/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/180427.mbx C L A S S A C T I O N R E P O R T E R Friday, April 27, 2018, Vol. 20, No. 85 Headlines 24 HOUR: "Valdez" Suit Seeks Overtime Wages under FLSA A&B INSURANCE: Bid for Prelim Approval of "Youngman" Deal Moot ABERCROMBIE & FITCH: Class Suits Granted Preliminary Approval AUDIOEYE INC: Proposed Modified Plan of Allocation Approved ANTERO RESOURCES: Court Conditionally Certifies "Stallings" Class ANTHEM INC: Court Dismisses "Resse" TCPA Suit AVIS BUDGET: "Wan" Suit Moved to Eastern District of New York BEST BUY: Bid for Leave to Amend Class Complaint Underway BOCAS HOUSE: Alvarado Seeks Minimum Wages & Tips under FLSA BRE SELECT: Continues to Defend "Wilchfort" Class Action Suit BRIDGEPOINT EDUCATION: Court Dismisses "Zamir" Securities Suit CAL-MAINE FOODS: Pays $80.8 Million to Non-Class Plaintiffs CANADA: Spent $40MM on Legal Proceedings Involving Veterans CARGURUS INC: Wins Summary Judgment in "Serban" TCPA Suit CBOE EXCHANGE: Class Calls Out Key Volatility Index Manipulation CHURCHILL DOWNS: Class Action Remanded to Initial Trial Court CIGNA HEALTH: Court Narrows Claims in "Negron" CIRQUE DU SOLEIL: Court Certifies TCPA Class CR ENGLAND: Court Limits Request of Fin'l Docs in "Roberts" CRYPTO CO: Dismissal of "Shepherdson" Suit Upheld DENVER, CO: High Ct. to Decide Lawfulness of Homeless Sweeps DXP ENTERPRISES: Winkle Seeks Overtime Compensation under FLSA EMCORE CORP: Accrued $0.2MM Related to "Mirasol" Settlement ENDO INT'L: Lidoderm Dispute Ends With Settlements EQUIFAX INFORMATION: Response Time in "Bruno" Extended EQUIFAX INFORMATION: McGinley Time to Respond Extended EVERGREEN RECREATIONAL: Ct. Certifies Class of Terminated Workers FACEBOOK INC: More Communities Join Crypo Ads Ban Class Action FACEBOOK INC: Court Denies Amendment to "Gullen" BIPA Complaint FACEBOOK INC: Tracy Sues over Unauthorized Use of Users' Data FIAT CHRYSLER: Must Face Emissions-Cheating Claims FIRST FEDERAL: Wins Dismissal of "Chase" Suit FTD COMPANIES: Oral Arguments on EasySaver's Suit Set for May 17 FRANCE: Class Action Mulled Over Linky Electricity Meters GDFRIEND INC: Ct. Won't Stay "Amdezewicz" Pending ACA Decision GLOBAL CREDIT: Faces "Farro" Suit in District of New Jersey GLOBAL EAGLE: Notice of Appeal Filed in M&M Hart Suit GOLDOC: Gold Coast Business Owners Mull Class Action GUARDIAN LIVING: Court Conditionally Certifies "Williams" Class HALYARD HEALTH: Award of Punitive Damages Reduced to $24.4MM HALYARD HEALTH: Court Grants Bid to Dismiss "Jackson" Suit HAPPILY COMPANY: Fails to Pay OT & Minimum Wages, Fortt Says HERTZ CORP: Court Compel Arbitration in "Olivas" HMS HOST: Oct. 25 Class Certification Hearing in "Garcia" HOVNANIAN ENTERPRISES: Settlement Approval Hearing Set for May 3 INDIANA: Court Denies Certification of "Garcia" Class INDIANA: Court Denies Class Certification in "Hale" INFORMATION RESOURCES: Court Issues Order on ESI Production INTERSTATE HOTELS: Court Certifies Class in "Richardson" IQ FORMULATIONS: Court Tosses Class Action Over DMBA Ingredient JPMORGAN CHASE: Loses Bid to Dismiss "Nypl" Antitrust Suit LAHORI KEBAB: "Vasquez" Suit Seeks OT & Earned Wages under FLSA LIMBACH HOLDINGS: Appeal Made in "Garfield" Suit Dismissed LONGFIN CORP: Wei Sues over Plunge in Stock Price MAJOR LEAGUE: Minors Baseball Players to Lose Min Wage Protection MDL 2804: Buckhannon Has Yet to Decide on Joining Opioid Suit MDL 2826: "Agans" Suit over Data Security Breach Consolidated MDL 2827: "Mazzeo" Suit over iPhone Performance Consolidated MDL 2827: "Mailyan" Suit over iPhone Performance Consolidated MDL 2827: "Speas" Suit over iPhone Performance Consolidated MDL 2827: "Drantivy" Suit over iPhone Performance Consolidated MDL 2827: "Brand" Suit over iPhone Performance Consolidated MDL 2828: "Bernstein" Suit over Defective CPUs Consolidated MDL 2828: Alrose Suit over Defective CPUs Consolidated MDL 2828: "Inman" Suit over Defective CPUs Consolidated MDL 2828: "Murphy" Suit over Defective CPUs Consolidated MDL 2828: "Robbins" Suit over Defective CPUs Consolidated MGT CAPITAL: Says Time to File Notice of Appeal Already Expired MIDLAND FUNDING: "Smith" Suit Moved to Western Dist. of Arkansas MILLENNIUM LABS: "Booth" Suit Seeks Overtime Wages MODESTO, CA: Court Approves $100K Settlement in "Beidleman" Suit MURRAY GOULBURN: Slater & Gordon to Proceed with Class Action NANO: Faces Investor Class Action in New York NORMAN BARWIN: May Face Suit for Using Sperm to Impregnate Women NOVUS THERAPEUTICS: "Doshi" Consolidated with "Garbowski" Suit NOVUS THERAPEUTICS: Multiple Suits over Tokai IPO Pending OPEN DOOR: "Conde" Plaintiffs Must Respond to RFPs OOMA INC: Continues to Defend "Barnett" Suit Over IPO PENNSYLVANIA: Court Dismisses "Marmolejos" Suit PERRY'S STEAKHOUSE: Court Certifies Table-Servers Class PETROBRAS: June 9 Settlement Claims Submission Deadline Set PURE STORAGE: California Shareholder Class Suit Dismissed QUEST NUTRITION: Court Dismisses FAC in "Cairo" RAMOS FURNITURE: Time to File Damages Bid in "Topete" Extended RAYMOURS FURNITURE: Court Compels Arbitration in "Castellanos" RESHAPE LIFESCIENCES: Discovery Ongoing in "Du" Class Suit SIBANYE GOLD: Mine Workers Class Action Suit Still Ongoing SIGNET JEWELERS: Oral Argument Set for May 7 in 2nd Cir. Appeal SIGNET JEWELERS: Dismissal of "Masten" Class Action Sought SIGNET JEWELERS: To Seek Dismissal of N.Y. Securities Suit SITO MOBILE: Bid to Dismiss "Roper" Suit Still Pending SMURFIT KAPPA: Fails to Pay Overtime & Minimum Wage, Chavez Says SPAR GROUP: Court Denies Dismissal of "Hogan" Suit SPAR GROUP: Continues to Defend "Hogan" Class Action Suit TARGET CORP: Settles Racial Discrimination Suit for $3.7MM TECHNIPFMC PLC: Faces "Prause" Shareholder Class Action TIGER BRANDS: Listeriosis Outbreak Class Action Pending TRANSNATIONAL FOODS: Court Narrows Claims in "Lejbman" TRIANGLE CAPITAL: Wolf Haldenstein to Lead in Securities Suit UBER TECH: "Webber" Suit over Data Security Breach Consolidated UNITED STATES: Travel Ban Ruined Lives, Class Action Claims VHS OF ILLINOIS: Marker et al Sue over Sensitive Personal Info VSE CORPORATION: "Tefteller" Suit Seeks Overtime Pay under FLSA WH ADMINISTRATORS: Court Denies Arbitration of ERISA Class Claims XCERRA CORP: "Stallings" Suit Dismissed XCERRA CORP: "Berg" Suit Dismissed XCERRA CORP: "Khan" Class Action Dismissed YALE UNIVERSITY: Class Action Over Retirement Plan Fees Okayed * California Becomes Hub for Litigation Over Failed IPOs * Confusing New Laws to Fuel Growth of Employment Law Practices * EU to Propose Giving Consumer Groups Right to Seek Compensation * Lawyer Expects Litigation Against Promoters of ICOs Asbestos Litigation ASBESTOS UPDATE: Union Carbide Has 15,427 PI Claims at Dec. 31 ASBESTOS UPDATE: Union Carbide Has $1.4BB Liability at Dec. 31 ASBESTOS UPDATE: NewMarket Corp. Has $8.25MM Litigation Reserve ASBESTOS UPDATE: 193 Talcum Suits vs. Colgate-Palmolive Pending ASBESTOS UPDATE: Court Dismissed "Johnson" Asbestos PI Suit ASBESTOS UPDATE: PI Claims vs. MetLife Dropped in "Airey" ASBESTOS UPDATE: Utica Must Disclose Docs on Burnham Deal ASBESTOS UPDATE: Consolidated Edison Leave to Appeal Withdrawn ASBESTOS UPDATE: Clarks Not Estopped for Not Disclosing Diagnosis ASBESTOS UPDATE: Denial to Exclude Schonfeld Testimony Reversed ASBESTOS UPDATE: Crane's Bid for Summary Ruling in "Chesher" OK'd ASBESTOS UPDATE: Syngenta, INA Dispute Sent to Arbitration ASBESTOS UPDATE: Rule 2019 Exhibits Access Decision Affirmed ASBESTOS UPDATE: 9th Cir. Affirms Denial of Crane's Judgment Bid ASBESTOS UPDATE: Reargument on Bid to Appeal "Warren" Denied ASBESTOS UPDATE: Attempt to Appeal "North" PI Suit Denied ASBESTOS UPDATE: 1 in 4 Construction Workers Exposed to Asbestos ASBESTOS UPDATE: J&J Loses 1st Asbestos Talcum Powder Suit ASBESTOS UPDATE: City Can't Recoup $1.4MM Asbestos Defense Costs ASBESTOS UPDATE: Widow Says Railway Co. Failed to Warn Risks ASBESTOS UPDATE: Exposure Hidden Risk for Asia's Budget Tourist ASBESTOS UPDATE: Council Asked to Scrub Asbestos Walls ASBESTOS UPDATE: Uninformed Workers Face Mesothelioma Risks ASBESTOS UPDATE: School Battling Asbestos Issues to Reopen ASBESTOS UPDATE: Crane Co., Others Named in "Scudder" Suit ASBESTOS UPDATE: Claire's Accessories Kit Banned in UK ASBESTOS UPDATE: Family Battles Home Asbestos Contamination ASBESTOS UPDATE: Auditorium Closes After Asbestos Testing ASBESTOS UPDATE: Violation of Ark. Asbestos Regulation Addressed ASBESTOS UPDATE: Cherokee Council OKs Asbestos Removal Funding ASBESTOS UPDATE: Asbestos Firm Prosecuted for Forging Health Docs ASBESTOS UPDATE: Asbestos Closes Fishing Spot in Bluff ASBESTOS UPDATE: $200K for Old Elementary School Asbestos Removal ASBESTOS UPDATE: Man Dies After 50 Years From Exposure ASBESTOS UPDATE: Unresolved Asbestos Issue Raised on Debate ASBESTOS UPDATE: Oil Refinery Worker Dies From Asbestos Exposure ASBESTOS UPDATE: 200+ Asbestos Hotspots on Alness Academy ASBESTOS UPDATE: University Criticized for Poor Asbestos Handling ASBESTOS UPDATE: Hotel Owner Likely Died from Asbestos Exposure ASBESTOS UPDATE: Couple Says Exposure Caused Husband's Cancer ASBESTOS UPDATE: Tort Reform Urged After $60MM Asbestos Deal ASBESTOS UPDATE: Jury Awards $60MM Asbestos Verdict ASBESTOS UPDATE: Asbestos Fraud Leads to GBP25000 Bill ASBESTOS UPDATE: High Ct. Urged to Expedite Asbestos Pay ASBESTOS UPDATE: Authorities Urged to Remove Asbestos From School ASBESTOS UPDATE: Asbestos Linked with Laryngeal Cancer ASBESTOS UPDATE: Latest Push for Asbestos Tort Reform in Missouri ASBESTOS UPDATE: Ct. Denies Personal Jurisdiction in Suit ********* 24 HOUR: "Valdez" Suit Seeks Overtime Wages under FLSA ------------------------------------------------------ HECTOR VALDEZ, and all others similarly situated under 29 U.S.C. 216(b), the Plaintiff, v. 24 HOUR FITNESS, J&D SERVICE SOLUTIONS CORP, JOSE RODRIGUEZ a/k/a JOE RODRIGUEZ, DAYLE RODRIGUEZ, a/k/a DAYLE ENRIQUEZ, VANNEZZA CASTORENA, and ANA MARIA SEPULVEDA, the Defendants, Case No. 3:18-cv-00981-D (N.D. Tex., April 19, 2018), seeks to recover overtime wages as required by the Fair Labor Standards Act. According to the complaint, the Defendants have employed several other similarly situated employees like the Plaintiff who have not been paid overtime and/or minimum wages for work performed in excess of 40 hours weekly from the filing of this complaint back at least three years. From on or about December 17, 2015 through on or about October 11, 2017 -- except for the period from on or about July 25, 2017 through on or about August 15, 2017 during which Plaintiff was unable to work due to injury -- the Plaintiff was paid an average straight time rate of $9.25 per hour and worked an average of 71 hours per week, but was not paid the extra halftime overtime rate for hours worked above 40 hours in a week as required by the Fair Labor Standards Act. The Plaintiff claims the unpaid half-time overtime rate for each overtime hour worked above 40 in a workweek. The Defendants willfully and intentionally refused to pay Plaintiff's overtime wages as required by the FLSA as Defendants knew of the FLSA's overtime requirements and recklessly failed to investigate whether Defendants' payroll practices were in accordance with the FLSA. 24 Hour Fitness is the world's largest privately owned and operated fitness center chain, and third in number of clubs behind Gold's Gym and Fitness First of the UK.[BN] The Plaintiff is represented by: Robert Manteuffel, Esq. J.H. Zidell, Esq. Joshua A. Petersen, Esq. J.H. ZIDELL, P.C. 6310 LBJ Freeway, Ste. 112 Dallas, TX 75240 Telephone: (972) 233 2264 Facsimile: (972) 386 7610 E-mail: zabogado@aol.com rlmanteuffel@sbcglobal.net josh.a.petersen@gmail.com A&B INSURANCE: Bid for Prelim Approval of "Youngman" Deal Moot -------------------------------------------------------------- The United States District Court for the Middle District of Florida, Orlando Division, denied as moot Plaintiff's Unopposed Renewed Motion for Preliminary Approval of Class Action Settlement as moot in the case captioned JIM YOUNGMAN and ROBERT ALLEN, Plaintiffs, v. A&B INSURANCE AND FINANCIAL, INC., Defendant, Case No. 6:16-cv-1478-Orl-41GJK (M.D. Fla.). A full-text copy of the District Court's March 12, 2018 Order is available at https://tinyurl.com/ya7xa42m from Leagle.com. Jim Youngman, individually and on behalf of a class of all persons and entities similarly situated, Plaintiff, represented by Anthony Paronich -- anthony@broderick-law.com -- Broderick & Paronich, P.C., pro hac vice, Edward A. Broderick -- ted@broderick-law.com -- Broderick & Paronich, P.C., pro hac vice, Matthew P. McCue -- mmccue@massattorneys.net- Law Office of Matthew P. McCue, pro hac vice & Phillip T. Howard, Howard & Associates, PA. Robert Allen, Plaintiff, represented by Edward A. Broderick, Broderick & Paronich, P.C., pro hac vice, Matthew P. McCue, Law Office of Matthew P. McCue, pro hac vice, Phillip T. Howard, Howard & Associates, PA & Anthony Paronich, Broderick & Paronich, P.C. A&B Insurance and Financial, Inc., Defendant, represented by Christina Marie Kennedy -- ckennedy@foley.com -- Foley & Lardner, LLP & Michael D. Leffel -- mleffel@foley.com -- Foley & Lardner, LLP, pro hac vice. ABERCROMBIE & FITCH: Class Suits Granted Preliminary Approval ------------------------------------------------------------- Abercrombie & Fitch Co. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on April 2, 2018, for the fiscal year ended February 3, 2018, that the U.S. District Court of Ohio granted preliminary approval of the proposed settlement of a class action lawsuit. The Company is a defendant in two separate class action lawsuits filed by former associates of the Company who are represented by the same counsel. The first lawsuit, filed in 2013, alleges failure to indemnify business expenses and a series of derivative claims for compelled patronization, inaccurate wage statements, waiting time penalties, minimum wage violations and unfair competition under California state law on behalf of all non-exempt hourly associates at Abercrombie & Fitch, abercrombie kids, Hollister and Gilly Hicks stores in California. Four subclasses of associates have since been certified, and was before a U.S. District Court of California. The second lawsuit, filed in 2015, alleges that associates were required to purchase uniforms without reimbursement in violation of federal law, and laws of the states of New York, Florida and Massachusetts, as well as derivative putative state law claims and seeks to pursue such claims on a class and collective basis. On December 12, 2017, a U.S. District Court of California granted the parties' stipulation to transfer the first lawsuit pending and combine it with the second lawsuit then pending before a U.S. District Court of Ohio. Both matters were mediated and the parties signed a $25.0 million claims-made settlement agreement which, subject to final approval by a U.S. District Court of Ohio, is intended to result in a full and final settlement of all claims in both lawsuits on a class- wide basis. On February 16, 2018, a U.S. District Court of Ohio granted preliminary approval of the proposed settlement and ordered that notice of the proposed settlement be given to the absent members of the settlement class. The ultimate settlement amount is dependent upon the actual claims made by members of the class and is also subject to final approval by the U.S. District Court of Ohio. A final approval hearing is set to occur in the second quarter of Fiscal 2018. Abercrombie & Fitch Co. ("A&F"), a company incorporated in Delaware in 1996, through its subsidiaries, is a global, multi- brand specialty retailer, which primarily sells its products through its wholly-owned store and direct-to-consumer channels, as well as through various third-party wholesale, franchise and licensing arrangements. The Company offers a broad assortment of apparel, personal care products and accessories for men, women and kids under the Hollister, Abercrombie & Fitch and abercrombie kids brands. The company is based in New Albany, Ohio. AUDIOEYE INC: Proposed Modified Plan of Allocation Approved ----------------------------------------------------------- AudioEye, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on April 2, 2018, for the fiscal year ended December 31, 2017, that the Court has authorized distribution of the Net Settlement Fund and to approved the proposed modified plan of allocation in the case captioned as, In re AudioEye, Inc. Sec. Litigation. In April 2015, two shareholder class action lawsuits were filed against the Company and former officers Nathaniel Bradley and Edward O'Donnell in the U.S. District Court for the District of Arizona. The plaintiffs alleged various causes of action against the defendants arising from the company's announcement that its previously issued financial results for the first three quarters of 2014 and the guidance for the fourth quarter of 2014 and the full year of 2014 could no longer be relied upon. The complaints sought among other relief, compensatory damages and plaintiff's counsel's fees and experts' fees. The Court appointed a lead plaintiff and lead counsel, and consolidated the actions. A consolidated amended complaint was filed under the caption In re AudioEye, Inc. Sec. Litigation. The Company and individual defendants filed a motion to dismiss. On July 25, 2016, in connection with a voluntary mediation, the parties reached an agreement in principle to settle the consolidated actions. The terms of the agreement include a settlement payment to the class of $1,525,000 from the Company's insurer, with no admission of liability by any party. In 2015, the Company paid a deductible under its D&O insurance policy in the amount of $100,000 regarding this matter. On May 8, 2017, the Court approved the settlement in all respects, and dismissed the case with prejudice. On January 23, 2017, the court granted preliminary approval of the settlement pursuant to the terms set forth in the Stipulation of Settlement, provisionally certified a settlement class of shareholders, and directed plaintiffs' counsel to provide notice to that class. The Court held a Settlement Hearing May 8, 2017 to consider any objections to the Settlement that might be raised by settlement class members, to consider plaintiffs' counsel's application for an award of fees and costs, and to determine whether the Order and Final Judgment as provided under the Stipulation of Settlement should be entered, dismissing the case with prejudice. AudioEye said in its Form 10-Q Report for the quarterly period ended September 30, 2017, that on May 8, 2017, the Court approved the settlement in all respects, and dismissed the case with prejudice. In its Form 10-K Report, the Company said that on February 9, 2018, the Court authorized distribution of the Net Settlement Fund and to approved the proposed modified plan of allocation. AudioEye, Inc. provides Web accessibility solutions to Internet, print, broadcast, and other media to people regardless of their network connection, device, location, or disabilities in the United States. The company is based in Tuczon, Arizona. ANTERO RESOURCES: Court Conditionally Certifies "Stallings" Class ----------------------------------------------------------------- The United States District Court for the District of Colorado granted in part and denied in part Plaintiffs' Motion for Conditional Certification in the case captioned BRETT STALLINGS, individually and as on behalf of all others similarly situated, Plaintiff, v. ANTERO RESOURCES CORP., Defendant, Civil Action No. 1:17-cv-01939-RM-NYW (D. Colo.). The Plaintiff initiated the matter, asserting violations of section 7 of the Fair Labor Standards Act (FLSA) against Antero. The Plaintiff alleges that the Defendant improperly classifies Solids Control Operator (SCOs) and Pipeline Inspector (PIs) as independent contractors to avoid paying such workers overtime compensation for hours worked in excess of forty hours per week. The Plaintiff brings this claim on behalf of himself and all similarly situated SCOs and PIs, and seeks overtime wages under the FLSA in an amount equal to 1.5 times their rate of pay, plus liquidated damages, attorney's fees, and costs. Mr. Stallings requests conditional certification for the following potential opt-in plaintiffs: All current and former Solids Control Operators and Pipeline Inspectors employed by, or working on behalf of, Antero Resources Corp., who were classified as independent contractors and paid a day-rate, at any time from [the date three years back from the date that any Court-approved Notice and Consent form is distributed to potential class members, to present. Antero opposes conditional certification for several reasons. Are There Substantial Allegations to Support a Finding that Plaintiff is Similarly Situated to Potential Opt-In Plaintiffs? In review of both the Complaint and Declaration, Mr. Stallings's knowledge is limited to his personal observations and his discussions with co-workers at the location(s) he actually worked. He makes no factual allegations that permit the court to conclude that he can extend any of his assertions to any Antero locations beyond those where he worked. There are no allegations that Mr. Stallings knew of other SCOs and PIs that worked in other Antero locations; that he visited or personally observed any other locations; that he spoke to any SCOs or PIs who worked at any other location; or that any of his co-workers had previously or subsequently worked at other Antero locations and informed him that the job duties or applicable pay policies were substantially similar. Mr. Stallings does not point the court to a job description or other documentation that reflects that there is a standard set of duties, or a standard pay policy, for SCOs and PIs working for Antero at any U.S. location. The Complaint's general statements related to current and former oilfield personnel, employed by, or working on behalf of, Antero Resources Corp. are too vague and conclusory to support potential opt-in plaintiffs beyond Mr. Stallings's specific locations of employment. Despite the lenient standard at this stage, mere conclusory declarations or those based on hearsay or speculation are insufficient to grant conditional FLSA collective action certification. Willfulness Defendant also argues that the court should limit any certification to the two-year limitations period, as opposed to a three-year limitations period for willful violations, because Plaintiff has made no factual allegations from which willfulness can be inferred by the Court. In ruling that willfulness had been adequately pleaded, the Tenth Circuit first observed that a statute of limitations defense is an affirmative defense and, thus, the defendant bears the burden at the motion to dismiss phase. Fernandez v. Clean House, LLC, F. 3d, 2018 WL 1123873 (10th Cir. Mar. 2, 2018). Further, the Fernandez court held that dismissal of an allegation of willfulness on a Rule 12(b)(6) motion is only appropriate when all the elements of the affirmative defense appear plainly on the face of the complaint itself. Here, the Plaintiff alleges that Antero knowingly, willfully, or in reckless disregard carried out an illegal pattern or practice of failing to pay the Putative Class Members overtime compensation. Antero's failure to pay overtime compensation to these employees were neither reasonable, nor was the decision not to pay overtime made in good faith. In light of Fernandez, the court concludes that these allegations are sufficient at this stage, and the proposed notice should extend three, rather than two, years back. A full-text copy of the District Court's March 12, 2018 Order is available at https://tinyurl.com/yak5e4w2 from Leagle.com. Brett Stallings, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Andrew Wells Dunlap -- adunlap@mybackwages.com -- Josephson Dunlap Law Firm, Lindsay R. Itkin -- litkin@mybackwages.com -- Josephson Dunlap Law Firm, Matthew Scott Parmet -- mparmet@brucknerburch.com -- Bruckner Burch PLLC & Michael Andrew Josephson -- mjosephson@mybackwages.com -- Josephson Dunlap Law Firm. Antero Resources Corp., Defendant, represented by Edwin Packard Aro -- ed.aro@apks.com -- Arnold & Porter Kaye Scholer LLP & Vanessa M. Griffith -- vgriffith@velaw.com -- Vinson & Elkins, LLP. ANTHEM INC: Court Dismisses "Resse" TCPA Suit --------------------------------------------- The United States District Court for the Eastern District of Louisiana granted Defendant's Motion to Dismiss the case captioned RENEE REESE, ON BEHALF OF HERSELF AND OTHER PERSONS SIMILARLY SITUATED, v. ANTHEM, INC., ET AL. SECTION L (4), Civil Action No. 17-07940 (E.D. La.). The Plaintiff alleges that Defendants Anthem, Inc., Anthem Foundation, and the American Heart Association (AHA) violated the Telephone Consumer Protection Act (TCPA) when they sent text messages to Plaintiff and other consumers nationwide. In this case, the Plaintiff provided her cellular number to AHA a nonprofit organization when she attended a CPR training event. The Plaintiff concedes that she submitted her phone number to AHA to receive monthly CPR reminders, healthy messaging information, and questions from AHA. Therefore, because the Plaintiff voluntarily opted for this information, she has provided prior express consent to AHA. Despite this acknowledgment, the Plaintiff's main contention is that she never consented to receiving text messages from Anthem Foundation and by the Plaintiff's logic and extension, Anthem Inc. However, although the text messages reference Anthem Foundation, this is irrelevant because the sender was, in fact, AHA. The Plaintiff has not cited any persuasive cases that says a nonprofit's association with a donor or another charitable entity, Anthem Foundation gives rise to a TCPA claim when she voluntarily sought to receive certain communications and information. A full-text copy of the District Court's March 12, 2018 Order and Reasoms is available at https://tinyurl.com/ycwmj52r from Leagle.com. Renee Reese, on behalf of herself and other persons similarly situated, Plaintiff, represented by Roberto L. Costales -- costaleslawoffice@gmail.com -- Costales Law Office, Emily Westermeier -- emily.costaleslawoffice@gmail.com -- Costales Law Office, Jonathan Mille Kirkland, Beaumont Costales LLC & William Henry Beaumont, William H. Beaumont Law, 3801 Canal St Ste 207, New Orleans, LA, 70119-6065 Anthem, Inc., American Heart Association, Inc. & Anthem Foundation, Inc., incorrectly named as Anthem Blue Cross and Blue Shield Foundation, L.L.C., Defendants, represented by Covert J. Geary -- cgeary@joneswalker.com -- Jones Walker, Michael C. Drew -- mdrew@joneswalker.com -- Jones Walker & Samantha M. Schott- sschott@joneswalker.com -- Jones Walker. AVIS BUDGET: "Wan" Suit Moved to Eastern District of New York ------------------------------------------------------------- The class action lawsuit titled Kenneth Wan, individually and on behalf of all other persons similarly situated, the Plaintiff, v. Avis Budget Car Rental, LLC and Budget Rent A Car System, Inc. and/or other entities affiliated with or controlled by, Avis Budget Car Rental, LLC; Budget Rent A Car System, Inc., the Defendants, Case No. 603714/2018, was removed from the Supreme Court of the State of NY, County of Nassau, to the U.S. District Court for the Eastern District of New York (Central Islip) on April 19, 2018. The District Court Clerk assigned Case No. 2:18- cv-02320-ADS-AKT to the proceeding. The case is assigned to the Hon. Judge Arthur D. Spatt. Avis Budget Car Rental, LLC operates and franchises vehicle rental services under the names Avis and Budget. The company offers domestic car rental services providing car rentals and ancillary products and services to business and leisure travelers in the United States.[BN] The Plaintiff is represented by: Jeffrey Kevin Brown, Esq. Michael Alexander Tompkins, Esq. LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, NY 11514 Telephone: (516) 873 9550 Facsimile: (516) 747 5024 E-mail: jbrown@leedsbrownlaw.com mtompkins@leedsbrownlaw.com Attorneys for Defendants: Jay P. Warren, Esq. Courtney Janae Peterson, Esq. BRYAN CAVE LLP 1290 Avenue of the Americas New York, NY 10104 Telephone: (212) 541 2110 Facsimile: (212) 541 1466 E-mail: jpwarren@bryancave.com courtney.peterson@bryancave.com BEST BUY: Bid for Leave to Amend Class Complaint Underway --------------------------------------------------------- Best Buy Co., Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on April 2, 2018, for the fiscal year ended December 31, 2017, that the motion for leave to file a second amended class action complaint, in the case IBEW Local 98 Pension Fund v. Best Buy Co., Inc., et al., is still pending. In February 2011, a purported class action lawsuit captioned, IBEW Local 98 Pension Fund, individually and on behalf of all others similarly situated v. Best Buy Co., Inc., et al., was filed against the company and certain of its executive officers in the U.S. District Court for the District of Minnesota. This federal court action alleges, among other things, that the company and the officers named in the complaint violated Sections 10(b) and 20A of the Exchange Act and Rule 10b-5 under the Exchange Act in connection with press releases and other statements relating to the company's fiscal 2011 earnings guidance that had been made available to the public. Additionally, in March 2011, a similar purported class action was filed by a single shareholder, Rene LeBlanc, against the company and certain of its executive officers in the same court. In July 2011, after consolidation of the IBEW Local 98 Pension Fund and Rene LeBlanc actions, a consolidated complaint captioned, IBEW Local 98 Pension Fund v. Best Buy Co., Inc., et al., was filed and served. The company filed a motion to dismiss the consolidated complaint in September 2011, and in March 2012, subsequent to the end of fiscal 2012, the court issued a decision dismissing the action with prejudice. In April 2012, the plaintiffs filed a motion to alter or amend the court's decision on our motion to dismiss. In October 2012, the court granted plaintiff's motion to alter or amend the court's decision on the company's motion to dismiss in part by vacating such decision and giving plaintiff leave to file an amended complaint, which plaintiff did in October 2012. The company filed a motion to dismiss the amended complaint in November 2012 and all responsive pleadings were filed in December 2012. A hearing was held on April 26, 2013. On August 5, 2013, the court issued an order granting the company's motion to dismiss in part and, contrary to its March 2012 order, denying the motion to dismiss in part, holding that certain of the statements alleged to have been made were not forward-looking statements and therefore were not subject to the "safe-harbor" provisions of the Private Securities Litigation Reform Act. Plaintiffs moved to certify the purported class. By Order filed August 6, 2014, the court certified a class of persons or entities who acquired Best Buy common stock between 10:00 a.m. EDT on September 14, 2010, and December 13, 2010, and who were damaged by the alleged violations of law. The 8th Circuit Court of Appeals granted the company's request for interlocutory appeal. On April 12, 2016, the 8th Circuit held the trial court misapplied the law and reversed the class certification order. IBEW petitioned the 8th Circuit for a rehearing en banc, which was denied on June 1, 2016. In October 2016, IBEW advised the trial court it will not seek review by the Supreme Court. On June 23, 2017, the trial court denied plaintiff's request to file a new Motion for Class Certification. On October 30, 2017, plaintiffs filed with the trial court a motion for leave to file a second amended class action complaint which Best Buy opposed in a filing on November 6, 2017. That motion is pending. Best Buy said "We continue to believe that the remaining individual plaintiff's allegations are without merit and intend to vigorously defend our company in this matter." Best Buy Co., Inc. operates as a retailer of technology products, services, and solutions in the United States, Canada, and Mexico. The company operates through two reportable segments, Domestic and International. The company is based in Richfield, Minnesota. BOCAS HOUSE: Alvarado Seeks Minimum Wages & Tips under FLSA ----------------------------------------------------------- DOUGLAS J. ALVARADO, and other similarly situated non-exempt employees, the Plaintiff, v. BOCAS HOUSE CORAL GABLES, LLC, Florida Limited Liability Company and MAURICIO MANTOVANI, Individually, the Defendant, Case No. 70448161 (Fla. Cir. Ct., Miami Dade Cty., April 9, 2018), seeks to recover unpaid minimum wages and tips, and additional equal amount as liquidated damages, and reasonable attorneys' fees and costs pursuant to the Fair Labor Standards Act and the Florida Minimum Wage Act. According to the complaint, the Plaintiff and Defendants were engaged in an implied agreement whereby the Plaintiff would be employed by Defendants and that the Plaintiff would be properly paid as provided for by, and not in violation of the laws of the United States and the State of Florida, During the relevant time period of August 2017 to on or about April 2, 2018, the Plaintiff performed approximately 32 hours per week; which were compensated at approximately $5.50 plus tips. The Defendants utilized an improper tip pool where tips earned by servers, and other "front of the house" employees, were illegally shared with Managers and the staff that prepares desserts with worked in the "back of the house" and did not regularly and customarily share in tips as envisioned by the FLSA. As such, the Plaintiff is owed proper minimum wages and his tips so illegally shared. In addition, the Plaintiff worked approximately three hours off the clock weekly; cleaning dishes and utensils and was not properly compensated for those hours. Bocas House, a Venezuelan-Peruvian restaurant based in Doral. The concept, known for large portions and indulgent milkshakes, is part of Bocas Group Corporation, led by Cesar Gonzalez and Levin De Grazia.[BN] The Plaintiff is represented by: Jason s. Remer, Esq. Brody M. Shulman, Esq. REMER & GEORGES-PIERRE, PLLC 44 West Flagler Street, Suite 2200 Miami, FL 33130 Telephone: (305) 416 5000 Facsimile: {305) 416 5005 E-mail: jremet@rgpattorney.com BRE SELECT: Continues to Defend "Wilchfort" Class Action Suit ------------------------------------------------------------- BRE Select Hotels Corp said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on April 2, 2018, for the fiscal year ended December 31, 2017, that the company continues to defend itself in a putative class action suit captioned as, Wilchfort v. Knight, et al. The Company, as the successor to Apple Six, is subject to claims for alleged acts of Apple Six that occurred prior to the Merger. On February 24, 2017, a putative class action, captioned Wilchfort v. Knight, et al., Civil Action No. 17-cv-01046 (E.D.N.Y.), was filed in the United States District Court for the Eastern District of New York against BRE Select Hotels Corp, as successor-in-interest to Apple REIT Six, Inc., Apple Hospitality REIT, Inc., Apple REIT Seven, Inc., Apple REIT Eight, Inc. (together with Apple REIT Six, Inc. and Apple REIT Seven, Inc., the "Apple REITs"), certain of the Apple REITs' directors, officers and advisors, and Apple Fund Management, LLC. Plaintiff seeks to represent a class of all persons and entities who elected to participate in Apple REITs' Dividend Reinvestment Plans ("DRIPs") between July 17, 2007 and the later of the termination and/or suspension of the respective DRIPs or February 12, 2014. The complaint alleges, among other things, that the prices at which Plaintiff and the purported class members purchased additional shares through the DRIPs were artificially inflated and not indicative of the true value of units in the Apple REITs. Plaintiff asserts claims for breach of contract, tortious interference with contract and tortious interference with business expectancy and breach of implied duty of good faith and fair dealing and seeks, among other things, damages and other costs and expenses. BRE Select Hotels said in its Form 10-Q Report for the quarterly period ended September 30, 2017, that the plaintiff filed a response in opposition to the Company's motion to dismiss on July 18, 2017. The response, among other things, voluntarily dismisses the tortious interference with contract and tortious interference with business expectancy claims and no longer names the Apple REITs' directors, officers and advisors, and Apple Fund Management, LLC, as defendants. The Company believes that any claims against it are without merit, and it intends to defend against them vigorously. At this time, the Company cannot reasonably predict the outcome of this proceeding or provide a reasonable estimate of the possible loss or range of loss due to this proceeding. BRE Select Hotels Corp is a real estate investment trust ("REIT") focused on the ownership of upscale, extended-stay and select service hotels. The company's hotels operate under the Homewood Suites by Hilton, Hilton Garden Inn, Hampton Inn, Hampton Inn & Suites, Courtyard by Marriott, Fairfield Inn by Marriott, Residence Inn by Marriott, SpringHill Suites by Marriott, TownePlace Suites by Marriott and Marriott brands. The company is based in New York. BRIDGEPOINT EDUCATION: Court Dismisses "Zamir" Securities Suit -------------------------------------------------------------- The United States District Court for the Southern District of California granted Defendants' Motion to Dismiss Plaintiffs' Third Amended Class Action Complaint in the case captioned NELDA ZAMIR, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. BRIDGEPOINT EDUCATION, INC., et al., Defendants, Case No. 15-CV-408 JLS (DHB)(S.D. Cal.). Plaintiff Zamir filed an initial complaint alleging two causes of action for violation of Section 10(b) of the Exchange Act and Rule 10b-5 and violation of Section 20(a) of the Exchange Act. Bridgepoint disclosed that the U.S. Securities and Exchange Commission was investigating its accounting practices, including revenue recognition and receivables. The SEC also issued a subpoena for the revised and restated time periods, and documents and information. Via a Form 8-K filed with the SEC, Bridgepoint announced that the Department of Education would commence a review of Ashford's administration of federal student financial aid programs for certain students identified in the 2009-2012 calendar year. In this same Form 8-K, Bridgepoint also announced that the U.S. Department of Justice was conducting an investigation concerning allegations that the Company may have misstated Title IV refund revenue or overstated revenue associated with private secondary loan programs and thereby misrepresented its compliance with the 90/10 rule of the Higher Education Act. Plaintiffs assert two causes of action: (1) violation of Section 10(b) of the Exchange Act and Rule 10b-5 against all Defendants, and (2) violation of Section 20(a) of the Exchange Act against Defendant Devine. Whether Defendants' GAAP Violation Was Unreasonable Whether Defendants Conducted a Revenue Collectability Assessment Plaintiffs argue that Defendant Devine admitted to the SEC that Bridgepoint made no revenue collectability assessment at the time revenue was recorded. Here, the Plaintiffs demonstrate that Bridgepoint's collectability analysis violated GAAP, but the factual allegations in the Third Amended Complaint are not as cogent and at least as compelling as any opposing inference of non- fraudulent intent. Instead, the more compelling inference from the Plaintiffs' allegations is that the Defendants made a good faith but mistaken attempt to account for students with and without financial aid. Bridgepoint did so by using the 120-day mark as a proxy for students with or without federal financial aid. The Court finds that the Defendants' revenue collectability assessment was not so unreasonable as required to support an inference of scienter. Whether Defendant Bridgepoint Violated Its Professed Accounting Policies The Court addresses the Plaintiffs' two contentions. First, the Plaintiffs argue GAAP requires identifying the smallest group of homogenous consumers and Defendants did not do this for students with and without financial aid. Second, the Plaintiffs allege it was extremely unlikely Defendants were ignorant following the 2012 Here, the Plaintiffs point to Defendant Devine's statement made during a May 6, 2013 earnings calls where he said: "The Court did a deeper analysis. The issue that kind of caused the spike so to speak is that, in our underlying data we use to build our models, those models that certain credits applied to them from when a student would leave the institution or receive a credit for another reason. That created one version of kind of our aging buckets, and then we made the decision that it may be more appropriate if we kind of suppressed those credits and that created another view of the aging buckets which we feel is more appropriate." The Court finds that Defendant Devine's statement is not a model of clarity to assess whether Bridgepoint conclusively should or should not have been on notice to change its policy to assess collectability on a student-by-student basis. Indeed, the Defendants had an historical 93% tuition collection rate in cash each year since 2010. Then, the Defendants did a deeper analysis and changed the way they analyzed students when they left an institution. There are no particularized allegations that the Defendants were on notice of the specific problem of evaluating collectability on a student-by-student basis. The Plaintiffs' allegations demonstrate the Defendant recognized issues and attempted to correct them. Thus, the Plaintiffs have not established that Bridgepoint's design of its accounts receivable system raises an inference of scienter. The Plaintiffs argues that Bridgepoint's policy was that each student was responsible for tuition payment. Whether Bridgepoint's Accounting Practices Allowed it to Manipulate Its Revenue The Plaintiffs allege that Bridgepoint's accounting methodology had the benefit of meeting its revenue consensus in various financial quarters. Bridgepoint disclosed that its revenue recognition errors were quantitatively significant. In Fiscal Year 2012, Bridgepoint missed its revenue consensus, but had Bridgepoint assessed its revenue without error it would have missed revenue estimates by $44 million more than double the amount it actually missed consensus. Thus, it is plausible that Bridgepoint derived tangible benefit from their erroneous accounting method. Given the lack of any other factual allegations demonstrating motive, the allegations here are not overly compelling. Thus, the Court will consider this factor in its holistic analysis. Whether Bridgepoint's Reliance on Its Auditor Negates Scienter The Defendants do not argue that their independent auditor gave them a clean bill of health that might inoculate them against any scienter allegation. The district court in Oklahoma Firefighters Pension & Retirement System explained that, absent discovery, there is no way to know what communications transpired between the defendant and its independent auditor. 50 F. Supp. 3d at 1365 n. 183. Oklahoma Firefighters teaches that, absent discovery, this Court would need to evaluate what an auditor was told and what, if anything, was withheld from the auditor. The Plaintiffs have not alleged facts to this end. Yet, the Plaintiffs invite the Court to speculate as to what Bridgepoint's independent auditor might have concluded if the auditor had all the facts. The Court will not engage in unsupported conjecture; the appropriate conclusions are that (1) the Defendants are not suggesting an independent audit inoculates them and (2) the Plaintiffs have not alleged an auditor counseled against the Defendants' accounting practice. Neither conclusion alters the Court's analysis: there is no support here for the scienter inference and no support that the Defendants were absolved due to an auditor. Whether Bridgepoint Omitted Relevant Facts Here, the Plaintiffs point to the Defendants' 2014 Restatement as disclosing material information regarding Bridgepoint's methodology that it previously did not disclose in its FY 2012 and FY 2013 Form 10-K's. This is not an accurate description of the Defendants' disclosures. The 2014 Restatement did include new descriptions about its accounting methodology, but the new disclosure were prompted by the SEC's inquiries and implicitly recognized that their previous methodology violated GAAP. The Third Amended Complaint alleged that on May 12, 2014, Bridgepoint admitted that it was evaluating whether to restate its financial results due, in part, to the lack of student-by-student reassessment of revenue. The Plaintiffs then allege that the Defendant Devine explained during the May 12, 2014 earnings conference call: "Under previous revenue recognition, revenues recognized subsequent to a student losing financial aid eligibility, and ultimately not collected, were included in our bad debt expense. Going forward, our policy will exclude these revenues and will result in a corresponding decrease in our bad debt expense that will be realized over subsequent quarters." Thus, the Defendants disclosed to the SEC its accounting method: it stratified accounts receivable into inactive vs. active and less than vs. greater than 120 days. In its June 3, 2014 letter to the SEC, Bridgepoint admitted that historically, the Company was not performing a reassessment of collectibility under such circumstances such circumstances meant reassessing collectability on a student-by-student basis. The Court finds the Defendants were not hiding their questionable or tenuous accounting method, but rather disclosed the erroneous method to the SEC and then changed their assessment because it was in error. Loss Causation In addition to scienter, the Plaintiffs must also show loss causation. The Court previously concluded that the Plaintiffs could plausibly establish loss causation. The Defendants suggest that the Plaintiffs' loss causation allegations are identical to their Second Amended Complaint. Thus, neither party takes up the loss causation argument except that the Defendants request the Court incorporate its loss causation argument by reference. The Court agrees that the Plaintiffs' loss causation allegations are identical. Therefore, the Court finds no reason to depart from its previous holding the Plaintiffs' allegations could plausibly establish loss causation. However, in light of the Court's scienter conclusion, this finding does not alter the outcome of the Plaintiffs' first cause of action. The Court finds that the Plaintiffs have not established the Defendants' acted with the requisite scienter. The Plaintiffs' first cause of action cannot prevail without proving the scienter element. Therefore, the Court therefore grants the Defendants' Motion to Dismiss, and dismisses the Plaintiffs' first cause of action. This Order ends the litigation in this matter and the Clerk of Court is directed to close the file. A full-text copy of the District Court's March 12, 2018 Order is available at https://tinyurl.com/yddulfyq from Leagle.com. Nelda Zamir, Individually and on behalf of all other similarly situated, Plaintiff, represented by Casey Edwards Sadler -- csadler@glancylaw.com -- Glancy Prongay & Murray LLP, Laurence M. Rosen -- lrosen@rosenlegal.com -- The Rosen Law Firm, P.A., Lionel Z. Glancy -- lglancy@glancylaw.com -- Glancy Prongay & Murray LLP, Robert Vincent Prongay -- rprongay@glancylaw.com, - Glancy Prongay & Murray LLP & Sara Fuks -- sfuks@rosenlegal.com - - The Rosen Law Firm, pro hac vice. Bridgepoint Education, Inc. & Daniel J. Devine, Defendants, represented by Daniel John Tyukody, Jr. -- TyukodyD@gtlaw.com -- Greenberg Traurig, LLP. CAL-MAINE FOODS: Pays $80.8 Million to Non-Class Plaintiffs ----------------------------------------------------------- Cal-Maine Foods, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on April 2, 2018, for the quarterly period ended March 3, 2018, that the Company paid has paid $80.8 million to the non-class plaintiffs. On September 25, 2008, the Company was named as one of several defendants in numerous antitrust cases involving the United States shell egg industry. The cases were consolidated into In re: Processed Egg Products Antitrust Litigation, No. 2:08-md- 02002-GP, in the United States District Court for the Eastern District of Pennsylvania (the "District Court"), in three (3) groups of cases - the "Direct Purchaser Putative Class Action", the "Indirect Purchaser Putative Class Action" and the "Non-Class Cases." The Direct Purchaser Putative Class Action The named plaintiffs in these cases alleged that they purchased eggs or egg products directly from a defendant and sued on behalf of themselves and a putative class of others who claimed to be similarly situated. As previously reported, in November 2014, the District Court approved the Company's settlement with the direct purchaser plaintiff class and entered final judgment dismissing with prejudice the class members' claims against the Company. The Indirect Purchaser Putative Class Action The named plaintiffs in these cases are individuals or companies who allege that they purchased shell eggs indirectly from one or more of the defendants - that is, they purchased from retailers that had previously purchased from defendants or other parties - and have sued on behalf of themselves and a putative class of others who claim to be similarly situated. The indirect purchaser plaintiffs filed two (2) motions for class certification, one of which sought certification of 21 separate classes seeking damages under the laws of 21 states and another which sought certification of an injunctive-relief class under federal law, and the District Court denied both of these motions. After each ruling, the plaintiffs filed a petition with the United States Court of Appeals for the Third Circuit, asking that court to hear an immediate appeal of the District Court's refusal to certify a class. The Third Circuit denied both petitions. Therefore, there is no certified class in the indirect purchaser putative class action case, although the plaintiffs could appeal the denials of class certification after a trial on the merits. At this time, all that remains for trial are the claims of the individual named plaintiffs, who seek treble damages under the statutes and common law of various states and injunctive relief under the Sherman Act attacking certain features of the United Egg Producers' (UEP) animal-welfare guidelines and program used by the Company and many other egg producers. Management believes that neither the aggregate treble damages nor the injunctive relief sought by the individual plaintiffs in these cases, even if awarded, would be material to the Company. The District Court has not set a trial date for the indirect purchaser case. The Non-Class Cases In the remaining cases, the named plaintiffs allege that they purchased shell eggs and egg products directly from one or more of the defendants but sue only for their own alleged damages and not on behalf of a putative class. Effective January 30, 2018, the Company entered into a settlement agreement resolving all claims brought by the following non-class plaintiffs: The Kroger Co.; Publix Super Markets, Inc.; SUPERVALU, Inc.; Safeway, Inc.; Albertsons LLC; H.E. Butt Grocery Co.; The Great Atlantic & Pacific Tea Company, Inc.; Walgreen Co.; Hy-Vee, Inc.; and Giant Eagle, Inc. Pursuant to the agreement, the Company paid the non- class plaintiffs $80.8 million on March 23, 2018. The only non-class plaintiffs that are not included in the settlement agreement are the following companies that sought substantial damages allegedly arising from the purchase of egg products (as opposed to shell eggs): Conopco, Inc., Kraft Food Global, Inc., General Mills, Inc., Nestle USA, Inc., and The Kellogg Company. The egg products plaintiffs sought treble damages and injunctive relief under the Sherman Act attacking certain features of the UEP animal-welfare guidelines and program used by the Company and many other egg producers. On September 6, 2016, the District Court granted defendants' motion for summary judgment and dismissed with prejudice all claims based on the purchase of egg products. That ruling was appealed to the United States Court of Appeals for the Third Circuit, and on January 22, 2018, the Third Circuit reversed the District Court's grant of summary judgment and remanded the case to the District Court. Even though the appealing egg-products plaintiffs had asked the Third Circuit to remand the case for trial, the Third Circuit declined, instead remanding the case for further proceedings, including the suggestion that the District Court determine whether the egg-products plaintiffs had sufficient evidence of causation and damages to submit the case to a jury. On March 5, 2018, defendants filed a motion in the District Court seeking leave to file a motion for summary judgment in light of the remand statements in the Third Circuit's opinion. Plaintiffs opposed that motion, and on March 26, 2018, the defendants filed a reply in support of the motion. The court has not issued a ruling. Allegations in Each Case In all of the cases described, the plaintiffs allege that the Company and certain other large domestic egg producers conspired to reduce the domestic supply of eggs in a concerted effort to raise the price of eggs to artificially high levels. In each case, plaintiffs allege that all defendants agreed to reduce the domestic supply of eggs by: (a) agreeing to limit production; (b) manipulating egg exports; and (c) implementing industry-wide animal welfare guidelines that reduced the number of hens and eggs. The Company intends to continue to defend the remaining cases as vigorously as possible based on defenses which the Company believes are meritorious and provable. While management believes that the likelihood of a material adverse outcome in the overall egg antitrust litigation has been significantly reduced as a result of the settlements and rulings described above, there is still a reasonable possibility of a material adverse outcome in the remaining egg antitrust litigation. At the present time, however, it is not possible to estimate the amount of monetary exposure, if any, to the Company because of these cases. Adjustments, if any, which might result from the resolution of these remaining legal matters, have not been reflected in the financial statements. Cal-Maine Foods, Inc. produces, grades, packages, markets, and distributes shell eggs. It offers specialty shell eggs, such as nutritionally enhanced, cage free, organic, and brown eggs under the Egg-Land's Best, Land O' Lakes, Farmhouse, and 4-Grain brand names, as well as under private labels. The company is based in Jackson, Mississippi. CANADA: Spent $40MM on Legal Proceedings Involving Veterans ----------------------------------------------------------- Elizabeth Thompson, writing for CBC News, reports that the federal government has spent more than $38 million on legal proceedings involving Canada's veterans over the past two years. Nearly $1 million of that amount has been spent on legal fees for two lawsuits launched in 2016 by former members of the military who allege they were sexually assaulted or sexually harassed while they were serving. Another $1.3 million was spent on legal fees for 73 other cases involving veterans. Most of the spending was to resolve disputes over veterans' benefits or pensions through the Veterans Review and Appeal Board. Operating that tribunal cost the government $18.4 million. Another $17.9 million went to advocates who represent veterans appealing decisions made by the Veterans Affairs department, according to documents tabled in the House of Commons. 'I was shocked' Conservative MP Phil McColeman said he was surprised to discover how much the government has been spending on legal proceedings involving veterans. "I was shocked. I had no idea it would be that kind of number." NDP MP Finn Donnelly said the government should be spending money on helping veterans -- not fighting benefit and pension claims. "Putting that almost $40 million towards veterans benefits would go a long way to helping either lifetime benefits or any kind of mental health issues or concerns that, obviously, our veterans deal with day in and day out," he said. During the last election, Prime Minister Justin Trudeau promised that a Liberal government would do a better job of caring for veterans and pledged to "ensure that no veteran has to fight the government for the support and compensation they have earned." Some veterans feel that the Trudeau government's actions haven't matched its campaign rhetoric. Trudeau further raised tensions with the veterans community in February when he told a town hall meeting in Edmonton that his government couldn't afford to settle with some of them. "Why are we fighting certain veterans groups in court? Because they're asking for more than we are able to give right now," he said. The federal government's highest legal tab over the past couple of years has been for the Heyder and Beattie class action lawsuits launched in 2016. The Heyder case was filed on behalf of all current and former female members of the armed forces who have been sexually assaulted or sexually harassed. The Beattie case covers current and former male members of the forces who experienced sexual assault or sexual harassment. Together, the lawsuits are asking for a billion dollars in compensation. As of February, the federal Department of Justice has spent an estimated $546,401 fighting the Heyder case and $417,171 on the Beattie case. The government's initial strategy was to aggressively challenge the lawsuits. But in late February, the government shifted its approach and began talks to negotiate a settlement. "We look forward to commencing these discussions to bring closure, healing and acknowledgement to the victims and survivors of sexual assault, racism, harassment and discrimination," Defence Minister Harjit Sajjan said in a statement. Negotiating is cheaper, says lawyer Jonathan Ptak, a lawyer working on the legal team representing veterans in both cases, said the government could have saved a lot of money if it had agreed from the outset to negotiate a settlement. "It's unfortunate that the government elected to spend that amount of money and time in defending the action and in bringing the motion to strike the action, which they have now agreed to drop, before agreeing to explore a negotiated resolution with us," he said. "We're now going down that road and we're looking forward to working cooperatively with the federal government to determine if a resolution can be reached in this case, so we can avoid further litigation." If the two sides can't reach a settlement, the Heyder and Beattie cases could together cost the federal government millions of dollars in legal fees, said Mr. Ptak. In Scott vs. the Attorney General of Canada, also known as the Equitas case, a group of disabled veterans launched a landmark class action challenge of the former Conservative government's decision to overhaul the compensation program for soldiers injured in the line of duty. The veterans won a victory in 2014 when the B.C. Supreme Court ruled that the case had enough merit to proceed to trial, but then they lost at the B.C. Court of Appeal in December 2017. They are now seeking leave to appeal that ruling to the Supreme Court. The government says Equitas has cost it $235,496 in legal fees since 2016. Don Sorochan, lawyer for the veterans, wonders how Department of Justice lawyers managed to spend that much, given that both sides were waiting for the B.C Court of Appeal to rule for much of that time. Mr. Sorochan said he is more concerned by the $17.9 million the government spent on advocates to represent veterans appealing decisions about their benefits because the Department of Veterans Affairs has too much of a tendency to deny claims. "They are supposed to go to bat for the people who want a pension and they haven't been." While the government announced changes in December to once again give veterans the option of a pension, it has not tried to reach an out-of-court settlement in the Equitas case. Toth vs. Her Majesty the Queen, a class action which centres on clawbacks to veterans benefits, has cost the government $433,649 in legal fees to date. The case affects more than 13,000 former members of the armed forces. The case currently is at the discovery stage and lawyers for the plaintiffs are talking with the Department of Justice in a bid to resolve the lawsuit. Most of the other cases involving veterans have cost the government far less to fight. For example, Arial vs. the Attorney General of Canada -- in which the daughter of a Quebec veteran is fighting for retroactive benefits her father was owed -- has cost the government $40,203 in legal fees. The least expensive case -- Marshall Dmytryshyn vs. the Attorney General of Canada and the Minister of Veterans Affairs -- has cost the federal government just $82 since Jan. 1, 2016. Marc Lescoutre, spokesman for Veterans Affairs, said the department does not itself take veterans to court but recognizes that veterans have a right to file suit. "The Department of Justice Canada assesses and defends all cases based on the merits of the claim and conducts all litigation in a respectful manner as required by the rules of court," he said. Veterans unhappy with decisions about their benefits already have two levels of redress available to them through the Veterans Review and Appeal Board, he added. CBC News has asked Veterans Affairs for the numbers for spending on legal proceedings during the previous two years under the Conservative government, but has not yet received them. Conservatives 'probably made mistakes' Mr. McColeman said he had no idea how much the government spent on legal fees when the Conservative Party was in power and said his party "probably made some mistakes." However, he said former Veterans Affairs minister Erin O'Toole was trying to settle the Equitas suit when the election began and he ran out of time. Going forward, the Conservatives will treat veterans with the respect they deserve, he said. "We need to treat them with the utmost respect and when we run into disagreements with them, we need to resolve them outside the courtroom," he said. "If we can settle with a convicted terrorist for $10.5 million outside a courtroom, we should be able to settle with veterans on their issues outside the courtroom." [GN] CARGURUS INC: Wins Summary Judgment in "Serban" TCPA Suit --------------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, granted Defendant's Motion for Summary Judgment in the case captioned IARINA SERBAN, individually and on behalf of a class of similarly situated individuals, Plaintiff, v. CARGURUS, INC., a Delaware Corporation, Defendant, No. 16 C 2531 (N.D. Ill.). After conducting discovery regarding CarGurus' text messaging functionalities, CarGurus filed a motion for summary judgment. Plaintiff Iarina Serban, on behalf of herself and all others similarly situated, filed this class action lawsuit alleging that Defendant CarGurus, Inc. (CarGurus) violated the Telephone Consumer Protection Act (TCPA), by sending text messages to Serban and other putative class members without their consent via an automatic telephone dialing system (ATDS). CarGurus operates a car shopping service through its website, cargurus.com. CarGurus designed its website and text messaging software in-house. On the website, users can search listings of vehicles for sale using specific parameters, including geographic location, make, model, or year. When a user selects a specific car listing, the listing page includes, among other things, a Send to Phone link. This link allows users to have information about that specific car listing sent in a text message to a phone number the user inputs. This Send to Phone process is the only way in which a user may send information from a vehicle listing displayed on cargurus.com through the website by text message to a user's cellphone. A cargurus.com website user registered an account under the name Donnavee Ennis. CarGurus assigned Ennis a person info ID of 2800752. She listed 1-336-880-5055 as her telephone number. Between August 29, 2014 and July 30, 2015, a person logged into Ennis' account used the Send to Phone function on CarGurus' website to send twelve text messages about cars listed on the website. Eleven of these text messages were sent to Ennis' phone number, 1-336-880-5055. On July 30, 2015, a person logged into Ennis' account used the Send to Phone function to send a listing to 1-336-880-5505, transposing two of the digits in Ennis' phone number. This number belonged to Serban. Serban received the following text message from CarGurus' shortcode, 64142: CarGurus Request. 2006 Jaguar XK-Series XK8 Convertible- $16,595 (Fair Deal): http://cargur.us/3K5kx CarGurus argues that Serban cannot prevail on her claim because the evidence demonstrates that CarGurus did not send the text message at issue in this case. In order to be liable, CarGurus must have made or initiated the text message. In considering whether CarGurus made or initiated the text message at issue here, the Court is guided by the FCC's determinations in the 2015 Order with respect to three different cell phone applications (apps). In the case of YouMail, where the app user determines whether auto-reply messages are sent in response to a caller leaving a message for the app user, the FCC found that the app user, not the app, was the sender of the messages where the app exercises no discernible involvement in deciding whether, when, or to whom an auto-reply is sent, or what such an auto reply says, nor does it perform related functions, such as pre-setting options in the app, that physically cause auto-replies to be sent. The FCC highlighted the fact that YouMail did not control the recipients, timing, or content of the messages. Similarly, in the case of the TextMe app, the app allowed users to send invitational text messages to contacts by (1) tapping a button that read invite your friends, (2) choosing to invite all friends or individually selecting contacts, and (3) pressing another button to send the text. Although TextMe controlled the content of the text message, the FCC did not find this dispositive, and instead considered the choices [the app user] makes in determining whether to send an invitational message, to whom to send an invitational message, and when that invitational message is sent. The FCC concluded that the app user's actions and choices effectively program the cloud-based dialer to such an extent that he or she is so involved in making the call as to be deemed the initiator of the call. Here, the user of the CarGurus website chooses to send a message to a specific phone number using CarGurus' "Send to Phone" function. In order to send the message, the user must navigate to a vehicle listing page, click on the "Send to Phone" function, enter a telephone number, and then click "Send." CarGurus' software then initiates a process by which CarGurus, through Twilio, texts information about that particular vehicle to the cellular telephone number that the user inputted. The user chooses which vehicle listing to send to the specified number; and although CarGurus has prewritten the message, CarGurus merely fills in the details about the specific vehicle upon selection. The Court grants CarGurus' motion for summary judgment. A full-text copy of the District Court's March 12, 2018 Opinion and Order is available at https://tinyurl.com/y7dmowps from Leagle.com. Iarina Serban, individually and on behalf of a class of similarly situated individuals, Plaintiff, represented by Evan M. Meyers -- emeyers@mcgpc.com -- McGuire Law, P.C. & Paul T. Geske, McGuire Law, P.C., 55 W. Wacker Drive, 9th Floor, Chicago, IL 60601. Cargurus, Inc., a Delaware corporation, Defendant, represented by Charles L. Solomont -- carl.solomont@morganlewis.com -- Morgan, Lewis & Bockius, LLP, pro hac vice, Emma D. Hall -- emma.hall@morganlewis.com -- Morgan, Lewis & Bockius Llp, pro hac vice & Tinos Diamantatos -- tinos.diamantatos@morganlewis.com -- Morgan, Lewis & Bockius LLP. CBOE EXCHANGE: Class Calls Out Key Volatility Index Manipulation ---------------------------------------------------------------- Barbara Leonard, writing for Courthouse News Service, reports that not waiting for regulators to finish their investigation, an investor brought a federal class action that accuses the Chicago Board Options Exchange of allowing the so-called fear index to be manipulated for years, costing billions of dollars in losses. The Financial Industry Regulatory Authority and Securities and Exchange Commission opened investigations into such allegations last month after a letter detailing widespread abuses was sent to the institutions by an anonymous whistleblower. Claiming to have "held senior positions at some of the largest investment firms in the world," the whistleblower reported that a flaw in the calculation of the CBOE's Volatility Index (VIX), Wall Street's most widely followed gauge of future stock market volatility, allows trading firms to manipulate the volatility index by posting quotes for S&P 500 options without actually trading. The whistleblower further claimed that such manipulation was at least partially responsible for the stock market's 10 percent plunge in February. While the agencies have made no announcement about their findings so far, investor Jeffrey Tomasulo took matters into his own hands March 20. Represented by the firm Korein Tillery, Tomasula brought a federal class action against the CBOE Exchange, CBOE Global Markets, CBOE Futures Exchange, and unnamed financial institutions that carried out the index manipulation. "Essentially, the John Doe defendants use their CBOE-granted privileged access to the S&P 500 options market and their high- frequency trading algorithms to manipulate the VIX Index calculation in concert, and, by doing so, generate massive profits for their much larger positions in VIX Futures and VIX Options," the complaint states. Tomasulo says manipulation of the index has caused billions in losses to average investors since 2009, and that CBOE actively colluded in the scheme. "CBOE intentionally designed its products, operated its platforms, and formulated the method for calculating VIX in a manner that could be collusively manipulated in a single, narrow period of time with even low-premium trades by the John Doe defendants, and especially by the John Doe defendants who were given status as SPX Options market makers by CBOE," the complaint states. A representative for the CBOE meanwhile called Tomasulo's without merit. "We vehemently deny the allegations in this complaint leveled against Cboe, which are without merit," the representative said in a statement. "As this is ongoing litigation, we have no further comment at this time." Tomasulo says CBOE's complicity is further shown by the fact that it continues to allow trading of the VIX index, despite having reason to suspect that big market players are abusing their privileged access for their own advantage. CBOE allegedly profits from the scheme because the ability of the traders to manipulate the index has led to the proliferation of VIX-tied financial instruments, increasing CBOE's revenues and transaction fees. There are at least 18 active financial products that track VIX futures, with a combined market cap of $3.4 billion, according to the complaint. Alleging violation of the Sherman Act and the Commodity Exchange Act, the class seeks and an injunction. The class is represented by George Zelcs, Esq. -- gzelcs@koreintillery.com -- with Korein Tillery in Chicago. CHURCHILL DOWNS: Class Action Remanded to Initial Trial Court ------------------------------------------------------------- Flushdraw reports that the decision by PokerStars and a small handful of social-gaming sites to stop all play-money services to Washington State, in the wake of an adverse legal decision in a case involving Churchill Downs' play-chip Big Fish Casino games, might turn out to be a case of over-the-top self-exclusion once the full take of the Big Fish case plays out. It's one of those "there's more to the story" stories, where what most news pieces have offered doesn't really offer an accurate take on the situation. A little less than two weeks ago, a Washington appellate court remanded the case of Kater v. Churchill Downs Inc. to its initial trial court, reversing that lower court's dismissal of the case against Churchill Downs. The reason for the remanding is summarized in this take from Justia: "The Ninth Circuit reversed the dismissal of a purported class action against Churchill Downs alleging violations of Washington's Recovery of Money Lost (RMLGA) at Gambling Act and Consumer Protection Act, and unjust enrichment. The panel held that Big Fish Casino constituted illegal gambling under Washington law because its virtual chips were a 'thing of value.' The panel also held that plaintiff could recover the value of the virtual chips lost under the RMLGA. In this case, plaintiff alleged that she lost over $1,000 worth of virtual chips while playing Big Fish Casino, and she can recover the value of these lost chips from Churchill Downs, as proprietor of Big Fish Casino. Therefore, the panel remanded for further proceedings." So, play chips are a "thing of value," according to the appellate court. However -- and here's where most reports miss the mark -- there's more to the case than a free-play casino site selling extra allotments of those chips for real money. Let's add in a couple of excerpts from the ruling, and we can then see that the plot thickens: All online or virtual gambling is illegal in Washington. Big Fish Casino's virtual chips have no monetary value and could not be exchanged for cash, but Big Fish Casino did contain a mechanism for transferring chips between users, which could be used to "cash out" winnings. This "mechanism" thing turns out to be a big deal: "Big Fish Casino's Terms of Use, which users must accept before playing any games, state that virtual chips have no monetary value and cannot be exchanged 'for cash or any other tangible value.' But Big Fish Casino does contain a mechanism for transferring chips between users, which can be utilized to 'cash out' winnings: Once a user sells her chips on a secondary 'black market' outside Big Fish Casino, she can use the app's internal mechanism to transfer them to a purchaser. Plaintiff-Appellant Kater alleges that Churchill Downs profits from such transfers because it charges a transaction fee, priced in virtual gold, for all transfers. In other words, Kater alleges that Churchill Downs 'facilitates the process' of players cashing out their winnings." There's not just one special circumstance here, but two. First, thousands of social-gaming sites charge a little bit of real money for play-money chips, but Big Fish Casino appears to be exceptional in allowing player-to-player transfers for unlimited amounts of chips. Other sites allow one player to "gift" chips to friends, but almost always in predetermined, nominal amounts. Second, most other sites don't charge a transaction fee for allowing one player to transfer chips to another. If the play- money chips have a uniform utility (entertainment) value, then there aren't many good reasons to allow players to transfer chips to each other anyway. It also undercuts the possible argument that Churchill Downs and Big Fish Casino shouldn't be responsible for unofficial "black market" deals taking place elsewhere on the Internet. While Churchill Downs almost certainly isn't involved in that, their system for selling additional chips is ill-conceived, and thus allows that black-market activity to take place. The appellate court's ruling isn't that strong, meaning there are other points involved where Churchill Downs could continue the legal fight, but Big Fish Casino essentially created nominal value in their play chips on their own. But the value wasn't created by Big Fish selling the chips themselves, since there's no cashout option, and thus no direct consideration. Oddly, it's the charging the transaction fee in connection with the player- to-player transfers that's the rub . . . and the difference. PokerStars does allow small play-chip transfers, but they are capped at a nominal 1,000 chips and there's no transfer fee involved. That's a key difference, and it's an argument that Stars may have jumped the gun when it left the state. And it's not the only difference: PokerStars doesn't even sell their play chips for real money. Ergo, PokerStars has no legal issues in Washington concerning play-chip poker games. A statement issued on April 4 by the Washington State Gambling Commission indicates every bit as much: On April 5, the Ninth Circuit Court of Appeals issued a published decision in Kater v. Churchill Downs Inc. (Big Fish Casino). The Court found that Big Fish Casino's use of virtual casino chips within its games constitutes gambling under the Washington State Gambling Act, and remanded the case back to the U.S. District Court to allow the civil lawsuit to proceed forward. "Since the decision was published, we have become aware that some online social gaming websites, including Poker Stars, have proactively made the business decision to deny Washington residents access to their sites. We are not a party to the civil court case, we did not testify in the case, and we did not order these sites to discontinue free online play for Washington residents. Customers with concerns should contact these websites directly." As that statement notes, the case involving Big Fish Casino was a private lawsuit, filed by a lawyer as a class action, likely in the hopes of winning a healthy settlement at Churchill Downs' expense. (One would expect Churchill Downs to continue fighting this case, including filing its own appeal if necessary, but that's a separate story.) What the WSGC statement doesn't say is every bit as clear. Regarding PokerStars and other sites that have left Washington State, that state's officials don't seem to believe the play- money games constitute illegal online gambling. It will be interesting to see if Stars and a few of these other sites reopen their virtual doors to Washington, once the dust settles. There doesn't seem to be a good reason why not. [GN] CIGNA HEALTH: Court Narrows Claims in "Negron" ---------------------------------------------- The United States District Court for the District of Connecticut granted in part and denied in part Defendant's Motion to Dismiss the case captioned KIMBERLY NEGRON, individually and on behalf of all others similarly situated DANIEL PERRY, individually and on behalf of all others similarly situated COURTNEY GALLAGHER, individually and on behalf of all others similarly situated NINA CUROL, individually and on behalf of all others similarly situated, and ROGER CUROL, individually and on behalf of all others similarly situated, Plaintiffs, v. CIGNA HEALTH AND LIFE INSURANCE and OPTUMRX, INC., Defendants, No. 3:16cv1702 (WWE), consolidated with, No. 16cv1904 (WWE). (D. Conn.) The Plaintiffs allege that defendants Cigna Health and Life Insurance Company and OptumRx, Inc., have violated the Employee Retirement Income Security Act (ERISA) and the Racketeer Influenced and Corrupt Organizations Act (RICO). The Plaintiffs allege that the defendants have artificially inflated prescription drug costs in violation of the terms of their health insurance policies. Count One In count one, the plaintiffs allege a claim under ERISA Section 502(a)(1)(B), asserting that they have been denied their rights under the plans due to the defendants' Clawbacks from the inflated prescription drug costs. The Defendants respond that the plaintiffs were required to exhaust their administrative remedies by appealing a denial of benefits. The Plaintiffs counter that there were no claim denials to appeal; that imposing the exhaustion requirement would be inequitable; and that pursuing administrative remedies would be futile. The Court finds that the Plaintiffs have alleged plausible claims that they complied with the claim procedure relevant to prescription drugs, received their benefit of the prescription drugs, and that the pharmacy received the payment for the charges. At a minimum, the plaintiffs have plausibly alleged that they did not receive notice of an adverse benefits determination that complies with the DOL regulation; that the defendants administered the claims procedure in a way that inhibited or hampered the plaintiffs' ability to initiate a claim procedure to recover the inflated cost of the prescription drugs; and that the defendants did not establish a reasonable claims and appeals procedure in compliance with DOL regulations relevant to their overcharge claims. The Court finds that the Defendants have failed to prove as a matter of law that the plaintiffs' claims are barred due to failure to satisfy their administrative remedies. The Court will allow the plaintiffs' claims to proceed beyond the motion to dismiss. The Courts' consideration of defendants' affirmative defense of exhaustion is more appropriate on summary judgment. ERISA Breach of Fiduciary Duty: Counts Two, Three, Four, Five, Six and Seven The Defendants maintain that the plaintiffs' counts two through seven which all assert ERISA breach of fiduciary duty should be dismissed for failure to establish any plausible fiduciary duty under ERISA. The Defendants maintain that neither Cigna nor OptumRx were acting as fiduciaries when engaging in the plan design decisions and business conduct alleged to be in violation of ERISA. The Plaintiffs argue that, pursuant to contracts between Cigna and the employers, the defendants exercised discretionary authority concerning computation of payments under the plans. Discretionary Authority and Control as to Computation of Benefits The complaint alleges that the defendants went beyond any ministerial action by disregarding the plan terms to charge excessive cost-sharing amounts. The Defendants counter that the amount of cost-sharing for prescription drugs was calculated by the terms of the plan. In UnitedHealth Group, the Court found that the defendants did not act as fiduciaries where the complaint alleged 'instantaneous' calculations, based on plan terms, and relay of those calculation to pharmacies. 2017 WL 6512222, at *9. UnitedHealth Group went on to explain: "Plaintiffs do not allege facts demonstrating that Defendants had discretion over the instantaneous calculations they were performing, except to the extent that Plaintiffs allege Defendants did not apply the correct calculations. But if calculations may be construed as an exercise of discretion solely on the basis that the calculations were incorrect under the terms of the plan, any mistake could transform ministerial conduct into fiduciary act." In the instant case, the plaintiffs do not allege that the defendants made incorrect or mistaken calculations. Instead, they have alleged that the defendants' exercise of discretion violated the plan terms by instituting the charging of cost-sharing payments greater than the amount paid to the pharmacy. For purposes of ruling on this motion to dismiss, the Court finds that the plaintiffs have asserted a plausible claim of fiduciary status based on the defendants' exercise of discretion as to computation of benefits that violated the plan terms. Discretion as to Compensation The Plaintiffs argue that the defendants are fiduciaries due to their control over factors that determined their own compensation. Specifically, the plaintiffs maintain that defendants act as fiduciaries because (1) they determine the amount of Spread and Clawbacks; and (2) the defendants were not authorized to charge Spread and to take Clawbacks as additional compensation. At paragraphs 106-107, the complaint alleges that the defendants have (1) discretion to determine the amount of Spread, and (2) that by taking Clawbacks, they thereby exercised discretion in setting their compensation. The Defendants counter that the plaintiffs describe business operations that are not plan- specific administrative functions. However, for purposes of ruling on a motion to dismiss, the Court finds that the plaintiffs have alleged that the defendants acted as fiduciaries by dictating the amount of Spread to charge that would ultimately represent a Clawback to compensate defendants. An entity's exercise of authority that is not contemplated by the plan can confer fiduciary status. Accordingly, the Court finds that the plaintiffs have plausibly alleged that the defendants exercised discretion over factors that determined their compensation. Negotiation of contracts OptumRx argues that negotiation of drug prices, payment terms with pharmacies, and communication of copayment information to pharmacies constitute ministerial, non-fiduciary duties. See Chicago District Council of Carpenter Welfare Fund v. Caremark, Inc., 474 F.3d 463, 475 (7th Cir. 2007) (concluding that PBM was not fiduciary for purposes of negotiating prices with drug retailers). The Plaintiffs respond that they do not assert that OptumRx was a fiduciary when it negotiated drug prices to be paid to pharmacies. As previously explained, the plaintiffs maintain that defendants acted as fiduciaries by setting inflated cost-sharing payments that violated the plan terms. The Court will leave the plaintiffs to their proof. The Court will deny the motion to dismiss for failure to state plausible claims that the defendants exercised any fiduciary duty. Counts Two and Three The Plaintiff alleges that the defendants engaged in prohibited transactions based upon the Spread charged and Clawbacks taken in connection with providing prescription drug coverage services to the plans. The Defendants seek dismissal of counts two and three, which assert violations of ERISA's prohibited transactions enumerated in ERISA Section 406(a)(1) (C)-(D) and Section 406(b) respectively. ERISA Section 406(a)(1)(C)-(D) prohibits a fiduciary from knowingly causing a benefit plan to engage in a transaction such as furnishing of goods, services or facilities or a transfer of plan assets with a party in interest. The Court finds that the plaintiffs have stated plausible violations of ERISA Section 406(a) and (b). The Court has found that the defendants acted as fiduciaries with regard to the implementation of the Spread and Clawbacks. With regard to count two, the plaintiffs have plausibly alleged that the defendants are fiduciaries engaged in furnishing prescription drug benefit services that resulted in unauthorized overcharges to insureds with Clawbacks to Cigna in violation of Section 406(a). As to count three, the plaintiffs have plausibly alleged that the defendants had an interest adverse to those of the participants when they charged Spread and took Clawbacks in connection with the prescription drug transactions in violation of Section 406(b)(1)-(3). The Court will leave the plaintiffs to their proof on summary judgment. Count Four In count four, the plaintiffs allege that the defendants have breached their fiduciary duties of loyalty and prudence by setting undisclosed amounts of Spread and taking Clawbacks in violation of ERISA Section 404(a)(1), which provides that a fiduciary shall discharge his duties with respect to the plan solely in the interest of the participants and beneficiaries and (A) for the exclusive purpose of (i) providing benefits to participants and beneficiaries; and (ii) defraying reasonable expenses of administering the plan. As previously stated, the complaint implicates plausible breach of fiduciary duties, including the duty based on the fiduciary's profiting from imposing Spread and taking The Court finds that the plaintiffs have stated plausible breach of fiduciary duty claims in count four. Count Five In count five, the plaintiffs allege that the defendants violated ERISA Section 702(b), which prohibits a group health plan or insurer from discriminating against an individual by requiring the individual (as a condition of enrollment or continued enrollment under the plan) to pay a premium or contribution which is greater than such premium or contribution for a similarly situated individual enrolled in the plan on the basis of any health status-related factor, including a medical condition. At paragraph 86, the plaintiffs allege that Spread and Clawbacks apply most frequently on widely-used low-cost drugs. At paragraph 209, the plaintiffs allege that plan participants who need medications subject to the defendants' undisclosed excessive Spreads were required to pay hidden additional premium or contributions in the form of Clawbacks in order to use their benefits as enrollees. Even construed most liberally, the Court finds that the plaintiffs have not alleged that the cost-sharing provisions are not applied uniformly to all participants or beneficiaries who need widely-used or low-cost prescription drugs, or that insureds with specific medical conditions have been targeted. Accordingly, the Court will grant the motion to dismiss as to count five. Counts Six and Seven In counts six and seven, the plaintiffs have alleged that the defendants are liable as co-fiduciaries or non-fiduciaries based on the knowing participation in breaches of fiduciary duties. Consistent with the prior discussion relative to counts two, three, and four, the Court finds that the plaintiffs have pleaded plausible claims of liability in these counts based on the defendants' alleged knowing participation in conduct by a fiduciary that constituted a breach of fiduciary duty. RICO Counts Eight, Nine, and Ten Count Eight In count eight, the plaintiffs allege that Cigna, as a person under RICO, was associated with the RICO enterprises consisting of Argus and OptumRx; that CIGNA participated in the conduct of the Argus and OptumRx Enterprises through contracts and agreements; Cigna asserts that it does not conduct the affairs of OptumRx or Argus; that alleged violations of the plan terms do not amount to mail or wire fraud that could constitute predicate acts in support of a RICO claim; and that plaintiffs have failed to meet the threshold particularity standard of Rule 9(b) of the Federal Rules of Civil Procedure. Count Nine Against OptumRx In count nine, the plaintiffs allege that OptumRx, as a RICO person, was associated with the OptumRx Pharmacy Enterprise, which consists of OptumRx and pharmacies in OptumRx's pharmacy networks or solely of such pharmacies; that OptumRx participated in the conduct of the OptumRx Pharmacy Enterprise's affairs through contracts and agreements to defraud plaintiffs by overcharging for prescription drug costs; and that OptumRx committed RICO predicate acts of racketeering activity in furtherance of its Clawback scheme through mail and wire fraud. OptumRx argues that the RICO claim fails as a matter of law because the plaintiffs have failed to allege any predicate acts of fraud in the conduct of the OptumRx Pharmacy Enterprise; that the plaintiffs have failed to plead the predicate acts with particularity; and that the plaintiffs have pleaded neither the existence of the OptumRx Pharmacy Enterprise nor OptumRx's control of that enterprise. Count Ten: RICO Conspiracy In count ten, the plaintiffs allege that the defendants conspired with themselves or other unnamed health insurance companies and PBMs to engage in the Clawback scheme in violation of RICO. The Defendants argue that the plaintiffs have failed to establish allegations of a plausible RICO conspiracy between Cigna and OptumRx pursuant to 18 U.S.C. Section 1962(d), which provides that it is unlawful for any person to conspire to violate any of the provisions of 18 U.S.C. Section 1962(a), (b) or (c). The Plaintiffs must establish (1) that the defendants agreed to facilitate the operation of a RICO enterprise through a pattern of racketeering activity; and (2) that the defendants agreed to commit the requisite predicate acts in furtherance of a pattern of racketeering activity in connection with the enterprise. The Court finds that the plaintiffs have alleged a plausible conspiracy between Cigna and OptumRx or other unnamed health insurance companies and PBMs, to engage in the Clawback scheme in violation of RICO. The Court will deny the motion to dismiss on this count. Accordingly, the Court grants and denies the motions to dismiss in part. Counts five and nine are dismissed. A full-text copy of the District Court's March 12, 2018 Order is available at https://tinyurl.com/yaytxsor from Leagle.com. Kimberly A. Negron, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Brian C. Gudmundson -- brian.gudmundson@zimmreed.com -- Zimmerman Reed, PLLP, pro hac vice, Daniel K. Bryson -- dan@wbmllp.com -- Whitfield Bryson & Mason, LLP, pro hac vice, Derek W. Loeser -- dloeser@KellerRohrback.com -- Keller, Rohrback, L.L.P., pro hac vice, Gretchen S. Obrist -- gobrist@kellerrohrback.com -- Keller, Rohrback, L.L.P., pro hac vice, Jeremy R. Williams -- jeremy@wbmllp.com -- Whitfield Bryson & Mason, LLP, pro hac vice, Robert A. Izard, Jr. -- rizard@ikrlaw.com -- Izard, Kindall & Raabe, LLP, Carey Alexander -- CALEXANDER@SCOTT-SCOTT.COM -- Scott & Scott, LLP, Christopher M. Barrett -- cbarrett@ikrlaw.com -- Izard, Kindall & Raabe, LLP, Craig A. Raabe -- craabe@ikrlaw.com -- Izard, Kindall & Raabe LLP, Erin Green Comite -- ecomite@scott-scott.com -- Scott & Scott LLP, Joseph P. Guglielmo -- jguglielmo@scott-scott.com -- ScottScott, Attorneys at Law, LLP, Mathew P. Jasinski -- mjasinski@motleyrice.com -- Motley Rice LLC, Ronen Sarraf -- ronen@sarrafgentile.com -- Sarraf Gentile, LLP & William H. Narwold -- bnarwold@motleyrice.com = Motley Rice LLC. CIGNA Corporation, Defendant, represented by Brian W. Shaffer -- brian.shaffer@morganlewis.com -- Morgan Lewis & Bockius LLP, pro hac vice, Eleanor R. Farrell -- eleanor.farrell@morganlewis.com - - Morgan Lewis & Bockius LLP, pro hac vice, Evan K. Jacobs- evan.jacobs@morganlewis.com -- Morgan Lewis & Bockius LLP, pro hac vice, Joseph J. Costello -- joseph.costello@morganlewis.com - - Morgan, Lewis & Bockius LLP, pro hac vice, Lisa Rose Veasman -- lisa.veasman@morganlewis.com -- Morgan Lewis & Bockius LLP, pro hac vice, Margaret M. McDowell -- margaret.mcdowell@morganlewis.com -Morgan Lewis & Bockius LLP, pro hac vice, Matthew D. Klayman -- matthew.klayman@morganlewis.com -Morgan Lewis & Bockius LLP, pro hac vice & Michael D. Blanchard -- michael.blanchard@morganlewis.com -- Morgan, Lewis & Bockius LLP. Cigna Health and Life Insurance Company, Defendant, represented by Brian W. Shaffer, Morgan Lewis & Bockius LLP, pro hac vice, Eleanor R. Farrell, Morgan Lewis & Bockius LLP, pro hac vice, Evan K. Jacobs, Morgan Lewis & Bockius LLP, pro hac vice, Joseph J. Costello, Morgan, Lewis & Bockius LLP, pro hac vice, Lisa Rose Veasman, Morgan Lewis & Bockius LLP,Margaret M. McDowell, Morgan Lewis & Bockius LLP, pro hac vice, Matthew D. Klayman, Morgan Lewis & Bockius LLP, pro hac vice & Michael D. Blanchard, Morgan, Lewis & Bockius LLP. CIRQUE DU SOLEIL: Court Certifies TCPA Class -------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, granted in part Plaintiffs' Motion for Class Certification in the case captioned PRACTICE MANAGEMENT SUPPORT SERVICES, INC., an Illinois corporation, individually and as the representative of a class of similarly-situated persons, Plaintiff, v. CIRQUE DU SOLEIL INC., CIRQUE DU SOLEIL (US), INC., AND JOHN DOES 1-10, Defendants, No. 14 C 2032 (N.D. Ill.). The Defendants produce theatrical shows worldwide under the Cirque du Soleil trade name. In January 2009, one or both of the defendants contracted with a fax broadcasting company called ProFax to market shows to a list of fax numbers purchased from list providers. A single employee of the defendants was in charge of communicating with ProFax with respect to all of the fax blasts at issue in this case, and two other employees were responsible for determining what fax target lists would be sent to Profax. The Defendants' employees do not recall calling any companies on the lists to seek permission to send the faxes. The ad sent to Practice Management contains the following opt-out notice at the bottom in fine print: To opt out from future faxes go to www.deletemyfaxnumber.com. Enter pin # 15263 or call 877-284- 7878. The recipient may make a request to the sender not to send any future faxes and failure to comply with the request within 30 days is unlawful. Practice Management alleges that this opt-out notice was deficient although its complaint does not specify why. ProFax retained an opt-out list associated with defendants' account, which is comprised of 935 fax numbers. Here, the plaintiffs seek certification under Rule 23(b)(3), which requires a finding that 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 the fair and efficient adjudication of the controversy. Practice Management seeks to certify the following class: All persons or entities who were successfully sent a facsimile from Cirque du Soleil from January 29, 2009, through July 8, 2009, offering tickets for sale to the following performances: [1] Saltimbanco at Rockford MetroCentre, Rockford, Illinois, opening February 25, 2009; [2] A New Twist on Vaudeville at Chicago Theatre, Chicago, Illinois, opening November 19, 2009; [3] Kooza at Pepsi Center Grounds, Denver, Colorado, opening August 20, 2009; [4] Kooza at Santa Monica Pier, Santa Monica, California, opening October 16, 2009; [5] Kooza at Orange County Great Park, Irvine California, opening January 7, 2010; [6] Kooza at the Broadway/Kellog Lot, St. Paul, Minnesota, opening July 3, 2009; [7] Saltimbanco at Conseco Fieldhouse, Indianapolis, Indiana, opening February 12, 2009; [8] Saltimbanco at USA Mitchell Center, Mobile, Alabama, opening April 2, 2009; [9] Saltimbanco at Sommet Center, Nashville, Tennessee, opening April 9, 2009; [10] Saltimbanco at North Charleston Coliseum, North Charleston, South Carolina, opening April 22, 2009; [11] Saltimbanco at Von Braun Center, Huntsville, Alabama, opening April 15, 2009. Numerosity The numerosity requirement of Rule 23(a)(1) is satisfied where joinder of all putative class members is impracticable. 2002). A class of forty is generally sufficient. The Defendants do not contest that the numerosity requirement is easily satisfied in this case based on the numbers of faxes at issue. Commonality Commonality requires the plaintiff to demonstrate that the putative class members' claims depend upon a common contention of such a nature that it is capable of class-wide resolution which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Addressing a similar TCPA class action involving faxes that lacked compliant opt-out notices, the Seventh Circuit in Turza explained that "class certification is normal" in such cases because the main questions, such as whether a given fax is an advertisement, are common to all recipients" and have common answers. 728 F.3d at 684. As in Turza, key questions in this case including whether defendants qualify as senders, whether the faxes were solicited, whether they were advertisements, whether they contained complaint opt-out notices, and the appropriate remedies have common answers that are all "apt to drive the resolution of the litigation." Thus, the Court finds and defendants do not dispute that commonality is satisfied. Typicality A claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and the claims are based on the same legal theory. Because Practice Management's claim is based on the same course of conduct, sending fax blasts through the same fax broadcaster, at the direction of the same employees, bearing the Cirque du Soleil trade name, and promoting Cirque shows during a discrete period of time and legal theory an opt out notice theory based on faxes sent on behalf of the defendants as the other class members it seeks to represent, the Court holds that typicality is satisfied. Adequacy Rule 23(a)(4) requires representative parties both the named plaintiff and class counsel to fairly and adequately represent the class. Here, putative class counsel Anderson + Wanca and the Margulis Law Group satisfy all four factors. With respect to the first factor, putative class counsel have done significant work in identifying or investigating the claim in this case. Anderson + Wanca have been pursuing claims related to the fax campaign at issue since 2009. With respect to the second and third factors, putative class counsel have considerable experience and knowledge of this area of the law. Both Anderson + Wanca and the Margulis Law Group have been appointed lead or co-lead counsel in many TCPA cases. Anderson + Wanca also has filed a petition in the Supreme Court challenging the Sixth Circuit's decision in Sandusky Wellness Ctr., LLC v. ASD Specialty Healthcare, Inc., 863 F.3d 460 (6th Cir. 2017), addressing issues discussed later in this opinion. See Sandusky Wellness Ctr., LLC v. ASD Specialty Healthcare, Inc., petition for cert. (U.S. Dec. 4, 2017) (No. 17-803). Finally, with respect to the fourth factor, both firms have expressly committed to devote adequate human and financial resources to properly represent their class clients. An analysis under Fed. R. Civ. P. 23(g) thus supports that putative class counsel will adequately protect the class' interests. In sum, the Court finds that both Practice Management and putative class counsel meet the adequacy requirement for class certification. Predominance There is no mathematical or mechanical test for evaluating predominance. Rule 23(b)(3)'s predominance requirement is satisfied when common questions represent a significant aspect of a case and can be resolved for all members of a class in a single adjudication. The second part of Practice Management's argument goes to class member identification, identifying to whom the faxes were sent. It is with respect to this issue that the absence of the fax transmission logs showing who successfully received the faxes presents a problem. As described in the petition for certiorari in Sandusky, courts of appeals are split as to whether class identification issues like this one pertain to class ascertainability, predominance, or superiority. Sandusky, petition for cert. at 22-29 (U.S. Dec. 4, 2017) (No. 17-803). But the Seventh Circuit's position on this issue is clear. It squarely held in Mullins that class identification issues relate to superiority under Rule 23(b)(3). Birchmeier, 302 F.R.D. at 253-54, arguments about whether someone belongs in the classes do not speak to whether common questions predominate among class members; those who are in the classes will be those who can document that they meet the class definitions. Rather, these arguments go to whether an individual may join the classes, which is more appropriately addressed under the manageability component of the superiority requirement. The Court therefore addresses this question as part of its superiority analysis below. The Court concludes that common questions predominate in this case. Superiority The Defendants further complain that it would be unfair for them to face exposure for the total number of faxes that the invoices show as successfully sent when few people are likely to come forward with affidavits or other identifying information regarding faxes sent back in 2009. But this claimed unfairness is a legislative problem rather than a judicial one. The TCPA, with its draconian penalties for multiple faxes, is what it is. Congress decided "that, to prompt compliance, the requirement needed bite in the form of at least $500 in statutory damages for each violation. Congress wanted to put an end to unsolicited fax advertising. In sum, at this juncture, the Court finds the superiority element met. If class counsel cannot, down the road, propose a feasible solution for managing the litigation or for identifying and providing notice to class members, the Defendants can move to decertify the class. The Court grants Practice Management's motion for class certification in part. The Court defines the class, for current purposes, as: All persons who are residents of Illinois and all entities located in Illinois who were successfully sent a facsimile in Illinois containing the Cirque du Soleil trade name from January 29, 2009, through July 8, 2009, offering tickets for sale to the following performances: Saltimbanco at Rockford MetroCentre, Rockford, Illinois, opening February 25, 2009; and A New Twist on Vaudeville at Chicago Theatre, Chicago, Illinois, opening November 19, 2009. A full-text copy of the District Court's March 12, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/yaljxfmw from Leagle.com. Practice Management Support Services, Inc., an Illinois corporation, individually and as the representative of a class of similarly-situated persons,, Plaintiff, represented by Brian J. Wanca -- bwanca@andersonwanca.com -- Anderson & Wanca, Glenn L. Hara -- ghara@andersonwance.com -- Anderson & Wanca, Max G. Margulis -- MaxMargulis@MargulisLaw.com -- Margulis Law Group, Ross Michael Good -- rgood@andersonwanca.com -- Anderson Wanca, Ryan M. Kelly -- rkelly@andersonwanca.com -- Anderson & Wanca & Wallace Cyril Solberg -- wsolberg@andersonwanca.com -- Anderson Wanca. Cirque Du Soleil Inc. & Cirque Du Soleil (US), Inc., Defendants, represented by Eric L. Samore -- esamore@salawus.com -- SmithAmundsen LLC, Albert M. Bower -- abower@salawus.com -- SmithAmundsen LLC, Molly Anne Arranz -- marranz@salawus.com -- Smith Amundsen, LLC, Ronald David Balfour -- rbalfour@salawus.com -- Smithamundsen Llc & Yesha Sutaria Hoeppner -- yhoeppner@salawus.com -- Smithamundsen LLC. CR ENGLAND: Court Limits Request of Fin'l Docs in "Roberts" ----------------------------------------------------------- The United States District Court for the District of Utah, Central Division, granted in part Defendant's Motion to Quash Subpoena Issued to Houlihan Valuation Advisors in the case captioned Charles Roberts et al., Plaintiffs, v. C.R. England, Inc., et al., Defendants, Case No. 2:12-cv-0302 (D. Utah). This matter is a class action involving the Plaintiffs who allege that the Defendants fraudulently solicited and sold them a business opportunity to drive large trucks. The Defendants own and operate a trucking company, a company that leases trucks, and a school that provides instruction for students so they can obtain a commercial driver license. The Plaintiffs allege violations of various state and federal laws. In short, the Plaintiffs assert that the Defendants misrepresented the income that was available to students who ended up leasing trucks from the Defendants. The Plaintiffs seek approximately ten years of information pertaining to the Defendants' net worth and financial condition in support of their claims for punitive damages. Here, the Defendants have already provided tax returns and financial statements for the last 10 years and that is presumably why the Plaintiffs request mirrors the same time frame. But, despite this prior production, the court finds the current discovery requests are overbroad as to time and go beyond what is reasonable for the Plaintiffs to show the Defendants current net worth or financial condition. Therefore, in considering relevant case law found in this circuit, the court will limit any allowed requests to the last two years plus the current year of three months (2016, 2017 and 2018). A full-text copy of the District Court's March 12, 2018 Memorandum Decision and Order is available at https://tinyurl.com/y7bumbkz from Leagle.com. Charles Roberts, an individual & Kenneth McKay, an Individual, on behalf of themselves and others similarly situated, Plaintiffs, represented by Benjamin J. Glicksman -- bjg@kravitlaw.com -- KRAVIT, HOVEL & KRAWCZYK, pro hac vice, Jason E. Greene, ANDERSON & KARRENBERG, 50 West Broadway Ste 700. Salt Lake City, UT 84101, Kevin P. Roddy -- kroddy@wilentz.com -- WILENTZ GOLDMAN & SPITZER PA, pro hac vice, Robert S. Boulter, pro hac vice, Thomas R. Karrenberg, ANDERSON & KARRENBERG, 50 West Broadway Ste 700. Salt Lake City, UT 84101, Aaron H. Aizenberg -- aha@kravitlaw.com -- KRAVIT HOVEL & KRAWCZYK SC, pro hac vice, Benjamin R. Prinsen -- brp@kravitlaw.com -- KRAVIT HOVEL & KRAWCZYK SC, pro hac vice, Christopher J. Krawczyk, KRAVIT HOVEL & KRAWCZYK SC, 825 North Jefferson Street. Milwaukee, WI 53202, pro hac vice, Heather M. Sneddon, ANDERSON & KARRENBERG, 50 West Broadway Ste 700. Salt Lake City, UT 84101, Jon V. Harper, HARPER LAW PLC & Stephen E. Kravit -- kravit@kravitlaw.com -- KRAVIT HOVEL & KRAWCZYK SC, pro hac vice. C.R. England, a Utah corporation, Defendant, represented by Drew R. Hansen -- dhansen@tocounsel.com -- THEODORA ORINGHER PC, pro hac vice, James S. Jardine -- jjardine@rqn.com -- RAY QUINNEY & NEBEKER, Adam Kenji Richards -- arichards@rqn.com -- RAY QUINNEY & NEBEKER, Andrew S. Jick -- ajick@akingump.com -- AKIN GUMP STRAUSS HAUER & FELD LLP, pro hac vice, Christopher K. Petersen, -- cpetersen@akingump.com -- AKIN GUMP STRAUSS HAUER & FELD LLP, pro hac vice, David B. Dibble -- ddibble@rqn.com -- RAY QUINNEY & NEBEKER (SLC), Gregory W. Knopp -- gknopp@akingump.com -- AKIN GUMP STRAUSS HAUER & FELD LLP, pro hac vice, Neal R. Marder -- nmarder@akingump.com -- AKIN GUMP STRAUSS HAUER & FELD LLP, pro hac vice, Rex S. Heinke -- rheinke@akingump.com -- AKIN GUMP STRAUSS HAUER & FELD LLP, pro hac vice & Scott A. Hagen -- shagen@rqn.com -- RAY QUINNEY & NEBEKER. CRYPTO CO: Dismissal of "Shepherdson" Suit Upheld ------------------------------------------------- The Crypto Company said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on April 2, 2018, for the fiscal year ended December 31, 2017, that the Court denied the motion and upheld the dismissal in the class action complaint filed by Monika Shepherdson in the U.S. District Court, Central District of California. On December 21, 2017, a class action complaint was filed in the United States District Court, Central District of California, by Monika Shepherdson, individually and on behalf of all others similarly situated, as the plaintiff, against the Company, Michael Poutre and Ivan Ivankovich, as the defendants, alleging that the defendants made public misrepresentations of material facts, issued false and misleading financial statements and artificially inflated the price of the Company's common stock. (Case No. 2:17-cv-09157-CAS-FFM). On February 15, 2018, the Shepherdson Matter was voluntarily dismissed in its entirety by the plaintiff, without any payment by the Company, in exchange for an agreement by the Company to forego seeking sanctions against plaintiff and her counsel for the filing of a frivolous lawsuit. On February 20, 2018, a motion was filed by Paul Van Loon and Hassan Yahfoufi for appointment as lead plaintiffs and approval of selection of lead counsel on the Shepherdson Matter. On February 27, 2018, counsel for Monika Shepherdson filed a Letter with the court stating that "Ms. Shepherdson no longer wishes to pursue the claims against the Defendants set forth in her complaint." On February 28, 2018, the Court denied the motion and upheld the dismissal. The Crypto Company was incorporated in the State of Utah on December 2, 2013 under the name Croe, Inc. On October 3, 2017, the Company filed Articles of Conversion with the Utah Secretary of State and the Nevada Secretary of State to effectively change its state of Incorporation to Nevada, and filed Articles of Incorporation with the Nevada Secretary of State to change its name to The Crypto Company. DENVER, CO: High Ct. to Decide Lawfulness of Homeless Sweeps ------------------------------------------------------------ Amanda Pampuro, writing for Courthouse News Service, reports that a federal judge refused to dismiss a class action challenging the city and county of Denver's infamous homeless sweeps. The lawsuit filed by lead plaintiff Raymond Lyall in August 2016 alleges that Denver's enforcement of its 2012 Urban Camping Ban sanctioned unlawful searches and seizures, depriving thousands of persons of their property without adequate notice or due process. According to the complaint, "these sweeps that have been ratified and implemented by defendants not only violate plaintiffs' rights, but our concept of a just society." On March 26, U.S. District Judge William Martinez denied two motions for summary judgment from both the plaintiffs and the city, declaring the case to go to trial. For the purpose of the trial, this action began on a cold December morning in 2015, when a police officer filled a garbage truck with "medicines, tents, and blankets" belonging to 15 people who were sleeping outside a shelter. The court will only be addressing "homeless sweeps," incidents in which ten or more city employees were sent to deprive individuals of their property, but the plaintiffs have also argued that sweeps are one of many discriminatory practices enacted by the city in efforts to drive out the homeless population. Still, Martinez wrote that the court will only consider the narrow issue of whether, "Denver indeed has a policy, custom, or practice of sending ten or more officials or agents to clear away an encampment of multiple homeless persons by immediately seizing and discarding the property found there." Additionally, the court will weigh in on whether "whether such sweeps are likely to recur such that plaintiffs have standing to seek a permanent injunction." While Denver did not carry out any major sweeps from 2017 to present, it also has not made any policy changes that would prevent it from doing so. The city claims the sweeps were made in response to local complaints about unsafe and unsanitary parks, and that homeless encampments allowed for "violent crime against the female homeless population, open drug dealing and other safety issues." The lawsuit was awarded class certification in January 2017 for some 3,000 homeless Denver citizens who claim the city wrongfully seized or destroyed their property. On March 14, the Colorado Legislature voted against passing a Homeless Bill of Rights. Presented for the fourth year in a row, the bill would have solidified the right to rest and the right to eat in public. The class is represented by Jason Flores-Williams, Esq. a criminal justice lawyer who recently made history by attempting to represent the Colorado River. City Attorney Conor Farley, Esq. is leading Denver's defense. DXP ENTERPRISES: Winkle Seeks Overtime Compensation under FLSA -------------------------------------------------------------- JACK VAN WINKLE, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, v. DXP ENTERPRISES, INC. and CHEVRON U.S.A., INC., the Defendant, Case No. 7:18-cv-00071 (W.D. Tex., April 19, 2018), seeks to recover overtime compensation and all other available remedies under the Fair Labor Standards Act of 1938. The complaint alleges DXP Enterprises and Chevron U.S.A. were formerly the employers, joint and/or co-employers of the Plaintiff and others similarly situated. Mr. Van Winkle worked as a "Safety Consultant" for DXP's client, Chevron, from July of 2016 through February of 2017. He interviewed and was hired through DXP, and he worked exclusively as a Safety Consultant on Chevron's drilling rigs. While employed by DXP and/or Chevron, Mr. Van Winkle was misclassified as an independent contractor, despite the fact that he worked full time for DXP and/or Chevron, and virtually every aspect of his job was controlled by DXP and/or Chevron. DXP and/or Chevron misclassified Mr. Van Winkle as an independent contractor to avoid paying employment taxes, benefits and overtime. During his time with DXP and Chevron, Mr. Van Winkle typically worked approximately 100 hours per week. Mr. Van Winkle received a day rate regardless of the number of hours he worked in a given day or week, and never received overtime pay. There are a large number of workers that have been hired through DXP (and are paid through DXP) but are working strictly at Chevron facilities, all of whom are classified as independent contractors and all of whom are paid a day rate and/or straight time and denied overtime pay. DXP Enterprises, incorporated on July 26, 1996, is engaged in the business of distributing maintenance, repair and operating (MRO) products, equipment and service to industrial customers.[BN] The Plaintiff is represented by: Josh Borsellino, Esq. BORSELLINO, P.C. 1020 Macon St., Suite 15 Fort Worth, TX 76102 Telephone: (817) 908 9861 Facsimile: (817) 394 2412 E-mail: josh@dfwcounsel.com EMCORE CORP: Accrued $0.2MM Related to "Mirasol" Settlement ----------------------------------------------------------- Emcore Corporation said in its Form 10-K report filed with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2017, that the Company recorded an accrual of $0.2 million within Operating Expenses related to the settlement on the putative class action suit filed by Christina Mirasol. On December 15, 2015, Plaintiff Christina Mirasol ("Mirasol"), on her own behalf and on behalf of a putative class of similarly situated individuals composed of current and former non-exempt employees of the Company working in California since December 15, 2011, filed a complaint against the Company in the Superior Court of California, Los Angeles County (the "Court"). The complaint alleged seven causes of action related to: (1) failure to pay overtime; (2) failure to provide meal periods; (3) failure to pay minimum wages; (4) failure to timely pay wages upon termination; (5) failure to provide compliant wage statements; (6) unfair competition under the California Business and Professions Code Section 17200 et seq.; and (7) penalties under the Private Attorneys General Act. The claims were premised primarily on the allegation that Mirasol and the putative class members were not provided with their legally required meal periods. Mirasol sought recovery on her own behalf and on behalf of the putative class in an unspecified amount for compensatory and liquidated damages as well as for declaratory relief, injunctive relief, statutory penalties, pre-judgment interest, costs and attorneys' fees. In exchange for a one-time cash payment offered by the Company, certain current and former employees previously agreed to release the Company from all potential claims related to the matters alleged in the Mirasol lawsuit. The Company had recorded an accrual for these amounts at September 30, 2016 that was not material to the Company's results of operations, financial condition or cash flows, which had been recorded within Operating Expenses for the fiscal year ended September 30, 2016. On January 6, 2017, the Company and Mirasol agreed to a class action settlement of $0.3 million with regards to all outstanding claims. The parties have agreed to a formal settlement agreement, which was preliminarily approved by the Court, and will require final Court approval. As of September 30, 2017, the $0.3 million settlement remains outstanding. During the fiscal year ended September 30, 2017, the Company recorded an accrual of $0.2 million within Operating Expenses related to the settlement. Emcore Corporation together with its subsidiaries was established in 1984 as a New Jersey corporation. Emcore pioneered the linear fiber optic transmission technology that enabled the world's first delivery of Cable TV directly on fiber, and today is a leading provider of advanced Mixed-Signal Optics products that enable communications systems and service providers to meet growing demand for increased bandwidth and connectivity. ENDO INT'L: Lidoderm Dispute Ends With Settlements -------------------------------------------------- Matthew Renda, writing for Courthouse News Service, reports that three pharmaceutical companies are poised to shell out a total of $270 million to settle antitrust claims related to their alleged collusion to prevent a generic form of an expensive pain medication from reaching market, according to documents. Plaintiffs in the Lidoderm Antitrust case requested U.S. District Court Judge William Orrick grant preliminary approval to the multimillion dollar settlement between purchasers of Lidoderm -- a pain alleviation patch that numbs tissue in the area where it is applied -- and the drug makers Endo, Teikoku and Watson. Endo and Teikoku manufacture Lidoderm. In 2013, Watson was in process of bringing a generic version of the drug to market when it struck a $266 million deal to delay the introduction of that product in exchange for assurances Endo would wait 7 and a half months after Watson released its product to introduce its generic version of the drug. Watson also agreed to drop its patent dispute against Endo and Teikoku as part of the arrangement. Plaintiffs claimed the deal violated antitrust laws, harming consumers by artificially inflating Lidoderm's cost. Last February, Judge Orrick certified two separate classes of plaintiffs -- one consisting of direct purchasers of the drug and another group called end-payer plaintiffs, whose financial harm as a result of the scheme was more indirect. The various parties have agreed the direct purchasers will be awarded $166 million, according to March 21's motion. Endo will pay $60 million, Watson is on the hook for $71 million and Teikoku is slated to disburse $35 million. A separate settlement stipulates defendants pay end-payer plaintiffs about $104 million, with Watson paying $41 million, Endo $40 million and Teikoku paying a smaller share of approximately $23 million. "The settlements were negotiated by counsel experienced in antitrust class actions and the negotiations were overseen by Chief Magistrate Judge (Joseph) Spero," wrote Dena Sharp, Esq. -- chc@girardgibbs.com -- attorney for the plaintiffs in the motion. "The settlements have no obvious deficiencies and are well within the range of final approval." The primary purchasers settlement is about 55 to 79 percent of the damages calculated by an independent expert. For end-payer plaintiffs, the settlement was about 40 percent of damages. The plaintiffs for both classes argued the settlements are fair, with end-payer attorneys saying their clients' burden of proof was such that it made agreeing to a settlement a welcome conclusion to the dispute. "This case involved numerous complex issues of law on which courts have diverged and the Ninth Circuit has not yet spoken," Sharp wrote. Orrick must approve each settlement before they become final and the payments get disbursed. A hearing on the preliminary approval is slated for April 25. EQUIFAX INFORMATION: Response Time in "Bruno" Extended ------------------------------------------------------ The United States District Court for the Eastern District of California extended the Deadline for Equifax Information Services, LLC, to Respond to the Second Amended Class Action Complaint in the case captioned DANIEL BRUNO, Individually and on behalf of others similarly situated, Plaintiff, v. EQUIFAX INFORMATION SERVICES, LLC et al., Defendants, Case No. 2:17-cv- 00327-WBS-EFB (E.D. Cal.). A full-text copy of the District Court's March 12, 2018 Order is available at https://tinyurl.com/ybbldwhe from Leagle.com. Daniel Bruno, Individually and on behalf of others similarly situated, Plaintiff, represented by James Louis Kohl- jamesk.legal@gmail.com -- Law Offices Of James Louis Kohl & Joseph Messer, Messer Strickler, Ltd., pro hac vice. Equifax Information Services, LLC, Defendant, represented by Matthew H. Dawson -- mdawson@kslaw.com -- King & Spalding LLP, Allison L. Hill White -- awhite@kslaw.com -- King & Spalding, LLP, King & Spalding, LLP, pro hac vice, Meryl W. Roper -- mroper@kslaw.com -- King & Spalding LLP, pro hac vice & Zachary A. McEntyre -- zmcentyre@kslaw.com -- King & Spalding LLP, pro hac vice. EQUIFAX INFORMATION: McGinley Time to Respond Extended ------------------------------------------------------ The United States District Court for the Eastern District of California extended the deadline for John McGinley to Respond to the Second Amended Class Action Complaint in the case captioned DANIEL BRUNO, Individually and on behalf of others similarly situated, Plaintiff, v. EQUIFAX INFORMATION SERVICES, LLC et al., Defendants, Case No. 2:17-cv-00327-WBS-EFB (E.D. Cal.). A full-text copy of the District Court's March 12, 2018 Order is available at https://tinyurl.com/y83tjcza from Leagle.com. Daniel Bruno, Individually and on behalf of others similarly situated, Plaintiff, represented by James Louis Kohl -- jamesk.legal@gmail.com -- Law Offices Of James Louis Kohl & Joseph Messer, Messer Strickler, Ltd., pro hac vice. Equifax Information Services, LLC, Defendant, represented by Matthew H. Dawson -- mdawson@kslaw.com -- King & Spalding LLP, Allison L. Hill White -- awhite@kslaw.com -- King & Spalding, LLP, King & Spalding, LLP, pro hac vice, Meryl W. Roper -- mroper@kslaw.com -- King & Spalding LLP, pro hac vice & Zachary A. McEntyre -- zmcentyre@kslaw.com -- King & Spalding LLP, pro hac vice. EVERGREEN RECREATIONAL: Ct. Certifies Class of Terminated Workers ----------------------------------------------------------------- The United States District Court for the Northern District of Indiana, South Bend Division, granted Plaintiffs' Motion for Class Certification in the case captioned MATTHEW GRIMES, on behalf of himself and all others similarly situated, Plaintiffs, v. EVERGREEN RECREATIONAL VEHICLES, LLC, et al., Defendants, Case No. 3:16-CV-472-JD (N.D. Ind.). After being employed as a regional sales manager out of the County Road Facility since January 2011, Grimes was terminated on June 8, 2016, without written notice pursuant to the Worker Adjustment and Retraining Notification Act (WARN Act). Thereafter, he received a letter dated June 14th, purporting to provide him notice under the WARN Act. The letter stated that the closure of the two Evergreen RV facilities would be completed by June 24th and would affect approximately 270 employees. The WARN Act requires that certain employers provide sixty days' notice to employees before engaging in a plant closing1 or mass layoff at a single site of employment, as those terms are defined by the statute. If an employer fails to give notice as required under the WARN Act, a person seeking to enforce such liability has the right to sue the employer for back pay and benefits. Class Certification Here, Grimes initially sought to certify the following class: The Plaintiff and all former employees of Defendants: (i) who worked at or reported to one of the Defendants' facilities, (ii) who were terminated from employment on or about June 8, 2016, within 30 days of that date, or in reasonable anticipation of or as the foreseeable consequence of the mass layoffs or plant closings ordered by the Defendants on or about June 8, 2016, (iii) who are affected employees within the meaning of 29 U.S.C. Section 2101(a)(5) and (iv), who have not filed a timely request to opt-out of the class. Rule 23(a)(1): Numerosity The first requirement under Rule 23(a) is that the purported class be so numerous that joinder of all members is impracticable. The defense does not contend that Grimes failed to meet the numerosity requirement, likely because a class of this size unquestionably fulfills said requirement. The number of potential class members, as well as the judicial inefficiency of attempting to try a case with so many individual plaintiffs, convinces the Court that the class is so numerous as to make joinder impracticable. Rule 23(a)(2): Commonality The second requirement under Rule 23(a) is that the plaintiff must show that there are questions of law or fact common to the class. The defense poses no objection to this requirement having been met by Grimes. And here, the Court agrees with Grimes that there are questions of law and fact common to the proposed class. The very nature of this WARN Act litigation indicates the presence of a single large employment event that took place in June 2016 without adequate notice by Defendants, which resulted in the termination of over 250 employees who worked at one of two Middlebury facilities. Accordingly, the requirement of commonality is established with respect to the proposed class. Rule 23(a)(3): Typicality The third requirement under Rule 23(a) is that the plaintiff must show that the claims or defenses of the representative parties are typical of the claims or defenses of the class. Rule 23(a)(3): Typicality The third requirement under Rule 23(a) is that the plaintiff must show that the claims or defenses of the representative parties are typical of the claims or defenses of the class. The Defendants also contend that Grimes' claims are not typical of the class members' claims because he only worked remotely from his home in North Carolina, as opposed to working at one of the facilities. The fact that Grimes worked remotely does not mean that his claims are not typical of the proposed class. Federal regulations clarify that for workers who are out-stationed or whose primary duties involve work outside any of the employer's regular employment sites, their site of employment is the one to which they are assigned as their home base, from which their work is assigned, or to which they report. Thus, absent evidence calling into doubt Grimes' declaration that he worked remotely as a regional sales manager out of the County Road Facility, that facility would be considered his employment site. Moreover, the WARN Act does not require that a person seeking to enforce the WARN Act be employed at the actual site of the mass layoff or plant closing. The Act provides that: "A person seeking to enforce such liability, including a representative of employees or a unit of local government aggrieved under paragraph (1) or (3), may sue either for such person or for other persons similarly situated, or both, in any district court of the United States." Accordingly, the Court is satisfied that Grimes has met his burden of demonstrating typicality. Rule 23(a)(4): Adequacy of Representation The final requirement of Rule 23(a) is that the representative parties will fairly and adequately protect the interests of the class. Grimes' delay in submitting his declaration to support class certification does not suffice as a basis for disallowing his representation of the proposed class. Ultimately, the claims of Grimes are identical to those of the other members of the proposed class and there is no evidence of some unique defense or circumstance that would cause conflict between Grimes and the other members of the proposed class. Based on this record, the Court finds that Grimes is adequate to represent the interests of the proposed class. With respect to the adequacy of class counsel, the Defendants do not contest the qualifications of attorneys Rene Roupinian and Jack Raisner of the law firm Outten & Golden LLP, who are assisted by other local attorneys as well. Rene Roupinian submitted a declaration outlining their qualifications, credentials, and vast experience in handling employment rights litigation, and specifically, the firm's involvement in at least one hundred WARN Act class actions. The Court is satisfied that the law firm of Outten & Golden LLP will be adequate to represent the interests of the proposed class. With Grimes having satisfied the Rule 23(a) factors, the Court considers the request that the class be certified under Rule 23(b)(3). Rule 23(b)(3): Predominance of Common Questions & Superiority of Class Determination While it is true that success on the claim will result in the need to determine the amount of individual damages suffered by each member of the proposed class, this distinction does not concern the core question of whether Defendants violated the WARN Act. The WARN Act provides for readily calculable back pay damages based on an employee's prior rate of pay, which should readily be discoverable from Defendants' own files. Here, several of these considerations work in favor of the superiority of this case as a class action. The 270 individual members of the proposed class likely have little interest in individually prosecuting WARN Act claims, due to the expense required and minimal individual recovery. This finding is supported by Grimes' declaration which indicates that he only suffered about eight thousand dollars in lost pay, plus any additional benefits. It is also desirable to consolidate the claims against Defendants in this district, where Evergreen RV has its base of operations and where many documents and witnesses are likely to be located. The Court finds that the proposed class meets the requirements of Rule 23(b)(3). Conclusion and Class Certification Because Grimes has demonstrated that certification is appropriate pursuant to Federal Rules of Civil Procedure 23(a) and (b)(3), the Court orders that this case be certified as a class action. The Court certifies a class comprised of: Any and all persons who worked at or reported to a facility located at 10758 County Road 2, Middlebury, Indiana 46540 or 51700 Lovejoy Drive, Middlebury, Indiana 46540, within sixty days prior to the closing of those facilities. A full-text copy of the District Court's March 12, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/y9gt2ea7 from Leagle.com. Matthew Grimes, on behalf of himself and all others similarly situated, Plaintiff, represented by Irwin B. Levin -- ilevin@cohenandmalad.com -- Cohen & Malad LLP, Jack Raisner -- jar@outtengolden.com -- Outten & Golden LLP, pro hac vice, Rene S. Roupinian, Outten & Golden LLP, pro hac vice, Richard E. Shevitz -- rshevitz@cohenandmalad.com -- Cohen & Malad LLP & Vess A. Miller -- vmiller@cohenandmalad.com -- Cohen & Malad LLP. Evergreen Recreational Vehicles, LLC & KR Enterprises Inc, Defendants, represented by Bradford R. Shively, Sanders Pianowski LLP & Jonathan R. Slabaugh, Sanders Pianowski LLP, 300 Riverwalk Dr., Elkhart, Indiana, United States. FACEBOOK INC: More Communities Join Crypo Ads Ban Class Action -------------------------------------------------------------- Lubomir Tassev, writing for Bitcoin.com, reports that cryptocurrency associations and businesses from Switzerland, Kazakhstan and Armenia have joined the initiative to sue Internet corporations over restrictions on crypto-related advertisements. The class action lawsuit will be filed in New York. Legal costs will be covered with funds raised through donations to a wallet registered in Estonia. Lawsuit to Be Filed In May Organizations uniting cryptocurrency investors and blockchain companies from three more countries have supported the class action against internet giants banning crypto ads. The move was initiated by Russian, Chinese and South Korean crypto associations, as news.Bitcoin.com reported. During a conference in Moscow last month, they founded a new organization called the Eurasian Blockchain Association (EBA). EBA is tasked with asserting their interests on an international level. More Communities Join the Legal Action against Crypto Ads BanCrypto communities from Switzerland, Kazakhstan, and Armenia have now joined its efforts to defend the rights of crypto businesses affected by the ban. Support came from the Swiss company Innmind, working to bring together startups and investors, the Armenian Association of Developers and Users, and representatives of the crypto sector in Kazakhstan. EBA members intend to file the class action lawsuit against several large corporations which introduced restrictions on advertising of cryptocurrencies and related projects, like initial coin offerings. The social networks Facebook and LinkedIn, the search engines Google and Yandex, and the microblogging platform Twitter have imposed similar bans since the start of the year. The case will be taken to court in the State of New York next month, Yuri Pripachkin, president of the Russian Cryptocurrency and Blockchain Association, told RNS. RACIB organized the BlockchainRF-2018 congress in Moscow (March 27-28) where the initial agreement for the legal action was signed. EBA representatives have said that lawsuits may be filed in other U.S. jurisdictions, as well, including the states where the companies are registered. Wyoming has also been mentioned as a state with "fair" attitude towards cryptocurrencies. More Communities Join the Legal Action against Crypto Ads Ban The associations will be represented by a new fund registered in Luxembourg. They plan to cover the legal costs through voluntary donations. Lawyers will be paid with funds collected in a cryptocurrency wallet that will be registered in Estonia. "We are witnessing a revival of the censorship," Mr. Pripachkin said during a round-table on internet advertising opportunities and barriers held at the Russian Chamber of Commerce and Industry. In his words, Russians have received their "censorship vaccine" and that's why their reaction is so sharp. Internet should be a territory of freedom, he told Finversia. "A business player decides to introduce special requirements in regards to the freedom of information, taking advantage of a monopolized resource. Next time we'll face racial, religious and other discrimination," RACIB's president warned. Every Action Has Reaction The initial agreement to take the matter to court was reached by the Russian Cryptocurrency and Blockchain Association (RACIB), the Korea Venture Business Association (KOVA), and the Chinese Association of Cryptocurrency Investors (LBTC). They believe the simultaneous refusal by leading Internet companies to publish crypto ads is a sign of cartel collusion and abuse of monopoly power. More Communities Join the Legal Action against Crypto Ads BanFacebook issued its ban in January claiming the measure is due to complaints about spammy and fraudulent advertisements. The popular social network said ads of financial products should not be misleading or deceptive. The ban covers binary options, initial coin offerings, and cryptocurrencies. Google announced restrictions on ads of cryptocurrencies and related content in March. The global search engine banned advertisements of coin offerings, crypto exchanges and wallets, and cryptocurrency trading advice. Following these decisions, other Internet companies implemented similar policy changes. At the end of March, Twitter banned ads for ICOs, whose organizers are unable to prove the sales are legally regulated in the targeted country. It has been reported that LinkedIn has introduced restrictions, too. According to Russian media, the largest search engine in the Runet, Yandex, has also banned crypto ads. [GN] FACEBOOK INC: Court Denies Amendment to "Gullen" BIPA Complaint --------------------------------------------------------------- The United States District Court for the Northern District of California denied Plaintiffs' Motion to Amend Class Action Complaint in the case captioned FREDERICK WILLIAM GULLEN, Plaintiff, v. FACEBOOK, INC., Defendant, Case No. 3:16-cv-00937- JD (N.D. Cal.) to add a second named plaintiff and by narrowing the class definition. The complaint alleged that defendant Facebook, Inc. violated the Illinois Biometric Information Privacy Act (BIPA), by collecting Gullen's biometric identifiers without notice or consent. Gullen sought to represent all non-Facebook users who, while residing in the State of Illinois, had their biometric identifiers, including face templates' or face prints, collected, captured, received, stored, used, or otherwise obtained by Facebook. Facebook timely removed to federal court under the Class Action Fairness Act. Unlike Rule 15(a)'s liberal amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)'s good cause standard primarily considers the diligence of the party seeking the amendment. If that party was not diligent, the inquiry should end. The required degree of diligence is missing here. In December 2016, Gullen received dozens of documents from Facebook referring to the fact that Facebook does not apply facial recognition to photographs uploaded to Facebook pages. On January 31, 2017, Gullen produced the two Facebook photos in which he is featured but did not request discovery on those photos until November 7, 2017. Facebook responded on November 17, 2017, and advised Gullen that one of the photographs was uploaded from Michigan, while the other photograph was uploaded to an organizational account. None of these undisputed facts suggests good cause for delaying a request to amend to this late date, when discovery is closed, expert reports have been exchanged, and motions for class certification and summary judgment are fully briefed and ready for hearing and disposition. A full-text copy of the District Court's March 12, 2018 Order is available at https://tinyurl.com/ycpkvzev from Leagle.com. Frederick William Gullen, on behalf of himself and all others similarly situated, Plaintiff, represented by Albert Y. Chang -- achang@bottinilaw.com -- Bottini and Bottini, Inc., David Philip Milian -- DMilian@CareyRodriguez.com -- Carey Rodriguez Milian Gonya LLP, pro hac vice, Francis A. Bottini, Jr. -- fbottini@bottinilaw.com -- Bottini & Bottini, Inc. & Frank S. Hedin -- fhedin@careyrodriguez.com -- Carey Rodriguez, LLP. Facebook, Inc., Defendant, represented by Archis Ashok Parasharami -- aparasharami@mayerbrown.com -- Mayer Brown LLP, pro hac vice, Lauren R. Goldman -- rgoldman@mayerbrown.com -- Mayer Brown Llp, pro hac vice, Matthew David Provance -- mprovance@mayerbrown.com -- Mayer Brown LLP, pro hac vice & John Nadolenco -- jnadolenco@mayerbrown.com -- Mayer Brown LLP. FACEBOOK INC: Tracy Sues over Unauthorized Use of Users' Data ------------------------------------------------------------- The LELAND TRACY, individually and on behalf of all others similarly situated, Plaintiff, v. FACEBOOK, INC., the Defendant, Case No. 3:18-cv-02128-SK (N.D. Cal., April 9, 2018), seeks to enjoining Defendant from engaging in further negligent, deceptive, unfair, and unlawful business practices. Facebook operates a social networking website through which owners of Facebook accounts can communicate with family, friends, and coworkers that they choose and can access services promoted and allowed by Facebook. The Facebook develops technologies for the sharing of information, photographs, website links, and videos and allows others to promote services on Facebook with restrictions that Facebook determines. By the end of 2017, Facebook had more than 2.2 billion active users. Facebook provides multiple mechanisms through which users may access its social media product. These include but are not limited to a website accessed through a computer's web browser, Facebook mobile device applications available on various operating systems (e.g. Android, iOS), and auxiliary applications such as Facebook Messenger and Facebook Lite. Facebook's marketing of its mobile device applications has led many Facebook users to install its applications on their cell phones, including phones with the Android operating system. When installing such applications, Facebook users are not advised that using the application on an Android cell phone will result in the logging of all the user's call and text communications (including recipients, dates of communication, length of communication, and mode of communication) on Facebook's servers for Facebook's own use, even when not using the Facebook application. In the Android versions of Facebook's mobile application, Facebook has collected and stored information in a scope and manner beyond that which users knowingly authorized, and the practice is ongoing. This activity includes accessing users' call and text histories, including, but not limited to, metadata such as the names and numbers of persons contacted, the times of such contacts, and the lengths of such contacts, hereafter referred to as "Android Users Personal Communications Information." Android Users' Personal Communications Information has been and continues to be stored to Facebook's own servers. Facebook's Terms of Service state properly that the Facebook user is the owner of all of their data. The Android operating system for mobile devices allowed and allows Facebook applications to obtain Android Users' Personal Communications Information without fully disclosing that Facebook applications would access all of the Android Users' Personal Communications Information and send it to Facebook's private servers for storage and use. Facebook took advantage of this technical structure of the Android operating system to obtain Android Users' Personal Communications Information with insufficient notice such that ordinary Facebook users do not understand that they were allowing Facebook the ability to download, save, and utilize Android Users' Personal Communications Information through the use of Facebook applications. Facebook's unauthorized taking and use of Android Users' Personal Communications Information constitutes wrongful taking and storage of the Plaintiff's and Class Members' personal data, and constitutes a consumer bait-and-switch, an invasion of privacy, wrongful monitoring of minors, and an attack on privileged communications in the context of Facebook users who use their cell phones (but not Facebook) to communicate in the context of protected relationships including but not limited to that of attorney/client and doctor/patient.[BN] Attorneys for Plaintiff and the Class: Francis J. "Casey" Flynn, Jr., Esq. LAW OFFICE OF FRANCIS J. FLYNN, JR. 6220 W 3rd St # 115 Los Angeles, CA 90036 Telephone: (323) 424 4194 E-mail: francisflynn@gmail.com - and - Kevin S. Hannon, Esq. THE HANNON LAW FIRM, LLC. 1641 Downing Street Denver, CO 80218 Telephone: 303 861 8800 Facsimile: 303 861 8855 E-mail: khannon@hannonlaw.com FIAT CHRYSLER: Must Face Emissions-Cheating Claims -------------------------------------------------- Nicholas Iovino, writing for Courthouse News Service, reports that a federal judge on March 15 refused to dismiss a nationwide class action accusing Fiat Chrysler of selling more than 100,000 "EcoDiesel" trucks tainted with emissions-cheating software. Facing the same claims that cost Volkswagen more than $20 billion in U.S. fines and settlements, Fiat Chrysler asked a federal judge to dismiss the multidistrict litigation last year. The carmaker argued that consumers' claims of fraud and racketeering are pre-empted by federal law because only U.S. regulators can police emissions rules. U.S. District Judge Edward Chen rejected that argument March 15, finding consumers' claims are based on alleged fraud and deceit, not the violation of environmental rules. "The fraud claims here do not arise 'solely by virtue of' noncompliance with [Clean Air Act] emissions rules; they arise out of the alleged deceit practiced on consumers by defendants," Chen wrote in his 134-page ruling. However, the judge dismissed state-law warranty claims, finding them "entirely predicated on compliance with federal emissions standards" and therefore pre-empted by federal law. The class accuses Fiat Chrysler of installing emissions-cheating software in nearly 104,000 Grand Jeep Cherokees and Ram 1500 EcoDiesel trucks between 2014 and 2016. Fiat Chrysler allegedly used defeat devices created by German auto parts maker and co-defendant Robert Bosch to mask nitrogen dioxide pollution during emissions tests. The cars spew up to 20 times more pollution on the road than when hooked up for tests, according to the plaintiffs' 378-page complaint. The automaker said the plaintiffs lack standing to sue because they failed to identify specific advertisements touting the trucks as environmentally friendly. The consumers must show they relied on such representations when they bought the trucks, Fiat Chrysler contended. Chen scoffed at that argument, finding no authority requires consumers to identify ads they relied on to establish standing. Even if such a requirement existed, Chen said the plaintiffs would easily satisfy it. "One does not need to look far to find this representation: as alleged, it appeared on the class vehicles themselves, which each had an 'EcoDiesel' logo that used a leaf and green coloring," Chen wrote. The carmaker argued the "EcoDiesel" label was mere puffery, not a specific statement that any reasonable consumer could rely on when buying a truck. Chen found "the record is sparse" on whether a reasonable consumer could rely on the label as meaning the trucks spew less pollution. That dispute must be resolved at a later stage of litigation, he said. The judge also dismissed with leave to amend consumer-protection claims for plaintiffs in Iowa and Mississippi. Both states require state attorney general approval to file such claims, he found. Chen further dismissed consumer-protection claims for Kentucky plaintiffs because that state requires consumers have a direct contractual relationship with the defendant, not a third-party intermediary like a car dealer. The judge also found the plaintiffs cannot sue co-defendant Robert Bosch, who manufactured the illicit defeat devices, for aiding and abetting a Racketeer-Influenced Corrupt Organizations Act conspiracy. That's because aiding and abetting is only a criminal offense with no civil liability attached to it, he found. Chen refused to dismiss all other claims of warranty, fraud and racketeering. The plaintiffs say they paid $3,120 to $5,000 more for the trucks than they otherwise would have because of the EcoDiesel label. Last December, attorneys told Judge Chen they would begin extensive settlement talks early this year and that the EPA was working with the automaker to approve a potential emissions fix for the 104,000 trucks. Attorneys for the plaintiff class and Fiat Chrysler did not immediately return emails and phone calls seeking comment March 16 afternoon. Jessica Thompson, Esq. -- jessicat@hbsslaw.com -- of Hagens Berman Sobol Shapiro in Seattle, represents the class; Amie Vague, Esq. -- avague@lightfootlaw.com -- of Lightfoot Franklin & White in Birmingham, Alabama, represents Fiat Chrysler. FIRST FEDERAL: Wins Dismissal of "Chase" Suit --------------------------------------------- The United States District Court for the Western District of Missouri, Western Division, granted Defendant's Motion to Dismiss the First Amended Class Action Complaint in the case captioned STEVEN CHASE and SHAWN PENNER, individually and on behalf of others similarly situated, Plaintiffs, v. FIRST FEDERAL BANK OF KANSAS CITY, et al., Defendants, Case No. 4:17-CV-0094-DGK (W.D. Mo.). The Plaintiffs brought a putative class action suit against First Federal and five of Inter-State's former directors. The First Amended Complaint alleges the directors breached their fiduciary duties to Inter-State's member-depositors by not distributing Inter-State's accumulated capital and earnings, and by approving the merger. It also claims First Federal unjustly enriched itself in the merger. Inter-State's Charter Section 10 of Inter-State's charter speaks to two types of potential distributions to members: (1) periodic net earnings and (2) surplus funds. The Complaint asserts three claims. Count I alleges the former directors breached their fiduciary duties to the members in numerous ways, including by: (a) failing to ratably distribute excess capital and earnings, as required by the Charter; (b) failing to call for a member vote on the Inter-State-First Federal merger; (c) failing to properly notify Plaintiffs and the Class of the merger's terms and consequences; (d) failing to make capital distributions in advance of the merger and the dilution members would suffer because of the known capital disparity between the two banks; (e) failing to retain an experienced, independent third-party evaluator to analyze the merger and its consequences; (f) acting inconsistent with and in violation of the Charter's terms; and (g) by approving, permitting, and participating in the merger at the Plaintiffs and the Class's expense. Kansas law governs this dispute. The parties agree that Kansas law governs this dispute, and the Court concurs. A federal court exercising its diversity jurisdiction applies the choice of law rules of the state where it sits. This Court sits in Missouri, and Missouri follows the most significant relationship' test from the Restatement (Second) of Conflict of Laws Section 145 for resolving choice-of-law questions in tort actions. The Complaint fails to plead a claim for breach of fiduciary duty. Under Kansas law, the essential elements of a breach of fiduciary duty claim are duty, breach, causation, and damages. The member-depositors ownership of Inter-State did not give them rights comparable to those of stockholders in a bank, thus the directors did not owe them a fiduciary duty to distribute accumulated capital or retained earnings. A federal mutual savings association differs most prominently from a federal stock savings association in that an individual has no specific individual equity interest in the association The net worth of the mutual savings association belongs to the members as a whole; individual members are unable to exercise the rights of equity holders. Another fundamental difference is that whereas stock associations can raise capital by issuing stock, mutual savings associations are limited in their ability to raise capital. Mutual savings associations issue no capital stock and therefore have no stockholders; they build capital almost exclusively through retained earnings. The cases the Plaintiffs rely on for their claim that the directors owed them a fiduciary duty under the circumstances of this particular case, Appeal of Corporators of Portsmouth Sav. Bank, 525 A.2d 671 (N.H. 1987) and In re Springfield Savings Society, 231 N.E. 314 (Oh. Ct. App. 1966), are distinguishable. Both cases concern state-chartered institutions, and no federal court has followed either case for the propositions cited by the Plaintiffs. Hence, the Court concludes that the Plaintiffs and the putative class members do not have an ownership right in the association's accumulated capital or retained earnings that can possibly give rise to a claim for breach of fiduciary duty for failure to distribute the accumulated capital or retained earnings. Inter-State's charter did not give the Plaintiffs a right to vote on the merger. The Complaint does not cite any charter provision supporting such an assertion, nor can the Court find any. While the plain text of the charter requires a member vote for any amendment, addition, alteration, change or repeal of the charter, it does not require a vote for a merger. A merger is sufficiently different from an amendment or repeal that if the authors of the charter had meant to require a member vote for such an event, they would have included the word merger in the charter. The Court also notes that a ruling that a member vote was required would be inconsistent with long-standing regulatory guidance given to mutual savings associations. Thus no member vote was required. Plaintiffs did not suffer any damage. The Complaint alleges the Plaintiffs suffered damages in the form of unpaid capital distributions and dilution of their ownership interest in the accumulated excess capital. The Plaintiffs never had an enforceable right to any capital distributions or to Inter-State's accumulated excess capital, and so they did not suffer any damages. And without damages, they do not have a viable claim for breach of fiduciary duty. The Complaint fails to plead a claim for unjust enrichment or conversion. Both of these claims are premised on the Plaintiffs owning Inter- State's accumulated surplus, and both fail because the Plaintiffs lacked enforceable rights in this surplus. The Plaintiffs cannot show the first element of an unjust enrichment claim, that they conferred a benefit upon First Federal in the form of the Inter- State's accumulated surplus, because they did not have any right to the surplus. Likewise, the Plaintiffs' conversion claim fails because they lacked an ownership interest in Inter-State's accumulated surplus that was transferred to First Federal. Consequently, Counts II and III fail as a matter of law. Defendants' motion is granted and the Plaintiffs' First Amended Complaint is dismissed. A full-text copy of the District Court's March 12, 2018 Order is available at https://tinyurl.com/ycb2jjvp from Leagle.com. Steven Chase, On Behalf of Himself and All Others & Shawn Penner, On Behalf of Himself and All Others, Plaintiffs, represented by John F. Edgar -- jfe@edgarlawfirm.com -- Edgar Law Firm LLC. First Federal Bank of Kansas City, Richard T. Merker, Helen Skradski, Benjamin J. Fries, William W. Hutton & James R. Jarrett, Defendants, represented by Charles W. German -- charlieg@germanmay.com -- German May, PC, Jason M. Hans -- jasonh@rhgm.com -- German May, PC & Ryan Thomas Scarborough -- rscarborough@wx.com -- Williams & Connolly, LLP, pro hac vice. FTD COMPANIES: Oral Arguments on EasySaver's Suit Set for May 17 ---------------------------------------------------------------- FTD Companies, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on April 2, 2018, for the fiscal year ended December 31, 2017, that the Ninth Circuit has calendared oral arguments in the EasySaver's suit for May 17, 2018. Commencing on August 19, 2009, the first of a series of putative consumer class action lawsuits was brought against Provide Commerce, Inc. and co-defendant Regent Group, Inc. d/b/a Encore Marketing International ("EMI"). These cases were ultimately consolidated during the next three years into Case No. 09 CV 2094 in the United States District Court for the Southern District of California under the title In re EasySaver Rewards Litigation. Plaintiffs' claims arise from their online enrollment in subscription based membership programs known as EasySaver Rewards, RedEnvelope Rewards, and Preferred Buyers Pass (collectively the "Membership Programs"). Plaintiffs claim that after they ordered items from certain of Provide Commerce's websites, they were presented with an offer to enroll in one of the Membership Programs, each of which is offered and administered by EMI. Plaintiffs purport to represent a nationwide class of consumers allegedly damaged by Provide Commerce's purported unauthorized or otherwise allegedly improper transferring of billing information to EMI, who then posted allegedly unauthorized charges to their credit or debit card accounts for membership fees for the Membership Programs. In the operative fourth amended complaint, plaintiffs asserted ten claims against Provide Commerce and EMI: (1) breach of contract (against Provide Commerce only); (2) breach of contract (against EMI only); (3) breach of implied covenant of good faith and fair dealing; (4) fraud; (5) violations of the California Consumers Legal Remedies Act; (6) unjust enrichment; (7) violation of the Electronic Funds Transfer Act (against EMI only); (8) invasion of privacy; (9) negligence; and (10) violations of the Unfair Competition Law. Plaintiffs seek damages, attorneys' fees, and costs. After motion practice regarding the claims asserted and numerous settlement conferences and mediations in an effort to informally resolve the matter the parties reached an agreement on the high level terms of a settlement on April 9, 2012, conditioned on the parties negotiating and executing a complete written agreement. In the weeks following April 9, 2012, the parties negotiated a formal written settlement agreement (the "Settlement"), which the court preliminarily approved on June 13, 2012. After notice to the purported class and briefing by the parties, the court conducted a final approval hearing (also known as a fairness hearing) on January 28, 2013, but did not rule. On February 4, 2013, the court entered its final order approving the Settlement, granting plaintiffs' motion for attorneys' fees, costs, and incentive awards, and overruling objections filed by a single objector. The court entered judgment on the Settlement on February 21, 2013. The objector filed a notice of appeal with the Ninth Circuit Court of Appeals on March 4, 2013. After the completion of briefing, the Ninth Circuit set oral argument for February 2, 2015. But on January 29, 2015, the Ninth Circuit entered an order deferring argument and resolution of the appeal pending the Ninth Circuit's decision in a matter captioned Frank v. Netflix, No. 12 15705+. On March 19, 2015, the Ninth Circuit entered an order vacating the judgment in this matter and remanding it to the district court for further proceedings consistent with its opinion in Frank v. Netflix issued on February 27, 2015. The district court ordered supplemental briefing on the issue of final Settlement approval May 21, 2015. After briefing, the district court conducted a hearing on July 27, 2016 and took the matter under submission. On August 9, 2016, the district court entered an order reapproving the Settlement without any changes, and accordingly entered judgment and dismissed the case with prejudice. On September 6, 2016, the objector filed a notice of appeal. On November 22, 2016, plaintiffs filed a motion for summary affirmance of the district court's judgment, to which the objector responded and filed a cross-motion for sanctions. Plaintiffs' motion for summary affirmance temporarily stayed briefing on the appeal. On March 2, 2017, the Ninth Circuit denied plaintiffs' motion for summary affirmance and objector's cross-motion for sanctions, and reset the briefing schedule. The objector filed his opening brief on May 1, 2017. Thirteen state Attorneys General filed an amicus brief in support of the objector on May 8, 2017. The parties filed their answering briefs on June 30, 2017. Various legal aid organizations filed an amicus brief in support of no party regarding cy pres relief also on June 30, 2017. The objector's optional reply brief was filed on August 14, 2017. The Ninth Circuit has calendared oral arguments for May 17, 2018. There are no assurances that other legal actions or governmental investigations will not be instituted in connection with the Company's current or former business practices. The Company cannot predict the outcome of governmental investigations or other legal actions or their potential implications for its business. FTD Companies, Inc., together with its subsidiaries is a premier floral and gifting company with a vision to be the world's floral innovator and leader, creating products, brands, and technology- driven services to its customers love. The company is based in Downers Grove, Illinois. FRANCE: Class Action Mulled Over Linky Electricity Meters --------------------------------------------------------- The Connexion reports that a former minister has called on the government to halt the roll-out of Linky electricity meters amid claims they are dangerous for people's health. Lawyer Corinne Lepage, who was environment minister between 1995 and 1997 has called on current incumbent of her government post, Nicolas Hulot, and health minister Agnes Buzyn to suspend the deployment of Linky meters as a precaution, after many users claimed electromagnetic radiation was affecting their health. She has called for scientific studies "to assess the health effects of these meters". "If the government does not react within two months, we will launch a class action against the State in the tribunal administratif on behalf of the mayors and citizens opposed to Linky," Ms Lepage told Le Parisien. The threat of legal action comes on top of another court case. A lawyer is due to file a summary judgment on June 5 with 11 regional courts on behalf of 3,000 householders who want the meter withdrawn or who refuse to have one fitted at their homes. Meanwhile, an email calling for the suspension of the Linky programme, signed by 92 associations, was sent to MPs. Enerdis has insisted that the meters "present no danger", adding "This has been demonstrated twice by reports from the Agence nationale de securite sanitaire (Anses) which conclude that the emission level is very low and the same as an induction hob, hair dryer or refrigerator." In December 2016, an Anses survey concluded that "exposure to electromagnetic fields emitted by meters is unlikely to cause short- or long-term health effects". However, Anses qualified its position by pointing out that its judgment is based on "data available to date". Ms Lepage said. "Twenty years ago, the same health authorities explained that mobile phone waves were not serious. Since then, we have realized that this can have effects on health and on some people more than others." Some 10million Linky meters have already been installed at a rate of 30,000 a day. Some cities, such as Lyon, Nice or Amiens, are already fully equipped and the objective is to reach 35 million meters by the end of 2021. [GN] GDFRIEND INC: Ct. Won't Stay "Amdezewicz" Pending ACA Decision -------------------------------------------------------------- The United States District Court for the Southern District of California denied defendant's motion to stay the case captioned LUCAS AMBEZEWICZ, et al, Plaintiffs, v. GDFRIEND, INC., Defendant, Case No. 3:17-cv-02234-L-JMA (S.D. Cal.). The plaintiffs in this action are three individuals1 who claim to have received multiple telemarketing calls to their cell phones from the Defendant. The Plaintiffs allege that the Defendant placed these calls using an automated telephone dialing system and without prior express consent. The Plaintiffs filed a putative class action complaint alleging violations of the Telephone Consumer Protection Act (TCPA). The Defendant argues that it makes no sense to move forward with costly discovery while a decision pending an appeal is expected to clarify the proper definition of an ATDS an essential element of Plaintiff's entire lawsuit. While it is true that the forthcoming ACA (ACA International v. Fed. Commc'ns Comm'n, Case No. 15-1211 (D.C. Cir.) (ACA)) decision may clarify the ATDS definition, it does not follow that allowing discovery in the interim would amount to waste, the Court said. Indeed, whatever ATDS definition emerges from the ACA decision, resolution of this dispute will still require consideration of whether the specific equipment the Defendant used to place the calls at issue triggers that definition. Such an analysis will require consideration of a factual record, developed through discovery, showing what type equipment the Defendant used to place the calls. A full-text copy of the District Court's March 12, 2018 Order is available at https://tinyurl.com/yapjsvdp from Leagle.com. Lucas Ambrezewicz, individually and on behalf of all others similarly situated, Edward Timmons, individually and on behalf of all others similarly situated & Mark Haigler, individually and on behalf of all others similarly situated, Plaintiffs, represented by Blake J. Dugger -- blake@stefancoleman.com -- Law Offices of Stefan Coleman, pro hac vice & Bryan Kenton Theis, Theis Law Group, 533 2nd St Ste 400, Encinitas, CA 92024. GDFriend, Inc., a California corporation, Defendant, represented by David J. Kaminski -- kaminskid@cmtlaw.com -- Carlson and Messer. GLOBAL CREDIT: Faces "Farro" Suit in District of New Jersey ----------------------------------------------------------- A class action lawsuit has been filed against Global Credit & Collection, Corp. The case is captioned as MELANIE A. FARRO, on behalf of herself and all others similarly situated, the Plaintiff, v. GLOBAL CREDIT & COLLECTION, CORP. and JOHN DOES 1-25, the Defendants, Case No. 2:18-cv-05720-JMV-CLW (D.N.J., April 9, 2018). The case is assigned to the Hon. Judge John Michael Vazquez. Global Credit & Collection provides customer and account receivable management services. The company also offers business process outsourcing services that include Email transmissions, telephone operator services (411), social network management, letters and fax, call backs, and voicemail message processing.[BN] The Plaintiff is represented by: Joseph K. Jones, Esq. JONES, WOLF & KAPASI, LLC 375 Passaic Avenue, Suite 100 Fairfield, NJ 07004 Telephone: (973) 227 5900 Facsimile: (973) 244 0019 E-mail: jkj@legaljones.com GLOBAL EAGLE: Notice of Appeal Filed in M&M Hart Suit ----------------------------------------------------- Global Eagle Entertainment Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on April 2, 2018, for the fiscal year ended December 31, 2017, that the plaintiffs in the putative stockholder suit filed by M&M Hart Living Trust and Randi Williams, filed a notice of appeal to the United States Court of Appeals for the Ninth Circuit from the Court's denial of the plaintiffs' motion to alter or amend the judgment. Global Eagle said "We and certain of our former officers and directors are named as defendants in certain purported stockholder class action lawsuits." Specifically, on February 23, 2017 and on March 17, 2017, following the Company's announcement that it anticipated a delay in its 2016 Form 10-K filing and that its former CEO Dave Davis and former CFO Tom Severson would separate from the Company, three putative securities class action lawsuits were filed in United States District Court for the Central District of California. These lawsuits allege violations of Sections 10(b) and 20(a) of the Securities Exchange Act against the Company, Mr. Davis, Mr. Severson and Michael Zemetra (who was the company's CFO prior to Mr. Severson). The plaintiffs voluntarily dismissed two of these lawsuits. The third lawsuit, brought by putative stockholder M&M Hart Living Trust and Randi Williams (the "Hart complaint"), alleges that the Company and the other Defendants made misrepresentations and/or omitted material information about the EMC Acquisition in July 2016, the Company's projected financial performance and synergies following that acquisition, and the impact of that acquisition on the Company's internal controls over financial reporting. Plaintiffs seek unspecified damages, attorneys' fees and costs. Global Eagle said in its Form 10-K report for the fiscal year ended December 31, 2016, that on November 2, 2017, the Court granted the Company's and the other defendants' motion to dismiss the Hart complaint, and dismissed the action with prejudice. The plaintiffs may appeal that ruling, and their period in which to appeal has not yet expired. On November 30, 2017, the plaintiffs filed a motion to alter or amend the Court's previous judgment of dismissal to permit them to file a further amended complaint. On January 8, 2018 the Court denied the plaintiffs' motion to alter or amend the previous judgment. On January 29, 2018, the plaintiffs filed a notice of appeal to the United States Court of Appeals for the Ninth Circuit from the Court's denial of the plaintiffs' motion to alter or amend the judgment. Global Eagle said "We intend to vigorously defend ourselves against this claim." Global Eagle Entertainment Inc. is a leading provider of media and satellite-based connectivity to fast-growing, global enterprise, consumer and government markets across air, land and sea. Supported by proprietary and best-in-class technologies, the company entertains, informs and connects travelers and crew with its integrated suite of rich media content and seamless connectivity solutions that cover the globe. The company is based in Los Angeles, California. GOLDOC: Gold Coast Business Owners Mull Class Action ---------------------------------------------------- 9Now reports that irate Gold Coast business owners say they would join a class action against Commonwealth Games organisers and the Queensland Government to recoup losses, after claiming the normally thriving tourist strip has been left a "ghost town" by the event. Hospitality traders say the Easter lead-up to the Games and the first week of competition has been their slowest period in years. Many are angry at the messaging directed at locals to leave town during the two weeks of the event to avoid traffic. Main Beach restaurant owner Carlo Percuoco is demanding answers from GOLDOC, the Games organisers. "Their projections and numbers were way off. The crowds they predicted just haven't eventuated," Mr Percuoco told 9News. Asked whether he'd consider joining a class action, Mr Percuoco confirmed he would explore the option to make up his losses. Mick Ellison, owner of Tedder Ave pub Mano's, invested thousands of dollars to promote his venue in a bid to make it a go-to for locals wanting to watch the Commonwealth Games, but has been left out of pocket with small crowds. "It's disappointing . . . it's just the locals aren't here and they are our lifeblood," Mr Ellison said. GOLDOC chairman Peter Beattie denied the "ghost town" tag but admitted that some parts of the Gold Coast are missing out on the increased tourist trade, with most Games visitors concentrated in a few hubs. "What we need to do is encourage people that were apprehensive about coming to come and get them to go to the places that aren't packed," Me Beattie told 9News. Mr Beattie appealed to locals and people further away in Brisbane to come and experience the biggest event ever held in Queensland, saying "you don't want to miss this." Visiting crowds are expected to pick up in the second week of the Games as more athletes finish competing and begin to explore the Gold Coast. [GN] GUARDIAN LIVING: Court Conditionally Certifies "Williams" Class --------------------------------------------------------------- The United States District Court for the Southern District Texas, Houston Division, granted in part and denied in part Plaintiffs' First Amended Motion for Conditional Certification and Notice Motion for Class Certification in the case captioned TIFFERY WILLIAMS, Plaintiff, v. GUARDIAN LIVING SERVICES, INC., et al, Defendants, Civil Action No. 4:17-CV-1901 (S.D. Tex.). For nine months, Ms. Williams worked for Guardian as a Direct Care Staff (DCS) employee. In that role, Ms. Williams's duties included mopping the floor, cleaning patient rooms, preparing lunch for the patients, assisting patients with daily activities, transporting patients to their doctor appointments, inspecting the patients for injuries or abuse and filling out paperwork. The Plaintiff relied on two pay stubs and a timesheet as prima facie evidence that she and her co-workers were subject to a policy of no overtime payment. The Plaintiff seeks conditional certification of a collective action consisting of: All Direct Care Staff employees employed by Guardian Living Services, Inc., in the past three (3) years who were not paid the full time-and-a-half overtime premium for overtime hours worked in a given workweek. In order to obtain conditional certification, the plaintiff must make a minimal showing that: (1) there is a reasonable basis for crediting the assertions that aggrieved individuals exist and (2) those aggrieved individuals are similarly situated to the plaintiff in relevant respects given the claims and defenses asserted. The other two requirements at this stage (1) that there is a reasonable basis for crediting the assertions that aggrieved individuals exist, and (2) that those aggrieved individuals are similarly situated to the plaintiff in relevant respects given the claims and defenses asserted-sufficiently safeguard against the risk of stirring up unwarranted litigation. Recordkeeping violation The Plaintiff argues that Guardian required Ms. Williams to prefill her timesheets and record only her assigned shifts and not her actual work hours or any overtime hours. There is no evidence, however, of any such generally applicable rule, policy, or practice. In fact, the Plaintiff's own timesheets and pay stubs reflect compensated .5-hour overtime work on multiple occasions. Accordingly, this claim is unfit for conditional certification because there is no reasonable basis for crediting Ms. Williams's assertions that similarly aggrieved individuals exist. Off-the-clock work The Plaintiff's Motion states that Guardian requires DCS employees to conduct body checks off-the-clock before the beginning of their shifts. There is no documentary evidence in the record to verify the body check procedure as Ms. Williams recounts it. There is ample evidence in employee declarations suggesting that no such body check requirement existed. There is also evidence that pre-shift or post-shift work was required in the form of verbal shift summaries from the outgoing to the incoming employee. There has been a minimal showing that Guardian scheduled its employees to work consecutive 8-hour shifts with no overlapping time and yet required its employees to overlap for some period of time at the shift change at least to communicate shift summaries and possibly also to perform patient inspections. This level of detail provides a reasonable basis for crediting the assertion that Ms. Williams was required to work compensable off-the-clock time. And because all DCS employees perform similar job duties and experience shift changes, she and the putative class members are similarly situated. Therefore, the action should proceed collectively. The Plaintiff's Motion is denied with respect to the allegation of recordkeeping violations and is granted with respect to the claim for off-the-clock work. A full-text copy of the District Court's March 12, 2018 Memorandum and Order is available at https://tinyurl.com/yb5v7jjr from Leagle.com. Tiffery Williams, Plaintiff, represented by Trang Q. Tran -- Ttran@tranlawllp.com -- Tran Law Firm LLP. Guardian Living Services, Inc. & Christina E. Kizzee, Defendants, represented by Terrence B. Robinson, TB Robinson Law Group, PLLC, 1616 S. Voss Rd., Suite 870, Houston, Texas 77057. HALYARD HEALTH: Award of Punitive Damages Reduced to $24.4MM ------------------------------------------------------------ Halyard Health, Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on April 2, 2018, that the court in Bahamas Surgery Center, LLC v. Kimberly-Clark Corporation and Halyard Health, Inc., had reduced the award for punitive damages to $24.4 million. Halyard Health said in its Form 10-Q Report for the quarterly period ended September 30, 2017, that, "We have an Indemnification Obligation for, and have assumed the defense of, the matter styled Bahamas Surgery Center, LLC v. Kimberly-Clark Corporation and Halyard Health, Inc., No. 2:14-cv-08390-DMG-SH (C.D. Cal.) ("Bahamas"), filed on October 29, 2014. In that case, the plaintiff brought a putative class action asserting claims for common law fraud (affirmative misrepresentation and fraudulent concealment) and violation of California's Unfair Competition Law ("UCL") in connection with our marketing and sale of MicroCool surgical gowns. On April 7, 2017, after a two-week trial, a jury returned a verdict for the plaintiff, finding that Kimberly-Clark was liable for $4 million in compensatory damages (not including prejudgment interest) and $350 million in punitive damages, and that Halyard was liable for $0.3 million in compensatory damages (not including prejudgment interest) and $100 million in punitive damages. Subsequently, the court also ruled on the plaintiff's UCL claim and request for injunctive relief. The court found in favor of the plaintiff on the UCL claim but denied the plaintiff's request for restitution. The court also denied the plaintiff's request for injunctive relief. On May 25, 2017, the company filed three post-trial motions: a renewed motion for judgment as a matter of law; a motion to decertify the class; and a motion for new trial, remittitur, or amendment of the judgment. The renewed motion for judgment as a matter of law seeks to have the court reverse the jury's verdict in whole or in part because it was based on insufficient facts and/or did not correctly apply the law. The motion to decertify the class seeks to have the court decertify the class on the basis that the evidence at trial did not support the Court's initial class certification order and therefore the case should not have proceeded as a class action. The motion for new trial, remittitur or amendment of the judgment seeks, among other relief, to have the court reduce the jury's punitive damages award because it was not supported by the facts and was excessive in violation of due process under the U.S. Constitution. Halyard Health said "The U.S. Supreme Court has stated that the Constitutional outer limit for the ratio between punitive damages and compensatory damages in cases such as ours is approximately 9 to 1 or lower, and we believe that in a case such as ours that, if there is any award of punitive damages (a premise we dispute), the ratio should be 1 to 1. We intend to continue our vigorous defense of the Bahamas matter." In the Form 8-K report, the Company said that on March 30, 2018, the Court in the matter styled Bahamas Surgery Center, LLC v. Kimberly-Clark Corporation and Halyard Health, Inc., No. 2:14-cv- 08390-DMG-SH (C.D. Cal.) ("Bahamas"), ruled on the defendants' three post-trial motions. The court denied all three motions, except it granted in part the motion to reduce the award of punitive damages. The Court reduced the punitive damages awarded against Halyard Health from $100 million to $1.3 million, and it reduced the punitive damages awarded against Kimberly-Clark Corporation ("Kimberly-Clark") from $350 million to $19.4 million. The total compensatory and punitive damages plus pre-judgment interest awarded against Halyard Health is $1.6 million, and against Kimberly-Clark it is $24.4 million. The plaintiff had until April 9, 2018 to either agree to the reduction in the punitive damages or seek a new trial limited to determining the proper amount of the punitive damages, if any. Halyard Health said "We intend to continue our vigorous defense of the Bahamas matter. We have previously notified Kimberly-Clark that we have reserved our rights to challenge any purported obligation to indemnify Kimberly-Clark for the punitive damages awarded against them in the Bahamas matter. That issue remains the subject of litigation in the matters styled Halyard Health, Inc. v. Kimberly-Clark Corporation, Case No. BC659662 (County of Los Angeles, Superior Court of California) and Kimberly-Clark Corporation v. Halyard Health, Inc., Case No. 2017-0332-AGB (Court of Chancery of the State of Delaware). We intend to vigorously pursue our case against Kimberly-Clark in California and to vigorously defend against their case against us in Delaware." Halyard Health, Inc. operates as a medical technology company that focuses on eliminating pain, speeding recovery, and preventing infection for healthcare providers and patients worldwide. The company is based in Alpharetta, Georgia. HALYARD HEALTH: Court Grants Bid to Dismiss "Jackson" Suit ---------------------------------------------------------- Halyard Health, Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on April 2, 2018, that the court in the case entitled, In the matter styled Jackson v. Halyard Health, Inc., Robert E. Abernathy, Steven E. Voskuil, et al., granted the company's motion to dismiss, without leave to amend. Halyard Health said in its Form 10-Q Report for the quarterly period ended September 30, 2017, "We were served with a complaint in a matter styled Jackson v. Halyard Health, Inc., Robert E. Abernathy, Steven E. Voskuil, et al., No. 1:16-cv-05093-LTS (S.D.N.Y.), filed on June 28, 2016." In that case, the plaintiff brings a putative class action against the Company, our Chief Executive Officer, our Chief Financial Officer and other defendants, asserting claims for violations of the Securities Exchange Act, Sections 10(b) and 20(a). The plaintiff alleges that the defendants made misrepresentations and failed to disclose certain information about the safety and effectiveness of our MicroCool gowns and thereby artificially inflated the Company's stock prices during the respective class periods. The alleged class period for purchasers of Kimberly-Clark securities who subsequently received Halyard Health securities is February 25, 2013 to October 21, 2014, and the alleged class period for purchasers of Halyard Health securities is October 21, 2014 to April 29, 2016. On February 16, 2017, we moved to dismiss the case. In its Form 8-K report, the Company said that on March 30, 2018, the court granted the company's motion to dismiss, without leave to amend. The plaintiff will have 30 days after entry of judgment to file his notice of appeal. If the plaintiff appeals, we intend to continue our vigorous defense of this matter. Halyard Health, Inc. operates as a medical technology company that focuses on eliminating pain, speeding recovery, and preventing infection for healthcare providers and patients worldwide. The company is based in Alpharetta, Georgia. HAPPILY COMPANY: Fails to Pay OT & Minimum Wages, Fortt Says ------------------------------------------------------------ MICHELLE FORTT, an individual; MARIO JOHNSON, an individual, on behalf of themselves, and on behalf of all persons similarly situated, the Plaintiffs, v. HAPPILY COMPANY, a California corporation; and DOES 1 through 50, inclusive, the Defendant, Case No. BC702715 (Cal. Super. Ct., April 19, 2018), seeks to recover overtime wages and minimum wages under the California Labor Code. Happily is a nationwide event planning company comprised of a network of freelance individuals who specialize in all types of event management and onsite logistics. Happily operates an online platform that connects event hosts with its network of freelance individuals looking to help produce, coordinate and/or assist events. Happily employs the network of freelance individuals as independent contractors, and notifies them of available work either through email or text message. Once a job is secured, the freelance individuals are introduced to their project manager -- a Happily employee -- who provides the remaining details and requirements of the job, which includes without limitation: what to do, where to go, when to arrive, what to wear, what to bring, and where to park. According to the complaint, the freelance individuals submit a standard form invoice to Happily for payment. The Plaintiffs assert that they were hired by Happily to perform work as independent contractors. The agreement between Plaintiffs and Happily is titled "Independent Contractor Agreement". The ICA, which Plaintiffs and all other similarly situated individuals who were and are classified by Happily as independent contractors are required to sign to be eligible for employment, was drafted by Happily, is not subject to negotiation, and is presented to prospective individuals seeking employment with Happily during the application process. The cost, as proscribed by law, of the personnel hired to work for Happily, includes not only the pay and overtime pay of these individuals, but also the cost of the employer's share of tax payments to the federal and state governments for income taxes, social security taxes, Medicare insurance, unemployment insurance, and payments for workers' compensation insurance. To avoid the payment of these legally- proscribed Business-Related Expenses, to the fullest extent possible, Happily devised a scheme to place the responsibility for payment of these costs and expenses of Happily on the shoulders of Plaintiffs and other similarly situated employees. As an employer, Happily is legally responsible for the payment of all Business-Related Expenses. This lawsuit is brought by Plaintiffs as a class and collective action in order to collect the wages due them and all other similarly situated individuals as employees of Happily, the cost of the employers share of payments to the federal and state governments for income taxes, social security taxes, medicare insurance, unemployment insurance, and payments for workers' compensation insurance, as well as all applicable penalties and interest. Despite Happily's intentional and explicit classification of the Plaintiffs as independent contractors, the Plaintiffs were and are, in fact, employees of Happily, consequence of this misclassification, the Plaintiffs have suffered and continue to suffer actual economic harm.[BN] The Plaintiff is represented by: Frank J. Johnson, Esq. Chase M. Stern, Esq. JOHNSON FISTEL, LLP 600 West Broadway, Suite 1540 San Diego, CA 92101 Telephone: (619) 230 0063 Facsimile: (619) 255 1856 E-mail: FrankJ@johnsonfistel.com ChaseS@johnsonfistel.com HERTZ CORP: Court Compel Arbitration in "Olivas" ------------------------------------------------ The United States District Court for the Southern District of California granted Defendant's Motion to Compel Arbitration in the case captioned MOISES OLIVAS, individually and on behalf of others similarly situated, Plaintiff, v. THE HERTZ CORPORATION, Defendant, Case No. 17-cv-01083-BAS-NLS (S.D. Cal.). Plaintiff Moises Olivas brings this putative class action against Defendant The Hertz Corporation. He challenges the company's practice of charging administrative fees to rental car customers in connection with their use of toll roads. Based on these allegations, the Plaintiff asserts claims against Hertz for breach of contract, breach of the implied covenant of good faith and fair dealing, conversion, and violation of California's Unfair Competition Law, California Business & Professions Code Section 17200. He also seeks to certify a class action of similarly-situated Hertz Gold Plus members who were charged at least one administrative toll fee. Hertz's Evidence The Gold Agreement Hertz operates a loyalty program called the Hertz Gold Plus Rewards Program (Gold Program). The Plaintiff electronically enrolled in the Gold Program on June 7, 2006. At that time, the loyalty program was titled Hertz #1 Club Gold. Further, when the Plaintiff enrolled, he agreed to the Hertz #1 Club Gold Program Rental Terms & Conditions (Gold Agreement), which Hertz submits contains the terms and conditions in effect at the time of Plaintiff's November 25, 2014, rental from Hertz's John Wayne Airport Location. Responsibility for Determining Formation of the Agreement The Rental Record's Arbitration Provision contains language delegating questions of arbitrability to the arbitrator. It provides that all issues are for the arbitrator to decide, including his or her own jurisdiction, and any objections with respect to the existence, scope or validity of this Arbitration Provision. The problem with Hertz's position is it presupposes that an agreement to arbitrate arbitrability exists. Yet, the Plaintiff challenges whether he agreed to the Arbitration Provision, including its delegation clause. This Court cannot enforce the delegation clause let alone the remainder of the Arbitration Provision without first concluding the Plaintiff entered into an agreement. Accordingly, the Court, not the arbitrator, will determine whether the Plaintiff agreed to the Arbitration Provision and its delegation clause. Formation Framework The FAA authorizes enforcement of a written provision to arbitrate a dispute. Courts generally apply ordinary state-law principles that govern the formation of contracts to decide whether the parties agreed to arbitrate a certain matter including arbitrability. To determine whether the Plaintiff and Hertz agreed to arbitrate, the Court turns to California's principles governing the formation of contracts. A contract of an exchange of promises. Under California law, the essential elements of a contract are: (1) parties capable of contracting; (2) their consent; (3) a lawful object; and (4) a sufficient cause or consideration. Formation of the Rental Record and Its Arbitration Provision While the Court may not review the merits of the case in deciding a motion to compel arbitration, it may consider the pleadings, documents of uncontested validity, and affidavits submitted by either party. Hertz, as the party seeking to compel arbitration, bears the burden of demonstrating an agreement to arbitrate was formed. The company meets its burden. The Plaintiff attempts to draw a dispositive distinction based on when he admits to receiving the Rental Record. The Plaintiff alleges he received the Rental Record from an agent as he was exiting Hertz's premises in a queue of rental cars as opposed to before he got into his vehicle. The Plaintiff believes this distinction should mean the Rental Record is not part of his agreement with Hertz -- despite that he accepted the document from an agent before taking Hertz's car from its facility. This point is unconvincing. The arrangement the Plaintiff attacks is the one he agreed to by becoming a Gold Member. The Gold Agreement puts the Plaintiff on notice that he would receive at the time of a rental a written document (called a Rental Record' or Rental Agreement') which contains specific terms of that rental and may also contain other information pertaining to Car rentals in the jurisdiction in which the rental commences. Hence, although the Plaintiff was able to proceed directly to the stall where his rental car awaited with the keys inside, he had not yet received the anticipated Rental Record for his Gold Program rental. The Court therefore rejects the Plaintiff's argument that his contractual relationship was complete before he received the Rental Record. Moreover, the circumstances here are distinguishable from other cases where a significant delay in receipt of an arbitration provision indicated the parties did not form an agreement to arbitrate. The Plaintiff had ample reason to believe the Rental Record containing the Arbitration Provision was an offer, and because the Plaintiff accepted the Rental Record in taking the rental car, the Court concludes Hertz meets its burden of proving the existence of an agreement to arbitrate. Delegation of Arbitrability Determination Given that the Plaintiff agreed to the Arbitration Provision, he also agreed to its delegation clause, which provides that all issues are for the arbitrator to decide, including his or her own jurisdiction, and any objections with respect to the existence, scope or validity of this Arbitration Provision. The Court will grant Hertz's motion to compel arbitration and require the parties to submit to the arbitrator whether their dispute is arbitrable. The Court grants Hertz's motion to compel arbitration. The Court terminates as moot Hertz's motion to dismiss the Plaintiff's claims. A full-text copy of the District Court's March 12, 2018 and Order is available at https://tinyurl.com/y7zbgqho from Leagle.com. Moses Oliva, individually and on behalf of all others similarly situated, Plaintiff, represented by Robert J. Gralewski, Jr. -- bgralewski@kmllp.com -- Kirby McInerney LLP. The Hertz Corporation, Defendant, represented by Daniel J. Weiss -- jweiss@jenner.com -- Jenner & Block LLP, pro hac vice, Jessica Ring Amunson -- jamunson@jenner.com -- Jenner & Block LLP, pro hac vice, John F. Ward, Jr. -- jward@jenner.com Jenner & Block LLP, pro hac vice, Kenneth Kiyul Lee -- klee@jenner.com -- Jenner & Block, LLP & Michelle R. Singer -- msinger@jenner.com -- Jenner & Block LLP, pro hac vice. HMS HOST: Oct. 25 Class Certification Hearing in "Garcia" --------------------------------------------------------- The United States District Court for the Northern District of California issued an Order to Continue Class Certification Briefing Schedule in the case captioned JOSHUA GARCIA, individually, and on behalf of other members of the general public similarly situated, and as aggrieved employees pursuant to the Private Attorneys General Act ("PAGA"), Plaintiff, v. HMS HOST, USA, INC., a Delaware Corporation; and DOES 1 through 100, inclusive, Defendants, Case No. 3:17-cv-03069-RS (N.D. Cal.). The parties stipulate to continue the current briefing schedule for class certification. Accordingly, the Class Certification hearing is continued from August 23, 2018 to October 25, 2018 at 1:30 p.m. The Plaintiff's deadline to file his motion for class certification is continued from May 30, 2018 to July 26, 2018. The Defendant's opposition to class certification is continued from July 16, 2018 to September 10, 2018; and the Plaintiff's reply, if any, to the defendant's opposition is continued from August 6, 2018 to October 1, 2018. A full-text copy of the District Court's March 12, 2018 Order is available at https://tinyurl.com/y8nc2ehb from Leagle.com. Joshua Garcia, individually, and on behalf of other members of the general public similarly situated, and as aggrieved employees pursuant to the Private Attorneys General Act (PAGA), Plaintiff, represented by Matthew Roland Bainer -- mbainer@bainerlawfirm.com -- The Bainer Law Firm. HMS Host, USA, Inc, a Delaware Corporation, Defendant, represented by Matthew D. Pearson -- mpearson@bakerlaw.com -- Baker & Hostetler LLP, Margaret Rosenthal -- mrosenthal@bakerlaw.com -- Baker & Hostetler LLP, Nicholas D. Poper -- npoper@bakerlaw.com -- Baker & Hostetler LLP & Shareef Swamy Farag, Baker & Hostetler LLP, 11601 Wilshire Blvd., Suite 1400. Los Angeles, CA 90025-0509. Host International, Inc., incorrectly sued as HMS Host, USA, Inc., Defendant, represented by Shareef Swamy Farag, Baker & Hostetler LLP. HOVNANIAN ENTERPRISES: Settlement Approval Hearing Set for May 3 ---------------------------------------------------------------- Hovnanian Enterprises, Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on April 2, 2018, that the Chancery Court has rescheduled the hearing to approve a Settlement Agreement for May 3, 2018. On December 18, 2017, the parties to the derivative and class action lawsuit filed in the Court of Chancery of the State of Delaware (the "Chancery Court") by Plaintiff Joseph Hong entitled Joseph Hong v. Ara K. Hovnanian, et al, Civil Action No. 12999- CB, finalized a settlement agreement (the "Settlement Agreement") to resolve the matter. The Settlement Agreement remains subject to approval by the Chancery Court. On April 2, 2018, the Chancery Court rescheduled the hearing to approve the Settlement Agreement to Thursday, May 3, 2018 at 10:00 a.m. Hovnanian Enterprises, Inc. designs, constructs, markets, and sells residential homes in the United States. It constructs single-family detached homes, attached townhomes and condominiums, urban infill, and active lifestyle homes. The company is based in Matawan, New Jersey. INDIANA: Court Denies Certification of "Garcia" Class ----------------------------------------------------- The United States District Court for the Northern District of Indiana, Fort Wayne Division, denied Plaintiffs' Motion for Class Certification in the case captioned MARCO GARCIA, JOSHUA MacKIN, and EUGENE LALLOW, on behalf of themselves and all others similarly situated, Plaintiffs, v. DAVID GLADIEUX, Defendant, Cause No. 1:17-CV-109-TLS (N.D. Ind.). Plaintiffs Marco Garcia, Joshua Mackin, and Eugene Lallow bring this action on behalf of themselves and all others similarly situated against Defendant David Gladieux, the Allen County Sheriff. The Plaintiffs allege that the Defendant discriminatorily and substantially burdens their exercise of religion in violation of the First Amendment, the Indiana Constitution, the Religious Land Use and Institutionalized Persons Act, and the Religious Freedom Restoration Act. The law in this Circuit used to be that when a plaintiff received an offer of judgment for full relief requested, the claim became moot. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled in part by Chapman v. First Index, Inc., 796 F.3d 783 (7th Cir. 2015). After Chapman, the premature filing of a motion for class certification is no longer necessary to prevent buy-off because a defendant's offer of compensation does not moot the litigation or otherwise end the Article III case or controversy. Additionally, the parties are still in the process of discovery, and no party has indicated that the certification issue is ripe for adjudication. Accordingly, the Court denies the Motion to Certify Class. A full-text copy of the District Court's March 12, 2018 Opinion and Order is available at https://tinyurl.com/y83hx2xp from Leagle.com. Marco Garcia, Individually and on behalf of all others similarly situated, Joshua Mackin, Individually and on behalf of all others similarly situated & Eugene Lallow, Individually and on behalf of all others similarly situated, Plaintiffs, represented by Christopher C. Myers -- cmyers@myers-law.com -- Christopher C. Myers & Associates & David W. Frank -- dfrank@myers-law.com -- Christopher C. Myers & Associates. David Gladieux, Defendant, represented by J. Spencer Feighner -- jsf@hallercolvin.com -- Haller & Colvin PC. INDIANA: Court Denies Class Certification in "Hale" --------------------------------------------------- The United States District Court for the Northern District of Indiana, Fort Wayne Division, denied Plaintiffs' Motion for Class Certification in the case captioned THOMAS HALE, and JUSTIN WALLS, for themselves and on behalf of themselves and other similarly situated persons, Plaintiffs, v. TERRY STOFFEL, in his official capacity, Defendant, Cause No. 1:17-CV-108-TLS (N.D. Ind.). The Plaintiffs, on behalf of themselves and others similarly situated, bring this class action against Defendant Terry Stoffel in his official capacity as the Huntington County Sheriff. The Plaintiffs assert that they have been denied access to the courts in violation of their Fourteenth Amendment right to due process and in violation of Section 12 of Article 1 of the Indiana State Constitution. The Plaintiffs seek to certify a class of individuals defined as the following: All indigent individuals incarcerated in the Huntington County Jail who seek to bring non-frivolous civil rights or habeas corpus claims, are not represented by counsel for those claims, and are prevented from bringing those claims in court or have had their claims dismissed due to lack of access to a law library, legal research materials, or professional legal assistance. The Plaintiffs' proposed class identifies indigent inmates with non-frivolous claims that are prevented from bringing those claims in court or have had their claims dismissed due to lack of access to a law library, legal research materials, or professional legal assistance. This would require the Court to make a determination regarding why each inmate failed to bring his non-frivolous claim or why his claim was dismissed, which would require an examination not only of the merits of the potential class member's claims, but also how the presentation of the merits of those claims would have been affected had the class member had greater access to a law library, legal research materials, or professional legal assistance. In short, the Court must delve both into the merits of each individual's civil rights or habeas corpus claims and into each individual's claim against the Defendant prior to acceptance into the class. Courts have repeatedly held that this sort of individualized determination requires denial of a motion to certify a class. Accordingly, the Court finds that parsing out whether each proposed class member has a non-frivolous civil rights or habeas corpus claim and whether each proposed class member was prevented from pursuing his claim or had his claim dismissed as a result of the Defendant's policies and actions would require significant individual analysis. A full-text copy of the District Court's March 12, 2018 Opinion and Order is available at https://tinyurl.com/y95u8kuh from Leagle.com. Thomas Hale, individually and on behalf of all others similarly situated & Justin Walls, individually and on behalf of all others similarly situated, Plaintiffs, represented by David W. Frank -- dfrank@myers-law.com -- Christopher C. Myers & Associates. Terry Stoffel, in his official capacity, Defendant, represented by Theodore T. Storer -- tstorer@rlwlawfirm.com -- Rothberg Logan & Warsco LLP, Andrew L. Palmison -- apalmison@rlwlawfirm.com -- Rothberg Logan & Warsco LLP & Lauren R. Deitrich -- ldeitrich@rlwlawfirm.com -- Rothberg Logan & Warsco LLP. INFORMATION RESOURCES: Court Issues Order on ESI Production ----------------------------------------------------------- The United States District Court for the Northern District of California, San Francisco Division, approved a stipulation in the case captioned IRAM BAKHTIAR, individually and on behalf of all others similarly situated, Plaintiff, v. INFORMATION RESOURCES, INC, and DOES 1 through 50, inclusive, Defendants, Case No. 3:17- cv-04559-JST (N.D. Cal.) holding that the production of privileged or work-product protected documents, electronically stored information (ESI), or information, whether inadvertent or otherwise, is not a waiver of the privilege or protection from discovery in this case or in any other federal or state proceeding. A full-text copy of the District Court's March 12, 2018 Order is available at https://tinyurl.com/y7dyrolq from Leagle.com. Iram Bakhtiar, individually, and on behalf of all others similarly situated, Plaintiff, represented by Bryan Jeffrey Schwartz -- bryan@bryanschwartzlaw.com -- Bryan Schwartz Law & Logan McMillan Starr -- logan@bryanschwartzlaw.com -- Bryan Schwartz Law. Information Resources, Inc., Defendant, represented by Robert Irving Lockwood -- Robert.Lockwood@jacksonlewis.com -- Jackson Lewis P.C., Janelle Jad Sahouria -- janelle.sahouria@jacksonlewis.com -- Jackson Lewis P.C. & Mitchell F. Boomer -- boomerm@jacksonlewis.com -- Jackson Lewis P.C.. INTERSTATE HOTELS: Court Certifies Class in "Richardson" -------------------------------------------------------- The United States District Court for the Northern District of California granted in part and denied in part Plaintiffs' Motion for Class Certification in the case captioned DINA RAE RICHARDSON, individually and on behalf of all others similarly situated, Plaintiff, v. INTERSTATE HOTELS & RESORTS, INC., and INTERSTATE MANAGEMENT COMPANY, LLC, Defendants, No. C 16-06772 WHA. (N.D. Cal.). Richardson asserts eight claims for relief against Interstate for (1) failing to provide meal periods, (2) failing to authorize and permit rest periods, (3) failing to pay minimum wages, (4) failing to pay overtime wages, (5) failing to pay wages due to discharged and quitting employees, (6) failing to furnish accurate itemized wage statements, (7) failing to indemnify employees for necessary expenditures incurred in discharging their duties, and (8) unfair and unlawful business practices in violation of California laws. Richardson seeks to certify the following five classes pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(3): 1. Rest Period Class: All persons employed by Interstate as room attendants at the hotel during the proposed class period who worked at least one shift over 3.5 hours. 2. Meal Period Class: All persons employed by Interstate as non-exempt employees at the hotel during the proposed class period who worked at least one shift over five hours. 3. Second Meal Period Class: All persons employed by Interstate as non-exempt employees at the hotel during the proposed class period who worked at least one shift over ten hours. 4. Off-the-Clock Class: All persons employed by Interstate as room attendants at the hotel during the proposed class period who worked while clocked out. 5. Rounding Class: All persons employed by Interstate as non- exempt employees at the hotel during the proposed class period who had their time punches rounded. Numerosity Numerosity is satisfied if the class is so numerous that joinder of all members is impracticable. There is no dispute that the proposed classes, each of which encompasses approximately sixty to 350 members, satisfy this requirement. Commonality Commonality is satisfied if there are questions of law or fact common to the class. Rest Period Class Employers must authorize and permit employees to take rest periods at the rate of ten minutes rest time per four hours worked or major fraction thereof, except for employees whose total daily work time is less than 3.5 hours. Interstate disputes that room attendants were disciplined for failing to clean all assigned rooms and argues that Richardson has failed to supply adequate evidence of a uniform policy or practice that denied rest periods. At least on this record, these arguments go to the merits of Richardson's claims, not to their commonality. In a similar vein, Interstate claims highly individualized inquiries into the actual work schedules of room attendants will be necessary to determine whether or not Interstate actually routinely denied room attendants their rest periods. This is a red herring. True, answering the question of whether or not Interstate's policies and practices had the practical effect of pressuring room attendants to skip breaks may require analysis of granular data points, but the question itself remains focused on policies and practices common to the proposed class, not on individual wage and hour violations. Meal Period and Second Meal Period Classes Employees who work for a period of more than five hours are entitled to a meal period of at least thirty minutes. If a work period of not more than six hours will complete the day's work, however, the meal period may be waived by mutual consent of the employer and employee. Employers who fail to provide the required meal periods must pay one additional hour of regular compensation for each workday that the meal period is not provided. Richardson falls well short of articulating any policy or practice by which Interstate denied the class members of legally- required meal periods. Her thesis boils down to the contention that employees were often unable to take meal periods when the hotel was busy because, in the business of hospitality, there was a strong focus on customer service that ostensibly created tension with employees' ability to stop work for meals. In other words, under Richardson's theory, any employer in the hospitality industry with high standards for excellent customer service is liable for denying meal periods because the demands of customer service will pressure employees to skip meals. This theory proves far too much indeed, would capture virtually every employer in any customer-service industry and defies common sense. While the class certification inquiry generally does not involve probing into the merits of the claims, it would be absurd to certify a class on such a facially untenable theory of liability. Off-the-Clock Class Employers must compensate employees for time worked and overtime. Under California law, a plaintiff may establish liability for an off-the-clock claim by proving that (1) they performed work for which they did not receive compensation, and (2) the employer knew or should have known as much, but (3) the employer stood idly by. Richardson's theory of liability for the off-the-clock class piggybacks off her theories for the rest period and rounding classes. As a result of the same unlawful policies and practices underlying those claims, she contends, Interstate also did not fully compensate employees for hours worked, including overtime. The off-the-clock class satisfies the commonality requirement for the same reasons that the rest period and rounding classes do. Rounding Class Employers can engage in employee time-rounding as long as the rounding policy is neutral, both facially and as applied, such that employees are fully compensated over a period of time. Richardson's theory of liability for the rounding class is essentially that, despite being facially neutral, Interstate's rounding policy actually had the cumulative effect of under- compensating employees over time. Whether or not the record supports Richardson's theory is also a question common to the class. According to Richardson and her expert witness, Richard Drogin, the alleged effect can be gleaned by sampling data from Interstate's time and payroll records Interstate criticizes Drogin's analysis and insists that its rounding policy is sufficiently neutral in application to avoid liability, but these arguments go to the merits of Richardson's claims, not to their commonality. Typicality Typicality is satisfied if the claims or defenses of the representative parties are typical of the claims or defenses of the class. This order concludes Richardson does not have claims typical of the meal period classes. As to the rest period, off-the-clock, and rounding classes, however, Richardson's claims are sufficiently coextensive with those of absent class members to satisfy typicality. Interstate's main critique on typicality is that Richardson suffered from knee pain, which further slowed her ability to finish cleaning assigned rooms and take rest periods on time. As Richardson argues, however, the point is not whether or not other factors specific to her exacerbated the injury allegedly caused by Interstate's policies and practices. Rather, the point is whether or not those policies and practices indeed functioned as Richardson alleges, and there is no dispute that Richardson, like absent class members, would have been subject to the effects of said policies and practices. Adequate Representation A proposed class representative is adequate if they will fairly and adequately protect the interests of the class. Our court of appeals has explained that a representative meets this standard if they (1) have no conflicts of interest with other class members and (2) will prosecute the action vigorously on behalf of the class. The parties do not dispute that Richardson and her counsel meet this requirement. As explained, however, this order concludes Richardson is not an adequate representative for any meal period class. RULE 23(b) A class action may be maintained if Rule 23(a) is satisfied and if the court finds 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. As to the rest period, off-the-clock, and rounding classes, this order finds that the common questions described above predominate over any questions affecting only individual members. The record does not show and Interstate does not contend that absent class members would be interested in individually controlling the prosecution of these claims, that any other litigation concerning this controversy has already begun, or that concentrating litigation of these claims in this forum would be undesirable. Nor is there any reason to believe these claims would be unduly difficult to manage as a class action. To the contrary, the class claims would involve specific groups of employees from just one hotel in this district and would facilitate the efficient prosecution of their wage and hour claims. Accordingly, Plaintiff's motion for class certification is granted in part and denied in part. The following classes are certified: Rest Period Class: All persons employed by Interstate as room attendants at the Sheraton Fisherman's Wharf in San Francisco, California, at any time from September 23, 2012, through November 29, 2016, who worked at least one shift over 3.5 hours. Off-the-Clock Class: All persons employed by Interstate as room attendants at the Sheraton Fisherman's Wharf in San Francisco, California, at any time from September 23, 2012, through November 29, 2016, who worked while clocked out. Rounding Class: All persons employed by Interstate as non- exempt employees at the Sheraton Fisherman's Wharf in San Francisco, California, at any time from September 23, 2012, through November 29, 2016, who had their time punches rounded. A full-text copy of the District Court's March 12, 2018 Order is available at https://tinyurl.com/yad57yul from Leagle.com. Dina Rae Richardson, Plaintiff, represented by Matthew John Matern, Matern Law Group, PC, Deanna S. Leifer, Matern Law Group, PC, Kayvon Sabourian, Matern Law Group, PC & Launa Nicole Everman Adolph, Matern Law Group, PC. 1230 Rosecrans Ave., Ste. 200. Manhattan Beach, CA 90266 Interstate Hotels & Resorts, Inc., a Delaware corporation & Interstate Management Company, LLC, a Delaware corporation, Defendants, represented by Rebecca Licht Jensen -- rjensen@morganlewis.com -- Morgan, Lewis & Bockius LLP, Hien Nguyen -- hnguyen@morganlewis.com -- Morgan Lewis & Bockius LLP, Jason S. Mills -- jmills@morganlewis.com -- Morgan, Lewis & Bockius LLP & Robin Marie Lagorio -- robin.lagorio@morganlewis.com -- Morgan, Lewis and Bockius LLP. IQ FORMULATIONS: Court Tosses Class Action Over DMBA Ingredient --------------------------------------------------------------- Hank Schultz, writing for NUTRAingredients-usa.com, reports that a Florida court has dismissed a class action lawsuit predicated on the presence of an illegal ingredient -- DMBA -- in weight loss products. The court didn't buy the argument that the plaintiffs had been harmed by not knowing the ingredient's impaired regulatory status at the time of purchase. The lawsuit was filed on behalf of two Florida defendants representing a class of plaintiffs who bought produces from the defendants two companies called IQ Formulations LLC and Europa Sports Products Inc. [GN] JPMORGAN CHASE: Loses Bid to Dismiss "Nypl" Antitrust Suit ---------------------------------------------------------- The United States District Court for the Southern District of New York denied Defendant's Motion to Dismiss the Third Amended Complaint in the case captioned JOHN NYPL, et al., Plaintiffs, v. JPMORGAN CHASE & CO., et al., Defendants, No. 15 Civ. 9300 (LGS) (S.D.N.Y.). The Defendants move to dismiss the TAC in its entirety under Federal Rule of Civil Procedure 12(b)(6), or, alternatively, to dismiss the Plaintiffs' claims extending past January 2013 and certify this Order for appeal under 28 U.S.C. Section 1292(b). The Plaintiffs commenced this putative class action under the Sherman Antitrust Act (Sherman Act), alleging that they paid inflated foreign currency exchange rates as a result of a conspiracy among the Defendants to fix prices in the foreign exchange (FX) or foreign currency market. Defendants essentially renew and further elaborate on an argument they raised opposing leave to amend that the Plaintiffs cannot adequately allege antitrust injury under In re Aluminum Warehousing Antitrust Litig. (Aluminum III), 833 F.3d 151 (2d Cir. 2016). Antitrust Injury The TAC sufficiently pleads antitrust injury because it alleges facts supporting a reasonable inference that the foreign currency consumer retail market in which the Plaintiffs participated was directly restrained by the Defendants' alleged manipulation of FX benchmark rates. To suffer antitrust injury, the putative plaintiff must be a participant in the very market that is directly restrained. The Second Circuit held in Gelboim v. Bank of Am. Corp. that plaintiffs sufficiently alleged antitrust injury where they claimed to have purchased financial instruments with rates of return pegged to LIBOR from defendant banks responsible for setting the benchmark rate. 823 F.3d 759, 765 (2d Cir. 2016). The Second Circuit held that the plaintiffs had suffered antitrust injury when they received a lower rate of return on account of defendants' collusion to depress LIBOR. Even if none of [plaintiffs'] financial instruments paid interest at LIBOR, Socony-Vacuum allows an antitrust claim based on the influence that a conspiracy exerts on the starting point for prices. That other variables besides LIBOR affected the plaintiffs' return did not undermine their assertion of antitrust injury. The plaintiffs included bondholders, as well as derivatives holders and others; but the Second Circuit's analysis and conclusion regarding antitrust injury were the same without regard to the type of financial instrument purchased, each by definition purchased in a different market. Following Gelboim, the district courts have similarly found antitrust injury in other cases alleging manipulation of financial or commodities benchmarks. Courts in this Circuit consider manipulation of a price benchmark to constitute restraint of the market which that benchmark guides. A full-text copy of the District Court's March 12, 2018 Opinion and Order is available at https://tinyurl.com/yaw43zd7 from Leagle.com. Lisa McCarthy, an individual, Mad Travel, Inc., also known as, Valarie Jolly, an individual, Go Everywhere, Inc., a corporation & William Rubinsohn, on behalf of themselves and those similarly situated, Plaintiffs, represented by Lingel Hart Winters -- sawmill2@aol.com -- Lingel H. Winters Prof. Corp., pro hac vice, Joseph M. Alioto, Sr. -- jmalioto@aliotolaw.com -- Alioto Law Firm & Theresa Driscoll Moore -- tmoore@aliotolaw.com -- Alioto Law Firm JP Morgan Chase & Co., Defendant, represented by Harry Peter Koulos -- harry.koulos@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP, Peter Edward Greene -- peter.green@skaden.com -- Skadden, Arps, Slate, Meagher & Flom Llp, Tansy Woan -- tansy.woan@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP, Boris Bershteyn -- boris.bershteyn@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP, pro hac vice, Douglas Allen Smith -- douglas.smith@skadden.com -- Skadden, Arps, Slate, Meagher and Flom LLP & John Coghlan -- john.coghlan@skadden.com - - Skadden, Arps, Slate, Meagher & Flom LLP. J.P. Morgan Bank, N.A., Defendant, represented by Boris Bershteyn, Skadden, Arps, Slate, Meagher & Flom LLP, pro hac vice & Douglas Allen Smith, Skadden, Arps, Slate, Meagher and Flom LLP. LAHORI KEBAB: "Vasquez" Suit Seeks OT & Earned Wages under FLSA --------------------------------------------------------------- ARNOLDO LOPEZ VASQUEZ, DIANA LETICIA LINAREZ RAMIREZ, ELIAS LOPEZ VASQUEZ, ADELA SOFIA MURILLO, individually and on behalf of all other similarly situated individuals, the Plaintiff, v. LAHORI KEBAB & GRILL CORP., DISTINCTIVE FLAVORS, INC., MASALA WOK. INC., THE EAST AND WEST PUNJAB INC., MUZAMIL ZIA, SOHAIL DOE, SOURAV JHA, the Defendant, Case No. 2:18-cv-02117-JS-SIL (E.D.N.Y. Fla., April 9, 2018), seeks to recover unpaid overtime compensation and earned wages under the Fair Labor Standards Act and the New York Labor Law. The claims are brought by Plaintiffs on behalf of themselves and other similarly situated persons, i.e., cooks, dishwashers, porters, cleaners, wait staff and other laborers, who are current and former employees of Defendants since the date three years prior to the filing of this Complaint who elect to opt-in to this action. According to the complaint, the Defendants failed to compensate Plaintiff and members of the FLSA Collective at minimum wage for all hours worked. The exact accounting of such discrepancy can only be determined upon completion of discovery. The Defendants failed to compensate Plaintiff and members of the FLSA Collective at one and one-half times the employee's wage for all hours worked in excess of 40 during any workweek. The exact accounting of such discrepancy can only be determined upon completion of discovery.[BN] The Plaintiffs are represented by: Gregory A. Goodman, Esq. THE LAW OFFICE OF GREGORY A. GOODMAN P.C. 380 North Broadway, Suite 203 Jericho, New York 11753 Telephone: (516) 597 5840 Facsimile: (866) 415 1019 E-mail: ggoodman@gganylaw.com LIMBACH HOLDINGS: Appeal Made in "Garfield" Suit Dismissed ---------------------------------------------------------- Limbach Holdings, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on April 2, 2018, for the fiscal year ended December 31, 2017, that the appeal made by Robert Garfield on the Circuit Court of Du Page County's decision in granting the company's motion to dismiss, was dismissed with prejudice. On May 10, 2016, Robert Garfield, on behalf of himself and all other similarly situated public holders of Company's common stock, filed a Verified Class Action and Derivative Complaint (the "Complaint") against the Company, Gordon G. Pratt, Hassan R. Baqar, Larry G. Swets, Jr., John T. Fitzgerald, Joshua Horowitz, Leo Christopher Saenger III, and Thomas D. Sargent (the "Defendants") in the Circuit Court of Du Page County, Illinois. In his Complaint, Mr. Garfield alleged that (1) the Defendants' efforts to consummate the Business Combination were "ultra vires" acts in violation of the Company's amended and restated certificate of incorporation (the "Charter"), (2) the Defendants breached their fiduciary duties to the stockholders in negotiating and approving the merger, and (3) the Defendants filed a proxy statement that was incomplete and misleading. Limbach Holdings said in its Form 10-Q Report for the quarterly period ended September 30, 2017, that the Company filed a motion to dismiss on November 14, 2016 and, on August 3, 2017, the Circuit Court of Du Page County, Illinois, granted the Company's motion to dismiss, with prejudice. On September 1, 2017, Garfield filed a Notice of Appeal of the trial court's ruling. Briefing has not yet begun and the parties engaged in settlement negotiations. According to the Company's Form 10-K Report, as of December 31, 2017, the appeal was dismissed with prejudice. Limbach Holdings, Inc. (the "Company" or "Successor"), formerly known as 1347 Capital Corp. ("1347 Capital"), is a Delaware corporation headquartered in Pittsburgh, Pennsylvania. The Company is a commercial specialty contractor in the areas of heating, ventilation, air-conditioning ("HVAC"), plumbing, electrical and building controls for the design and construction of new and renovated buildings, maintenance services, energy retrofits and equipment upgrades. LONGFIN CORP: Wei Sues over Plunge in Stock Price ------------------------------------------------- CHEN WEI, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, v. LONGFIN CORP., VENKATA S. MEENAVALLI, and VIVEK KUMAR RATAKONDA, the Defendants, Case No. 1:18-cv-03462 (S.D.N.Y., April 19, 2018), seeks to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. Longfin purports to be an independent finance and technology company that offers commodity trading, alternate risk transfer, and carry trade financing services. It also provides hedging and risk management solutions to importers, exporters, and small medium business enterprises. Longfin is headquartered in New York, New York, and its securities traded on the NASDAQ Capital Market under the ticker symbol "LFIN." Trading on the Company's stock was halted by the SEC on April 6, 2018. On December 15, 2017, Longfin issued a press release entitled "Longfin Corp acquires Blockchain empowered Global Micro-lending solutions provider Ziddu.com" announcing the acquisition of Ziddu.com. On this news, the price of Longfin stock increased from $5.39 per share on December 14, 2017, to close at $72.38 per share on December 18, 2017, an increase of more than 1,200% in just two trading days. Throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, the Defendants made false and/or misleading statements and/or failed to disclose that: (i) Longfin had misrepresented material facts about its business and operations, including the extent of its capabilities at its New York offices and the identity and qualifications of key employees; (ii) Longfin had material weaknesses in its operations and internal controls over financial reporting; (iii) Longfin was ineligible for inclusion in the Russell Indices; (iv) Longfin's lack of profitability had imperiled its ability to continue as a going concern; and (v) as a result of the foregoing, Longfin's financial statements and Defendants' statements about Longfin's business, operations, and prospects, were materially false and misleading at all relevant times. On March 26, 2018, Citron Research posted a tweet on Twitter.com accusing the Company of inaccuracies in its financial reporting and fraud. The same day, FTSE Russell issued a statement announcing that Longfin would be removed from its global indices after market close on March 28, 2018, approximately 12 days after being added. On this news, Longfin's share price fell $11.82, or 16.62%, to close at $59.28 on March 26, 2018. The stock continued to decline over the next trading sessions, closing on April 2, 2018 at $14.31 per share, for a total decline of $61.21 per share since the stock's close on March 23, 2018. Longfin is a publicly traded American company involved in blockchain technology. It was established in December 2017 and the same month made headlines when its stock price increased more than 200%.[BN] Attorneys for Plaintiff: Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. Patrick V. Dahlstrom, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, New York 10016 Telephone: (212) 661 1100 Facsimile: (212) 661 8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com pdahlstrom@pomlaw.com MAJOR LEAGUE: Minors Baseball Players to Lose Min Wage Protection ----------------------------------------------------------------- Ronald Blum, writing for Courthouse News Service, reports that minor league baseball players who make as little as $5,500 a season were stripped of the protection of federal minimum wage laws under a provision in government spending legislation signed. The "Save America's Pastime Act" is included on page 1,967 of the $1.3 trillion spending bill and appears to pre-empt a lawsuit filed four years ago in U.S. District Court in San Francisco by three players alleging Major League Baseball and its teams violate the Fair Labor Standards Act and state minimum wage and overtime requirements for a work week they estimated at 50-to-60 hours. The provision in the legislation exempts "any employee employed to play baseball who is compensated pursuant to a contract that provides for a weekly salary for services performed during the league's championship season (but not spring training or the offseason) at a rate that is not less than a weekly salary equal to the minimum wage . . . for a workweek of 40 hours, irrespective of the number of hours the employee devotes to baseball related activities." The House approved the spending bill Thursday, the Senate followed early Friday and President Donald Trump signed the bill in the afternoon. "Instead of going through the regular committee process where it has a hearing, all of this was done in secret and a in a very rushed manner," Garrett Broshuis, Esq. -- gbroshuis@koreintillery.com -- the lawyer for the players, said Thursday. "It's emblematic of how things are getting done in Washington these days, where the people with a lot of money are able to flex their political muscle and make a lot of contributions and get things done in secret that benefit only them." Major League Baseball spent $1.32 million on lobbying expenses in both 2016 and 2017, up from $330,000 in 2015, according to the nonpartisan Center for Responsive Politics. MLB paid $400,000 each of those years to an outside firm, the Duberstein Group, which reported lobbying the House and Senate on the issue, as did MLB's in-house lobbyist. "We aren't billionaire business owners and billionaire team owners," said Broshius, a minor league pitcher from 2004-09 who later became a lawyer. The language in the spending bill is nearly identical to a stand- alone bill introduced in 2016 by Republican Rep. Brett Guthrie of Kentucky and Democratic Rep. Cheri Bustos of Illinois. At the time, the pair said the exemption from minimum wage laws was necessary because without it, minor leagues would have to make cuts that could imperil teams and hurt the economy in cities where they play. Only major league players are unionized, and their collective bargaining agreement sets minimum salaries for players on 40-man rosters: $545,000 for those in the major leagues this season, $88,900 for 40-man roster players in the minors signing at least their second big league contract and $44,500 for 40-man roster players in the minors signing their first big league contract. While early selections in the annual draft of players residing in the United States, Canada and Puerto Rico, and top amateurs from the rest of the world can command signing bonuses as high as about $8 million under the current rules, monthly minimum salaries for most players on minor league rosters are low: $1,100 at rookie ball and Class A, $1,500 at Double-A and $2,150 at Triple-A. Players also receive a $25 per diem on the road and dinner at the ballpark following games. Teams have spent just under $289 million on signing bonuses for last year's amateur draft picks and about $150 million on international amateurs in the signing period that started July 2. MLB calculates the average monthly salaries last year at $10,000 in Triple-A, $3,000 in Double-A, $1,600 at upper-level Class A and $1,300 at lower-level A-ball. "We stand shoulder to shoulder with the minor league players and the labor community in opposing this legislation," Tony Clark, head of the Major League Baseball Players Association, said in an email. The lawsuit has been certified as a class action for minor leaguers who played in a California league, instructional league or extended spring training since February 2011, but MLB has asked the 9th U.S. Circuit Court of Appeals to overturn that decision, which has delayed the case from going to trial. MLB had no comment on the legislation, spokesman Michael Teevan said. The National Association of Professional Baseball Leagues, which governs the minors, deferred to MLB because players are employees of the major league teams, spokesman Jeff Lantz said. David Popp, a spokesman for Senate Majority Leader Mitch McConnell, said in an email: "If the leader issues a statement on this I'll be sure to forward." Doug Andres, a spokesman for House Speaker Paul Ryan, did not respond to an email seeking comment. AP Sports Writer Ben Nuckols contributed to this report. MDL 2804: Buckhannon Has Yet to Decide on Joining Opioid Suit ------------------------------------------------------------- Katie Kuba, writing for The Record Delta, reports that should Buckhannon City Council vote to join a class action lawsuit that's being brought against pharmaceutical manufacturers for dumping massive amounts of opioids into the Mountain State? That was one of the key questions council pondered during its April 5, but made no definitive decision on the matter, opting to wait until its April 19 meeting when mayor David McCauley and city attorney Tom O'Neill hope to have more information to present. The city recently received a letter from Charles R. "Rusty" Webb of the Charleston-based law firm, Webb Law Centre PLLC, offering to represent the city in a class action suit against opioid manufactures and distributors. According to his April 4 letter to the city, Mr. Webb currently represents 28 cities, municipalities and counties in similar suits against drug manufacturers for "excessive distribution of pills." Mr. O'Neill asked council how it wished to proceed, saying the first decision the city needs to make is who will represent it, should Buckhannon decide to pursue litigation against opioid manufacturers. "It's way outside my area of competence, so I could not represent the city beyond outside counsel management," Mr. O'Neill said. "The question that council should consider is whether or not it makes sense to join that group [that Webb Law Centre is representing] or seek its own counsel as part of litigation." Mr. McCauley asked Mr. O'Neill if he was ready to make a recommendation to council about how it should proceed. Mr. O'Neill said he thought the city should approach Mr. Webb to discuss the terms of his offer of representation. "The purpose of this is to compensate local governments for the cost of law enforcement, the cost of Narcan (an opioid-antagonist capable of reversing an overdose), the cost of firefighting, the cost of societal damage and social services," Mr. O'Neill said. "When we discuss the drug epidemic in our state and country and all of the ills that it's responsible for, each of those ills has a dollar figure attached to it as far as local government is concerned, so the purpose of this is to seek reimbursement for wrongful acts by these corporate actors in dumping opioid medication recklessly -- or frankly, probably intentionally -- into our communities far beyond the community's rational need." Councilman CJ Rylands asked Mr. O'Neill to outline any potential risks or costs to the city. Mr. O'Neill replied that typically such class action lawsuits have "little to no risk to the client." Compensation is usually paid on a contingency basis, O'Neill added, meaning the city will only have to pay the law firm representing it if it is awarded a settlement. "There will be a major settlement on the order of the tobacco settlement 20 years ago, and the question is, 'Does the city of Buckhannon want to be named a party in the lawsuit that is going to precipitate that settlement?'" Mr. O'Neill said. Councilman David Thomas said it's important to consider all the parties benefiting from the drug epidemic, including the manufacturers of the life-saving drug, Narcan or Naloxone. "It's a multi-faceted problem that we have in our country today, and I don't really think we're looking at it that way oftentimes," Mr. Thomas remarked. "I think there's another side of this whole equation that ought to have some discussion in our society. That's just my opinion." Mr. O'Neill ultimately recommended council authorize himself and Mr. McCauley to enter into discussions with Mr. Webb and/or other attorneys to hash out a representation agreement, which could be presented at council's next meeting on April 19. Council members agreed but did not officially vote on the matter. Mr. McCauley noted that while the West Virginia Municipal League has recommended cities and towns join a class-action lawsuit against opioid manufacturers, the organization did not specify or endorse one particular law firm over another. According to Webb's letter, his firm is representing Charleston, Huntington and Parkersburg. In February, the Upshur County Commission entered into a contract with the Wheeling-based Fitzsimmons Law Firm PLLC, which will represent it in a suit against drug manufacturers. [GN] MDL 2826: "Agans" Suit over Data Security Breach Consolidated ------------------------------------------------------------- The class action lawsuit titled Steven Agans, Audrey Diaz Sanchez, and Charity Bustamante, individually and on behalf of all others similarly situated, the Plaintiff, v. Uber Technologies Inc., a Delaware Corporation, the Defendant, Case No. 3:17-cv-06759, was transferred from the U.S. District Court for the Northern District of California, to the U.S. District Court for the Central District of California (Western Division - Los Angeles) on April 9, 2018. The District Court Clerk assigned Case No. 2:18-cv-02970-PSG-GJS to the proceeding. The Agans case is being consolidated with MDL 2826 in re: Uber Technologies, Inc., Data Security Breach Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on April 4, 2018. These putative class actions share complex factual questions arising from Uber's announcement on November 21, 2017, that a data security breach of its network occurred in late 2016 in which the personal information of 57 million Uber users was downloaded by unauthorized individuals outside the company. Common factual questions are presented with respect to Uber's practices in safeguarding its users' personal information, the investigation into the breach, the alleged delay in disclosing the breach, and the nature of the alleged damages. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings, including with respect to class certification; and conserve the resources of the parties, their counsel, and the judiciary. In its April 4, 2018 Order, the MDL Panel found that the Central District of California is an appropriate transferee district for this litigation. Three actions are pending in this district. The Uber defendants support this district if centralization is granted over their objection, and plaintiffs in two Northern District of Illinois actions support it as their second choice. California has a significant connection to this litigation, as Uber Technologies, Inc., has its headquarters in this state, where much of the common evidence, including witnesses, will be located. Judge Philip S. Gutierrez, to whom we assign this litigation, is an experienced transferee judge, and we are confident he will steer this litigation on a prudent course. The lead case is 2:18- ml-02826-PSG-GJS. Uber Technologies is a peer-to-peer ridesharing, food delivery, and transportation network company headquartered in San Francisco, California, with operations in 633 cities worldwide.[BN] The Plaintiffs are represented by: Tina Wolfson, Esq. Theodore Walter Maya, Esq. AHDOOT AND WOLFSON PC 10728 Lindbrook Drive Los Angeles, CA 90024 Telephone: (310) 474 9111 Facsimile: (310) 474 8585 E-mail: twolfson@ahdootwolfson.com - and - Daniel Kent Bryson, Esq. WHITFIELD BRYSON & MASON LLP 900 West Morgan Street Raleigh, NC 27603 Telephone: (919) 600 5000 Facsimile: (919) 600 5035 E-mail: dan@wbmllp.com - and - Daniel Stewart Robinson, Esq. Wesley Kaikaina Polischuk, Esq. ROBINSON CALCAGNIE, INC. 19 Corporate Plaza Drive Newport, CA 92660 Telephone: (949) 720 1288 Facsimile: (949) 720 1292 E-mail: drobinson@robinsonfirm.com tmaya@ahdootwolfson.com wpolischuk@robinsonfirm.com Attorneys for Defendant: Allison M Holt, Esq. E. Desmond Hogan, Esq. Michelle A Kisloff, Esq. Vassiliki Iliadis, Esq. HOGAN LOVELLS LLP Columbia Square 555 Thirteenth Street NW Washington, DC 20004 Telephone: (202) 637 5872 Facsimile: (202) 637 5910 E-mail: allison.holt@hoganlovells.com desmond.hogan@hoganlovells.com michelle.kisloff@hoganlovells.com vassi.iliadis@hoganlovells.com MDL 2827: "Mazzeo" Suit over iPhone Performance Consolidated ------------------------------------------------------------ The class action lawsuit titled ELIEZER RABINOVITS and VICTOR MAZZEO, on behalf of themselves and all others similarly situated, the Plaintiffs, the Apple Inc., the Defendant, Case No. 1:17-cv-10032, was transferred from the U.S. District Court for the Southern District of New York, to the U.S. District Court for the Northern District of California (San Jose) on April 19, 2018. The Northern District of California Court Clerk assigned Case No. 5:18-cv-02326-EJD to the proceeding. The Mazzeo case is being consolidated with MDL 2827 in re: Apple Inc. Device Performance Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on April 4, 2018. All responding parties support centralization, but there is some disagreement as to the transferee district. Plaintiffs in 30 actions and potential tag-along actions (as well as plaintiff in one action in the alternative) support centralization in the Northern District of California. The Plaintiff in a Southern District of Florida action proposes centralization in that district, while common defendant Apple Inc. supports centralization in the Northern District of California or, alternatively, the Central District of California. In its April 4, 2018 Order, the MDL Panel found that these actions share factual questions arising from allegations that Apple included code in updates to its mobile operating system (iOS) that significantly reduced the performance of older-model iPhones. The Plaintiffs also allege that Apple misrepresented the nature of the iOS updates and failed to adequately disclose to iPhone owners the impact the iOS updates would have on the performance of their iPhones. Discovery regarding the engineering of the iPhone and the iOS updates likely will be technical and complex. Plaintiffs assert similar causes of action for false advertising, alleged unfair business practices, trespass to chattels, breach of contract, and unjust enrichment. Moreover, plaintiffs bring these actions on behalf of overlapping putative classes of iPhone owners. Centralization thus will eliminate duplicative discovery; prevent inconsistent pretrial rulings, including with respect to class certification; and conserve the resources of the parties, their counsel, and the judiciary. The case is assigned to the Hon. Judge Edward J. Davila. The lead case is 2:15-md-02661-MHW-EPD. Apple Inc. is an American multinational technology company headquartered in Cupertino, California, that designs, develops, and sells consumer electronics, computer software, and online services.[BN] The Plaintiffs are represented by: Peter James Harrington, Esq. Stephanie M. Beige, Esq. Stanley D. Bernstein, Esq. BERNSTEIN LIEBHARD, LLP 10 East 40th Street New York, NY 10016 Telephone: (212) 779 1414 Facsimile: (212) 779 3218 E-mail: pharrington@bernlieb.com ottensoser@bernlieb.com Attorneys for Apple Inc.: Jillian Nicole London, Esq. GIBSON, DUNN & CRUTCHER LLP (LOS ANGELES) 333 S. Grand Avenue, Suite 4600 Los Angeles, CA 90071 E-mail: jlondon@gibsondunn.com MDL 2827: "Mailyan" Suit over iPhone Performance Consolidated ------------------------------------------------------------- The class action lawsuit titled Violetta Mailyan, an individual, on behalf of herself and all others similarly situated, the Plaintiff, v. Apple Inc., a California corporation, the Defendant, Case No. 2:17-cv-09192, was transferred from the U.S. District Court for the Central District of California, to the U.S. District Court for the Northern District of California (San Jose) on April 19, 2018. The Northern District of California Court Clerk assigned Case No. 5:18-cv-02312-EJD to the proceeding. The Mailyan case is being consolidated with MDL 2827 in re: Apple Inc. Device Performance Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on April 4, 2018. All responding parties support centralization, but there is some disagreement as to the transferee district. Plaintiffs in 30 actions and potential tag-along actions (as well as plaintiff in one action in the alternative) support centralization in the Northern District of California. The Plaintiff in a Southern District of Florida action proposes centralization in that district, while common defendant Apple Inc. supports centralization in the Northern District of California or, alternatively, the Central District of California. In its April 4, 2018 Order, the MDL Panel found that these actions share factual questions arising from allegations that Apple included code in updates to its mobile operating system (iOS) that significantly reduced the performance of older-model iPhones. Plaintiffs also allege that Apple misrepresented the nature of the iOS updates and failed to adequately disclose to iPhone owners the impact the iOS updates would have on the performance of their iPhones. Discovery regarding the engineering of the iPhone and the iOS updates likely will be technical and complex. Plaintiffs assert similar causes of action for false advertising, alleged unfair business practices, trespass to chattels, breach of contract, and unjust enrichment. Moreover, plaintiffs bring these actions on behalf of overlapping putative classes of iPhone owners. Centralization thus will eliminate duplicative discovery; prevent inconsistent pretrial rulings, including with respect to class certification; and conserve the resources of the parties, their counsel, and the judiciary. The case is assigned to the Hon. Judge Edward J. Davila. The lead case is 2:15-md-02661-MHW-EPD. Apple Inc. is an American multinational technology company headquartered in Cupertino, California, that designs, develops, and sells consumer electronics, computer software, and online services.[BN] The Plaintiff is represented by: Hovsep Hovsepyan, Esq. Armen Kiramijyan, Esq. KAASS LAW 313 East Broadway Suite 944 Glendale, CA 91209 Telephone: (310) 943 1171 Facsimile: (310) 943 1172 E-mail: hhovsepyan@kaass.com akiramijyan@kaass.com Attorneys for Apple Inc.: Theodore J. Boutrous, Jr., Esq. Christopher Chorba, Esq. Timothy William Loose, Esq. GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: (213) 229 7804 Facsimile: (213) 229 6804 E-mail: tboutrous@gibsondunn.com cchorba@gibsondunn.com tloose@gibsondunn.com MDL 2827: "Speas" Suit over iPhone Performance Consolidated ----------------------------------------------------------- The class action lawsuit titled Stefan Bogdanovich and Dakota Speas, individually and on behalf of all others similarly situated, the Plaintiff, v. Apple, Inc., a corporation, the Defendant, Case No. 2:17-cv-09138, was transferred from the U.S. District Court for the Central District of California, to the U.S. District Court for the Northern District of California (San Jose) on April 19, 2018. The Northern District of California Court Clerk assigned Case No. 5:18-cv-02311-EJD to the proceeding. The Speas case is being consolidated with MDL 2827 in re: Apple Inc. Device Performance Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on April 4, 2018. All responding parties support centralization, but there is some disagreement as to the transferee district. Plaintiffs in 30 actions and potential tag-along actions (as well as plaintiff in one action in the alternative) support centralization in the Northern District of California. The Plaintiff in a Southern District of Florida action proposes centralization in that district, while common defendant Apple Inc. supports centralization in the Northern District of California or, alternatively, the Central District of California. In its April 4, 2018 Order, the MDL Panel found that these actions share factual questions arising from allegations that Apple included code in updates to its mobile operating system (iOS) that significantly reduced the performance of older-model iPhones. Plaintiffs also allege that Apple misrepresented the nature of the iOS updates and failed to adequately disclose to iPhone owners the impact the iOS updates would have on the performance of their iPhones. Discovery regarding the engineering of the iPhone and the iOS updates likely will be technical and complex. Plaintiffs assert similar causes of action for false advertising, alleged unfair business practices, trespass to chattels, breach of contract, and unjust enrichment. Moreover, plaintiffs bring these actions on behalf of overlapping putative classes of iPhone owners. Centralization thus will eliminate duplicative discovery; prevent inconsistent pretrial rulings, including with respect to class certification; and conserve the resources of the parties, their counsel, and the judiciary. The case is assigned to the Hon. Judge Edward J. Davila. The lead case is 2:15-md-02661-MHW-EPD. Apple Inc. is an American multinational technology company headquartered in Cupertino, California, that designs, develops, and sells consumer electronics, computer software, and online services.[BN] The Plaintiffs are represented by: Colin Matthew Jones, Esq. B. Bobby Saadian, Esq. WILSHIRE LAW FIRM 3055 Wilshire Boulevard 12th Floor Los Angeles, CA 90010 Telephone: (213) 381 9988 Facsimile: (213) 381 9989 E-mail: colin@wilshirelawfirm.com bobby@wilshirelawfirm.com - and - Thomas V Girardi, Esq. GIRARDI KEESE 1126 Wilshire Boulevard Los Angeles, CA 90017 Telephone: (213) 977 0211 E-mail: tgirardi@girardikeese.com Attorneys for Apple, Inc.: Christopher Chorba, Esq. Theodore J. Boutrous, Jr., Esq. Timothy William Loose, Esq. GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: (213) 229 7000 Facsimile: (213) 229 7520 E-mail: cchorba@gibsondunn.com tboutrous@gibsondunn.com tloose@gibsondunn.com MDL 2827: "Drantivy" Suit over iPhone Performance Consolidated -------------------------------------------------------------- The class action lawsuit titled Raisa Drantivy, Plaintiff, on behalf of themselves individually and all others similarly situated, the Plaintiff, v. Apple Inc., a corporation and Does 1 through 10, inclusive, the Defendant, Case No. 1:17-cv-07480, was transferred from the U.S. District Court for the Eastern District of New York, to the U.S. District Court for the Northern District of California (San Jose) on April 19, 2018. The Northern District of California Court Clerk assigned Case No. 5:18-cv-02324-EJD to the proceeding. The Drantivy case is being consolidated with MDL 2827 in re: Apple Inc. Device Performance Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on April 4, 2018. All responding parties support centralization, but there is some disagreement as to the transferee district. Plaintiffs in 30 actions and potential tag-along actions (as well as plaintiff in one action in the alternative) support centralization in the Northern District of California. The Plaintiff in a Southern District of Florida action proposes centralization in that district, while common defendant Apple Inc. supports centralization in the Northern District of California or, alternatively, the Central District of California. In its April 4, 2018 Order, the MDL Panel found that these actions share factual questions arising from allegations that Apple included code in updates to its mobile operating system (iOS) that significantly reduced the performance of older-model iPhones. Plaintiffs also allege that Apple misrepresented the nature of the iOS updates and failed to adequately disclose to iPhone owners the impact the iOS updates would have on the performance of their iPhones. Discovery regarding the engineering of the iPhone and the iOS updates likely will be technical and complex. Plaintiffs assert similar causes of action for false advertising, alleged unfair business practices, trespass to chattels, breach of contract, and unjust enrichment. Moreover, plaintiffs bring these actions on behalf of overlapping putative classes of iPhone owners. Centralization thus will eliminate duplicative discovery; prevent inconsistent pretrial rulings, including with respect to class certification; and conserve the resources of the parties, their counsel, and the judiciary. The case is assigned to the Hon. Judge Edward J. Davila. The lead case is 2:15-md-02661-MHW-EPD. Apple Inc. is an American multinational technology company headquartered in Cupertino, California, that designs, develops, and sells consumer electronics, computer software, and online services.[BN] The Plaintiff is represented by: Gregg A Pinto, Esq. LAW OFFICES OF GREGG A. PINTO 225 Broadway, Suite 307 New York, NY 10007 Telephone: (646) 328 2434 Facsimile: (212) 898 0117 E-mail: pinto@pintolawoffices.com MDL 2827: "Brand" Suit over iPhone Performance Consolidated ----------------------------------------------------------- The class action lawsuit titled Blake Brand and Matt Hosking, Individually And On Behalf of All Others Similarly Situated, the Plaintiff, v. Apple Inc., the Defendant, Case No. 2:17-cv-03453, was transferred from the U.S. District Court for the District of South Carolina, to the U.S. District Court for the Northern District of California (San Jose) on April 19, 2018. The Northern District of California Court Clerk assigned Case No. 5:18-cv- 02327-EJD to the proceeding. The Brand case is being consolidated with MDL 2827 in re: Apple Inc. Device Performance Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on April 4, 2018. All responding parties support centralization, but there is some disagreement as to the transferee district. Plaintiffs in 30 actions and potential tag-along actions (as well as plaintiff in one action in the alternative) support centralization in the Northern District of California. The Plaintiff in a Southern District of Florida action proposes centralization in that district, while common defendant Apple Inc. supports centralization in the Northern District of California or, alternatively, the Central District of California. In its April 4, 2018 Order, the MDL Panel found that these actions share factual questions arising from allegations that Apple included code in updates to its mobile operating system (iOS) that significantly reduced the performance of older-model iPhones. Plaintiffs also allege that Apple misrepresented the nature of the iOS updates and failed to adequately disclose to iPhone owners the impact the iOS updates would have on the performance of their iPhones. Discovery regarding the engineering of the iPhone and the iOS updates likely will be technical and complex. Plaintiffs assert similar causes of action for false advertising, alleged unfair business practices, trespass to chattels, breach of contract, and unjust enrichment. Moreover, plaintiffs bring these actions on behalf of overlapping putative classes of iPhone owners. Centralization thus will eliminate duplicative discovery; prevent inconsistent pretrial rulings, including with respect to class certification; and conserve the resources of the parties, their counsel, and the judiciary. The case is assigned to the Hon. Judge Edward J. Davila. The lead case is 2:15-md-02661-MHW-EPD. Apple Inc. is an American multinational technology company headquartered in Cupertino, California, that designs, develops, and sells consumer electronics, computer software, and online services.[BN] The Plaintiffs are represented by: Aaron Cole Mayer, Esq. MAYER LAW LLC 18 Carolina Street, Suite B Charleston, SC 29403 Telephone: (843) 225 7240 E-mail: aaron@mayerlawpractice.com Attorneys for Defendant: Paul T. Collins, Esq. NELSON MULLINS RILEY & SCARBOROUGH LLP 1320 Main Street, 17th Floor Columbia, SC 29201 Telephone: (803) 255 9747 Facsimile: (803) 255 9128 E-mail: paul.collins@nelsonmullins.com MDL 2828: "Bernstein" Suit over Defective CPUs Consolidated ----------------------------------------------------------- The class action lawsuit titled Eric H. Bernstein and Stephen C. Bevilacqua, Individually and On Behalf of All Others Similarly Situated, the Plaintiffs, v. Intel Corporation, the Defendant, Case No. 1:18-cv-00526, was transferred from the U.S. District Court for the Eastern District of New York, to the U.S. District Court for the District of Oregon (Portland) on April 19, 2018. The District Court Clerk assigned Case No. 3:18-cv-00670-SI to the proceeding. The Bernstein case is being consolidated with MDL 2828 in re: Intel Corp. CPU Marketing, Sales Practices and Products Liability Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on April 5, 2018. All responding parties agree that the actions share factual issues arising out of allegations that Intel manufactured its computer processors to use "speculative execution" technology, which left the processors exposed to security vulnerabilities known as "Spectre" and "Meltdown," and that the fix for this problem can considerably slow the processors' speed. Centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings on class certification and other issues, and conserve the resources of the parties, their counsel, and the judiciary. In its April 5, 2018 Order, the MDL Panel found that centralization in the District of Oregon is appropriate. The Defendant Intel and the Plaintiffs in at least nine related actions support centralization in that district. Intel has extensive operations there, including its employees who evaluated the security vulnerabilities and developed patches to mitigate them, as well as the team that led the development of the first Intel processor to use speculative execution. It is likely, therefore, that relevant evidence and witnesses will be located in this district. The Hon. Judge Michael H. Simon, located in Portland, is an experienced transferee judge who can steer this litigation on a prudent course. The lead case is 2:15-md-02661-MHW-EPD. Intel Corporation is an American multinational corporation and technology company headquartered in Santa Clara, California, in the Silicon Valley.[BN] The Plaintiffs are represented by: Michael P. Canty, Esq. LABATON SUCHAROW 140 Broadway New York, NY 10005 Telephone: (212) 907 0700 Facsimile: (212) 883 7063 E-mail: mcanty@labaton.com MDL 2828: Alrose Suit over Defective CPUs Consolidated ------------------------------------------------------ The class action lawsuit titled Allen Rosenberg and Alrose Group LLC, individually on behalf of themselves and all others similarly situated, the Plaintiffs, v. Intel Corporation, the Defendant, Case No. 2:18-cv-00147, was transferred from the U.S. District Court for the Eastern District of New York, to the U.S. District Court for the District of Oregon (Portland) on April 19, 2018. The District Court Clerk assigned Case No. 3:18-cv-00668-SI to the proceeding. The Alrose case is being consolidated with MDL 2828 in re: Intel Corp. CPU Marketing, Sales Practices and Products Liability Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on April 5, 2018. All responding parties agree that the actions share factual issues arising out of allegations that Intel manufactured its computer processors to use "speculative execution" technology, which left the processors exposed to security vulnerabilities known as "Spectre" and "Meltdown," and that the fix for this problem can considerably slow the processors' speed. Centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings on class certification and other issues, and conserve the resources of the parties, their counsel, and the judiciary. In its April 5, 2018 Order, the MDL Panel found that centralization in the District of Oregon is appropriate. The Defendant Intel and the Plaintiffs in at least nine related actions support centralization in that district. Intel has extensive operations there, including its employees who evaluated the security vulnerabilities and developed patches to mitigate them, as well as the team that led the development of the first Intel processor to use speculative execution. It is likely, therefore, that relevant evidence and witnesses will be located in this district. The Hon. Judge Michael H. Simon, located in Portland, is an experienced transferee judge who can steer this litigation on a prudent course. The lead case is 2:15-md-02661-MHW-EPD. Intel Corporation is an American multinational corporation and technology company headquartered in Santa Clara, California, in the Silicon Valley.[BN] The Plaintiffs are represented by: Adam R. Gonnelli, Esq. THE SULTZER LAW GROUP 85 Civic Center Plaza, Suite 104 Poughkeepsie, NY 12601 Telephone: (845) 483 7100 Facsimile: (888) 749 7747 E-mail: gonnellia@thesultzerlawgroup.com - and - Akiva Meir Cohen, Esq. KAMERMAN, UNCYK, SONIKER, & KLEIN, PC 1700 Broadway, 42nd Floor New York, NY 10019 Telephone: (212) 400 4930 Facsimile: (866) 221 6122 E-mail: acohen@kusklaw.com - and - Jeffrey Kevin Brown, Esq. LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, NY 11514 Telephone: (516) 873 9550 Facsimile: (516) 747 5024 E-mail: jbrown@leedsbrownlaw.com - and - Joseph Lipari, Esq. Jason P. Sultzer, Esq. THE SULTZER LAW GROUP P.C. 85 Civic Center Plaza, Ste. 104 Poughkeepsie, NY 12601 Telephone: (845) 483 7100 Facsimile: (888) 749 7747 E-mail: liparij@thesultzerlawgroup.com sultzerj@thesultzerlawgroup.com MDL 2828: "Inman" Suit over Defective CPUs Consolidated ------------------------------------------------------- The class action lawsuit titled Amy Storey, Michael Inman, and Dennis Chavez, all individually and on behalf of all others similarly situated, the Plaintiff, v. Intel Corporation, a Delaware corporation, the Defendant, Case No. 1:18-cv-00051, was transferred from the U.S. District Court for the District of New Mexico, to the U.S. District Court for the District of Oregon (Portland) on April 19, 2018. The District Court Clerk assigned Case No. 3:18-cv-00665-SI to the proceeding. The Inman case is being consolidated with MDL 2828 in re: Intel Corp. CPU Marketing, Sales Practices and Products Liability Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on April 5, 2018. All responding parties agree that the actions share factual issues arising out of allegations that Intel manufactured its computer processors to use "speculative execution" technology, which left the processors exposed to security vulnerabilities known as "Spectre" and "Meltdown," and that the fix for this problem can considerably slow the processors' speed. Centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings on class certification and other issues, and conserve the resources of the parties, their counsel, and the judiciary. In its April 5, 2018 Order, the MDL Panel found that centralization in the District of Oregon is appropriate. The Defendant Intel and the Plaintiffs in at least nine related actions support centralization in that district. Intel has extensive operations there, including its employees who evaluated the security vulnerabilities and developed patches to mitigate them, as well as the team that led the development of the first Intel processor to use speculative execution. It is likely, therefore, that relevant evidence and witnesses will be located in this district. The Hon. Judge Michael H. Simon, located in Portland, is an experienced transferee judge who can steer this litigation on a prudent course. The lead case is 2:15-md-02661-MHW-EPD. Intel Corporation is an American multinational corporation and technology company headquartered in Santa Clara, California, in the Silicon Valley.[BN] The Plaintiffs are represented by: Nicholas Koluncich, Esq. LAW OFFICES OF NICHOLAS KOLUNCICH LLC 500 Marquette Ave NW, Suite 1200 Albuquerque, NM 87102 Telephone: (505) 881 2228 Facsimile: (505) 881 4288 E-mail: nkoluncich@newmexicoclassactions.com MDL 2828: "Murphy" Suit over Defective CPUs Consolidated -------------------------------------------------------- The class action lawsuit titled Kyle Murphy and Timothy Grunloh, on behalf of themselves and all others similarly situated, the Plaintiffs, v. Intel Corporation, the Defendant, Case No. 2:18- cv-02009, was transferred from the U.S. District Court for the Central District of Illinois, to the U.S. District Court for the District of Oregon (Portland) on April 19, 2018. The District Court Clerk assigned Case No. 3:18-cv-00666-SI to the proceeding. The Murphy case is being consolidated with MDL 2828 in re: Intel Corp. CPU Marketing, Sales Practices and Products Liability Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on April 5, 2018. All responding parties agree that the actions share factual issues arising out of allegations that Intel manufactured its computer processors to use "speculative execution" technology, which left the processors exposed to security vulnerabilities known as "Spectre" and "Meltdown," and that the fix for this problem can considerably slow the processors' speed. Centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings on class certification and other issues, and conserve the resources of the parties, their counsel, and the judiciary. In its April 5, 2018 Order, the MDL Panel found that centralization in the District of Oregon is appropriate. The Defendant Intel and the Plaintiffs in at least nine related actions support centralization in that district. Intel has extensive operations there, including its employees who evaluated the security vulnerabilities and developed patches to mitigate them, as well as the team that led the development of the first Intel processor to use speculative execution. It is likely, therefore, that relevant evidence and witnesses will be located in this district. The Hon. Judge Michael H. Simon, located in Portland, is an experienced transferee judge who can steer this litigation on a prudent course. The lead case is 2:15-md-02661- MHW-EPD. Intel Corporation is an American multinational corporation and technology company headquartered in Santa Clara, California, in the Silicon Valley.[BN] The Plaintiffs are represented by: Irwin B. Levin, Esq. Lynn A. Toops, Esq. Richard E. Shevitz, Esq. Vess Allen Miller, Esq. COHEN & MALAD, LLP One Indiana Square, Suite 1400 Indianapolis, IN 46204 Telephone: (317) 636 6481 Facsimile: (317) 636 2593 E-mail: ilevin@cohenandmalad.com ltoops@cohenandmalad.com rshevitz@cohenandmalad.com vmiller@cohenandmalad.com MDL 2828: "Robbins" Suit over Defective CPUs Consolidated --------------------------------------------------------- The class action lawsuit titled Jordan Robbins, individually and on behalf of all others similarly situated, the Plaintiff, v. Intel Corporation, the Defendant, Case No. 1:18-cv-00540, was transferred from the U.S. District Court for the District of New Jersey, to the U.S. District Court for the District of Oregon (Portland) on April 19, 2018. The District Court Clerk assigned Case No. 3:18-cv-00667-SI to the proceeding. The Robbins case is being consolidated with MDL 2828 in re: Intel Corp. CPU Marketing, Sales Practices and Products Liability Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on April 5, 2018. All responding parties agree that the actions share factual issues arising out of allegations that Intel manufactured its computer processors to use "speculative execution" technology, which left the processors exposed to security vulnerabilities known as "Spectre" and "Meltdown," and that the fix for this problem can considerably slow the processors' speed. Centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings on class certification and other issues, and conserve the resources of the parties, their counsel, and the judiciary. In its April 5, 2018 Order, the MDL Panel found that centralization in the District of Oregon is appropriate. The Defendant Intel and the Plaintiffs in at least nine related actions support centralization in that district. Intel has extensive operations there, including its employees who evaluated the security vulnerabilities and developed patches to mitigate them, as well as the team that led the development of the first Intel processor to use speculative execution. It is likely, therefore, that relevant evidence and witnesses will be located in this district. The Hon. Judge Michael H. Simon, located in Portland, is an experienced transferee judge who can steer this litigation on a prudent course. The lead case is 2:15-md-02661-MHW-EPD. Intel Corporation is an American multinational corporation and technology company headquartered in Santa Clara, California, in the Silicon Valley.[BN] The Plaintiff is represented by: Christopher L. Ayers, Esq. David R. Buchanan, Esq. SEEGER WEISS LLP 55 Challenger Road, 6th Floor Ridgefield Park, NJ 07660 Telephone: (973) 639 9100 E-mail: cayers@seegerweiss.com cseeger@seegerweiss.com dbuchanan@seegerweiss.com - and - Donald A. Ecklund, Esq. James E. Cecchi, Esq. CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, P.C. 5 Becker Farm Road Roseland, NJ 07068 Telephone: (973) 994 1700 Facsimile: (973) 994 1744 E-mail: decklund@carellabyrne.com jcecchi@carellabyrne.com MGT CAPITAL: Says Time to File Notice of Appeal Already Expired --------------------------------------------------------------- MGT Capital Investments, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on April 2, 2018, for the fiscal year ended December 31, 2017, that the time for plaintiffs to file a notice of appeal expires on March 30, 2018. In September 2016, various shareholders in the Company filed putative class action lawsuits against the Company, its president and certain of its individual officers and directors. The cases were filed in the Court and alleged violations of federal securities laws and seek damages. On April 11, 2017 those cases were consolidated into a single action (the "Securities Action") and two individual shareholders were appointed lead plaintiffs by the Court. MGT Capital said in its Form 10-Q Report for the quarterly period ended September 30, 2017, that on June 30, 2017, the lead plaintiffs filed an amended complaint. On August 29, 2017, the defendants moved to dismiss the plaintiffs' amended complaint, which the plaintiffs opposed on October 13, 2017. On November 3, 2017, the defendants filed a reply brief in support of their motion to dismiss the amended complaint. In its Form 10-K Report, the Court heard oral argument on the motion to dismiss on February 7, 2018. On February 27, 2018, the Court issued a Memorandum and Order dismissing the case in its entirety, with prejudice. The time for plaintiffs to file a notice of appeal expires on March 30, 2018. MGT Capital Investments, Inc., together with its subsidiaries, focuses on acquiring and developing a portfolio of cybersecurity technologies. It intends to address various cyber threats through protection technologies for mobile and personal tech devices, as well as corporate networks. The company is based in Durham, North Carolina. MIDLAND FUNDING: "Smith" Suit Moved to Western Dist. of Arkansas ---------------------------------------------------------------- The class action lawsuit titled Kandis K. Smith, on behalf of herself and others similarly situated, the Plaintiff, v. Midland Funding, LLC and Midland Credit Management, Inc., the Defendants, Case No. CV2018-29, was removed from the Circuit Court of Carroll County, Arkansas, the U.S. District Court for the Western District of Arkansas (Harrison) on April 19, 2018. The District Court Clerk assigned Case No. 3:18-cv-03044-TLB to the proceeding. The case is assigned to the Hon. Judge Timothy L. Brooks. Midland Funding LLC provides debt collection services. The company was incorporated in 2005 and is based in San Diego, California. Midland Funding LLC operates as a subsidiary of Midland Portfolio Services, Inc.[BN] The Plaintiff is represented by: Corey D. McGaha, Esq. CROWDER MCGAHA, LLP 5507 Ranch Drive, Suite 202 Little Rock, AR 72223 Telephone: (501) 205 4026 Facsimile: (501) 367 8208 E-mail: cmcgaha@crowdermcgaha.com - and - Daniel Turner, Esq. Todd M. Turner, Esq. ARNOLD, BATSON, TURNER & TURNER, P.A. 501 Crittenden Street P.O. Box 480 Arkadelphia, AR 71923 Telephone: (870) 246 9844 Facsimile: (870) 246 9845 E-mail: Dan@arnoldbatsonturner.com todd@abtt.us - and - William Thomas Crowder, Esq. CROWDER MCGAHA LLP 5507 Ranch Drive, Suite 202 Little Rock, AR 72223 Telephone: (501) 205 4026 Facsimile: (501) 367 8208 E-mail: wcrowder@crowdermcgaha.com - and - Michael N. Shannon, Esq. QUATTLEBAUM, GROOMS, TULL & BURROW PLLC 111 Center St., Suite 1900 Little Rock, AR 72201 Telephone: (501) 379 1700 E-mail: mshannon@qgtb.com MILLENNIUM LABS: "Booth" Suit Seeks Overtime Wages -------------------------------------------------- ALLIE BOOTH, individually, and on behalf of other members of the general public similarly situated, the Plaintiff, v. MILLENNIUM LABORATORIES, INC., a California corporation; MILLENNIUM HEALTH, LLC, a California limited liability company; and DOES 1 through 100, inclusive, the Defendant, Case No. 37-2018-0001961 (Cal. Super. Ct., April 19, 2018), seeks to recover unpaid overtime, unpaid rest period premiums, unpaid minimum wages and unpaid meal period premiums under the California Labor Code. The Defendants hired Plaintiff and the other class members, classified them as hourly-paid or non-exempt employees, and failed to compensate them for all hours worked and missed meal periods and/or rest breaks. The Defendants had the authority to hire and terminate Plaintiff and the other class members, to set work rules and conditions governing Plaintiffs and the other class members' employment, and to supervise their daily employment activities. The Defendants exercised sufficient authority over the terms and conditions of Plaintiffs and the other class members' employment for them to be joint employers of Plaintiff and the other class members. The Defendants directly hired and paid wages and benefits to Plaintiff and the other class members. The Defendants continue to employ hourly-paid or non-exempt employees within the State of California. The Plaintiff and the other class members worked over eight hours in a day, and/or 40 hours in a week during their employment with Defendants. The Plaintiff alleges that Defendants engaged in a pattern and practice of wage abuse against their hourly-paid or non-exempt employees within the State of California. This pattern and practice involved, inter alia, failing to pay them for all regular and/or overtime wages earned and for missed meal periods and rest breaks in violation of California law. Millennium Laboratories, is a national, research-based medication monitoring company whose test panels, technology, customer support, educational resources and experts are specifically focused on clinicians who treat chronic pain.[BN] The Plaintiff is represented by: Stanley D. Saltzman, Esq. MARLIN & SALTZMAN, LLP 29800 Agoura Road, Suite 210 Agoura Hills, CA 91301 Telephone: (818) 991 8080 Facsimile: (818) 991 8081 - and - Edwin Aiwazian, Esq. LAW YERS for JUSTICE, PC 410 West Arden Avenue, Suite 203 Glendale, CA 91203 Telephone: (818) 265 1020 Facsimile: (818) 265 1021 MODESTO, CA: Court Approves $100K Settlement in "Beidleman" Suit ---------------------------------------------------------------- The United States District Court for the Eastern District of California approved the Settlement Agreement and dismissed the Case in the case captioned MICHAEL CHARLES BEIDLEMAN, individually and on behalf of all others similarly situated, Plaintiff, v. CITY OF MODESTO, Defendant, No. 1:16-cv-01100-DAD- SKO (E.D. Cal.). In his complaint, the plaintiff alleges that he and the putative class members were denied proper compensation in violation of the provisions of the Fair Labor Standards Act (FLSA), when the defendant failed to include all statutorily required forms of compensation in the regular rate of pay used to calculate the plaintiffs' overtime compensation. Under the terms of the settlement agreement, the defendant will pay a gross amount of $100,085.58 to the plaintiffs and the putative plaintiffs, which reflects the parties' best reasonable belief of a fair settlement value, based on the variables at play in this action. The parties state that the gross amount of settlement is a fair valuation of the damages if neither the plaintiffs nor the defendant were to prevail on all issues in dispute. At the hearing on March 2, 2018, the parties indicated that the plaintiffs' initial settlement demand was for $179,000, which the plaintiffs' counsel recognized was an overstatement of the actual damages. In light of the complexity of this case and the difficulty the parties face in estimating the likely value of the plaintiffs' claim without conducting an exact calculation, the court finds the rationale of the agreement and the recovery obtained as a result to be reasonable. This factor weighs in favor of approval of the FLSA settlement. Here, the parties have sufficient information to make an informed decision regarding settlement. The Ninth Circuit's decision in Flores makes it likely that the plaintiffs would prevail in some aspect of their claim. The parties engaged in informal discovery that involved the exchange of payroll data to evaluate the potential range of recovery. The Plaintiff retained an expert to review payroll data and perform back pay calculations, and also consulted with city payroll staff. Under these circumstances, the court finds that the parties had sufficient information to reach an appropriate early-stage settlement. Here, the named plaintiff believes his claims are meritorious but concedes that if this case were to proceed to trial, he would face uncertainties about how to calculate damages due to the bona fide disputes in the case. Additionally, at trial, the defendant could assert offsets and credits from the way that it calculated overtime, which was more favorable than required by the FLSA, thus reducing the plaintiffs' recovery. All of these concerns pose a risk to the plaintiffs and could decrease their overall recovery. Accordingly, this factor weighs in favor of approval of the FLSA settlement. Here, the release provision is limited to claims against the released parties arising in, or in connection with, or out of the litigation and any such claim arising in, or in connection with, or out of the claims. The parties agreed at the most recent hearing that the Released Claims as indicated in the Settlement Agreement refers to the FLSA claims for the plaintiffs and the putative plaintiffs who received cash-in-lieu of health benefit payments at any time since July 28, 2013. In light of this understanding, consideration of this factor weighs in favor of approval of the FLSA settlement. In determining whether a settlement is fair and reasonable, the opinions of counsel should be given considerable weight both because of counsel's familiarity with the litigation and previous experience with cases. Here, the plaintiffs' counsel, attorney David Mastagni, has considerable experience in litigating and settling cases asserting liability pursuant to the Flores decision and has stated that this settlement is fair, adequate, and in the best interests of the class members. Accordingly, consideration of this factor weighs in favor of approval of the FLSA settlement. The likelihood of fraud or collusion is low when the Settlement was reached through arm's-length negotiations, facilitated by an impartial mediator. Here, the court finds that there is a low probability of fraud or collusion because the settlement negotiations were presided over and facilitated by a magistrate judge of this court. This settlement also lacks any evidence of more subtle signs of collusion, such as when counsel receive a disproportionate distribution of the settlement, or when the class receives no monetary distribution but class counsel are amply rewarded. The court finds that the proposed settlement is a fair and reasonable resolution of the parties' bona fide disputes. A full-text copy of the District Court's March 12, 2018 Order is available at https://tinyurl.com/yccm8whg from Leagle.com. Michael Charles Beidleman, on behalf of himself and all similarly situated individuals, Plaintiff, represented by Ace Thomas Tate - - atate@mastagni.com -- Mastagni Holstedt, APC, David Emilio Mastagni -- davidm@mastagni.com -- Mastagni Holstedt, APC & Isaac Sean Stevens -- istevens@mastagni.com -- Mastagni Holstedt, APC. City of Modesto, Defendant, represented by Genevieve Y. Ng -- gng@sloansakai.com -- Sloan Sakai Yeung & Wong LLP. MURRAY GOULBURN: Slater & Gordon to Proceed with Class Action ------------------------------------------------------------- Paris Faint, writing for Business News Australia, reports that Slater and Gordon (ASX: SGH) confirmed it is going ahead with a class action against one of Australia's largest milk suppliers Murray Goulburn. The firm has formally opened registrations for shareholders and the proposed lawsuit will be backed by litigation funder IMF Bentham. Slater and Gordon will allege that Murray Goulburn misled its investors by issuing its FY16 profit forecast in a product disclosure statement, and subsequent revision, without a reasonable basis. It will also allege that Murray Goulburn is responsible for breaches of continuous disclosure obligations by failing to announce a second FY16 downgrade prior to 27 April 2016. "Thorough analysis of the recent ACCC and ASIC inquiries into Murray Goulburn have strengthened our initial findings that suggest the company misled the market by forecasting profits it could never have achieved in the 2016 financial year," said Andrew Paull, senior associate at Slater and Gordon. "We have identified significant inconsistencies between Murray Goulburn's statements to the market regarding its likely revenue and profits that year and the information available to the company's management internally. "As a result, we now have increased confidence the 27 April 2016 profit downgrade was the result of an overly optimistic forecast, rather than any factors beyond its control." The timeline in question On 29 May 2015, Murray Goulburn's subsidiary MG Responsible Entity issued a product disclosure statement which forecast a full year net profit after tax (NPAT) of $85.8 million. In February 2016, the company went on to revise its NPAT guidance at $63 million stating that the dairy market had been historically weak. Murray Goulburn then downgraded its forecast again to between $39 million and $42 million just two months before the end of the financial year. Regarding its second and most severe downgrade, which occurred on 27 April 2016, the company blamed weak growth in Chinese markets, the AUD-USD exchange rate and a downward revaluation of milk product inventory. Corporate watchdog inquiries lend weight to Slater's case Slater and Gordon's proposed class action against Murray Goulburn cites separate investigations by watchdogs the Australian Securities and Investments Commission (ASIC) and the Australian Competition and Consumer Commission (ACCC). In April 2017, the ACCC launched proceedings against the company alleging it contravened Australian Consumer Law after suddenly reducing its prices. The ACCC claimed Murray Goulburn engaged in unconscionable conduct and made false or misleading representations and filed proceedings in the Federal Court. Later that year, ASIC alleged that the company failed to meet its continuous disclosure obligations when it forecast the price of milk at $5.60 and subsequently slashed its profit guidance and announced retrospective price cuts on its milk payments to farmers. Murray Goulburn admitted to breaching its disclosure obligations in the ASIC case and agreed to pay a $650,000 settlement. Registrations for the class action will remain open until 18 May 2018 with formal proceedings expected to be filed soon after. Murray Goulburn the subject of a Saputo takeover At the company's extraordinary general meeting (EGM), Murray Goulburn shareholders voted in the clear majority to approve the sale of all MG operating assets to Canadian dairy company Saputo for $1.31 billion. The ACCC confirmed it would not oppose the buyout, on the condition that Saputo accept a court-enforceable undertaking to divest Murray Goulburn's Koroit plant once purchased. Saputo owns the Allansford plant at Warrnambool, and the ACCC said it would substantially lessen competition if Saputo were to also own the Koroit plant which is based in the same region. Under the buyout, Saputo would also assume all liabilities associated with Murray Goulburn. The company made no mention of a looming class action at its EGM. However, it released a statement on April 9 denying that any action had commenced against Murray Goulburn Co-operative (MG) and MG Responsible Entity (MGRE). "[Murray Goulburn] notes the media release on 6 April from Slater and Gordon Lawyers of the opening of registrations for a proposed unitholder class action against MG and MGRE, which would be conditionally funded by IMF Bentham," said the company. "MG and MGRE note that no such action has been commenced." [GN] NANO: Faces Investor Class Action in New York --------------------------------------------- Molly Jane Zuckerman, writing for Coin Telegraph, reports that a new class action lawsuit has been filed in the United States District Court Eastern District of New York on behalf of investors in Nano (XRB, formerly Raiblocks), according to a class action complaint signed April 5. The lawsuit is being filed by an American individual, Alex Brola, through Silver Miller law firm, and alleges that Nano's core team both violated US securities laws by selling unregistered securities as well as negligently misrepresented the reliability of crypto exchange BitGrail, from which around 17 mln Nano ($187 mln at the time) were stolen in mid-February. The lawsuit asks that Nano be ordered by court to "rescue fork" the investors' missing NANO "into a new cryptocurrency in a manner that would fairly compensate the class of victims." In the aftermath of BitGrail's Feb. 9 announcement on their website that the 17 mln Nano had been hacked from the exchange, Nano developers and BitGrail's owner and operator Francesco "The Bomber" Firano reportedly entered into a conflict over whether or not Firano had asked for the ledger to be edited to "cover his losses." Nano then accused Firano of "misleading the Nano Core Team and the community" on their official blog. Although Nano investor Alex Brola is the named plaintiff in the lawsuit, having reportedly bought $50,000 worth of Nano on Dec. 10, 2017, the complaint claims there are "at least hundreds if not thousands of putative Class members" that Silver Miller plans to contact during the discovery period. Silver Miller writes in the class action notice that they are a "strong advocate for aggrieved investors harmed by the misrepresentations and illegal actions of cryptocurrency exchanges and issuers." The law firm is currently working on class actions against crypto exchanges and services Coinbase, Kraken, BitConnect, Cryptsy, and Initial Coin Offering (ICO) promoters Monkey Capital, Giga Watt, and Tezos. Tezos has been the subject of multiple lawsuits over the question of its compliance with SEC regulations. The Tezos class action lawsuit filed last fall by Silver Miller alleges that Tezos violated securities laws during their ICO, which raised $232 mln, making it the world's second largest ICO to date in terms of most funds raised. [GN] NORMAN BARWIN: May Face Suit for Using Sperm to Impregnate Women ---------------------------------------------------------------- Xinhua reports that a Canadian fertility doctor, Norman Barwin may face a class action lawsuit in which he is accused of using his own sperm to inseminate 11 of his clients without their knowledge or consent. In a statement, Nelligan O'Brien Payne LLP, the law firm behind the case, said that DNA investigation shows that Barwin is the biological father in 11 individuals whose parents went to the doctor for assistance with fertility. The law firm said it has been in contact with more than 150 people who have allegedly been "adversely affected" by Barwin's fertility practice dating back to the 1970s, according to the statement released on April 5. In addition, the firm said it has been aware of another 51 cases in which the identity of the biological father remains unknown. Among these cases, 16 individuals who were to be conceived using their father's sperm are not a biological match to their father, while 35 individuals who were to be conceived using anonymous donor sperm may not be a biological match with the intended donor. The proposed lawsuit against Barwin was first launched in 2016 by Davina and Daniel Dixon, an Ottawa couple who turned to the doctor for help in 1989. Their daughter was born the following year. It took more than two decades for the couple to discover the dark secret. In 2016, they underwent a blood test due to concerns over how two parents with blue eyes could have conceived a daughter with brown eyes. The test result showed their daughter had type O-positive blood and Daniel had type AB blood, proving it was impossible that they were father and daughter, reported the Canadian Broadcasting Corporation in 2016, citing the initial statement of claim. The law firm said it is finalising the materials for the certification of the class action and expects the action to be certified in the coming months. In 2013, Barwin was suspended from practice for two months after he admitted inseminating four women with the wrong sperm and stopped practicing the following year. [GN] NOVUS THERAPEUTICS: "Doshi" Consolidated with "Garbowski" Suit -------------------------------------------------------------- Novus Therapeutics, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on April 2, 2018, for the fiscal year ended December 31, 2017, that the case entitled Doshi v. Tokai Pharmaceuticals, Inc., et al., has been consolidated with Garbowski, et al. v. Tokai Pharmaceuticals, Inc., et al. On August 1, 2016, a purported stockholder of Tokai filed a putative class action lawsuit in the U.S. District Court for the Southern District of New York against Tokai, Jodie P. Morrison, and Lee H. Kalowski, entitled Doshi v. Tokai Pharmaceuticals, Inc., et al., No. 1:16-cv-06106 ("Doshi Action"). The plaintiff sought to represent a class of purchasers of Tokai securities between June 24, 2015, and July 25, 2016, and alleges that, in violation of the Securities Exchange Act of 1934 ("Exchange Act") and Rule 10b-5 promulgated thereunder, defendants made false and misleading statements and omissions about Tokai's clinical trials for its drug candidate, galeterone. The lawsuit sought, among other things, unspecified compensatory damages, interest, costs, and attorneys' fees. On October 3, 2016, the case was transferred to the U.S. District Court for the District of Massachusetts. On September 28, 2017, this action was consolidated with Garbowski, et al. v. Tokai Pharmaceuticals, Inc., et al., No. 1:16-cv-11963. Novus Therapeutics said "Given the uncertainty of litigation, the preliminary stage of the case, and the legal standards that must be met for, among other things, success on the merits, we are unable to predict the ultimate outcome of these actions, and therefore we cannot estimate the reasonably possible loss or range of loss that may result from this action." Novus Therapeutics is a specialty pharmaceutical company focused on developing products for disorders of the ear, nose, and throat (ENT). The company is based in Irvine, California. NOVUS THERAPEUTICS: Multiple Suits over Tokai IPO Pending --------------------------------------------------------- Novus Therapeutics, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on April 2, 2018, for the fiscal year ended December 31, 2017, that Tokai Pharmaceuticals, Inc. is facing multiple class action suits related to its initial public offering. On September 22, 2014, Tokai completed the initial public offering of its common stock (the "IPO"). Subsequent to the IPO, several lawsuits were filed against Tokai, Jodie P. Morrison, Lee H. Kalowski, Seth L. Harrison, Timothy J. Barberich, David A. Kessler, Joseph A. Yanchik, III, and the underwriters of the IPO. The lawsuits allege that, in violation of the Securities Act of 1933 ("Securities Act"), Tokai's registration statement for the IPO made false and misleading statements and omissions about Tokai's clinical trials for galeterone (the "Securities Act claims"). Each lawsuit sought, among other things, unspecified compensatory damages, interest, costs, and attorneys' fees. Novus Therapeutics said "Given the uncertainty of litigation, the preliminary stage of these cases, and the legal standards that must be met for, among other things, success on the merits, we are unable to predict the ultimate outcome of these actions, and therefore we cannot estimate the reasonably possible loss or range of loss that may result from these actions." * Jackie888 Action On August 19, 2016, a purported stockholder of Tokai filed a putative class action lawsuit in the Superior Court of the State of California, County of San Francisco, entitled Jackie888, Inc. v. Tokai Pharmaceuticals, Inc., et al., No. CGC-16-553796. The plaintiff sought to represent a class of purchasers of Tokai common stock in or traceable to the IPO. On October 19, 2016, the defendants moved to dismiss or stay the action on grounds of forum non conveniens, and certain individual defendants moved to quash the plaintiff's summons for lack of personal jurisdiction. On February 27, 2017, the Superior Court entered an order granting defendants' motion to stay the lawsuit. * Garbowski Action On September 29, 2016, two purported stockholders of Tokai filed a putative class action lawsuit in the U.S. District Court for the District of Massachusetts, entitled Garbowski, et al. v. Tokai Pharmaceuticals, Inc., et al., No. 1:16-cv-11963 ("Garbowski Action"). In addition to the Securities Act claims, this lawsuit also alleges that the defendants made false and misleading statements and omissions about Tokai's clinical trials for galeterone, in violation of the Exchange Act and Rule 10b-5 promulgated thereunder. The plaintiffs sought to represent a class of purchasers of Tokai common stock in or traceable to the IPO as well as a class of purchasers of Tokai common stock between September 17, 2014, and July 25, 2016. On September 28, 2017, the action was consolidated with the Doshi Action. * Wu Action On December 5, 2016, a putative securities class action was filed in the Business Litigation Session of the Superior Court Department of the Suffolk County Trial Court, Massachusetts ("Massachusetts State Court"), entitled Wu v. Tokai Pharmaceuticals, Inc., et al., 16-3725 BLS ("Wu Action"). The plaintiff seeks to represent a class of purchasers of Tokai common stock in or traceable to the IPO. On December 19, 2016, defendants removed the Wu Action to the U.S. District Court for the District of Massachusetts, where it was captioned Wu v. Tokai Pharmaceuticals, Inc., et al., 16-cv-12550, and assigned to the same judge presiding over the Doshi and Garbowski Actions. On December 22, 2016, defendants filed a motion to consolidate the Wu Action with the Doshi and Garbowski Actions. On January 6, 2017, plaintiff filed a motion to remand the Wu Action to Massachusetts State Court. On September 28, 2017, the court stayed the case pending a decision by the United States Supreme Court in Cyan, Inc. v. Beaver County Employees Retirement Fund, S. Ct. Case No. 15-1439. On March 20, 2018, the United States Supreme Court ruled in Cyan that state courts have subject matter jurisdiction over covered class actions alleging only Securities Act claims and that such actions are not removable to federal court. On March 22, 2018, plaintiff moved for leave to submit the Cyan decision in support of plaintiff's remand motion. * Angelos Action On July 25, 2017, a purported stockholder of Tokai filed a lawsuit in the U.S. District Court for the District of Massachusetts, entitled Peter B. Angelos v. Tokai Pharmaceuticals, Inc., et al., No. 1:17-cv-11365-MLW. The case has been assigned to the same judge presiding over the Doshi, Garbowski, and Wu Actions. The Company has always maintained and continues to believe that it did not engage in any wrongdoing or otherwise commit any violation of federal or state securities laws or other laws. Novus Therapeutics is a specialty pharmaceutical company focused on developing products for disorders of the ear, nose, and throat (ENT). The company is based in Irvine, California. OPEN DOOR: "Conde" Plaintiffs Must Respond to RFPs -------------------------------------------------- The United States District Court for the Northern District of California granted Defendant 20/20's request to compel production of documents and denied Defendant 20/20's request to compel answers to its interrogatories in the case captioned CARLOS CONDE, et al., Plaintiffs, v. OPEN DOOR MARKETING, LLC, et al., Defendants, Case No. 15-cv-04080-KAW (N.D. Cal.). The Plaintiffs filed this putative class and collective action against Defendants 20/20 Communications, Inc. (20/20), Open Door Marketing, LLC (Open Door), Larry Clark, and Jerrimy Farris, alleging violations of the Fair Labor Standards Act (FLSA) and various California labor laws. Rule 408 states: "(a) Prohibited Uses. Evidence of the following is not admissible on behalf of any party either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction: (1) furnishing, promising, or offering or accepting, promising to accept, or offering to accept a valuable consideration in compromising or attempting to compromise the claim; and (2) conduct or a statement made during compromise negotiations about the claim except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority. (b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness's bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution." The Plaintiffs make three arguments for why Rule 408 should apply in this case. First, the Plaintiffs argue that information going to the parties' credibility is explicitly prohibited under Rule 408, relying on Rule 408's prohibition on the use of conduct or statements made in compromise negotiations to impeach through a prior inconsistent statement or contradiction. Second, the Plaintiffs argue that the cases cited by Defendant 20/20 regarding the discoverability of settlement communications are patent cases, and therefore not applicable to this case. The Court disagrees. The Plaintiffs offer no persuasive reason why the discoverability of settlement communications should be limited to patent cases, and the plain language of Rule 408 does not suggest that patent cases should be treated differently from any other case. Thus, the Court concludes that Rule 408 does not apply to shield discovery of the settlement communications between the Plaintiffs and Defendants Clark and Farris. The Plaintiffs argue that the Court should use its [broad] discretion to control discovery to deny 20/20's attempt to compel their production. Here, Defendant 20/20 seeks discovery of the settlement communications to impeach the credibility of Defendants Clark and Farris because to the extent the Plaintiffs did offer dismissal to Clark, Farris and/or Open Door in exchange for testimony, this raises the concern that Clark, Farris and/or both were (or will be) influenced in their testimony to say what the Plaintiffs' sic wanted (or want) to hear in order to get out of the case. At the hearing, Defendant 20/20 also explained that it was concerned that Plaintiff was obtaining other substantive information from Defendants Clark and Farris, including informal testimony. The Court declines to use its inherent power to control the discovery at this juncture. This is not a situation where the defendants are seeking information about a settlement in another matter; instead, Defendant 20/20 is seeking information on a settlement brokered between its co-defendants and the Plaintiffs, in which the Plaintiffs have agreed to drop claims against the co-defendants in exchange for information and evidence that maybe used against Defendant 20/20. A full-text copy of the District Court's March 12, 2018 Order is available at https://tinyurl.com/ydydpkc3 from Leagle.com. Carlos Conde, individually and on behalf of all others similarly situated, Shikwana Jennings, individually and on behalf of all others similarly situated & Lisa Drake, individually and on behalf of all others similarly situated, Plaintiffs, represented by Harold Lichten -- hlichten@llrlaw.com -- Lichten and Liss- Riordan P.C., Jill Stephanie Kahn -- jkahn@llrlaw.com -- Lichten and Liss-Riordan P.C., Michael Louis Freedman -- mfreedman@llrlaw.com -- Lichten & Liss-Riordan, P.C. & Matthew David Carlson -- mcarlson@llrlaw.com -- Lichten & Liss-Riordan, P.C. Open Door Marketing, LLC, Larry Dale Clark & Jerrimy Farris, Defendants, represented by Kristin Alexandria Smith -- ksmith@fosteremploymentlaw.com -- Foster Employment Law & Michael Leslie Thompson, Lehr Middlebrooks Vreeland and Thompson, P.C. OOMA INC: Continues to Defend "Barnett" Suit Over IPO ----------------------------------------------------- Ooma, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on April 2, 2018, for the fiscal year ended January 31, 2018, that the company continues to defend itself in a consolidated class action suit initiated by Michael Barnett. On January 14, 2016, Michael Barnett filed a purported stockholder class action in the San Mateo County Superior Court of the State of California (Case No. CIV536959) against the Company, certain of its officers and directors, and certain of the underwriters of the company's IPO on July 17, 2015. Since that time two additional purported class actions making substantially the same allegations against the same defendants were filed, and on May 18, 2016, all three complaints were combined into a "consolidated complaint" filed in the same court (the "Securities Litigation"). The consolidated complaint purports to be brought on behalf of all persons who purchased shares of common stock in the company's IPO in reliance upon the Registration Statement and Prospectus the Company filed with the SEC. The consolidated complaint alleges that the Company and the other defendants violated the Securities Act of 1933, as amended (the "Securities Act") by issuing the Registration Statement and Prospectus, which the plaintiffs allege contained material misstatements and omissions in violation of Sections 11, 12(a)(2) and 15 of the Securities Act. The plaintiffs seek class certification, compensatory damages, attorneys' fees and costs, rescission or a rescissory measure of damages, equitable and/or injunctive relief, and such other relief as the court may deem proper. On July 1, 2016, the Company filed its answer to the complaint, on August 26, 2016 the Company filed a motion for judgment on the pleadings, and on January 5, 2017, the Superior Court issued an order in response to such motion, granting the Company's motion to dismiss the claims pursuant to Sections 12(a)(2) and 15 of the Securities Act, with leave to amend, and denying the Company's motion to dismiss the claims pursuant to Section 11 of the Securities Act. Ooma said in its Form 10-Q Report for the quarterly period ended October 31, 2017, that the parties participated in a confidential mediation session on August 4, 2017 that did not result in a resolution of the Securities Litigation. On August 28, 2017, the plaintiffs filed a motion to amend the consolidated complaint, which, among other things, added back in the original claims based on Sections 12(a)(2) and 15 of the Securities Act (The "Section 12 and 15 Claims"). On November 29, 2017, the court dismissed the Section 12 and 15 Claims with prejudice, but denied the Company's motions to (a) dismiss the amended consolidated case on grounds that state courts lack subject matter jurisdiction to hear federal securities class action claims, and (b) to stay the case pending the United States Supreme Court's decision in Cyan v. Beaver Cnty. Emp. Ret.' Fund, which takes up the same issue of subject matter jurisdiction. In its Form 10-K Report, the Company said that on January 11, 2018, Ooma filed a petition for writ of mandate with the California Court of Appeal seeking to overturn the Superior Court's denial of the motion to stay, and on February 21, 2018, the writ was denied. On March 20, 2018, the United States Supreme Court published its decision in the Cyan case, holding that state courts have subject matter jurisdiction to hear claims brought under the Securities Act, such as the claims alleging violations of Section 11 of the Securities Act (the only remaining claims in the Securities Litigation) brought against the Company in the Superior Court. The Company believes the plaintiffs' claims are without merit and the Company is vigorously defending against the Securities Litigation and will continue to do so. However, litigation is unpredictable and there can be no assurances that the Company will obtain a favorable final outcome or that it will be able to avoid unfavorable preliminary or interim rulings in the course of litigation that may significantly add to the expense of its defense and could result in substantial costs and diversion of resources. Based on the Company's current knowledge, the Company has determined that the amount of any material loss or range of any losses that is reasonably possible to result from the Securities Litigation is not estimable. Ooma creates powerful connected experiences for businesses and consumers. The company's smart SaaS platform serves as a communications hub, which offers cloud-based telephony, home security and other connected services. The company is based in Sunnyvale, California. PENNSYLVANIA: Court Dismisses "Marmolejos" Suit ----------------------------------------------- The United States District Court for the Western District of Pennsylvania granted Defendant's Motion to Dismiss the case captioned MARVIN MARMOLEJOS, and KEVIN WILLIAMS (aka Kirby Stewart), Plaintiffs, v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, and GLOBAL TEL*LINK CORP., Defendants, Civil Case No. 17-cv-13 (W.D. Pa.), after adopting a magistrate judge's report and recommendation recommending that the Court grant the Defendant's Motion. Plaintiffs, Marvin Marmolejos and Kevin Williams, acting pro se, filed this purported class action pursuant to 42 U.S.C. Section 1983 on January 18, 2017. Plaintiffs complain that computer tablets offered for purchase by Global Tel*Link through a Department of Corrections program are overpriced and faulty for several reasons. The Plaintiffs allege that the Pennsylvania Department of Corrections and Global Tel*Link are liable for false advertising, fraud, misrepresentation, and gross negligence. The Defendant argues that it is not amenable to suit because it is not a person as required for the purposes of Section 1983 and that it is entitled to immunity under the Eleventh Amendment. The R&R is plainly correct. Eleventh Amendment immunity prevents Plaintiffs from suing the Department of Corrections as a matter of law. Because the Commonwealth of Pennsylvania's Department of Corrections is a part of the executive department of the Commonwealth, it shares in the Commonwealth's Eleventh Amendment immunity. Pa. Stat. Ann., tit. 71, Section 61. A full-text copy of the District Court's March 12, 2018 Order is available at https://tinyurl.com/y9ye4cfw from Leagle.com. MARVIN MARMOLEJOS, Plaintiff, pro se. KEVIN WILLIAMS, also known as KIRBY STEWART, Plaintiff, pro se. GLOBEL TEL*LINK CORP, Defendant, represented by Karl S. Myers -- kmyers@stradley.com -- Stradley Ronon Stevens & Young, LLP, pro hac vice & Jonathan F. Bloom -- jbloom@stradley.com -- Stradley, Ronon, Stevens & Young. PERRY'S STEAKHOUSE: Court Certifies Table-Servers Class ------------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, granted Plaintiffs' Motion for Partial Class and Collective Action Certification in the case captioned JESSICA BERGER AND TIMOTHY RENDAK, Plaintiffs, v. PERRY'S STEAKHOUSE OF ILLINOIS, LLC; HOWARD CORTES; AND JEFFERY PAGNOTTA, Defendants, No. 14 C 8543 (N.D. Ill.). Jessica Berger and Timothy Rendak worked as table-servers at Perry's Steakhouse and Grille in Oak Brook, Illinois. They allege that Perry's and their managers, Howard Cortes and Jeffery Pagnotta, failed to pay them all the tips which they were owed, and required them to perform non-table-service related work at less than minimum wage, in violation of the federal Fair Labor Standards Act and the Illinois Minimum Wage Law. Here, the Plaintiffs seek certification under subsection (3), which requires a finding that 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 the fair and efficient adjudication of the controversy. Sub-Class Two: Tip Refund Claim Numerosity The Defendants do not dispute that they had a tip refund policy regarding credit card processing fees. The Defendants employed 41 individual table-servers in the month of December 2013 alone. This is sufficient to satisfy the numerosity requirements. Commonality The Defendants admit that they had a policy of retaining 3.25% of all credit card tips paid to table-servers to offset the expense of converting the tip to cash. The Plaintiffs cite the Defendants' December 2013 credit card processing fee statement to assert that the Defendants paid only a 1.8% fee to process credit card charges. The Court's review of this document shows total credit card sales of $543,304.46 and total interchange fee of $10,990.91. This is a 2% fee. In any case, it is less than the 3.25% the Defendants withheld from table-servers. Whether retention of 3.25% of tips violates the FLSA and the IMWL is a question common to all table-servers who were subject to the retention policy. Typicality A claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and [the] claims are based on the same legal theory. The Plaintiffs' claims arise from their work for the Defendants as servers, and the putative class is defined as those who worked for the Defendants as servers. The Defendants have not identified, and the Court does not perceive, any meaningful fact that would distinguish the Defendants' conduct towards the named plaintiffs from the Defendants' conduct toward the rest of the class. Thus, the named plaintiffs' claims are typical of the class as a whole. Adequacy Lead Plaintiffs' counsel, Colleen M. McLaughlin, is an experienced employment law attorney, and has been lead trial counsel on three other wage and hour class actions, two of which resulted in settlements favorable to the plaintiffs. The Defendants do not challenge the Plaintiffs' counsel's adequacy. The Court finds that Ms. McLaughlin meets the adequacy requirement. The Court does not perceive there to be any conflict between the named plaintiffs, Ms. Berger and Mr. Rendak, and the Defendants have identified none. Thus, the Court finds they are adequate class representatives. Predominance Rule 23(b)(3)'s predominance requirement is satisfied when common questions represent a significant aspect of a case and can be resolved for all members of a class in a single adjudication. Here, whether the Defendants' policy of withholding 3.25% of tips to pay credit card processing fees complied with the FLSA and IMWL is the primary question regarding the Defendants' potential liability. The Defendants have not identified any questions regarding any individual plaintiff's liability that would undermine this commonality, and the Court does not perceive there to be any at this time. Thus, this common question predominates over any individual questions. Superiority Factors used to evaluate superiority include: (A) the class members' interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desireability or undesireability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. Here, the clear predominance of the question of the legality of the Defendants' tip retention policy makes class treatment of this question the superior method of adjudication. The Defendants do not suggest a more efficient alternative. The Plaintiffs' motion to certify the classes and collective actions identified in Plaintiffs' motion is granted. A full-text copy of the District Court's March 12, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/y8lnkn6z from Leagle.com. Jessica Berger & Timothy Rendak, Plaintiffs, represented by Colleen M. McLaughlin, The Law Offices of Colleen M. McLaughlin, 1751 S Naperville Rd # 209, Wheaton, IL 60189, USA, Elissa Joy Hobfoll, Hobfoll Law, 73 W Monroe St., Chicago, IL, 60603-4910& Gregory Scott Dierdorf, The Law Offices of Colleen M. McLaughlin, 1751 S Naperville Rd # 209, Wheaton, IL 60189, USA Perry's Steakhouse of Illinois, LLC, doing business as Perry's Steakhouse and Grille, Defendant, represented by Jeffrey S. Fowler -- jfowler@lanermuchin.com -- Laner Muchin, Ltd. & Lionel M. Schooler -- lschooler@jw.com -- Jackson Walker L.l.p., pro hac vice. PETROBRAS: June 9 Settlement Claims Submission Deadline Set ----------------------------------------------------------- Battea Class Action Services provided an update on the Petrobras class action settlement. USD $3 Billion US settlement: In January 2018, Petrobras announced that in connection with the losses investors suffered from the Lava Jato bribery scandal, it had agreed to a USD $3 Billion settlement with investors who purchased Petrobras Common or Preferred American Depository Shares (ADS) and certain bonds in the U.S. The court has preliminarily approved the proposed settlement. The deadline to submit a claim in the U.S. case is set for June 9, 2018. International Litigation and Settlement Initiative in the Netherlands: Separately, litigation efforts conducted by Stichting Petrobras Compensation Foundation against Petrobras continue in the Netherlands on behalf of investors who also suffered billions of dollars in losses in Petrobras common shares (PETR3) and Petrobras preferred shares (PETR4), which are listed on BM&F Bovespa, as well as Petrobras bonds that were sold outside of the U.S. The next hearing date for that litigation is on June 28, 2018 in District Court in Rotterdam. Investor Claims Filing and Participation: The landscape surrounding the global litigations against Petrobras and related settlements and loss recovery opportunities for investors is more complex than usual due to a multitude of factors, including the complexity of Petrobras' capital structure, with its equity being listed on exchanges in the US, Brazil, and through global linked market systems, and the numerous securities that are eligible for recovery, as well as the multiple currency denominations of Petrobras bonds that were issued and offered both in the US and internationally. The proposed US settlement has a number of qualifying conditions and more than 20 different equity related price loss calculations. Identifying and asserting the proper securities in each of the proposed or pending settlements will be critical for investors to ensure they receive all of the monies to which they are entitled. Battea is the leading global expert in all stages of class actions and class settlements in connection with securities, foreign exchange, derivatives, and antitrust litigations and settlements, acting on behalf of more than 700 institutional investors worldwide, including the world's biggest banks, hedge funds, and buy-side investors. Battea has provided litigation research and analyzed massive streams of Petrobras trading transaction data on behalf of its global client base and is uniquely positioned to assist interested institutional investors who have transacted in both US and non-US based Petrobras securities. Underscoring the Company's specialized expertise in the Petrobras matter, it has been retained to process and analyze investor transaction eligibility by the international coalition undertaking the international litigation efforts in the Netherlands. Who is Eligible to Recover in the US Settlement: The US Settlement covers persons or entities that purchased or otherwise acquired equity or debt securities of Petrobras (or Petrobras International Finance Company S.A. and/or Petrobras Global Finance B.V., its wholly owned financing subsidiaries) on the NYSE or that cleared or settled through DTC's book-entry system, or pursuant to certain other covered transactions between January 22, 2010 and July 28, 2015; and/or purchased or otherwise acquired debt securities issued by Petrobras or its financing subsidiaries directly in, pursuant to and/or traceable to a May 13, 2013 public offering registered in the U.S. and/or a March 10, 2014 public offering registered in the U.S. before August 11, 2014, in the case of the May 13, 2013 public offering, or before May 15, 2015, in the case of the March 10, 2014 public offering. Who is Eligible to Participate in the International Recovery Action in the Netherlands: The pending international recovery action in the Netherlands covers all persons who purchased or acquired before July 28, 2015 any Petrobras security not covered by the US Settlement, which includes both Petrobras common and preferred shares traded on Bovespa or through linked market systems outside of the US, as well as all bonds offered outside of the US. Petrobras Global Finance B.V., which promoted Petrobras to the international capital markets, is not headquartered in Brazil, but rather in Rotterdam, the Netherlands, where other Petrobras subsidiaries involved in the Lava Jato bribery scandal are domiciled as well. Further in the EU, Petrobras became subject to the CNMV, the Spanish Financial Market Regulator, when the Company opened access to its shares listed on Bovespa through a linked market system arrangement with Bolsa de Madrid. About Battea - Class Action Services, LLC Battea - Class Action Services, via its comprehensive secure datacenter hosted technology platforms and The Claims Engine(R), automates class action settlement award recovery across all asset classes for nearly 20 years and in excess of 700 institutional investors, including hedge funds, asset management firms, sovereign and pension funds, endowments and family offices. Battea is trusted as a global leader, and consulted as experts, in all stages of asserting and processing settlement claims in connection with antitrust and securities litigation. Battea maintains corporate headquarters in Stamford, CT and San Francisco, CA and has support agents in several international locations including London, Madrid, Scandinavia, Luxembourg and others. About Battea Global Litigation Research, Inc. Battea Global Litigation Research, Inc., a subsidiary of Battea Class Action Services, LLC, is responsible tracking of settlements and litigation initiatives globally and provide in- depth analysis, expert event and damages studies for clients and shareholder associations and foundations. Comprised of an international team of experts in the legal and financial markets, Battea Global Litigation Research maintains offices in both Stamford, CT and Copenhagen, Denmark. [GN] PURE STORAGE: California Shareholder Class Suit Dismissed --------------------------------------------------------- Pure Storage, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended October 31, 2017, that the Court dismissed a consolidated securities class action captioned, In re Pure Storage, Inc. Shareholder Litigation. In September 2016, a purported securities class action entitled Ramsay v. Pure Storage, Inc., et al. was filed in the Superior Court of the State of California (San Mateo County) against the company and certain of its officers, directors, investors and underwriters for the company's initial public offering (IPO), asserting claims under sections 11, 12 and 15 of the Securities Act. Substantially identical lawsuits were subsequently filed in the same Court, bringing the same claims against the same defendants. In October 2016, these actions were consolidated under the caption In re Pure Storage, Inc. Shareholder Litigation. In January 2017 and May 2017, the defendants filed demurrers (motions to dismiss) to plaintiffs' complaints on the grounds that the plaintiffs failed to state a claim under the Securities Act, and both times, in April 2017 and August 2017, the Court sustained the demurrers in defendants' favor as to all claims with leave to amend. The plaintiffs subsequently agreed to dismiss the lawsuit entirely, with no amendment or appeal, and in October 2017, the Court dismissed the consolidated action without prejudice. Pure Storage, Inc. engages in building a data platform that enables businesses to enhance performance and reduce complexity and costs worldwide. The company is based in Mountain View, California. QUEST NUTRITION: Court Dismisses FAC in "Cairo" ----------------------------------------------- The United States District Court for the Central District of California, Southern Division, dismissed the First Amended Class Action Complaint in the case captioned CAIRO, an individual, SEDALE ADAMS, an individual, and ASAIAH SQUITIERI, an individual, on behalf of themselves and others similarly situated, Plaintiffs, v. QUEST NUTRITION, LLC, Defendant, Case No. 8:17-cv- 00137-CJC-KES (C.D. Cal.), pursuant to a Joint Stipulation to Dismiss the First Amended Class Action Complaint. The Plaintiffs' individual claims in the First Amended Class Action Complaint are dismissed with prejudice and all of the Plaintiffs' putative class claims on behalf of the alleged putative class members are dismissed without prejudice. Cairo, an individual, Sedale Adams, an individual & Asaiah Squitieri, an individual, on behalf of themselves and others similarly situated,, Plaintiffs, represented by C.K. Lee, CK Lee Law Offices, pro hac vice & Benjamin Michael Lopatin -- blopatin@elplawyers.com -- Eggnatz Lopatin and Pascucci LLP. Quest Nutrition, LLC, Defendant, represented by George C. Salmasg -- salmas@salmas-law.com -- Salmas Law Group &Michael Robert Hambly -- mhambly@salmas-law.com -- Salmas Law Group. RAMOS FURNITURE: Time to File Damages Bid in "Topete" Extended -------------------------------------------------------------- The United States District Court for the Eastern District of California granted Plaintiffs' Request for Extension of time to file the Rule 55 motion and to file a Rule 23 motion to dismiss the class claims in the case captioned MARISOL TOPETE and ROSALBA MALDONADO, Plaintiffs, v. RAMOS FURNITURE; FURNITURE DEALS, INC.; DIMAS MANUEL, INC.; and DOES 1-100, inclusive, Defendants, Case No. 1:16-cv-00271-EPG (E.D. Cal.). The Plaintiffs commenced this class action alleging violations of the Fair Labor Standards Act, etc. A full-text copy of the District Court's March 12, 2018 Order is available at https://tinyurl.com/yay9a9hv from Leagle.com. Marisol Topete & Rosalba Maldonado, Plaintiffs, represented by Andrew Butler Jones, Esq. -- abutlerjones@akingump.com -- Wagner & Jones, Angela Elizabeth Martinez, Wagner, Jones, Kopfman & Artenian LLP, Daniel Myers Kopfman, Law Offices of Wagner Jones & Nicholas John Paul Wagner, Law Offices of Wagner & Jones. 1111 E Herndon Ave Ste 317. Fresno, CA, 93720-3100 Ramos Furniture, Defendant, pro se. Furniture Deals, Inc., Defendant, pro se. RAYMOURS FURNITURE: Court Compels Arbitration in "Castellanos" -------------------------------------------------------------- The United States District Court for the Eastern District of New York granted Defendant's Motion to Compel Arbitration in the case captioned ERIC CASTELLANOS, ET AL., Plaintiffs, v. RAYMOURS FURNITURE COMPANY, INC., Defendant, No. 17-CV-1923 (JFB)(ARL) (E.D.N.Y.). The Plaintiffs bring this putative class action on behalf of themselves and similarly situated individuals against Raymours Furniture Company, Inc., for violations of the Fair Labor Standards Act (FLSA) and related New York state wage and labor laws. While employed by Raymours, each plaintiff agreed to be bound by an Employee Arbitration Program (EAP). The EAP also establishes a 180-day2 statute of limitations for asserting a claim. Specifically, the EAP provides: A Claim must be filed with the Administrator within 180 days after it arises. If a Claim is not filed with the Administrator within the time period described above, the party wishing to assert it will forever waive and lose the right to seek relief for that Claim. Raymours moves to compel arbitration on an individual basis, strike plaintiffs' class allegations, and dismiss the complaint. Whether the EAP's Limitations Period is Enforceable is for the Court to Decide The issue before the Court is not whether the EAP's limitations period has been met; it is whether the EAP's limitations period is enforceable. That issue falls squarely within the Court's province. The EAP expressly reserves issues concerning the EAP's enforceability for the Court. Specifically, it states that disputes about the validity, enforceability or scope of this Program or any part thereof are for a court or agency and not an arbitrator to decide. The Court will determine whether the EAP's statute of limitations is enforceable. The EAP's Limitations Period is Unenforceable The FAA mandates that arbitration agreements subject to that statute shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. The Court finds the non-binding case authority discussed above to be persuasive, and concludes that the EAP's 180-day statute of limitations is unenforceable as to plaintiffs' FLSA claims. First, the provision contravenes congressional commands. Congress chose to distinguish between ordinary and willful FLSA violations by providing an extended limitations period for the latter. The EAP which provides employees with 180 days to assert a claim without regard to the egregiousness of the violations -- eliminates that intended distinction. Second, the EAP's limitations period is unenforceable under the effective vindication exception. The Supreme Court made clear in Italian Colors that the effective vindication exception applies when a provision operates as a prospective waiver of a party's right to pursue statutory remedies. The Supreme Court further instructed that the exception would certainly cover a provision in an arbitration agreement forbidding the assertion of certain statutory rights. Here, because the EAP's limitations period operates as a waiver of the plaintiffs' rights to pursue the full amount of damages provided for by the FLSA, the effective vindication doctrine applies. The EAP's Class Action Waiver is Enforceable Binding Second Circuit precedent requires the Court to enforce the EAP's class action waiver. Specifically, in Sutherland, the Second Circuit held that the FLSA does not preclude the waiver of collective action claims. 726 F.3d at 296. Accordingly, the plaintiffs must proceed to arbitration on an individual basis. In addition, because the EAP provides that claims cannot be litigated on a class basis, the Court grants the defendant's motion to strike the complaint's class allegations. The Court grants defendant's motion to compel arbitration on an individual basis, but severs the EAP's 180-day statute of limitations. A full-text copy of the District Court's March 12, 2018 Memorandum and Order is available at https://tinyurl.com/y9yxu2dw from Leagle.com. Eric Castellanos, Luis Rios, Allen Stetler, Jean Pierre Louis & Jose Portillo, on behalf of themselves and all other persons similarly situated, Plaintiffs, represented by Peter Arcadio Romero -- promero@romerolawny.com Raymours Furniture Company, Inc., Defendant, represented by David M. Wirtz -- dwirtz@littler.com -- Littler Mendelson, P.C., Edward T. Groh, Raymour & Flanigan, 1314 U.S. Highway 22. Phillipsburg, NJ 08865. & Kevin Robert Vozzo -- kvozzo@littler.com -- Littler Mendelson. RESHAPE LIFESCIENCES: Discovery Ongoing in "Du" Class Suit ---------------------------------------------------------- ReShape Lifesciences Inc.said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on April 2, 2018, for the fiscal year ended December 31, 2017, that discovery is ongoing in the class action and derivative complaint filed by Vinh Du. On February 28, 2017, the Company received a class action and derivative complaint filed on February 24, 2017 in U. S. District Court for the District of Delaware by Vinh Du, one of the Company's shareholders. The complaint names as defendants ReShape Lifesciences, the board of directors and four members of our senior management, namely, Scott Youngstrom, Nick Ansari, Peter DeLange and Paul Hickey, and contains a purported class action claim for breach of fiduciary duty against the board of directors and derivative claims for breach of fiduciary duty against the board of directors and unjust enrichment against our senior management. The allegations in the complaint relate to the increase in the number of shares authorized for grant under the company's Second Amended and Restated 2003 Stock Incentive Plan (the "Plan"), which was approved by the company's shareholders at the Special Meeting of Shareholders held on December 12, 2016 (the "Special Meeting"), and to its subsequent grant of stock options on February 8, 2017, to the Company's Directors and senior management to purchase an aggregate of 1,093,450 shares of the company's common stock (the "Option Grants"). In the complaint, the plaintiff contends that (i) the number of shares authorized for grant under the Plan, as adjusted by the board of directors after the Special Meeting for the subsequent recapitalization of the Company, resulted from an alleged breach of fiduciary duties by the board of directors, and (ii) the company's senior management was allegedly unjustly enriched by the subsequent Option Grants. The plaintiff seeks relief in the form of an order rescinding the Plan as approved by the shareholders at the Special Meeting, an order cancelling the Option Grants, and an award to plaintiff for his costs, including fees and disbursements of attorneys, experts and accountants. ReShape Lifesciences said in its Form 10-Q Report for the quarterly period ended September 30, 2017, that on April 17, 2017, the company filed a motion to dismiss the complaint based on the plaintiff's failure to satisfy Delaware's demand requirement for a derivative action and failure to state a valid claim. The motion was fully briefed and the Court was slated to hear oral argument on November 28, 2017. In its Form 10-K Report, the Company said the court denied the motion to dismiss on November 30, 2017. Discovery is on-going. ReShape Lifesciences said "We believe the allegations in the complaint are without merit, and intend to defend the action vigorously." ReShape Lifesciences Inc., a medical device company, focuses on the design and development of devices that use neuroblocking technology to treat obesity, metabolic diseases, and other gastrointestinal disorders. The company is based in San Clemente, California. SIBANYE GOLD: Mine Workers Class Action Suit Still Ongoing ---------------------------------------------------------- Sibanye Gold Limited said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on April 2, 2018, for the fiscal year ended December 31, 2017, that the company continues to defend itself in a consolidated class action suit filed by mine workers. During 2012 and 2014, two court applications were served on Sibanye-Stillwater and its subsidiaries (as well as other mining companies) by various applicants who represent classes of mine workers (and where deceased, their dependents) who were previously employed by or who are employees of, among others, Sibanye-Stillwater or any of its subsidiaries and who allegedly contracted silicosis and/or tuberculosis. The two class actions were consolidated into one application on 17 October 2014. In terms of the consolidated application, the court was asked to allow the class actions to be certified. On 13 May 2016, the High Court ordered, among other things: (1) the certification of two classes: (a) a silicosis class comprising current and former mine workers who have contracted silicosis and the dependents of mine workers who have died of silicosis; and (b) a tuberculosis class comprising current and former mine workers who have worked on the mines for a period of not less than two years and who have contracted pulmonary tuberculosis and the dependents of deceased mine workers who died of pulmonary tuberculosis; and (2) that the common law be developed to provide that, where a claimant commences suing for general damages and subsequently dies before close of pleadings, the claim for general damages will transmit to the estate of the deceased claimant. The progression of the classes certified will be done in two phases: (i) a determination of common issues, on an opt-out basis, and (ii) the hearing and determination of individualized issues, on an opt-in basis. In addition, costs were awarded in favour of the claimants. The High Court ruling did not represent a ruling on the merits of the cases brought by the Claimants. Sibanye-Stillwater and the other respondents believed that the judgment addressed a number of highly complex and important issues, including a far reaching amendment of the common law, that have not previously been considered by other courts in South Africa. The High Court itself found that the scope and magnitude of the proposed claims is unprecedented in South Africa and that the class action would address novel and complex issues of fact and law. The respondents applied for leave to appeal against the judgment because they believed that the court's ruling on some of these issues is incorrect and that another court may come to a different decision. On 21 September 2016, the Supreme Court of Appeal granted the respondents leave to appeal against all aspects of the class certification judgment of the South Gauteng High Court delivered in May 2016, however the appeal case has since been postponed indefinitely as Sibanye-Stillwater, the other respondents and the claimants representatives have made significant progress in the attempt to have this matter settled out of court. Sibanye Gold said "It has to be noted, however, that whatever settlement and whenever it is concluded, will still be subject to approval by court." Sibanye Gold Limited (trading as Sibanye-Stillwater (Sibanye- Stillwater)), a South African domiciled global, precious metals mining company, which produces a mix of metals that includes gold and the platinum group metals (PGMs). Sibanye-Stillwater owns and operates a portfolio of high-quality operations and projects, which are grouped into two regions: the southern Africa region and the United States region. SIGNET JEWELERS: Oral Argument Set for May 7 in 2nd Cir. Appeal --------------------------------------------------------------- Signet Jewelers Limited said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on April 2, 2018, for the fiscal year ended February 3, 2017, that the United States Court of Appeals for the Second Circuit has scheduled oral argument for May 7, 2018, in an appeal related to a class action lawsuit. In March 2008, a group of private plaintiffs (the "Claimants") filed a class action lawsuit for an unspecified amount against SJI, a subsidiary of Signet, in the US District Court for the Southern District of New York alleging that US store-level employment practices are discriminatory as to compensation and promotional activities with respect to gender. In June 2008, the District Court referred the matter to private arbitration where the Claimants sought to proceed on a class-wide basis. The Claimants filed a motion for class certification and SJI opposed the motion. On February 2, 2015, the arbitrator issued a Class Determination Award in which she certified for a class-wide hearing Claimants' disparate impact declaratory and injunctive relief class claim under Title VII, with a class period of July 22, 2004 through date of trial for the Claimants' compensation claims and December 7, 2004 through date of trial for Claimants' promotion claims. The arbitrator otherwise denied Claimants' motion to certify a disparate treatment class alleged under Title VII, denied a disparate impact monetary damages class alleged under Title VII, and denied an opt-out monetary damages class under the Equal Pay Act. On February 9, 2015, Claimants filed an Emergency Motion To Restrict Communications With The Certified Class And For Corrective Notice. SJI filed its opposition to Claimants' emergency motion on February 17, 2015, and a hearing was held on February 18, 2015. Claimants' motion was granted in part and denied in part in an order issued on March 16, 2015. Claimants filed a Motion for Reconsideration Regarding Title VII Claims for Disparate Treatment in Compensation on February 11, 2015, which SJI opposed. April 27, 2015, the arbitrator issued an order denying the Claimants' Motion. SJI filed with the US District Court for the Southern District of New York a Motion to Vacate the Arbitrator's Class Certification Award on March 3, 2015, which Claimants opposed. On November 16, 2015, the US District Court for the Southern District of New York granted SJI's Motion to Vacate the Arbitrator's Class Certification Award in part and denied it in part. On December 3, 2015, SJI filed with the United States Court of Appeals for the Second Circuit SJI's Notice of Appeal of the District Court's November 16, 2015 Opinion and Order. On November 25, 2015, SJI filed a Motion to Stay the AAA Proceedings while SJI appeals the decision of the US District Court for the Southern District of New York to the United States Court of Appeals for the Second Circuit, which Claimants opposed. The arbitrator issued an order denying SJI's Motion to Stay on February 22, 2016. SJI filed its Brief and Special Appendix with the Second Circuit on March 16, 2016. The matter was fully briefed and oral argument was heard by the U.S. Court of Appeals for the Second Circuit on November 2, 2016. On April 6, 2015, Claimants filed in the AAA Claimants' Motion for Clarification or in the Alternative Motion for Stay of the Effect of the Class Certification Award as to the Individual Intentional Discrimination Claims, which SJI opposed. On June 15, 2015, the arbitrator granted the Claimants' motion. On March 6, 2017, Claimants filed Claimants' Motion for Conditional Certification of Claimants' Equal Pay Act Claims and Authorization of Notice, which SJI opposed The arbitrator heard oral argument on Claimants' Motion on December 18, 2015 and, on February 29, 2016, issued an Equal Pay Act Collective Action Conditional Certification Award and Order Re Claimants' Motion For Tolling Of EPA Limitations Period, conditionally certifying Claimants' Equal Pay Act claims as a collective action, and tolling the statute of limitations on EPA claims to October 16, 2003 to ninety days after notice issues to the putative members of the collective action. SJI filed in the AAA a Motion To Stay Arbitration Pending The District Court's Consideration Of Respondent's Motion To Vacate Arbitrator's Equal Pay Act Collective Action Conditional Certification Award And Order Re Claimants' Motion For Tolling Of EPA Limitations Period on March 10, 2016. SJI filed in the AAA a Renewed Motion To Stay Arbitration Pending The District Court's Resolution Of Sterling's Motion To Vacate Arbitrator's Equal Pay Act Collective Action Conditional Certification Award And Order Re Claimants' Motion For Tolling Of EPA Limitations Period on March 31, 2016, which Claimants opposed. On April 5, 2016, the arbitrator denied SJI's Motion. On March 23, 2016 SJI filed with the US District Court for the Southern District of New York a Motion To Vacate The Arbitrator's Equal Pay Act Collective Action Conditional Certification Award And Order Re Claimants' Motion For Tolling Of EPA Limitations Period, which Claimants opposed. SJI's Motion was denied on May 22, 2016. On May 31, 2016, SJI filed a Notice Of Appeal of Judge Rakoff's opinion and order to the Second Circuit Court of Appeals, which Claimant's opposed. On June 1, 2017, the Second Circuit Court of Appeals dismissed SJI's appeal for lack of appellate jurisdiction. Claimants filed a Motion For Amended Class Determination Award on November 18, 2015, and on March 31, 2016 the arbitrator entered an order amending the Title VII class certification award to preclude class members from requesting exclusion from the injunctive and declaratory relief class certified in the arbitration. The arbitrator issued a Bifurcated Case Management Plan on April 5, 2016, and ordered into effect the parties' Stipulation Regarding Notice Of Equal Pay Act Collective Action And Related Notice Administrative Procedures on April 7, 2016. SJI filed in the AAA a Motion For Protective Order on May 2, 2016, which Claimants opposed. The matter was fully briefed and oral argument was heard on July 22, 2016. The motion was granted in part on January 27, 2017. Notice to EPA collective action members was issued on May 3, 2016, and the opt-in period for these notice recipients closed on August 1, 2016. Approximately, 10,314 current and former employees submitted consent forms to opt in to the collective action; however, some have withdrawn their consents. The number of valid consents is disputed and yet to be determined. SJI believes the number of valid consents to be approximately 9,124. On July 24, 2017, the United States Court of Appeals for the Second Circuit issued its unanimous Summary Order that held that the absent class members "never consented" to the Arbitrator determining the permissibility of class arbitration under the agreements, and remanded the matter to the District Court to determine whether the Arbitrator exceeded her authority by certifying the Title VII class that contained absent class members who had not opted in the litigation. On August 7, 2017, SJI filed its Renewed Motion to Vacate the Class Determination Award relative to absent class members with the District Court. The matter was fully briefed and an oral argument was heard on October 16, 2017. On January 15, 2018, District Court granted SJI's Motion finding that the Arbitrator exceeded her authority by binding non-parties (absent class members) to the Title VII claim. The District Court further held that the RESOLVE Agreement does not permit class action procedures, thereby, reducing the Claimants in the Title VII matter from 70,000 to 254. Claimants dispute that the number of claimants in the Title VII is 254. On January 18, 2018, the Claimants filed a Notice of Appeal with the United States Court of Appeals for the Second Circuit. The appeal will be fully briefed by April 16, 2018. The Second Circuit has scheduled oral argument for May 7, 2018, on this appeal. On November 10, 2017, SJI filed in the arbitration motions for summary judgment, and for decertification, of Claimants' Equal Pay Act and Title VII promotions claims. On January 30, 2018, oral argument on SJI's motions was heard. On January 26, 2018, SJI filed a Motion to Vacate The Equal Pay Act Collective Action Award And Tolling Order asserting that the Arbitrator exceeded her authority by conditionally certifying the Equal Pay Act claim and allowing the absent claimants to opt-in the litigation. On March 12, 2018, the Arbitrator denied SJI's Motion to Vacate The Equal Pay Act Collective Action Award and Tolling Order. SJI still has a pending motion seeking decertification of the EPA Collective Action before the Arbitrator. On March 19, 2018, the Arbitrator issued an Order partially granting SJI's Motion to Amend the Arbitrator's November 2, 2017, Bifurcated Seventh Amended Case Management Plan resulting in a continuance of the May 14, 2018 trial date. A new trial date has not been set. Signet Jewelers said "SJI denies the allegations of the Claimants and has been defending the case vigorously. At this point, no outcome or possible loss or range of losses, if any, arising from the litigation is able to be estimated." Signet Jewelers Limited engages in the retail sale of diamond jewelry, watches, and other products in the United States, Canada, Puerto Rico, the United Kingdom, the Republic of Ireland, and the Channel Islands. SIGNET JEWELERS: Dismissal of "Masten" Class Action Sought ---------------------------------------------------------- Signet Jewelers Limited said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on April 2, 2018, for the fiscal year ended February 3, 2017, that Veronica Masten filed a request for dismissal with the district court. On May 12, 2017, SJI received notice that a Class Action Complaint against SJI and Signet Jewelers Ltd. (improperly named as a party) was filed by Veronica Masten in the Superior Court of California, County of Los Angeles, alleging violations of various wage and hour labor laws. The claims include: (1) failure to pay overtime; (2) failure to provide meal periods; (3) failure to reimburse business expenses; (4) failure to provide itemized wage statements; (5) failure to timely pay wages; and a derivative claims for (6) unfair competition. SJI filed its Answer to the Complaint on June 13, 2017. On June 14, 2017, SJI removed this matter to the United States District Court for the Central District of California. After engaging in limited discovery, Plaintiff agreed to pursue her claims on an individual basis in a separate forum, and sought to dismiss her claims in this action without prejudice. Plaintiff filed a request for dismissal with the district court on December 18, 2017. The Court has not yet formally ruled on the dismissal, however, the Court's docket indicates that the matter is closed. Signet Jewelers Limited engages in the retail sale of diamond jewelry, watches, and other products in the United States, Canada, Puerto Rico, the United Kingdom, the Republic of Ireland, and the Channel Islands. SIGNET JEWELERS: To Seek Dismissal of N.Y. Securities Suit ---------------------------------------------------------- Signet Jewelers Limited said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on April 2, 2018, for the fiscal year ended February 3, 2017, that defendants intend to seek dismissal of the fifth amended complaint in a consolidated securities class action lawsuit in New York. In August 2016, two alleged Company shareholders each filed a putative class action complaint in the United States District Court for the Southern District of New York against the Company and its then-current Chief Executive Officer and current Chief Financial Officer (Nos. 16-cv-6728 and 16-cv-6861, the "S.D.N.Y. cases"). On September 16, 2016, the Court consolidated the S.D.N.Y. cases under case number 16-cv-6728. On April 3, 2017, the plaintiffs filed a second amended complaint, purportedly on behalf of persons that acquired the Company's securities on or between August 29, 2013, and February 27, 2017, naming as defendants the Company, its then-current and former Chief Executive Officers, and its current and former Chief Financial Officers. The second amended complaint alleged that the defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 by, among other things, misrepresenting the Company's business and earnings by (i) failing to disclose that the Company was allegedly having issues ensuring the safety of customers' jewelry while in the Company's custody for repairs, which allegedly damaged customer confidence; (ii) making misleading statements about the Company's credit portfolio; and (iii) failing to disclose reports of sexual harassment allegations that were raised by claimants in an ongoing pay and promotion gender discrimination class arbitration (the "Arbitration"). The second amended complaint alleged that the Company's share price was artificially inflated as a result of the alleged misrepresentations and sought unspecified compensatory damages and costs and expenses, including attorneys' and experts' fees. In March 2017, two other alleged Company shareholders each filed a putative class action complaint in the United States District Court for the Northern District of Texas against the Company and its then-current and former Chief Executive Officers (Nos. 17-cv- 875 and 17-cv-923, the "N.D. Tex. cases"). Those complaints were nearly identical to each other and alleged that the defendants' statements concerning the Arbitration violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. The N.D. Tex. cases were subsequently transferred to the Southern District of New York and consolidated with the S.D.N.Y. cases (the "Consolidated Action"). On July 27, 2017, the Court appointed a lead plaintiff and lead plaintiff's counsel in the Consolidated Action. On August 3, 2017, the Court ordered the lead plaintiff in the Consolidated Action to file a third amended complaint by September 29, 2017. On September 29, 2017, the lead plaintiff filed a third amended complaint that covered a putative class period of August 29, 2013, through May 24, 2017, and that asserted substantially similar claims to the second amended complaint, except that it omitted the claim based on defendants' alleged misstatements concerning the security of customers' jewelry while in the Company's custody for repairs. The defendants moved to dismiss the third amended complaint on December 1, 2017. On December 4, 2017, the Court entered an order permitting the lead plaintiff to amend its complaint as of right by December 22, 2017, and providing that the lead plaintiff would not be given any further opportunity to amend its complaint to address the issues raised in the defendants' motion to dismiss. On December 15, 2017, Nebil Aydin filed a putative class action complaint in the United States District Court for the Southern District of New York against the Company and its current Chief Executive Officer and Chief Financial Officer (No. 17-cv-9853). The Aydin complaint alleged that the defendants made misleading statements regarding the Company's credit portfolio between August 24, 2017, and November 21, 2017, in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and sought unspecified compensatory damages and costs and expenses, including attorneys' and experts' fees. On January 7, 2018, the Aydin case was consolidated into the Consolidated Action. On December 22, 2017, the lead plaintiff in the Consolidated Action filed its fourth amended complaint, which asserted substantially the same claims as its third amended complaint for an expanded class period of August 28, 2013, through December 1, 2017. On January 26, 2017, the defendants moved to dismiss the fourth amended complaint. This motion was fully briefed as of March 9, 2018. On March 20, 2018, the Court granted the lead plaintiff leave to file a fifth amended complaint. On March 22, 2018, the lead plaintiff in the Consolidated Action filed its fifth amended complaint which asserts substantially the same claims as its fourth amended complaint for an expanded class period of August 29, 2013, through March 13, 2018. The prior motion to dismiss was denied as moot. The defendants were slated to file a new motion to dismiss the fifth amended complaint by March 30, 2018. Signet Jewelers Limited engages in the retail sale of diamond jewelry, watches, and other products in the United States, Canada, Puerto Rico, the United Kingdom, the Republic of Ireland, and the Channel Islands. SITO MOBILE: Bid to Dismiss "Roper" Suit Still Pending ------------------------------------------------------ Sito Mobile, Ltd. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on April 2, 2018, for the fiscal year ended December 31, 2017, that the motion to dismiss filed by the defendants in the case entitled, Roper v. SITO Mobile, Ltd., is still pending. On February 17, 2017, plaintiff Sandi Roper commenced a purported securities class action against the company and certain of its current and former officers and directors in the United States District Court for the District of New Jersey captioned Roper v. SITO Mobile, Ltd., Case No. 17-cv-1106-ES-MAH (D.N.J. filed Feb. 17, 2017). Sito Mobile. said in its Form 10-Q Report for the quarterly period ended September 30, 2017, that a lead plaintiff was appointed on May 8, 2017 and has until June 22, 2017 to file an amended complaint. Discovery has not commenced. In its Form 10-K Report, the Company said that on May 8, 2017, Red Oak Fund, LP, Red Oak Long Fund LP, Red Oak Institutional Founders Long Fund, and Pinnacle Opportunities Fund, LP (collectively, "Red Oak") were appointed lead plaintiffs. On June 22, 2017, Red Oak filed an amended complaint, purporting to represent a class of shareholders who purchased our common stock between August 15, 2016 and January 2, 2017 ("Class Period"). The amended complaint names as defendants the company's directors and certain of its officers during the Class Period. It alleges that defendants violated section 11 the Securities Act in connection with the September 16, 2016 offering of stock, by allegedly omitting material information from the registration statement and prospectus, and that the individual defendants are liable as controlling persons under section 15 of the 1933 Act. The amended complaint also alleges that defendants violated section 10(b) of the Securities Exchange Act of 1934 ( "Exchange Act") and SEC Rule 10b-5 promulgated thereunder by allegedly making materially false or misleading statements regarding its media placement revenues, and that the individual defendants are liable as controlling persons under section 20(a) of the Exchange Act. The amended complaint seeks unspecified damages. Defendants moved to dismiss the amended complaint on September 1, 2017. That motion is pending. Discovery has not commenced, and no trial date has been set for this action. SITO Mobile, Ltd. operates a mobile location-based advertising platform in the United States and Canada. Its mobile location- based advertising platform allows to transform digital marketing by delivering targeted mobile advertising campaigns based on geo- location, in-store traffic, and customer response for brands, agencies, and retailers. The company is based in Jersey City, New Jersey. SMURFIT KAPPA: Fails to Pay Overtime & Minimum Wage, Chavez Says ---------------------------------------------------------------- EDUARDO CHAVEZ, individually, and on behalf of other members of the general public similarly situated, the Plaintiff, v. SMURFIT KAPPA ORANGE COUNTY LLC, an unknown business entity; SMURFIT KAPPA NORTH AMERICA LLC, an unknown business entity; and DOES 1 through 100, inclusive, the Defendants, Case No. BC70936 (Cal. Super. Ct., April 19, 2018), seeks to recover unpaid overtime, unpaid meal period premiums, unpaid rest period premiums, and unpaid minimum wages under the California Labor Code. The Defendants employed Plaintiff and other persons as hourly- paid or non-exempt employees within the State of California, including the County of Los Angeles. The Defendants hired Plaintiff and the other class members, classified them as hourly- paid or non-exempt employees, and failed to compensate them for all hours worked and missed meal periods and/or rest breaks. The Defendants had the authority to hire and terminate Plaintiff and the other class members, to set work rules and conditions governing Plaintiffs and the other class members' employment, and to supervise their daily employment activities. The Defendants exercised sufficient authority over the terms and conditions of Plaintiffs and the other class members' employment for them to be joint employers of Plaintiff and the other class members. The Plaintiff and the other class members worked over eight hours in a day, and/or 40 hours in a week during their employment with the Defendants. The Plaintiff alleges that Defendants engaged in a pattern and practice of wage abuse against their hourly-paid or non-exempt employees within the State of California.[BN] The Plaintiff is represented by: Edwin Aiwazian, Esq. LAWYERS for JUSTICE, PC 410 West Arden Avenue, Suite 203 Glendale, CA 91203 Telephone: (818) 265 1020 Facsimile: (818) 265 1021 SPAR GROUP: Court Denies Dismissal of "Hogan" Suit -------------------------------------------------- The United States District Court for the District of Massachusetts denied Defendant's Motion to Dismiss in the case captioned PARADISE HOGAN, on behalf of himself and all other similarly situated, Plaintiff, v. SPAR GROUP, INC. and SPAR BUSINESS SERVICES, INC., Defendants, Civil No. 17-10024-LTS (D. Mass.). Hogan alleges that SBS and SPAR misclassify him and other Field Specialists as independent contractors rather than employees, such that SBS and SPAR avoid paying Wage Act-mandated expenses in relation to Hogan and other Field Specialists and compensate Hogan and other Field Specialists in an amount below the hourly minimum wage. The Defendants contend that, while Hogan brings claims under M.G.L. c. 149, he does not make a single factual allegation that the Defendants failed to pay him in accordance with this statute. The Court disagrees. Rather, the Complaint alleges that the Defendants classify Field Specialists as independent contractors that a Field Specialist's engagement with the Defendants bears qualities that establish an employment relationship that, in the course of their engagement, Field Specialists are required to incur costs and expenses that the Defendants do not reimburse and that the effect of misclassifying Field Specialists as independent contractors and not reimbursing their costs and expenses is that Field Specialists effectively earn an hourly wage that is less than minimum wage. These allegations contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face that Hogan and similarly situated Field Specialists, by virtue of being employees misclassified as independent contractors, (1) have earned wages that the Defendants have not paid and/or (2) have incurred costs that the Defendants by law may not exempt themselves from paying through special contracts or otherwise. Either of these theories, if proven, would establish a violation of M.G.L. c. 149 Section 148, which could serve as a predicate for Hogan's claim under Section 150. The Court thus denies Defendants' motion to dismiss Hogan's claims on Rule 12(b)(6) grounds. A full-text copy of the District Court's March 12, 2018 Order is available at https://tinyurl.com/ybquckso from Leagle.com. Paradise Hogan, Plaintiff, represented by Brook S. Lane -- brook@fairworklaw.com -- Fair Work P.C. & Hillary A. Schwab, Fair Work, P.C., 192 South Street, Suite 450. Boston, MA 02111. SPAR Group, Inc., Defendant, represented by James M. Nicholas -- jnicholas@foley.com -- Foley & Lardner LLP & Jillian M. Collins -- jcollins@foley.com -- Foley & Lardner LLP. SPAR Business Services, Inc., Defendant, represented by Delia A. Isvoranu -- delia.isvoranu@sedgwicklaw.com -- Sedgwick, LLP, pro hac vice, James M. Nicholas, Foley & Lardner LLP, Marc A. Koonin, Duane Morris LLP, pro hac vice, Robert D. Eass -- robert.eassa@sedgwicklaw.com -- Sedwick, LLP, pro hac vice & Jillian M. Collins, Foley & Lardner LLP. SPAR GROUP: Continues to Defend "Hogan" Class Action Suit --------------------------------------------------------- Spar Group, Inc. (SGRP) said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on April 2, 2018, for the fiscal year ended December 31, 2017, that the company continues to defend itself in a class action suit filed by Paradise Hogan. Paradise Hogan was engaged by and provided services to SBS (SPAR Business Services, Inc.) as an independent contractor pursuant to the terms of an "Independent Contractor Master Agreement" with SBS acknowledging his engagement as an independent contractor. On January 6, 2017, Hogan filed suit against SBS and SGRP (and part of the Company), styled Civil Action No. 1:17-cv-10024-LTS, in the U.S. District Court for District of Massachusetts. Hogan initially asserted claims on behalf of himself and an alleged nationwide class of similarly situated individuals who provided services to SBS and SGRP as independent contractors. Hogan alleged that he and other alleged class members were misclassified as independent contractors, and as a result of this purported misclassification, Hogan asserted claims on behalf of himself and the alleged Massachusetts class members under the Massachusetts Wage Act and Minimum Wage Law for failure to pay overtime and minimum wages, as well as state law claims for breach of contract, unjust enrichment, quantum meruit, and breach of the covenant of good faith and fair dealing. In addition, Hogan asserted claims on behalf of himself and the nationwide class for violation of the Fair Labor Standards Act's overtime and minimum wage provisions. On March 28, 2017, the Company moved to refer Hogan's claim to arbitration pursuant to his agreement, to dismiss or stay Hogan's case pending arbitration, and to dismiss Hogan's case for failure to state a specific claim upon which relief could be granted. On November 13, 2017, the Court convened a status conference call with the parties to discuss the impact on the case of the Supreme Court's pending decision in Epic Systems Corp. v. Lewis, in which the Supreme Court heard arguments in October 2017 and ultimately will decide whether arbitration clauses that include a waiver of a worker's right to bring or participate in a class action violate the National Labor Relations Act. On March 12, 2018, the Court denied both defendants' Motion to Dismiss for failure to state a claim, denied the Motion to Compel Arbitration as to SGRP, denied the Motion to Stay as to SGRP, and allowed the Motion to Stay as to SBS pending the outcome of the Supreme Court's decision in Epic Systems), which (depending on the Supreme Court's ruling) could result in all SBS disputes being sent to arbitration. SGRP has decided to appeal the District Court's decision to the First Circuit Court of Appeals and to seek a stay of the underlying litigation pending the outcome of the appeal, and the court has indicated that it would stay the action against SGRP pending the outcome of its appeal. This means that, if the appeal is unsuccessful, SGRP could have to go to trial without SBS, which SGRP will vigorously contest against all parties. SPAR Group, Inc., a Delaware corporation incorporated in 1995 ("SGRP"), and its subsidiaries (together with SGRP, the "SPAR Group" or the "Company"), is a diversified international merchandising and marketing services company and provides a broad array of services worldwide to help companies improve their sales, operating efficiency and profits at retail locations. The Company provides its merchandising and other marketing services to manufacturers, distributors and retailers worldwide, primarily in mass merchandise, office supply, grocery, drug, dollar, independent, convenience, home improvement, and electronics stores. The company is based in White Plains, New York. TARGET CORP: Settles Racial Discrimination Suit for $3.7MM ---------------------------------------------------------- Nigel Roberts, writing for Newsone, reports that Target settled a racial discrimination suit over its background check hiring process. The lawsuit highlights the unfair bias against Black job seekers with a criminal record, compared to Whites in the same situation. The retailer agreed on April 5 to pay $3.7 million in the class- action suit, which was brought on behalf of thousands of Black and Latino job applicants who've been denied positions at Target since May 2006, USA Today reported. Target routinely rejected job seekers for offenses that were irrelevant to the positions that applicants sought, the suit alleged. "Target's background check policy was out of step with best practices and harmful to many qualified applicants who deserved a fair shot at a good job," Sherrilyn Ifill, president of the NAACP Legal Defense and Education Fund, said in a statement. Having a criminal record is a major barrier to obtaining a job for the approximately 600,000 people released from incarceration each year, according to the Center For American Progress. That's especially true for the disproportionate number of Black former inmates who try to rebuild their lives. African-American men are incarcerated at nearly six times the rate of White men. And when formerly incarcerated Black and White men seek jobs, Black men are 50 percent less likely to get a call back from a potential employer compared to White men. Target had conditionally offered the two primary plaintiffs, Carnella Times and Erving Smith, jobs. However, the company decided not to hire them because Times had two misdemeanor convictions, and Smith had a felony drug charge that was 10 years when he applied. The company's hiring process violated Title VII of the Civil Rights Act of 1964, the attorneys for the plaintiffs argued. What's more, Target's screening practice was "overly broad" and "unfairly limited opportunities for Black and Latino applicants" because of the discriminatory criminal justice system, Ifill added. In addition to the payment, Target also agreed to modify its background check process and to donate $600,000 to organizations that assist former inmates. [GN] TECHNIPFMC PLC: Faces "Prause" Shareholder Class Action ------------------------------------------------------- TechnipFMC plc said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on April 2, 2018, for the fiscal year ended December 31, 2017, that the company faces a putative shareholder class action suit entitled, Prause v. TechncipFMC, et al. A purported shareholder class action filed in 2017 and amended in January 2018 and captioned Prause v. TechncipFMC, et al., No. 4:17-cv-02368 (S.D. Texas) is pending in the U.S. District Court for the Southern District of Texas against the Company and certain current officers and a former employee of the Company. The suit alleges violations of the federal securities laws in connection with the Company's restatement of our first quarter 2017 financial results and a material weakness in our internal control over financial reporting announced on July 24, 2017. TechnipFMC said "The Company is vigorously contesting the litigation and cannot predict its duration or outcome." TechnipFMC plc, a public limited company incorporated and organized under the laws of England and Wales, with registered number 09909709, and with registered office at One St. Paul's Churchyard, London EC4M 8AP, United Kingdom is a global leader in the subsea, onshore/offshore, and surface industries, with market-leading positions in oil and gas projects, technologies, systems, and services. TIGER BRANDS: Listeriosis Outbreak Class Action Pending ------------------------------------------------------- Christine Botha, writing for Daily Maverick, reports that World Health Day -- the global health awareness day initiated by the World Health Organisation (WHO) -- was celebrated on April 7. The theme for 2018 is universal health coverage, urging governments to actively pursue making access to essential quality healthcare services available to everyone. This theme is in line with the state's obligation to healthcare in terms of section 27(2) of the Constitution, to take "reasonable legislative and other measures within its available resources" to achieve the "progressive realisation" of the right. Universal health coverage, according to the WHO, is not limited to ensuring access to medical care but also includes public health service campaigns. A vital element of public healthcare is food safety. South Africa is currently facing the world's largest outbreak of listeriosis, a serious food-borne disease caused by the bacterium Listeria monocytogenes. As of 26 March 2018, 982 laboratory-confirmed cases have been reported and thus far more than 180 people have died. The goal of health for all would mean very little in wake of this epidemic unless an urgent review of food safety management in South Africa is undertaken. Listeriosis, according to the WHO, is one of most severe food- borne diseases, associated with a high mortality rate of 20% to 30%. The bacterium is found in soil, water and animal digestive tracts, and it is estimated that 2% to 10% of the general population carry the bacterium without any noted health impact. The bacterium, however, has the unique ability to multiply dangerously at low temperatures. Further, its resistance to high salt and acidity, often used as preservatives, makes it particularly difficult to control once contamination occurs in the processing chain. Refrigerated foods with a long shelf life, and ready-to-eat foods which require no further cooking, are particularly viable for high concentrations of the bacterium. The most vulnerable in society -- pregnant women, newborns, the elderly and immunodeficient people -- are especially at risk of contracting invasive listeriosis. After the Department of Health (DoH) identified the Polokwane food production facility of the processed-meat-manufacturer Enterprise Foods as the source of the current outbreak of listeriosis (driven by the bacterium's ST6 strain), a national recall of Enterprise's chilled meat products and an export ban of these products followed. Not only is the extent of the health impact to date unknown -- due to the long incubation period of listeriosis -- but the socio-economic impacts have also been extensive, with an estimated loss of over $8-million from the banned exported products alone. Enterprise and its holding company, Tiger Brands, are also potentially facing an enormous class action in terms of the Consumer Protection Act of 2008. The proposed class action envisages four classes of people claiming damages after consuming the contaminated Enterprise products, and a two-stage process to be followed regarding liability. Currently, the High Court has been asked to certify the four identified groups, and the applicants need to show that a class action is appropriate before leave will be granted to pursue the mooted class action. Turning to the regulation of food safety management in South Africa, various pieces of legislation and different state departments play a role. However, a glaring legislative lacuna in the public health sector is the out-of-date regulations, in terms of the Foodstuffs, Cosmetics and Disinfectants Act of 1972 (the Act). The Act regulates the sale, manufacture and export of foodstuffs, cosmetics and disinfectants. Foodstuffs, in terms of the Act, essentially include any article or substance, or ingredient thereof, which is ordinarily manufactured or sold for human consumption. Regulation 692 in terms of the Act, known as the Microbiological Standards for Foodstuffs and Related Matters Regulations, unpacks how microorganisms in foodstuffs should be tested, and includes microbiological limits. For example, there is a restriction on the quantity of bacterium Escherichia coli (E coli) in edible gelatin, but the regulations do not provide for the bacterium Listeria monocytogenes, or the manner it should be tested. Ample international guidance specifically targeting Listeria monocytogenes exists, including an international risk assessment framework published by the WHO and the United Nations Food and Agricultural Organisation (FAO). This can be used by governments to monitor the control of Listeria monocytogenes -- specifically in ready-to-eat foods. The European Commission's 2005 Regulation, Microbiological criteria for foodstuffs also specifically provides for the microbiological criteria of Listeria monocytogenes. Furthermore, Regulation 908 in terms of the Act, the Application of the Hazard Analysis and Critical Control Point system (HACCP system), also needs to be updated. The HACCP system, used to identify and control hazards in the food production process, only regulates food-handling enterprises processing groundnuts in terms of these Regulations. The Minister of Health may require other food sector enterprises to comply with the HACCP system, which in light of the listeriosis epidemic must be urgently attended to. Food-handling enterprises may already comply with international standards and specifically apply the HACCP system to fulfil the requirements of clients. However, the fact that the DoH has failed to update the above legislative lacuna in consideration of international trends is not reasonable. The listeriosis epidemic has exposed the crucial need for healthcare legislation to be regularly reviewed -- not only to ensure it is in line with international developments but also to prevent potential health catastrophes. A core provision of ensuring health for all should be to ensure that no harm is done and that the state is taking all reasonable measures to prevent health hazards. [GN] TRANSNATIONAL FOODS: Court Narrows Claims in "Lejbman" ------------------------------------------------------ The United States District Court for the Southern District of California granted in part and denied in part Defendant's Motion to Dismiss the case captioned VIVIAN LEJBMAN individually and on behalf of all others similarly situated, Plaintiff, v. TRANSNATIONAL FOODS, INC., a Florida corporation, et al., Defendants, Case No. 17-CV-1317-CAB-MDD (S.D. Cal.). The FAC asserts California's False Advertising Law ("FAL") Business & Professions Code Section 17500, et seq.; the Unfair Competition Law, Business & Professions Code Section 17200, et seq. ("UCL"); California's Consumers Legal Remedies Act, California Civil Code Section 1750, et seq. ("CLRA"); negligent misrepresentation; and intentional misrepresentation against Defendants for misrepresenting and misleading consumers regarding three the Pampa Octopus Products (Product). The FAC alleges that the Product is not octopus, but is actually squid (also known as Calamari). Squid is a lower quality form of seafood that is cheaper than octopus. Plaintiff Has Adequately Alleged the UCL, FAL, CLRA and Misrepresentation Claims In order to protect its citizens from unfair, deceptive or fraudulent business practices California has enacted a number of consumer protection statutes. The CLRA prohibits unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any customer. Here, the Plaintiff has set forth the factual allegations that the Product she purchased is not octopus. Her theory of fraud is that the Defendants, when faced with the increased cost of octopus, replaced the octopus in the Products with a cheaper substitute, squid, imported the product into the United States, and then marketed and sold the Product as octopus. In order to perpetuate the alleged fraud, the word Octopus or Pulpo is prominently displayed on the label of the Product to induce and mislead customers into buying a Product purporting to be octopus. Relying on the misrepresentations on the label, and believing she was buying octopus, the Plaintiff purchased the Product at a Wal-Mart store in San Diego County, California in 2016. For purposes of a motion to dismiss, the Court accepts as true the factual allegations of the FAC that the Product is not octopus and is in fact made with squid. The allegations of the FAC are sufficient to provide enough details concerning the who, what, when, where and how of the alleged fraud sufficient to satisfy Rule 9(b)'s specificity requirements. The Plaintiff has adequately pled her UCL, FAL, CLRA and misrepresentation claims. Accordingly, the motions to dismiss are denied as to these claims. The Court finds that the FAC adequately alleges that the Product is not what it purports to be. Plaintiff's Claims on Behalf of the Proposed Nationwide Class are Dismissed with Leave to Amend The Plaintiff has failed to establish that the claims of the nationwide class are sufficiently related to California to trigger application of the government interest test and its resulting determination whether California law should be applied on a class-wide basis. All that is alleged is that the Plaintiff is located in California and that she purchased the Product in 2016 from a Wal-Mart, located in San Diego County, California. The claims are being brought against Cerqueira, a company located in Spain, and Transnational, a company located in Florida with its principal place of business in Miami. Additionally, the FAC contains the general allegation that Transnational sells its products throughout the United States. But, noticeably absent from the pleading is any evidence that the out-of-state purchases were directed from California or had anything to do with California, such that California law might apply to those claims. Without more, the Plaintiff has not met her initial burden of demonstrating that California has significant contact or significant aggregation of contacts to the claims of each class member. Accordingly, the motions to dismiss the claims brought on behalf of a nationwide class are granted. The Plaintiff may renew her nationwide class claims if she can amend to demonstrate the requisite nexus. The Defendants' motions are granted in part and denied in part. The Court orders as follows: Defendants' motions to dismiss the UCL, FAL, CLRA, and misrepresentation claims are denied; and the Defendants' motion to dismiss the claims for injunctive relief are denied. The Plaintiff's claims brought on behalf of a nationwide class are dismissed without prejudice. A full-text copy of the District Court's March 12, 2018 and Order is available at https://tinyurl.com/y99rqmrv from Leagle.com. Vivian Lejbman, individually and on behalf of all others similarly situated, Plaintiff, represented by Benjamin Michael Lopatin -- BLopatin@ELPLawyers.com -- Eggnatz, Lopatin & Pascucci, LLP. Transnational Foods, Inc., a Florida corporation, Defendant, represented by Christopher W. Wasson -- wassonc@pepperlaw.com -- Pepper Hamilton LLP, pro hac vice, Katrina M. Long -- longk@pepperlaw.com -- Pepper Hamilton LLP, pro hac vice, Tambry Lynette Bradford -- bradfordt@pepperlaw.com -- Pepper Hamilton LLP & Yvonne M. McKenzie -- mckenziey@pepperlaw.com -- Pepper Hamilton LLP, pro hac vice. TRIANGLE CAPITAL: Wolf Haldenstein to Lead in Securities Suit ------------------------------------------------------------- The United States District Court for the Eastern District of North Carolina, Western Division, granted LifeWise Family Financial Security, Inc.'s Motion to be appointed as lead plaintiff and its selection of Wolf Haldenstein Adler Freeman & Herz LLP as lead counsel and Whitfield Bryson & Mason LLP as local counsel in the cases captioned GARY W. HOLDEN, individually and on behalf of all others similarly situated, Plaintiffs, v. TRIANGLE CAPITAL CORPORATION, E. ASHTON POOLE, STEVEN C. LILLY, and GARLAND S. TUCKER, III, Defendants; ELIAS DAGHER, individually and on behalf of all others similarly situated, Plaintiffs, v. TRIANGLE CAPITAL CORPORATION, E. ASHTON POOLE, STEVEN C. LILLY, and GARLAND S. TUCKER, III, Defendants, Nos. 5:18-CV-10-FL, 5:18-CV-15-FL (E.D.N.C.). Movants include: (1) Geraldine Checkman (Checkman). Yun Cheng, Steven Lynn Koeppel, Susan Marie Koeppel, and Chi Wai Leung (Triangle Investor Group), LifeWise Family Financial Security, Inc. (LifeWise) and Julie Serrano (Serrano). The Plaintiffs allege that defendants have violated Section 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended by the Private Securities Litigation Reform Act of 1995 (PSLRA) and Rule 10b-5 promulgated thereunder, concerning Triangle's securities traded on the New York Stock Exchange under the symbol TCAP. It is asserted that the defendants knowingly or recklessly made material false statements, misrepresentations, and omissions about the financial success of Triangle while adopting improper underwriting practices, and in doing so artificially inflated stock prices. The PSLRA directs district courts to appoint as lead plaintiff the member or members of the purported plaintiff class that the court determines to be the most capable of adequately representing the interests of the class members. First, regarding the threshold requirements, there is no dispute that the three contending movants, LifeWise, Triangle Investor Group, and Serrano, have brought their motions within the appropriate time limit and included the requisite certifications. There is additionally no dispute that LifeWise has the largest financial interest, which raises a rebuttable presumption in favor of LifeWise serving as lead plaintiff, that can be overcome with evidence that the presumptively most adequate plaintiff will not fairly represent the class or is subject to unique defenses. The only dispute among the parties is whether LifeWise is subject to unique defenses and therefore should not serve as lead plaintiff. The only evidence offered by Triangle Investor Group and Serrano to support their contentions that LifeWise should not serve as lead plaintiff is that LifeWise's registered principals, father and son Henry Salzhauer and Michael Salzhauer (Salzhauers), were found in 2001 by the Securities and Exchange Commission (SEC) to be in violation of the same securities fraud provisions at issue in the instant action. LifeWise argues in response that "the attacking movants make one argument: that a settled SEC administrative proceeding nearly two decades ago that did not involve, let alone mention, either LifeWise or its general counsel, nevertheless proves that LifeWise (and Mr. Axel) are inadequate and atypical and thereby unable to serve as a fiduciary on behalf of the class." The court finds that the evidence submitted by Triangle Investor Group and Serrano is inadequate to rebut the presumption in favor of LifeWise serving as lead plaintiff. While the court does not minimize the seriousness of Salzhauers' violations, the court is mindful that the events in question took place roughly two decades ago; the result was a consent entry of a cease and desist order and agreement to pay; the SEC litigation in no way implicates LifeWise's general counsel, notwithstanding any family ties, or the business LifeWise; and the present situation is significantly different than those found in the authority cited to by Triangle Investor Group and Serrano in support of their contentions. A full-text copy of the District Court's March 12, 2018 Order is available https://tinyurl.com/ycgwx54z from Leagle.com. Gary W. Holden, individually and on behalf of all others similarly situated, Plaintiff, represented by Joseph Alexander Hood, II -- ahood@pomlaw.com -- Pomerantz LLP & Jeremy Alan Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP. Triangle Capital Corporation, E. Ashton Poole, Steven C. Lilly & Garland S. Tucker, III, Defendants, represented by Chelsea J. Corey -- ccorey@kslaw.com -- King & Spalding LLP, Benjamin Warren Pope -- wpope@kslaw.com -- King & Spalding, LLP, Bethany M. Rezek -- brezek@kslaw.com -- King & Spalding LLP, Israel Dahan -- idahan@kslaw.com -- King & Spalding LLP & Michael R. Smith -- mrsmith@kslaw.com -- King & Spalding LLP. UBER TECH: "Webber" Suit over Data Security Breach Consolidated --------------------------------------------------------------- The class action lawsuit titled Susan Webber, Livia Soibelman, Kendrick Lewallen, Donna Bakun, Oscar Hernandez, Ernest Faulkner, and Anita Herman, individually, and on behalf of a class of similarly situated individuals, the Plaintiff, v. Jeremy Revitch, the Movant, and Uber Technologies Inc., a Delaware corporation; and Rasier-CA, LLC, a Delaware limited liability company; and Rasier, LLC, a Delaware limited liability company, Case No. 3:17- cv-06758, was transferred from the U.S. District Court for the Northern District of California, to the U.S. District Court for the Central District of California (Western Division - Los Angeles) on April 9, 2018. The District Court Clerk assigned Case No. 2:18-cv-02941-PSG-GJS to the proceeding. The Webber case is being consolidated with MDL 2826 in re: Uber Technologies, Inc., Data Security Breach Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on April 4, 2018. These putative class actions share complex factual questions arising from Uber's announcement on November 21, 2017, that a data security breach of its network occurred in late 2016 in which the personal information of 57 million Uber users was downloaded by unauthorized individuals outside the company. Common factual questions are presented with respect to Uber's practices in safeguarding its users' personal information, the investigation into the breach, the alleged delay in disclosing the breach, and the nature of the alleged damages. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings, including with respect to class certification; and conserve the resources of the parties, their counsel, and the judiciary. In its April 4, 2018 Order, the MDL Panel found that the Central District of California is an appropriate transferee district for this litigation. Three actions are pending in this district. The Uber defendants support this district if centralization is granted over their objection, and plaintiffs in two Northern District of Illinois actions support it as their second choice. California has a significant connection to this litigation, as Uber Technologies, Inc., has its headquarters in this state, where much of the common evidence, including witnesses, will be located. Judge Philip S. Gutierrez, to whom we assign this litigation, is an experienced transferee judge, and we are confident he will steer this litigation on a prudent course. The lead case is 2:18- ml-02826-PSG-GJS. Uber Technologies is a peer-to-peer ridesharing, food delivery, and transportation network company headquartered in San Francisco, California, with operations in 633 cities worldwide.[BN] The Plaintiffs are represented by: Trisha Kathleen Monesi, Esq. Bevin Elaine Allen Pike, Esq. Robert K Friedl, Esq. CAPSTONE LAW APC 1875 Century Park East Suite 1000 Los Angeles, CA 90067 Telephone: (310) 556 4811 Facsimile: (310) 943 0396 E-mail: trisha.monesi@capstonelawyers.com bevin.pike@capstonelawyers.com robert.friedl@capstonelawyers.com Attorneys for Movant Jeremy Revitch: Joel D. Smith, Esq. BURSOR AND FISHER PA 1990 North California Boulevard Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300 4455 Facsimile: (925) 407 2700 E-mail: jsmith@bursor.com Attorneys for Defendants: E. Desmond Hogan, Esq. Allison M Holt, Esq. Michelle A Kisloff, Esq. Vassiliki Iliadis, Esq. HOGAN LOVELLS LLP Columbia Square 555 Thirteenth Street NW Washington, DC 20004-1109 Telephone: (202) 637 5493 Facsimile: (202) 637 5910 E-mail: desmond.hogan@hoganlovells.com allison.holt@hoganlovells.com michelle.kisloff@hoganlovells.com vassi.iliadis@hoganlovells.com UNITED STATES: Travel Ban Ruined Lives, Class Action Claims ----------------------------------------------------------- Courthouse News Service reports that President Donald Trump's third travel ban has ruined lives and kept citizens of Muslim- majority nations from visiting their loved ones in the United States, dozens claim in a class action filed March 13. The case is Soheil Vazehrad; Atefehossadat Motavaliabyazani; Behnam Babalou; Hoda Mehrabi Mohammad Abadi; Mahdi Afshar Arjmand; Ehsan Heidaryan; Najmeh Maharlouei; Nastaran Hajiheydari; Afrooz Kharazmi; Afshan Alamshah Zadeh; Bamshad Azizi; Roghayeh Azizikoutenaei; Hojjatollah Azizikoutenaei; Clyde Jean Tedrick II; Mitra Farnoodian-Tedrick; Farajollah Farnoudian; Farangis Emami; Tannaz Toloubeydokhti; Fathollah Tolou Beydokhti; Behnaz Malekghaeini; Maral Charkhtab Tabrizi; Zahra Rouzbehani; Bahram Charkhtab Tabrizi; Maryam Mozafari; Nahid Golestanian; Mohammad Mehdi Mozaffary, Plaintiffs, - against - DONALD J. TRUMP, as President of the United States of America; JEFFERSON BEAUREGARD SESSIONS III, in his official capacity as Attorney General of the United States; U.S. DEPARTMENT OF JUSTICE; KIRSTJEN NIELSEN, in her official capacity as Secretary of Homeland Security; U.S. DEPARTMENT OF HOMELAND SECURITY; REX W. TILLERSON, in his official capacity as Secretary of State; U.S. DEPARTMENT OF STATE; DAN COATS, in his official capacity as Director of National Intelligence; OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE Defendants, Case No. 3:18-cv-01587 (N.D. Calif.). Attorneys for Plaintiffs: Shabnam Lotfi, Esq. Veronica Sustic, Esq. LOTFI LEGAL, LLC 22 East Mifflin Street, Suite 302 Madison, WI 53703 Telephone: (608) 259-6226 Facsimile: (208) 977-9974 Email: shabnam@lofilegal.com veronica@lotfilegal.com -- and -- Mark D. Rosenbaum, Esq. Judy London, Esq. PUBLIC COUNSEL 610 South Ardmore Avenue Los Angeles, CA 90005 Telephone: (213) 385-2977 Facsimile: (213) 385-9089 Email: mrosenbaum@publiccounsel.org jlondon@publiccounsel.org -- and -- Luis Cortes Romero, Esq. Alma David, Esq. IMMIGRANT ADVOCACY & LITIGATION CENTER, PLLC 19309 68th Avenue S., Suite R102 Kent, WA 98032 Telephone: (253) 872-4730 Facsimile: (253) 237-1591 Email: lcortes@ia-lc.com adavid@ia-lc.com VHS OF ILLINOIS: Marker et al Sue over Sensitive Personal Info -------------------------------------------------------------- Dorothy Marker, Robert Kotek, and Betty Miller, individually and on behalf of all others similarly situated, the Plaintiff, v. VHS of Illinois, Inc. d/b/a MacNeal Hospital, the Defendant, Case No. 2018-CH-05086 (Ill. Cir. Ct., April 19, 2018), seeks to recover damages caused by Defendant's violation of the Illinois Personal Information Protection Act and Illinois Consumer Fraud and Deceptive Business Practices Act. This case arises out of a hospital's failure to safeguard its patients' confidential and sensitive personal information while they were hospitalized. As a result of this failure, Plaintiffs' respective homes were burglarized by a then - current employee of Mac Neal Hospital, and they each suffered significant harm, In an untimely letter sent only to some of the Plaintiffs, MacNeal Hospital admitted that its employee accessed Plaintiffs' respective confidential and sensitive personal information -- e.g., names, addresses, spousal and/or emergency contact information, birthdates, medical services, and medical history -- in order to commit crimes against Plaintiffs. VHS of Illinois Inc., is a general acute care hospital in Berwyn, Illinois.[BN] The Plaintiff is represented by: Karl Leinberger, Esq. Markoff Leinberger LLC 134 N. LaSalle Street, Suite 1050 Chicago, IL 60602 Facsimile: (312) 726 4162 E-mail: karl@markleinlaw.com VSE CORPORATION: "Tefteller" Suit Seeks Overtime Pay under FLSA --------------------------------------------------------------- JOSEPH WAGGONER and CLIFFORD TEFTELLER, on behalf of themselves and all similarly situated individuals, the Plaintiffs, v. VSE CORPORATION, XOTECH SOLUTIONS, LLC, and WHITE'S PAINT BLAST, L.L.C., the Defendants, Case No. 5:18-cv-00058 (E.D. Tex., April 19, 2018), seeks to recover overtime pay under the Fair Labor Standards Act. The case is a collective action brought by Plaintiffs on their own behalf and on behalf of all similarly situated current and former employees of Defendants to recover for Defendants' willful violations of the Fair Labor Standards Act. The Plaintiffs were non-exempt, hourly-paid employees of Defendants, working under a contract between Defendants and the United States Army at the Red River Army Depot in Texarkana, Texas. The Plaintiffs and other similarly situated employees performed their work in order to fulfill Defendants' contractual obligations to the Army, including painting, servicing, and maintaining military vehicles. The Defendants subjected their hourly employees at Red River to an illegal policy or practice of failing to pay overtime at the rate of one and one-half times the regular rate of pay for all hours worked over 40 in a workweek. Defendants' illegal policy or practice involved providing Plaintiffs and other similarly situated employees with two 15-minute unpaid rest breaks each day. This illegal policy or practice violated the FLSA and its implementing regulations, which provide that rest periods of short duration (from 5 to 20 minutes) "must be counted as hours worked." The Defendants illegally failed to count these 15-minute rest breaks as hours worked and did not pay their employees for this time, in violation of the FLSA. The Plaintiffs and other similarly situated employees are entitled to payment at their overtime rate of at least one and one half times their regular rate of pay for each unpaid 15-minute break taken in any workweek where they worked over 40 hours (including the 15-minute breaks). VSE Corporation is a diversified technical services company formed in 1959.[BN] Counsel for Plaintiffs: Laura E. Reasons, Esq. Kenneth P. Abbarno, Esq. Mark M. Abramowitz, Esq. DICELLO LEVITT &CASEY Ten North Dearborn Street, Eleventh Floor Chicago, IL 60602 Telephone: (312) 214 7900 Facsimile: (312) 253 1443 E-mail: lreasons@dlcfirm.com kabbarno@dlcfirm.com mabramowitz@dlcfirm.com - and - T. John Ward, Jr., Esq. Claire Abernathy Henry, Esq. WARD, SMITH & HILL, PLLC P.O. Box 1231 Longview, TX 75606-1231 Telephone: (903) 757 6400 Facsimile: (903) 757 2323 E-mail: jw@wsfirm.com claire@wsfirm.com WH ADMINISTRATORS: Court Denies Arbitration of ERISA Class Claims ----------------------------------------------------------------- The United States District Court for the Western District of Tennessee, Eastern Division, granted in part and denied in part Defendant's Third Motion to Compel Arbitration in the case captioned TENNESSEE TRACTOR, LLC, on behalf of itself and the Tennessee Tractor, LLC Health and Welfare Benefit Plan, and KERRY YOUNG, on behalf of himself and all similarly situated persons, Plaintiffs, v. WH ADMINISTRATORS, INC., Defendant, No. 1:17-cv- 02829-STA-egb (W.D. Tenn.). Tennessee Tractor entered into a Patient Protection and Affordable Care Act Compliance Service Agreement with Defendant WH Administrators, Inc., to administer the Plan. Under the Agreement, the Defendant was to, among other things, ensure Tennessee Tractor's compliance with the Patient Protection and Affordable Care Act and administer the Plan. The Plan was to commence on June 1, 2016. Tennessee Tractor was named as Plan Sponsor. The Defendant was the duly appointed Plan Administrator and named fiduciary. Tennessee Tractor's employees, including Young, were participants in the Plan and therefore eligible to receive benefits under it. Over the course of the parties' contractual relationship, Tennessee Tractor performed all of its duties and obligations under the Agreement. But in December 2016, the Defendant abruptly and without explanation ceased processing or paying the claims of Tennessee Tractor's employees, including those of Young. Young now brings statutory claims under the Employee Retirement Income Security Act on behalf of himself and the other Plan participants. And Tennessee Tractor further brings claims of breach of contract, fraud and misrepresentation, and indemnification under Tennessee law. According to the Defendant, the Plan unequivocally requires Young to arbitrate claims. While the plain language of the arbitration provision would seem to encompass Young's claims, the problem with this argument, according to the Plaintiffs, is that the Plan document is of no effect. The Defendant, despite its obligations under ERISA and requests from the Plaintiffs, failed to provide them with any Plan document. Neither the Plaintiffs nor any representative thereof had even seen much less approved or ratified the Plan document. Upon attempt to access a plan document online through the Defendant's website, the Plaintiffs say they would find only the message No files found. At this stage of the proceedings, and viewing the evidence in a light most favorable to the Plaintiff, the Court cannot conclude there is a valid arbitration agreement between Young and the Defendant. An unsigned document is simply insufficient. And the addition of Scott Delle's Declaration raises serious questions as to the document's validity. Because the Court has concluded that Young's claims are not arbitrable, the Court has no need to inquire as to whether Congress intended ERISA claims to be non-arbitrable under the third step of its arbitrability analysis and may proceed to the final step: whether Young's claims should be stayed while Tennessee Tractor's claims against the Defendant are resolved in arbitration. Tennessee Tractor's claims are governed by the arbitration provision of the Agreement, while Young's class-action claims are not. A full-text copy of the District Court's March 12, 2018 and Order is available at https://tinyurl.com/ybzruyww from Leagle.com. Tennessee Tractor, LLC, on behalf of itself and the Tennessee Tractor, LLC Health and Welfare Benefit Plan & Kerry Young, on behalf of himself and all similarly situates persons, Plaintiffs, represented by John I. Houseal, Jr. -- jhouseal@glanker.com -- GLANKLER BROWN, PLLC & Don Lester Hearn, Jr. -- dhearn@glankler.com -- GLANKLER BROWN, PLLC. WH Administrators, Inc., Defendant, represented by James Allison Holifield, Jr., HOLIFIELD JANICH & ASSOCIATES, PLLC, 11907 Kingston Pike. Suite 201. Knoxville, TN 37934 & Ronald Scott Kravitz -- rkravitz@sfmslaw.com -- SHEPARD FINKELMAN MILLER & SHAH, LLP. XCERRA CORP: "Stallings" Suit Dismissed --------------------------------------- Xcerra Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended October 31, 2017, that the plaintiffs in the case, Chris Stallings v. Xcerra Corporation, et al., have dismissed the complaint. The case was terminated on November 13, 2017. On August 22, 2017, a putative shareholder class action complaint was filed in the United States District Court for the District of Massachusetts against the Company and each member of the Board, captioned Chris Stallings v. Xcerra Corporation, et al., C.A. No. 1:17-cv-11579. The complaint alleged, among other things, that the Company and each member of the Board violated federal securities laws and regulations by soliciting stockholder votes in connection with the Merger through a proxy statement that omitted material facts. The parties agreed on certain additional disclosures to the Company's definitive proxy statement, which were filed on October 3, 2017. The plaintiffs dismissed the complaint on November 1, 2017. Xcerra Corporation a global provider of test and handling capital equipment, interface products, test fixtures and related services to the semiconductor and electronics manufacturing industries. The company is based in Norwood, Massachusetts. XCERRA CORP: "Berg" Suit Dismissed ---------------------------------- Xcerra Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended October 31, 2017, that the plaintiffs in the case, Robert Berg v. Xcerra Corporation et al., have dismissed the complaint. On August 23, 2017, a putative shareholder class action complaint was filed in the United States District Court for the District of Massachusetts against the Company, each member of the Board, Parent, Unic Capital, Sponsor and Merger Sub, captioned Robert Berg v. Xcerra Corporation et al., Case No. 1:17-cv-11583. The complaint alleged, among other things, that the Company and each member of the Board violated federal securities laws and regulations by soliciting stockholder votes in connection with the Merger through a proxy statement that omitted material facts. The parties agreed on certain additional disclosures to the Company's definitive proxy statement, which were filed on October 3, 2017. The plaintiff dismissed the complaint on November 1, 2017. The case was terminated on November 13, 2017. Xcerra Corporation a global provider of test and handling capital equipment, interface products, test fixtures and related services to the semiconductor and electronics manufacturing industries. The company is based in Norwood, Massachusetts. XCERRA CORP: "Khan" Class Action Dismissed ------------------------------------------ The Plaintiff in the case, Khan v. Xcerra Corporation et al., Case No. 1:17-cv-12226 (D. Mass.), filed on March 9, 2018, a Notice of Voluntary Dismissal of the case. Khan filed a Motion to Appoint Counsel and Lead Plaintiff, which was unopposed, on January 24, 2018. No ruling was entered on that request. Xcerra said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended October 31, 2017, 2017, that on November 10, 2017, a putative shareholder class action complaint was filed in the United States District Court for the District of Massachusetts against the Company and each member of the Board, captioned Waseem Khan v. Xcerra Corporation et al., Case No. 1:17-cv-12226. The complaint alleges, among other things, that the Company and the Board violated federal securities laws and regulations by soliciting stockholder votes in connection with the Merger through a proxy statement that includes false and misleading material information with respect to the proposed Merger, which renders the proxy statement false and misleading. The complaint seeks damages. Xcerra said "The Company is reviewing the complaint and has not yet formally responded to it, but believes that the plaintiffs' allegations are without merit and intends to defend against them vigorously. Xcerra Corporation a global provider of test and handling capital equipment, interface products, test fixtures and related services to the semiconductor and electronics manufacturing industries. The company is based in Norwood, Massachusetts. YALE UNIVERSITY: Class Action Over Retirement Plan Fees Okayed -------------------------------------------------------------- Jingyi Cui, writing for Yale Daily News, reports that United States District Judge Alvin Thompson ruled on March 30 to allow four Yale employees to proceed with most of the claims they filed in an August 2016 lawsuit alleging that the Yale's retirement plan comes with excessive administrative fees that the University has not done enough to reduce. Yale's retirement plan is overseen by outside investment managers who charge administrative and record keeping fees for their services. The plaintiffs -- Joseph Vellali, Nancy Lowers, Jan Taschner and James Mancini -- in the case claim that Yale did not drive a hard enough bargain with the investment managers it hired to handle the retirement plan and that, as a result, University staff and faculty members pay $200 to $300 per person in recordkeeping fees to these managers, which the plaintiffs claim is nearly five times higher than what is reasonable. As of June 30, 2015, Yale's retirement plan held $3.8 billion in assets and had 17,138 participants. The plaintiffs hope to file a class-action lawsuit on behalf of all participants of Yale's retirement plan but will need court approval to do so. More than a dozen other colleges and universities have also recently been hit with the threat of class-action lawsuits raising concerns about their retirement plans. The University filed a motion in January 2017 requesting that the court dismiss all the claims made by the plaintiffs. Last month's 40-page ruling dismissed some of the plaintiffs' claims -- such as the allegation that Yale provides "too many" investment options in the retirement plan and thus paralyzes decision-making -- but allowed the plaintiffs to proceed with most of them. In an email to the News, University spokesman Tom Conroy said Yale will continue to fight the lawsuit. "We are pleased that the court dismissed some claims, in allowing some others to move forward through the process," Mr. Conroy wrote. "As we have said before, we believe that all these allegations are without merit and -- working with our legal team -- we will continue to respond to these allegations and intend to oppose this suit vigorously." Jerome Schlichter, one of the lawyers representing the plaintiffs, and Vellani, one of the four plaintiffs, did not respond to requests for comment. The other three plaintiffs could not be reached for comment. The plaintiffs argue that the University failed to scrutinize all the investment options included in the retirement plan before contracting with the investment managers. They also find fault with Yale's decision to enact a bundling agreement with its investment management companies under which the University relinquished the right to reconfigure its investments if some start to underperform. Judge Thompson allowed such claims to proceed, despite Yale's argument that bundling arrangements are commonplace and generally beneficial. "The process of selecting vendors and negotiating service fees can materially affect an employee's retirement income because every dollar spent on either recordkeeping or investment management is a dollar that is not contributing to increasing the amount of the employee's retirement savings," Judge Thompson wrote in his ruling. "Over time, excessive service fees can erode an employee's retirement savings to the tune of tens or hundreds of thousands of dollars." Judge Thompson dismissed the claim that Yale breached "duty of loyalty" to its employees, concluding that Yale has not sought to benefit itself or a third party at the expense of the plan's participants. Mr. Schlichter is a pioneer in retirement plan litigation. He and the law firm he founded have obtained over $300 million in settlements with big companies like Boeing Co. over claims of excessive retirement plan fees. Mr. Schlichter is behind similar ongoing cases against the Massachusetts Institute of Technology and New York University, each of which -- like Yale -- has over $3 billion in retirement plan holdings. The University of Pennsylvania is the only university to have defeated outright a lawsuit over retirement plan mismanagement, when a federal judge ruled in September 2017 to dismiss all the plaintiffs' claims. Scott Dauenhauer, a consultant on teacher retirement plans, said that before the recent series of lawsuits against Yale and other universities emerged, mismanagement claims were made exclusively against 401(k) plans, which are generally used by corporations and not by nonprofit organizations. Mr. Dauenhauer said Mr. Schlichter's firm is copying the template used for retirement plan cases against companies for its cases against higher educational institutions, whose plans are often in better shape. "I'm not a fan of these lawsuits in general," he said. "I think they are basically a money grab, not by the participants filing them but the attorneys who are filing them." [GN] * California Becomes Hub for Litigation Over Failed IPOs -------------------------------------------------------- Sujeet Indap, writing for The Financial Times, reports that Silicon Valley is the pre-eminent location for start-ups. But to the lament of the tech entrepreneurs there, Northern California is also a hub for another type of innovation: litigation against companies that have disappointing IPOs. An otherwise nondescript state courthouse in Redwood City, California, has become one of the most popular venues for class- action securities lawsuits where shareholders argue for compensation from newly-listed companies whose shares have fallen, claiming they filed false or misleading prospectuses. California state courts, and in particular the San Mateo Superior Court in Redwood City, have been receptive to taking these lawsuits -- with the likes of Etsy, Lending Club, and GoPro among the targets. The law invoked, the Securities Act of 1933, is, however, a federal statute written by the US Congress in the wake of the 1929 stock market crash. In 2012, just five 1933 Act claims were filed in California. By 2016, that figure was up to 14. The probable reason: west coast state courts have been less willing to grant early dismissals. That has forced companies to either settle with shareholders or spend years in expensive litigation and risk a hefty judgment from a jury. It could be about to become more prevalent still. In a landmark 9-0 ruling in March, the US Supreme Court affirmed the right of shareholders to sue companies in state court using federal securities laws such as the '33 Act. The Supreme Court weighed in because lower federal courts differed on whether 1933 Act claims could go forward in state courts. The situation has been ambiguous since reforms in the 1990s -- particularly 1998 Securities Litigation Uniform Standards Act (SLUSA) -- which had been designed to reduce the amount of opportunistic litigation faced by companies. The case that made its way to Supreme Court involved Cyan Inc, a telecoms equipment company that went public on Nasdaq in 2013. Six months later, its shares had halved. A group of shareholders sued in a California state court, believing that company had not been forthcoming in its offering documents about how much of its revenue was tied to a single customer. Supreme Court justices ruled unanimously a few weeks ago that SLUSA did not explicitly force the "removal" of federal 1933 Act claims from state to federal courts. The ferocity of the fight over IPO litigation demonstrates that prevailing in court can be as much about where a case is heard as the precise merits of a legal argument. Companies have claimed that state courts are less equipped and too friendly towards suing shareholders. State courts like the one in Redwood City are less likely to dismiss cases at early stages, no matter how weak a shareholder's case, according to multiple defence lawyers. Additionally, the average settlement of state IPO litigation case is above $8m, twice that of federal settlements, according to data compiled by Cornerstone Research. Worries about 1933 Act claims in state court have led companies planning an IPO, including Snap, BlueApron and Stitch Fix, to resort to the so-called Grundfest solution. Named after a former SEC commissioner-turned-law professor, the tactic is to write into the company charter and bylaws that any 1933 Act claim can only be brought in federal court. Companies have had success writing such charter provisions that force corporate law litigation into one specific state court. Typically that is Delaware, a state that has become increasingly corporation friendly. But whether these federal forum provisions that Grundfest developed are legal under Delaware law has yet to be determined. Naturally, plaintiffs lawyers do not believe state courts are any less capable of handling federal securities law cases, nor that they should be deprived of their right to hear them. "The [Supreme] Court underscored basic principles of federalism while confirming that creative lawyering cannot displace statutory text," says Darren Robbins of Robbins Gellar. Litigation risk, some observers believe, is one of the reasons private companies have been avoiding public markets. One SEC commissioner concerned about the dearth of IPOs recently floated the idea that companies should be allowed to force shareholder claims into arbitration, not courts. A sensible outcome would be for Congress to force claims based on federal law into federal court only. That will mean fewer cases for San Mateo Superior Court and its California peers, but not necessarily the end of the road for plaintiffs lawyers. Flawed disclosures by Facebook in its 2012 IPO documents, which recently led to a $35m settlement of a 1933 Act claim in federal court in New York, show that even the highest profile Silicon Valley listings can be worth examination on shareholders' behalf. Restricting the litigation to ostensibly favourable venues will not amount to a get out of jail free card. [GN] * Confusing New Laws to Fuel Growth of Employment Law Practices --------------------------------------------------------------- Gayle Cinquegrani, writing for Bloomberg Law, reports that confusing new employment laws and the possibility of lucrative class action settlements may be fueling growth for employment law practices in California, several practitioners told Bloomberg Law. "The legislature out here is prone to passing laws that are hyper-technical and hard to comply with," according to John Polson, a member of the management committee at labor and employment law firm Fisher Phillips. This tends to create "more employment litigation for us to defend" and more need for advising clients, he told Bloomberg Law April 2. Many jurisdictions have their own employment-related laws, distinct from state-level requirements. By January 2019, for example, California will have at least 24 different jurisdictions -- municipalities or counties -- with their own minimum wage requirements for private employers, according to the State and Local Law Chart Builders database on Bloomberg Law's Labor & Employment Practice Center. New Mexico has the second most sub- state jurisdictions with different wage floor requirements, at five, according to Bloomberg Law data. The state's employment law encompasses "more laws, more money, and more lawyers," Joe Beachboard, a managing director at Ogletree Deakins, told Bloomberg Law April 2. "People really want a California lawyer to handle a California matter" because "the laws are so different and the risks are so great," he said. California Dreamin' for Plaintiffs Multi-million dollar settlements and high damage awards in the state also can attract more lawyers and litigation. "Damages in California under our state statutes tend to be higher than anywhere else in the country," Mr. Beachboard said. "The reward factor leads to more lawyers doing this kind of work on the plaintiffs' side," which in turn "drives more litigation." In March, Lyft and its drivers told a federal judge the $27 million settlement payout in a wage case is proceeding on schedule. That case was filed in 2013 in the U.S. District Court for the Northern District of California to a $27 million settlement. In 2016, a judge in the same federal court rejected a $100 million settlement between Uber and its drivers because the amount was too small. Legal consultants confirm the upturn in business. "We definitely can confirm that employment law is a huge market" in California, Jamy Sullivan, executive director of legal staffing and consulting firm Robert Half Legal, told Bloomberg Law April 2. "We haven't seen a ton of new offices, but adding attorneys to their team, we've definitely seen that growth," especially for small and midsize firms, Mr. Sullivan said. "Employment practice in general is growing faster in California than in most places," Mr. Polson of Fisher Phillips said. "It's the hot spot in our firm" right now. "We definitely need to grow to keep up with the workflow that we have," so "we are expanding" in all five California offices, Mr. Polson said. The firm doubled its office size in Los Angeles and increased the physical space in the Irvine, Calif., office by 50 percent to accommodate an additional 18 attorney offices, he said. By the end of April, Fisher Phillips will have added about 10 lawyers in California so far in 2018, Mr. Polson said. The firm has about 95 lawyers in the nation's most populous state and expects to grow to more than 100 by the end of the year, he said. Class Actions Fueling Business "The class action practice in California is really growing for us," Polson said. "That's being fueled by court decisions that essentially change the rules after the fact on employers." New wage-and-hour laws focused on employees who are paid by commission or piece rate also are prompting a lot of queries from clients, Mr. Polson said. For example, California considers commissions to be wages for purposes of the state's wage-payment rules and must be paid at least semi-monthly, according to Bloomberg Law's Labor and Employment Practice Center. Class action litigation also is helping to spur growth for labor and employment firm Seyfarth Shaw. "We're seeing a never-ending growth pattern" in California, partner Gerald Maatman told Bloomberg Law. Mr. Maatman has led the defense teams for many of Seyfarth's largest California cases. "Our class action docket continues to expand," Mr. Maatman said. Recent statistics on class actions filed in California aren't available because the state hasn't reported the number since 2009, he said, but he's noticed "there are more and more every year" as he reviews dockets for Seyfarth's annual Workplace Class Action Report. Other sources of business for employment lawyers are California's new salary history ban, which prohibits employers from asking job applicants about their prior salaries, and employers' fear of sexual harassment claims, Mr. Maatman said. War for Talent As a result, "the war for talent is as acute on the ground in California for labor and employment lawyers as I've seen it in the last 20 years," Mr. Maatman said. One sign of the increased importance of California to Seyfarth's overall business is its recent selection of a San Francisco partner as the national chair of its labor and employment department. Previously, partners from the East Coast or the firm's Chicago headquarters led that department, Mr. Maatman said. Workplace law firm Constangy, Brooks, Smith & Prophete also is growing quickly in California, Ken Sulzer told Bloomberg Law. Sulzer heads the firm's California practice. "The firm clients really fueled the growth," he said. "They wanted to use Constangy in California if we had a substantial practice here" because of the intricacy of the state's employment laws. Constangy opened its first California office with three lawyers just over two years ago. It now has 30 lawyers in three offices, Mr. Sulzer said. Its Los Angeles office has grown to 22 lawyers since February 2016, its San Francisco office has grown to six lawyers since it opened at the start of 2017, and its Orange County office, with two lawyers, opened in January 2018. "We will continue to grow," Mr. Sulzer said. Constangy is "looking for more lawyers and will add more in each of our offices in the next two to three months." Seeing Rapid Growth Mr. Beachboard, of labor and employment law firm Ogletree, said his firm has grown rapidly in California. It opened its first California office in Los Angeles in 2003 and now has more than 130 attorneys in six offices throughout the state. "California now constitutes about 16 percent of our firm revenues," Mr. Beachboard said. Ogletree is "happy with where we are" and plans to "grow within those offices" rather than open new offices in California, Beachboard said. Other firms also are strengthening their employment law presence in California. McDermott Will & Emery's new employment practice group will have a strong West Coast presence, the firm announced April 3, with several class action litigators joining its offices in San Francisco, San Diego, and Los Angeles. Baker McKenzie recently opened an office in Los Angeles with a labor and employment lawyer as a founding partner. The firm now has three offices in California, with 40 lawyers that practice labor and employment or executive compensation law, Barbara Klementz, Baker McKenzie's California managing partner, told Bloomberg Law April 3. Lawyers predict the demand for employment lawyers in California will continue. "It's incredibly difficult to comply with all the California labor and employment laws and commit the resources to do so and still run a profitable enterprise," Mr. Sulzer said. The more difficult the task, the more clients need their lawyers. [GN] * EU to Propose Giving Consumer Groups Right to Seek Compensation ----------------------------------------------------------------- Jim Brunsden, writing for The Financial Times, reported that consumers hit by scandals such as emissions-test cheating by carmakers would get greater powers collectively to sue companies that violate their rights, under EU plans that reflect Brussels' frustration with corporate-rule breaking. The European Commission was on April 11 expected to propose giving consumer groups the right to seek compensation on behalf of large numbers of customers, opening up legal avenues that are limited or non-existent in many EU countries. Brussels would also seek to increase the financial penalties for companies that break EU consumer law, saying national authorities should be able to levy fines of up to 4 per cent of turnover for "widespread infringements". Countries would be free to legislate for higher maximum penalties if they wished. Vera Jourova, the EU's justice commissioner, said that the plans, which need approval from national governments and the European Parliament, would be "a moment for everyone to show their cards whether we are serious in drawing the consequences from dieselgate and give a fair chance for compensation to consumers". Ms Jourova fought Volkswagen, the company at the centre of the dieselgate scandal, over its refusal to compensate EU customers despite doing so in the US. The episode, along with others such as Ryanair's mass cancellations of flights in 2017, have hardened Brussels' view that the EU lacks the legal armoury to tackle cases affecting large numbers of people in multiple countries. Jean-Claude Juncker, commission president, last year pledged a "new deal for consumers" that would give them better protection. "It cannot be cheap to cheat, especially in the globalised world where the big companies have a huge advantage over individual consumers," Ms Jourova said. "We need to level these odds." Citizens rights' groups have long called for greater collective redress powers, saying EU consumer law is under-enforced. Only Belgium, Italy, Portugal, Spain and Sweden have well-developed and functioning procedures, according to the BEUC, the European consumer organisation. The German government has pledged in its coalition agreement to introduce a new system. "On paper European consumers have rights, but getting them respected when things go wrong is too frequently mission impossible," Monique Goyens, the BEUC's director-general, said. However business leaders said Brussels risked leading the EU towards a US-style class-action system that would encourage frivolous lawsuits in search of payouts. Concern has also been expressed that Brussels was overstating the problems consumers faced in upholding their rights. "EU citizens already enjoy the most efficient and strongest consumer protection in the world," Markus Beyrer, director- general of BusinessEurope, said. Ms Jourova said her plans contained safeguards that would protect businesses from spurious cases -- notably the fact that collective actions would only be open to consumer organisations and other non-profit groups. "We are not following the US model, but we will make sure EU citizens can fully benefit from their rights," she said. "It's not about more business, but about more fairness." The package would also tackle other consumer issues, notably some companies' use of lower-quality ingredients in food sold in central and eastern Europe, even when they were branded identically to products marketed in the west. Officials said rules would clarify that it was illegal to market different products as being identical. Other changes are aimed specifically at the online market, including making it easier for a person to know whether they are buying from an individual or from a business, as well as giving people clearer information about the terms and conditions of social media networks and cloud storage platforms. [GN] * Lawyer Expects Litigation Against Promoters of ICOs ----------------------------------------------------- Joshua Oliver and Hannah Murphy, writing for The Financial Times, reported that celebrity endorsers of cryptocurrency fundraisers are at risk of legal action from regulators and investors, legal experts have warned, following a US case that highlighted the involvement of famous promoters in a so-called initial coin offering that collapsed. The Securities and Exchange Commission charged two men with taking $32m from thousands of investors via an ICO, a crowdfunding mechanism used to raise money for digital currency ventures. The co-founders allegedly raised the funds for a "fraudulent" start-up called Centra Tech, with the scheme touted on social media by champion boxer Floyd Mayweather and musician DJ Khaled. While the SEC stopped short of naming the celebrity promoters in their statement, it noted their involvement -- an unusual move because they are not defendants in the case. Experts said celebrities who have endorsed ICOs could now face legal action from regulators, as well as investors who believe they have been scammed. "They are clearly sending a signal," said Nick Morgan, a former SEC attorney and a partner at US law firm Paul Hastings. He added that the SEC had "left the door open" to pursue celebrities or others who may have broken the law while promoting ICOs. "There was nothing in there that I think anyone should take comfort from, just because they were not individually named," he said. ICOs exploded in popularity last year in tandem with rising cryptocurrency prices. During the boom many assumed that securities laws did not apply to the new way of raising capital and several famous faces used social media to promote digital coins. Academy Award-winning actor Jamie Foxx tweeted an endorsement of one ICO to his nearly 5m followers, while socialite Paris Hilton used Twitter and Instagram to announce her participation in another offering. But the so-called "digital wild west" has come under growing legal scrutiny, with some regulators arguing that novel technology should be subject to securities laws. According to research by Satis Group, an ICO advisory company, 81 per cent of ICOs from the beginning of 2017 to early March 2018 were scams. Charles Whitehead, a professor at Cornell Law School, warned that even if an ICO was not a scam, promoters could face legal action. In most cases, someone who promoted an ICO that was not registered with the regulator could have violated market rules, he said, noting that US laws tightly regulate publicity around the sale of new securities. "This is why, at a Goldman Sachs offering, you don't see Kanye [West]," he said. US regulators in particular have been clamping down on the sector, halting several offerings in recent months. Jay Clayton, SEC chairman, said in February that where an ICO might qualify as a financial instrument, businesses would need to comply with financial regulations. He also said that "every ICO I've seen is a security". The SEC late last year warned that celebrities had to disclose any compensation they received to promote an ICO. Beth-ann Roth, a former SEC litigator and partner at Capital Fund Law, said that in cases such as the Centra ICO, there was also a risk that promoters could be found to have "aided and abetted" the alleged fraud. The lesson for celebrities, she added, is "know what you're endorsing". The SEC declined to comment on whether they would pursue those who may have broken the law while promoting ICOs. It is not only regulators' wrath that ICO promoters now face. There have already been dozens of class action lawsuits from disgruntled investors against people who have launched ICOs in the US. Now that SEC has flagged celebrity promoters in its announcement, this could prompt lawsuits targeting those who marketed the offerings as well, experts predicted. David Silver, a partner at law firm Silver Miller who is managing more than a dozen cryptocurrency-related class actions, said: "In the next ninety days we are going to see lots of litigation surrounding the promoters of these ICOs." [GN] Asbestos Litigation ASBESTOS UPDATE: Union Carbide Has 15,427 PI Claims at Dec. 31 -------------------------------------------------------------- Union Carbide Corporation has 15,427 unresolved asbestos-related claims 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, "The Corporation is and has been involved in a large number of asbestos-related suits filed primarily in state courts during the past four decades. These suits principally allege personal injury resulting from exposure to asbestos- containing products and frequently seek both actual and punitive damages. The alleged claims primarily relate to products that UCC sold in the past, alleged exposure to asbestos-containing products located on UCC's premises, and UCC's responsibility for asbestos suits filed against a former subsidiary, Amchem. In many cases, plaintiffs are unable to demonstrate that they have suffered any compensable loss as a result of such exposure, or that injuries incurred in fact resulted from exposure to UCC's products. "Plaintiffs' lawyers often sue numerous defendants in individual lawsuits or on behalf of numerous claimants. As a result, the damages alleged are not expressly identified as to UCC, Amchem or any other particular defendant, even when specific damages are alleged with respect to a specific disease or injury. In fact, there are no asbestos personal injury cases in which only the Corporation and/or Amchem are the sole named defendants. For these reasons and based upon the Corporation's litigation and settlement experience, the Corporation does not consider the damages alleged against it and Amchem to be a meaningful factor in its determination of any potential asbestos-related liability." A full-text copy of the Form 10-K is available at https://is.gd/l71Y3Y ASBESTOS UPDATE: Union Carbide Has $1.4BB Liability at Dec. 31 -------------------------------------------------------------- Union Carbide Corporation has US$1,369 million asbestos-related liability for pending and future claims 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, "Separately, the Corporation is and has been involved in a large number of asbestos-related suits filed primarily in state courts during the past four decades. These suits principally allege personal injury resulting from exposure to asbestos-containing products and frequently seek both actual and punitive damages. The alleged claims primarily relate to products that UCC sold in the past, alleged exposure to asbestos- containing products located on UCC's premises, and UCC's responsibility for asbestos suits filed against a former UCC subsidiary, Amchem Products, Inc. ("Amchem"). In many cases, plaintiffs are unable to demonstrate that they have suffered any compensable loss as a result of such exposure, or that injuries incurred in fact resulted from exposure to the Corporation's products. "The Corporation expects more asbestos-related suits to be filed against UCC and Amchem in the future, and will aggressively defend or reasonably resolve, as appropriate, both pending and future claims. "Based on a study completed by Ankura Consulting Group, LLC ("Ankura") in January 2003, the Corporation increased its December 31, 2002, asbestos-related liability for pending and future claims for a 15-year period ending in 2017 to US$2.2 billion, excluding future defense and processing costs. Since then, the Corporation has compared current asbestos claim and resolution activity to the results of the most recent Ankura study at each balance sheet date to determine whether the accrual continues to be appropriate. In addition, the Corporation has requested Ankura to review the Corporation's historical asbestos claim and resolution activity each year since 2004 to determine the appropriateness of updating the most recent Ankura study. "In October 2016, the Corporation requested Ankura to review its historical asbestos claim and resolution activity and determine the appropriateness of updating its December 2014 study. In response to the request, Ankura reviewed and analyzed asbestos- related claim and resolution data through September 30, 2016. The resulting study, completed by Ankura in December 2016, provided estimates for the undiscounted cost of disposing of pending and future claims against UCC and Amchem, excluding future defense and processing costs, for both a 15-year period and through the terminal year of 2049. "Based on the study completed in December 2016 by Ankura, and the Corporation's own review of the asbestos claim and resolution activity, it was determined that an adjustment to the accrual was necessary. The Corporation determined that using the estimate through the terminal year of 2049 was more appropriate due to increasing knowledge and data about the costs to resolve claims and diminished volatility in filing rates. Using the range in the Ankura December 2016 study, which was estimated to be between US$502 million and US$565 million for the undiscounted cost of disposing of pending and future claims, the Corporation increased its asbestos-related liability for pending and future claims through the terminal year of 2049 by US$104 million, included in "Asbestos-related charge" in the consolidated statements of income. At December 31, 2016, the Corporation's asbestos-related liability for pending and future claims was US$486 million, and approximately 14 percent of the recorded liability related to pending claims and approximately 86 percent related to future claims. "In September 2014, the Corporation began to implement a strategy designed to reduce and to ultimately stabilize and forecast defense costs associated with asbestos-related matters. The strategy included a number of important changes including: invoicing protocols including capturing costs by plaintiff; review of existing counsel roles, work processes and workflow; and utilization of enterprise legal management software, which enabled claim-specific tracking of asbestos-related defense and processing costs. The Corporation reviewed the information generated from this new strategy and determined that it now had the ability to reasonably estimate asbestos-related defense and processing costs for the same periods that it estimates its asbestos-related liability for pending and future claims. The Corporation believes that including estimates of the liability for asbestos-related defense and processing costs provides a more complete assessment and measure of the liability associated with resolving asbestos-related matters, which the Corporation believes is preferable in these circumstances. "In October 2016, in addition to the study for asbestos claim and resolution activity, the Corporation requested Ankura to review asbestos-related defense and processing costs and provide an estimate of a reasonable forecast of defense and processing costs associated with resolving pending and future asbestos-related claims facing UCC and Amchem for the same periods of time that the Corporation uses for estimating resolution costs. In December 2016, Ankura conducted the study and provided the Corporation with an estimate of future defense and processing costs for both a 15-year period and through the terminal year of 2049. The resulting study estimated asbestos-related defense and processing costs for pending and future asbestos claims to be between US$1,009 million and US$1,081 million through the terminal year of 2049. "In the fourth quarter of 2016, the Corporation elected to change its method of accounting for asbestos-related defense and processing costs from expensing as incurred to estimating and accruing a liability. This change is believed to be preferable as asbestos-related defense and processing costs represent expenditures related to legacy activities that do not contribute to current or future revenue generating activities of the Corporation. The change is also reflective of the manner in which the Corporation manages its asbestos-related exposure, including careful monitoring of the correlation between defense spending and resolution costs. Together, these two sources of cost more accurately represent the "total cost" of resolving asbestos-related claims now and in the future. "This accounting policy change was reflected as a change in accounting estimate effected by a change in accounting principle. As a result of this accounting policy change and based on the December 2016 Ankura study of asbestos-related defense and processing costs and the Corporation's own review of the data, a pretax charge for asbestos-related defense and processing costs of US$1,009 million was recorded in the fourth quarter of 2016, included in "Asbestos-related charge" in the consolidated statements of income. The Corporation's total asbestos-related liability, including defense and processing costs, was US$1,490 million at December 31, 2016, and was included in "Asbestos- related liabilities -- current" and "Asbestos-related liabilities -- noncurrent" in the consolidated balance sheets. "In October 2017, the Corporation requested Ankura to review its historical asbestos claim and resolution activity (including asbestos-related defense and processing costs) and determine the appropriateness of updating its December 2016 study. In response to that request, Ankura reviewed and analyzed data through September 30, 2017. In December 2017, Ankura stated that an update of its December 2016 study would not provide a more likely estimate of future events than the estimate reflected in the study and, therefore, the estimate in that study remained applicable. Based on the Corporation's own review of the asbestos claim and resolution activity (including asbestos- related defense and processing costs) and Ankura's response, the Corporation determined that no change to the accrual was required. At December 31, 2017, the asbestos-related liability for pending and future claims against UCC and Amchem, including future asbestos-related defense and processing costs, was US$1,369 million, and approximately 16 percent of the recorded liability related to pending claims and approximately 84 percent related to future claims. "The Corporation has receivables for insurance recoveries related to its asbestos liability as well as receivables for defense and resolution costs submitted to insurance carriers that have a settlement agreement in place regarding their asbestos-related insurance coverage. The Corporation continues to believe that its recorded receivable for insurance recoveries from all insurance carriers is probable of collection. At December 31, 2017, the Corporation's receivable for insurance recoveries related to its asbestos liability was US$37 million (US$41 million at December 31, 2016)." A full-text copy of the Form 10-K is available at https://is.gd/l71Y3Y ASBESTOS UPDATE: NewMarket Corp. Has $8.25MM Litigation Reserve --------------------------------------------------------------- NewMarket Corporation has asbestos litigation reserve of US$8,251,000 as of 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, "We are a defendant in personal injury lawsuits involving exposure to asbestos. These cases involve exposure to asbestos in premises owned or operated, or formerly owned or operated, by subsidiaries of NewMarket. We have never manufactured, sold, or distributed products that contain asbestos. Nearly all of these cases are pending in Texas, Louisiana, or Illinois and involve multiple defendants. We maintain an accrual for these proceedings, as well as a receivable for expected insurance recoveries. "The accrual for our premises asbestos liability related to currently asserted claims is based on the following assumptions and factors: * We are often one of many defendants. This factor influences both the number of claims settled against us and the indemnity cost associated with such resolutions. * The estimated percent of claimants in each case that, after discovery, will actually make a claim against us, out of the total number of claimants in a case, is based on a level consistent with past experience and current trends. * We utilize average comparable plaintiff cost history as the basis for estimating pending premises asbestos related claims. These claims are filed by both former contractors and former employees who worked at past and present company locations. We also include an estimated inflation factor in the calculation. * No estimate is made for unasserted claims. * The estimated recoveries from insurance and Albemarle Corporation (a former operation of our company) for these cases are based on, and are consistent with, the 2005 settlement agreements with Travelers Indemnity Company. "Based on the assumptions, we have provided an undiscounted liability related to premises asbestos claims of US$10 million at December 31, 2017 and US$11 million December 31, 2016. The liabilities related to asbestos claims are included in accrued expenses (current portion) and other noncurrent liabilities on the Consolidated Balance Sheets. Certain of these costs are recoverable through the settlement agreement with The Travelers Indemnity Company, as well as an agreement with Albemarle Corporation. The receivable for these recoveries related to premises asbestos liabilities was US$5 million at both December 31, 2017 and December 31, 2016. These receivables are included in trade and other accounts receivable, net on the Consolidated Balance Sheets for the current portion. The noncurrent portion is included in deferred charges and other assets." A full-text copy of the Form 10-K is available at https://is.gd/HSjj4t ASBESTOS UPDATE: 193 Talcum Suits vs. Colgate-Palmolive Pending --------------------------------------------------------------- Colgate-Palmolive Company had 193 individual cases pending in state and federal courts throughout the United States as of 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. Colgate-Palmolive states, "The Company has been named as a defendant in civil actions alleging that certain talcum powder products that were sold prior to 1996 were contaminated with asbestos. Most of these actions involve a number of co- defendants from a variety of different industries, including suppliers of asbestos and manufacturers of products that, unlike the Company's products, were designed to contain asbestos. "As of December 31, 2017, there were 193 individual cases pending against the Company in state and federal courts throughout the United States, as compared to 115 cases as of December 31, 2016. During the year ended December 31, 2017, 132 new cases were filed and 54 cases were resolved by voluntary dismissal, appeal in the Company's favor or settlement. The value of settlements in the years presented was not material, either individually or in the aggregate, to each such period's results of operations." A full-text copy of the Form 10-K is available at https://is.gd/zKBaIq ASBESTOS UPDATE: Court Dismissed "Johnson" Asbestos PI Suit ----------------------------------------------------------- Judge Thomas S. Zilly of the U.S. District Court for the Western District of Washington dismissed the case styled Thomas A. Johnson and Barbara C. Johnson, Plaintiffs, v. CBS Corporation; and General Electric Company, Defendants, No. C17-834 TSZ, (W.D. Wash.). Counsel had advised the Court that the matter has been resolved and that no issue remains for the Court's determination. Consequently, the trial date of May 1, 2018, and all related dates and deadlines, including the hearing set for March 30, 2018, are stricken. All remaining motions are also stricken. A full-text copy of the Order dated March 27, 2018, is available at https://tinyurl.com/ydyzzo5k from Leagle.com. Thomas A. Johnson & Barbara C. Johnson, Husband and Wife, Plaintiffs, represented by Kristin M. Houser -- houser@sgb- law.com -- Schroeter Goldmark & Bender, Lucas W.H. Garrett -- garrett@sgb-law.com -- Schroeter Goldmark & Bender, Thomas J. Breen -- breen@sgb-law.com -- Schroeter Goldmark & Bender -- mclafferty@sgb-law.com -- Schroeter Goldmark & Bender & Joseph A. Campagna -- campagna@sgb-law.com -- Schroeter Goldmark & Bender. CBS Corporation, successor by merger to CBS Corporation, formerly known as Westinghouse Electric Corporation, Defendant, represented by David A. Speziali, Speziali, Greenwald & Hawkins, pro hac vice, Erin P. Fraser -- efraser@tktrial.com -- Tanenbaum Keale LLP, William D. Harvard -- wdharvard@ewhlaw.com -- Evert Weathersby Houff, pro hac vice & Christopher S. Marks -- cmarks@tktrial.com -- Tanenbaum Keale LLP. General Electric Company, Defendant, represented by David A. Speziali, Speziali, Greenwald & Hawkins, pro hac vice, Erin P. Fraser -- efraser@tktrial.com -- Tanenbaum Keale LLP & Christopher S. Marks -- cmarks@tktrial.com -- Tanenbaum Keale LLP. ASBESTOS UPDATE: PI Claims vs. MetLife Dropped in "Airey" --------------------------------------------------------- Judge Louis Guirola, Jr., of the U.S. District Court for the Southern District of Mississippi has dismissed with prejudice Defendant Metropolitan Life Insurance Company from the claims of Plaintiffs in the case styled Beatrice H. Airey, Individually and on Behalf of the Estate and Wrongful Death Beneficiaries of Albert J. Airey, Deceased, Plaintiffs, v. A.O. Smith Water Products Co., et al., Defendants, Cause No. 1:16-cv-00317-LG-RHW, (S.D. Miss.). A full-text copy of the Agreed Order dated March 28, 2018, is available at https://tinyurl.com/yanlroyp from Leagle.com. Beatrice H. Airey, Individually and on behalf of the Estate and Wrongful Death Beneficiaries of Albert J. Airey, Deceased, Plaintiff, represented by James L. Farragut, III, Farragut Law Firm, PLLC. Foster Wheeler, LLC, Defendant, represented by Thomas E. Vaughn, Vaughn & Bowden, PA. CBS Corp., formerly known as Viacom, Inc. Successor-by-merger with CBS Corp. fka Westinghouse Electric Corp., Defendant, represented by Rose Marie Wade -- rmwade@ewhlaw.com -- Evert Weathersby Houff. IMO Industries, Inc., Defendant, represented by Claire W. Ketner -- cketner@brunini.com -- Brunini, Grantham, Grower & Hewes. Gardner Denver Nash, LLC, as successor by acquisition to Nash Elmo Industries LLC fka Nash Engineering Co., Defendant, represented by Paul D. Palermo -- ppalermo@bluewilliams.com -- Blue Williams, LLP. ASBESTOS UPDATE: Utica Must Disclose Docs on Burnham Deal --------------------------------------------------------- In the case is Utica Mutual Insurance Company, Plaintiff, v. R&Q Reinsurance Company, Defendant. No. 6:15-CV-270 (BKS/ATB), (N.D.N.Y.), Judge Andrew T. Baxter of the United States District Court for the Northern District of New York, granted in part R&Q Reinsurance Company's Motion for Reconsideration of the court's May 1, 2017 ruling denying R&Q access to internal documents of Utica Mutual Insurance Company regarding its settlement negotiations with Burnham Corporation and related coverage issues. Consequently, Utica will be required to disclose to R&Q: (1) non-privileged documents, for the period between January 1, 2016 and March 1, 2018, reflecting internal observations of, and/or communications between, personnel of Utica, Resolute, and/or NICO (including in-house counsel), relating to the efforts of Utica and Resolute to negotiate and finalize a coverage-in- place agreement ("CIP") with Burnham Corporation relating to asbestos claims. (2) non-privileged documents, for the period between July 1, 2015 and March 1, 2018, reflecting internal observations of, and/or communications between, personnel of Utica, Resolute, and/or NICO (including in-house counsel), relating to direct coverage issues involving Utica/Burnham primary and umbrella policies relevant to the Utica/Burnham negotiations, in particular: -- The alleged lack of explicit aggregate limits in the documentation of some of Utica's primary policies with Burnham. -- The agreed-upon expansion of the coverage block to include Utica/Burnham primary policies before 1960. -- The resolution of which umbrella policies covered defense costs within limits, and which did not. -- Whether the Utica/Burnham umbrella policies for 1977 through 1985 covered defense costs at all. -- Utica's ability to recoup or recover from Burnham for past payments of defense costs or orphan shares. -- The allocation of future defense payments. Defendant's motion for reconsideration is otherwise denied. R&Q would not be permitted to question Attorney John Roda, Esq. of Burnham with internal Utica/Resolute documents not previously disclosed to him by Utica/Resolute. The Court also directed the parties, after conferring, to submit a status report by April 13, requesting any revisions to the deadlines previously proposed, including the deadline for Utica to produce the supplemental discovery. A full-text copy of the Order dated March 28, 2018, is available at https://tinyurl.com/y9rgmdcw from Leagle.com. Utica Mutual Insurance Company, Plaintiff, represented by Mary Beth Forshaw -- mforshaw@stblaw.com -- Simpson, Thacher & Bartlett LLP, Christopher G. Lee -- cglee@stblaw.com -- Simpson, Thacher & Bartlett LLP & Elisa Alcabes -- ealcabes@stblaw.com -- Simpson, Thacher Law Firm. R&Q Reinsurance Company, formerly known as INA Reinsurance Company, Defendant, represented by John F. Finnegan -- john.finnegan@nortonrosefulbright.com -- Norton Rose Fulbright US LLP, Susan C. Aldridge -- susan.aldridge@nortonrosefulbright.com -- Norton Rose Fulbright US LLP, pro hac vice & Allison G. Gold - - allison.gold@nortonrosefulbright.com -- Norton Rose Fulbright US LLP, pro hac vice. ASBESTOS UPDATE: Consolidated Edison Leave to Appeal Withdrawn -------------------------------------------------------------- Consolidated Edison of New York, Inc., has moved for leave to appeal to the Court of Appeals from the decision and order of the Court, entered on January 10, 2017 in the case In Re New York City Asbestos Litigation. Phyllis Brown, as Administratrix of the Estate of Harry E. Brown, etc., Plaintiff-Appellant, v. Bell & Gossett Company, Defendant, Consolidated Edison of New York, Inc., Defendant-Respondent. Motion No. M-631, Index No. 190415/12, (N.Y. App. Div. 1d). The First Department of the Appellate Division of the Supreme Court of New York has deemed withdrawn, in accordance with the correspondence, dated February 8, 2018, filed by counsel for Defendant-Respondent, Defendant-Respondent's leave to appeal, upon reading the papers with respect to the motion, and the correspondence. A full-text copy of the Order dated March 29, 2018, is available at https://tinyurl.com/ybjmnnp8 from Leagle.com. ASBESTOS UPDATE: Clarks Not Estopped for Not Disclosing Diagnosis ----------------------------------------------------------------- The U.S. Court of Appeals for the Second Circuit vacated the April 28, 2017 judgment of the district court granting The Boeing Company's motion to dismiss and remanded the case for further proceedings. By early 2010, John Edward Clark and his wife, Michele, found themselves more than $100,000 in debt. Seeking to regain their financial footing, the couple filed for Chapter 13 bankruptcy in the United States Bankruptcy Court for the District of Connecticut. Under the Clarks' proposed Bankruptcy Plan, the couple agreed to repay their creditors in full over five years through monthly payroll deductions. For nearly five years, everything went as planned. Each month $2,152 was deducted from Mr. Clark's paycheck from his then employer, Boeing, and each month the couple inched closer to a discharge from bankruptcy. Then, only a few weeks before the Clarks' sixtieth (and final) monthly deduction was taken in July 2015, tragedy struck: Mr. Clark was diagnosed with mesothelioma. Although the Clarks fulfilled their last remaining obligations under the plan within a matter of weeks, their bankruptcy proceedings remained formally open for another full year before finally coming to a close on August 5, 2016. On July 29, 2016, the Clarks filed a personal injury action in New York State Court against The Boeing Company and a host of other corporations he believed responsible for exposing him to the known carcinogen. One week later, with every creditor having been paid in full, the couple received a final discharge from bankruptcy. Mr. Clark -- unsure of whether his bankruptcy asset schedules needed to be updated to reflect his diagnosis and intention to litigate -- alerted his bankruptcy counsel to this information and "trusted him to do what was required under the law." Mr. Clark's counsel, however, never passed this information along to the bankruptcy court during the pendency of the Clarks' bankruptcy proceeding. Boeing soon thereafter moved to dismiss the Clarks' personal injury suit on grounds of judicial estoppel. Boeing argued that the couple's failure to disclose Mr. Clark's diagnosis during bankruptcy bars them from pursuing personal injury claims related to that diagnosis forever thereafter. The district court agreed, characterizing judicial estoppel as a "harsh rule," it granted Boeing's motion on April 28, 2017, and dismissed the suit in its entirety. The Clarks timely appealed on May 26, 2017. Mr. Clark succumbed to his illness approximately six months later on November 24, 2017. The Second Circuit finds it as axiomatic that judicial estoppel - - an equitable doctrine -- is to be construed in light of equitable principles considering that it seems equally evident to the Court that the balance of equities tips overwhelmingly in the Clarks' favor, and yet, the district court found judicial estoppel to be required. The Second Circuit concludes that the district court abused its discretion in invoking judicial estoppel against the Clarks. The Second Circuit explains that the district court's April 28, 2017 judgment dismissing this suit started off on the right foot. It began by noting that the party asserting judicial estoppel must show (i) that "the party against whom the estoppel is asserted took an inconsistent position in a prior proceeding" and (ii) that "that position was adopted by the first tribunal in some manner, such as by rendering a favorable judgment." As to the first element, the district court held that the Clarks' failure to disclose their personal injury causes of action to the bankruptcy court amounted to an implicit false representation that no such causes of action existed. As to the second element, the district court reasoned that the bankruptcy court "adopted" the Clarks' inconsistent position by "rendering a favorable judgment" -- i.e., by discharging them from bankruptcy. The Second Circuit points out that the district court erred for ruling ipso facto that the couple's personal injury claims must be estopped after having satisfied itself that the Clarks met the judicial estoppel doctrine's two prerequisite elements. The Second Circuit maintains that judicial estoppel is not a mechanical rule. Before judicially estopping a litigant, a court must inquire into whether the particular factual circumstances of a case "tip the balance of equities in favor" of doing so. As the Standing Trustee for the District of Connecticut certified in an affidavit submitted on the Clarks' behalf, disclosure "would not have altered the outcome" of the couple's bankruptcy proceeding. This is because the Plan already required the Clarks to repay their creditors in full. Disclosing Mr. Clark's diagnosis to the bankruptcy court would therefore have only affected the couple's bankruptcy proceeding if their creditors were able to convince the bankruptcy court to raise the applicable interest rate under the Plan. Given that the Clarks were mere weeks away from completing repayment at the time of Mr. Clark's diagnosis, and were already paying interest at a standard rate, the Second Circuit finds this scenario as more than implausible. Boeing, however, it urges that, because "judicial estoppel protects the sanctity of the oath and the integrity of the judicial process," there are cases in which a court may properly invoke the doctrine even in response to a prior inconsistent position that had only a de minimis effect. The Second Circuit clarifies that there may be unusual circumstances in which the need to safeguard the integrity of the courts may tip the equities in favor of judicial estoppel even when the inconsistency in question made no material difference, but this case is surely not of that sort. The Second Circuit finds nothing in the record that suggests that the Clarks withheld Mr. Clark's diagnosis from the bankruptcy court in an effort to game the bankruptcy system. Indeed, it is hard to see what benefit they could even have hoped to obtain from nondisclosure. In these circumstances, the Second Circuit holds that the principles of equity require the courts to entertain Mrs. Clark's personal injury claims. The Second Circuit clarifies that it is not giving unscrupulous litigants the green light to play "fast and loose with the courts," nor does the Court wish to hamper district courts who deem judicial estoppel necessary to ensure the "full disclosure by debtors" that is "essential to the proper functioning of the bankruptcy system." But to hold on the facts of this case that Mrs. Clark's claims are barred by an equitable doctrine would be to deprive the concept of equity of any meaning. The appealed case is Michele Clark, Individually and as Representative of the Estate of John Clark, Plaintiff-Appellant, v. AII Acquisition, LLC, AWC 1997 Corporation, Crane Co., Domco Products Texas, LP, Eaton Aeroquip LLC, General Cable Industries, Inc., General Gasket Corp., goodrich corporation, fka B.F. Goodrich Company, Industrial Holdings Corporation, fka Carborundum Corporation, Lockheed Martin Corp., McDonnell Douglas Corporation, Navistar, Inc., fka International Truck and Engine Corporation, Pecora Corporation, Pfizer Inc., Pirelli Inc., Pirelli Tire, LLC, Pneumo Abex Corporation, Saint-Gobain Abrasives, Inc., Defendants-Cross Defendants-Appellees, The Boeing Company, Borgwarner Morse TEC LLC, CBS Corporation, General Electric Company, Goodyear Canada, Inc., Goodyear Tire And Rubber Company, Harco LLC, fka Harco Laboratories, Inc., Henkel Corporation, Hollingsworth & Vose Company, IMO Industries, Inc., Lennox Industries Inc., Mine Safety Appliance Company, LLC, Parker Hannifin Corporation, United Technologies Corporation, Prysmian Cables And Systems Usa, LLC, fka Pirelli Cable Corporation, Defendants-Cross Defendants-Cross Claimants- Appellees, Advanced Group Composites, Inc., Certainteed Corporation, Georgia-Pacific LLC, Rockwell Automation, Inc., as Successor in Interest to Allen-Bradley Company, LLC, Union Carbide Corporation, WELCO Manufacturing Company, Wyeth Holdings LLC, Defendants-Cross Defendants-Cross Claimants, Ciba-Geigy Corporation, Curtiss-Wright Corporation, Eaton Corporation, E.V. Roberts Headquarters, FMC Corporation, Greene, Tweed & Co., Hitco Carbon Composites, Inc., Kaiser Gypsum Company Inc., Northrop Grumman Systems Corporation, Schneider Electric, USA, Inc., fka Square D Company, Trane U.S. Inc., fka American Standard Inc., BMCE, Inc., Aerco International Inc., BASF Corporation, Defendants-Cross Defendants, No. 17-1727-cv, (2d Cir.). A full-text copy of the Order dated March 30, 2018, is available at https://tinyurl.com/yaobyzfk from Leagle.com. Alani Golanski ( Robert E. Shuttlesworth, Shrader & Associates, LLP, Houston, TX, on the brief) Alani Golanski, Esq., New York, NY, for Plaintiff-Appellant. Martin F. Gaynor III ( Brian D. Gross -- bgross@mgmlaw.com -- Matthew T. Giardina, Jr. -- mgiardina@mgmlaw.com -- Manion Gaynor & Manning LLP, Providence, RI, Amaryah K. Bocchino -- abocchino@mgmlaw.com -- Stephan D. Dargitz, Manion Gaynor & Manning LLP, Wilmington, DE, on the brief), Manion Gaynor & Manning LLP, Boston, MA, for Defendant-Appellee The Boeing Company. Bradley M. Wanner -- bwanner@harrisbeach.com -- ( Abbie Eliasberg Fuchs -- afuchs@harrisbeach.com -- on the brief), Harris Beach, PLLC, New York, NY, for Defendant-Appellee Prysmian Communications Cables & Systems USA, LLC. ASBESTOS UPDATE: Denial to Exclude Schonfeld Testimony Reversed --------------------------------------------------------------- Justice Lee Gabriel of the Court of Appeals of Texas for the Second District reverses the trial court's order denying BNSF Railway Company's motion to exclude Dr. Alvin Schonfeld's expert testimony, and remands the appealed case BNSF Railway Company (Individually and as Successor-in-Interest to the Burlington Northern, Inc., Burlington Northern & Santa Fe Railway Company and Atchison Topeka and Santa Fe Railway Company), Appellant, v. Leonard A. Baca, Appellee, No. 02-17-00168-CV, (Tex. App. 2d), for further proceedings; and grants BNSF's petition for permissive appeal. In this permissive interlocutory appeal, Appellee Leonard A. Baca alleges that while working for Appellant BNSF's predecessor in interest, he was exposed to asbestos, causing him to develop asbestosis. Baca retained as an expert Dr. Alvin Schonfeld, a pulmonologist, who provided a report in which he concluded Baca's asbestosis was causally related to his exposure to asbestos during his employment. BNSF moved to exclude Dr. Schonfeld's causation opinion as inadmissible because it was unreliable under well-established caselaw. The trial court denied the motion but also granted permission in its order for BNSF to immediately appeal, finding that the order involved a controlling question of law as to which there is a substantial ground for difference of opinion and an immediate appeal from the order would materially advance the ultimate termination of this litigation. The controlling question of law the trial court identified and ruled upon in its order, and the sole issue in this appeal, is whether the Federal Employers Liability Act's lower causation standard -- i.e., whether a railroad's negligence played any part, even the slightest, in bringing about the injury -- makes inapplicable the expert admissibility standards expressed in cases like E.I. DuPont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995) and Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997). FELA makes any railroad engaged in interstate commerce liable in damages for an injury to or death of an employee sustained while employed by the railroad if the injury or death resulted in whole or in part from the negligence of the railroad's employees or by reason of any defect or insufficiency in its equipment due to its negligence. To prevail on a FELA claim, a plaintiff must establish the traditional common-law elements of negligence: duty, breach, foreseeability, and cause-in-fact. But a plaintiff's burden to establish a railroad's liability under FELA is lighter than it would be in an ordinary negligence case because FELA prescribes a relaxed standard of causation. Under that relaxed causation standard, a plaintiff is entitled to prevail on a FELA claim if the railroad's negligence played any part, even the slightest, in producing the injury or death for which damages are sought. Baca sued BNSF alleging a claim under FELA -- he claims that his exposure to toxic substances and dusts, including asbestos and asbestos-containing products and materials, while in the course of his employment with BNSF caused him to develop asbestosis. Because whether a causal connection exists between a person's exposure to a chemical and a disease from which he suffers is outside the common knowledge and experience of lay persons, expert testimony is generally required to prove such a causal connection. Baca retained Dr. Schonfeld to do just that. Dr. Schonfeld's report sets forth the history of Baca's exposure to asbestos, which was relayed to Dr. Schonfeld by Baca. According to the report, Baca's working career has almost exclusively been as a railroad worker. Baca was laid off from the railroad in approximately 1965, so for a few months he worked for the Arizona Highway Department, where he used asbestos gloves when removing hot objects from a stove. But other than those few months in 1965, the report says, Baca worked for the railroad from 1964 to 1996. Based upon all of this information, Dr. Schonfeld concluded as follows: "Given [Baca's] history of significant exposures to asbestos in the workplace and given an appropriate latency and given the roentgenographic findings, I feel with a reasonable degree of medical certainty that Mr. Baca is diagnosed as having bilateral asbestosis. I feel with a reasonable degree of medical certainty that this diagnosis is causally related to his workplace exposures to asbestos." In its motion to exclude, BNSF argued that Dr. Schonfeld's causation opinion was inadmissible because it was unreliable. BNSF argued Dr. Schonfeld's causation opinion was not based on a reliable evidentiary foundation. BNSF argued that Dr. Schonfeld's methodology was unreliable. BNSF argued that in the context of an asbestosis case, evidence of the amount -- or dose -- of asbestos the plaintiff was exposed to is a necessary evidentiary foundation for an expert to reliably opine that the plaintiff's exposure to asbestos caused him to develop asbestosis because without knowing the dose, an expert has no reliable basis upon which to conclude that the plaintiff's exposure to asbestos met or exceeded the scientifically-accepted exposure threshold that is necessary to cause that disease. BNSF further argued that conducting that inquiry requires the trial court to consider whether the expert's methodology (1) has been subjected to peer review and publication, (2) has a high known or potential rate of error, (3) has standards controlling its operation, and (4) enjoys general acceptance within a relevant scientific community. BNSF acknowledged that in a toxic- tort case such as this one, a plaintiff simply may not be able to obtain reliable, direct evidence of the amount of the plaintiff's exposure to the toxin. BNSF stated that in such cases, the expert can utilize epidemiological studies to circumstantially establish that the plaintiff's exposure or dose levels were comparable to or greater than the levels of the subjects in those studies, but the expert must exclude any other plausible causes of the plaintiff's injury or condition with reasonable certainty. BNSF then argued that Dr. Schonfeld's opinion did not satisfy either of these two reliability requirements. In its motion to exclude, BNSF anticipated Baca would argue that "in light of the causation standard under FELA, the standards for reliability and admissibility of expert causation opinions should be relaxed." BNSF maintained that FELA's relaxed causation standard does not relax the standards for admissibility of expert causation opinions in a FELA case. However, Baca argued, whether an expert's testimony is relevant and, therefore, admissible is a question that necessarily depends upon the causation standard that applies to the claim under consideration. Baca maintained that state procedural rules cannot be applied in such a way as to impose unnecessary burdens upon the rights of recovery authorized by FELA and argued that FELA's featherweight causation standard should "significantly influence a determination of the admissibility of an expert's causation testimony." The Court finds that the trial court ultimately signed an order denying BNSF's motion to exclude and granting it permission to seek a permissive interlocutory appeal because it found the order involved a controlling question of law as to which there is substantial ground for difference of opinion and an immediate appeal would materially advance the ultimate termination of this litigation. In its petition for permissive appeal, BNSF stated that the sole issue it was presenting for appeal was "whether FELA's lower causation standard -- i.e., whether a railroad's negligence played any part, even the slightest, in bringing about the injury -- makes Texas's expert admissibility standards inapplicable?" BNSF argues that the trial court abused its discretion by concluding that in a FELA case, FELA's featherweight causation standard lowers Texas' standards governing the admissibility of expert testimony. The Court agrees with the reasoning of the courts that have concluded that the standard of causation under FELA and the standards for admission of expert testimony under the applicable rules of evidence are distinct issues that do not affect one another and that, consequently, FELA's featherweight causation standard does not require a Texas trial court to admit expert testimony in a FELA case that would be inadmissible in a non-FELA case. The Court concludes that FELA's featherweight causation standard does not render inapplicable in FELA cases Texas' procedural law governing the admissibility of expert testimony. Thus, the Court determines that the trial court abused its discretion by concluding to the contrary. A full-text copy of the Memorandum Opinion dated March 29, 2018, is available at https://tinyurl.com/yan3h8oe from Leagle.com. J.D. Bashline -- jdbashline@mapalaw.com -- John W. Proctor -- jproctor@browndean.com -- David E. Keltner -- david.keltner@kellyhart.com -- for BNSF Railway Company, Appellant. Kirk L. Pittard -- kpittard@kdplawfirm.com -- Kevin Camp, for Leonard A. Baca, Appellee. ASBESTOS UPDATE: Crane's Bid for Summary Ruling in "Chesher" OK'd ----------------------------------------------------------------- Judge David C. Norton of the U.S. District Court for District of South Carolina grants defendant Crane Co.'s renewed motion for summary judgment in the case styled James Wilson Chesher, and Cheryl Ann Chesher, Plaintiffs, v. 3M Company, et al., Defendants. No. 3:15-cv-02123-DCN, (D. S.C.). James Wilson Chesher is a former machinist mate and a commissioned officer in the U.S. Navy. He and his wife, Cheryl Ann Chesher, allege that Chesher's exposure to asbestos throughout his Naval career caused him to develop mesothelioma. Chesher served in the Navy from 1965 to 1989. For a significant portion of his career, Chesher conducted or oversaw maintenance and repair work on various types of equipment, including valves and de-aerating feed tanks -- large tanks which remove dissolved oxygen from the water before it is sent to the boiler. Chesher's work on valves required him, or his subordinate, to remove and replace internal packing and bonnet gaskets, which were frequently made from asbestos-containing materials. Chesher's work on de-aerating feed tanks required him to access nozzles inside the tank by crawling through a manhole. The record contains evidence that this manhole was sealed by an asbestos- containing gasket, which needed to be removed and replaced whenever the tank was inspected. Crane supplied valves for use on board the ships where Chesher performed, or closely supervised, valve maintenance. Indeed, Chesher recalls working on Crane valves frequently throughout his career. Though Crane did not manufacture asbestos-containing sheet packing or gaskets, these products were installed in Crane's valves at the time they were supplied to the Navy, and Crane was aware that the valves' sheet packing and gaskets would need to be replaced periodically. Crane is also alleged to be the successor-in-interest to Cochrane Corp., which manufactured the de-aerating feed tanks for two of the ships on which Chesher served. Like the gaskets used in Crane valves, the gaskets used to seal the manhole on the de-aerating feed tanks would have been replaced periodically -- namely, each time the tanks were opened. On April 15, 2015, plaintiffs brought the instant action in the Court of Common Pleas in Richland County, South Carolina, alleging claims for negligence, gross-negligence, negligence per se, conscious pain and suffering, punitive damages, and loss of consortium against a number of defendants. The action was removed to this Court on May 22, 2015. On March 4, 2016, Crane filed a Daubert motion to preclude specific causation testimony from plaintiffs' expert, Dr. Carlos Bedrossian, which the court granted after holding an evidentiary hearing on the matter. The court granted the motion to exclude Bedrossian's specific causation testimony because it found that under Federal Rule of Evidence 403, the probative value of the testimony is substantially outweighed by a danger of unfair prejudice, confusing the issues, and misleading the jury. Federal Rule of Evidence 403 empowers the court to "exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." The Court explains that in products liability action under maritime law, the plaintiff must show "that (1) he was exposed to the defendant's product, and (2) the product was a substantial factor in causing the injury he suffered." Plaintiffs offered Dr. Bedrossian as an expert to give specific causation testimony that Chesher's exposure to Crane's products was a substantial factor in causing his mesothelioma. The Court granted Crane's motion to exclude Dr. Bedrossian's specific causation testimony, because it found that his opinions amounted to the "every exposure" theory - - a theory about the causal link between exposure to asbestos and mesothelioma. However, the Court finds that Bedrossian assumes that, because every 'occupational' exposure contains exponentially more fibers than any background exposure, every 'occupational' exposure significantly contributes to the total cumulative dose. Thus, in Bedrossian's view, whenever the total cumulative dose results in mesothelioma, every 'occupational' exposure should be considered causative, no matter how small." Because Bedrossian's opinions are based on a method that has been rejected by the courts, the Court found that they are not relevant, and any probative value they may have is easily outweighed by their tendency to confuse or mislead the jury. Thus, the Court denied plaintiffs' motion to reconsider. Crane's renewed motion for summary judgment argues that plaintiffs lack the evidence necessary to make out a prima facie claim at trial without Bedrossian's specific causation testimony. Plaintiffs must "bring forward some evidence of actual cause; the mere showing that the asbestos manufacturer's product was present somewhere at his place of work is insufficient." Crane asserts that courts "do not require that cause necessarily be established by expert testimony." In fact, plaintiffs can prove that a product was a substantial factor in causing a plaintiff's injury by offering evidence of substantial exposure to a defendant's product for a substantial period of time. However, the substantial factor test requires "a plaintiff relying on circumstantial evidence of exposure to prove causation to show a high enough level of exposure that an inference that the asbestos was a substantial factor in the injury is more than conjectural." The Court finds that Chesher has not sufficiently demonstrated that his exposure to defendant's asbestos-containing products can satisfy the substantial factor test. Although Chesher has alleged exposure, he has not presented any evidence regarding the actual amount of asbestos dust he was exposed to or the duration of his exposure. If a plaintiff does not present specific causation testimony, the Court requires plaintiff to provide evidence on the amount of asbestos dust he was exposed to and approximately how long he actually breathed in this asbestos-laden air in order for him to sufficiently allege that an exposure was substantial enough to constitute a "substantial factor" in causing his injury. Chesher alleged that for over twenty years in the Navy he conducted or oversaw maintenance work on equipment which contained asbestos and that this work released asbestos into the air that he breathed. However, none of this deposition testimony alleges specifically how much asbestos dust he was exposed to or approximately how long he was exposed to it. The Court explains that allegations of periodic exposure over the course of twenty- four years of work is not sufficient "evidence of substantial exposure for a substantial period of time to provide a basis for the inference that the product was a substantial factor in causing the injury." Because Chesher has failed to put forth sufficiently specific evidence of substantial exposure, the Court finds that he has failed to establish that Crane's product was a substantial factor in causing the injury he suffered. Having failed the substantial factor test, and having no expert testimony on specific causation, the Court concludes that Chesher has not established a prima facie case under maritime law for a products liability mesothelioma action. A full-text copy of the Order dated March 29, 2018, is available at https://tinyurl.com/ycrbuf6u from Leagle.com. James Willson Chesher & Cheryl Ann Chesher, Plaintiffs, represented by Charles S. Siegel, Waters and Kraus LLP, pro hac vice, Gibbs C. Henderson, Waters and Kraus LLP, pro hac vice, John Daniel Kassel -- jkassel@kassellaw.com -- John D Kassel Law Firm, Jonathan A. George, Waters and Kraus LLP, pro hac vice, Peter Andrew Kraus, Waters and Kraus LLP, pro hac vice, Robert Walker Humphrey, II -- whumphrey@willoughbyhoefer.com -- Willoughby and Hoefer, pro hac vice & Theile Branham McVey -- tmcvey@kassellaw.com -- John D Kassel Law Firm. Crane Co, (sued individually and as successor-in-interest to Chapman Valve Co and as successor-in-interest to Cochrane Corp.) A Delaware Corporation, Defendant, represented by David A. Fusco -- david.fusco@klgates.com -- K&L Gates, pro hac vice, Neil Joseph MacDonald -- nmacdonald@macdonaldlawgroup.com -- MacDonald Law Group LLC, pro hac vice, Richard Ashby Farrier, Jr., K&L Gates LLP, Ronald A. Charlot, K&L Gates, pro hac vice, Christopher Austin Jaros -- christopher.jaros@klgates.com -- K&L Gates & Tara Cloer Sullivan -- Tara.Sullivan@klgates.com -- K&L Gates LLP. ASBESTOS UPDATE: Syngenta, INA Dispute Sent to Arbitration ---------------------------------------------------------- Judge Denise Cote of the U.S. District Court for the Southern District of New York stayed the case styled Syngenta Crop Protection, LLC, Plaintiff, v. Insurance Company Of North America, Inc., Century Indemnity Company, and Ace Propery and Casualty Insurance Company, Defendants. No. 18cv715 (DLC), (S.D. N.Y.), in favor of arbitration. This litigation arises out of an insurance coverage dispute regarding the relationship between a set of decades-old insurance policies and a subsequent settlement agreement. Syngenta Crop Protection, LLC seeks coverage under these policies for a set of claims involving asbestos exposure among contract workers associated with its predecessors. The defendant insurance companies, Insurance Company of North America, Inc., Century Indemnity Company, and ACE Property and Casualty Insurance Company (collectively, "INA"), believe that the Asbestos Claims were released by a settlement agreement signed in 1999. Syngenta claims that INA has waived its right to enforce the release. From approximately 1958 to 1986, INA and its predecessors issued insurance policies of which Syngenta is the beneficiary. Syngenta has been named as a defendant in numerous lawsuits, collectively asserting claims on behalf of approximately 1,700 non-employee contractors, who claim to have been harmed from exposure to asbestos while working on Syngenta's premises in Louisiana -- a group of claims this Opinion refers to as the "Asbestos Claims." Syngenta first notified INA about the Asbestos Claims in March 1999, which at the time involved 325 plaintiffs, in order to seek a coverage determination. After a long-running litigation concerning environmental damage allegedly caused by Syngenta, a settlement agreement was reached in January 1999 (the "1999 Settlement"). Pursuant to the 1999 Settlement, Syngenta released any "Environmental Claims", a carefully defined term, which it had against INA. It also agreed that: "In the event of any dispute with respect to this Settlement Agreement and Release, the Parties agree to resolve that dispute through arbitration, to be held in New York City, pursuant to the Rules of Arbitration of the American Arbitration Association." Two months after the 1999 Agreement was signed, Syngenta formally notified INA about the Asbestos Claims. The parties dispute numerous aspects of what happened over the next 18 years. What is not disputed, however, is that INA initially responded to the coverage request on April 15, 1999 through a reservation of rights letter, which listed numerous potential grounds for denying coverage, but not a defense of prior release under the 1999 Settlement. After years of periodic updates on the claims, Syngenta made a formal demand for payment on the Asbestos Claims in 2008. INA has since requested periodic status updates on the Asbestos Claims, but had never formally denied coverage until 2017, when it first invoked the defense of prior release pursuant to the 1999 Settlement. On November 2, 2017, INA commenced an arbitration under the 1999 Settlement against Syngenta and the agreement's other signatories, seeking a declaration that the Asbestos Claims were released by the agreement. On January 29, 2018, Syngenta filed a complaint in this Court seeking a declaration that INA is obligated to pay for the defense costs and liabilities incurred by Syngenta in connection with the Asbestos Claims, damages it has incurred thus far in connection with Asbestos Claims, and an injunction to preclude INA from pursuing the prior release defense against Syngenta in the arbitration. On February 1, 2018, Syngenta filed a preliminary and permanent injunction motion seeking to enjoin the arbitration. At a conference on February 9, 2018, INA indicated that it would move for a stay of these proceedings pending arbitration. The Court deferred further briefing on plaintiff's motion for an injunction pending the resolution of this motion to stay. INA has represented that it will not proceed with the arbitration until the resolution of its motion. The motion for stay was filed on February 23 and became fully submitted on March 23. Section 3 of the Federal Arbitration Act, 9 U.S.C. Section 3, provides authority for a court to stay an action pending the result of an arbitration. The parties do not dispute that there has been an agreement to arbitrate. This dispute instead centers on whether the arbitrator or the court has the power to decide whether the underlying issues are subject to arbitration, and, if the court has that power, whether the issues should be arbitrated. Syngenta contends that INA has waived its right to seek arbitration through its failure to assert the 1999 Settlement as a defense to coverage for more than 18 years after being notified of the Asbestos Claims. INA argues that the validity of the waiver argument is for the arbitrator to decide, and that in any event there has not been such a waiver. The question of whether INA has waived its right to arbitrate through its conduct is one for the arbitrator, not this Court. Syngenta does not assert, nor could it assert, that INA has waived its right to arbitrate through any litigation conduct. Because Syngenta's assertion that INA has waived the right to arbitrate is a "waiver, delay, or like defense to arbitrability," Accordingly, Syngenta's claim that INA has waived its right to arbitrate through conduct is for the arbitrator to decide, not this Court. Syngenta next contends that INA has waived its right to assert prior release as a defense to insurance coverage under New York Insurance Law Section 3420. Syngenta further argues that that this contention is outside the scope of the arbitration clause because it is independent of, or collateral to, the 1999 Settlement. That is, Syngenta believes that this argument turns not on the question of whether the Asbestos Claims were in fact released under the 1999 Settlement, but rather on whether INA has waived its right to assert this defense to covering the Asbestos Claims through its delay. The parties disagree, however, over whether the court or the arbitrator decides the question of arbitrability -- that is, who decides whether Syngenta's argument under New York Insurance Law is within the scope of the arbitration clause. The Court explains that parties to an arbitration agreement may provide that the arbitrator, not the court, will determine whether an issue is arbitrable. But the issue of arbitrability may only be referred to the arbitrator if there is clear and unmistakable evidence from the arbitration agreement, as construed by the relevant state law, that the parties intended that the question of arbitrability will be decided by the arbitrator. The Court also explains that parties can further reflect their intent to arbitrate questions of arbitrability by incorporating rules of an arbitration association that empower arbitrators to decide such questions into their agreement. Incorporation of such rules has repeatedly been held to constitute a clear and unmistakable intention to delegate questions of arbitrability to the arbitrator. The Court finds that the arbitration clause in the 1999 Settlement requires that "any dispute with respect to" the agreement be resolved through arbitration. This language, which is effectively identical to that of clauses that have previously been held to be clear and unmistakable delegations to the arbitrator of questions of arbitrability, must also be held to reflect a clear and unmistakable delegation to the arbitrator to decide questions of arbitrability. The Court determines that the arbitration clause also provides that the rules of the American Arbitration Association ("AAA") are to govern. Although the arbitration clause is silent as to exactly which rules of the AAA would apply, the AAA's commercial arbitration rules, both when the agreement was signed in 1999 and now, state that "the parties will be deemed to have made these rules a part of their arbitration agreement whenever they have provided for . . . arbitration by the AAA of a domestic commercial dispute without specifying particular rules." The Court points out that the 1999 Agreement and the disputes here both arise out of, and are, domestic commercial disputes, and choosing to use the AAA's rules necessarily implies, absent evidence to the contrary, that the AAA is to administer the arbitration. Therefore, the Court finds no ambiguity in concluding that the parties to the 1999 Agreement, by choosing the rules of the AAA, meant to choose the AAA's commercial arbitration rules. The AAA commercial arbitration rules provided in 1999, and do today, that "the arbitrator will have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the agreement." This rule, necessarily incorporated into the parties' arbitration clause, clearly and unmistakably demonstrated the parties' intent to delegate the power to determine arbitrability to the arbitrator. Syngenta does not attempt to distinguish the cases holding very similar clauses to be clear and unmistakable delegations to the arbitrator to decide questions of arbitrability. Nor can it refute that the applicable AAA rules are its commercial arbitration rules, which also provide an unmistakable delegation to the arbitrator to decide arbitrability. Accordingly, the Court concludes that the question of arbitrability is for the arbitrator. Accordingly, the action is stayed in favor of arbitration, and the parties are directed to submit a joint letter on the status of the arbitration proceedings by August 31, 2018. Likewise, the parties are directed to inform the Court within seven days after the conclusion of the arbitral proceedings. A full-text copy of the Opinion and Order dated March 29, 2018, is available at https://tinyurl.com/yd6sxpcf from Leagle.com. Syngenta Crop Protection, LLC, Plaintiff, represented by Joshua Langsam Blosveren -- jblosveren@hnrklaw.com -- Hoguet Newman Regal & Kenney, LLP. Insurance Company of North America, Inc., Century Indemnity Company & Ace Property & Casualty Insurance Company, Defendants, represented by Robert F. Walsh -- walshr@whiteandwilliams.com -- White and Williams LLP. ASBESTOS UPDATE: Rule 2019 Exhibits Access Decision Affirmed ------------------------------------------------------------ Judge Leonard P. Stark of the U.S. District Court for the District Delaware issues an Opinion in the matter: Motions Seeking Access to 2019 Statements, Civ. No. 16-1078-LPS, (D. Del.) affirming the Bankruptcy Court's Access Decision. This appeal relates to nine Delaware bankruptcy cases, each commenced in connection with the respective debtors' asbestos- related liabilities ("Consolidated Cases"). The appeal arises from the most recent attempt to access thousands of Exhibits that were submitted to the Bankruptcy Court pursuant to Federal Rule of Bankruptcy Procedure 2019 in connection with administering the nine asbestos bankruptcies. Consistent with a series of orders entered by the Bankruptcy Court in implementing Rule 2019, the 2019 Exhibits are in the possession of the Clerk of the Bankruptcy Court, but are not available on the public docket. On November 8, 2016, the Bankruptcy Court entered its opinion and order in each of the Consolidated Cases, granting Appellants limited access to the 2019 Exhibits for the purpose of investigating potential fraud in the claims process. The Bankruptcy Court imposed additional limitations on access as well. Because Appellants want unlimited access to the 2019 Exhibits, they have appealed the Bankruptcy Court's decision "to the extent that the Opinion and Order restrict Appellants' ability to access and use the 2019 Exhibits." Appellees have cross-appealed on the basis that the Bankruptcy Court should have denied Appellants access to the 2019 Exhibits altogether. Appellants filed a motion seeking access to all 2019 Exhibits submitted in the nine Consolidated Cases. All nine of the Consolidated Cases began in the 2000s. Under the version of Bankruptcy Rule 2019 in effect at that time, a 2019 Statement (when required) needed to contain certain identifying information (e.g., name and address, nature and amount of claim or interest, etc.) about the creditors and equity holders being represented by the entity preparing the 2019 Statement (e.g., a law firm). In 2004 and 2005, Bankruptcy Judge Judith K. Fitzgerald was assigned to nearly all of the asbestos bankruptcies filed within the Third Circuit, including the Consolidated Cases. In the course of administering these cases, Judge Fitzgerald determined that because the 2019 Exhibits contain personal-identifying information of potential asbestos claimants, disclosure of that information on the electronic docket posed a risk to privacy interests and presented the potential for identity theft. On August 25, 2004, Judge Fitzgerald entered the first in a series of the 2019 Orders, which together standardized disclosures required by Bankruptcy Rule 2019 for the asbestos cases filed in the Third Circuit. Pursuant to the 2019 Orders, lawyers representing multiple claimants were required to file 2019 Statements, which included the name and address of the law firm but excluded any substantive information. The 2019 Statements were electronically filed and available on the public docket. These lawyers were also required to submit exhibits to the 2019 Statements, which contained substantive information about their clients (and potential clients) and their clients' claims (and potential claims). The 2019 Exhibits -- which might include full social security numbers and names and extent of disease conditions -- were submitted to the Clerk of the Bankruptcy Court on compact disc (CD). Unlike the 2019 Statements, the 2019 Exhibits were not electronically docketed. The 2019 Orders did not, however, seal the 2019 Exhibits. Rather, the 2019 Orders regulated access to the 2019 Exhibits, in light of privacy concerns, and established a procedure by which a party seeking access to the 2019 Exhibits may request it. The procedures established by Judge Fitzgerald in her 2019 Orders have been reviewed and approved by several courts within the Third Circuit. Former District Judge Farnan of this Court emphasized that "the Bankruptcy Court is regulating access to the information because of privacy concerns" and found that the 2019 Orders "strike the appropriate balance between maintaining the public's right to access the Rule 2019 information and ensuring that the information is not misused." Litigation over access to the 2019 Exhibits from the Consolidated Cases arose again in 2009, when an asbestos defendant, Garlock Sealing Technologies, LLC, filed a motion for access in the Pittsburgh Corning bankruptcy, in connection with its objections to confirmation of the Pittsburgh Corning bankruptcy plan. The Bankruptcy Court denied Garlock's motion for access in 2010. A year later, Garlock, by then itself a debtor in an asbestos bankruptcy -- pending in the Western District of North Carolina, No. 10-31607 (Bankr. W.D.N.C.) -- filed a new series of motions seeking access to the 2019 Exhibits submitted in each of the Consolidated Cases (and also in three Pennsylvania bankruptcy cases, which, like the Consolidated Cases, were all before Judge Fitzgerald at the time). Certain asbestos claimants' committees, along with plaintiffs' law firms, filed objections, as did certain debtors. Garlock subsequently filed amended motions. Judge Fitzgerald denied the motions. On appeal, the Court reversed, concluding that "access should be provided" but "subject to certain limitations." The Court subsequently entered an implementing order, which authorizes Garlock to use such 2019 Exhibits solely in connection with the estimation proceedings in Garlock's chapter 11 bankruptcy cases. . . and neither the 2019 Exhibits nor the information contained therein may be used for any other purpose. Garlock will not disclose publicly the information contained in any 2019 Exhibit except in an aggregate format that does not identify any individual represented person. Recognizing that Garlock has requested the North Carolina Bankruptcy Court to enter a proposed protective order pursuant to the Protective Order Motion, public disclosure of the information in any 2019 Exhibit will be subject to the terms of a protective order entered by the North Carolina Bankruptcy Court that is consistent with the Court's Opinion and Order and the terms of this Order. On June 30, 2016, Appellant Honeywell, joined by Ford filed a request in each of the Consolidated Cases seeking unlimited access to the 2019 Exhibits, even though all but one of the nine Consolidated Cases are closed. Appellants contend that they, like any entity, are entitled to indefinite access to the 2019 Exhibits, to use them for any purpose, including, but not limited to, investigating potential fraud in the claims process and advancing Appellants' legislative and lobbying activities. Appellees -- including various Trust Advisory Committees ("TAC") and the Future Claimants Representatives ("FCR") -- opposed the request, on grounds including that Appellants' admitted purposes for requesting access to the 2019 Exhibits are improper and, anyway, the 2019 Exhibits are useless for such purposes. Honeywell and Ford seek use of the 2019 Exhibits by "any entity," not just themselves. Honeywell stated that it intended to use the information "to review and analyze all aspects of the NARCO Trust's operations, including, without limitation, its claims processing procedures and the claims submitted to the NARCO Trust under the individual review and expedited review processes. The valuable information contained in the 2019 Exhibits will help to ensure that the purpose of the NARCO Trust, which is to promptly pay holders of `valid' claims, is fulfilled...." Both Honeywell and Ford also seek to use the 2019 Exhibits for unspecified lobbying efforts. On December 1, 2016, the Bankruptcy Court entered the Access Decision. Recognizing the Court's ruling in Garlock, the Bankruptcy Court looked to whether Appellants had articulated a proper purpose for access. Reviewing Third Circuit case law, the Bankruptcy Court found no precedent for unlimited use of' materials outside of bankruptcy proceedings and no precedent holding that lobbying and legislative efforts constitute a proper use. The Bankruptcy Court determined that Appellants were entitled to access the 2019 Exhibits only for the limited purpose of investigating fraud in the claims process. Accordingly, the Bankruptcy Court set certain limitations to protect individuals. In particular, the Bankruptcy Court held that access would be granted solely to Honeywell and Ford, for a three-month period, after which the exhibits had to be destroyed. Appellants were further prohibited from sharing the identity of individuals by name or other identifying means with the NARCO Trust. Finally, the Bankruptcy Court determined it appropriate to appoint a facilitator to oversee production of the 2019 Exhibits, including the removal of the retention agreements and all but the last four digits of social security numbers, and imposed the costs associated with the efforts of the facilitator on Appellants. The Bankruptcy Court specifically found that the 2019 Exhibits contain the following: (1) the names and addresses of the clients of the submitting attorney; (2) exemplars or actual copies of the relevant retention agreements; (3) identification of disease; (4) claim amounts, if liquidated; (5) sometimes full or partial social security numbers; (6) sometimes medical records, with information including full or partial social security numbers; family histories (including causes of death of family members), results of physical examinations, chest x-rays, and lung function tests, and other similarly sensitive medical information; and (7) sometimes other records that the law firm maintained in connection with or commingled with the required information. These are the same facts that were before the Court in Garlock, where this Court found no error in the Bankruptcy Court's determination that the 2019 Exhibits (the same 2019 Exhibits at issue here) contained identifying material triggering privacy concerns. On November 22, 2016, Because Appellants want unlimited access to the 2019 Exhibits, Honeywell and Ford filed notices appealing the Access Decision to the extent that it restrict Appellants' ability to access and use the 2019. In addition, on November 23, 2016, Honeywell moved to stay the Access Decision pending resolution of this appeal (otherwise the three months of access would have expired), which the Bankruptcy Court granted on December 1, 2016. Collectively, the Appeals of the Access Decision have generated 45 separate cases before the District Court. By order entered May 24, 2017, the Appeals are consolidated for procedural purposes under Civ. No. 16-1078-LPS. In turn, the FCR and TAC Appellees' have cross-appealed based on their contention that the Bankruptcy Court should not have provided Appellants any access to the 2019 Exhibits. Appellee Owens Coming, a former debtor whose bankruptcy is now closed, takes no position on the merits of the issues that are the subject of the Appeals. But it has appeared solely for the purpose of arguing that if access is granted, and if costs are incurred in connection with providing Appellants such access, none of the debtors in the Consolidated Cases (including Owens Coming) should be required to bear any of those expenses. The Court agrees with Appellees. The Bankruptcy Court did not abuse its discretion in adopting the additional protections it imposed as conditions of Appellants' access to the 2019 Exhibits. The Court clarifies that the Bankruptcy Court entered the 2019 Orders in 2004, based on its supervisory power over its own records, its ability to tailor the requirements of Bankruptcy Rule 2019, its equitable powers under Section 105(a), and, later, the discretion granted by Congress in Section 107(c). The Court makes clear that the 2019 Orders are not, at this point, appealable. Beginning in 2004 with the first of the 2019 Orders, the Bankruptcy Court has consistently acted to protect individuals by putting procedural protections in place to regulate access. Thus, the 2019 Exhibits were not publicly filed, in order to eliminate widespread public access on the electronic docket. The 2019 Orders implemented certain procedures to protect the privacy of individuals involved in the Consolidated Cases. Those protections included filing the 2019 Exhibits with the Clerk and requiring a party seeking access to file a motion and explain why access was sought. In determining that Appellants should be granted access to the 2019 Exhibits, the Bankruptcy Court properly looked to the Appellants' asserted purpose, as required by the 2019 Orders. In particular, the Bankruptcy Court did not abuse its discretion in limiting access to Honeywell and Ford, the only entities that have moved for access, which is entirely consistent with the 2019 Orders and is the process that has been followed for all access requests. Nor was there any abuse of discretion in limiting Appellants' use of the 2019 Exhibits to sharing with the NARCO Trust, as this was the only proper purpose Appellants identified for having access to these materials. With respect to the three- month time limit on Appellants' access to the 2019 Exhibits, there was also no abuse of discretion. While the Bankruptcy Court did not expressly state the basis for imposing this limitation, there is also no basis in the record to make any finding as to what amount of time (presumably longer than three months) Appellants would need to accomplish the purpose for which the Bankruptcy Court provided access. Finally, there was also no abuse of discretion in imposing on Appellants, as the parties seeking access, any costs that may arise with implementing the limited access approved by the Bankruptcy Court, particularly any costs related to review and redaction of the 2019 Exhibits. As Appellants are now seeking access only to the same materials that have already been redacted and processed and provided to Garlock, it is likely that any additional costs will be minimal (and it appears Appellants may anyway be willing to pay them). Whatever the costs, they would not have been incurred by anyone were it not for the fact that Appellants have -- appropriately, under Section 107(c) -- been granted access not to the full and complete 2019 Exhibits as submitted to the Bankruptcy Court but to redacted versions. Appellants are not well-positioned to meet their burden to show that any of the restrictions on access are the result of an abuse of discretion because they did nothing to help inform the Bankruptcy Court's exercise of its discretion. As Appellants' position was that everyone should be given unlimited, unrestricted access, they did not advocate any restrictions. Thus, in imposing restrictions on Appellants' access to the 2019 Exhibits, the Bankruptcy Court acted consistent with its authority. It did not abuse its discretion. Therefore, the Court will affirm the Bankruptcy Court's Order. A full-text copy of the Opinion dated March 27, 2018, is available at https://tinyurl.com/ydxsvmzj from Leagle.com. Acands, Inc., Debtor, represented by Thomas Henry Kovach, A M Saccullo Legal, LLC. Honeywell International Inc., Appellant, represented by Justin K. Edelson -- jedelson@polsinelli.com -- Polsinelli PC & Darren Azman -- dazman@mwe.com -- McDermott Will and Emery, pro hac vice. Ford Motor Company, Defendant, represented by Christian J. Singewald -- singewaldc@whiteandwilliams.com -- White & Williams & Gregory W. Werkheiser -- gwerkheiser@mnat.com -- Morris, Nichols, Arsht & Tunnell LLP. North American Refractories Company Asbestos Personal Injury Settlement Trust Advisory Committee, Appellee, represented by Anthony Michael Saccullo -- ams@saccullolegal.com -- A M Saccullo Legal, LLC & Thomas Henry Kovach, A M Saccullo Legal, LLC. Owens Corning Sales, LLC, f/k/a Owens Corning, and its Affiliated Reorganized Debtors, Appellee, represented by Mark Minuti -- Mark.Minuti@saul.com -- Saul Ewing Arnstein & Lehr LLP. Washington Legal Foundation, Amicus, represented by Nicholas E. Skiles -- nskiles@swartzcampbell.com -- Swartz Campbell LLC. American Association for Justice, Amicus, represented by Raeann Warner -- raeann@jcdelaw.com -- Jacobs & Crumplar, P.A. & Robert S. Peck -- robert.peck@cclfirm.com -- Center for Constitutional Litigation, P.C, pro hac vice. ASBESTOS UPDATE: 9th Cir. Affirms Denial of Crane's Judgment Bid ---------------------------------------------------------------- The United States Court of Appeals for Ninth Circuit affirms the district court's judgment denying Crane Company's motion for judgment as a matter of law both before and after the verdict in the appealed case Sandra Brown Coulbourn, surviving wife and on behalf of decedent's surviving beneficiaries George Coulbourn Jr, Scott Alan Coulbourn and Shannon Coulbourn Moses, Plaintiff- Appellee, v. Crane Co., sued individually and as: successor in interest Cochrane Corporation successor in interest Chapman Valve Company successor in interest Deming Pump Company Defendant- Appellant, No. 16-16925, (9th Cir.). George Coulbourn was a machinist for the Navy from 1959 to 1966, during which time he worked with several products sold by defendant-appellant Crane Company that contained significant amounts of asbestos. His work exposed him to dust from this asbestos, which he inhaled. Coulbourn was diagnosed with mesothelioma in September 2012 and passed away in August 2013. Coulbourn sued Crane, alleging, among other things, that Crane's products were defective in failing to warn of the dangers that asbestos posed. After his death, Coulbourn's wife, plaintiff- appellee Sandra Coulbourn, filed an amended complaint on behalf of herself and Coulbourn's family, asserting a claim for wrongful death based upon the same allegations of defect. Following trial, the jury awarded plaintiffs a total of $9 million in compensatory damages, with Crane bearing responsibility for 20%, or $1.8 million, of those damages, and $5 million in punitive damages against Crane. Crane moved for judgment as a matter of law both before and after the verdict, and the district court denied both motions. Crane appeals the district court's denial of its motion, arguing that plaintiffs failed to present sufficient evidence that its products were the only causes of Coulbourn's death because he worked with many other products from other companies that also contained asbestos. The Ninth Circuit points out that under Arizona law, "when multiple tortfeasors are alleged to have created an indivisible injury and each defendant's causal role is potentially indeterminable, such causal uncertainty will not prevent a plaintiff from recovering altogether. The test under such circumstances is whether the defendant's actions were 'a substantial factor' in producing the injury." The Court explains that an independently sufficient cause is a substantial factor even if it is not a but for cause because there were other independently sufficient causes. Given the evidence of Coulbourn's frequent, direct contact with asbestos dust from Crane products during a substantial period, the Court determines that a reasonable juror could find that Crane products were more likely than not independently sufficient to cause his mesothelioma, and were thus a substantial factor in causing plaintiffs' injuries. Crane next argues that there was insufficient evidence for plaintiffs' failure-to-warn theory to go to a jury because plaintiffs put forward no evidence that Coulbourn would have heeded a warning had Crane provided one. However, the Ninth Circuit points out that there was expert testimony and other evidence before the jury that asbestos causes mesothelioma, and from this, a jury could infer from this evidence that Coulbourn would have heeded an adequate warning of this serious danger. Crane also challenges the sufficiency of the evidence supporting the jury's award of punitive damages. Plaintiffs argue that the award is justified because Crane, "although not intending to cause injury... consciously pursued a course of conduct knowing that it created a substantial risk of significant harm to others." Plaintiffs adduced evidence of Crane's awareness as early as the 1930s that inhaling asbestos dust can be fatal, including, inter alia, a number of articles reflecting that finding that were published by organizations of which Crane officers were members. One of the principal Crane products with which Coulbourn worked was Cranite, which was composed of 75-85% asbestos and used to make gaskets, which were in turn used to seal joints between pipes and prevent leaks. As both Coulbourn and plaintiffs' naval engineering expert testified, the heat to which the gaskets were exposed in the course of their normal use invariably caused them to stick to the joints. Removing and replacing these gaskets was therefore part of the normal maintenance of the ships, and when repairing or replacing the gaskets, which Coulbourn did every day while in certain roles, Crane employees such as Coulbourn had to scrape them off with wire brushes, which caused the interior asbestos dust to enter the air. The Ninth Circuit maintains that a jury could reasonably infer from this evidence that Crane knew that the normal use of its gaskets would cause them to stick to the joints such that their inevitable removal would require scraping and so expose workers to potentially fatal asbestos dust. This is sufficient to justify punitive damages under Arizona law. Crane also appeals the district court's denial of its motion for judgment as a matter of law on plaintiffs' claim for punitive damages, arguing that such damages are precluded by an Arizona statute barring punitive damages for products approved by a government agency. The Ninth Circuit clarifies that Arizona law bars punitive damages if the "product alleged to have caused the harm was designed, manufactured, packaged, labeled, sold or represented in relevant and material respects according to the terms of an approval, conditional approval, clearance, license or similar determination of a government agency." However, Crane put forward no evidence that the Navy "approved" of its failure to warn of the dangers of asbestos. The Navy therefore had not approved of the product in the "relevant and material respect," as required under the statute. Crane also argues that the imposition of punitive damages in this suit, and indeed in any single case arising out of a mass tort, will inevitably result in unconstitutional double punishment. The Ninth Circuit mentioned Philip Morris USA v. Williams, 549 U.S. 346 where the Supreme Court has held, in the context of another mass tort case, that, while juries cannot use punitive damages to punish the defendant for harms it caused to others, they may consider those harms to determine reprehensibility. However, the Court finds that Crane has offered no evidence that the jury strayed from that obligation. Crane last contends that the punitive damages imposed are grossly excessive. The ratio of punitive to compensatory damages in this case is approximately 2.8 to 1. Although there is no safe harbor ratio for punitive damages, both the Supreme Court and the Ninth Circuit have repeatedly held that ratios much higher than this are constitutionally permissible. In cases where there are significant economic damages and punitive damages are warranted but behavior is not particularly egregious, a ratio of up to 4 to 1 serves as a good proxy for the limits of constitutionality. But Crane has not shown that its conduct makes this award, which is well under 4 to 1, unconstitutional. A full-text copy of the Memorandum dated March 29, 2018, is available at https://tinyurl.com/y79lytze from Leagle.com. ASBESTOS UPDATE: Reargument on Bid to Appeal "Warren" Denied ------------------------------------------------------------ The Court of Appeals of New York denied the motion for reargument of motion for leave to appeal the case styled In the Matter of New York City Asbestos Litigation. Theresa Warren, etc., Respondent, v. AMCHEM Products, Inc., et al., Defendants, J-M Manufacturing Company, Inc., Appellant. Motion No. 2018-226, (N.Y. App. Div.) A copy of the Decision dated April 3, 2018, is available at https://tinyurl.com/ycdjzhd7 from Leagle.com. ASBESTOS UPDATE: Attempt to Appeal "North" PI Suit Denied --------------------------------------------------------- The Court of Appeals of New York denied the motion for leave to appeal the case In the Matter of New York City Asbestos Litigation. Charles D. North, etc., Respondent, v. Air & Liquid Systems Corporation, etc., et al., Defendants, National Grid Generation, LLC, Respondent, O'Connor Constructors, Inc., Appellant. Motion No. 2018-164, (N.Y. App. Div.). A copy of the Decision dated April 3, 2018, is available at https://tinyurl.com/ya93yf5o from Leagle.com. ASBESTOS UPDATE: 1 in 4 Construction Workers Exposed to Asbestos ---------------------------------------------------------------- David Price of Construction News reported that one in four construction workers say they have been exposed to asbestos while two-thirds do not know that it can cause cancer, according to a survey by the Institution of Occupational Safety and Health (IOSH). ASBESTOS UPDATE: J&J Loses 1st Asbestos Talcum Powder Suit ---------------------------------------------------------- Mesothelioma.com reported that Johnson & Johnson lost its first asbestos talcum powder lawsuit, ordered by a jury to pay Stephen Lanzo and his wife $37 million in compensatory damages. Lanzo claimed his regular use of the company's talcum powder since 1972, which has been found to be contaminated by asbestos, led to his mesothelioma diagnosis years later. The trial, which has been ongoing for over two months already, will reconvene to determine if the company owes any further punitive damages. The jury found both Johnson & Johnson and its talc supplier, Imerys Talc, liable. The company is currently facing over 6,600 lawsuits in relation to their talcum powder. Though the majority of these cases are in connection with later ovarian cancer diagnoses, there have already been several lawsuits in regard to mesothelioma. Most recently, Johnson & Johnson won an asbestos talcum powder lawsuit against a mesothelioma victim in Los Angeles in November. The company has stated many times that they stand behind their products and there is no asbestos contamination of their talcum powder. Documents have revealed in these ongoing trials, however, that the company was aware of possible contamination from several of their talc sources. Plaintiffs in these cases are seeking to hold the company liable for their wrongdoing and not properly warning consumers. In a statement, the company explained their disappointment in the verdict, but would not further comment until the trial's completion. Many expect the company to appeal, as they have appealed every other similar lawsuit in which they have lost. So far, they have been rather successful in having verdicts overturned or reduced. After the trial's expected completion this month, all eyes will be on Johnson & Johnson to see if they are able to appeal. This trial has the potential to help pave the way for future talcum powder lawsuits against Johnson & Johnson and other similar companies, like Colgate Palmolive, should the jury decide to add punitive damages. While compensatory damages can help make up for lost income and cover expensive medical bills, punitive damages are not awarded as regularly and may be considered as a punishment when a defendant's behavior or product is particularly harmful. Should the jury award the Lanzos further punitive damages, it could set a precedent for future cases ASBESTOS UPDATE: City Can't Recoup $1.4MM Asbestos Defense Costs ---------------------------------------------------------------- HarrisMartin Publishing reported that the City of Phoenix cannot recoup $1.4 million in asbestos defense costs from its insurer, Hartford Insurance Co., because the city failed to exhaust the $500,000 underlying limit of its excess policies, the 9th Circuit U.S. Court of Appeals has ruled. In an April 4 memorandum, the appellate court further held that because the excess policies' limit was not exhausted, the City is not entitled to indemnity under the Hartford umbrella policies. Carlos Tarazon was exposed to asbestos through his work as an underground pipe layer in the City of Phoenix from 1968 to 1993. ASBESTOS UPDATE: Widow Says Railway Co. Failed to Warn Risks ------------------------------------------------------------ Lhalie Castillo of Madison-St. Claire Record reported that a widow claims her husband was exposed to asbestos during the course of his career, leading to his cancer diagnosis. Sarah Rashid, individually and as special representative of the estate of Kenneth Rashid, deceased, filed a complaint March 20 in the St. Clair County Circuit Court against BNSF Railway Co., The Budd Co., 3M Co. and others alleging they breached their duties to exercise due care and caution for the safety of others. According to the complaint, the plaintiff alleges that at various times during Kenneth Rashid's life, he was exposed to asbestos fibers from certain products manufactured, sold, distributed or installed by the defendants. On June 19, 2015, he became aware that he developed lung cancer, and the suit claims it was wrongfully caused. The plaintiff holds the defendants responsible because they allegedly intentionally included asbestos fibers in their products when they knew that it had toxic, poisonous and highly deleterious effects to humans health and failed to provide adequate warnings and instructions about the dangers of working with or around products containing asbestos fibers. The plaintiff seeks compensatory damages of more than $50,000. She is represented by Randy L. Gori of Gori, Julian & Associates PC in Edwardsville. St. Clair County Circuit Court case number 18-L-196 ASBESTOS UPDATE: Exposure Hidden Risk for Asia's Budget Tourist --------------------------------------------------------------- Jill Margo of The Australian Financial Review reported that we are just beginning to realise that exposure to asbestos is a hidden travel risk in Asia, particularly for those on a low budget who stay in cheap deteriorating buildings or next to demolition sites. It's a small but real risk. Asbestos is a popular building material in many parts of Asia and given that it only takes a few fibres to cause a fatal cancer, tourists may unknowingly be facing a health risk. While there is no safe level of exposure to asbestos, risk does increase with dose. The longer and higher the level of exposure, the greater the dose. This explains why asbestos workers are at higher risk of developing disease. But others get it too and some are totally disbelieving when they get the diagnosis because they can't recall ever being exposed. Although asbestos may be locked into insulation, floor tiles and coating, walls and roofing material, as buildings decay fibres can be freed. These fibres can be 1000 times thinner than a human hair and can be inhaled without detection. Some travel blogs suggest opting for new hotels and avoiding construction or renovation sites where fibres may be in the air, the soil or on nearby surfaces. Australians who may be hyper-vigilant about exposure to asbestos at home, travel though Asia oblivious of the risks. Professor Ken Takahashi, director of the Asbestos Diseases Research Institute (ADRI) says the travel risks have not previously been considered by researchers. "But in the case of travel, one can assume that the exposure level is low and the duration of exposure is short. Therefore, the risk would be small," he says. "A practical recommendation would thus be to avoid going near places where asbestos may be obviously present, the most typical of which is asbestos factories or mines. "Of course, presence of asbestos is not always obvious, such as in the case of exposure to buildings containing asbestos or exposure to asbestos-containing products. "It then becomes a matter of practicality whether one should avoid travel in view of the small risk. He strongly believes Australia has a responsibility to raise awareness of asbestos in Asia, provide education on protection against it and hopefully, help to get rid of it completely "for the sake of workers and residents of the country itself, much more than for the sake of travellers". He says more than 60 per cent of the world consumption of asbestos occurs in parts of Asia where commercial convenience and the need for development and housing outweigh public health concerns. Causing persistent damage While Japan and South Korea have banned it, China, India, Thailand, Indonesia and Vietnam are among the top 10 consumers in the world. The small country of Laos has the highest per capita consumption of asbestos on the planet. For almost 50 years, it has been known that inhaled asbestos fibres can cause cancer of the lungs or can pass through the lungs into a cell layer that surrounds all internal organs. This layer is called the called the mesothelium and where malignant mesothelioma forms. While the asbestos itself is chemically harmless, its long- pointed fibres lodge in the body and cause a series of micro- injuries. As the body is unable to clear these fibres, they remain stuck and cause persistent damage to the tissue. About 30 years ago, scientists observed that a single dose of asbestos fibres damages the mesothelium tissue. It was proposed that persistent injury led to chronic inflammation and that cell proliferation somehow paved the way for fatal mesothelioma. Asbestos can also cause asbestosis, a non-malignant disease that results in irreversible lung damage, difficulty breathing, a cough and, in severe cases, an enlarged heart. Australia should 'share knowledge Professor Takahashi says Australia is the only country in the world that has a dedicated federal agency to deal with the legacy of the asbestos industry. In other countries, if it is managed at all, it is done so within health, labour or environmental ministries. "Australia should be taking a lead in the global effort to ban asbestos in developing countries that continue to use it at a very high level because it is cheap, widely available and has many advantageous characteristics." He says Australia should share its knowledge and technology about substitutes for asbestos within the Asian neighbourhood. "These countries are hesitant to make the transition because they prioritise economy over health and added to that is the fact that there are many pro-asbestos lobbies trying to maintain the global trade. "And there is corruption among officials of ministries of developing countries, so they are not fully motivated to make the transition. "I believe Australia should assist these counties in developing their own expertise to detect the disease and also develop systems so that workers and consumers are not exposed to asbestos while they are using it. "Until these countries stop the manufacture and export of products containing asbestos, Australia will have to deal with illegal imports for a long time." Occupational exposure Professor Takahashi says this as the epidemic of asbestos-related disease in Australia has begun peaking. Although Australia implemented a complete asbestos ban in 2003, classic asbestos cancer -- mesothelioma -- can take up to 40 years to develop, which means new cases will continue to occur and people will be dying from it for many years to come. In the 1950s and 1960s, Australia had the world's highest per capita rate of asbestos consumption. Today it has among the highest rates of mesothelioma. In 2016, about 700 people -- the great majority male -- were newly diagnosed with this fatal disease. Apart from those involved in mining or manufacturing asbestos, many more people have been affected because vast numbers of houses built before 1990 had materials containing asbestos. Tradesmen, such as plumbers and electricians, working in such residential properties had a high degree of occupational exposure. Mesothelioma has been characterised by nihilism in the past but an international research effort is making some inroads into the disease. Swiss researchers unmasked an underlying mechanism that helps explain why asbestos causes cancer. Detecting disease earlier They say that until now, this cancer was "a black box" and they are hopeful their discovery may lead to detecting the disease much earlier in its development. This may then lead to a means of slowing it. They say over time the immune system can't cope with the changes induced by the presence of the fibres. "The immune system goes out of balance and is no longer strong enough to combat tumour formation," said lead researcher Dr Emanuela Felley-Bosco, of the Swiss National Science Foundation. Published in the journal Oncogene, the study proposes that immunotherapy, a treatment that triggers the body's own immune system to fight disease, may work in this cancer. Using mice, the researchers showed that micro-injuries caused by asbestos triggered an immune reaction. The team also found an accumulation of mutations in RNA (a kind of working copy of DNA), which they thought weakened the tissue- repair immune response. As a result, tumour formation was no longer effectively combated and cancer developed. Immune imbalance An analysis of data from a human gene bank revealed that human mesothelioma tumours also produce large amounts of the enzyme that causes the mutations in the RNA. It's hoped this will be useful in recognising early signs of inflammation and in developing a specific immunotherapy against mesothelial cancer. A clinical study of immunotherapy at the advanced stage of this disease is under way at hospitals in Switzerland, Spain and Britain. Dr Yuen Cheng, a molecular biologist at ADRI, says the Swiss research has taken the science of mesothelioma a step forward. While it was known an immune imbalance occurred, the importance and the potential triggers for it were not known. The Swiss have shown immune imbalance plays a major role and have provided list of genes that were previously not considered. While these genes were found in the animal model, they were also found in mesothelioma tumours in human gene banks. The problem is that the banks have samples from fewer than 100 tumours and hundreds of thousands are needed to confirm the finding. "They've clearly shown a link, something different to what other researchers have done, but we don't know for certain until we have done a large sample," Dr Cheng says. The next step, which is not difficult, is to confirm this in humans. If proved correct, it could be useful in the clinical setting. ASBESTOS UPDATE: Council Asked to Scrub Asbestos Walls ------------------------------------------------------ 2GB reported that there doesn't seem to be an end to the Blue Mountains City Council asbestos saga, with yet another mismanagement allegation arising. Ray Hadley has been told council staff were ordered to scrub exposed asbestos sheeting walls in a change room at Katoomba Aquatic Centre. Council staff say warning signs were put in the ladies change room about two months ago but, despite the danger, cleaners were instructed to scrub asbestos sheeting where paint was peeling off. Some workers refused but others didn't, with a pregnant staff member reportedly helping. Staff tell Ray they raised concerns about the exposed asbestos to their superiors, but surprise, surprise, nothing was done. The change room is still open to the public and children have been spotted peeling off the potentially deadly material. Safe Work NSW has given the following statement: "SafeWork NSW has been made aware of the issue relating to asbestos at the Katoomba Aquatic Centre. The issue relates to peeling paint on asbestos sheeting at the centre. Blue Mountains City Council has an Asbestos Management Plan, is aware of this issue, and has activated the plan in response. SafeWork NSW has reviewed the plan and rectification procedures, including the sealing of the wall. SafeWork NSW will continue to monitor the situation at the aquatic centre, and ensure that the plan is followed." Ray is fed up with the inaction, calling on Better Regulation Minister Matt Kean to act. ASBESTOS UPDATE: Uninformed Workers Face Mesothelioma Risks ----------------------------------------------------------- Alex Strauss of Surviving Mesothelioma reported that a new survey conducted among asbestos workers in the UK finds that too many do not fully understand the laws about asbestos exposure and how to reduce their risk of deadly malignant mesothelioma. The survey was commissioned by the Institution of Occupational Safety and Health (IOSH), the British equivalent of the US National Institute for Occupational Safety and Health. The goal was to determine how much construction workers know about the risks and regulations regarding asbestos, the primary cause of pleural mesothelioma in the UK and around the world. Too Many Don't Know How to Manage Mesothelioma Risk Most people have heard that asbestos -- once a common component of many building products -- is associated with the risk of mesothelioma, lung cancer, asbestos and other diseases. The surveyed construction workers were no exception. However, when it came to what exactly what they should be doing to reduce their risk or what to do if they encountered asbestos on the job, many were unclear. According to the report, fifteen percent of surveyed construction workers had never been informed of the mesothelioma risk from asbestos exposure and had not been given any training in how to manage that risk. Almost a quarter of respondents said they had been exposed to asbestos. Although the UK requires every company to maintain a record (called a register) of the presence and state of asbestos in their buildings, a third of the workers surveyed had not checked the register before starting a project. Nearly half did not know such a record existed. One in five of the construction workers surveyed said, if they did encounter asbestos on the job, they would have no idea what to do. "This is particularly the case among small companies, sole traders, and older workers," Dr. Lesley Rushton, the new Chair of the UK's Industrial Injuries Advisory Council, told the UK trade journal Planning and Building Control Today. "Uncertainty and ignorance surrounding how to prevent workers from breathing in the fibres is deeply worrying." US Asbestos Law and Malignant Mesothelioma Asbestos is the top worldwide cause of malignant mesothelioma, in both its pleural and peritoneal forms. The World Health Organization estimates that more than 100,000 people die of mesothelioma and other asbestos-related illnesses every year, many of them construction workers. Although 62 countries, including the UK, have now banned asbestos, asbestos is still legal in the US. Multiple attempts have been made to pass federal legislation which would ban the carcinogen, but they have continually been blocked by corporations with an interest in asbestos. However, there are strict regulations on asbestos handling and removal (called abatement) intended to minimize mesothelioma risk to US workers and the public. The US Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA) are the primary entities charged with enforcing these laws. Among other things, they require employers to supply workers with protective gear and to train them in its use and in proper asbestos handling. Independent contractors are expected to know the asbestos regulations and abide by them. According to the American Cancer Society, more than a million American employees in construction and other industries "face significant asbestos exposure on the job." Sources: "Survey reveals 'uncertainty and ignorance' over exposure to asbestos", April 9, 2018, Planning & Building Control Today "Asbestos and Cancer Risk", September 15, 2015, American Cancer Society ASBESTOS UPDATE: School Battling Asbestos Issues to Reopen ---------------------------------------------------------- Suzanne Russell of MyCentralJersey reported that Indiana Avenue Elementary School 18 in the Iselin section will reopen after being temporarily closed during the past month to address mold and asbestos issues. In a recorded message to parents, Superintendent of Schools Robert Zega said based on the recommendations of the consultants, all staff and 600 students will return. He said School 18 and Iselin Middle School will return to their full-day class and bus schedules. School 18 students had been attending the middle school for split session classes while their elementary school was closed. The message also thanked everyone for their patience. Since early March, the school -- built in 1955 -- has been closed off and on to address mold and asbestos issues following the discovery of a leak in the roof. An April 9 report on the district's website indicates that West Point Cleaners cleaned all rooms except 1, 5, 6, 7, 14, 22, 26 and the media center. Those rooms were cleaned by B&G, the asbestos abatement company. After the work was completed, tests found no asbestos fibers. The report indicates that wipe test results from Rooms 6 and 7 found no asbestos. A new floor was installed in Room 1, the report states. According to the report, a pipe found in Room 37, the copy room, contained asbestos insulation. The insulation was encapsulated by B&G and post tests found no asbestos fibers. Ceiling tiles in the guidance office were repaired. After the work was completed, post tests found one fiber. The room was slated to be cleaned again by B&G and retested. T&M Associates, the consulting company working on behalf of the parents, recommended that the district hold off on any work on the roof until the summer. That work will include the flashing repair. Until then, the district is working on a temporary fix. Parent Apurva Patel said hundreds of parents walked through the school during an open house and left comments. According to the report, district workers reviewed all of the comments that included treating the ceiling and floor tiles over the summer, removing and replacing the lockers over the summer, evaluating the wall cracks, discarding the dirty rugs and cleaning the floors underneath and discarding or washing dirty back-of-chair bags. In addition, teachers will be addressing any excess clutter, the report states. In an email to Zega, parents also noted mold found in air conditioners, by the windows, and pipes in corners of classrooms 8, 10 and 15. The issue will require a cleaning, remediation and an expert's review and clearance. Parents noted vents in all the lockers need to be cleaned and sealed because dust, wet spills, rustiness was noticed in multiple lockers. They also asked for an inspection of ceilings with loose, saggy, gaps or cracks in the tiles, cleaning and remediation of water marks and wet ceiling spots in Room 24 and cracking, swelling and loose floor tiles in the main office, corner room and Room 23. ASBESTOS UPDATE: Crane Co., Others Named in "Scudder" Suit ---------------------------------------------------------- Lhalie Castillo of Madison County Record reported that a couple is suing a number of companies claiming the husband's cancer is related to asbestos exposure. Robert Scudder and Barbara J. Scudder filed a complaint March 16 in the St. Clair County Circuit Court against Crane Co., General Electric Co., Ingersol-Rand Co and others alleging they failed to exercise due care and caution for the safety of others. According to the complaint, the plaintiffs allege that at times during Robert Scudder's employment from 1964 to 1996, he was exposed to and inhaled or ingested asbestos fibers emanating from certain products manufactured, sold, distributed or installed by the defendants. After he learned he developed lung cancer, he claims he suffered great pain and anguish and accrued expenses for medical care and treatment. The plaintiffs hold the defendants responsible because they allegedly negligently included asbestos fibers in their products when adequate substitutes were available and failed to provide adequate warnings and instructions concerning the dangers of working with or around products containing asbestos fibers. The plaintiffs seek compensatory damages of more than $50,000. They are represented by Ethan A. Flint and Laci M. Whitley of Flint Law Firm LLC in Edwardsville. St. Clair County Circuit Court case number 18-L-189 ASBESTOS UPDATE: Claire's Accessories Kit Banned in UK ------------------------------------------------------ GlobalCosmeticsNews reported that two make-up kits sold to children by high-street retailer Claire's Accessories have been banned from sale in the UK after tests revealed that they contained asbestos, according to a report published by The Daily Mail. The retailer has been ordered to destroy remaining stock and a Europe-wide alert has been issued. Claire's Accessories is challenging the results, which found the kits to contain asbestos fibers. The tests were carried out by the Dutch authorities and reported to the European Commission at the end of March. Further testing ordered by the European Commission verified the Dutch findings. "Our multiple independent testing of these products by certified laboratories show they comply with all EU cosmetic regulations. We are confident that these products are safe," a spokesperson for Claire's Accessories told the Daily Mail. The company has also posted a statement on its website, reading: "We had asked the authorities to send through further information on their testing and proposed to carry out further testing using the appropriate and most accurate testing method in the Netherlands in conjunction with them to prove the products' safety. "We are therefore disappointed the authorities have chosen to ignore these reasonable requests and have taken the steps they have. We will obviously continue to work with the Authorities on this matter but we stand by the safety of our products." ASBESTOS UPDATE: Family Battles Home Asbestos Contamination ----------------------------------------------------------- Alex Dominguez of KRDO reported that Colorado Springs homeowner Brett Byrum tells us the lower half of his house is no longer accessible to him after he found asbestos in the wall. He bought his home seven years ago, and a few weeks ago, he found a leak and tried to fix it himself. Days later, he had a portion of his drywall tested for asbestos. It tested positive, and he was forced to leave his home immediately with only the clothes off his back. "Washer, dryer, everything's gotta go," Byrum said. The cleanup has already cost him thousands of dollars, including the cost of living in a hotel, and receipts continue to pile up. "Most of these are food receipts. I mean living here for three weeks, it's been kind of hectic," he said. It's all coming out of his pocket. It turns out his insurance company does not cover asbestos. It's Frank Tims' job to test for it, and he says every home built before the '70s has it. But it can still be found in buildings of any age. "You're supposed to have your home tested even after the '78 because the ban was reverted in '91," Tims said. "We don't find it too often after that It's very, very rare but it's pretty common in Colorado." Even with the high number of homes he finds asbestos in, Tims says most homeowners are unaware. "We find about half the homeowners when they call us, they didn't have any clue about asbestos being in there," Tims said. "So they find out from a contractor or a friend or a family member who had it before." Experts say it's important to check with your insurance for asbestos policies, as many do not include coverage. ASBESTOS UPDATE: Auditorium Closes After Asbestos Testing --------------------------------------------------------- South Strand news reported that Wheelwright Auditorium at Coastal Carolina University has been closed until further notice. Effective immediately, all events will be moved to a different facility or venue, or will be canceled. Questions about specific events scheduled at Wheelwright in the near future should be directed to the individual party responsible for the specific event. According to a CCU press release, the University received a report from Summit Engineering, Laboratory and Testing April 9, notifying them that a low concentration of asbestos fibers was present on the stage at Wheelwright, but air quality levels remained below what is permissible by the Occupational Health and Safety Administration. However, the Administration decided to proceed with immediate remediation based on the recommendation of the Environmental Health and Safety Department at CCU. During an annual operational test of the fire curtain in the auditorium conducted on March 7 by Productions Limited Inc., the release states it was recommended on March 8 that the curtain be tested for asbestos due to its age. Wheelwright Auditorium was completed in 1981. EHS worked with Summit Engineering, Laboratory and Testing to conduct an asbestos test on the fire curtain on March 14. Results from that test were received on March 17 and revealed a low concentration of asbestos within the materials of the curtain. Upon receiving these results, an additional test was immediately requested by EHS and performed by Summit on the stage area on March 26. That test involved lowering the fire curtain twice, then wipe-sampling the stage and taking air quality measurements. Those results were received April 9 and were positive for a low concentration of asbestos fibers on the stage, but air quality levels remained below what is permissible by OSHA. A fire curtain is a safety device used in large proscenium theaters that is only lowered in case of fire or for operational testing. Due to the infrequent use of the fire curtain and its location, the asbestos risk remains low; however, measures are being taken by the University to quickly and effectively address the concern. Wheelwright Auditorium was closed by administration upon receiving notification from EHS about the test results, and event staff are working with parties to reschedule and move planned events. The process is underway to safely replace the fire curtain as soon as possible. ASBESTOS UPDATE: Violation of Ark. Asbestos Regulation Addressed ---------------------------------------------------------------- The Arkansas Department of Environmental Quality ("ADEQ") and Mississippi County Road Department ("Road Department") entered into a Consent Administrative Order ("CAO") on April 2nd addressing an alleged violation of the Arkansas Asbestos Regulations. See LIS No. 18-033. The Arkansas Asbestos Regulations are incorporated in Arkansas Pollution Control and Ecology Commission Regulation 21. The CAO provides that the Road Department demolished or caused to be demolished on or before May 24, 2017, a structure formerly located near 4701 Memorial Drive, Blytheville, Arkansas ("Site"). ADEQ is stated to have received a complaint on May 19, 2017, regarding the demolition of a structure located at the Site. ADEQ personnel are stated to have conducted an investigation of the complaint on May 24, 2017. The investigation allegedly indicated that the Road Department had failed to conduct or have conducted an asbestos inspection of the affected facility prior to demolition, constituting a violation of Arkansas Pollution Control and Ecology Commission Reg. 21.501. The alleged violations include the failure to submit a written NOI and appropriate NOI fee to ADEQ at least 10 working days prior to commencing the demolition activity, therefore violating Arkansas Pollution Control and Ecology Commission Reg. 21.601. The Road Department is stated to have responded to an ADEQ letter identifying the compliance issues. The letter from the Road Department stated that new management is in place and that the demolition was conducted under the direction of a former Mississippi County official. Further, the demolition was stated to have been done to help the Westminster Village where there are numerous dilapidated structures that are dangerous and hazardous to senior residents living there. The CAO assesses a civil penalty of $750, which could be reduced by one-half if signed and returned to ADEQ on or prior to April 2nd. ASBESTOS UPDATE: Cherokee Council OKs Asbestos Removal Funding -------------------------------------------------------------- Chronicle Times reported that after considerable review and discussion over the last few months, Cherokee's City Council,by a narrow 3-2 vote, approved funding the cost of asbestos remediation of a former bar at 208 W. Main St. With the city citing a willingness to facilitate the proposed transfer of ownership and future demolition of the aged building in serious disrepair, and renovation of the lot, the Council approved funding $16,300 for the removal of asbestos before demolition by owner occurs. On a motion by Council member Chad Brown, seconded by Wayne Pingel, the Council voted to adopt a Resolution to Authorize Reimbursement for Removal of Asbestos to Facilitate Demolition of 208 W. Main, not to exceed $16,300, to be paid after the removal has been certified as complete. Council members Brown, Pingel, and Emily Johnson voted for the measure, while Jim Agnitsch and Will Miller voted against it, with majority vote prevailing. Earlier in the meeting, Brown spoke in favor of the City reimbursing for asbestos removal charges in the building at 208 W. Main, noting that the City has been consistent with financial support toward downtown development and feels it would be a shame to let the building sit there in its current condition when there is someone willing to take it down. Resident Ann Peck spoke out in opposition of the reimbursement and does not think that the City should fully reimburse for the asbestos removal charges since the building belongs to a private citizen. She questioned how the property will generate more taxes as an empty lot. Brown replied that the property does not generate much tax revenue currently, and there could possibly be a structure built on the lot in the future, and demolishing the building will make the lot more attractive for future development. Without demolition, Brown maintains that any prospective buyer would have to pay to take down the building, which could deter them from redeveloping the property. As proposed, John P. Loughlin, with his wife Mollie a business owner adjacent to the property, will pay the demolition costs and develop the lot to complement their business. It is Loughlin who requested the City pay the asbestos removal costs, according to the City. A preliminary estimate from Loughlin totaled about $16,500 to demolish the building, plus the estimated $16,300 for asbestos removal. Further lot development costs would be paid by Loughlin. Mayor Craig Schmidt explained that John, Rich and Will Cook of the neighboring Cook Law Firm purchased the building in 2001 to eliminate a hazardous blight and that their purchase was good for the City. They've offered to sell the building to Loughlin for $1. Schmidt added that Loughlin will make the property much more attractive than it is now. Peck replied that the Cooks and Loughlin could share in the cost of the asbestos removal. Schmidt replied that the Cooks have already invested about $50,000 in the property at this juncture. Loughlin added the Cooks did a service and said he is not looking to get any return on this and he won't. He will pay to tear the building down and whatever costs it takes to get the lot looking presentable. Peck questioned that as a private citizen, if she buys something that has asbestos in it can she come to the Council and ask for money? "That is basically what is going on here," said Peck. Brown replied that the City has already spent a considerable amount on improvements to downtown buildings and this is just a continuation of what the City has done in the past. Peck replied that this building should then be treated the same as the buildings that participated in the Downtown Faáade Program. Pingel stated that 208 W. Main does not have any redeemable value and can't be saved. Peck remained dissatisfied and said she still disagrees with the City paying for the entire cost of asbestos removal. In other business, City Administrator Sam Kooiker advised the Council that an agreement with Lynn Waggoner, owner of The Pub property at 119 E. Main St. has been reached. There are some changes in wording to the agreement presented at the last Council meeting, but the offer of $18,000 for the cost of the sidewall sealing remains unchanged. The Council authorized a settlement offer in the amount of $14,250 in November 2017. However,Waggoner did not accept that offer, and counter offered with a settlement amount of $26,933 which would include installing five courses of 4" block with insulation to match the existing south and west walls and covering the remaining wall with 1-inch of insulation and cement siding, as well as some roof work. The Council authorized the Mayor to sign a Construction Settlement Agreement with Waggoner. The matter evolved when the City negotiated the demolition of an aged dangerous building at 123 E. Main St. whose removal exposed The Pub's east wall. The Council also voted 5-0 to agree with the Board of Adjustment's recommendation to deny both aspects of a set-back variance request for 425 Gillease St. and to consider amending the ordinance to allow for larger garages in the future. ASBESTOS UPDATE: Asbestos Firm Prosecuted for Forging Health Docs ----------------------------------------------------------------- Jack Simpson of Construction News reported that two managers of a Warrington-based asbestos removal company have been prosecuted after forging documents to obtain an asbestos removal licence from the Health and Safety Executive. As the city works with Angels Share on the platting of the former Dana College campus, discussions have included the demolition of five buildings. But, before demolition can occur, Public Works Director Al Schoemaker said asbestos will have to be removed, which will require several steps. ASBESTOS UPDATE: Asbestos Closes Fishing Spot in Bluff ------------------------------------------------------ Otago Daily Times reported that a popular fishing and diving spot in Bluff has been closed to the public after asbestos was discovered in the area. Coastal erosion has caused what could be a former landfill site to spill asbestos onto the foreshore. Central Coast council issued a statement saying trained staff had examined the site and removed "a small amount" of asbestos. The contamination scare comes on the first day of the school holidays. ASBESTOS UPDATE: $200K for Old Elementary School Asbestos Removal ----------------------------------------------------------------- Brett Knese of WGEM reported that efforts to demolish the old elementary school in La Grange, Missouri are finally moving forward. The city received three bids from companies for asbestos removal that needs to be done before the building can come down. La Grange received a $200,000 dollar grant from the DNR to cover the costs of the removal. City Administrator John Roach said the building has been a nuisance to the community. "It's an eyesore. It's dangerous, the building in itself the way it sits. So having it ultimately removed and taken down, its gonna clean the town up." said Roach. City council will vote on which bid to accept on April 23rd. Roach said the goal is to have the building demolished by the end of the year. ASBESTOS UPDATE: Man Dies After 50 Years From Exposure ------------------------------------------------------ Luke Powell of Norfolk Eastern Daily Press reported that the daughter of an engineer who died from a rare asbestos-related cancer is urging people to understand the dangers of the toxic substance. Rachael Fretter said her dad David Spooner was diagnosed with mesothelioma in August 2016 having been exposed to asbestos when he was aged 19. Over the following five months his condition rapidly deteriorated and he died on January 2 last year, aged 70. Since then, Mrs Fretter, who lives near Norwich, has been raising awareness about the substance, which was once commonly used for insulation. She said: "After my dad was diagnosed, it was unbelievable how quickly his health declined and it was heartbreaking to see him like that. "It is so toxic and people really don't understand the dangers it can possess. "How many people are aware that even when replacing parts of your home there might be asbestos lying there. "All it takes is a tiny fibre being absorbed into your body and 40 to 50 years later you can have a huge problem on your hands." Mrs Fretter said her dad, who lived in Sheffield, was working as an apprentice when he was exposed. Decades later, in the spring of 2016, he started feeling unwell and was found to have fluid in his lungs. It was initially believed to be pneumonia, but a biopsy revealed it was mesothelioma -- an aggressive cancer which develops in the lining of the lungs. The cancer is often associated with asbestos exposure. Mrs Fretter, who works for the Norwich Business Improvement District (BID), said: "Someone told me it is like being suffocated from the inside out. "By November it was very apparent he was suffering, and leading up to Christmas he had lost weight and his appetite. "You would not want your worst enemy to go through something like that." Asbestos is now banned in the UK, but buildings constructed before 2000 may still have the substance in them. It is when asbestos-containing material is disturbed that fibres can be released and breathed in. Solicitor Phoebe Osborne, who works with the Anglia Asbestos Disease Support Group, said the number of asbestos victims was increasing. The support group is meeting on April 16 from 11am at Postwick Village Hall. ASBESTOS UPDATE: Unresolved Asbestos Issue Raised on Debate ----------------------------------------------------------- Central Coast Community News reported that Mr Aiken said he had paid an independent laboratory to test materials he had collected from Wamberal Beach, and multiple types of asbestos had been identified as present in the materials. According to the SERS laboratory results, all four samples included Amosite Asbestos (AMO), Crocidolite Asbestos (CRO) and Chrysotile Asbestos (CHR). "Why is it that a report on the impact of the June 2016 storm on Wamberal Beach can't be published in the public domain, when the Council has stated that it is a document with high public interest?" Mr Aiken asked when addressing Councillors at the April 9 meeting. "Why does someone have to sign a copyright form and give two days' notice to view of copy of this report for up to two hours, when it could be available on Council's website to make access much easier and simpler? "And why did Council literally cover up a legacy dumping of asbestos on Wamberal Beach instead of removing it before another major storm event sweeps it into our local environment?" he asked. Mr Aiken was referring to Central Coast Council's efforts to use sand from the beach to cover building materials and debris exposed by the 2016 storm with sand, rather than removing it from the beach. Some material was removed. "I have got video evidence, I have got a lot of documentary evidence, I have documented very well, I have no doubt that there is a significant amount of asbestos at Wamberal, it is on public land. "Council initially denied it is on public land, but it is on a public beach." Mr Aiken also outlined the lengths he had to go to gain access to a document about erosion at Wamberal Beach. Council made the report confidential, so Mr Aiken had to apply via Government Information Public Access (GiPA), a process that can be lengthy. He was then informed he could only inspect a heavily redacted version of the document. He then appealed to the Information and Privacy Commission, who ruled that the document should not have been so heavily redacted by Council. "Council reduced the redaction, but did not add it to their register for matters relating to GIPA." Mr Aiken explained to the meeting that it was Council who held copyright over the document, and one of its units did not want the document released. "I am aware that all Councillors here tonight had an election policy of maintaining open and transparent governance," he said, but contended that information of public interest was now being "buried under layers of bureaucratic secrecy". "We don't release our confidential documents ever," said Clr Greg Best, following Mr Aiken's address to Council. "So, if we do an arrangement or a deal somewhere . . . . the public out there says this is terrible, why have you done it . . . . we don't explain six weeks, months, or even years later . . . . the real reasons for our decision." Mayor Jane Smith questioned whether there was evidence that the amount of information being kept confidential by Central Coast Council was actually increasing. "We just spent $40,000 in the past few months on additional legal advice around confidential matters that we haven't released, on the vegetation policy, the airport, dredging, and a couple of others we decided to lock away." Clr Best responded "We have got two in confidential tonight," he said. Acting CEO, Mr Brian Glendenning, said although there was no formal policy around keeping items confidential, Council had recently "entered a process where there is a proactive release of material". Staff at the next ordinary Council meeting will be detailing a proposed new policy process around the proactive release of information formerly held as confidential. "There is no policy to actively release and we have said we will pursue that." Clr Doug Vincent said: "My experience at the moment is this Council is on an agenda to release confidential items. "My experience on previous councils has been, and particularly on the last Wyong Council, the six pack had an art of locking things up in confidential. "I am finding this Council, as opposed to previous councils I have been involved with, more liberal in sharing documents with the public." "I think we can acknowledge there is a practice of keeping matters confidential," said Clr Louise Greenaway. "If we are discussing something that involves salaries or CVs, I think the public understand, but on other matters, I think the public are justifiably outraged. Clr Greenaway said she believed Central Coast Council needed to "review its policies in regard to informing the public as to the reasons behind making documents or business confidential, "because I think the community is fed up with being excluded and not being told why. "I don't believe the Copyright Act was ever intended to restrict public access to local government documents," she said. Council agreed to provide Plain English explanations, in addition to outlining the section of the Local Government Act that was the basis for keeping something confidential, in future Council agendas. ASBESTOS UPDATE: Oil Refinery Worker Dies From Asbestos Exposure ---------------------------------------------------------------- Southern Daily Echo reported that an inquest heard Anthony Jones, from Hornchurch Road, Southampton, was working as a textile operator in the 1960s when it is thought he was exposed to the carcinogenic substance. Winchester Coroner's Court heard that Mr Jones had spent many years working for various contractors at Fawley Oil Refinery, and it is during this time that he is believed to have come into contact with asbestos. A post mortem conducted by Sanjay Jogai revealed that although no asbestos fibres were found in his lung, several cancerous tumours were found which pointed towards the 76 year old's death being the result of asbestos exposure. Senior Coroner Grahame Short recorded a verdict of death due to industrial disease. ASBESTOS UPDATE: 200+ Asbestos Hotspots on Alness Academy --------------------------------------------------------- Scott McLennan of Press and Journal reported that Highland Council will get a progress report next week on the GBP30 million project to replace Alness Academy with a new cleaner and greener school. Under proposals the academy will be demolished and a new school erected to replace it with funding from both the Scottish Government and the council. The property has suffered all manner of problems over the years including at least 218 -- mostly small -- examples of asbestos. The material was found in roofs, walls, doors, and even classrooms -- although the human exposure potential is considered to be zero in most cases and low in all others. A flea infestation forced the school to close after a bank holiday and leaks meant a classroom and stairwell were unusable for a time. Alness has been kept on the list of projects to be completed even as the council slashed its capital spending budget in half due to cuts. The complex development will see some of the playing fields used for the site of the new academy while pupils still attend classes in the old school. Alness-based Councillor Carolyn Wilson who chairs the stakeholder committee said it has been a huge community effort, adding "as a community we are delighted." She said: "It is a partnership project, a huge amount of work went into it from the stakeholder group looking at the designs and plans and sports facilities. "Community representative groups, parent council put forward have been involved from the start and put forward good points. "The architect has taken on their local knowledge and has included it in the designs process. She added: "It's really important that we get it right, we have only got one chance to build it and we must to build it right." That the Scottish Government has demanded the new school be completed by March 2020 which was also welcomed by Mrs Wilson. Mrs Wilson said: "The Scottish Government deadline is good because it means they need to get cracking, it could not come soon enough. "It is just a shame that it has taken so long to deliver because the teachers and children deserve a positive clean environment." The arrival of the new school will coincide with an increase in house building so the extra places at the academy are already needed. The North Planning Applications Committee will be briefed on progress when it meets. ASBESTOS UPDATE: University Criticized for Poor Asbestos Handling ----------------------------------------------------------------- Tavia Grant of The Globe and Mail reported that more than a year after several asbestos breaches at the University of Toronto's medical-sciences building, some faculty, staff and students still have health and safety concerns about exposures to the known carcinogen. The university's faculty association has forceful criticism of how the administration has handled the situation, saying that people are still not being properly informed about asbestos abatement work or what went wrong related to last year's breaches. These safety concerns aren't just at the medical building, it says, but at all three campuses. U of T -- like most universities in Canada -- is grappling with the legacy of asbestos-containing materials in buildings that are now aging and requiring renovation work. This can entail abatement work, which can increase exposure risks. The situation at Canada's largest university stands out, however, for its handling of a key health and safety issue, experts say. U of T is "the poster child for the things that can go wrong" if people don't receive clear enough information to help them feel safe at work, said Laura Lozanski, occupational health and safety officer for the Canadian Association of University Teachers. Though this is a challenge across Canadian campuses, U of T "has stood out recently because of a lack of, and apparently continuing, appropriate consultation with the joint health and safety committee and the unions, and effective communication with everyone on campus regarding the issue." The university experienced its worst asbestos breach in more than a decade early last year at its medical-sciences building. Since then, another incident occurred in July when a worker transported two wheelbarrows with asbestos-containing materials in a basement corridor, which contravened proper procedure (the university issued a notice about this on Aug. 1). In October, a hot-water pipe burst in the building, causing flooding. Starbucks and a cafeteria were temporarily closed due to risk of asbestos contamination. Adria Giacca, a professor of physiology whose office tested positive for asbestos last March, is among those who are worried. "We don't feel safe. Personally, I don't feel safe," she said. Communication has improved from a year ago, she says, though ongoing renovation mishaps in her building mean people "have lost confidence in management." All forms of asbestos cause cancer in humans and even low levels of exposure increase cancer risks, according to the World Health Organization. The latency period for mesothelioma, an asbestos- related cancer, is long, typically ranging from 20 to 40 years. Asbestos, once widely used in materials across Canada, will be banned this year. Itis the top source of workplace deaths in the country, according to data from the Association of Workers' Compensation Boards of Canada. Both the faculty association and CUPE 3902, which represents contract academic employees, currently have asbestos-related grievances filed against the university. ASBESTOS UPDATE: Hotel Owner Likely Died from Asbestos Exposure --------------------------------------------------------------- Greame Wilkinson of Cornwall Live reported that a former hotel owner and champion of tourism in Cornwall most likely died as a result of exposure to asbestos at his business, an inquest heard. Soterios "Chris" Christopheros passed away in Cyprus last November after a short illness linked to possible asbestos poisoning. He was 70 years old. He was born in Chelsea in London of a Cypriot family but spent much of his working life in Cornwall with the family hotel business Cranstar. He ran hotels and holiday parks from 1965 to 2000 and was a prominent and well-known businessman. A former Newquay town councillor, Mr Christopheros stood for elections as a Liberal Democrat candidate with Restormel Borough Council and was instrumental in securing CCTV for Newquay. His son Andreas Christopheros was the victim of a sickening acid attack on his doorstep in Truro in 2014 in a case of mistaken identity. In 1998, Mr Christopheros saved the life of a young boy who was found wandering naked in the road in Rejerrah, near Newquay, during rush hour. He stopped his car across the road and scooped up the toddler who had wandered from a nearby house. The boy was safely reunited with his mother. He was also the organiser of the former Newquay VW festival Run to the Sun, which was based at his Trevelgue Holiday Park in Porth. In 2000 Mr Christopheros moved to Cyprus where he lived for the past 17 years. The inquest in Truro on April 13 heard that Mr Christopheros complained of shortness of breath in May last year. He was diagnosed with mesothelioma, a condition linked to exposure to asbestos, and, after a period of hospital treatment, passed away in Cyprus in November. As a UK citizen, details of his death were shared with the coroners' court in Cornwall which resulted in the inquest in Truro. Coroner Emma Carlyon said it was "more likely than not" that his death was linked to exposure to asbestos during his working life in the hotel industry. She recorded a death of natural causes as a result of industrial disease. Mr Christopheros' family declined to comment. ASBESTOS UPDATE: Couple Says Exposure Caused Husband's Cancer ------------------------------------------------------------- Lhalie Castillo of Madison County Record reported that a couple is suing several companies over the husband's alleged exposure to asbestos, citing alleged failure to warn and negligence. Richard Baker and Carolyn Baker filed a complaint March 20 in the St. Clair County Circuit Court against Burnham LLC, Cyprus Amax Minerals Co., Warren Pumps LLC and others alleging they breached their duties to exercise due care and caution for the safety of others. According to the complaint, the plaintiffs allege at times during Richard Baker's career from 1949 to 1999, he was exposed to asbestos fibers emanating from certain products manufactured, sold, distributed or installed by the defendants. He was diagnosed with lung cancer Dec. 6, and the suit claims it was caused by asbestos exposure. The suit also claims he became liable for high medical expenses. The plaintiffs holds the defendants responsible because they allegedly intentionally included asbestos fibers in their products when they knew that it had a negative effect on human health and failed to provide adequate warnings and instructions concerning the dangers of working with or around products containing asbestos fibers. The plaintiffs seek compensatory damages of at least $50,000. They are represented by Randy L. Gori of Gori, Julian & Associates PC in Edwardsville. St. Clair County Circuit Court case number 18-L-204 ASBESTOS UPDATE: Tort Reform Urged After $60MM Asbestos Deal ------------------------------------------------------------ Julia Marsh of New York Post reported that a Manhattan jury awarded $60 million to the family of a construction worker who died from asbestos exposure, in a verdict that critics say shows the need for tort reform. Pietro Macaluso did demolition work on single-family homes in Brooklyn in the 1970s and '80s. The work required ripping out boilers laden with cancer-causing asbestos. The units were manufactured by A.O. Smith Corp., Burnham Commercial and Peerless. Macaluso sued the three companies a year before he died in July 2016 at age 56. The award will be split between Macaluso's 11-year-old twins and his girlfriend, Mary Murphy-Clagett. "Pietro was great man and nobody should have to go through what he went through," Murphy-Clagett told The Post. "Nothing can bring him back and I'd do anything to never have had this happen, but I'm glad justice was served." The family's attorney, Daniel Blouin, argued during the nine-week trial that the boiler companies knew about health risks associated with asbestos, but did nothing to warn the public. "Many of the defendants had safety precautions in their own factories to protect against the dangers of asbestos but they were not passing those warnings on to people like Pietro Macaluso," Blouin said. "As a result, he never had an opportunity to protect himself." Macaluso was diagnosed with pleural mesothelioma in July 2015. Blouin believes the jury was swayed by a video of him as he lay on his deathbed. "It was very, very sad. He was just so skinny and frail," Blouin said. He also thinks the jurors "responded" to his request for damages for emotional pain and suffering after watching Macaluso "saying goodbye to his kids and knowing that they would grow up without a father." The jury found the boiler companies negligent and reckless in causing Macaluso's death. But the payout -- eight times the national average -- also shows why the city's special asbestos-litigation division known as "NYCAL" is one of the most plaintiff-friendly in the country, critics said. "Another runaway verdict in the NYCAL, higher than the national average, illustrates the need for court officials and lawmakers to re-evaluate how New York deals with asbestos lawsuits," said Tom Stebbins, executive director of the Lawsuit Reform Alliance of New York. Stebbins encouraged the state Legislature to pass pending bills that would require the disclosure of trust claims, ban punitive damages and make other changes in trial rules. The verdict in the Macaluso case is the largest asbestos award in the city since a $75 million verdict in January 2017. Lawyers for A.O. Smith and Burnham did not return calls for comment. Philip O'Rourke, an attorney for Peerless, said his client plans to appeal the verdict ASBESTOS UPDATE: Jury Awards $60MM Asbestos Verdict --------------------------------------------------- Andrew Denney of Law.com reported that a Manhattan jury has awarded a record-breaking $60 million asbestos verdict to the estate of a man who died from mesothelioma after working for years as a laborer near asbestos-laden boilers and construction implements. ASBESTOS UPDATE: Asbestos Fraud Leads to GBP25000 Bill ------------------------------------------------------ Gareth Simkins of ENDS Report reported that a demolition contractor and two of its managers have been prosecuted for forging documents needed to obtain an asbestos licence from the Health and Safety Executive. ASBESTOS UPDATE: High Ct. Urged to Expedite Asbestos Pay -------------------------------------------------------- Sean Fewster of The Advertiser reported that the fate of the biggest asbestos compensation payout in Australian history will be debated before the nation's highest court but its recipient may not live to learn its outcome. Adelaide mesothelioma sufferer Anthony Latz is too ill to attend today's hearing, at the High Court in Canberra, over his $1.06 million victory against Amaca Pty Ltd. In a landmark decision, the company -- formerly James Hardie -- was found to have put its "thirst for profit" ahead of keeping the public safe from asbestos products. Amaca wants the High Court to overturn that judgment, while counsel for Mr Latz also want judges to intervene. They say a second judgment, which increased Amaca's punitive damages but reduced Mr Latz's main payout to $864,000, was made in error and should be dismissed. The Advertiser understands counsel for Mr Latz will ask the court to take the unusual step of expediting its judgment. They fear Mr Latz's death is imminent, and will urge the court to rule immediately so that he can have some peace of mind before that occurs. Last year Mr Latz, 70, won a District Court case against Amaca over his exposure to cancerous fibres in 1976-77. At the time, he had used James Hardie asbestos cement sheets to build a 56.7m fence around his Stonyfell home. That court ruled James Hardie "knew asbestos could kill end- users" at the time Mr Latz was exposed but "failed" to warn consumers. It also ruled the company "was motivated by its thirst for profit, which it valued ahead of his safety". It awarded Mr Latz $1,032,000 for pain, suffering, loss of life expectancy, medical expenses and economic loss and $30,000 in exemplary -- or punitive -- damages. On appeal, counsel for Mr Latz argued the $30,000 exemplary damages were "manifestly inadequate" given the nature of Amaca's actions, and the Supreme Court agreed. It ordered an eightfold increase in punitive damages -- up to $250,000 -- but slashed the core payout to $864,174. ASBESTOS UPDATE: Authorities Urged to Remove Asbestos From School ----------------------------------------------------------------- ITV News reported that there's growing pressure on the Government and local authorities to do more to remove asbestos from schools. It's thought asbestos is present in virtually all schools built between 1950 and 2000 -- and according to the campaign group 'I Asbestos in Schools', 40,000 people have died as a result of exposure to it during almost seven decades. Even low levels of exposure to asbestos fibres can cause both lung cancer, as well as cancer of the lining of the lung called mesothelioma. It's a condition Sally Millsopp's mother died from in 2015. Jennifer Earnshaw had been a headteacher at two primary schools in Norfolk. "They were having major renovation works going on at the school and so she had breathed in spores unknowingly and then years and years later she started having some symptoms, some breathing difficulties, coughing and then she got this terrible diagnosis." - SALLY MILLSTROPP, LOST HER MOTHER TO MESOTHELIOMA The family won compensation. Sally would occasionally pop in to her mother's school, so could have been exposed to asbestos herself. "It's a ticking time bomb." she added. "You don't realise you have these problems until years and years later and equally all the staff that worked within the school itself and the pupils. Who's to say whether other people will find in the future they have single issues going on?" - SALLY MILLSTROPP According to figures from the Department of Education, thousands of schools across the country are failing to follow safety guidelines on asbestos. A survey of more than 5,500 schools in 2016 found: More than four out of every five had asbestos. 19 % were not fully compliant with asbestos procedures Of these, 114 were said to give "significant cause for concern". The Health and Safety Executive's view is that if asbestos is in a good, sealed condition it isn't a risk if left undisturbed. But that's not good enough for teaching unions, with the joint union asbestos committee saying the Government should commit to removing all asbestos in schools by 2028. "It only takes one fibre and that could be a death sentence." says Bob Groome from the National Education Union, who's trying to raise awareness of the potential dangers. "Every school must have an asbestos register and that should be kept in reception, and it should detail every incident of asbestos in the school and where it is, " he said. "We would encourage teachers, parents and grandparents to look at it, and contractors must sign that register before they come on site, so they know where asbestos is." - BOB GROOME, NATIONAL EDUCATION UNION Phoebe Osborne's a Cambridge based lawyer with Ashtons Legal and chair of the Anglia Asbestos Disease Group, and is seeing an increasing amount of cases involving asbestos related disease. She says there has to be greater transparency on how real the dangers arising from older school buildings should be. "However pressing the potential hazard, national government effectively turns a blind eye to the very real danger of asbestos in old school buildings, since they have no money for the enormous programme of phased removal which is required. The same is true of county councils, who have responsibility for schools in each area. They have no money either. No head teacher wants to go public and admit that his or her school may not be safe, so we have a reluctant conspiracy of silence among those who are in a position to point out the dangers." - PHOEBE OSBORNE, CHAIR OF THE ANGLIA ASBESTOS DISEASE GROUP The Department for Education has said nothing's more important than the health and safety of children and staff in schools. "That's why we are investing GBP23 billion in school buildings by 2021. This will help ensure asbestos is managed safely and that the amount in school buildings continues to reduce over time." ASBESTOS UPDATE: Asbestos Linked with Laryngeal Cancer ------------------------------------------------------ Reports Healthcare reported that We will discuss the link between asbestos exposure and laryngeal cancer in this article. Vocal cords are found in larynx which is located in the upper part of the trachea. The vocal cords join and meet together and vibrate appropriately, so if there is the change in the voice, it demonstrates an early manifestation of something wrong like laryngeal cancer. Tumor in the larynx begins inside the vocal cords or nerves. The hoarse pitch is habitually the underlying indication of malignancy in the larynx or voice box. If croaked voice is experienced for over one month, it will be advisable that the influenced individual should see a specialist who is a specialist on ear, nose, and throat (ENT) diseases. In some rare instances, malignancy may start in the part of the voice box or larynx which is not located adjacent to the vocal cords or nerves. In this occurrence, there will not be any change in the voice. The underlying sign could be swelling of the throat or neck, or there is inconvenience or feel of pain in gulping. At times, there is an ear infection as beginning signs. An extremely uncommon illness, laryngeal malignancy or tumor of the larynx is accepted to have been caused by presentation to asbestos. In any case, the latest research proposes that asbestos introduction is a conceivable hazard factor yet no considerable information that can demonstrate the correct connection of asbestos with the laryngeal disease. Be that as it may, this still does not change the way that later on, specific information could set up the likelihood that asbestos could truly prompt laryngeal malignancy. Various asbestos-related ailments may grow once an individual is presented adequately to high degrees of asbestos fiber. This is on account of introduction to asbestos functions on the dosage response rule where just a specific amount must be met before one's well being achieves the risk point. Something else, the individual is sheltered, at any rate for some time. Be that as it may, persistent presentation even to low levels of asbestos fiber may, in any case, wind up creating illnesses. The latency time of most asbestos malignancy, including laryngeal malignancy, is somewhere close to 20 to 50 years. The minimum time allotment is 5 years. So this implies side effects of laryngeal malignancy or any tumor, will just surface following quite a while of the first infliction. This is the basic cause behind why most patients of asbestos- related malignancies don't know about their infections in its beginning times. Everybody who has close contact with asbestos may conceivably breathe in asbestos fiber. Be that as it may, the individuals who are exposed consistently will probably create illnesses quicker. In any case, introduction alone isn't reason enough for a man to get a sickness. As we have prior stated, one ought to be presented to a moderately abnormal state of asbestos fiber before his or her body starts to respond. With constant introduction one's at a more serious danger of being sick before 20 to 50 years. Indeed, even groups of the individual who was straightforwardly in contact with asbestos fiber may experience the ill effects of hazard factors. Laryngeal malignancy starts from the larynx infection. This is the route of both air and sustenance during breathing and gulping. Any individual who is presented to asbestos-filled air risks taking in asbestos fiber which may be caught in the larynx and the succeeding sections of the air or the sustenance. Shockingly, there is no real way to expel the asbestos fiber from the body of the victim once it has made its way into the body. Asbestos causes deaths somewhere in the range of thousands of individuals consistently. The vast majority of these have worked in mines, production lines, shipyards and construction sites and numerous originate from individuals who have family members working in these businesses. Consistently, in any case, there are around 10,000 individuals determined to have laryngeal malignancy and half of them die because of the malignancy. Since laryngeal malignancy and asbestos are considered as occupational maladies, men are probably going to build up the sickness more than ladies since about all occupations utilizing asbestos are overwhelmed by men. The normal time of people determined to have the laryngeal disease is something like 50 years of age to 70 years of age or more. This further builds up the connection amongst asbestos and laryngeal tumor since both require almost a similar time of dormancy. Time of inertness is the time allotment for the full development of the infection. Additionally, it has been noticed that asbestos can likewise expand the danger of creating lung disease close to the all the more dominating sick impacts of smoking. Further, different asbestos maladies and larynx malignancy have similar manifestations, for example, croaked voice, the formation of lumps in influenced regions because of cancer, pain in the ear, the trouble of gulping and breathing, sore throat, and consistent cough. A few treatment choices for laryngeal malignancy and asbestos are chemotherapy for more exasperated and aggravated illnesses, radiation treatment that evacuates immature cells of cancer and small tumors, surgery for both large and small tumors, blend of Complementary and Alternative Medicines (CAMS), and practicing life modifications. To know about your choices for treatment, it is most appropriate to look for more thorough therapeutic counsel. Look for authority in asbestos or laryngeal tumor to find out about your ailment. Diagnosis of laryngeal cancer Cancer of larynx or laryngeal cancer cannot be analyzed without the series of x-rays and tests. The doctor will allude the patient to see an ENT (ear, nose, and throat) specialist. At that point, the ENT expert will take the total therapeutic history and inspect the patient. The specialist will check the neck for any occurrence of enlarged glands. The ENT specialist will then look at the larynx via an endoscope (a flexible tube which has a light toward the end). The instrument goes into the throat by going through the nose. This can be awkward, yet the throat must be anesthetized by spraying it initially with anesthesia. At the point when the specialist sees any strange or uncommon thing in the throat, or in case he cannot see the larynx obviously through the endoscope, the patient is admitted to the hospital for intensive examination of the larynx under general anesthesia. While the patient is under anesthesia, the specialist might have the capacity to see the larynx totally by the utilization of an endoscope. In case any area looks unusual, a biopsy is done, which means, an extremely small segment of the tissue is taken away and inspected by the utilization of microscope. Staging and grading system of laryngeal cancer Grading of tumor alludes to portray the measurement of the tumor and degree it has scattered outside where it has begun. The grade of the tumor alludes to how the sporadic cells of the tumor show up in the microscope. Grading of malignancy gives a thought how quick the tumor may develop. Distinguishing the stage and grade of the malignancy are extremely important. The specialist may choose what sort of treatment is best for the patient. The stage and grade of tumors may help the specialist to expect how the tumor may act, how it can respond to treatment, likewise what are odds of the cure. The TNM system of staging is generally for laryngeal malignancy. TNM implies tumor, node, and metastasis. * T refers to the extent of tumor * N describes the possibility if tumors have scattered to the nodes of lymph * M describes if the tumor has scattered to different regions of the body (secondary or metastatic cancer) The precise TNM staging system expected for the disease of the larynx relies upon what bit of the larynx is influenced by the tumor. Laryngeal malignancy is categorized into three grades * Grade I It is a low-grade tumor. The tumor cells appear to be like the standard cells in the larynx * Grade II The tumor cells seem less resembled as compare to the normal cells in the larynx. It is the intermediate grade cancer. * Grade III The tumor cells seem anomalous and disparate from normal cells of the larynx. It is the higher grade cancer. ASBESTOS UPDATE: Latest Push for Asbestos Tort Reform in Missouri ----------------------------------------------------------------- JD Supra reported that the stage is set for a heated showdown between GOP leaders and bipartisan critics over implementation of HB 1645. If adopted by the Senate, the bill would alter several provisions related to a plaintiff's ability to bring asbestos tort claims. The main contention sparked by HB 1645 requires plaintiff-side attorneys to identify and file claims against all potentially liable defendants or bankruptcy trusts at the onset of lawsuits alleging injury from asbestos exposure. The idea behind this segment of the bill is twofold: (1) to embed built-in transparency preconditions allowing asbestos claim resolution with minimal delay; and (2) thwart the practice of "double- dipping" by granting injured plaintiffs compensation from one defendant at a time -- before pursuing claims against additional defendants. As an added benefit to defendants, the bill currently includes provisions expressing that trust applications "may be sufficient" for jury findings which deduce that products for which the trusts were established constituted a "substantial contributing factor" in causing alleged injuries; and also, that trust claim materials may be used to prove alternative causation for alleged injuries. These provisions suggest that trust materials can be used to off-set liability by viable defendants without any additional burden of causation. The lines of demarcation are clearly drawn. On one side stands the bill's proponents, led by Rep. Bruce DeGroot, who argue that historically asbestos litigation in Missouri has been blemished by mass exploitation, which in turn diminishes availability of trust fund capital for future claimants. DeGroot explains HB 1645 "is designed to keep [Missouri] from being called the 'sue-me state' instead of the Show-me State[.]" On the other side stand the bill's bipartisan critics who contend the proposed reform adds additional roadblocks, effectively hampering victims of asbestos related illnesses -- such as firefighters, laborers, and military veterans -- by demanding identification of every source of possible asbestos exposure in initial filings. Moreover, critics believe added measures would prolong the adjudicative process by placing claimants with declining health in a position where death may arrive well before the opportunity to confront defendants in court. If HB 1645 becomes law, Missouri would be the thirteenth state to increase transparency in the somewhat murky and convoluted world of asbestos litigation. However, the bill's adversaries question its true intent: whether HB 1645 is being pushed to protect Missouri's corporate base from distribution of just damages to aggrieved victims; or whether the bill's enactment is fueled by a notion of "fair litigation," which would ensure trust companies are aware of, and are able to, unimpededly defend against multiple exposure allegations under equitable circumstances. HB 1645, along with HB 1512 (changes to the Uniform Arbitration Act) and HB 1531 (modification to interpleading in civil proceedings) are components of contemporary tort reform. Experts surmise HB 1645 has a 50/50 chance of going the distance and converting into law due to developing agenda being promoted by an overwhelmingly Republican majority General Assembly. Based on sheer numbers alone, both house Republicans have the votes to pass the bill in the Senate, nevertheless, the tactical warfare of filibuster could be a cause for concern. The current session of the General Assembly ends mid-May, leaving approximately seven weeks left for negotiations. On April 4, HB 1645 was voted out of committee in the Senate; next, it will be placed on the calendar by the Senate Floor Leader and then presented to the Senate for a final show of hands. In short, the process mimics the all too familiar cycle of life -- some proposed legislation will survive at the expense of others that will parish. Either way, the struggle for control of procedures governing asbestos litigation in Missouri is well and alive in the political streets of Jefferson City. Only time will tell whether Missouri's true mantra will be the "Sue-me State" or the "Show-me State." ASBESTOS UPDATE: Ct. Denies Personal Jurisdiction in Suit --------------------------------------------------------- JD Supra reported that the Circuit court in Cook County, Illinois has recently clarified one of the limitations on which it applies personal jurisdiction and venue protections to Defendants in asbestos cases. In John C. Clark v. A.W. Chesterton Company, et al., the Court performed personal jurisdictional analyses of general and specific jurisdiction, and also analyzed Defendant's Motion to Dismiss for forum non conveniens. While the Defendant in this case won the argument on general jurisdiction, it lost the arguments on specific jurisdiction and forum non conveniens. The court reasoned that Plaintiff's "take-home" exposure to asbestos brought both the Defendant's actions and the alleged resulting injury into Illinois. The Plaintiff in Clark alleged exposure to asbestos on the premises of Great River Energy's ("GRE") factory in North Dakota, while working as a contractor. Significantly, the Plaintiff also alleged "take-home" exposure in his pleadings and argument, although the Court's opinion provided no underlying facts regarding this claim, and there is no spouse or second Plaintiff named in the case. The contracting company for which Plaintiff worked was an Illinois company -- United Conveyor Corporation ("UCC"), who had contracted with GRE to do the work on GRE's premises. Plaintiff lived in Cook County, Illinois. Plaintiff alleged that the fact that GRE had contracted with an Illinois corporation was enough to subject GRE to personal jurisdiction. However, the Court acknowledged Defendant's argument that the contract alone was not enough to show "minimum contacts" between GRE and Illinois, and that, under Illinois law, other factors must be considered. In reviewing whether there was general jurisdiction over GRE, the Court applied the requirements set forth by the U.S. Supreme Court in Daimler A.G. v. Bauman, 134 S.Ct. 746 (2014) and adopted in Illinois by Aspen Am. Ins. Co. v. Interstate Warehousing, Inc., 2017 IL 121281. The Circuit Court thus found that Defendant GRE was not "at home" in Illinois because it was not incorporated there, did not have a principal place of business there, and did not "meet the example of a rare exception." As a result, the Court did not have general jurisdiction over Defendant GRE. The Circuit Court next reviewed whether there was specific jurisdiction over GRE, and looked to the Illinois Supreme Court case of Russell v. SNFA, 2013 IL 113909 for the proposition that "[a]lthough the United States Supreme Court has not clarified what is meant by 'arising out of' or 'relating to' in the context of a jurisdiction question, Illinois has determined that the applicable standard is lenient or flexible." [1] The Cook County Circuit Court also cited to Bolger v. Nautica Int'l, Inc., 369 Ill. App. 3d 947 (2d Dist. 2007) to explain the factors to consider in determining whether a Defendant has "purposefully availed" itself of the benefits of the forum state, beyond simply contracting with a business located there: (1) who initiated the transaction, (2) where the contract was formed, and (3) where the contract was performed. Significantly, the appellate court in Bolger began its specific jurisdiction analysis by stating " . . . . .The focus is on the defendant's activities within the forum State, not on those of the plaintiff," before articulating the three factors to consider when a contract forms the basis for the jurisdictional dispute. However, without going through an analysis of specific application of these Bolger factors to the facts at issue in Clark, the Circuit Court determined that "GRE (through its predecessor) and this Illinois resident's Illinois employer contracted in and agreed to be bound by Illinois law and courts. This choice of forum was explicit and bargained for by experienced and sophisticated business parties. Moreover, plaintiff's proposed injury directly arose from Defendant's own contacts with Illinois through alleged exposure to Defendant's asbestos both at its facility [which was in North Dakota] and again in Chicago when he brought the asbestos fibers home" (emphasis added). By considering the "take-home" exposure by Plaintiff in addition to the other named factors, the Circuit Court also concluded that Illinois courts would have "concern for a case where the Defendant allegedly allowed people working on its premises and around asbestos containing products to travel back to Illinois without proper safety precautions in place to disrupt exposures back home, and that a dismissal would result in Plaintiff's having to 'commence separate lawsuits in several states where he worked and was exposed' thus finding that it was also "reasonable to litigate this case in Illinois." Having found personal jurisdiction over GRE, the Circuit Court turned to the Defendant's argument regarding forum non conveniens. Because the Court found that part of the Plaintiff's injury occurred in Cook County, Illinois (via take-home exposures), the court applied that finding in both the private and public interest factor analyses, and determined that they weighed in favor of keeping the case in Illinois. The Circuit Court's extensive consideration of Plaintiff's alleged take-home exposure in this way is significant to Defendants in several ways. First "take-home" exposure in asbestos cases takes on new meaning ordinarily reserved for family members who were not working at the jobsite at issue, opening the door for potential liability for additional exposure by the Plaintiff's own actions once he is at home. Second, from a jurisdictional standpoint, a finding that take-home exposure from a Defendant's premises in another state constitutes a Defendant's relationship to that forum State will limit a Defendant's ability (in asbestos exposure claims) to argue against specific jurisdiction in any state in which a Plaintiff lives. The consideration of Plaintiff's exposure once he gets home also arguably shifts the focus from the Defendant's activities (as stated by the Illinois appellate court in Bolger) to those of the Plaintiff. [1] The Circuit Court made no mention of the U.S. Supreme Court's decision in Walden v. Fiore, 134 S.Ct. 1115 (2014) (decided shortly after Daimler), wherein the relationship between the defendant and the forum state was analyzed for minimum contacts under a specific jurisdiction inquiry. The Court in Walden identified two necessary factors: 1) "the relationship must arise out of contacts that the 'defendant himself' creates with the forum State" and 2) "our 'minimum contacts' analysis looks to the defendant's contacts with the forum State itself, not the defendant's contacts with persons who reside there" (emphasis in original). Id. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Jessenius Pulido, Noemi Irene A. Adala, Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche Maricon Castillon-Lopez, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. * * * End of Transmission * * *