pavilion and
nearby Theatre Royal have been cancelled with firefighters
expected to remain at the scene for a few days.
Assistant chief officer Lewis Ramsay said crews were quick to
attend and control the fire. He said: "I am delighted to say we
have managed to contain it within the block that was affected and
more importantly we have managed to protect and save some iconic
premises round about, most notably the Pavilion Theatre."
He added: "We would urge the occupants of surrounding buildings
to remain indoors and keep their windows closed due to the
suspected presence of asbestos."
Fire crews broke into the 114-year-old Pavilion, one of the
city's best-loved music hall venues, which is located on the
other side of a narrow lane behind the building that was on fire,
amid concerns that the flames would jump across.
Speaking from the scene, Ramsay said: "It was like a blowtorch
and [the first crews] were beaten back by the heat and the flames
and a really rapid spread."
He said the fire crews had to retreat from the burning building
quickly before undertaking "some really aggressive firefighting".
"It was a really complicated fire with an extensive fire spread,
spreading across a number of older tenement-style buildings."
ASBESTOS UPDATE: Senate Passes Bills on Asbestos Claims
-------------------------------------------------------
Sherman Smith of The Topeka Capital-Journal reported that
Senators debating asbestos settlements squared off Thursday in
disagreements over the effect new requirements will have on
terminally ill plaintiffs.
House Bill 2457 would require those suffering from mesothelioma
to conduct an investigation and file all possible claims before a
civil lawsuit can move forward. The Senate passed the bill, which
cleared the House last month, on a voice vote after hearing
concerns raised by Sen. Pat Pettey, D-Kansas City, Kan.
Senators also passed bills regarding access to police body camera
video, tracking of assets seized by law enforcement, compensation
for wrongful convictions, retail electric rates and self-serve
beer taps.
Modeled on American Legislative Exchange Council policy, the
asbestos bill aims to reduce payouts in a civil trial by
revealing to jurors the money victims also receive from
bankruptcy trusts. Republicans Gene Suellentrop, of Wichita, and
Rick Wilborn, of McPherson, defended the bill as a vehicle for
speeding the payment process.
"What this has done," Suellentrop said, "is provide a seamless,
transparent way for those claimants to come forward, to not have
to stretch out their discovery time frame."
There are no time restrictions under current law, whereas the new
law provides a court-appointed 30-day window for making claims.
Pettey said other legislation already makes it difficult for
asbestos victims to file a claim. She called the new law an
unnecessary burden that requires sick people to provide extensive
information before seeking relief.
"It is a devastating, fast-moving disease," Pettey said. "And
when you add on delays through litigation, as this bill would do,
it leaves those families hanging, as well as their loved one, who
is dying. There is not a problem.
We're trying to create a problem that doesn't exist."
In other debate, senators rejected an effort by Sen. Oletha
Faust-Goudeau, D-Wichita, to divert 5 percent of seized assets to
a forfeiture victims assistance fund. The money would have been
used to provide counseling services to any child who suffers as a
result of asset seizures.
She proposed amending House Bill 2459, which requires the Kansas
Bureau of Investigation to track seized assets by agency,
location, type of property and resolution of any criminal
charges. The Senate passed the bill after denying the amendment.
Faust-Goudeau complained that colleagues through the years keep
telling her she has good ideas without supporting her efforts to
help constituents.
"Some people may not have that check stub to prove that money was
actually theirs during that seizure," Faust-Goudeau said. "I
don't know, but one day my great idea might actually, you know,
be a real policy."
ASBESTOS UPDATE: Asbestos Found in Rubbish Dumped in Rural Layby
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Lydia Morris of Daily Post North Wales reported that heaps of
rubbish containing asbestos have been dumped by fly-tippers in a
rural Flintshire layby.
The rubbish, which consists of an old tin roof, was abandoned on
a country road near Cilcain on March 19.
Flintshire council has sent a specialist asbestos contractor to
remove the material.
Steve Jones, chief officer of streetscene and transportation,
said: "The council can confirm that they have been made aware of
the fly-tipping incident in Cilcain.
"Due to the nature of the material, a specialist contractor is
scheduled to collect the material within 24 hours."
North Wales Police's Rural Crime Unit launched an investigation
after a huge pile of waste was dumped on a country lane between
Llanelian and Bryn y Maen in Conwy.
Much of the dumped material in that incident was also asbestos.
In 2016/17, local authorities in North Wales paid GBP305,660 to
tidy up illegally dumped waste across the region.
In a bid to tackle the issue across Wales, the Welsh Government
introduced a new legislation last year which gives councils
powers to issue a specific fixed penalty of up to GBP400 for
minor fly-tipping.
Mr Jones added: "Should anybody witness or become aware of fly-
tipping in the area, please report this to the Streetscene Call
Centre on 01352 701234."
ASBESTOS UPDATE: Man Blames GE for Failing to Warn Asbestos
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Jenie Mallari-Torres of Northern California Record reported that
a man alleges he developed lung-related disease because of
exposure to asbestos during his military career.
Henry and Carol Trujillo filed a complaint on March 5 in the San
Francisco County Superior Court against General Electric Co.,
Asbestos Corp. Limited, et al. alleging negligence and other
counts.
According to the complaint, Henry Trujillo was exposed to
asbestos and asbestos-containing products from 1957 to 1992
during his career with the
U.S. Navy, which caused him to develop pleural disease and
asbestosis. He alleges he was diagnosed with asbestosis in 2006
and pleural disease in August 2017.
He alleges the defendants were engaged in the business of mining,
manufacturing, installing or removing of asbestos.
Plaintiff Carol Trujillo alleges she has been deprived of the
consortium, society, comfort and affection of her spouse.
The plaintiffs hold General Electric Co., Asbestos Corp. Limited
et al. responsible because the defendants allegedly failed to
warn plaintiff of asbestos and other toxic dusts, failed to
provide adequate breathing protection, and failed to follow
applicable general industry safety orders.
The plaintiffs request a trial by jury and seek judgment against
defendants, award for general damages, medical and related
expenses, costs of suit, exemplary or punitive damages and
further relief as the court may deem just.
They are represented by Alan R. Brayton, David R. Donadio, James
P. Nevin and Nancy T. Williams of Brayton Purcell LLP in Novato.
San Francisco County Superior Court case number CGC-18-276663
ASBESTOS UPDATE: Researcher Has 5Yrs After Asbestos Exposure
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Bill Jacobs of Lancashire Telegraph reported that a cancer
researcher raised in Blackburn has been left 'devastated' by
being diagnosed with a fatal form of the disease in his forties.
Father-of-two Dr John Timms faces a steady increase in
disability, and is unlikely to survive more than five years.
The 48-year-old was diagnosed in July with mesothelioma, which
attacks the lining of the lung, and is usually caused by exposure
to asbestos.
Already he is suffering from breathlessness and faces increasing
pain, fatigue, fever and coughing up blood from the virulent and
incurable cancer.
Only 35 per cent sufferers survive more than a year and nine per
cent more than five years.
Married to Kate, Dr Timms has two children: Anna,14, and Jamie,
11. For much of his career he has been a researcher into cancer.
Growing up in the Wensley Fold area of Blackburn, the young Dr
Timms attended St Silas Church of England School in the mid-
1970s, and then Billinge High School.
Now he and his lawyers have launched an appeal for information
regarding how his illness, which he believes stems from his
Blackburn childhood in the 1970s and 80s, may have developed. Dr
Timms said: "My family and I have been left totally devastated by
my diagnosis and the illness has already had a huge impact on my
life."
"I have always had a very active lifestyle and enjoyed cycling
and running, but the symptoms of the mesothelioma mean it is
incredibly difficult to do that now."
His legal team at specialist lLLawyers Irwin Mitchell are keen to
hear from anyone able to shed light on the potential presence of
asbestos at the two schools he attended and the nearby Crosshill
Special School, now the site of Wensley Fold Primary.
They and Dr Timms believe work at the schools, then run by
Lancashire County Council, may have exposed him to asbestos and
are also interested in the possibility that discarded broken
asbestos in garage plots around the Manor Road area (which he
recalls from childhood) could be the source of the disease.
Rosemary Giles, of Irwin Mitchell, said: "This is a truly
devastating tale in which a doctor who has devoted much of his
life to researching cancer has gone on to develop such a
condition at a terribly young age. We would be hugely grateful to
anyone who is able to shed light on the presence of asbestos at
any of the locations highlighted."
Dr Timms, who now lives in Hitchin in Hertfordshire, said: "I
cannot recall any potential exposure to asbestos during my career
so can only think it potentially happened earlier than that. "If
anyone can help me gain answers regarding these schools I
attended, or was around, it would be hugely appreciated."
Anyone with information should contact Rosemary Giles at Irwin
Mitchell's Cambridge office on 0370 1500 300 or email
Rosemary.Giles@irwinmitchell.com.
Any legal action if the source of the cancer is traced to
asbestos in one of the schools is likely to involve the county
council.
A county council spokesman said: "If Mr Timms contacts us
regarding this appeal for information, we will of course deal
with it appropriately. We are unable to comment further at this
stage."
ASBESTOS UPDATE: Hospice Gets GBP12,000 for PE Teacher's Death
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Brian and Clair York of Eastbourne Herald reported that Brian
York died aged 63 in December 2015 after losing his battle with
mesothelioma, a form of cancer linked to exposure to asbestos
decades earlier.
Brian had been an inpatient at St Wilfrid's Hospice in Eastbourne
for around two months before his death.
The hospice has now received GBP12,022.55 from Irwin Mitchell
lawyers as part of a legal case after Brian was exposed to
asbestos whilst working as a PE Teacher and head of year at
Imberhorne School in East Grinstead, West Sussex,
Irwin Mitchell acted on behalf of his widow, Clair, 61, of
Uckfield, to secure the substantial sum in relation to the cost
of Brian's care at St Wilfrid's Hospice.
The funds recovered on behalf of the hospice follow a landmark
ruling in a 2010 case led by Irwin Mitchell which ruled that the
insurers of a company responsible for the death of a worker from
an asbestos-related disease should contribute to the cost of the
care provided to the victim by their hospice.
Clair, a former teacher, said, "The staff at St Wilfrid's
provided invaluable support at a time when we needed it most. I'm
pleased that Irwin Mitchell was able to recover this money on
behalf of the hospice so that it can continue the vital work it
does for people across the region.
"Brian too really wanted to ensure that the hospice recovered its
costs as both of us felt so strongly that it should be rewarded
for all its hard work and dedication."
In addition to the donation, Clair volunteers at the hospice as a
ward clerk on a regular basis, and has taken part in sponsored
events in order to raise funds to support St Wilfrid's.
Clair has also worked alongside the Hampshire Asbestos Support
and Awareness Group (HASAG) to launch a monthly coffee morning
support group at the Civic Centre in Uckfield, which held its
first meeting on Tuesday, February 13.
HASAG provides free support, guidance and information to people
with asbestos diseases and the charity runs regular coffee
mornings across the South of England, South East, London and Home
Counties.
Clair hopes that the new Uckfield support group will keep Brian's
legacy alive whilst helping others who have been affected by the
same condition. Key people from hospitals and hospices across
Tunbridge Wells, Hayward's Heath, Eastbourne, Brighton and
Hastings will attend the group to provide advice and help to
those with cancer, their families and friends.
Natalia Rushworth-White, the specialist asbestos-related disease
lawyer at Irwin Mitchell's London office who acted for Clair,
said, "I am delighted we have been able to settle Clair's case
and help support the hospice where Brian received his care.
"By providing St Wilfrid's Hospice with this money and with Clair
linking up with the HASAG team, individuals and their families
will be able to access the essential support they need.
"Following the devastating loss of her husband from exposure to
asbestos working as a teacher, it is incredible to see Clair
making such a difference on behalf of all asbestos victims.
"Our clients are always very clear that where possible, they want
to benefit the hospice where they were looked after by excellent
carers and we will continue to assist wherever we can."
Colin Twomey, from St Wilfrid's added, "St Wilfrid's hospice is
incredibly grateful to Clair, who has spent so much time and
energy making it possible for the hospice to receive the
fantastic sum of over GBP12,000.
"We are also grateful for the words of support and appreciation
that Clair has written in which she speaks so highly of the care
and support which she and Brian received at this time.
"Clair's continuing support of the work here at the hospice means
that we are able to care for more patients and get closer to more
people who are at the end of life and who, along with their
families and friends, are facing some of the most difficult days
of their lives."
Clair is set to hand over the money to the hospice at a special
presentation ceremony at St Wilfrid's on April 4.
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