/raid1/www/Hosts/bankrupt/CAR_Public/180803.mbx
C L A S S A C T I O N R E P O R T E R
Friday, August 3, 2018, Vol. 20, No. 155
Headlines
3001 CASTOR: Seeks 3rd Cir. Review of Ruling in Verma FLSA Suit
4C KINZIE: Misrepresented Taxable Income Amount, Luna Claims
ACADIA PHARMA: Stone Sues over Misleading Financial Information
ACCESS CLINICAL: Faces ADA Class Action in New York
ACTAVIS LLC: Erin Doyle Suit Moved to Southern District of Ohio
ADMIRAL THEATRE: Faces Class Action from Exotic Dancers
AG URGENT CARE: Clinic Faces Class Action Under ADA
ALLIANT CREDIT: Hit With Overdraft Fees Class-Action Suit
ALLSCRIPTS HEALTHCARE: Wants Jan. Ransomware Attack Suit Dismissed
AMERICAN ADJUSTMENT: Smolinski et al. Seek OT Wages under FLSA
AMERICAN FAMILY: Faces Murphy ADA Suit in New York
ARIZONA: Seeks 9th Cir. Review of "Valenzuela" Suit Ruling
ARTIFICIAL GRASS: Has Made Unsolicited Calls, "Bacon" Suit Claims
BA-KER TANK: Wilson Suit Moved to Northern District of Texas
BASF AG: CUE Suit Alleges Sherman Act Violations
BURROW GLOBAL: Caviel Suit Seeks to Recover OT Pay under FLSA
CARDO WINDOWS: DeFranza Suit Alleges TCPA Violation
CBOE EXCHANGE: LRI Invest Suit Moved to N.D. Illinois
CHEMICAL & MINING: Bid for UK Judicial Assistance in "Villella" OKd
CHESNUT HOLDINGS: Underpays Superintendents, Victoria Alleges
CK TOURS: Chang Suit Alleges FLSA and NYLL Violations
CLIF BAR & CO: Martinez Files ADA Class Action in New York
COCA-COLA COMPANY: Class Certification Bid in Fradella Suit Denied
COLONY CAPITAL: Weitzul Sues over Colony NorthStar Merger
CORELOGIC CREDCO: S. King Suit Transferred to S.D. Calif.
DAVIDSON HOTEL: Parks Seeks OT & Minimum Wages under Labor Code
DCT INDUSTRIAL: Stephen Bushansky Sues over Prologis Merger
DUKE ENERGY: 11th Cir. Affirms Decision in Florida Suit
ENVISION HEALTHCARE: 11th Circuit Appeal Filed in Quilty Suit
ESCALLATE LLC: Sharon Robinson Seeks to Certify Settlement Class
FARMLAND PARTNERS: Bronstein Gewirtz Files Class Action Lawsuit
FARMLAND PARTNERS: Kessler Topaz Files Securities Class Action
FCA US: Victorino Appeals Case Dismissal to 9th Cir.
FEDEX GROUND: Underpays Operations Managers, Stine & Payne Claim
FINANCIAL RECOVERY: Borozan Appeals Ruling to 3rd Circuit
FIRST TRANSIT: Cecil French Suit Moved to S.D. California
FLORIDA: Marts Appeals Ruling in "Hoffer" Suit to 11th Cir.
FOUR BROTHERS: Volk Seeks Overtime Compensation under FLSA
FOX ASSOCIATES: Appeals Order in "Childress" Suit to 8th Circuit
GLENCORE PLC: Henry Church Sues over Drop in Share Price
GOGO INC: Aug. 27 Lead Plaintiff Bid Deadline
GOLDEN GATE AMERICA: Underpays Employees, Warnick Claims
HALO TOP: Baker & Hostetler Attorneys Discuss Slack-Fill Case
HOHLA & WYSS: Ray Arp Seeks to Certify Collective Action
IDAHO: Ex-Judge Files Class Action Over Student Fees
IESI BETHLEHEM: $5MM Sought in Class-Action Suit
INSYS THERAPEUTICS: Vetticaden Dismissed from Securities Suit
JB HUNT: Drivers Fight Bid to Decertify Calif. Wage Class Action
JC PENNEY: Loses Bid to Dismiss A. Cavlovic's KCPA Suit
JUICE GENERATION: Khadka et al. Seek OT Wages under FLSA
KNIGHT ENTERPRISES: Arbitration Ruling in "Weckesser" Suit Upheld
KRISPY KREME: Judge Cuts Class Action Attorneys' Fees
LAO MA SPICY: Yang & Huang Seek Minimum & OT Pay under FLSA
LATINO CONCEPTS: Doesn't Pay OT to Cooks, Carlos Castro Alleges
LAWRENCE COUNTY, PA: County Engr. Won't Violate Class Deal Terms
LIFETIME FITNESS: Settles Former Trainers' Wage Class Action
LINCOLN NATIONAL: TVPX ARS Says Cost of Insurance 'Excessive'
LUV N' CARE: Faces Class Action Over "All Natural" Teething Gel
MAMMOTH MEDS.COM: Nashville Pharmacy Sues over Unsolicited Fax
MDL 2472: Certification of End-Payor Class Sought
MDL 2472: Certification of Loestrin Direct Buyers Class Sought
MDL 2795: Plaintiffs Can't Compel Production of Gov't Probe Docs
MEDNAX INC: Bernstein Litowitz Files Securities Class Action
MEDNAX INC: Cambridge Retirement Sues over 15% Drop in Share Price
MELISSA ENTERTAINMENTS: Faces Gomez ADA Suit in S.D. Florida
MERCURY SYSTEMS: Faces Securities Class Action in Massachusetts
MERCURY SYSTEMS: RM LAW Discloses Class Action Lawsuit
MIDLAND CREDIT: Jennings Sues over Debt Collection Practices
MLB ADVANCED: 9th Circuit Appeal Filed in Perry Class Action
MONARCH RECOVERY: Benzriouil Sues over Debt Collection Practices
MONSANTO COMPANY: Sweeney Appeals Orders in "Rawa" to 8th Cir.
MONSANTO CORP: South Dakota Farmer Seeks Class Action
MV PUBLIC TRANS: Jene White Sues over Work-Related Expenses
NATIONWIDE CREDIT: Stoessel Sues over Debt Collections Practices
NEXEN CORPORATION: Certification of FLSA Class Sought
NGU TRANSPORT: Fails to Pay Minimum & OT Wages, Henriquez Says
NORMANDIE HOTEL: Karen Alvarado Seeks Unpaid Wages
OCWEN FINANCIAL: Bergan Suit Moved to Eastern Dist. of Arkansas
OCWEN LOAN: Violates Mortgage Foreclosure Act, Parra Says
OMEGA FINANCIAL: Joseph Scafide Sues over Telemarketing Calls
ORGANIC FOOD: Underpays Cashiers, Alvarado & Campoverde Allege
PACIFIC MARITIME: Fails to Pay Minimum Wages, Villasenor Says
PARKCO BUILDING: Fails to Pay OT & Minimum Wage, Dionicio Says
POWERCOMM CONSTRUCTION: Appeals Randolph Suit Ruling to 4th Cir.
PRIME FINANCIAL: Terilyn Jukes Sues over Debt Collection Practices
PROTHENA CORPORATION: Ramezani Sues over 69% Drop in Share Price
QUEST DIAGNOSTICS: Wilson Sues over Unwanted Telephone Calls
R & W SOUTH: Faces ADA Class Action in New York
RICHMOND, VA: White Seeks Back Wages under FLSA
RIVER 2 RIVER: Murphy Files ADA Suit in S.D. New York
ROOTER HERO: Cecena Seeks Overtime Wages under Labor Code
ROSEWOOD COLONY: Filing of Class Cert. Bid Extended to Jan. 4
SAARMAN CONSTRUCTION: Gutierrez et al. Seek Wages & Overtime Pay
SAFEWAY INC: Fails to Pay Hourly & Final Wages, Faciane Says
SEBASTOPOL, CA: Avendano-Ruiz's Class Certification Bid Denied
SHOW TECHNOLOGY: Stanley Seeks Overtime Pay under FLSA
SIX FLAGS: Murphy Files Suit v. Amusement Park
STARWOOD HOTEL: James Murphy Files ADA Class Action
SUPER MICRO: 9th Circuit Appeal Filed in "Wanca" Securities Suit
SUPERSHUTTLE FRANCHISE: Appeals Ruling in "Shenouda" to 9th Cir.
TAO SPA GROUP: Faces Gomez ADA Suit in S.D. Florida
TAPESTRY INC: Norma Garcia Suit Moved to C.D. California
TEXAS: 5th Cir. Appeal Filed in Prisoner's Civil Rights Suit
TF CORNERSTONE: ADA Suit Filed Against Firm
THREE SONS: Fails to Pay OT & Minimum Wage, Leano et al. Claim
TODAY'S WELLNESS: Andres Gomez Files ADA Suit in S.D. Fla.
TRADE SUPPLIES: Ruben Garcia Seeks Unpaid Wages under Labor Code
TRADER JOE'S: Mislabeled Manuka Honey Product, Moore et al. Claim
TRIANGLE CAPITAL: Carlson Files Suit Over Asset Sale to Benefit
UNITED STATES: Appeals Decision in Vidal Suit to 2nd Cir.
UNITED STATES: Garfield, Mesa Counties Mulling to Join PILT Suit
UPLOAD PICTURES: Fails to Pay Proper OT, "Castaneda" Suit Alleges
VELOX EXPRESS: York et al. Suit Moved to W.D. Kentucky
W. 6 RESTAURANT: Underpays Cocktail Waitress, Stacey Cargill Says
WALGREEN CO: Fails to Pay Minimum Wages & OT, Botros Says
WELLS FARGO: 9th Cir. Appeal Filed in Jabbari Suit
WELLS FARGO: Briefing for Chief's Market Class Cert. Bid Continued
WELLS FARGO: Farmer Appeals Ruling in Jabbari Suit to 9th Cir.
Asbestos Litigation
ASBESTOS UPDATE: $229.7K Fine for Asbestos Removal Contractor
ASBESTOS UPDATE: 105 East Sussex Schools Contain Asbestos
ASBESTOS UPDATE: A. Edwards Suit v. Andrea Electronics Resolved
ASBESTOS UPDATE: Adjusted Survival Ratio Remains Below 8Yrs
ASBESTOS UPDATE: Asbestos Ban Not Enough to Wipe Out Mesothelioma
ASBESTOS UPDATE: Asbestos Discovered in Modern Australian Homes
ASBESTOS UPDATE: Asbestos From Steam Explosion Forces Evacuation
ASBESTOS UPDATE: Asbestos May Drive Mesothelioma Progression
ASBESTOS UPDATE: Boeing's Bid to Review Remand of "Betzner" Denied
ASBESTOS UPDATE: Building Reopens After Steam Blast Asbestos Scare
ASBESTOS UPDATE: Carcinogenicity of Talc Sans Asbestos Unclear
ASBESTOS UPDATE: Columbus McKinnon Records $6.2MM Liability
ASBESTOS UPDATE: Council Probe Asbestos in Bridge of Don Academy
ASBESTOS UPDATE: D/C Distribution Still Faces A&F Suit at March 31
ASBESTOS UPDATE: D/C Lift Stay Issue Still Ongoing at March 31
ASBESTOS UPDATE: EPA to Help Oil Refinery Asbestos Abatement
ASBESTOS UPDATE: Extra Asbestos Found in Former Reid Hospital
ASBESTOS UPDATE: F. Cohen's PI Claims v. Imerys America Dismissed
ASBESTOS UPDATE: Family of Secretary Wins GBP360K Asbestos Payout
ASBESTOS UPDATE: Firefighters Battle Potential Asbestos Exposure
ASBESTOS UPDATE: Former Church Warden Dies of Asbestos Exposure
ASBESTOS UPDATE: Former Mechanic's Suit Remanded for New Trial
ASBESTOS UPDATE: Former Palisade High School Riddled with Asbestos
ASBESTOS UPDATE: Former Plant Asbestos Pollution Study Underway
ASBESTOS UPDATE: Graham Corp. Still Faces Lawsuits at March 31
ASBESTOS UPDATE: Grave Error in Asbestos Removal Closes Campus
ASBESTOS UPDATE: Huelsman Couple Seeks Damages on Asbestos Disease
ASBESTOS UPDATE: Insurers Must Prorate GM Asbestos Coverage
ASBESTOS UPDATE: IntriCon Still Defends Lawsuits at March 31
ASBESTOS UPDATE: Isle of Man Union Leader Battles COPD
ASBESTOS UPDATE: J&J Ordered to Pay $4.7-Bil. in Asbestos Talc Suit
ASBESTOS UPDATE: Jersey Woman Fights for Asbestos Compensation
ASBESTOS UPDATE: Kaanapali Insurance Talks Continues at March 31
ASBESTOS UPDATE: Kaanapali Land Still Faces Lawsuits at March 31
ASBESTOS UPDATE: L. Jack's PI Claims Against Flowserve Dropped
ASBESTOS UPDATE: Lawsuit vs. E-Source Holdings Pending at Mar.31
ASBESTOS UPDATE: Lebanon Fire Exposed Firefighters to Asbestos
ASBESTOS UPDATE: Magnetek Has $1.1MM Liability at March 31
ASBESTOS UPDATE: Mehnert PI Suit Remains in Pa. District Court
ASBESTOS UPDATE: More Than 150 Glasgow Schools Contain Asbestos
ASBESTOS UPDATE: New Hampshire to Get $140K to Address Asbestos
ASBESTOS UPDATE: Old Mo's Lounge Bldg. May See Asbestos Abatement
ASBESTOS UPDATE: Oregon Company Fined for Asbestos Violations
ASBESTOS UPDATE: Park-Ohio Industries Faces 89 Suits at March 31
ASBESTOS UPDATE: Report on Blue Mountains Asbestos Further Delayed
ASBESTOS UPDATE: Retired Teacher Awarded $500K in Damages
ASBESTOS UPDATE: Rexnord Estimates $38MM Liability at March 31
ASBESTOS UPDATE: Shipwreck Raises Asbestos Pollution Fears
ASBESTOS UPDATE: Southampton Carpenter Dies Asbestos Exposure
ASBESTOS UPDATE: Southampton Marine Engr. Dies of Asbestos Exposure
ASBESTOS UPDATE: TIM Found Not Guilty in Workers' Exposure Suit
ASBESTOS UPDATE: Train Brakes Lined with Asbestos Claim Refuted
ASBESTOS UPDATE: Welder Dies After 50 Years of Asbestos Exposure
ASBESTOS UPDATE: Whittaker May Appeal Until November 2018 Term
ASBESTOS UPDATE: Workplace Asbestos Exposure Causes Cancer
*********
3001 CASTOR: Seeks 3rd Cir. Review of Ruling in Verma FLSA Suit
---------------------------------------------------------------
Defendant 3001 Castor Inc., doing business as The Penthouse Club,
Company filed an appeal from a court ruling in the lawsuit titled
Priya Verma v. 3001 Castor Inc., et al., Case No. 2-13-cv-03034, in
the U.S. District Court for the Eastern District of Pennsylvania.
As previously reported in the Class Action Reporter, former exotic
dancer Priya Verma is the lead plaintiff in a class action against
3001 Castor Inc. dba The Penthouse Club @ Philly, ABDCE
Pennsylvania Management LLC, and 10 others. Referring to the
pornographic publication "Penthouse," the club's slogan is "Where
the Magazine Comes to Life."
Ms. Verma said the topless club improperly classifies its dancers
as independent contractors instead of employees, depriving them of
minimum wage as well as overtime compensation. The dancers also
share a percentage of their tips with the club and reimburse it for
ordinary business expenses, according to the complaint. In
addition to violations of the Fair Labor Standards Act, the class
brought claims under the Pennsylvania Minimum Wage Act, Wage
Payment and Collection Law, and common law.
The appellate case is captioned as Priya Verma v. 3001 Castor Inc.,
et al., Case No. 18-2462, in the United States Court of Appeals for
the Third Circuit.[BN]
Plaintiff-Appellee PRIYA VERMA, On Behalf of herself and all others
similarly situated, is represented by:
Jamisen A. Etzel, Esq.
Gary F. Lynch, Esq.
CARLSON LYNCH SWEET & KILPELA LLP
1133 Penn Avenue, 5th Floor, Suite 210
Pittsburgh, PA 15222
Telephone: (412) 322-9243
E-mail: jetzel@carlsonlynch.com
glynch@carlsonlynch.com
- and -
Michael J. Hynes, Esq.
HYNES KELLER & HERNANDEZ LLC
1150 First Avenue, Suite 501
King of Prussia, PA 19406
Telephone: (610) 994-0292
E-mail: mhynes@hkh-lawfirm.com
- and -
Gerald D. Wells, III, Esq.
CONNOLLY WELLS & GRAY
2200 Renaissance Boulevard, Suite 275
King of Prussia, PA 19406
Telephone: (610) 822-3700
E-mail: gwells@cwg-law.com
Defendant-Appellant 3001 CASTOR INC., DBA The Penthouse Club, is
represented by:
John F. Innelli, Esq.
JOHN F. INNELLI, LLC
Two Penn Center
Philadelphia, PA 19102
Telephone: (215) 845-0250
E-mail: jinnelli@innellilaw.com
4C KINZIE: Misrepresented Taxable Income Amount, Luna Claims
------------------------------------------------------------
A class action lawsuit alleges that 4C Kinzie Investor, LLC and
several Chicago restaurant and bar operators misrepresented amount
of "wages" stated on the W-2s, thus Plaintiff and Negligent
Misrepresentation Class members were required to pay income tax on
income that they did not actually receive.
According to the complaint, Plaintiff's and Servers' Paystubs
overstated the amount of taxable income that they actually received
-- i.e., the amount of "Cash Tips" stated on Plaintiff's and
Servers' Paystubs was greater than the amount of Take Home Cash
that Plaintiff and Servers were actually given and allowed to keep.
Because the amount of "Cash Tips" stated on Plaintiff's and
Servers' Paystubs was used to calculate the amount of Plaintiff's
and Servers' taxable income on their W-2s instead of the amount of
Take Home Cash that Plaintiff and Servers were actually given and
allowed to keep, they were required to pay income tax on income
that they did not actually receive.
Defendants operate a collection of bars and restaurants located in
Chicago, Illinois operating under the common Four Corners
enterprise. At each bar and restaurant within the Four Corners
group, Defendants employ Servers who serve food and drinks to
customers. Defendants' Servers are compensated at an hourly rate of
pay, and through tips bestowed upon them by Defendants' customers.
At the end of each shift, before they leave work, Defendants'
Servers calculate what they believe to be the accurate total amount
of tips that were bestowed upon them by Defendants' customers, and
accurately log and declare that total calculated amount of tips in
Defendants' point-of-sale ("POS") system. Servers are given cash in
an amount equal to the total amount of tips they declared in
Defendants' POS system, and are allowed to keep that money. Servers
do not receive any additional payments in connection with the tips
that were bestowed upon them by Defendants' customers other than
the Take Home Cash they receive. Defendants' Servers' hourly
compensation -- i.e., compensation that does not derive from
tips-is to be paid once every two weeks. However, Defendants
usually retain the entirety of Servers' hourly compensation (and
only that amount) for tax withholding purposes, and therefore,
Servers usually do not receive any additional compensation over and
above their Take Home Cash at the end of each pay period.
The class action lawsuit is captioned as ERIK LUNA, individually,
and on behalf of all others similarly situated, the Plaintiff, v.
4C KINZIE INVESTOR LLC d/b/a HighlineBar & Lounge; 1001 W. LAKE
OPCO, LLC d/b/a Federales; 4C 1001 W. LAKE OPCO, LLC, ILLINOIS
OPERATIONS, LLC d/b/a Fremont Bar; ) FOUR CORNERS TAVERN FUND )
MANAGEMENT, LLC; 1500 N. WELLS OPCO, LLC d/b/a 80 Proof f/k/a
SteakBar; 4C 1500 N. WELLS OPCO, LLC, TALBOTT ASSOCIATES, L.P.
d/b/a 20 EAST; 4C WRIGLEY, LLC d/b/a Brickhouse Tavern; KEYSTONE
HOLDINGS CORP.; 4C RIVERSIDE, LLC d/b/a Porter Kitchen & Deck;
CHEVAL PORTER MANAGER, LLC; WELLS HOLDINGS, LLC d/b/a Benchmark Bar
and Grill; WELLS HOLDINGS MANAGER, LLC; WEST LOOP TAP, L.L.C. d/b/a
Westend Bar & Grill f/k/a Brownstone Tavern & Grill (Madison and
Ada); SHEF AT OAK, INC. d/b/a Kirkwood Bar & Grill f/k/a Brownstone
Tavern & Grill (Sheffield and Oakdale); RIVER NORTH TAP, INC. d/b/a
Sidebar Grille; ROCCO'S, LLC d/b/a Ranalli's; CLARK STREET
RESTAURANT PARTNERS, LLC f/k/a 2450 N. Clark, Inc. d/b/a Gaslight;
and ASCLOSE, INC. d/b/a Schoolyard Tavern & Grill; THE CHASE
TAVERN, INC. d/b/a Trellis Wine Bar; SALOON HOLDINGS, LLC d/b/a The
Crossing Tavern; SALOON HOLDINGS MANAGER, LLC; HARDTALES, INC.
d/b/a Brownstone Tavern & Grill (Lincoln and Irving Park); FOUR
CORNERS, a voluntary unincorporated association; FOUR CORNERS
TAVERN FUND I, LLC; FOUR CORNERS TAVERN GROUP FUND INVESTOR, LLC;
FOUR CORNERS TAVERN PARTNERS LLC; FOUR CORNERS TAVERN GROUP INC.;
FOUR CORNERS HOLDINGS, LLC; FOUR CORNERS CAPITAL ADVISORS; LLC;
FOUR CORNERS SHUTTLE, LLC; 4C CHEV AL LLC; 1001 W. LAKE, LLC;
MATTHEW MENNA, and ANDREW GLOOR, the Defendants, Case No.
2018CH09060 (Ill. Cir. Ct., July 19, 2018).[BN]
Counsel for Plaintiff, the putative Collective Group, and the
putative Classes:
Thomas A. Zimmerman, Jr., Esq.
Sharon A. Harris, Esq.
Matthew C. De Re, Esq.
Nickolas J. Hagman, Esq.
ZIMMERMAN LAW OFFICES, P.C.
77 W. Washington Street, Suite 1220
Chicago, IL 60602
Telephone: (312) 440 0020
Facsimile: (312) 440 4180
ACADIA PHARMA: Stone Sues over Misleading Financial Information
---------------------------------------------------------------
CHARLES R. STONE, II, Individually and on Behalf of All Others
Similarly Situated, the Plaintiff, v. ACADIA PHARMACEUTICALS INC.,
STEPHEN R. DAVIS and TODD S. YOUNG, the Defendants, Case No.
3:18-cv-01672-LAB-JMA (S.D. Cal., July 23, 2018), alleges that
Defendants made false and misleading statements and/or omitted
material information concerning Acadia's business and prospects,
and engaged in a scheme to deceive the market and manipulate the
market prices of Acadia securities.
According to the complaint, by artificially inflating and
manipulating the prices of Acadia securities, defendants deceived
plaintiff and the Class and caused them losses when the truth was
revealed. When Defendants' prior misrepresentations and fraudulent
conduct became apparent to the market, this caused ACADIA's stock
price to fall precipitously as the prior artificial inflation came
out of the stock price. As a result of their purchases of Acadia
securities during the Class Period, plaintiff and other members of
the Class suffered economic loss, i.e., damages, under the federal
securities laws.
The case is a federal securities class action on behalf of all
persons or entities who purchased or otherwise acquired ACADIA
publicly traded securities during the period from April 29, 2016
through July 9, 2018, inclusive. Acadia, based in San Diego,
California, is a biopharmaceutical company focused on the
development and commercialization of innovative medicines to
address unmet medical needs in central nervous system disorders,
and is listed on the NASDAQ under the ticker symbol ACAD.
According to the Company, its product opportunities are led by its
novel drug NUPLAZID (pimavanserin), which was approved by the U.S.
Food and Drug Administration on April 29, 2016, for the treatment
of hallucinations and delusions associated with Parkinson's disease
psychosis, or PD Psychosis, and is the only drug approved in the
United States for this condition. On April 29, 2016, ACADIA
announced that the FDA had approved NUPLAZID and stated that "the
FDA approval of NUPLAZID was based on data from the pivotal Phase
III Study-020 and other supportive studies, representing the
largest research and development program in Parkinson’s disease
psychosis to date."
NUPLAZID became available in the United States in May 2016. On
April 9, 2018, CNN issued a report claiming that medical
professionals, including physicians, researchers and other experts,
had expressed significant concern that NUPLAZID was approved too
quickly, based on inadequate evidence that the drug was safe or
effective. The CNN report also called attention to a large number
of adverse events (often deaths) reported to the FDA for patients
who were using NUPLAZID. On this news, the Company's share price
declined $5.03 per share, or 23.4%, to close at $16.50 per share on
April 9, 2018.
On April 25, 2018, CNN reported that the FDA was re-examining the
safety of NUPLAZID. On this news, the Company's share price fell
$4.27 per share, or 21.9%, to close at $15.20 per share on April
25, 2018. On July 9, 2018, the Southern Investigative Reporting
Foundation issued a report entitled "Acadia Pharmaceuticals: This
Is Not a Pharmaceuticals Company." The report alleges that ACADIA
"has accomplished its growth in ways that have attracted intense
regulatory scrutiny for other drug companies," including
"dispensing wads of cash to doctors to incentivize prescription
writing and downplaying mounting reports of patient deaths." On
this news, the Company's share price again dropped $1.21 per share,
or 6.8%, to close at $16.63 per share on July 9, 2018.[BN]
Attorneys for Plaintiff:
Danielle S. Myers, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: (619) 231 1058
Facsimile: (619) 231 7423
- and -
Jacob A. Walker, Esq.
BLOCK & LEVITON LLP
JEFFREY C. BLOCK
155 Federal Street, Suite 400
Boston, MA 02110
Telephone: (617) 398 5600
Facsimile: (617) 507 6020
ACCESS CLINICAL: Faces ADA Class Action in New York
---------------------------------------------------
A class action lawsuit asserting Americans with Disabilities Act
violations has been filed against Access Clinical Partners, LLC
d/b/a/ GoHealth Urgent Care. The case is styled as James Murphy, on
behalf of himself and all others similarly situated, Plaintiff v.
Access Clinical Partners, LLC d/b/a/ GoHealth Urgent Care,
Defendant, Case No. 1:18-cv-06781 (S.D. N.Y., July 27, 2018).
Access Clinical Partners owns and operates urgent care centers to
provide healthcare services to patients. The company was founded in
2013 and is based in Atlanta, Georgia.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
ACTAVIS LLC: Erin Doyle Suit Moved to Southern District of Ohio
---------------------------------------------------------------
The class action lawsuit titled Erin Doyle, Individually and as
mother and custodian of Baby D.F., on behalf of themselves and all
others similarly situated, the Plaintiff, v. Actavis LLC; Actavis
Pharma, Inc., formerly known as: Watson Pharma, Inc.; Allergan PLC,
formerly known as: Actavis PLC; AmerisourceBergen Corporation;
Cardinal Health, Inc.; Endo Health Solutions Inc.; Endo
Pharmaceuticals, Inc.; Janssen Pharmaceutica Inc., now known as
Janssen Pharmaceuticals, Inc.; Janssen Pharmaceuticals, Inc.;
Ortho-McNeil-Janssen Pharmaceuticals, Inc., now known as Janssen
Pharmaceuticals, Inc.; Johnson & Johnson; McKesson Corporation;
Purdue Pharma, Inc.; Purdue Pharma, L.P.; The Purdue Frederick
Company, Inc.; TEVA Pharmaceutical Industries, Ltd.; Watson
Laboratories, Inc.; Watson Pharmaceuticals, Inc., now known as
Actavis, Inc.; and Cephalon, Inc., the Defendants, Case No.
18CI000201, was removed from the Court of Common Pleas, Ross
County, Ohio, to the U.S. District Court for the Southern District
of Ohio (Columbus) on July 23, 2018. The District of Ohio Court
Clerk assigned Case No. 2:18-cv-00719-MHW-CMV to the proceeding.
The case is assigned to the Hon. Judge Michael H. Watson.
Actavis develops, manufactures, and markets generic pharmaceutical
products.[BN]
The Plaintiff appears pro se.
Attorneys for Endo Pharmaceuticals, Inc.:
Carole Schwartz Rendon, Esq.
BAKER & HOSTETLER LLP
127 Public Square, Suite 2000
Cleveland, OH 44114-1214
Telephone: (216) 861 7420
Facsimile: (216) 696 0740
E-mail: crendon@bakerlaw.com
ADMIRAL THEATRE: Faces Class Action from Exotic Dancers
-------------------------------------------------------
Robert Channick, writing for Chicago Tribune, reports that a former
exotic dancer at the Admiral Theatre filed a lawsuit against the
Chicago strip club on July 11, claiming she was denied wages and
benefits while working for tips.
Paulina Wisniewska, 26, of suburban Glendale Heights, who had
worked exclusively as a stripper at the Admiral since 2013, said
she and her fellow dancers were misclassified as independent
contractors rather than employees, according to the lawsuit, which
is seeking class-action status in Chicago federal court.
Wisniewska stopped performing at the Admiral last month over what
she alleges in the lawsuit to be a violation of the Fair Labor
Standards Act.
"I'm sick of it," Wisniewska said on July 13. "I just want these
business owners to follow the law and not take advantage of young,
naive girls."
Admiral owner Sam Cecola, who was named in the lawsuit, did not
respond to a request for comment.
At the core of the lawsuit is a question playing out in strip clubs
and courtrooms across the country. Are exotic dancers independent
contractors or employees?
Many strip clubs treat dancers as independent contractors, where
they work exclusively for tips and receive no benefits such as
health insurance. It can nonetheless be a lucrative profession,
with entry-level strippers earning nearly $47,000 per year,
according to PayScale.
But dancers who are categorized as independent contractors often
have to pay "house fees" to the clubs, while sharing tips with
staffers. On a slow night, lacking an hourly wage, they can
actually lose money.
"The earning potential is really dependent on the environment on
any given night," said Lauren Martin, a researcher at the
University of Minnesota and lead author of a 2017 study on the
workplace environment for exotic dancers. "So it is possible that
the person doesn't earn enough money to cover the house fees and
the other various fees that they have to pay out."
Wisniewska, a single mother of a 7-year-old son, said she made
about $10,000 last year after fees and tips. On a good night, she
would bring in $500, but pay out $400 of it to the club and
staffers, she said. On a bad night, she said, she would leave with
less money than she started.
While conditions can be challenging, with everything from sexual
harassment to unwanted groping a daily hazard for exotic dancers,
Martin said that many enjoy the work. But she said they are forced
to tolerate treatment that would never fly in other industries.
"It is a stigmatized industry," she said. "That stigma creates a
lot of cover for workplace conditions that are not appropriate or
equitable."
Martin said exotic dancers interviewed for her study saw pros and
cons to being an independent contractor, but most felt the sharing
of tips and the required house fees were not fair.
A bigger issue for many strippers is the lack of health insurance
in an endeavor where injuries are common, she said.
"It is physical work," Martin said. "I think that is a concern
among many people who work in the industry."
Wisniewska said she slipped and hurt herself onstage several times,
needing medical attention at least once when she stepped on a
crack.
"My heel got caught and I ended up twisting my ankle," she said.
"You can't really see anything up there because it's all dark."
The Admiral, a former 1920s-era vaudeville house and longtime
Northwest Side strip club, was a stop last month on Stormy Daniels'
tour. Daniels, an adult film actress who was born Stephanie
Clifford, rose to prominence after suing President Donald Trump and
his former attorney, Michael Cohen, over a nondisclosure agreement
for an alleged 2006 affair.
The lawsuit against the Admiral alleges the club violated federal
and state labor law by failing to pay the dancers minimum wage, by
requiring them to pay fees to perform their jobs and to make
payments to other club staffers -- from disc jockeys and security
guards to "house moms" -- out of their tips.
The suit is seeking an order to have strippers reclassified as
employees, and to have anyone employed by the Admiral over the past
10 years who opts into the lawsuit get back pay for minimum wages,
as well as other monetary damages.
Strippers are unionizing and filing fair-labor lawsuits across the
country, saying they are misclassified and should receive a wage
and be considered employees.
Last summer, for example, a Detroit federal judge approved a $6.5
million national settlement of a class-action lawsuit brought
against the Deja Vu chain of strip clubs, alleging unfair labor
practices over this issue.
Marc Siegel, Esq. -- msiegel@msiegellaw.com -- Wisniewska's
attorney in the Admiral lawsuit, is also representing another
exotic dancer in a similar, previously filed action against VIP's
Gentlemen's Club in Chicago.
Martin said exotic dancers need to stand up for themselves to
improve the work environment.
"This is a legal industry, and in many clubs there are workplace
violations that we wouldn't tolerate in other industries," she
said. [GN]
AG URGENT CARE: Clinic Faces Class Action Under ADA
---------------------------------------------------
A class action lawsuit has been filed against AG Urgent Care, P.C.
The case is styled as James Murphy, on behalf of himself and all
others similarly situated, Plaintiff v. AG Urgent Care, P.C.,
Defendant, Case No. 1:18-cv-06784 (S.D. N.Y., July 27, 2018).
The lawsuit arises under the Americans with Disabilities Act.
Amerihealth (AG URGENT CARE, P.C.) is an urgent care clinic/ center
in Brooklyn, New York. Urgent Care Clinics provide treatment for
the non-life threatening illnesses and injuries and in such cases,
it is more efficient to use an urgent care clinic than an ER in
terms of both money and time.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
ALLIANT CREDIT: Hit With Overdraft Fees Class-Action Suit
---------------------------------------------------------
Aaron Passman, writing for Credit Union Journal, reports that
Chicago-based Alliant Credit Union was named in a class-action suit
related to overdraft fees.
The complaint, filed in federal court, alleges Alliant charged
overdraft or NSF fees when members' accounts had enough money in
them to cover the transactions, violated federal law by
misrepresenting its opt-in clause for overdraft protection and
violated the Electronic Funds Transfer Act (Reg E), among other
grievances.
Plaintiffs' attorneys are seeking an unspecified amount of money,
including compensation (paid with interest), damages, legal costs
and more.
In a statement emailed to Credit Union Journal, Alliant VP of
Marketing and Digital Strategy Michelle Spellerberg said the $10.3
billion credit union is "aware of the allegations, and we're
currently gathering more information and looking into the case. At
Alliant, our members have always come first."
The complaint was filed just weeks after credit union trade groups
raised the specter of potential class action suits targeting credit
unions and overdraft fees. As Credit Union Journal has reported, at
least one law firm is using targeted social media ads in its quest
to identify potential plaintiffs, but it is unknown if that
strategy was used in this instance.
Attorneys representing the plaintiff in the complaint have not
returned Credit Union Journal's calls for comment. [GN]
ALLSCRIPTS HEALTHCARE: Wants Jan. Ransomware Attack Suit Dismissed
------------------------------------------------------------------
Julie Spitzer, writing for Becker's Hospital Review, reports that
Allscripts is asking an Illinois district judge to dismiss a
class-action lawsuit over a January ransomware attack that took
down multiple clients' EHRs for about a week, arguing the case
should be resolved in arbitration, according to HIPAA Space.
Surfside Non-Surgical Orthopedics in Boynton Beach, Fla., filed a
class-action lawsuit on behalf of all customers who were affected
by the downtime -- roughly 1,500 physician practices -- against
Allscripts' parent company, Allscripts Healthcare Solutions.
The suit alleges Allscripts failed "to secure its systems and data
from cyberattacks, including ransomware attacks," the complaint
reads. According to Surfside, Allscripts' EHR and electronic
prescription system outages resulted in canceled appointments,
"significant business interruption and disruption, and lost
revenues."
In the court filing, Allscripts argued Surfside intentionally sued
its parent company to avoid the arbitration clause outlined in its
contract with the vendor. Even if Surfside sued the right company,
Allscripts claims the incident was caused by a criminal act and not
Allscripts' negligence.
"A criminal attack executed using a brand-new malware variant is
precisely the kind of unforeseeable intervening act that breaks the
chain of proximate causation," the court filing stated, according
to HIPAA Space.
Becker's Hospital Review reached out to Allscripts, but company
spokesperson Concetta Rasiarmos declined to comment because the
company does not discuss pending litigation.
Responding to Allscripts' counter filing, Surfside argued the
parent company was at fault, noting its "acts and/or admissions
affected the circumstances that gave rise to the attack and its
fall-out."
In its original complaint, Surfside argued that the ransomware
variant, known as SamSam, has been a known vulnerability since
March 2016. It added that the company's "wanton, willful, and
reckless disregard" led to service disruption. [GN]
AMERICAN ADJUSTMENT: Smolinski et al. Seek OT Wages under FLSA
--------------------------------------------------------------
LINDA SMOLINSKI, KIMBERLY BOURNIVAL, LISA HILL, TROY MALAVE, KAREN
RINALDI, and MICHELLE FRANCIS for themselves and all other
similarly situated individuals, the Plaintiffs, v. AMERICAN
ADJUSTMENT BUREAU, INC., the Defendant, Case No. 3:18-cv-01211 (D.
Conn., July 23, 2018), seeks to recover unpaid overtime wages, and
other monies pursuant to the Fair Labor Standards Act, and the
Connecticut Minimum Wage Act.
According to the complaint, the Defendants paid Accounts Receivable
Customer Service employees on a "per diem" basis of straight time
plus an addition four dollars per hour for all hours worked over
forty hours per week, rather than paying them at the rate of time
and a half for all hours worked over forty hours per week. As part
of their regular business practices, Defendant has intentionally,
willfully, and repeatedly harmed plaintiffs and the FLSA Collective
by engaging in a pattern, practice, and/or policy of violating the
FLSA. This policy and pattern or practice includes, inter alia,
failing to pay plaintiffs and the FLSA Collective the proper
overtime wage for all overtime hours worked. The Defendants have
engaged in this unlawful conduct pursuant to a corporate policy of
minimizing labor costs and denying employees compensation by
knowingly violating the FLSA and CMWA.
American Adjustment is a collection agency dedicated to providing
superior and professional collection of delinquent accounts.[BN]
The Plaintiff is represented by:
William G. Madsen, Esq.
MADSEN, PRESTLEY & PARENTEAU, LLC
402 Asylum Street
Hartford, CT 06103
Telephone: (860) 246 2466
E-mail: wmadsen@mppjustice.com
AMERICAN FAMILY: Faces Murphy ADA Suit in New York
---------------------------------------------------
James Murphy, on behalf of himself and all others similarly
situated, Plaintiff v. American Family Care, Inc. doing business
as: AFC Urgent Care, Defendant, Case No. 1:18-cv-06780 (S.D. N.Y.,
July 27, 2018) arises under the Americans with Disabilities Act.
American Family Care, Inc. provides urgent care in Bound Brook,
Bridgewater, Somerville, Martinsville, Warren, Greenbrook,
Dunnellen & Middlesex, NJ.[BN]
The Plaintiff appears PRO SE.
ARIZONA: Seeks 9th Cir. Review of "Valenzuela" Suit Ruling
-----------------------------------------------------------
Defendants Doug Ducey, John S. Halikowski and Eric Jorgenson filed
an appeal from a court ruling in the lawsuit titled Lucrecia
Valenzuela, et al. v. Doug Ducey, et al., Case No.
2:16-cv-03072-DGC, in the U.S. District Court for the District of
Arizona, Phoenix.
As previously reported in the Class Action Reporter, Judge David G.
Campbell granted in part the Plaintiffs' motion to certify a
class.
Arizona law states that noncitizens may obtain Arizona driver's
licenses by presenting proof that their presence in the United
States is "authorized under federal law." The Plaintiffs are
noncitizen residents of Arizona who have deferred action
designations from the federal government and who have been issued
Employment Authorization Documents ("EADs") from the U.S.
Citizenship and Immigration Services ("USCIS"). The Plaintiffs'
EADs are coded "(c)(14)" and authorize them to work in the United
States.
The Defendants' current policy requires (c)(14) EAD holders to
satisfy procedural requirements that other EAD holders need not
satisfy to obtain an Arizona driver's license. The Plaintiffs
assert that the policy violates the Supremacy and Equal Protection
Clauses of the U.S. Constitution. They seek to represent a class
of (c)(14) holders in Arizona. They also seek to represent holders
of (a)(11) EADs, who are prohibited entirely from obtaining Arizona
driver's licenses.
The appellate case is captioned as Lucrecia Valenzuela, et al. v.
Doug Ducey, et al., Case No. 18-16383, in the United States Court
of Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Transcript must be ordered by August 22, 2018;
-- Transcript is due on September 21, 2018;
-- Appellants Doug Ducey, John S. Halikowski and Eric
Jorgenson's opening brief is due on October 31, 2018;
-- Appellees Maria Isabel Aceituno Lopez, Maria Del Carmen
Palafox,, Marcos Gonzalez, Araceli Franco Gonzalez, and
Lucrecia Rivas Valenzuela's answering brief is due on
November 30, 2018; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiffs-Appellees LUCRECIA RIVAS VALENZUELA, MARCOS GONZALEZ,
MARIA ISABEL ACEITUNO LOPEZ, ARACELI FRANCO GONZALEZ, and MARIA DEL
CARMEN PALAFOX, on behalf of themselves and all others similarly
situated, are represented by:
Tanya Broder, Esq.
NATIONAL IMMIGRATION LAW CENTER
2030 Addison Street
Berkeley, CA 94704
Telephone: (510) 663-8282
E-mail: broder@nilc.org
- and -
Nicholas David Espiritu, Esq.
Alvaro M. Huerta, Esq.
Nora A. Preciado, Esq.
Esther Sung, Esq.
Karen Cassandra Tumlin, Esq.
NATIONAL IMMIGRATION LAW CENTER
3450 Wilshire Boulevard, Suite 108-62
Los Angeles, CA 90010
Telephone: (213) 639-3900
E-mail: espiritu@nilc.org
huerta@nilc.org
preciado@nilc.org
sung@nilc.org
tumlin@nilc.org
- and -
Daniel R. Ortega, Jr., Esq.
ORTEGA LAW FIRM, P.C.
361 East Coronado Road, Suite 101
Phoenix, AZ 85004
Telephone: (602) 386-4455
E-mail: ortegalaw@bellsouth.net
Defendants-Appellants DOUG DUCEY, Governor of the State of Arizona,
in his official capacity; JOHN S. HALIKOWSKI, Director of the
Arizona Department of Transportation, in his official capacity; and
ERIC JORGENSON, Director of the Motor Vehicle Division of the
Arizona Department of Transportation, in His official capacity, are
represented by:
Sean Thomas Hood, Esq.
Douglas C. Northup, Esq.
FENNEMORE CRAIG P.C.
2394 East Camelback Road
Phoenix, AZ 85016
Telephone: (602) 916-5475
E-mail: shood@fclaw.com
dnorthup@fclaw.com
ARTIFICIAL GRASS: Has Made Unsolicited Calls, "Bacon" Suit Claims
-----------------------------------------------------------------
ADRIAN BACON, individually and on behalf of all others similarly
situated, Plaintiff v. ARTIFICIAL GRASS LIQUIDATORS LOCATION 1,
INC.; and DOES 1 through 10, inclusive, Defendants, Case No.
8:18-cv-01220-JLS-ADS (C.D. Cal., July 10, 2018) alleges that
Defendants has made unsolicited calls in violation of the Telephone
Consumer Protection Act.
According to the complaint, the Defendants conducted a wide scale
telemarketing campaigns and repeatedly made contact with consumers'
telephones -- whose numbers appear on the National Do Not Call
Registry -- without consent, all in violation of the Telephone
Consumer Protection Act
Artificial Grass Liquidators Location 1, Inc. is a California
company with principal place of business at Temecula, California.
[BN]
The Plaintiff is represented by:
John P. Kristensen, Esq.
David L. Weisberg, Esq.
Christina M. Le, Esq.
KRISTENSEN WEISBERG, LLP
12540 Beatrice Street, Suite 200
Los Angeles, CA 90066
Telephone: 310-507-7924
Facsimile: 310-507-7906
E-mail: john@kristensenlaw.com
david@kristensenlaw.com
christina@kristensenlaw.com
BA-KER TANK: Wilson Suit Moved to Northern District of Texas
------------------------------------------------------------
The class action lawsuit titled Cory Wilson, and all others
similarly situated under 29 U.S.C. section 216(B), the Petitioner,
v. BA-KER Tank Head Company, Inc., the Respondent, Case No.
4:18-cv-00346, was transferred from the U.S. District Court for the
Eastern District Texas, to the U.S. District Court for the Northern
District of Texas (Fort Worth) on July 19, 2018. The District Court
Clerk assigned Case No. 4:18-cv-00588-A to the proceeding. The case
is assigned to the Hon. Judge John McBryde.
Baker Tankhead Inc. manufactures non-code tank heads.[BN]
Attorneys for Petitioner:
Drew Nicholas Herrmann, Esq.
HERRMANN LAW, PLLC
801 Cherry Street, Suite 2365
Fort Worth, TX 76102
Telephone: (817) 479 9229
Facsimile: (817) 887 1878
E-mail: drew@herrmannlaw.com
Attorneys for Respondent:
Jay Kevin Rutherford, Esq.
JACKSON WALKER LLP - FORT WORTH
777 Main Street, Suite 2100
Fort Worth, TX 76102
Telephone: (817) 334 7200
Facsimile: (817) 334 7290
E-mail: jrutherford@jw.com
BASF AG: CUE Suit Alleges Sherman Act Violations
------------------------------------------------
C.U.E., Inc., individually and on behalf of all others similarly
situated v. BASF AG, BASF Corp., Bayer AG, Bayer Corp., Covestro
AG, Covestro LLC, DowDuPont Inc., Dow Chemical Co., Huntsman Corp.,
Huntsman International LLC, Lanxess AG, Lanxess Co., MCNS
Polyurethanes USA, Inc., Mitsui Chemicals, Inc., Mitsui Chemicals
America, Inc., Mitsui Chemicals & SKC Polyurethanes, Inc., Wanhua
Chemical Group Co., Ltd., Wanhua Chemical (America) Co. Ltd.,
Wanhua Chemical US Holding, Inc., Case No. 2:18-cv-11439 (D. N.J.,
July 6, 2018), seeks injunctive relief and to recover treble
damages, attorneys' fees, litigation expenses, and court costs, for
violations of the Sherman Act of 1980 and the Clayton Act of 1914.
The class action involves a long-standing conspiracy among
Defendants to fix the price of methylene diphenyl diisocyanate and
toluene diisocyanate, collectively referred to herein as
"Isocyanates." Isocyanates are chemicals primarily used in the
production of polyurethane products.
The Plaintiff C.U.E., Inc. is a Pennsylvania corporation
headquartered at 11 Leonberg Rd., Cranberry Township, Pennsylvania.
During the Class Period, C.U.E. purchased Isocyanates directly from
one or more defendants, and was injured in its business or property
by reason of the antitrust violations alleged in this complaint.
The Defendants are the leading manufacturers of Isocyanates sold in
the United States. [BN]
The Plaintiff is represented by:
Peter S. Pearlman, Esq.
COHN LIFLAND PEARLMAN
HERRMANN & KNOPF LLP
Park 80 West - Plaza One
250 Pehle Avenue, Suite 401
Saddle Brook, NJ 07663
Tel: (201) 845-9600
Fax: (201) 845-9423
E-mail: psp@njlawfirm.com
- and -
Jason S. Hartley
HARTLEY LLP
500 West C Street, Suite 1750
San Diego, CA 92101
Tel: (619) 400-5822
Fax: (619) 400 5832
E-mail: hartley@hartleyllp.com
BURROW GLOBAL: Caviel Suit Seeks to Recover OT Pay under FLSA
-------------------------------------------------------------
Charlie Caviel, individually, and on behalf of all others similarly
situated v. Burrow Global Services, LLC and Burrow Global, LLC,
Case No. 4:18-cv-02327 (S.D. Tex., July 6, 2018), seeks to recover
overtime wages under the Fair Labor Standards Act.
The Plaintiff worked for the Defendants as a piping designer. The
Plaintiff is a resident of Houston, Texas.
Burrow Global, LLC is a full-service Engineering, Procurement and
Construction Company with specialty expertise in automation,
industrial buildings and I&E Construction. [BN]
The Plaintiff is represented by:
Dennis A. Clifford, Esq.
THE CLIFFORD LAW FIRM, PLLC
712 Main Street, Suite 900
Houston, TX 77002
Tel: (713) 999-1833
Fax: (866) 232-0999
E-mail: dennis@cliffordemploymentlaw.com
CARDO WINDOWS: DeFranza Suit Alleges TCPA Violation
---------------------------------------------------
John DeFranza, individually, and on behalf of all others similarly
situated v. Cardo Windows Inc., dba Castle Windows, Case No.
1:18-cv-11447 (D. N.J., July 8, 2018), is brought against the
Defendant for violation of the Telephone Consumer Protection Act by
making unsolicited, autodialed calls to consumers without their
consent.
The Plaintiff DeFranza is a resident of Cherry Hill, NJ.
The Defendant Cardo Windows, Inc. dba Castle Windows is
headquartered in Mt Laurel, NJ. Defendant conducts business
throughout this District, the State of New Jersey, and throughout
the United States. The Defendant is a home improvement company.
[BN]
The Plaintiff is represented by:
Stefan Coleman, Esq.
LAW OFFICES OF STEFAN COLEMAN, P.A.
1072 Madison Ave. #1
Lakewood, NJ 08701
Tel: (877) 333-9427
Fax: (888) 498-8946
E-mail: law@stefancoleman.com
CBOE EXCHANGE: LRI Invest Suit Moved to N.D. Illinois
-----------------------------------------------------
LRI INVEST S.A., individually and on behalf of all others similarly
situated, the Plaintiff, v. CBOE EXCHANGE, INC., CBOE GLOBAL
MARKETS, INC., CBOE FUTURES EXCHANGE, LLC, and JOHN DOES, the
Defendants, Case No. 1:18-cv-06007, 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 Illinois (Chicago) on
July 19, 2018. The Northern District of Illinois Court Clerk
assigned Case No. 1:18-cv-04892 to the proceeding. The case is
assigned to the Hon. Judge Manish S. Shah.
The case is an antitrust class action against Defendants concerning
(i) Volatility Index Futures or Options traded in the United States
since January 1, 2009; and (ii) Volatility Index Exchange-traded
products since January 1, 2009. The Volatility Index is known under
its ticker symbol "VIX". VIX is a benchmark index created by
Defendant CBOE Exchange, Inc., a wholly owned subsidiary of CBOE
Global Markets, Inc.[BN]
Counsel for LRI Invest S.A.:
Michael M. Buchman, Esq.
Christopher F. Moriarty, Esq.
Erin C. Durba, Esq.
Michelle C. Zolnoski, Esq.
William H. Narwold, Esq.
MOTLEY RICE LLC
28 Bridgeside Blvd.
Mt. Pleasant, SC 29464
Telephone: (843) 216 9000
Facsimile: (843) 216 9450
E-mail: cmoriarty@motleyrice.com
mbuchman@motleyrice.com
edurba@motleyrice.com
mzolnoski@motleyrice.com
bnarwold@motleyrice.com
- and -
Deborah M. Sturman, Esq.
STURMAN LLC
600 Third Avenue, Suite 2101
New York, NY 10016
Telephone: (212) 367 7017
E-mail: sturman@sturman.ch
CHEMICAL & MINING: Bid for UK Judicial Assistance in "Villella" OKd
-------------------------------------------------------------------
In the case, MEGAN VILLELLA, individually, and on behalf of all
others similarly situated, Plaintiff, v. CHEMICAL & MINING CO. OF
CHILE INC., Defendant, Case No. 15 Civ. 2106 (ER) (S.D. N.Y.),
Judge Edgardo Ramos of the U.S. District Court for the Southern
District of New York granted the Defendant's motion for the
issuance of a letter of request, pursuant to Chapter I of the Hague
Convention on the Taking of Evidence Abroad in Civil or Commercial
Matters.
The putative class action is brought on behalf of all individuals
who purchased American Depository Shares in the Defendant. Lead
Plaintiff, the Council of the Borough of South Tyneside Acting in
Its Capacity as the Administering Authority of the Tyne and Wear
Pension Fund, alleges that SQM violated Section 10(b) of the
Securities Exchange Act of 1934 and Rule 10b-5, promulgated
thereunder.
The dispute in the case centers on the allegation that SQM's former
CEO Patricio Contesse illegally funneled money to Chilean
politicians by authorizing SQM to pay phony invoices for services
never actually rendered. As relevant here, the Court denied the
Defendant's motion to dismiss with respect to the Plaintiff's
allegation that SQM made materially false and misleading statements
concerning (i) its compliance with applicable laws, (ii) the
effectiveness of its internal controls, and (iii) the accuracy of
its financial statements regarding improper payments made by SQM's
then-CEO, Contesse, to Chilean political figures.
The parties commenced discovery in May 2017. On May 25, 2017, SQM
served its first request for production of documents. As part of
that request, SQM sought the Plaintiff's communications, including
communications with its investment manager, Sarasin and Partners
LLP, a London-based asset manager, related to the purchase or sale
of SQM securities.
On Aug. 9, 2017, the Plaintiff produced the investment management
agreement that governed its relationship with Sarasin and which
specified that Sarasin had, subject to specified limitations, full
discretion to make investment decisions on the Plaintiff's behalf.
Following communications between the parties, the Plaintiff
ultimately agreed to search for and produce, responsive,
non-privileged communications between the Plaintiff and its
investment managers concerning the Plaintiff's investment in SQM.
On Jan. 10, 2018, the Plaintiff filed a motion for class
certification,and, on Jan. 19, 2018, it produced several
communications between the Plaintiff and Sarasin. The Defendant
suggests that a reasonable inference to be drawn from the email
chain is that Sarasin was fully aware of the governance issues on
the SQM board and would have invested in SQM even had it known of
Contesse's fraudulent payments. The Defendant therefore asserts
that Sarasin cannot be presumed to have relied on the integrity of
the market price of the securities in making its investment
decision.
In view of this email chain, and the Defendant's recognition that
the production failed to include documents related to the
liquidation of Plaintiff's holdings, on Jan. 29, 2018, SQM asked
the Plaintiff to produce all communications concerning the latter's
and/or Sarasin's decision to sell the Plaintiff's holdings of SQM
shares, and "confirm" that it would produce documents in Sarasin's
physical possession because, SQM asserted, those documents were in
fact under Plaintiff's control.
In response, the Plaintiff disagreed that Sarasin's documents were
under its control and disputed how documents that were not shared
with Plaintiff could be relevant to any claims or defenses in this
action. Nonetheless, it agreed as "a courtesy" to ask Sarasin to
produce a reasonable subset of documents concerning "Sarasin's
decision to purchase or sell SQM securities." The Defendant
declined to take the Plaintiff up on its offer and, following
Sarasin's declination to voluntarily produce the requested
information, filed the instant motion instead.
In the motion, the Defendants ask the Court to issue a letter of
request, also known as "letters rogatory," for judicial assistance
from the United Kingdom to direct Sarasin to provide discovery,
pursuant to Chapter I of the Hague Convention and Federal Rule of
Civil Procedure 28(b). Specifically, it seeks discovery from
Sarasin and testimony from Henry Boucher, Sarasin's Deputy Chief
Investment Officer, with whom the Plaintiff directly corresponded,
regarding Sarasin's investment strategy in SQM. The Defendant
asserts that such discovery is relevant to the question of whether
the Plaintiff in fact relied on SQM's alleged misstatements in
purchasing shares in SQM.
Judge Ramos finds that if courts could not look to an investment
adviser's knowledge, the plaintiffs could immunize themselves from
reliance challenges by outsourcing their investment decisions to
their investment advisers, or other agents. Where, as here, a
plaintiff wholly outsources their decision making to an investment
adviser who acts as their agent, that agent's decision-making
calculus is relevant to the reliance inquiry.
Because there is no dispute that the discovery the Defendant seeks
is relevant to Sarasin's reliance on the integrity of SQM's market
price, and because significant sums of money are at stake in this
matter, the Judge finds that the request is relevant and
proportional to the needs of the case.
Accordingly, Judge Ramos granted the Defendant's motion for the
issuance of a letter of request. The Clerk of Court is
respectfully directed to terminate the motion.
A full-text copy of the Court's June 12, 2018 Memorandum Opinion
and Order is available at https://is.gd/KC4xuJ from Leagle.com.
Megan Villella, Plaintiff, represented by Jeremy Alan Lieberman --
jalieberman@pomlaw.com -- Patrick Vincent Dahlstrom --
pdahlstrom@pomlaw.com -- at Pomerantz LLP; Jason Allen Zweig --
jasonz@hbsslaw.com -- at Hagens Berman Sobol Shapiro LLP.
Lynn Molinaro, Plaintiff, represented by Aelish M. Baig --
aelishb@rgrdlaw.com -- Brian E. Cochran -- bcochran@rgrdlaw.com --
David Avi Rosenfeld -- DRosenfeld@rgrdlaw.com -- David C. Walton --
davew@rgrdlaw.com -- Matthew Melamed -- mmelamed@rgrdlaw.com --
Samuel Howard Rudman -- SRudman@rgrdlaw.com -- at Robbins Geller
Rudman & Dowd LLP; Frank James Johnson --
FrankJ@JohnsonandWeaver.com -- at Johnson & Weaver, LLP.
Anton Mandelstam, Movant, represented by Phillip C. Kim --
pkim@rosenlegal.com -- at The Rosen Law Firm P.A.
Sam Villella and Leroy Robinson Movants, represented by Jeremy Alan
Lieberman -- jalieberman@pomlaw.com -- at Pomerantz LLP.
Marty Sholtis, Movant, represented by Lesley Frank Portnoy --
lportnoy@glancylaw.com -- at Glancy Prongay & Murray LLP.
Richard Gielata, Movant, Pro Se.
The Council of the Borough of South Tyneside Acting in Its Capacity
as the Administering Authority of the Tyne and Wear Pension Fund,
Movant, represented by Aelish M. Baig -- aelishb@rgrdlaw.com --
Matthew Melamed -- mmelamed@rgrdlaw.com -- David Avi Rosenfeld --
DRosenfeld@rgrdlaw.com -- John H. George -- jgeorge@rgrdlaw.com --
Sabrina Elsa Tirabassi -- stirabassi@rgrdlaw.com -- at Robbins
Geller Rudman & Dowd LLP.
Arkansas Public Employees Retirement System, Movant, represented by
Gerald H. Silk -- jerry@blbglaw.com -- at Bernstein Litowitz Berger
& Grossmann LLP.
Chemical & Mining Co. of Chile Inc., Defendant, represented by
Grant Richard Mainland -- at Wachtell, Lipton, Rosen; Scott
Alexander Edelman -- sedelman@milbank.com -- at Milbank, Tweed,
Hadley & McCloy LLP.
CHESNUT HOLDINGS: Underpays Superintendents, Victoria Alleges
-------------------------------------------------------------
RAMON VICTORIA, individually and on behalf of others similarly
situated, Plaintiff v. CHESNUT HOLDINGS OF NEW YORK INC. D/B/A
CHESNUT HOLDINGS; 219 LLC D/B/A 219 EAST 196TH ST; CESAR MORALES;
and JONATHAN WEINER, Defendants, Case No. 1:18-cv-06085 (S.D.N.Y.,
July 5, 2018) is an action against the Defendants to recover unpaid
minimum wages and overtime compensation in violation of the Fair
Labor Standards Act.
Mr. Victoria was employed by the Defendants as superintendent for
the buildings located at 5676 Riverdale Ave, Bronx, NY 10471 and
219 East 196th St, Bronx, NY 10458, from October 30, 2017 to April
23, 2018.
Chestnut Holdings Inc of New York operates as a holding company.
The Company, through its subsidiaries, provides real estate
investment services. Chestnut Holdings conducts its business in the
United States. [BN]
The Plaintiff is represented by:
Michael Fillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
CK TOURS: Chang Suit Alleges FLSA and NYLL Violations
-----------------------------------------------------
Xuguang Chang, Jun Ning, Haito Wang aka Leo Wang, and Chuan Hui
Wang, on their own behalf and on behalf of others similarly
situated v. CK Tours, Inc., Win Li Tours, Inc., Skyliner Travel &
Tour Bus Corp, Hyon-Sak Kim, and Joanna Lau, Case No. 1:18-cv-06174
(S.D. N.Y., July 7, 2018), seeks to recover unpaid minimum wage,
unpaid overtime wages, liquidated damages, prejudgment and
post-judgment interest, and attorneys' fees and cost under the Fair
Labor Standards Act and the New York Labor Law.
From March 1, 2014 to September 30, 2015, the Plaintiff Xuguang
Chang, was employed by the Defendants to work as a casino bus tour
guide for CK Tours, Inc., dba CK Tours, Win Li Tours, Inc., dba Win
Li Tour, Skyliner Travel & Tour Bus Corp dba Skyliner Travel.
From July 1, 2013 to May 05, 2016, the Plaintiff Jun Ning was
employed by Defendants to work as a casino bus tour guide for CK
Tours, Inc., dba CK Tours, Win Li Tours, Inc., dba Win Li Tour,
Skyliner Travel & Tour Bus Corp dba Skyliner Travel.
From August 1, 2013 to November 30, 2015, the Plaintiff Haitao Wang
aka Leo Wang was employed by Defendants to work as a casino bus
tour guide for CK Tours, Inc., dba CK Tours, Win Li Tours, Inc.,
dba Win Li Tour, Skyliner Travel & Tour Bus Corp dba Skyliner
Travel.
From October 1, 2013 to January 31, 2016, the Plaintiff Chuan Hui
Wang was employed by Defendants to work as a casino bus tour guide
for CK Tours, Inc., dba CK Tours, Win Li Tours, Inc., dba Win Li
Tour, Skyliner Travel & Tour Bus Corp dba Skyliner Travel.
The Defendant CK Tours, Inc dba CK Tours and dba Da Xing Tours is a
domestic business corporation organized under the laws of the State
of New York with a principal address at 39-15 Main Street, Suite
401B, Flushing, NY 11354 and 135-37 40th Road, Flushing, NY 11354.
While CK Tours sells bus tickets on the Skyliner Travel to gamblers
travelling to the Foxwoods Resorts Casino at 350 Trolley Line
Boulevard, Mashantucket, CT 06338 from Flushing, Queens; Win Li
Tours sells bus tickets on the Skyliner Travel to gamblers
travelling to the the Foxwoods Resorts Casino at 350 Trolley Line
Boulevard, Mashantucket, CT 06338 from Chinatown, Manhattan.
The Individual Defendants are officers, directors, managers and
majority shareholders or owners of the Corporate Defendant and
being among the ten largest shareholders and LLC members, are
individually responsible for unpaid wages under the New York
Business Corporation Law and Limited Liability Company Law, says
the complaint. [BN]
The Plaintiffs are represented by:
John Troy, Esq.
TROY LAW, PLLC
41-25 Kissena Boulevard Suite 119
Flushing, NY 11355
Tel: (718) 762-1324
CLIF BAR & CO: Martinez Files ADA Class Action in New York
----------------------------------------------------------
A lawsuit arising under the Americans with Disabilities Act has
been filed against Clif Bar & Company. The case is styled as Pedro
Martinez, individually and as the representative of a class of
similarly situated persons, Plaintiff v. Clif Bar & Company,
Defendant, Case No. 1:18-cv-04233 (E.D. N.Y., July 26, 2018).
Clif Bar & Company is an American company that produces organic
foods and drinks. The company's flagship product, CLIF Bar, was
created by Gary Erickson and Lisa Thomas. The company is based in
Emeryville, California, and is privately held.[BN]
The Plaintiff appears PRO SE.
COCA-COLA COMPANY: Class Certification Bid in Fradella Suit Denied
------------------------------------------------------------------
In the lawsuit entitled PAM FRADELLA, the Plaintiff, THE COCA-COLA
COMPANY, ET AL., the Defendants, Case No. 2:17-cv-09622-SM-DEK
(E.D. La.), the Hon. Judge Susie Morgan entered an order on July
26, 2018 denying a request to certify a class of:
"all Louisiana residents who, any time from September 1, 2016
to present, purchased a bottle of Gold Peak Teat of any flavor and
any size, that contained visible mold or some other visible
deleterious substance, and suffered economic loss."
The Court agrees with Defendants that Chavez v. Blue Sky Natural
Beverage Co., 268 F.R.D. 365, 377 (N.D. Cal. 2010), which was cited
by the Plaintiff, is readily distinguishable from the case at bar.
In Chavez, the number of cans sold was essentially the same as the
number of consumers who were affected by Blue Sky's alleged false
advertising. Thus, the number of cans sold was a strong indicator
of how many potential class members there were. In this case, that
is not so. For a purchaser to fit the class definition in this
case, not only must the consumer have purchased the product, the
product must also have contained mold. Although millions of bottles
of Gold Peak Tea were sold in Louisiana during the relevant time
period, the number of persons who actually fit the putative class
definition cannot be reasonably inferred from the evidence
presented.
COLONY CAPITAL: Weitzul Sues over Colony NorthStar Merger
---------------------------------------------------------
DIANNE WEITZUL, Individually and on Behalf of All Others Similarly
Situated, the Plaintiff, v. COLONY CAPITAL, INC. (f/k/a SECURITIES
ACT OF 1933 COLONY NORTHSTAR, INC., RICHARD B. SALTZMAN, THOMAS J.
BARRACK, JR., DARREN J. TANGEN, MARK M. HEDSTROM, RONALD M.
SANDERS, DAVID T. IIAMAMOTO, JONATHAN A. LANGER, ALBERT TYLIS, and
DEBRA A. HESS, the Defendants, Case No. BC714169 (Cal. Super. Ct.,
July 19, 2018), asserts strict liability claims under sections 11,
12, and 15 of the Securities Act of 1933 against Colony NorthStar,
certain current and former Colony NorthStar officers and directors,
and certain former officers and directors of NSAM, CC, and NRF.
On January 10, 2017, Colony NorthStar, Inc. (NYSE:CLNS) announced
the completion of the merger of Colony Capital, Inc. (NYSE: CLNY),
NorthStar Asset Management Group Inc. (NYSE: NSAM) and NorthStar
Realty Finance Corp. (NYSE: NRF). At the time of the announcement,
Colony NorthStar had an equity market capitalization of
approximately $9 billion and assets under management of $58
billion, managing capital on behalf of its stockholders,
institutional and retail investors in private funds and non-traded
and traded real estate investment trusts and 1940 Act companies.
The transaction was originally announced on June 3, 2016 and
approved by all three companies' stockholders at their respective
special meetings held on December 20, 2016.
Under the deal, the companies agreed to combine in an all-stock
merger of equals. NSAM shareholders would own approximately
32.85%, Colony shareholders would own approximately 33.25% and NRF
shareholders would own approximately 33.90% of the combined company
on a fully diluted basis. NSAM shareholders would also receive, in
addition to its regular quarterly dividend, a special cash dividend
equal to $128 million, which represents a one-time distribution of
excess NSAM taxable earnings and profits.
The Plaintiff brings this class action on behalf of all former
stockholders of NSAM, CC, and NRF who acquired Colony NorthStar
common stock pursuant or traceable to the Form S-4 Registration
Statement and Prospectus issued in connection with the January 2017
merger of NSAM, CC, and NRF.
Colony NorthStar is a global investment management with $43 billion
in assets under management. The Company is headquartered at 515 S.
Flower Street, Los Angeles, California.[BN]
The Plaintiff is represented by:
Brian J. Robbins, Esq.
Stephen J. Oddo, Esq.
Eric M. Car Ring, Esq.
600 B Street, Suite 1900
ROBBINS ARROYO LLP
San Diego, CA92101
Telephone: (619) 525 3990
Facsimile: (619) 525 3991
E-mail: brobbins@robbinsarroyo.com
soddo@robbinsarroyo.com
ecarrino@robbinsarroyo.com
CORELOGIC CREDCO: S. King Suit Transferred to S.D. Calif.
---------------------------------------------------------
Judge M. Hannah Lauck of the U.S. District Court for the Eastern
District of Virginia, Richmond Division, transferred the case,
SHAKEENA KING, on behalf of herself and a class of similarly
situated individuals, Plaintiff, v. CORELOGIC CREDCO, LLC,
Defendant, Civil Action No. 3:17cv761 (E.D. Va.), U.S. District
Court for the to the Southern District of California.
Corelogic is a California limited liability company that conducts
business as a consumer reporting agency and "reseller" of consumer
reports. As a reseller of consumer reports, Corelogic assembles
and merges information contained in the databases of the three
nationwide consumer reporting agencies: Experian, Equifax, and
TransUnion ("CRAs"). Corelogic then resells this information to
third parties in a so-called "tri-merged credit report.
King is a Virginia resident. On Jan. 31, 2016, King applied for a
mortgage loan with NVR Mortgage. NVR Mortgage requested a copy of
her credit report from Corelogic. The same day, Corelogic
furnished to NVR Mortgage a tri-merge credit report containing
information Corelogic obtained from Experian, Equifax, and
TransUnion. The tri-merge credit report that Corelogic furnished
attributed many derogatory accounts to King, including a judgment,
a medical collection account, a car repossession, a mortgage
account, and several charged-off credit card accounts. King
contends that the information Corelogic furnished was inaccurate
because the derogatory accounts belonged to her sister.
King's Complaint alleges one count styled as a class action: a
violation of 15 U.S.C. Section 1681 e(b). She contends that
Corelogic failed to adopt reasonable procedures to assure maximum
possible accuracy in the preparation of consumer reports. King
asserts that Corelogic's conduct was willful and carried out in
reckless disregard for a consumer's rights under the FCRA because
Corelogic has actual knowledge of the credit reporting problems,
but deliberately ignores the problems because reviewing and/or
cross-checking the data would reduce its bottom line.
King seeks to certify a nationwide class consisting of all natural
persons who were the subject: (1) of a consumer report furnished by
[Corelogic] to a third party within the five years preceding the
filing date of the Complaint; (2) where the personal identifying
information section of its consumer report contained a name, date
of birth, or social security number that: (i) did not match the
information provided by the person requesting the report or, (ii)
varied from the information provided by the other consumer
reporting agencies.
On Nov. 14, 2017, King filed her class action complaint. Corelogic
answered on Jan. 25, 2018, denying any wrongdoing. The same day,
Corelogic filed the Motion to Transfer Venue to the Southern
District of California. The matter was fully briefed, and on April
11, 2018, the judge previously presiding over the case recused
himself. The case was randomly reassigned.
Judge Lauck finds that although King has brought the action in her
home forum, alone cant-tot defeat the Motion to Transfer,
especially because her choice of forum receives less weight in the
putative class case. Furthermore, because the Eastern District of
Virginia is not home to the nucleus of operative facts, King's
choice of forum is entitled to less weight. The convenience to the
parties and witnesses strongly favors transfer. Finally, the
interest of justice also suggests that transfer is proper. Based
on the facts of the case, the balance of the relevant factors
weighs in favor of transferring the case to the United States
District Court for the Southern District of California.
Accordingly, the Judge granted the Defendant's Motion to Transfer.
An appropriate Order will issue.
A full-text copy of the Court's June 12, 2018 Memorandum Opinion is
available at https://is.gd/hB4pYf from Leagle.com.
Shakeena King, Plaintiff, represented by Kristi Cahoon Kelly --
kkelly@kellyandcrandall.com -- Kelly & Crandall PLC, Andrew Joseph
Guzzo -- aguzzo@kellyandcrandall.com -- Kelly & Crandall PLC &
Casey Shannon Nash -- casey@kellyandcrandall.com -- Kelly &
Crandall PLC.
Corelogic Credco, LLC, Defendant, represented by David Neal Anthony
-- david.anthony@troutman.com -- Troutman Sanders LLP & Timothy
James St. George -- tim.st.george@troutman.com -- Troutman Sanders
LLP.
DAVIDSON HOTEL: Parks Seeks OT & Minimum Wages under Labor Code
---------------------------------------------------------------
THOMAS PARKS, individually, and on behalf of other members of the
general public similarly situated, the Plaintiff, v. DAVIDSON HOTEL
COMPANY LLC, a Delaware limited liability company; and DOES 1
through 10, inclusive, the Defendants, Case No.
37-2018-00036699-CU-OE-CTL (Cal. Super. Ct., July 23, 2018), seeks
to recover unpaid overtime and minimum wages, pursuant to the
California Labor Code.
According to the complaint, the Plaintiff and class members were
not paid for all hours worked because all hours worked were not
recorded. The Defendants knew or should have known that Plaintiff
and class members were entitled to receive certain wages for
overtime compensation and that they were not receiving certain
wages for overtime compensation.
Davidson Hotel specializes in the operation and renovation of
hotels and resorts.[BN]
The Plaintiff is represented by:
Robert Drexler, Esq.
Jonathan Lee, Esq.
Ariel Harman-Holmes, Esq.
CAPSTONE LAW APC
1875 Century Park East, Suite 1000
Los Angeles, CA 90067
Telephone: (310) 556 4811
Facsimile: (310) 943 0396
E-mail: Robert.Drexler@capstonelawyers.com
Jonathan.Lee@capst0nelaw7ers.c0m
Ariel.Harman-Holmes@capstonelawyers.com
DCT INDUSTRIAL: Stephen Bushansky Sues over Prologis Merger
-----------------------------------------------------------
STEPHEN BUSHANSKY, individually and on behalf of all others
similarly situated, Plaintiff v. DCT INDUSTRIAL TRUST, INC.; THOMAS
F. AUGUST; MARILYN A. ALEXANDER; RAYMOND B. GREER; JOHN S. GATES
JR.; TRIPP H. HARDIN III; TOBIAS HARTMANN; PHILIP L. HAWKINS; and
MARCUS L. SMITH, Defendants, Case No. 1:18-cv-01758 (D. Colo., July
10, 2018) alleges that the Defendants violated the Securities and
Exchange Act over the proposed transaction where DCT will be
acquired by Prologis, Inc.
On April 29, 2018, DCT and DCT Industrial Operating Partnership LP,
a Delaware limited partnership issued a press release announcing
entry into an Agreement and Plan of Merger with Prologis, and
Prologis, L.P., a Delaware limited partnership. Upon the terms and
subject to the conditions set forth in the Merger Agreement, the
Partnership will merge with and into Prologis OP, with Prologis OP
surviving the merger; and immediately following the Partnership
Merger, DCT will merge with and into Prologis, with Prologis
surviving the merger.
At the effective time of the Company Merger, each share of DCT
common stock shall automatically be converted into the right to
receive 1.02 validly issued, fully paid and non-assessable shares
of Prologis common stock.
In an attempt to secure stockholder support for the Proposed
Transaction, on June 8, 2018, Prologis filed a Form S-4
Registration Statement (as amended on July 6, 2018) with the SEC
containing a joint proxy statement/prospectus. The Registration
Statement, which recommends that DCT stockholders vote in favor of
the Proposed Transaction, omits and/or misrepresents material
information concerning, among other things: (i) DCT and Prologis'
financial projections, relied upon by DCT's financial advisor,
Merrill Lynch, Pierce, Fenner & Smith Incorporated ("BofA Merrill
Lynch") in its financial analyses; (ii) the valuation analyses
prepared by BofA Merrill Lynch in connection with the rendering of
its fairness opinion; (iii) material information concerning the
sale process leading up to the Proposed Transaction; and (iv) BofA
Merrill Lynch's potential conflicts of interest. The failure to
adequately disclose such material information constitutes a
violation of Sections 14(a) and 20(a) of the Exchange Act as
stockholders need such information to cast a fully informed vote in
connection with the Proposed Transaction.
Unless remedied, DCT's public stockholders will be forced to make a
voting decision on the Proposed Transaction without full disclosure
of all material information concerning the Proposed Transaction
being provided to them. Plaintiff seeks to enjoin the stockholder
vote on the Proposed Transaction unless and until such Exchange Act
violations are cured.
DCT Industrial -- http://www.dctindustrial.com/-- is a logistics
real estate company specializing in the ownership, development,
acquisition, leasing and management of bulk-distribution and
light-industrial properties in high-demand distribution markets in
the United States. As of March 31, 2018, the Company owned
interests in approximately 73.7 million square feet of properties
leased to approximately 840 customers. DCT maintains a Baa2 rating
from Moody's Investors Service and a BBB from S&P Global
Ratings.[BN]
The Plaintiff is represented by:
Richard A. Acocelli, Esq.
WEISS LAW LLP
1500 Broadway, 16th Floor
New York, NY 10036
Telephone: (212) 682-3025
Facsimile: (212) 682-3010
E-mail: racocelli@weisslawllp.com
DUKE ENERGY: 11th Cir. Affirms Decision in Florida Suit
-------------------------------------------------------
Jim Tyrrell, writing for Florida Record, reports that the United
States Court of Appeals for the Eleventh Circuit affirmed a
district court's decision in favor of Duke Energy Florida and
Florida Power & Light Company in a putative class-action lawsuit.
The appellate court upheld the U.S. District Court for the Southern
District of Florida's judgment in a case concerning utility
companies raising rates to fund nuclear plant construction.
The plaintiffs, William Newtown and Noreen Allison, argued against
the increase in utility rates charged to Duke Energy Florida and
Florida Power & Light Company customers under the Florida Renewable
Energy Technologies and Energy Efficiency Act (Florida's Energy
Act). The act led to the creation of the Nuclear Cost Recovery
System (NCRS), which allows for utility companies to raise electric
utility rates in order to fund the creation of nuclear power
plants, with the company keeping these funds even if the project is
not completed.
The plaintiffs appealed the district court decision, arguing that
they sufficiently established both their preemption claim under the
Atomic Energy Act of 1954 and their Dormant Commerce Clause (DCC)
claim.
According to the plaintiffs, the Atomic Energy Act preempts the
NCRS by making the federal government the only entity with the
ability to oversee the construction of nuclear plants.
"Plaintiffs point to no cases holding (nor authorities suggesting)
that state laws promoting investment in new nuclear plants, or
shifting the costs of nuclear plant construction, are preempted by
the Atomic Energy Act," the appellate court said.
The court of appeals affirmed the district court's decision that
the NCRS is not preempted by the Atomic Energy Act.
The plaintiffs claimed that the utility companies were in violation
of the DCC as the companies were improperly impacting interstate
commerce. The court of appeals affirmed the district court decision
to dismiss these claims, as the plaintiffs are Florida customers
and the utility companies are Florida companies and not states.
"Plaintiffs' interests are well beyond the zone the DCC is meant to
protect," the court of appeals stated. [GN]
ENVISION HEALTHCARE: 11th Circuit Appeal Filed in Quilty Suit
-------------------------------------------------------------
Plaintiff Stephen M. Quilty filed an appeal from a court ruling in
the lawsuit styled Stephen Quilty v. EVHC, et al., Case No.
8:18-cv-00341-VMC-CPT, in the U.S. District Court for the Middle
District of Florida.
As previously reported in the Class Action Reporter, the Plaintiff
seeks to recover damages and injunctive relief arising from the
Defendants' alleged unlawful and deceptive acts and practices in
the Florida healthcare market for emergency room physician
services.
The Plaintiff and the proposed Class are commercially insured
consumers of ED healthcare services, who sought emergency medical
care from physicians employed by, or affiliated with, the
Defendants.
According to the complaint, since at least 2011, the Defendants
have engaged in a deliberate corporate scheme to raise revenue and
profits by refusing to contract with many commercial payors
throughout Florida. Without network contracts, the Defendants may
set any price for services rendered. The Defendants initially seek
reimbursement for services from the patient's insurance company.
Some payors may offer the Defendants the "usual and customary"
rates -- i.e. the rates typically paid by that insurer to
in-network providers in that geography for similarly services
rendered -- while other payors may refuse to reimburse the
Defendants for any costs because there was no network contract.
The appellate case is captioned as Stephen Quilty v. EVHC, et al.,
Case No. 18-12748, in the United States Court of Appeals for the
Eleventh Circuit.
The briefing schedule in the Appellate Case states that the
Appellee's Certificate of Interested Persons was due July 27, 2018,
as to Appellee Envision Healthcare Corp.[BN]
Plaintiff-Appellant STEPHEN M. QUILTY, individually and on behalf
of others similarly situated, is represented by:
Frederic S. Fox, Esq.
Donald R. Hall, Esq.
KAPLAN FOX & KILSHEIMER, LLP
850 Third Ave., Floor 14
New York, NY 10022
Telephone: (212) 687-1980
E-mail: ffox@kalanfox.com
dhall@kalanfox.com
- and -
Matthew George, Esq.
Laurence D. King, Esq.
Aaron Schwartz, Esq.
KAPLAN FOX & KILSHEIMER, LLP
350 Sansome St., Suite 400
San Francisco, CA 94104
Telephone: (415) 772-4700
E-mail: mgeorge@kalanfox.com
lking@kalanfox.com
aschwartz@kalanfox.com
- and -
Thomas Bowen Rogers, Esq.
Marc A. Wites, Esq.
WITES & KAPETAN, PA
4400 N Federal Hwy.
Lighthouse Pt., FL 33064-6507
Telephone: (954) 570-8989
E-mail: mwites@witeslaw.com
trogers@wklawyers.com
Defendants-Appellees ENVISION HEALTHCARE CORP., EMCARE HOLDINGS
INC., EMCARE, INC., and BAXLEY EMERGENCY PHYSICIANS, LLC, are
represented by:
Jonathan M. Brenner, Esq.
David Jacobs, Esq.
David M. Prager, Esq.
EPSTEIN BECKER & GREEN, P.C.
1925 Century Pk E, Suite 500
Los Angeles, CA 90067
Telephone: (310) 557-9504
E-mail: jbrenner@ebglaw.com
djacobs@ebglaw.com
dprager@ebglaw.com
- and -
Jack Fernandez, Esq.
Mamie Wise, Esq.
ZUCKERMAN SPAEDER, LLP
101 E Kennedy Blvd., Suite 1200
Tampa, FL 33602
Telephone: (813) 221-1010
E-mail: jfernandez@zuckerman.com
mwise@zuckerman.com
ESCALLATE LLC: Sharon Robinson Seeks to Certify Settlement Class
----------------------------------------------------------------
In the lawsuit styled SHARON D. ROBINSON, on behalf of herself and
those similarly situated, the Plaintiff, v. ESCALLATE, LLC, the
Defendant, Case No. 2:16-cv-01174-MAH (D.N.J.), the Plaintiff asks
the Court for an order granting preliminary approval of a proposed
settlement class and related relief.
Attorneys for Plaintiff and the putative class:
Yongmoon Kim, Esq.
KIM LAW FIRM LLC
411 Hackensack Avenue, Suite 701
Hackensack NJ 07601
Telephone: (201) 273 7117
E-mail: ykim@kimlf.com
Attorneys for Escallate, LLC:
James S. Murphy, Esq.
GARRITY, GRAHAM, MURPHY, GAROFALO & FLINN
72 Eagle Rock Avenue, Suite 350
East Hanover, NJ 07936
FARMLAND PARTNERS: Bronstein Gewirtz Files Class Action Lawsuit
---------------------------------------------------------------
Bronstein, Gewirtz & Grossman, LLC, notified investors that a class
action lawsuit has been filed against Farmland Partners Inc.
("Farmland" or the "Company") (NYSE:FPI) and certain of its
officers, on behalf of shareholders who purchased or otherwise
acquired Farmland securities between May 9, 2017, to July 10, 2018,
both dates inclusive (the "Class Period"). Such investors are
encouraged to join this case by visiting the firm's site:
www.bgandg.com/fpi.
This class action seeks to recover damages against Defendants for
alleged violations of the federal securities laws under the
Securities Exchange Act of 1934.
The Complaint alleges that Defendants made materially false and/or
misleading statements and/or failed to disclose that: (1) Farmland
artificially increased its revenues by making loans to related
party tenants; (2) as a result of the foregoing, Farmland's Class
Period revenues were overstated; and (3) consequently, Farmland's
public statements were materially false and misleading at all
relevant times.
On July 11, 2018, Rota Fortunae published an online report alleging
that Farmland artificially increased revenues "by making loans to
related-party tenants who round-trip the cash back to FPI as rent"
and that "30% of [Farmland's] 2017 earnings could be made-up." The
report further stated that Farmland "neglected to disclose that the
majority of its loans have been made to two members of the
management team." Following this news, Farmland stock dropped $3.37
per share, or 38.96%, to close at $5.28 on July 11, 2018, and the
price of Farmland Partners Series B preferred stock fell $6.08 per
share, or 24.75%, to close at $18.49 on July 11, 2018.
A class action lawsuit has already been filed. If you wish to
review a copy of the Complaint you can visit the firm's site:
www.bgandg.com/fpi or you may contact Peretz Bronstein, Esq. or his
Investor Relations Analyst, Yael Hurwitz of Bronstein, Gewirtz &
Grossman, LLC at 212-697-6484. If you suffered a loss in Farmland
you have until September 10, 2018 to request that the Court appoint
you as lead plaintiff. Your ability to share in any recovery
doesn't require that you serve as a lead plaintiff.
Peretz Bronstein, Esq.
Yael Hurwitz, Esq.
Bronstein, Gewirtz & Grossman, LLC
Telephone: 212-697-6484
Email: info@bgandg.com
peretz@bgandg.com [GN]
FARMLAND PARTNERS: Kessler Topaz Files Securities Class Action
--------------------------------------------------------------
The law firm of Kessler Topaz Meltzer & Check, LLP disclosed that a
securities fraud class action lawsuit has been filed in the United
States District Court for the District of Colorado against Farmland
Partners Inc. ("Farmland") on behalf of purchasers of either
Farmland common stock (NYSE:FPI) or preferred securities
(NYSE:FPI-PB) between May 9, 2017 and July 10, 2018, inclusive (the
"Class Period").
Important Deadline Reminder: Investors who purchased Farmland
securities during the Class Period may, no later than September 10,
2018, seek to be appointed as a lead plaintiff representative of
the class. For additional information or to learn how to
participate in this action please visit
https://www.ktmc.com/new-cases/farmland-partners-inc#join.
According to the complaint, Farmland is an internally managed real
estate company that owns and seeks to acquire high-quality North
American farmland and makes loans to farmers secured by farm real
estate. Farmland purports to own or have under contract over
166,000 acres in 17 states.
The Complaint alleges that throughout the Class Period, defendants
made materially false and misleading statements regarding the
company's business, operational and compliance policies.
Specifically, defendants made false and/or misleading statements
and/or failed to disclose that Farmland made loans to related party
tenants to artificially increase its revenues and as a result,
Farmland's revenues during the Class Period were overstated and its
public statements were materially false and misleading at all
relevant times.
On July 11, 2018, Rota Fortunae published an online report alleging
that Farmland artificially increased revenues "by making loans to
related-party tenants who round-trip the cash back to FPI as rent"
and that "30% of [Farmland's] 2017 earnings could be made-up." The
report further stated that Farmland "neglected to disclose that the
majority of its loans have been made to two members of the
management team."
Following this news, the price of Farmland common stock dropped
more than 38%, and the price of Farmland Series B preferred stock
fell more than 24%.
Farmland investors may, no later than September 10, 2018, seek to
be appointed as a lead plaintiff representative of the class
through Kessler Topaz Meltzer & Check, or other counsel, or may
choose to do nothing and remain an absent class member. A lead
plaintiff is a representative party who acts on behalf of all class
members in directing the litigation. In order to be appointed as a
lead plaintiff, the Court must determine that the class member's
claim is typical of the claims of other class members, and that the
class member will adequately represent the class. Your ability to
share in any recovery is not affected by the decision of whether or
not to serve as a lead plaintiff.
If you wish to discuss this securities fraud class action or have
any questions concerning this notice or your rights or interests
with respect to these matters please;
Contact:
James Maro, Jr., Esq.
Adrienne Bell, Esq.
Kessler Topaz Meltzer & Check, LLP
280 King of Prussia Road
Radnor, PA 19087
Telephone: (888) 299-7706
(610) 667-7706
Email: info@ktmc.com
abell@ktmc.com
jmaro@ktmc.com [GN]
FCA US: Victorino Appeals Case Dismissal to 9th Cir.
----------------------------------------------------
Plaintiff Carlos Victorino filed an appeal from a court ruling in
the lawsuit entitled Carlos Victorino v. FCA US LLC, Case No.
3:16-cv-01617-GPC-JLB, in the U.S. District Court for the Southern
District of California, San Diego.
As reported in the Class Action Reporter on July 16, 2018, the
District Court granted the Defendant's Motion to Dismiss the case.
Plaintiffs Carlos Victorino and Adam Tavitian filed a putative
first amended class action complaint based on defects in the
2013-2016 Dodge Dart vehicles equipped with a Fiat C635 manual
transmission that cause their vehicles' clutches to fail and stick
to the floor. The Plaintiffs claim the "clutch pedal loses
pressure, sticks to the floor, and fails to engage/disengage gears.
As a result, the Class Vehicles exhibit stalling, failure to
accelerate, and premature failure of the Clutch System's
components, including the clutch master cylinder ("CMC") and
reservoir hose, clutch slave cylinder ("CSC") and release bearing,
clutch disc, pressure plate, and flywheel (the "clutch defect")."
The Plaintiffs alleged five causes of action for violations of
California's Consumer Legal Remedies Act (CLRA), California's
unfair competition law (UCL), breach of implied warranty pursuant
to Song-Beverly Consumer Warranty Act, breach of implied warranty
pursuant to the Magnuson-Moss Warranty Act, and unjust enrichment.
The appellate case is captioned as Carlos Victorino v. FCA US LLC,
Case No. 18-80076, in the United States Court of Appeals for the
Ninth Circuit.[BN]
Plaintiff-Petitioner CARLOS VICTORINO, individually, and on behalf
of other members of the general public similarly situated, is
represented by:
Glenn A. Danas, Esq.
John Ely Stobart, I, Esq.
Ryan H. Wu, Esq.
CAPSTONE LAW APC
1875 Century Park East, Suite 1000
Los Angeles, CA 90067
Telephone: (310) 556-4811
E-mail: Glenn.Danas@CapstoneLawyers.com
john.stobart@capstonelawyers.com
Ryan.Wu@capstonelawyers.com
Defendant-Respondent FCA US LLC, a Delaware limited liability
company, is represented by:
Edwin M. Boniske, Esq.
HIGGS FLETCHER & MACK LLP
401 West A Street
San Diego, CA 92101
Telephone: (619) 236-1551
E-mail: boniske@higgslaw.com
- and -
Stephen A. D'Aunoy, Esq.
Kathy Wisniewski, Esq.
THOMPSON COBURN LLP
One U.S. Bank Plaza
505 N. 7th Street
St. Louis, MO 63101
Telephone: (314) 552-6354
E-mail: sdaunoy@thompsoncoburn.com
kwisniewski@thompsoncoburn.com
FEDEX GROUND: Underpays Operations Managers, Stine & Payne Claim
----------------------------------------------------------------
MICHAEL STINE, and ZACH PAYNE, individually and on behalf of all
others similarly situated, Plaintiff v. FEDEX GROUND PACKAGE
SYSTEM, INC., Defendant, Case No. 2:18-cv-00114-DLB-CJS (E.D. Ky.,
July 5, 2018) is an action against the Defendant for failure to pay
minimum wage and overtime compensation in violation of the Fair
Labor Standards Act.
Mr. Stine and Mr. Payne were employed by the Defendant as
operations managers.
FedEx Ground Package System, Inc. provides business-to-business
package shipping and ground delivery services. The company was
formerly known as Roadway Package System, Inc. and changed its name
to FedEx Ground Package System, Inc. in 1998. The company was
incorporated in 1984 and is based in Coraopolis, Pennsylvania with
additional offices in Independence, Kentucky. FedEx Ground Package
System, Inc. operates as a subsidiary of FedEx Corporation. [BN]
The Plaintiff is represented by:
T. Lawrence Hicks, Esq.
CETRULO MOWERY & HICKS, PSC
130 Dudley Road, Suite 200
Edgewood, KY 41017
Telephone: (859) 331-4900
Facsimile: (859) 426-3532
E-mail: lhicks@cetrulolaw.com
FINANCIAL RECOVERY: Borozan Appeals Ruling to 3rd Circuit
---------------------------------------------------------
Plaintiff Michael Borozan filed an appeal from a court ruling in
the lawsuit entitled Michael Borozan v. Financial Recovery Services
Inc., Case No. 3-17-cv-011542, in the U.S. District Court for the
District of New Jersey.
The nature of suit is stated as consumer credit.
The appellate case is captioned as Michael Borozan v. Financial
Recovery Services Inc., Case No. 18-2440, in the United States
Court of Appeals for the Third Circuit.[BN]
Plaintiff-Appellant MICHAEL BOROZAN, on behalf of himself and all
othes similarly situated, is represented by:
Joseph K. Jones, Esq., Esq.
Benjamin J. Wolf, Esq.
JONES, WOLF & KAPASI, LLC
375 Passaic Avenue
Fairfield, NJ 07004
Telephone: (973) 227-5900
E-mail: jkj@legaljones.com
bwolf@legaljones.com
Defendant-Appellee FINANCIAL RECOVERY SERVICES INC. is represented
by:
Aleksander P. Powietrzynski, Esq.
WINSTON & WINSTON P.C.
750 Third Avenue, Suite 978
New York, NY 10017
Telephone: (212) 922-9483
E-mail: alex@winstonandwinston.com
FIRST TRANSIT: Cecil French Suit Moved to S.D. California
---------------------------------------------------------
The class action lawsuit titled Cecil French, on behalf of himself
and all others similarly situated current and former employees of
First Transit, Inc., the Plaintiff, v. First Transit, Inc., a
Delaware Corporation, and DOES 1-10, inclusive, the Defendant, Case
No. 37-02018-00021966-CU-OE-CTL, was removed from the Superior
Court of California, County of San Diego, to the U.S. District
Court for the Southern District of California (San Diego) on July
19, 2018. The Southern District of California Court Clerk assigned
Case No. 3:18-cv-01648-CAB-BLM to the proceeding. The case is
assigned to the Hon. Judge Cathy Ann Bencivengo.
First Transit is a United States-based subsidiary of FirstGroup. It
provides contract public transit and paratransit services, transit
management services and transit consulting throughout North
America.[BN]
The Plaintiff is represented by:
Attorneys for Cecil French on behalf of himself and all others
similarly situated current and former employees of First Transit:
Sheldon A. Ostroff, Esq.
LAW OFFICES OF SHELDON A OSTROFF
1441 State Street
San Diego, CA 92101
Telephone: (619) 544 0881
E-mail: sostrofflaw@aol.com
Attorneys for First Transit, Inc.:
Matthew B. Riley, Esq.
LITTLER MENDELSON, P.C
501 West Broadway, Suite 900
San Diego, CA 92101
Telephone: (619) 232 0441
Facsimile: (619) 924 2744
E-mail: mriley@littler.com
FLORIDA: Marts Appeals Ruling in "Hoffer" Suit to 11th Cir.
-----------------------------------------------------------
Interested party Sidney Marts filed an appeal from a court ruling
in the lawsuit titled Carl Hoffer v. Jones, Case No.
4:17-cv-00214-MW-CAS, in the U.S. District Court for the Northern
District of Florida.
Julie L. Jones is the Secretary of the Florida Department of
Corrections.
The lawsuit arises from alleged prison condition.
The appellate case is captioned as Carl Hoffer v. Sidney Marts, et
al., Case No. 18-12571, in the United States Court of Appeals for
the Eleventh Circuit.
Interested Party-Appellant Sidney Marts is an inmate at the Taylor
Work Camp, in Perry, Florida.[BN]
Plaintiff CARL HOFFER, Individually and on behalf of a class of
persons similarly situated, is represented by:
Randall Challen Berg, Jr., Esq.
Erica A. Selig, Esq.
Ray Taseff, Esq.
Dante Pasquale Trevisani, Esq.
FLORIDA JUSTICE INSTITUTE
3750 Miami Tower
100 SE Second Street
Miami, FL 33131
Telephone: (305) 342-6918
E-mail: rberg@floridajusticeinstitute.org
eselig@floridajusticeinstitute.org
rtaseff@floridajusticeinstitute.org
dtrevisani@floridajusticeinstitute.org
Defendant-Appellee SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, In
her official capacity as secretary of Florida Department of
Corrections, is represented by:
Pam Bondi, Esq.
OFFICE OF THE ATTORNEY GENERAL
400 S Monroe St.
Tallahassee, FL 32399-1050
Telephone: (850) 414-3785
E-mail: pam.bondi@myfloridalegal.com
- and -
Albert J. Bowden, III, Esq.
Karen Ann Brodeen, Esq.
ATTORNEY GENERAL'S OFFICE
PL-01 The Capitol
Tallahassee, FL 32301
Telephone: (850) 414-3300
E-mail: al.bowden@myfloridalegal.com
karen.brodeen@myfloridalegal.com
FOUR BROTHERS: Volk Seeks Overtime Compensation under FLSA
----------------------------------------------------------
DENA VOLK, individually and on behalf of all others similarly
situated, the Plaintiff, v. FOUR BROTHERS FORD TRACTOR, INC., and
RUSSELL KELLY, the Defendants, Case No. 3:18-cv-01890-B (N.D. Tex.,
July 23, 2018), seeks to recover unpaid overtime compensation under
the Fair Labor Standards Act of 1938.
The Plaintiff brings this claim as a collective action on behalf of
herself and all current or former workers employed by Defendants
from July 2015, to present, who were not paid for all hours worked,
including hours in excess of 40 hours a week as required by section
207(a) of the FLSA.[BN]
The Plaintiff is represented by:
Corinna Chandler, Esq.
CHANDLER LAW, P.C.
3419 Westminster No. 343G
Dallas, TX 75205
Telephone: (972) 342 8793
Facsimile: (972) 692 5220
E-mail: chandler@chandlerlawpc.com
FOX ASSOCIATES: Appeals Order in "Childress" Suit to 8th Circuit
----------------------------------------------------------------
Defendant Fox Associates, LLC, filed an appeal from the District
Court's Memorandum & Order dated June 29, 2018, in the lawsuit
entitled Maria Childress, et al. v. Fox Associates, LLC, Case No.
4:16-cv-00931-CDP, in the U.S. District Court for the Eastern
District of Missouri - St. Louis.
The lawsuit alleges violations of the Americans with Disabilities
Act.
The appellate case is captioned as Maria Childress, et al. v. Fox
Associates, LLC, Case No. 18-2577, in the United States Court of
Appeals for the Eighth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Appendix is due on September 4, 2018;
-- Brief of Appellant Fox Associates is due on September 4,
2018;
-- Appellee brief is due 30 days from the date the court
issues the Notice of Docket Activity filing the brief of
appellant; and
-- Appellant reply brief is due 14 days from the date the
court issues the Notice of Docket Activity filing the
appellee brief.[BN]
Plaintiffs-Appellees Maria C. Childress, An Individual, on behalf
of Herself and Others Similarly Situated, also known as Tina
Childress; Association of Late Deafened Adults, (ALDA), an Illinois
Corporation; and Hearing Loss Association of America, Greater St.
Louis Chapter, (HLAA-StL), an unincorporated affiliate of the
Hearing Loss of America, A Maryland Corporation; and
Petitioner-Appellee Mary Stodden, Individuals, on behalf of
Themselves and Others Similarly Situated, are represented by:
John Frazier Waldo, Jr., Esq.
LAW OFFICE OF JOHN F. WALDO
2108 McDuffie Street
Houston, TX 77019
Telephone: (206) 849-5009
E-mail: johnfwaldo@hotmail.com
Defendant-Appellant Fox Associates, LLC, doing business as Fabulous
Fox Theatre, is represented by:
Rene Leigh Duckworth, Esq.
James M. Paul, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC
7700 Bonhomme Avenue, Suite 650
Saint Louis, MO 63105
Telephone: (314) 802-3935
E-mail: rene.duckworth@ogletreedeakins.com
Jim.Paul@ogletreedeakins.com
GLENCORE PLC: Henry Church Sues over Drop in Share Price
--------------------------------------------------------
HENRY CHURCH VI, individually and on behalf of all others similarly
situated, Plaintiff v. GLENCORE PLC, IVAN GLASENBERG, and STEVEN
KALMIN, Defendants, Case No. 2:18-cv-11477 (D.N.J., July 9, 2018)
is a class action on behalf of persons or entities who purchased or
otherwise acquired publicly traded Glencore securities from
September 30, 2016 through July 2, 2018, inclusive. The Plaintiff
seeks to recover compensable damages caused by the Defendants'
violations of the federal securities laws under the Securities
Exchange Act of 1934.
According to the complaint, the Defendants' common stock trades on
the OTC Exchange ("OTC") under the ticker symbols "GLCNF" and
"GLNCY." On May 18, 2018, Bloomberg reported that the U.K.'s
Serious Fraud Office was preparing to open a formal bribery
investigation into the Defendants. On this news, GLNCY shares of
the Defendants fell $0.55 per share or over 5% to close at $10.13
per share on May 18, damaging investors. GLCNF shares of the
Defendants fell $0.32 per share or nearly 6% to close at $5.06 per
share on May 18, damaging investors.
On July 3, 2018, pre-market, the Defendants disclosed that the U.S.
Department of Justice issued its subsidiary a subpoena to produce
documents and other records in connection with its compliance with
U.S. money laundering statutes and the Foreign Corrupt Practices
Act. On this news, GLNCY shares fell $0.86 per share or over 9% to
close at $8.31 per share on July 3, damaging investors. GLCNF
shares fell $0.41 per share or nearly 9% to close at $4.20 per
share on July 3, damaging investors.
Glencore plc engages in the production, refinement, processing,
storage, transport and marketing of metals and minerals, energy
products, and agricultural products worldwide. The company was
formerly known as Glencore Xstrata plc and changed its name to
Glencore plc in May 2014. Glencore plc was founded in 1974 and is
headquartered in Baar, Switzerland. [BN]
The Plaintiff is represented by:
Laurence M. Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
609 W. South Orange Avenue, Suite 2P
South Orange, NJ 07079
Telephone: (973) 313-1887
Facsimile: (973) 833-0399
E-mail: lrosen@rosenlegal.com
GOGO INC: Aug. 27 Lead Plaintiff Bid Deadline
---------------------------------------------
ClaimsFiler, a FREE shareholder information service, reminds
investors that they have until August 27, 2018 to file lead
plaintiff applications in a securities class action lawsuit against
Gogo Inc. (Nasdaq:GOGO), if they purchased the Company's securities
between February 27, 2017 and May 7, 2018, inclusive (the "Class
Period"). This action is pending in the United States District
Court for the Northern District of Illinois.
About the Lawsuit
Gogo and certain of its executives are charged with failing to
disclose material information during the Class Period, violating
federal securities laws.
On May 4, 2018, the Company disclosed disappointing quarterly
earnings results including that it would be unable to meet EBITDA
profit guidance of $75M-$100M, was withdrawing "its previously
provided 2018 guidance for Adjusted EBITDA, airborne Cash CAPEX,
and airborne equipment inventory purchases related to
airline-directed installations, as well as Free Cash Flow
guidance." Then, on May 7, 2018, post-market, Moody's announced a
downgrade of the Company's credit rating.
On this news, the price of Gogo's shares plummeted. [GN]
GOLDEN GATE AMERICA: Underpays Employees, Warnick Claims
--------------------------------------------------------
DAVID WARNICK, an individual, on behalf of himself, and on behalf
of all persons similarly situated, the Plaintiff, v. GOLDEN GATE
AMERICA WEST LLC, a Limited Liability Company; GOLDEN GATE AMERICA
LLC, a Limited Liability Company; and DOES through 50, inclusive,
the Defendants, Case No. BC714176 (Cal. Super. Ct., July 23, 2018),
alleges that Defendant has a uniform policy and practice which
failed to lawfully compensate employees.
According to the complaint, Defendant's alleged uniform policy and
practice was an unlawful, unfair and deceptive business practice
whereby Defendant retained and continues to retain wages due
Plaintiff and the other members of California Class.
The Defendant operates out-of-key car rental facilities, such as
the major metropolitan airports. The Defendant's services include
managing the parking, and cleaning and maintenance of rental
vehicles. The Defendant provides complete fleet and staffing
management for car rental facilities.[BN]
The Plaintiff is represented by:
Norman B. Blumenthal, Esq.
Kyle R. Nordrehaug, Esq.
Aparajit Bhowmik, Esq.
BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP
2255 Calle Clara
La Jolla, CA 92037
Telephone: (858) 551 1223
Facsimile: (858) 551 1232
Website: www.bainlawca.com
HALO TOP: Baker & Hostetler Attorneys Discuss Slack-Fill Case
-------------------------------------------------------------
Alan L. Friel, Esq. -- afriel@bakerlaw.com -- and Holly A. Melton,
Esq. -- hmelton@bakerlaw.com -- of Baker & Hostetler LLP, in an
article for Lexology, wrote that in July 2017, Halo Top became the
best-selling ice cream brand in the United States.
Its ascent was as dizzying as a cold-stimulus headache. The brand,
according to Inc. magazine, grew its revenues an incredible 21,000
percent between 2013 and 2016, leaving Ben & Jerry's and
Haagen-Dazs in the rear-view.
What accounts for the growth?
The company is one of those all-American success stories that makes
everyone jealous: A couple of broke founders roll the dice, create
an upstart food brand in their kitchen and get plenty of credit for
using the healthiest ingredients they can find.
The draw of the product, though, is an ice cream that can be
consumed not in guilty fits and starts, but by whole pints at a
sitting. According to the company, the calorie count of a pint of
Halo Top is less than a third of the pints of its two major
competitors. The actual count features prominently on the front of
Halo Top's packaging, where the number of calories is printed in
larger font than the brand name.
Low in calories, low in fat and high in protein, Halo Top's pints
started flying off the shelves. For a while, the company couldn't
keep up with demand.
The Takeaway
Two California consumers aren't taken with the company's charming
story, however. In a June 2018 class action suit, Youssif Kamal and
Gillian Neely claim that Halo Top routinely underfills its pints,
"oftentimes dramatically so."
This allegation, they believe, is rendered all the more grave
because the packaging pushes the product as an ice cream pint that
can be guiltlessly consumed ("GUILT FREE ZONE . . . Keep digging"
is an example of the slogans the company prints on the inside foil
lid).
The duo alleges that Halo Top violated California's Unfair
Competition Law and Consumers Legal Remedies Act, and committed
breach of implied contract. They seek injunctive relief, damages
and attorney's fees.
Clearly, slack-fill remains on the class action radar. [GN]
HOHLA & WYSS: Ray Arp Seeks to Certify Collective Action
--------------------------------------------------------
In the lawsuit captioned Ray Arp, On behalf of himself and those
similarly situated, the Plaintiff, v. Hohla & Wyss Enterprises,
LLC, et al., the Defendant, Case No. 3:18-cv-00119-WHR (S.D. Ohio),
the Plaintiff asks the Court for an order approving a notice of
collective action to:
"all current and former delivery drivers employed by any
Defendant at any Jimmy John's location".
Attorneys for Plaintiff:
Andrew Kimble, Esq.
Andrew R. Biller, Esq.
Philip J. Krzeski, Esq.
MARKOVITS, STOCK & DEMARCO LLC
3825 Edwards Road, Suite 650
Cincinnati, OH 45209
Telephone: (513) 651 3700
Facsimile: (513) 665 0219
E-mail: abiller@msdlegal.com
akimble@msdlegal.com
pkrzeski@msdlegal.com
www.msdlegal.com
Attorneys for Defendant:
Timothy G. Pepper, Esq.
Robert T. Dunlevey, Esq.
TAFT STETTINIUS & HOLLISTER LLP
40 North Main Street, Suite 1700
Dayton, Ohio 45423
Telephone: (937) 228 2838
Facsimile: (937) 228 2816
E-mail: pepper@taftlaw.com
rdunlevey@taftlaw.com
IDAHO: Ex-Judge Files Class Action Over Student Fees
----------------------------------------------------
Judd Wilson, writing for Coeurd'Alene/Post Falls Press, reports
that former Idaho Supreme Court Justice Robert Huntley filed a
class action lawsuit in federal court May 8 to compel Idaho school
districts to stop charging students fees. The lawsuit names every
school district in Idaho as defendants, and posits every K-12
student in Idaho, plus their parents or guardians, as plaintiffs
whose rights have been violated.
The practice of charging students fees violates the Idaho
Constitution, said Justice Huntley. Article 9, Section 1 of the
state constitution mandates that the state legislature "establish
and maintain . . . free common schools," he observed.
The lawsuit also alleges that the fees "constitutes an unlawful
deprivation and taking of private property without due process of
law or just compensation" in violation of the students' rights
under the Fifth and Fourteenth Amendments to the U.S.
Constitution.
Along with co-counsel Jason Wood, the justice's lawsuit claims that
school districts statewide assess and collect approximately $20
million annually in unconstitutional fees. School supply lists of
items for students to purchase also "amounts to a form of state
coercion of plaintiffs to pay for essential elements of a free
public education," Justice Huntley wrote. The complaint further
charges that school districts have created an environment fueled by
peer pressure on students to buy such supplies.
"The defendants cannot require one of its citizens to forfeit his
or her rights and benefits to a free public education as the price
of resisting conformance to state-sponsored school fees and
purchasing of 'essential school supplies' that will be distributed
to and used by all students," wrote Justice Huntley in the class
action complaint.
While fees and supply lists may partially make up for what Huntley
claimed is a $700 million annual funding shortfall in Idaho public
education, "school leaders should set an example to their students
and patrons by respect for and honoring of the mandates of the
Constitution," he said.
Rather than have school districts charge fees, Justice Huntley said
the state's leaders should allocate more funding to public
schools.
"School leaders and patrons should insist that the governor and the
legislators honor their constitutional duty to properly fund
education," he said. "We are hopeful this lawsuit will give them
the impetus to do so."
In his lawsuit, Justice Huntley is asking the court to stop school
districts from charging any more fees and to reimburse students and
their parents who have been charged fees since 2012.
The Coeur d'Alene School District, Coeur d'Alene Charter Academy,
Post Falls School District, North Idaho STEM Charter Academy,
Lakeland School District, and other local public school districts
have all been named as defendants. Their spokespeople had no
comment.
Justice Huntley served on the Gem State's highest court from
1982-89. He was the Democratic nominee for governor in 1998. [GN]
IESI BETHLEHEM: $5MM Sought in Class-Action Suit
------------------------------------------------
Jake Holland, writing for LehighValeyLive, reports that two
Freemansburg residents filed a federal lawsuit against a Lower
Saucon Township landfill, alleging its odors and pollutants make
life for area residents uncomfortable.
The class-action complaint, filed against the IESI Bethlehem
Landfill in the U.S. District Court of Eastern Pennsylvania,
alleges that the facility's scents cause material injury to the
plaintiffs' property, and that other residents in the area have
also lost the ability to use outdoor areas on their property due to
the stench.
Plaintiffs Robin and Dexter Baptiste are demanding a total of $5
million and invite owners and renters of residential property
within a 2.5-mile radius of the landfill facility to join the
class. The suit alleges that there are "in excess of 8,400
households within that radius."
At the time the lawsuit was filed, about 85 households had
contacted the Baptistes' counsel documenting odors they attribute
to the landfill, according to court documents.
Kevin Riechelson,Esq. the Baptistes' attorney, did not respond to
requests for comment.
The couple alleges that despite the "large number of complaints,"
against the landfill, it has failed to address noxious odors.
"(The) landfill has a well-documented history of repeated failures
in the proper maintenance and management of the landfill and the
effective control of odor emanating from the landfill such that
odors do not constitute a nuisance or hazard to health, safety or
property," the suit alleges.
Don Hallock, district manager for Waste Connections -- the company
that operates the landfill -- declined to comment on the lawsuit.
The suit lists a series of "failures", with five ranging from 2012
to 2015. According to the suit, the Pennsylvania Department of
Environmental Protection determined in May that Bethlehem Landfill
was not in compliance of the state's Solid Waste Management Act and
Municipal Waste Management Rules for violations including failure
to correct foul odors, failure to maintain an intermediate cover
that prevents these smells and failure to implement an approved gas
control and monitoring plan.
Representatives from IESI said in July 2015 the landfill increased
its monitoring of methane gas wells beyond state requirements and
worked to seal in odors. Those changes came following a state
inspection that found two violations: failure to maintain
sufficient cover to prevent odors and failure to implement the
approved gas control and monitoring plan.
Priscilla deLeon, a Lower Saucon councilwoman and outspoken critic
of the landfill, said while she wasn't aware of the lawsuit before
lehighvalleylive.com alerted her to it, she's "not surprised" that
legal action was taken.
"A few years ago, the smells were terrible," deLeon said. "People
were always calling and complaining. Then the IESI owners put in
upgrades to their facilities, and it made a difference in the
odors."
She added, however, that there were eight DEP violations following
an April inspection.
De Leon, who lives in Lower Saucon's Steel City neighborhood, said
she personally hasn't smelled odors from the landfill in recent
months, and added that complaints from people in her township have
decreased. Still, she said there's no way of knowing if and when
the smells will come back.
"To me, any odor is unacceptable," she said. "I'll definitely bring
(the lawsuit) up at our next meeting."
The landfill in September 2017 received permission from DEP to
expand by six acres. [GN]
INSYS THERAPEUTICS: Vetticaden Dismissed from Securities Suit
-------------------------------------------------------------
In the case, IN RE INSYS THERAPEUTICS, INC. SECURITIES LITIGATION,
Case No. 17 Civ. 1954 (PAC) (S.D. N.Y.), Judge Paula A. Crotty of
the U.S. District Court for the Southern District of New York (i)
denied Insys, Michael L. Babich, John N. Kapoor and Darryl S.
Baker's motion to dismiss the Second Amended Complaint ; and (ii)
granted Santosh J. Vetticaden's motion to dismiss the SAC.
Lead Plaintiff Michael Robson claims in the securities fraud class
action, on behalf of himself and all others who purchased or
otherwise acquired the securities of Insys between May 7, 2015 and
March 15, 2017, that Insys and several of its high-ranking officers
-- Babich, Kapoor, Baker, Vetticaden -- made material
misrepresentations about profitability of Insys's drug, Subsys,
thereby causing Insys's stock price to be artificially inflated, in
violation of Section 10(b) of the Securities Exchange Act of 1934
and Rule 10b-5 promulgated thereunder, and Section 20(a) of the
Exchange Act.
Judge Crotty explains that the Plaintiffs claim that the Defendants
inflated the price of Insys's common stock with misleading
financial statements in violation of the Exchange Act. When
construed in light most favorable to the Plaintiffs, she finds that
the SAC has stated a claim to relief that is plausible on its face
against Insys, Babich, Baker, and Kapoor, but not against
Vetticaden.
The Judge also finds that the Plaintiffs have "demonstrated with
specificity why" the assurance was false at the time it was made.
Isys also made false assurance concerning effectiveness of its
internal controls. Internal controls incapable of preventing
simple errors cannot be deemed effective. Accordingly, Insys'
assurance concerning effectiveness of its internal controls was
false when made.
The alleged misstatements made by Insys are attributable to Baker,
Babich, and Kapoor. Baker and Babich signed and certified the
alleged misstatements in Form 10-Q for periods that ended on March
31, 2015 and June 30, 2015; and Baker and Kapoor signed and
certified the alleged misstatements in (1) Form 10-Q for periods
that ended on Sept. 30, 2015, March 31, 2016, June 30, 2016, and
Sept. 30, 2016, and (2) in the 2015 Annual Report. Accordingly, the
alleged misstatements are attributable to Baker, Babich, and
Kapoor.
But none of the alleged misstatements are attributable to
Vetticaden. Vetticaden did not personally sign or certify any of
the alleged misstatements. Vetticaden's remarks during earnings
calls had no bearing on the financial performance or accounting
policies, supposedly because he was merely a Chief Medical Officer
when the earnings calls were held. Besides, Vetticaden was the one
that oversaw the investigation into Insys's misleading accounting
practices.
Accordingly, she denied Insys, Babich, Baker, and Kapoor's motion
to dismiss, but granted Vetticaden's motion. The Clerk of the
Court is directed to close the pending motions at ECF 31.
A full-text copy of the Court's June 12, 2018 Opinion and Order is
available at https://is.gd/Ptfnrt from Leagle.com.
Michael Robson, Lead Plaintiff, represented by Shannon Lee Hopkins
-- shopkins@zlk.com -- Levi & Korsinsky, LLP.
Kayd Currier, Individually and On Behalf of All Others Similarly
Situated, Plaintiff, represented by Joseph Alexander Hood, II --
ahood@pomlaw.com -- Pomerantz LLP & Jeremy Alan Lieberman --
jalierberman@pomlaw.com -- Pomerantz LLP.
Hans E. Erdmann, Consolidated Plaintiff, represented by Shannon Lee
Hopkins, Levi & Korsinsky, LLP.
Luis Martinez, Jack E. Hatfield, Said Goueli & Walter Lee, Movants,
represented by Lesley Frank Portnoy --
lportnoy@glancylaw.com -- Glancy Prongay & Murray LLP.
Insys Therapeutics, Inc., Santosh J. Vetticaden, Darryl S. Baker,
Michael L. Babich & John N. Kapoor, Defendants, represented by
Daniel Slifkin -- dslifkin@cravath.com -- Cravath, Swaine & Moore
LLP & David Miller Stuart -- dstuart@cravath.com -- Cravath, Swaine
& Moore LLP.
JB HUNT: Drivers Fight Bid to Decertify Calif. Wage Class Action
----------------------------------------------------------------
Linda Chiem, writing for Law360, reports that drivers told a
California federal judge on July 9 they have ample evidence proving
J.B. Hunt Transport Inc.'s uniform piece-rate compensation system
shorted thousands of drivers on wages and rest breaks, rebuking the
company's bid to slash claims and decertify their class action.
Attorneys for plaintiffs Gerardo Ortega and Michael D. Patton fired
back at J.B. Hunt's recent motions for summary judgment and to
decertify their 11,000-strong class of drivers in the 11-year-old
case.
The case is captioned Gerardo Ortega et al v. J. B. Hunt Transport,
Inc. et al., Case No. 2:07-cv-08336 (C.D. Calif.). The case is
assigned to Judge R. Gary Klausner. The case was filed December
27, 2007. [GN]
JC PENNEY: Loses Bid to Dismiss A. Cavlovic's KCPA Suit
-------------------------------------------------------
The United States District Court of the District of Kansas denying
Defendant's Motion to Dismiss the case captioned ANN CAVLOVIC,
individually and on behalf of those similarly situated, Plaintiff,
v. J.C. PENNEY CORPORATION, INC., Defendant, Case No.
2:17-cv-2042-JAR-TJJ (D. Kan.).
The Plaintiff filed this class-action suit against the Defendant
alleging J.C. Penney fraudulently advertised fake former prices and
discounts to create illusory sales. J.C. Penney removed the case
to this Court under the Class Action Fairness Act of 2005 (CAFA).
Ms. Cavlovic asserts three claims for relief: (1) damages under the
Kansas Consumer Protection Act (KCPA); (2) injunctive relief under
the KCPA; and (3) unjust enrichment.
J.C. Penney moves to dismiss Ms. Cavlovic's Complaint, arguing her
fraud claims are implausible because she did not eliminate obvious
alternative explanations and she failed to plead her claims with
particularity under Rule 9(b). Ms. Cavlovic responds that she need
not eliminate every alternative explanation to survive a motion to
dismiss, and that her pleading put J.C. Penney on sufficient notice
of her fraud claims under Rule 9(b).
According to the Court, the Tenth Circuit has never held that Rule
9(b) requires plaintiffs to plead with particularity how or why the
alleged misrepresentations were actually false. Under Rule 9(b),
complaints alleging fraud must "set forth the time, place and
contents of the false representations, the identity of the party
making the false statements and the consequences thereof."
The Court finds that Ms. Cavlovic's allegations satisfy the
requirements of Rule 9(b) as interpreted by the Tenth Circuit. Her
Complaint sets forth the time September 23, 2014, the place J.C.
Penney store in Kansas, the content 14k gold hoop earrings priced
at $524.98 and discounted at sixty percent on top of twenty-five
percent that had another price sticker inside the box that said
$225.00, the identity of the party responsible for the fraudulent
conduct and the harm caused being duped into paying more for the
earrings based on the fake sale.
Even if Ms. Cavlovic was required to plead the why and how, she has
done so. She alleged that the $524.98 price was fraudulent because
it was not the true price of the earrings and claimed J.C. Penney
duped her by using an illegal fake sales method that makes
customers believe the deal (discounted price) is better than it
really is. Thus, the Court finds that Ms. Cavlovic has satisfied
the requirements of Rule 9(b) and that her allegations are
sufficient to put J.C. Penney on notice of her fraud claims. J.C.
Penney's motion to dismiss is therefore denied.
A full-text copy of the District Court's June 7, 2018 Memorandum
and Order is available at https://tinyurl.com/y9qv9ww8 from
Leagle.com.
Ann Cavlovic, Plaintiff, represented by Ashley Scott Waddell ,
Waddell Law Firm LLC, Bryce B. Bell -- bbb@belllawkc.com -- Bell
Law, LLC, Mark W. Schmitz , Bell Law, LLC, Reagan E. Bradford --
reagan.bradford@lanierlawfirm.com -- The Lanier Law Firm, PC, pro
hac vice, Rex A. Sharp , Rex A. Sharp, PA, Ryan C. Hudson , Rex A.
Sharp, PA, Scott B. Goodger , Rex A. Sharp, PA, & W. Mark Lanier --
wml@lanierlawfirm.com -- The Lanier Law Firm, PC, pro hac vice.
J.C. Penney Corporation, Inc., Defendant, represented by Bradley J.
Hamburger -- bhamburger@gibsondunn.com -- Gibson, Dunn, & Crutcher
LLP, pro hac vice, Christina M. Pyle --
christina.pyle@huschblackwell.com -- Husch Blackwell LLP,
Christopher Chorba -- cchorba@gibsondunn.com -- Gibson, Dunn, &
Crutcher LLP, pro hac vice, Christopher A. Smith --
chris.smith@huschblackwell.com -- Husch Blackwell LLP, pro hac
vice, Mark A. Perry -- mperry@gibsondunn.com -- Gibson, Dunn &
Crutcher, LLP, pro hac vice, Michael S. Hargens --
Michael.hargens@huschblackwell.com -- Husch Blackwell LLP & Taylor
Brooke Concannon -- taylor.concannon@huschblackwell.com -- Husch
Blackwell LLP.
JUICE GENERATION: Khadka et al. Seek OT Wages under FLSA
--------------------------------------------------------
BHIMSEN KHADKA, GELU SHERPA, Individually and on Behalf of All
Others Similarly Situated, the Plaintiffs, v. JUICE GENERATION
INC., COOLER CLEANSE LLC, AND ERIC S. HELMS, the Defendants, Case
No. 708250/2017 (N.Y. Sup. Ct., July 23, 2018), seeks to recover
unpaid overtime wages, liquid damages, and penalties under the Fair
Labor Standards Act and the New York Labor Law.
According to the complaint, the Plaintiffs are former full-time
hourly employees in one of Defendant's stores who worked in
positions subject to the overtime provisions of the FLSA and New
York Labor Law. The Defendants have willfully engaged in a
pattern, practice and policy of unlawful conduct failing to record,
credit, or compensate work performed by its hourly employees in the
State of New York, including Plaintiffs and members of the
prospective Class, for hours in excess of 40 per week that
Defendants have required an permitted such employees to perform
work.
Juice Generation promotes health & wellness through antioxidant and
nutrient-rich juices, smoothies and acai bowls.[BN]
The Plaintiffs are represented by:
Dhurga P. Bhurtel, Esq.
BHIMSEN KHADKA, GELU SHERPA,
37-49 751h Street, 2nd Floor
Jackson Heights, NY 11372
Telephone: (718) 509 6181
Facsimile: (917) 396 4622
E-mail: deb@attorneybhurtel.com
Attorneys for Defendants:
Miranda Sambursky Slone, Esq.
SKLARIN VERVENIOTIS, LLP
570 Taxter Rd Suite 561
Elmsford, NY 10523
Telephone: (516) 741 7676
KNIGHT ENTERPRISES: Arbitration Ruling in "Weckesser" Suit Upheld
-----------------------------------------------------------------
In the case, PATRICK WECKESSER, on behalf of himself and all others
similarly situated, Plaintiff-Appellee, v. KNIGHT ENTERPRISES S.E.,
LLC, Defendant-Appellant, Case No. 17-1247 (4th Cir.), Judge Albert
Diaz of the U.S. Court of Appeals for the Fourth Circuit affirmed
the district court's judgment not to compel arbitration.
Weckesser sued Knight Enterprises in federal district court for
various employment-related claims. According to Knight
Enterprises, Weckesser signed a contract that requires him to
arbitrate this dispute.
Knight Enterprises asked the district court to compel arbitration
based on paperwork Weckesser signed when he began to work for the
company. One document, styled as an "Independent Contractor
Services Agreement," sets forth the terms governing Weckesser's
work for Knight Enterprises. The Services Agreement itself
contains no reference to arbitration. It does, however, provide
that the parties knowingly and intentionally waive their right to a
trial by jury in order to expedite the handling of any dispute
thereunder. The Services Agreement is dated Sept. 11, 2015, and
signed by Weckesser, on behalf of himself, and Brian Vaughn, on
behalf of Knight Enterprises.
Weckesser and Vaughn signed another document called an "Arbitration
Rider and Class Action Waiver," which provides that any dispute
between the parties must be referred to and finally resolved by
arbitration in Tampa, Florida. It also includes a class action
waiver, requiring that any claim be brought in the respective
party's individual capacity, and not as a plaintiff or class member
in any purported class, collective, representative, multiple
plaintiff, or similar proceeding.
Like the Services Agreement, the Arbitration Rider is dated Sept.
11, 2015, and was signed by Weckesser and Vaughn. But this time,
the document identified Vaughn as signing not on behalf of Knight
Enterprises, but on behalf of its parent company. And the opening
sentence of the Arbitration Rider states that the agreement was
"entered into by and between Jeffry Knight, Inc. d/b/a Knight
Enterprises and the undersigned Independent Contractor."
Knight Enterprises asked the district court to stay or dismiss the
proceedings and to compel arbitration based on the Services
Agreement and the Arbitration Rider. Its argument was threefold:
first, the identification of Jeffry Knight rather than Knight
Enterprises in the Arbitration Rider was a clerical error that had
no effect on the force of the agreement; second, and in the
alternative, Knight Enterprises was entitled to enforce the
arbitration agreement between Weckesser and Jeffry Knight as a
third-party beneficiary; and third, in any event, the court should
use its powers in equity to force the parties to arbitrate. The
district court rejected each of these contentions and denied the
motion. Knight Enterprises appealed.
Judge Diaz finds that the parties must abide by what the agreement
says. The Arbitration Rider binds Weckesser and Jeffry Knight to
arbitration of their disputes and is silent as to claims arising
between Weckesser and Knight Enterprises. However "healthy" the
federal regard for arbitration, the Judge won't force one party to
arbitrate a claim with another when he hasn't agreed to do so.
Under principles of South Carolina contract law, he concludes that
Knight Enterprises wasn't a party to the Arbitration Rider, and on
that basis the agreement isn't sufficient to compel arbitration of
the case.
As he's explained, the parties to the Arbitration Rider are
Weckesser and Jeffry Knight. And he sees nothing in the text of
the Arbitration Rider evincing an intent to create a right
enforceable by Knight Enterprises. In fact, Knight Enterprises
appears to receive no benefit at all from the contract. The text
of the Arbitration Rider doesn't show a clear intent to make Knight
Enterprises a third-party beneficiary, and he declines to rewrite
the contract to say otherwise.
Having determined that Knight Enterprises was neither a party nor a
third-party beneficiary to the Arbitration Rider, the Judge
considers whether the district court abused its discretion by not
compelling arbitration through the use of equitable estoppel. He
finds that Weckesser's claims in the case don't rely upon the
Services Agreement or the Arbitration Rider, and he hasn't
attempted to avoid the burdens of either document. All told, he
can't say that the district court abused its discretion in
declining to apply equitable estoppel.
For the reasons given, Judge Diaz affirmed the district court's
judgment.
A full-text copy of the Court's June 12, 2018 Opinion is available
at https://is.gd/kZZv43 from Leagle.com.
ARGUED: Deborah Whittle Durban -- debbie.durban@nelsonmullins.com
-- NELSON MULLINS RILEY & SCARBOROUGH LLP, Columbia, South
Carolina, for Appellant.
Joseph Scott Falls -- scott@falls-legal.com -- FALLS LEGAL, LLC,
Charleston, South Carolina, for Appellee.
ON BRIEF: Matthew A. Abee -- matt.abee@nelsonmullins.com -- NELSON
MULLINS RILEY & SCARBOROUGH LLP, Columbia, South Carolina, for
Appellant.
Ashley Long Falls -- ashley@falls-legal.com -- FALLS LEGAL, LLC,
Charleston, South Carolina, for Appellee.
KRISPY KREME: Judge Cuts Class Action Attorneys' Fees
------------------------------------------------------
Elizabeth Alt, writing for Legal Newsline, reports that an order
was issued by the North Carolina Business Court to grant the
attorneys for former Krispy Kreme shareholders $150,000 in fees and
denying the request for fees and costs associated with the
litigation, noting that the attorneys are barred from recovering
expenses according to state bar regulations.
Chief Business Court Judge James L. Gale wrote the order on June
20, granting less than half of the $350,000 that the attorneys
requested.
"The underlying fee agreements fail to comply with RPC 1.8(e)
because they hold plaintiffs harmless at the inception of the
litigation from any potential liability for expenses, and that any
expense recovery would violate the public policy on which RPC
1.8(e) is based," Judge Gale wrote.
Several shareholders for Krispy Kreme Doughnuts Inc. filed a
putative class action after Krispy Kreme announced its merger with
JAB Beech Inc. in May 2016, claiming the merger violated the
shareholder agreement to notify shareholders of mergers.
The plaintiffs are former shareholders Stuart Bonnin, Barbara
Grajzl, Patricia Horton, Ronnie Stillwell, Melissa Weers, James
Graham, Jonnie Lomax and Harold Lomax, who sued on behalf of the
putative class as representatives.
In July 2016 the parties "entered into a memorandum of
understanding to settle all of the actions based on defendants'
agreement to provide supplemental disclosures prior to a
shareholder vote on the merger," the opinion states.
Krispy Kreme and the shareholders agreed in the settlement that the
defendants would pay the shareholders' attorney's fees and court
costs.
The shareholders' counsel stated that they incurred expenses of
$19,531.76, and that they had put in 826 hours, which would
normally result in a lodestar amount of $533,038.
The court determined after a supplemental briefing that the fee
agreements violated the Revised Rules of Professional Conduct of
the North Carolina State Bar.
Judge Gale stated that the fee agreements for the lead and co-lead
counsel, Levi & Korsinsky and Rigrodsky & Long, "violate RPC
1.8(e)'s requirement that the repayment of advanced litigation
costs be contingent upon the outcome of a matter."
The fee agreements state that counsel would advance any costs for
the litigation, and regardless of outcome, would not ask clients to
directly pay their expenses.
"The court, in its discretion, concludes that the violation of RPC
1.8(e) offends the public policy on which the rule is based and
should bar plaintiffs' counsel from recovering any of the expenses
of the litigation, even if those expenses would be paid by
defendants," Judge Gale wrote.
Gale awarded $150,000 for attorney's fees and denied granting the
plaintiff's counsel fees.
Plaintiffs are represented by counsel with Levi & Korsinsky LLP,
Rigrodsky & Long P.A., Brodsky & Smith LLC, The Weiser Law Firm
P.C., Brower Biven, WeissLaw LLP, Faruqi & Faruqi LLP, or
Monteverde & Assciates PC, Ward Black Law, The Hausler Law Firm,
PLLC Wilson & Helms LLP, or Erwin Bishop Capitano & Moss P.A. [GN]
LAO MA SPICY: Yang & Huang Seek Minimum & OT Pay under FLSA
-----------------------------------------------------------
GUANG YANG and LIQI HUANG, individually and on behalf of all those
similarly situated, the Plaintiff(s), v. LAO MA SPICY INC.; LAO MA
INC.; LAOMA SPICY ELMHURST, INC.; LAO MA MA LA TANG INCORPORATED;
LIU TUO; HUADONG LIU; and JOHN DOES 1 through 10 (fictitious names
of unknown individuals and/or entities), the Defendant(s), Case No.
2:18-cv-11817 (D.N.J., July 19, 2018), seeks to recover unpaid
minimum wages, unpaid overtime compensation, liquidated damages,
and reasonable attorneys' fees under the Fair Labor Standards Act
of 1938 and the New Jersey State Wage and Hour Law.
The Plaintiffs and the collective action members were scheduled to
work 6 days per week, and in fact worked 6 days per week, equaling
69 hours. The Plaintiffs and collective action members, did not
"clock in" or "clock out" at any "Lao Ma Spicy" restaurant or when
working for the defendants. The Defendants do not have time records
for plaintiffs and the collective action members that state
precisely when each employee started working and stopped working on
any given date. Nor do defendants maintain any records showing an
hourly rate, the hours worked, the pay period and any withholding,
as required by law.[BN]
The Plaintiffs are represented by:
Peter Y. Lee, Esq.
60 East 42nd Street, Suite 1101
New York, NY 10165
Telephone: (212) 808 0716
Facsimile: (212) 808 0719
E-mail: Peter.Lee@LeeAdvocates.Com
LATINO CONCEPTS: Doesn't Pay OT to Cooks, Carlos Castro Alleges
---------------------------------------------------------------
CARLOS E. CASTRO, individually and on behalf of all others
similarly situated, Plaintiff v. LATINO CONCEPTS LLC d/b/a COYO
TACO, Defendant, Case No. 1:18-cv-22760-RNS (S.D. Fla., July 10,
2018) seeks to recover from the Defendant overtime compensation,
liquidated damages, costs and reasonably attorney's fees under the
provisions of the Fair Labor Standards Act.
Mr. Castro was employed by the Defendant as a cook from February
16, 2015 to June 14, 2018.
Latino Concepts LLC d/b/a Coyo Taco is a Florida corporation with
its mail place of business in Miami-Dade County, Florida. The
company is engaged in restaurant business. [BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
LAWRENCE COUNTY, PA: County Engr. Won't Violate Class Deal Terms
----------------------------------------------------------------
Deangelo McDaniel, writing for Decatur Daily, reports that Lawrence
County commissioners said making county engineer Winston Sitton
interim director of solid waste for three to six months will not
violate the terms of a 2015 class-action lawsuit settlement.
Sitton, who makes $118,500 as county engineer, will receive an
additional $2,100 in monthly pay from solid waste funds following
Friday's vote by commissioners.
County officials said the move does not violate the court
settlement because Sitton, who replaced the retiring Willie Allen,
will spend time working for solid waste. Allen's last day with the
county was on July 13.
Birmingham attorney Craig Lowell, Esq. -- clowell@wigginschilds.com
-- who represented the plaintiffs in the lawsuit, was not available
for comment, but has said in court filings three years ago that the
class-action settlement allows commissioners to be held in contempt
of court if solid waste funds are used for non-solid waste
purposes.
Ratepayer Dalton McCreless sued the commission in 2013 after county
officials transferred $65,000 from the solid waste account to the
general fund in order to meet payroll.
In court filings, attorneys for the ratepayers said the law is
"pretty clear" about how solid waste money can be used and that
commissioners had been doing things contrary to a 1998 state
Supreme Court ruling and a 2011 attorney general's opinion.
Long term, county officials talked last week about doing away with
Allen's position and creating the position of director of public
works.
This person would supervise both solid waste and the road
department.
Commissioner Bradley Cross questioned the wisdom of combing the
positions. He also quizzed Sitton about whether he could run both
departments.
"I believe I'm up to the task and will work extra hours," Sitton
said.
"You got your plate full, so you better get two forks," Cross said,
adding that he voted for the move only because it's temporary.
Commissioner Joey Hargrove, who advocated for the temporary change,
said other counties have a similar structure and that "it's going
to be a change" for Lawrence County.
He said the move will save money and put the county in a position
to cross-train workers in both departments.
"The state has said what we are doing is legal," Hargrove said.
Commissioner Bobby Burch said if the temporary situation doesn't
work, the county can leave things as they were while Allen was
employed. If a change is made, he said the commission will approve
a job description and salary schedule for the position and
advertise for applicants.
In a related move on July 13, commissioners moved Buddy Oliver to
temporary solid waste superintendent. Oliver, who is a mechanic
with the Sheriff Office, did not receive a pay raise.
Plaintiffs in the lawsuit agreed to let solid waste funds cover
part of the Sheriff's Office mechanic's salary because the position
works on solid waste vehicles as well. [GN]
LIFETIME FITNESS: Settles Former Trainers' Wage Class Action
------------------------------------------------------------
DM Herra, writing for Cook County Record, reports that LifeTime
Fitness has agreed to pay $700,000 to settle a class action brought
by a group of former trainers who sued the fitness chain over back
wages and claims the company violated whistleblower laws.
LifeTime Fitness reached a settlement with a group of former
trainers who sued the fitness chain over back wages and claims the
company violated whistleblower laws.
In the settlement, reached Sept. 8 and finalized July 3, LifeTime
and its associated entities agreed to a gross settlement amount of
$700,000, including $245,000 in attorneys' fees and $47,272 in
court costs. Under the terms of the settlement, defendants Life
Time Fitness Inc., LTF Club Management Company LLC and LTF Club
Operations Company Inc. admit to no liability in the claims filed
against them.
Plaintiffs Jared Steger and David Ramsey filed a class action suit
against the company in 2014 in Cook County Circuit Court. The case
was later removed to Chicago federal court.
John Chrispens and Mai Henry joined as plaintiffs later that year.
In their suit, the former personal trainers claimed they were fired
after refusing to cooperate with alleged schemes to double-bill
clients or to bill them after their memberships had ended. They
also claimed trainers were required to put in hours off the clock
handling tasks like cleaning equipment or meeting with managers and
clients, though they were only paid for their on-the-clock hours.
Steger and Ramsey claimed they were owed more than $80,000 in
unpaid wages and overtime.
The company attempted to have the wage claims dismissed because it
said the trainers did not report their off-the-clock hours and
could not be paid for work they never reported. Steger and Ramsey
had claimed that managers altered their time sheets so their hours
worked per week never exceeded 40, though they said they often
worked more than 70 hours per week. Judge Sharon Johnson Coleman
denied the motion to dismiss, saying the language of LTF's
Incentive Compensation Program explicitly promised employees would
be paid "for every hour worked."
In November 2017, the court preliminarily approved the settlement,
conditionally certified the settlement class and approved the
mailing of notice packets. According to the final order approving
the settlement, only one member of the class opted out of the
settlement.
Under the agreement, each of the named plaintiffs will receive
$10,000. A claims administrator will calculate and disburse
payments to the individual members of the class based upon their
submitted claim forms. Coleman also approved payment of $20,000
from the gross settlement to be paid to the claims administrator.
The class was represented by attorneys Jerusalem Beligan, of Bisnar
Chase LLP, of Newport Beach, Calif.; attorney Branigan A.
Robertson, of Irvine, Calif.; and attorney Michael L. Fradin, of
Skokie.
LifeTime Fitness was represented by Alison Blair Crane --
Alison.Crane@jacksonlewis.com -- Monica H. Khetarpal --
Monica.Khetarpal@jacksonlewis.com -- Jody Kahn Mason --
Jody.Mason@jacksonlewis.com -- Jeffrey L. Rudd, Cynthia J. Emry,
Nicky Jatana, Eric R. Magnus and Paul DeCamp, of Jackson Lewis
P.C., of Chicago, Los Angeles, Atlanta and Reston, Va. [GN]
LINCOLN NATIONAL: TVPX ARS Says Cost of Insurance 'Excessive'
-------------------------------------------------------------
TVPX ARS INC., as Securities Intermediary for CONSOLIDATED WEALTH
MANAGEMENT, LTD., on behalf of itself and all others similarly
situated, the Plaintiff, v. LINCOLN NATIONAL LIFE INSURANCE
COMPANY, the Defendant, Case No. 2:18-cv-02989-RBS (E.D. Pa., July
17, 2018), alleges that Defendant forced Lincoln policyholders to
pay unlawful and excessive cost of insurance.[BN]
The Plaintiff is represented by:
Gaetnan J. Alfano, Esq.
Pietragallo Gordon Alfano Bosick & Raspanti, LLP
1818 Market Street, Suite 3402
Philadelphia, PA 19103
Telephone: (215) 998 1441
Facsimile: (215) 754 5181
E-mail: gja@pietraallo.com
- and -
Steven G. Sklaver, Esq.
Glen C. Bridgman, Esq.
Seth Ard, Esq.
Ryan C. Kirkpatrick, Esq.
SUSMAN GODFREY L.L.P.
1900 Avenue of the Stars, Suite 1400
Los Angeles, CA 90067 6029
Telephone: (310) 789 3100
Facsimile: (310) 789 3150
E-mail: ssklaver@susmangodfrey.com
gbridgman@susmangodfrey.com
clavery@susmangodfrey.com
sard@susmangodfrey.com
LUV N' CARE: Faces Class Action Over "All Natural" Teething Gel
---------------------------------------------------------------
Angelica Saylo Pilo, writing for The Madison-St. Clair Record,
reports that a woman filed a class action alleging infant teething
gel is falsely marketed as "all natural."
Jenna Shrum filed the complaint on June 15 in St. Clair County
Circuirt Court against Luv N' Care Ltd., alleging the Louisiana
corporation violated the Illinois Consumer Fraud and Deceptive
Business Practices Act.
According to the complaint, the Nuby All Natural Teething Gel
purchased by Ms. Shrum contains citric acid, potassium sorbate,
propanediol and xantham gum, which are synthetic ingredients.
Ms. Shrum claims Luv N' Care unfairly calls the product "all
natural."
"By affixing such labels to the packaging of the product, defendant
can entice consumers like plaintiff to pay a premium for the
supposed 'all natural' product," the complaint states.
Ms. Shrum requests a jury trial and an order certifying the case as
a class action. She seeks compensatory damages, interest and
attorney fees.
Ms. Shrum is represented by David C. Nelson of Nelson & Nelson in
Belleville, Matthew H. Armstrong of Armstrong Law Firm in St. Louis
and Stuart L. Cochran of Steckler Gresham Cochran in Dallas.
St. Clair County Circuit Court case number 18-L-422 [GN]
MAMMOTH MEDS.COM: Nashville Pharmacy Sues over Unsolicited Fax
--------------------------------------------------------------
NASHVILLE PHARMACY SERVICES, LLC, individually and on behalf of all
others similarly situated, the Plaintiff, v. MAMMOTH MEDS.COM,
INC., and JOHN DOES 1-10, the Defendants, Case No. 3:18-cv-00671
(M.D. Tenn., July 19, 2018), seeks to enjoin Mammoth, its
employees, agents, representatives, contractors, affiliates, and
all persons and entities acting in concert with them, from sending
unsolicited advertisements in violation of the Telephone Consumer
Protection Act.
According to the complaint, receiving Mammoth's junk faxes caused
Plaintiff and the other recipients to lose paper and toner and/or
ink consumed in the printing of Mammoth's faxes. Moreover,
Mammoth's faxes used the Plaintiff's and the other class members'
telephone lines and fax machines. Mammoth's faxes cost Plaintiff
and the other class members time, as the Plaintiff and the other
class members and their employees wasted their time receiving,
reviewing, and routing Mammoth's unauthorized faxes. That time
otherwise would have been spent on the Plaintiff's and the other
class members' business activities. Mammoth's faxes unlawfully
interrupted the Plaintiff's and other class members' privacy
interests in being left alone.[BN]
The Plaintiff is represented by:
Charles Barrett, Esq.
Benjamin C. Aaron, Esq.
NEAL & HARWELL, PLC
1201 Demonbreun Street, Suite 1000
Nashville, TN 37203
Telephone: (615) 244 1713
Facsimile: (615) 726 0573
E-mail: cbarrett@nealharwell.com
baaron@nealharwell.com
MDL 2472: Certification of End-Payor Class Sought
-------------------------------------------------
In the lawsuit RE: LOESTRIN 24 FE ANTITRUST LITIGATION, Case No.
1:13-md-02472-WES-PAS (D.R.I.), the Plaintiff A.F.of L. - A.C.G.
Building Trades Welfare Plan, Allied Services Division Welfare
Fund, City of Providence, Rhode Island, Electrical Workers 242 and
294 Health & Welfare Fund, Fraternal Order of Police, Fort
Lauderdale Lodge 31, Insurance Trust Fund, Laborers International
Union of North America, Local 35 Health Care Fund, Painters
District Council No. 30 Health & Welfare Fund, Teamsters Local 237
Welfare Benefits Fund, United Food and Commercial Workers Local
1776 & Participating Employers Health and Welfare Fund, Denise Loy,
and Mary Alexander move the Court for an Order:
1. certifying End-Payor Class of:
"all persons or entities in the United States and its
territories who indirectly purchased, paid and/or provided
reimbursement for some or all of the purchase price for
Loestrin 24 Fe and/or its AB-rated generic equivalents in
any form, and/or Minastrin 24 Fe and/or its AB-rated
generic equivalents in any form, for consumption by
themselves, their families, or their members, employees,
insureds, participants, or beneficiaries, other than for
resale, during the period September 1, 2009 through and
until the anticompetitive effects of Defendants’ unlawful
conduct cease"; and
2. appointing End-Payor Plaintiffs as representatives of the
Class; appointing Motley Rice LLC, Miller Law LLC, Hilliard
& Shadowen LLP and Cohen Milstein Sellers & Toll PLLC as
Co-Lead Class Counsel; and appointing Motley Rice LLC as
Liaison Counsel for the Class.
For purposes of the Class definition, persons or entities
"purchased" Loestrin 24 Fe, Minastrin 24 Fe, or their generic
equivalents if they indirectly purchased, paid and/or reimbursed
for some or all of the purchase price.
The following persons or entities are excluded from the proposed
End-Payor Class:
a. Defendants and their officers, directors, management,
employees, subsidiaries, or affiliates;
b. All federal or state governmental entities, excluding
cities, towns or municipalities with self-funded
prescription drug plans;
c. All persons or entities who purchased Loestrin 24 Fe or
its AB-rated generic equivalent, and/or Minastrin 24 Fe
or its AB-rated generic equivalent, for purposes of
resale or directly from Defendants or their affiliates;
d. Fully insured health plans (i.e., Plans that purchased
insurance from another third-party payor covering 100%
of the Plan's reimbursement obligations to its members);
e. Any "flat co-pay" consumers whose purchases were paid in
part by a third party payor and whose co-payment was the
same regardless of the retail purchase price;
f. Any "brand loyalist' consumers or third-party payors who
purchased Loestrin 24 Fe and who did not purchase any
AB-rated generic equivalent after such generics became
available; and
g. The judges in this case and any members of their immediate
families.
Attorneys for Plaintiff:
Michael M. Buchman, Esq.
Michelle C. Zolnoski, Esq.
MOTLEY RICE LLC
600 Third Avenue, Suite 2101
New York, NY 10016
Telephone: (212) 577 0050
E-mail: mbuchman@motleyrice.com
mzolnoski@motleyrice.com
- and -
Marvin A. Miller, Esq.
Lori A. Fanning, Esq.
MILLER LAW LLC
115 South LaSalle Street, Suite 2910
Chicago, IL 60603
Telephone: (312) 332 3400
E-mail: mmiller@millerlawllc.com
lfanning@millerlawllc.com
- and -
Steve D. Shadowen, Esq.
Matthew C. Weiner, Esq.
HILLIARD & SHADOWEN LLP
219 Congress Ave., Suite 1325
Austin, TX 78701
Telephone: (855) 344 3298
E-mail: steve@hilliardshadowenlaw.com
matt@hilliardshadowenlaw.com
- and -
Sharon K. Robertson, Esq.
Donna M. Evans, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC
88 Pine Street, 14th Floor
New York, NY 10005
Telephone: (212) 838 7797
E-mail: srobertson@cohenmilstein.com
devans@cohenmilstein.com
MDL 2472: Certification of Loestrin Direct Buyers Class Sought
--------------------------------------------------------------
In the lawsuit RE: LOESTRIN 24 FE ANTITRUST LITIGATION, Case No.
1:13-md-02472-WES-PAS (D.R.I.), the Direct Purchaser Class
Plaintiffs Ahold USA, Inc. and Rochester Drug Co-Operative, Inc.
ask the Court for an order:
1. certifying a class of:
"all persons or entities in the United States and its
territories who purchased brand or generic Loestrin 24
directly from Warner or Amneal at any time during the
period from September 1, 2009, through and until June 3,
2015, and all persons or entities in the United States and
its territories who purchased brand Minastrin 24 directly
from Warner at any time during the period from September 1,
2009, through and until March 14, 2017"; and
2. appointing Ahold USA, Inc. and Rochester Drug Co-
Operative, Inc. as the representatives of the Class;
appointing Lynch and Pine as Liaison Counsel for the Class;
and appointing Hagens Berman Sobol Shapiro LLP, Berger &
Montague, P.C., Faruqi & Faruqi LLP, and Kessler Topaz
Meltzer & Check LLP as Co-Lead Counsel for the Class.
Excluded from the Class are defendants, and their officers,
directors, management, employees, subsidiaries, or
affiliates, and, all federal governmental entities. Also
excluded from the class are educational institutions such
as universities and colleges.
Attorneys for Direct Purchaser Class Plaintiffs:
Patrick C. Lynch, Esq.
Jeffrey B. Pine, Esq.
Maria F. Deaton, Esq.
LYNCH AND PINE
One Park Row, 5th Floor
Providence, RI 02903
Telephone: (401) 274 3306
E-mail: patrick@patricklynchgroup.com
jbp@pinelaw.com
mdeaton@lynchpine.com
- and -
Daniel J. Walker, Esq.
BERGER & MONTAGUE, P.C.
2001 Pennsylvania Avenue, NW, Suite 300
Washington, DC 20006
Telephone: (202) 559 9745
E-mail: dwalker@bm.net
- and -
David F. Sorensen, Esq.
Ellen T. Noteware, Esq.
Zachary D. Caplan, Esq.
BERGER & MONTAGUE, P.C.
1622 Locust Street
Philadelphia, PA 19103
Telephone: (215) 875 3000
E-mail: dsorensen@bm.net
enoteware@bm.net
zcaplan@bm.net
- and -
Joseph H. Meltzer, Esq.
Terence S. Ziegler, Esq.
KESSLER TOPAZ MELTZER & CHECK LLP
280 King of Prussia Road
Radnor, PA 19087
Telephone: (610) 667 7706
E-mail: jmetlzer@ktmc.com
- and -
Thomas M. Sobol, Esq.
Kristen Johnson, Esq.
HAGENS BERMAN SOBOL
SHAPIRO LLP
55 Cambridge Parkway, Suite 301
Cambridge, MA 02142
Telephone: (617) 482 3700
E-mail: tom@hbsslaw.com
kristenj@hbsslaw.com
- and -
Peter R. Kohn, Esq.
Neill W. Clark, Esq.
David Calvello, Esq.
FARUQI & FARUQI LLP
101 Greenwood Ave., Suite 600
Jenkintown, PA 19046
Telephone: (215) 277 5770
E-mail: pkohn@faruqilaw.com
MDL 2795: Plaintiffs Can't Compel Production of Gov't Probe Docs
----------------------------------------------------------------
The United States District Court for the District of Minnesota
granted in part and denied in part Plaintiffs' Motion to Compel
Production of Documents in the case captioned IN RE CENTURYLINK
SALES PRACTICES AND SECURITIES LITIGATION. This document relates
to: 0:17-cv-02832, 0:17-cv-04613, 0:17-cv-04614, 0:17-cv-04615,
0:17-cv-04616, 0:17-cv-04617, 0:17-cv-04618, 0:17-cv-04619,
0:17-cv-04622, 0:17-cv-04943, 0:17-cv-04944, 0:17-cv-04945,
0:17-cv-04947, 0:17-cv-05001, 0:17-cv-05046, MDL No.
0:17-md-02795-MJD-KMM (D. Minn.).
The Plaintiffs in this multi-district litigation claim that
CenturyLink employed wide-spread deceptive and unlawful sales and
billing practices in connection with its telecommunications
services. CenturyLink's alleged wrongful conduct included: quoting
certain prices but failing to disclose the true amount that would
later be billed; promoting or incentivizing representatives to
overbill customer accounts with unauthorized charges; and
dismissing or denying customer complaints.
The Plaintiffs' motion raises eight separate issues:
1. First, the Plaintiffs argue that CenturyLink should produce
documents concerning the investigation conducted by the law firm of
O'Melviney & Myers (OMM).
2. Second, the Plaintiffs assert that CenturyLink should be
required to provide all documents that were produced to various
governmental entities investigating CenturyLink's sales and billing
practices.
3. Third, the Plaintiffs argue that the Proposed Intervenors
should produce documents related to their business structures and
operations.
4. Fourth, the Plaintiffs seek production of business cards for
certain specifically-listed key employees of the Proposed
Intervenors ad for persons who have or will file declarations in
this litigation.
5. Fifth, the Plaintiffs seek documents showing positions that
the Proposed Intervenors' executives have held with other
CenturyLink entities.
6. Sixth, the Plaintiffs ask the Court to order production of
the organizational charts of each of the Operating Companies.
7. Seventh, the Plaintiffs ask the Court to require the
Operating Companies to produce a variety of documents relating to
the ownership of branding and intellectual property.
8. Finally, the Plaintiffs argue that Proposed Intervenors
should produce documents showing judgments against CenturyLink for
the subsidiaries and their employees.
1. OMM Documents. The motion is denied to the extent that it seeks
an order compelling CenturyLink to produce all documents related to
the OMM investigation, including the report of the findings and
conclusions reached and the millions of documents provided to OMM
for review. Production of the OMM documents would contain an
enormous volume of class-wide information largely directed at the
merits of the case and an unknown, but perhaps very small, amount
of discovery actually relevant to the pending defense motions. This
is just the sort of broad that the District Court found should not
be produced at this time.
The requested OMM documents are in no way essential to resolving
the issues that are now before the District Court.
2. Government Investigation Documents. The motion is denied to the
extent it seeks an order compelling production of all documents
provided by CenturyLink to any government or law enforcement entity
that investigated CenturyLink's sales, servicing, and billing
policies, practices and procedures. The Court reaches this
conclusion for the same reasons discussed above with respect to the
OMM documents. Request No. 5 to CenturyLink is an indirect and
radically overbroad means of seeking those documents that are
reasonably necessary to respond to the pending defense motions.
3. Proposed Intervenors' Structures and Operations. The motion is
denied to the extent the Plaintiffs seek to compel production of
documents responsive to Plaintiffs' Request No. 1 that have not
already been provided The Court agrees with the Proposed
Intervenors that these areas of discovery are not reasonable or
proportional under the circumstances. Given the number of offices
that are at issue for the Operating Companies, the Court finds that
the burden of producing the disputed documents outweighs their
likely benefit in resolving the issues that are implicated by the
defense motions.
4. Business Cards. The motion is granted to the extent it seeks to
compel production of documents responsive to Plaintiffs' Request
No. 4, and the motion is denied to the extent it seeks to compel
production of documents responsive to Plaintiffs' Request No. 5 to
each of the Proposed Intervenors. The Court rejects the Operating
Companies' arguments that business cards are altogether irrelevant
and disagrees that any production of those cards would be unduly
burdensome.
5. Executive Positions with Other Entities. The motion is granted
to the extent it seeks to compel production of documents responsive
to Plaintiffs' Request No. 6 to each of the Proposed Intervenors.
These documents are reasonably likely to show the extent to which
CenturyLink and any of the Proposed Intervenors have common
management, a fact plainly relevant to the Plaintiffs' argument
that the motion to dismiss for lack of personal jurisdiction should
be denied based on a veil-piercing theory.
6. Organizational Charts. The motion is granted to the extent it
seeks to compel production of organizational charts in response to
Plaintiffs' Request No. 10 to each of the Proposed Intervenors.
These organizational charts will provide information about the
structure of the Operating Companies' businesses that the
Plaintiffs may use to argue that CenturyLink should be subject to
personal jurisdiction. The Operating Companies have failed to show
why production of this information would be unduly burdensome or so
lacking in relevance that it would not be important to the
resolution of the issues involved in the pending defense motions.
7. Branding and Intellectual Property. The motion is denied to the
extent Plaintiffs seek production of documents showing the right to
use the trade name CenturyLink and ownership of intellectual
property in response to Request Nos. 14, 26, 27, and 29 to each of
the Proposed Intervenors. The Court finds that these requests are
significantly overbroad and not narrowly tailored to the discovery
permitted at this stage of the litigation.
8. Employee Judgments. The motion is denied to the extent
Plaintiffs seek production of documents showing that CenturyLink
has paid judgments against the Proposed Intervenors in response to
Request No. 30 to each of the Proposed Intervenors.
A full-text copy of the District Court's June 7, 2018 Order is
available at https://tinyurl.com/yansxxz4 from Leagle.com.
Plaintiffs' Interim Co-Lead Counsel, Plaintiff, represented by
Benjamin Jared Meiselas -- meiselas@geragos.com -- GERAGOS &
GERAGOS, pro hac vice, Brian C. Gudmundson --
brian.gudmundson@zimmreed.com -- Zimmerman Reed, PLLP, Carolyn G.
Anderson -- carolyn.anderson@zimmreed.com -- Zimmerman Reed, PLLP,
Daniel C. Hedlund , Gustafson Gluek PLLC, Francois Michel Blaudeau
-- Francois@southermedlaw.com -- Southern Institute for Medical
&Legal Affairs LLC, Hart L. Robinovitch --
hart.robinovitch@zimmreed.com -- Zimmerman Reed, PLLP, James
McDonough, III -- Jmcdonough@hgdlawfirm.com -- Heninger Garrison
Davis, LLC, Lori G. Feldman -- lfeldman@zlk.com -- Geragos &
Geragos, pro hac vice, Mark J. Geragos -- mark@geragos.com --
GERAGOS & GERAGOS, pro hac vice, Mark M. O'Mara , O'Mara Law Group,
Michelle J. Looby , Gustafson Gluek PLLC, Richard M. Hagstrom --
rhagstrom@hjlawfirm.com -- Hellmuth & Johnson, Roxanne Barton
Conlin , Roxanne Conlin & Associates, P.C., & Timothy R. Langley ,
Hodge & Langley Law Firm, PC.
Defendant's Primary Outside Counsel, Defendant, represented by
David M. Aafedt -- daafedt@winthrop.com -- Winthrop & Weinstine,
PA, David A. Vogel -- dvogel@cooley.com -- Cooley LLP, pro hac
vice, Douglas P. Lobel -- dlobel@cooley.com -- Cooley LLP, pro hac
vice, Jeffrey M. Gutkin -- jgutkin@cooley.com -- Cooley LLP --
Library, Joseph M. Windler -- jwindler@winthrop.com -- Winthrop &
Weinstine, PA & William A. McNab -- wmcnab@winthrop.com -- Winthrop
& Weinstine, PA.
MEDNAX INC: Bernstein Litowitz Files Securities Class Action
------------------------------------------------------------
Bernstein Litowitz Berger & Grossmann LLP ("BLB&G") on July 11
disclosed that it filed a securities class action lawsuit on behalf
of Cambridge Retirement System ("Cambridge") against Mednax, Inc.
("Mednax" or the "Company") (NYSE: MD), and certain of its current
senior executives. The action, which is captioned Cambridge
Retirement System v. Mednax, Inc., et al., No. 0:18-cv-61572-WPD
(S.D. Fla.), asserts claims under the Securities Exchange Act of
1934 (the "Exchange Act") on behalf of investors who purchased
Mednax stock during the period of February 4, 2016 to July 27,
2017, inclusive (the "Class Period").
The complaint alleges that during the Class Period, Mednax violated
the Exchange Act by misleading investors regarding the
sustainability of the Company's business model. Throughout the
Class Period, Mednax's business model depended upon growth from the
acquisition of new practice groups, primarily in anesthesiology. In
truth, Mednax's business model is not sustainable and its growth
was based upon suppressing physician compensation and enforcing
non-compete agreements to deter physician defections. When the
truth regarding the sustainability of Mednax's business model was
finally revealed at the end of the Class Period, the price of the
Company's stock had declined by over 23%.
If you wish to serve as lead plaintiff for the Class, you must file
a motion with the Court no later than September 10, 2018, which is
the first business day on which the District Court for the Southern
District of Florida is open that is 60 days after the publication
date of July 11, 2018. Any member of the proposed class may move
the Court to serve as lead plaintiff through counsel of their
choice, or may choose to do nothing and remain a member of the
proposed class.
Cambridge is represented by BLB&G, a firm of over 100 attorneys
with offices in New York, California, Louisiana, and Illinois. If
you wish to discuss this action or have any questions concerning
this notice or your rights or interests, please contact Avi
Josefson of BLB&G at 212-554-1493, or via e-mail at
avi@blbglaw.com.
Since its founding in 1983, BLB&G -- http://www.blbglaw.com-- has
built an international reputation for excellence and integrity.
Specializing in securities fraud, corporate governance,
shareholders' rights, employment discrimination, and civil rights
litigation, among other practice areas, BLB&G prosecutes class and
private actions on behalf of institutional and individual clients
worldwide. Unique among its peers, BLB&G has obtained several of
the largest and most significant securities recoveries in history,
recovering billions of dollars on behalf of defrauded investors.
[GN]
MEDNAX INC: Cambridge Retirement Sues over 15% Drop in Share Price
------------------------------------------------------------------
CAMBRIDGE RETIREMENT SYSTEM, individually and on behalf of all
others similarly situated, Plaintiff v. MEDNAX, INC.; ROGER J.
MEDEL; and VIVIAN LOPEZ-BLANCO, Defendants, Case No.
0:18-cv-61572-WPD (S.D. Fla., July 10, 2018) alleges that the
Defendants violated the Securities and Exchange Act on account of
their publicly traded common stock between February 4, 2016 and
July 27, 2017, inclusive.
According to the complaint, on February 4, 2016, Mednax announced
its fourth quarter 2015 financial results and assured the market
that its business model was sustainable. The Defendants continued
to tout the Company's business model and assured investors that
there was a strong pipeline for new acquisitions, which would
continue to fuel the Company's growth. For example, on June 7,
2016, the Company's Chief Financial Officer, Vivian Lopez-Blanco,
told attendees at the Jeffries Healthcare Conference that Mednax's
"pipeline is very robust" and that "there will be more acquisitions
to come, because we do have plenty in the pipeline… so again,
there's a lot of room to grow."
These and similar statements were materially false and misleading
because they represented that Mednax's business model was
sustainable through the continued acquisition of anesthesiology
practices. In fact, Mednax's business model was not viable and its
growth was based upon suppressing physician compensation and
invoking non-compete employment clauses to prevent physician
departures.
On July 28, 2017, Mednax surprised the market by announcing that it
had not acquired any anesthesiology practice groups for that
quarter and that the chance of it acquiring any more was remote. In
response to the news, Mednax's stock declined by over 15%.
MEDNAX, Inc., together with its subsidiaries, provides newborn,
anesthesia, maternal-fetal, radiology, pediatric cardiology, and
other pediatric subspecialties physician services in the United
States and Puerto Rico. MEDNAX, Inc. was founded in 1979 and is
based in Sunrise, Florida. [BN]
The Plaintiff is represented by:
Avi Josefson, Esq.
Michael Blatchley, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
1251 Avenue of the Americas
New York, NY 10020
Telephone: (212) 554-1400
Facsimile: (212) 554-1444
E-mail: avi@blbglaw.com
michaelb@blbglaw.com
MELISSA ENTERTAINMENTS: Faces Gomez ADA Suit in S.D. Florida
------------------------------------------------------------
A class action lawsuit has been filed against Melissa
Entertainments Inc. The case is styled as Andres Gomez, on his own
and on behalf of all other individuals similarly situated,
Plaintiff v. Melissa Entertainments Inc. doing business as: Neme
Gastrobar, Defendant, Case No. 1:18-cv-23040-FAM (S.D. Fla., July
26, 2018).
The lawsuit arises under the Americans with Disabilities Act.
Neme Gastro Bar is a gastro bar located in Coral Gables, Fla.[BN]
The Plaintiff is represented by:
Jessica Lynn Kerr, Esq.
The Advocacy Group
200 S.E. 6th Street, Suite 504
Fort Lauderdale, FL 33301
Tel: (954) 282-1858
Fax: (844) 786-3694
Email: service@advocacypa.com
MERCURY SYSTEMS: Faces Securities Class Action in Massachusetts
---------------------------------------------------------------
Gainey McKenna & Egleston on July 11 disclosed that a class action
lawsuit has been filed against Mercury Systems, Inc. ("Mercury
Systems" or the "Company") (Nasdaq:MRCY) in the United States
District Court for the District of Massachusetts on behalf of a
class consisting of investors who purchased or otherwise acquired
Mercury Systems securities between October 24, 2017 and April 24,
2018, seeking to recover compensable damages caused by Defendants'
violations of the Securities Exchange Act of 1934.
The Complaint alleges that Defendants made false and/or misleading
statements and/or failed to disclose that: (1) Mercury's decision
to in-source processing was adversely impacting Mercury's operating
margins and free cash-flow generation and conversion; (2) Mercury's
model was becoming structurally more working capital intensive; and
(3) as a result of the foregoing, Mercury's public statements were
materially false and misleading at all relevant times. When the
true details entered the market, the lawsuit claims that investors
suffered damages.
Investors who purchased or otherwise acquired shares during the
Class Period should contact the Firm prior to the September 10,
2018 lead plaintiff motion deadline. A lead plaintiff is a
representative party acting on behalf of other class members in
directing the litigation. If you wish to discuss your rights or
interests regarding this class action, please contact Thomas J.
McKenna, Esq. or Gregory M. Egleston, Esq. of Gainey McKenna &
Egleston at (212) 983-1300, or via e-mail at tjmckenna@gme-law.com
or gegleston@gme-law.com
Please visit our website at http://www.gme-law.comfor more
information about the firm. [GN]
MERCURY SYSTEMS: RM LAW Discloses Class Action Lawsuit
------------------------------------------------------
RM LAW, P.C., disclosed that a class action lawsuit has been filed
on behalf of all persons or entities that purchased Mercury
Systems, Inc. ("Mercury " or the "Company") (NASDAQ: MRCY)
securities between October 24, 2017 and April 24, 2018, inclusive
(the "Class Period").
Mercury shareholders may, no later than September 10, 2018, move
the Court for appointment as a lead plaintiff of the Class.
The Complaint alleges that Defendants made materially false and/or
misleading statements and/or failed to disclose that: (1) Mercury's
decision to in-source processing was adversely impacting Mercury's
operating margins and free cash-flow generation and conversion; (2)
Mercury's model was becoming structurally more working capital
intensive; and (3) consequently, Mercury's public statements were
materially false and misleading at all relevant times.
On April 24, 2018, Mercury revealed the company's free cash flow
was a net outflow of $2.6 million, compared to a net inflow of
$11.9 million in the previous year's comparable quarter, due to the
company's integration of its acquisitions and its decision to
in-source its manufacturing. In a conference call to discuss the
company's financial results, Mercury admitted that it had been
experiencing problems with cash for the last three quarters, and
further stated that the company should begin to see improvements in
EBITDA to free cash flow run in fiscal 2019.
On this news, Mercury's stock fell over 18% to close at $34.91 on
April 25, 2018.
If you are a member of the class, you may, no later than September
10, 2018, request that the Court appoint you as lead plaintiff of
the class. A lead plaintiff is a representative party that acts on
behalf of other class members in directing the litigation. In
order to be appointed lead plaintiff, the Court must determine that
the class member's claim is typical of the claims of other class
members, and that the class member will adequately represent the
class. Under certain circumstances, one or more class members may
together serve as "lead plaintiff." Your ability to share in any
recovery is not, however, affected by the decision whether or not
to serve as a lead plaintiff. You may retain RM LAW, P.C. or other
counsel of your choice, to serve as your counsel in this action.
Richard A. Maniskas, Esq.
RM LAW, P.C.
1055 Westlakes Dr., Ste. 300
Berwyn, PA 19312
Telephone: 484-324-6800
844-291-9299
Email: rm@maniskas.com [GN]
MIDLAND CREDIT: Jennings Sues over Debt Collection Practices
------------------------------------------------------------
Allen Jennings, on behalf of himself and all others similarly
situated, the Plaintiff, v. Midland Credit Management, Inc. and
Midland Funding, LLC, the Defendants, Case No.
2:18-cv-12271-SJM-DRG (E.D. Mich., July 19, 2018), seeks to recover
damages pursuant to the Fair Debt Collection Practices Act.
According to the complaint, Midland Funding has no other
substantial business purpose except to purchase or otherwise
acquire title to defaulted debt and profit from collected debts.
Midland Funding acquired Plaintiff's Debt after it was alleged to
be in default. MCM acted on behalf of Midland Funding to collect or
attempt to collect the Debt from Plaintiff. In connection with the
collection of the Debt, MCM sent Plaintiff a letter dated September
22, 2017.
The September 22, 2017 letter states "this letter is to inform you
that we are considering forwarding this account to an attorney in
your state for possible litigation." The letter goes on to state
"if this account goes to an attorney, our flexible options may no
longer be available to you." The statement "if this account goes to
an attorney, our flexible options may no longer be available to
you" was a false or misleading statement. Defendants had no
intention of withdrawing flexible payment options if the Debt was
referred to collection by an attorney. Defendants routinely offered
individuals flexible payment options even after a debt has been
referred to an attorney for collections.[BN]
Attorney for Plaintiff
Joseph Panvini, Esq.
THOMPSON CONSUMER LAW GROUP, PLLC
5235 E. Southern Ave. D106-618
Mesa, AZ 85206
Telephone: (602) 388 8875
Facsimile: (866) 317 2674
E-mail: jpanvini@ThompsonConsumerLaw.com
MLB ADVANCED: 9th Circuit Appeal Filed in Perry Class Action
------------------------------------------------------------
Plaintiff Erin L. Perry filed an appeal from a court ruling entered
in the lawsuit entitled Erin Perry v. MLB Advanced Media L.P., et
al., Case No. 2:18-cv-01548-PSG-GJS, in the U.S. District Court for
the Central District of California, Los Angeles.
As previously reported in the Class Action Reporter, the Plaintiff
claims that MLB Advanced Media, doing business as MLB.Com, offers a
one-year subscription for $79.99, but automatically renews at
$112.99 after eight months, double-billing for the final four
months of the first year.
The appellate case is captioned as Erin Perry v. MLB Advanced Media
L.P., et al., Case No. 18-55889, in the United States Court of
Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Appellant Erin L. Perry's opening brief is due on
August 27, 2018;
-- Appellees Does and MLB Advanced Media L.P.'s answering
brief is due on September 27, 2018; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiff-Appellant ERIN L. PERRY, individually, and on behalf of
other members of the general public similarly situated, is
represented by:
Adrian Bacon, Esq.
LAW OFFICES OF TODD FRIEDMAN PC
21550 Oxnard Street, Suite 780
Woodland Hills, CA 91367
Telephone: (877) 206-4741
E-mail: abacon@toddflaw.com
- and -
Todd M. Friedman, Esq.
LAW OFFICES OF TODD M. FRIEDMAN
324 S. Beverly Drive
Beverly Hills, CA 90212
Telephone: (877) 206-4741
E-mail: tfriedman@toddflaw.com
Defendant-Appellee MLB ADVANCED MEDIA L.P., DBA MLB.com, is
represented by:
Sophie A. Hood, Esq.
Robert Adam Lauridsen, Esq.
KEKER, VAN NEST & PETERS LLP
633 Battery Street
San Francisco, CA 94111
Telephone: (415) 391-5400
E-mail: shood@keker.com
alauridsen@keker.com
MONARCH RECOVERY: Benzriouil Sues over Debt Collection Practices
----------------------------------------------------------------
Simohamed Benzriouil, individually and on behalf of all other
similarly situated, Plaintiff v. Monarch Recovery Management, Inc.,
Defendant, Case No. 1:18-cv-03939-WFK-RER (E.D.N.Y., July 10, 2018)
seeks to stop the Defendant's unfair and unconscionable means to
collect a debt. The case in assigned to Judge William F. Kuntz, II
and referred to Magistrate Judge Ramon E. Reyes, Jr.
Monarch Recovery Management, Inc., an accounts receivable
management company, provides financial recovery solutions. The
company was formerly known as Academy Collection Service, Inc. and
changed its name to Monarch Recovery Management, Inc. in April
2010. Monarch Recovery Management, Inc. was founded in 1971 and is
based in Philadelphia, Pennsylvania. [BN]
The Plaintiff is represented by:
Jacob Silver, Esq.
237 Club Dr
Woodmere, NY 11598
Telephone: (718) 855-3834
Facsimile: (718) 534-0057
E-mail: silverbankruptcy@gmail.com
MONSANTO COMPANY: Sweeney Appeals Orders in "Rawa" to 8th Cir.
--------------------------------------------------------------
Objector Patrick Sweeney filed an appeal from the District Court's
Memorandum & Order dated May 25, 2018, and Orders, both dated June
13, 2018, in the lawsuit styled Joshua Rawa, et al. v. Monsanto
Company, Case Nos. 4:17-cv-01252-AGF and 4:17-cv-02300-AGF, in the
U.S. District Court for the Eastern District of Missouri - St.
Louis.
As previously reported in the Class Action Reporter, the case
alleges that label instructions that say the "up to" the amount
displayed on the front of the container was deceptive because that
statement was based on a mixing instruction "buried" inside the
booklet label rather than on the front of the back booklet label.
The Plaintiffs say that "reasonable consumers" would not see it
before buying because they would not feel they were permitted to
open the booklet label before purchase. They claim the practice
violates the Missouri Merchandise Practices Act.
The appellate case is captioned as Joshua Rawa, et al. v. Patrick
Sweeney, Case No. 18-2402, in the United States Court of Appeals
for the Eighth Circuit.
The Clerk of Court stated that the $505 appellate filing and
docketing fee has not been paid and is due.
According to the Clerk's order, the Appellant is directed to either
pay the fee in the District Court or file a motion for leave to
proceed in forma pauperis in the District Court within 21 days of
the date of the Order. If the Appellant does not pay the fee or
move for IFP status by July 19, 2018, a show cause order will be
entered directing the Appellant to show cause why this appeal
should not be dismissed for failure to prosecute.
Objector-Appellant Patrick Sweeney, of Madison, Wisconsin, appears
pro se.[BN]
Plaintiff-Appellee Joshua Rawa, on behalf of himself and all others
similarly situated, is represented by:
Thomas A. Canova, Esq.
LAW OFFICE OF JACK FITZGERALD, P.C.
3636 Fourth Avenue, Suite 202
San Diego, CA 92103
Telephone: (619) 692-3840
E-mail: tom@jackfitzgeraldlaw.com
- and -
Sidney W. Jackson, III, Esq.
JACKSON & FOSTER, LLC
P.O. Box 2225
Mobile, AL 36652
Telephone: (251) 433-6699
Facsimile: (251) 433-6127
E-mail: sid@jacksonfosterlaw.com
Plaintiffs-Appellees Joshua Rawa, on behalf of himself and all
others similarly situated, Elisabeth Martin, Robert Ravencamp, Amy
Ward, Cynthia Davies, Christopher Abbott, Owen Olson, Jeannie A.
Gilchrist, Zachary Sholar, Matthew Myers, John W. Beard, Jr., and
Michael Overstreet are represented by:
Kevin J. Dolley, Esq.
LAW OFFICES OF KEVIN J. DOLLEY
2726 S. Brentwood Boulevard
Saint Louis, MO 63105
Telephone: (314) 645-4100
Facsimile: (314) 736-6216
E-mail: kevin@dolleylaw.com
- and -
John Joseph Fitzgerald, IV, Esq.
LAW OFFICE OF JACK FITZGERALD, P.C.
3636 Fourth Avenue, Suite 202
San Diego, CA 92103
Telephone: (619) 692-3840
E-mail: jack@jackfitzgeraldlaw.com
Defendant-Appellee Monsanto Company is represented by:
Matthew R. Grant, Esq.
Erik L. Hansell, Esq.
HUSCH BLACKWELL LLP
190 Carondelet Plaza, Suite 600
Saint Louis, MO 63105-3441
Telephone: (314) 480-1500
E-mail: matt.grant@husch.com
erik.hansell@huschblackwell.com
- and -
John J. Rosenthal, Esq.
WINSTON & STRAWN LLP
1700 K Street, N.W.
Washington, DC 20006-3817
Telephone: (202) 282-5785
E-mail: jrosenthal@winston.com
MONSANTO CORP: South Dakota Farmer Seeks Class Action
-----------------------------------------------------
Jonathan Ellis, writing for Argus Leader, reports that a Bonesteel
farmer has filed suit against the chemical giant Monsanto after his
crops were damaged by herbicide drift.
Kay Don Jons blames Monsanto for releasing soybean seeds that were
genetically resistant to an herbicide called dicamba. Farmers who
sprayed their Monsanto crops with dicamba damaged neighboring crops
that weren't genetically modified.
Jons' lawsuit seeks class-action status for all farmers who were
damaged by Monsanto's actions. It's unclear how many farmers that
could be. Currently, the South Dakota Department of Agriculture is
conducting a survey to ascertain how much damage was done.
"We have received several complaints of damage allegedly caused by
dicamba," department spokeswoman Maggie Stensaas said in an email.
"We have been investigating claims as they are reported and
gathering samples."
Nationally, there were more than 2,700 dicamba injury cases under
investigation by various state authorities, according to Jons'
lawsuit. Steve Johnson,Esq. a Sioux Falls lawyer representing Jons,
called it "a valid and serious matter" in an email.
In a statement, Scott Partridge, a Monsanto vice president, said:
""We have not yet been served but will review the lawsuit in due
course. Our customers tell us they are experiencing outstanding
weed control and achieving on-target applications across 50 million
acres of Roundup Ready 2 Xtend soybeans and cotton with XtendFlex
Technology. Growers need this technology to fight tough-to-manage
weeds on their fields.
Dicamba has existed for decades, but was rarely used. Monsanto
developed seeds that would allow farmers to use dicamba to kill
weeds. But the chemical is highly volatile and drifts easily,
according to the lawsuit.
In 2017, Jons planted 500 acres of non-dicamba tolerant soybeans.
His neighbor planted Monsanto soybeans resistant to dicamba and
hired a professional applicator to spray the herbicide, the lawsuit
says.
"In May or early June, Jons began to notice cupping of his soybeans
and stunted growth typically associated with dicamba herbicide
damage," the lawsuit says.
The lawsuit also accuses Monsanto of forcing growers to have to buy
Monsanto's seeds in order to avoid damage to their crops.
"Defendant Monsanto's conduct here is consistent with its
historical track record of disregarding the social, economic, and
environmental consequences of its agriculture experiments," the
lawsuit says. [GN]
MV PUBLIC TRANS: Jene White Sues over Work-Related Expenses
-----------------------------------------------------------
JENE WHITE on behalf of himself, and all others similarly situated,
the Plaintiff, v. MV PUBLIC TRANSPORTATION, INC. dba MV PUBLIC
TRANSPORTATION and DOES 1 through 50, inclusive, the Defendant,
Case No. RG18913454 (Cal. Super., Ct., July 19, 2018), alleges that
Defendant unlawfully failed to reimburse employees for work-related
expenses in violation of applicable Industrial Welfare Commission
Wage Orders and California Labor Code section 2802; failed to pay
employees for all hours worked, in that Defendant failed to pay a
maintenance allowance to compensate the employees for maintaining
the uniforms Defendant; required employees to wear for work, in
violation of Wage Order and California Labor Code; and failed to
furnish employees with accurate wage statements in violation of
Labor Code section 226(a).
MV Transportation is the largest privately-owned passenger
transportation contracting services firm in the United States.[BN]
Attorneys for Jene White on behalf of himself and all others
similarly situated:
PC Robin G. Workman, Esq.
Rachel E. Davey, Esq.
WORKMAN LAW FIRM
177 Post Street, Suite 800
San Francisco, CA 94108
Telephone: (415) 782 3660
Facsimile: (415) 788 1028
E-mail: robin@workmanlawpc.com
rachel@workmanlawpc.com
NATIONWIDE CREDIT: Stoessel Sues over Debt Collections Practices
----------------------------------------------------------------
Shloma Stoessel, individually and on behalf of all others similarly
situated, the Plaintiff, v. Nationwide Credit, Inc. and John Does
1-25, the Defendants, Case No. 1:18-cv-04141 (E.D.N.Y., July 19,
2018), seeks to recover damages and declaratory and injunctive
relief under the Fair Debt Collections Practices Act.
According to the complaint, Defendant's February 2, 2018 Collection
Letter contained language that implies that the consumer may
enhance its likelihood of future approval for credit products by
paying the alleged debt in full, rather than accept a reduced
settlement amount. Specifically, the second paragraph of
Defendant's letter contained an offer to settle the $18,566.42
balance for a reduced amount of $2,784.96. However, the fifth
paragraph continues: "If we settle this debt with you for less that
the full outstanding balance, Chase may offer you less favorable
terms in the future for some Chase products or services or may deny
your application." This language implies that if the Plaintiff
settles the stated balance for a reduced amount, as opposed to
paying the stated balance in full, Plaintiff may reduce her
likelihood of receiving future credit products from Chase Bank or
reduce her overall creditworthiness. This language is false and
deceptive, since approval in the future has to do with a person's
credit, and by implying that paying in full will help your chance
of being approved is false statement. Further this language is
deceptive and overshadowing as it does not truly afford the
consumer of its proper rights and ability to dispute the debt, as
it encourages only payment in full of the stated amount of the debt
rather than disputing and only paying part of it.
As a result of Defendant's deceptive, misleading and unfair debt
collection practices, Plaintiff has been damaged.[BN]
The Plaintiff is represented by:
Daniel Kohn, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Telephone: (201) 282 6500
E-mail: dkohn@steinsakslegal.com
NEXEN CORPORATION: Certification of FLSA Class Sought
-----------------------------------------------------
In the lawsuit captioned GREGORY GRIFFIN and MAXWELL MCKEARNEN, on
behalf of themselves and all other persons similarly situated,
known and unknown, the Plaintiffs, v. THE NEXEN CORPORATION, a
Michigan for-profit business, STEVEN KIRKA, a natural person, and
AMAZON.COM, INC., a Delaware for-profit business, the Defendants,
Case No. 2:18-cv-12369-LJM-APP (E.D. Mich.), the Plaintiff asks the
Court for an order:
1. conditionally certifying a collective action and
authorizing the dissemination of a written notice to:
"all similarly situated employees pursuant to the 'opt-in'
mechanism authorized by the Fair Labor Standards Act,
29 U.S.C. section 216(b);
2. permitting a 60-day period for additional plaintiffs to
join this litigation;
3. directing Defendants to provide each employee's last known
telephone number, last known mailing address, and last
known e-mail address within 10 days from the entry of the
Court's Order;
4. requiring proposed notice to be posted in Defendants'
workplaces (away from view of customers but in a common
place for its employees to view); and
5. allowing Plaintiffs to contact putative class members by
phone regarding their right to join this lawsuit.
Attorneys for Plaintiffs:
Bryan Yaldou, Esq.
Omar Badr, Esq.
THE LAW OFFICES OF BRYAN YALDOU, PLLC
23000 Telegraph, Suite 5
Brownstown, MI 48134
Telephone: (734) 692 9200
Facsimile: (734) 692 9201
E-mail: bryan@yaldoulaw.com
NGU TRANSPORT: Fails to Pay Minimum & OT Wages, Henriquez Says
--------------------------------------------------------------
JASON HENRIQUEZ, individually and on behalf of all others similarly
situated, the Plaintiff, v. NGU TRANSPORT LLC, a California limited
liability company; DSI LOGISTICS, INC., a Nevada corporation, and
DOES 1 through 25, the Defendants, Case No. BC714165 (Cal. Super.
Ct., July 19, 2018), alleges that Defendants failed to pay minimum
wage and overtime wage; failed to provide meal and rest breaks; and
failed to pay unpaid wages at time of discharge, pursuant to the
California Labor Code.
According to the complaint, the Plaintiff and the Class were
required to work in excess of eight hours in any day and/or more
than four hours during the workweek and/or work more than eight
hours on the seventh day of a workweek. The Plaintiff and the Class
were not compensated for this overtime at the premium rates
required by Labor Code Section 510. Accordingly, Plaintiff and the
rest of the Class are entitled to recover from Defendants unpaid
overtime that they incurred within the applicable limitations
period until the date that the Class is certified, interest
thereon, together with their reasonable attorneys' fees and
costs.[BN]
Attorneys for Plaintiff Jason Henriquez, individually and on behalf
of all others similarly situated:
Aaron C. Gundzik, Esq.
Rebecca G. Gundzik, Esq.
GARTENBERG GELFAND HAYTON LLP
15260 Ventura Blvd., Suite 1920
Sherman Oaks, CA 91403
Telephone: (213) 542 2100
Facsimile: (213) 542 2101
- and -
Marshall A. Caskey, Esq.
Daniel M. Holzman, Esq.
N. Cory Barari, Esq.
CASKEY & HOLZMAN
24025 Park Sorrento, Ste. 400
Calabasas, CA 91302
Telephone: (818) 657 1070
Facsimile: (818) 297 1775
NORMANDIE HOTEL: Karen Alvarado Seeks Unpaid Wages
--------------------------------------------------
KAREN ROXANA CEA ALVARADO, individually and on behalf of himself
and others similarly situated, the Plaintiff, v. NORMANDIE HOTEL
LA, LLC, a California limited liability company; and DOES 1 through
20, inclusive, the Defendants, Case No. BC714166 (Cal. Super. Ct.,
July 19, 2018), alleges that Defendants failed to pay wages;
provide rest periods; indemnify for necessary business expenses;
and provide itemized wage and hour statements, pursuant to the
California Labor Code.[BN]
The Plaintiff is represented by:
Ramin R. Younessi, Esq.
LAW OFFICES OF RAMIN R. YOUNESSI
3435 Wilshire Boulevard, Suite 2200
Los Angeles, CA 90010
Telephone: (213) 480 6200
Facsimile: (213) 480 6201
OCWEN FINANCIAL: Bergan Suit Moved to Eastern Dist. of Arkansas
---------------------------------------------------------------
The class action lawsuit titled Dagmar Bergan, individually and on
behalf of all others similarly situated, the Plaintiff, v. Ocwen
Financial Corporation and Ocwen Loan Servicing LLC, the Defendants,
Case No. 54CV-18-00146, was removed from the U.S. District Court
for Phillips County Circuit Court, to the U.S. District Court for
the Eastern District of Arkansas (Helena) on July 19, 2018. The
Eastern District of Arkansas Court Clerk assigned Case No.
2:18-cv-00102-BSM to the proceeding. The case is assigned to the
Hon. Judge Brian S. Miller.
Ocwen Financial is a provider of residential and commercial
mortgage loan servicing, special servicing, and asset management
services, which has been described as "essentially debt
collectors.[BN]
Attorneys for Plaintiff:
Charles P. Allen, Esq.
ALLEN AND ALLEN LAW FIRM, PLLC
Post Office Box 2602
West Helena, AR 72390
Telephone: (870) 572 6065
Facsimile: (870) 572 4265
- and -
David A. Hodges, Esq.
DAVID HODGES LAW OFFICE
212 Center Street, Suite 500
Little Rock, AR 72201
Telephone: (501) 374 2400
Facsimile: (501) 374 8926
E-mail: david@hodgeslaw.com
Attorneys for Defendants:
Jamie Marie Huffman Jones, Esq.
FRIDAY, ELDREDGE & CLARK, LLP
Regions Center, Suite 2000
400 West Capitol Avenue
Little Rock, AR 72201-3522
Telephone: (501) 370 1430
E-mail: jjones@fridayfirm.com
- and -
Kevin A. Crass, Esq.
FRIDAY, ELDREDGE & CLARK, LLP
Regions Center, Suite 2000
400 West Capitol Avenue
Little Rock, AR 72201-3522
Telephone: (501) 370-1592
E-mail: crass@fridayfirm.com
OCWEN LOAN: Violates Mortgage Foreclosure Act, Parra Says
---------------------------------------------------------
Jose L. Parra, individually and on behalf of all others similarly
situated, the Plaintiff, v. Ocwen Loan Servicing, LLC, a Delaware
Corporation, the Defendant, Case No. 2018CH09242 (Ill Cir. Ct.,
Cook Cty., July 23, 2018), alleges that Ocwen has failed to apply
"unapplied funds" in foreclosure actions to the outstanding balance
under the Mortgage immediately prior lo foreclosure, between the
years 2008 to the elate of judgment.
The Plaintiff seeks relief for himself and a class of similarly
situated Ocwen mortgagors throughout Illinois and the United
States. According to the complaint, the Plaintiff entered into a
mortgage transaction with Guaranteed Rate, Inc. on November 17,
2006. Pursuant to that transaction Plaintiff executed a Mortgage in
favor of Guaranteed Rate, Inc. On August 29, 2014 the mortgage was
assigned from MERS to Deutsche Bank National Trust Co., as Trustee
for Novastar Mortgage Funding Trust Series 2007-1, Novastar Home
Equity Loan Asset-Backed Certificates, Series 2007-1.
Ocwen is the designated loan servicer for Deutsche and was the
transferee from Deutsche's prior servicer, Saxon Mortgage Services,
Inc. effective April 2, 2012. Ocwen's duties on behalf of Deutsche
included, but were not limited to, the collection, allocation and
entry of Plaintiff's mortgage payments, principal, interest,
unapplied funds, and suspension of account funds. On March 14,
2012 Saxon forwarded its "Welcome to Ocwen Loan Servicing, LLC
letter to the Plaintiff. Ocwen has not applied "unapplied funds" to
the outstanding principal balance under the Mortgage immediately
prior to filing foreclosure proceedings and has not continually
applied or returned said funds to the Plaintiff and the Class,
resulting in erroneous principal, interest, defaults of foreclosure
and balance due, which were misrepresented by Ocwen lo the
Plaintiff and the Class prior to filing of its complaint to
foreclose, which is also in violation of the Illinois Mortgage
Foreclosure Act's, 735 ILCS 5/15-1504(1) requirement that a
complaint for foreclosure include the current unpaid principal
balance.[BN]
The Plaintiff is represented by:
Larry D. Drury, Esq.
Thomas M. Rebholz, Esq.
LARRY D. DRURY, LTD
100 North LaSalle Street, Suite 2200
Chicago, IL 60602
Telephone (312) 346 7950
E-mail: lcld@larrydrury.com
- and -
Marshal P. Morris, Esq.
MARSHAL P. MORRIS LLC
2519 Live Oak Lane
Buffalo Grove, IL 60089
Telephone: (847) 634 2211
E-mail: Mpm727@aol.com
OMEGA FINANCIAL: Joseph Scafide Sues over Telemarketing Calls
-------------------------------------------------------------
JOSEPH SCAFIDE, individually and on behalf all other persons
similarly situated, the Plaintiff, v. OMEGA FINANCIAL ENTERPRISES,
the Defendant, Case No. 2018CH09047 (Ill. Cir. Ct., Cook Cty., July
19, 2018), seeks to recover damages for Defendant's alleged
violations under the Telephone Consumer Protection Act.
This action arises under the TCPA, which is a remedial statute that
was enacted in 1991 in response to consumer complaints over the
explosion of intrusive telemarketing practices. Robocalls and
telemarketing calls are consistently one of the top subjects that
consumers complain about to the Federal Communications Commission,
which receives millions of such complaints each year.
According to the complaint, the Plaintiff registered his
residential land line phone number ending in 0458 with the National
Do Not Call Registry on December 11, 2004. He has remained on the
National Do Not Call Registry for the last fourteen years through
the present without any interruption. Notwithstanding his
registration on the Do Not Call Registry and the prohibition on TCP
A pre-recorded messages, he received repeated unsolicited
pre-recorded telemarketing calls from Omega Financial trying to
sell him financial services. He received the following
pre-recorded calls from Omega Financial with an originating
telephone number of 773 205-2200: July 11, 2018 - 11 :55 a.m. July
11, 2018-12:01 p.m. July 12, 2018-12:16 p.m. July 12, 2018 - 12:22
p.m. July 13, 2018 4:34 p.m. July 13, 2018 4:39 p.m. All of the
foregoing calls from Omega Financial were documented
contemporaneously by Plaintiff. The Plaintiff never consented to
receive these pre-recorded calls. The calls violated the TCPA. The
Plaintiff received more than one call, by or on behalf of
Defendant, within a 12 month period in violation of TCPA
regulations. He is therefore entitled to bring suit under the TCPA
for statutory damages. The calls also violated the pre-recorded
prohibition of the TCPA.[BN]
The Plaintiff is represented by:
LAW OFFICES OF HOWARD PROSSNITZ
1014 Ontario Street
Oak Park, IL 60302
Telephone: 708 203-5747
E-mail: prossnitzlaw@gmail.com
- and -
Adam Szulczewski, Esq.
225 West Washington Street Suite 1600
Chicago, IL 60606
Telephone: (248) 930 6001
E-mail: szulczer@uoutlook.com
ORGANIC FOOD: Underpays Cashiers, Alvarado & Campoverde Allege
--------------------------------------------------------------
BLANCA SUSANA ALVARADO, and GLADYS ELIZABETH CAMPOVERDE,
individually and on behalf of all others similarly situated,
Plaintiffs v. ORGANIC FOOD, NATURAL JUICES & COFFEE SHOP, CORP.;
ORGANIC FOOD NATURAL JUICES AND COFFEE SHOP II CORP.; and ANGEL
ALULEMA, Defendants, Case No. 1:18-cv-03952 (E.D.N.Y., July 10,
2018) is an action against the Defendants for unpaid regular hours,
overtime hours, minimum wages, wages for missed meal and rest
periods.
The Plaintiff Alvarado was employed by the Defendants as cashier
from August 2016 to February 24, 2018. The Plaintiff Campoverde
was employed by the Defendants as cashier from August 13, 2016 to
April 8, 2017.
Organic Food, Natural Juices & Coffee Shop, Corp. is a corporation
with principal place of business in Corona, New York. [BN]
The Plaintiffs are represented by:
Nicole D. Grunfeld, Esq.
KATZ MELINGER PLLC
280 Madison Avenue, Suite 600
New York, NY 10016
Tel: (212) 460-0047
E-mail: ndgrunfeld@katzmelinger.com
PACIFIC MARITIME: Fails to Pay Minimum Wages, Villasenor Says
-------------------------------------------------------------
JASON E. VILLASENOR, individually and on behalf of all others
similarly situated, the Plaintiff, v. PACIFIC MARITIME ASSOCIATION,
a California Corporation, and DOES 1-50, inclusive, the Defendants,
Case No. RG 18913432 (Cal. Super. Ct., July 19, 2018), alleges that
Defendants failed to pay minimum wages; pay overtime; provide meal
periods; authorize and permit rest periods; and timely pay wages.
The Defendants employed Plaintiff as a non-exempt hourly paid
employee working during the liability period at the Port of Oakland
and Port of San Francisco. The Defendants continue to employ
Non-Exempt Employees, however titled, in California and implement a
uniform set of policies and practices to all non-exempt employees,
no matter which port(s) they were assigned to as Plaintiff and
Class Members were tasked with port security, offering their
services to docked cargo ships and cruise liners, such as gangway
watch, gate duty, or shuttling workers from the gate to the work
areas of the various ports or ships.
The Pacific Maritime Association is a non-profit organization based
in San Francisco, California that represents employers of the
shipping industry on the Pacific coast.[BN]
The Plaintiff is represented by:
James R. Hawkins, Esq.
Gregory Mauro, Esq.
JAMES HAWKINS APLC
Research Drive, Suite 200
Irvine, CA 92618
Telephone: (949) 387 7200
Facsimile: (949) 387 6676
E-mail: James@jameshawkinsaplc.com
Greg@jameshawkinsaplc.com
PARKCO BUILDING: Fails to Pay OT & Minimum Wage, Dionicio Says
--------------------------------------------------------------
CESAR DIONICIO, as an individual and on behalf of all others
similarly situated, the Plaintiff, v. PARKCO BUILDING COMPANY, a
California Corporation; and DOES 1 through 100, the Defendants,
Case No. BC714168 (Cal. Super. Ct., July 19, 2018), seeks to
recover unpaid all overtime wages and minimum wage under the
California Labor Code.
The Plaintiff has been employed by Defendants as a non-exempt
Laborer since approximately July 2017. The Plaintiff remains
currently employed by Defendants, but has been on a leave of
absence since approximately September 20, 2017.
Plaintiff worked for Defendants doing demolition and concrete work
on Defendants' parking garage projects. Throughout his employment,
Defendants failed to provide Plaintiff and similarly situated
employees with all timely, duty-free 30-minute meal periods for
every five hours worked due to Defendants' unlawful meal period
policies/practices. Defendants maintained an unlawful meal period
policy/practice that provided for only a single meal period per
shift, regardless of the length of the shift. Therefore, when
Plaintiff and similarly situated employees worked shifts longer
than 10.0 hours in length, Defendants failed to provide a second
timely, duty-free 30-minute meal period.[BN]
Attorneys for Plaintiff:
Paul K. Haines, Esq.
Fletcher W. Schmidt, Esq.
Matthew K. Moen, Esq.
Brittaney de la Torre, Esq.
HAINES LAW GROUP, APC
222 N. Sepulveda Blvd., Suite 1550
El Segundo, CA 90245
Telephone: (424) 292 2350
Facsimile: (424) 292 2355
E-mail: phaines@haineslawgroup.com
fschmidt@haineslawgroup.com
mmoen@hainesIawgroup.com
bdelatorre@haineslawgroup.com
POWERCOMM CONSTRUCTION: Appeals Randolph Suit Ruling to 4th Cir.
----------------------------------------------------------------
Defendants Powercomm Construction, Inc., and David Kwasnik, Sr.,
filed an appeal from a court ruling in the lawsuit styled Gregory
Randolph, et al. v. Powercomm Construction, Inc., et al., Case No.
8:13-cv-01696-GJH, in the U.S. District Court for the District of
Maryland at Greenbelt.
As previously reported in the Class Action Reporter, Plaintiff
Gregory Randolph initiated the lawsuit by filing a proposed class
action under the Maryland Wage and Hour Law and proposed collective
action under the Fair Labor Standards Act. Mr. Randolph alleged
that the Defendants, his former employers, failed to pay their
employees the required wage for overtime work. He sought unpaid
wages with interest, economic damages allowed by the MWHL and FLSA,
attorney's fees, and a declaration that the Defendants had violated
the MWHL and FLSA.
The appellate case is captioned as Gregory Randolph, et al. v.
Powercomm Construction, Inc., et al., Case No. 18-1728, in the
United States Court of Appeals for the Fourth Circuit.[BN]
Plaintiffs-Appellees GREGORY RANDOLPH, on his own behalf and on
behalf of all others similarly situated, DANA BROWN, TWANDA
BANISTER, GREGORY EUBANKS, ARTHUR HINNANT, EZRA CHARLES CALLOWAY,
RHASAAN DARK, RODNEY WILLIAMS, KENNETH JACKSON, GEORGE MILES, JAMAL
DREW, KENNETH SEARLES, DEXTER ANDERSON, BERNARD BROWN, NATESHIA
DECHE BEASLEY, EUNICE MELTON, ROBIN MELTON, EARNEST LEE ALLEN, JR.,
SHANINA WASHINGTON, MELVIN L. WEBB-BEY, SYLVIOUS WILLIAMS, FASIL
ALEMAYEHU, AMISHA BENNETT, EDWARD ROBINSON, DANIELLE SMITH, RONALD
WALL, ROY BENNETT, MELQUIN GAINO, LESLIE GROSS, ANTONIO WALL,
LAMONT NEWTON, ANTHONY WILLS, LAMARR YOUNG, MICHELLE BENNETT,
RODNEY BROOKS, LARRY JEFFERSON, LENARD PRINGLE, JUSTIN FOSTER,
EDDIE PERKINS, SEAN E. PITTMAN, JIMMIE MISSOURI, KEVIN SORRELL,
TERENCE BROWN, TERRANCE DOVE, ERIC SHEFFEY, TERRELL TWITTY, JEFF
JORDAN, SAMUEL HEGWOOD, JOHNNY BOYKIN, BERNARD BENNETT, LAVELLE
GANT, DONALD RAY JONES, CORNELIUS REDFEARN, DARNELL MADDOX, RONALD
YOUNG and CALVIN GORHAM are represented by:
Robert Scott Oswald, Esq.
Nicholas Woodfield, Esq.
EMPLOYMENT LAW GROUP, PC
888 17th Street, NW
Washington, DC 20006-0000
Telephone: (202) 261-2883
E-mail: soswald@employmentlawgroup.com
nwoodfield@employmentlawgroup.com
Defendants-Appellants POWERCOMM CONSTRUCTION, INC., and DAVID
KWASNIK, SR., are represented by:
Robert A. Battey, Esq.
Geoffrey M. Bohn, Esq.
BOHN & BATTEY, PLC
P. O. Box 101685
Arlington, VA 22216
Telephone: (703) 599-7076
E-mail: rbattey@boo.net
gmbohn70@yahoo.com
PRIME FINANCIAL: Terilyn Jukes Sues over Debt Collection Practices
------------------------------------------------------------------
Terilyn Jukes aka Terilyn Julkes individually and on behalf of all
others similarly situated, the Plaintiff, v. Prime Financial
Services and John Does 1-25, the Defendant, Case No. 2:18-cv-00265
(N.D. Ind., July 19, 2018), seeks to recover damages under the Fair
Debt Collection Practices Act.
According to the complaint, some time prior to August 15, 2017, an
obligation was allegedly incurred to Methodist Richardson Medical
Center. The obligation arose out of a transaction involving a
medical debt incurred by Plaintiff with MRMC in which money,
property, insurance or services, which are the subject of the
transaction, are primarily for personal, family or household
purposes. The alleged MRMC obligation is a "debt" as defined by 15
U.S.C. section 1692a(5). MRMC is a "creditor" as defined by 15
U.S.C. section 1692a(4). MRMC contracted the Defendant to collect
the alleged debt. The Defendant collects and attempts to collect
debts incurred or alleged to have been incurred for personal,
family or household purposes on behalf of creditors using the
United States Postal Services, telephone and internet.
Prime Financial Services has been assisting healthcare providers
for over 20 years with the revenue cycle process.[BN]
Attorneys for Plaintiff:
Rachel Drake, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Telephone: (201) 282 6500
Facsimile: (201) 282 6501
E-mail: rdrake@steinsakslegal.com
PROTHENA CORPORATION: Ramezani Sues over 69% Drop in Share Price
----------------------------------------------------------------
MICHAEL RAMEZANI, individually and on behalf of all others
similarly situated, Plaintiff v. PROTHENA CORPORATION PLC; GENE G.
KINNEY; TRAN B. NGUYEN; and SARAH NOONBERG, Defendants, Case No.
3:18-cv-04035 (July 5, 2018) alleges violation of the Securities
and Exchange Act.
According to the complaint, the Defendants are a development-stage
biotechnology company. On October 15, 2015 and April 20, 2018, the
Defendants' principal asset was NEOD001, a monoclonal antibody
designed to treat amyloid light chain amyloidosis ("AL
amyloidosis") which is a debilitating disease that can lead to
organ failure and death.
The Defendants cited the "best response" results of their ongoing
Phase 1/2 clinical study of NEOD001 as evidence that the drug was
effective, while withholding relevant trial data showing that
NEOD001 was not an effective treatment for AL amyloidosis. In
addition, Defendants made misleading comparisons of NEOD001's "best
response" rates against prior studies that measured sustained
responses after a specified period of time, and falsely told
investors that their ongoing Phase 1/2 study provided a strong
basis for late-stage Phase 2b and Phase 3 studies of NEOD001.
However, the full Phase 1/2 study data demonstrated that NEOD001
was not an effective treatment for AL amyloidosis and did not
provide an adequate basis for the late-stage Phase 2b and Phase 3
studies.
On April 23, 2018, before the market opened, the Defendants stunned
investors by announcing that it was ending all development of
NEOD001 after data from its Phase 2b PRONTO trial showed that
NEOD001 failed to reach either its primary or secondary endpoints,
and was substantially less effective than a placebo. On this news,
the price of the Defendants' stock fell from $36.84 per share on
April 20, 2018, the prior trading day, to close at $11.50 per share
on April 23, 2018, a drop of 69%.
Prothena Corporation plc, a late-stage clinical biotechnology
company, focuses on the discovery, development, and
commercialization of novel immunotherapies for the treatment of
diseases in the neuroscience and orphan categories. Prothena
Corporation plc was incorporated in 2012 and is headquartered in
Dún Laoghaire, Ireland. [BN]
The Plaintiff is represented by:
Jennifer Pafiti, Esq.
POMERANTZ LLP
468 North Camden Drive
Beverly Hills, CA 90210
Telephone: (818) 532-6499
E-mail: jpafiti@pomlaw.com
QUEST DIAGNOSTICS: Wilson Sues over Unwanted Telephone Calls
------------------------------------------------------------
JUDY WILSON, on behalf of herself and all others similarly
situated, the Plaintiff, v. QUEST DIAGNOSTICS INCORPORATED, QUEST
DIAGNOSTICS CLINICAL LABORATORIES, INCORPORATED, the Defendant,
Case No. 2:18-cv-11960 (D.N.J., July 23, 2018), seeks injunctive
relief and statutory damages arising out of and relating to the
conduct of Defendants in negligently, knowingly, and willfully
contacting Plaintiff and class members on their telephones using an
Automatic Telephone Dialing System without their prior express
written consent within the meaning of the Telephone Consumer
Protection Act.
According to the complaint, Quest Diagnostics called Ms. Wilson's
cellular telephone numerous times using an automatic telephone
dialing system, including a call on June 20, 2018, from telephone
number 888-789-5118. The Defendants placed these calls with a
predictive dialer with the capacity to store and dial a list of
telephone numbers without human intervention. The Plaintiff did
not give Defendants prior express written consent to make these
calls.
Quest Diagnostics Incorporated is an American clinical laboratory
with headquarters in Madison, New Jersey. Founded in 1967 as
Metropolitan Pathology Laboratory, Inc., it became an independent
corporation with the Quest name on December 31, 1996.[BN]
Attorneys for Plaintiff:
Andrew Obergfell, Esq.
BURSOR & FISHER, P.A.
888 Seventh Avenue
New York, NY 10019
Telephone: (646) 837 7150
Facsimile: (212) 989 9163
E-Mail: aobergfell@bursor.com
R & W SOUTH: Faces ADA Class Action in New York
-----------------------------------------------
R & W South Beach is facing a class action lawsuit New York. The
case is styled as Andres Gomez, on his own and on behalf of all
other individuals similarly situated, Plaintiff v. R & W South
Beach doing business as: Hand & Stone Massage and Facial Spa,
Defendant, Case No. 1:18-cv-04235-CBA-SMG (E.D. N.Y., July 26,
2018).
The lawsuit arises under the Americans with Disabilities Act.
Hand & Stone Massage and Facial Spa is a chain of franchised
massage spas in the United States founded in 2004 by John Marco.
The spa offers various massages including Swedish massage, hot
stone massage, couples massage, foot massage and facials.[BN]
The Plaintiff is represented by:
Jessica Lynn Kerr, Esq.
The Advocacy Group
200 S.E. 6th Street, Suite 504
Fort Lauderdale, FL 33301
Tel: (954) 282-1858
Fax: (844) 786-3694
Email: service@advocacypa.com
RICHMOND, VA: White Seeks Back Wages under FLSA
-----------------------------------------------
VINCENT WHITE, individually and on behalf of others similarly
situated, the Plaintiff, v. CITY OF RICHMOND, VIRGINIA, the
Defendants, Case No. 3:18-cv-00504-JAG (E.D. Va., July 20, 2018),
requires Defendant to pay back wages owed to Plaintiff, which
Defendant failed to pay in violation of the Fair Labor Standards
Act of 1938.
Richmond is a city in British Columbia, Canada, and the site of
Vancouver International Airport. Known for its Asian influences,
it's home to the International Buddhist Temple, an elaborate
complex resembling Beijing's Forbidden City.[BN]
Counsel for Plaintiff:
Tim Schulte, Esq.
Blackwell N. Shelley, Jr., Esq.
SHELLEY CUPP SCHULTE, P.C.
2020 Monument Avenue, First Floor
Richmond VA 23220
Telephone: (804) 644 9700
Facsimile: (804) 278 9634
E-mail: schulte@scs-work.com
shelley@scs-work.com
RIVER 2 RIVER: Murphy Files ADA Suit in S.D. New York
-----------------------------------------------------
James Murphy filed a class action lawsuit against River 2 River
Realty, Inc. under the Americans with Disabilities Act. The case
is styled as James Murphy, on behalf of himself and all others
similarly situated, Plaintiff v. River 2 River Realty, Inc.,
Defendant, Case No. 1:18-cv-06747 (S.D. N.Y., July 26, 2018).
River 2 River Realty, Inc. is a Real estate agency in New York
City, New York.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
ROOTER HERO: Cecena Seeks Overtime Wages under Labor Code
---------------------------------------------------------
JERMAINE CECENA, as individual and on behalf of all others
similarly situated, the Plaintiff, v. ROOTER HERO PLUMBING, INC., a
California corporation; RHSF, INC., a California corporation; and
DOES 1 through 25, inclusive, the Defendants, Case No. 18CV331610
(Cal. Super. Ct., July 19, 2018), alleges that Defendants failed to
pay overtime wages; pay reporting time wages; provide meal periods;
and authorize and permit rest periods, pursuant to the California
Labor Code.
According to the complaint, the Defendants have acted intentionally
and with deliberate indifference and conscious disregard to the
rights of all employees in receiving all overtime wages, reporting
time wages, waiting time penalties, off-duty meal and rest periods
and in connection with Defendants' failure to provide accurate
itemized wage statements to Plaintiff and Class Members.[BN]
Attorneys for Plaintiff and the Class:
William L. Marder, Esq.
POLARIS LAW GROUP
501 San Benito SL, Suite 200
Hollister, CA 95023
Telephone: (831) 531 4214
Facsimile: (831) 634 0333
- and -
Dennis S. Hyun, Esq.
HYUN LEGAL, APC
515 S. Figueroa St, Suite 1250
Los Angeles, CA 90071
Telephone: (213) 488 6555
Facsimile: (213) 488 6554
ROSEWOOD COLONY: Filing of Class Cert. Bid Extended to Jan. 4
-------------------------------------------------------------
In the lawsuit captioned HILLARY FENNER, the Plaintiff, v. ROSEWOOD
COLONY OWNERS ASSOCIATION INC. and CLAYTON & MCCULLOH, P.A., the
Defendants, Case No. 6:18-cv-00653-GAP-KRS (M.D. Fla.), the Hon.
Judge Gregory A. Presnell entered an order granting in part
Plaintiff's motion to extend time to file motion for class
certification and Defendant's response in opposition. The deadline
for filing a motion for class certification is extended to January
4, 2019.
As reported by Class Action Reporter, the Fenner case was filed
April 26, 2018.
Rosewood Colony Owners Association Inc. is engaged in the business
of collecting consumer debts, from consumers in the state of
Florida and in Orange County, Florida.[BN]
The Plaintiff is represented by:
Bryant Dunivan, Jr., Esq.
Owen & Dunivan, PLLC
615 E. De Leon St.
Tampa, FL 33606
Tel: (813) 502-6768
Fax: (813) 330-7924
Email: bdunivan@owendunivan.com
SAARMAN CONSTRUCTION: Gutierrez et al. Seek Wages & Overtime Pay
----------------------------------------------------------------
FERNANDO GUTIERREZ; DAVID CASTILLO; MARCO GONZALEZ; individually
and on behalf of others similarly situated, the Plaintiff, v.
SAARMAN CONSTRUCTION, LTD.; SAARMAN, LLC; and DOES 1 through 100,
Inclusive, the Defendant, Case No. CGC-18-568258 (Cal. Super. Ct.,
July 20, 2018), alleges that Defendants failed to pay wages
including state minimum and prevailing wages, failed to pay
overtime wages, failed to furnish accurate wage statements, and
failed to indemnify for work expenses, pursuant to the California
Labor Code.
According to the complaint, Defendants attempted to justify not
paying overtime under this practice by arguing that Plaintiffs and
Class Members still worked a total of not more than 40 hours per
workweek. The Plaintiffs and Class Members were required to use
their personal vehicles to drive to Defendants' job sites, but they
were not reimbursed for their gas, mileage and travel expenses. As
a result of the foregoing practices and policies, Plaintiffs and
Class Members suffered wage and hour violations.
Saarman is engaged in reconstruction, restoration and improvement
of existing and occupied properties in Northern California.[BN]
The Plaintiffs are represented by:
Michael H. Kim, Esq.
Jamielee F. Martinez, Esq.
MICHAEL H. KIM, P.C.
475 El Camino Real, Suite 309
Millbrae, CA 94030
Telephone: (650) 697 8899
Facsimile: (650) 697 8896
SAFEWAY INC: Fails to Pay Hourly & Final Wages, Faciane Says
------------------------------------------------------------
KIMBERLEE FACIANE, on behalf of herself and all others similarly
situated, the Plaintiff, v. SAFEWAY INC., a Delaware corporation;
and DOES l through 50, inclusive, the Defendant, Case No.
RG18913668 (Cal. Super. Ct., July 20, 2018), alleges that
Defendants failed to pay hourly wages, provide accurate written
wage statements, and timely pay all final wages pursuant to the
California Labor Code.
The Plaintiff worked for Defendants as a non-exempt, hourly
employee from September 17, 2017, and was terminated on or about
November 9, 2017. According to the complaint, the Defendants
violated the rights of Plaintiff and the putative class under the
state Labor Code by failing to pay them overtime wages for all
overtime hours worked and as a result of not correctly calculating
their regular rate of pay to include all applicable remuneration,
including, but not limited to, shift differential pay.
Safeway, Inc., is an American supermarket chain founded in 1915. It
is a subsidiary of Albertsons after being acquired by private
equity investors led by Cerberus Capital Management in January
2015.[BN]
The Plaintiff is represented by:
Shaun Setareh, Esq.
Thomas·Segal, Esq.
Farrah Grant, Esq.
SETAREH LAW GROUP
9454 Wilshire Boulevard. Suite 907
Beverly Hills, CA 90212
Telephone (310) 888 7771
Facsimile (310) 888 0109
E-mail: shaun@setarehlaw.com
thomas@tarehlaw.com
Farrah@setarehlaw.com
SEBASTOPOL, CA: Avendano-Ruiz's Class Certification Bid Denied
--------------------------------------------------------------
In the lawsuit entitled NAHUM AVENDANO-RUIZ, the Plaintiff, v. CITY
OF SEBASTOPOL, et al., the Defendants, Case No. 3:15-cv-03371-RS
(N.D. Cal.), the Hon. Judge Richard Seeborg entered an order on
July 30, 2018, denying Avendano-Ruiz's motion for class
certification.
The Court said, "Defendants raise two objections to the class
definition as it currently stands. As to the first issue, whether
the term 'person' in the definition is ambiguous, Avendano-Ruiz is
amenable to replacing the term with 'registered owners' to make
clear that membership in the class is restricted to those persons
who have the right of possession when the vehicle in question was
impounded. Defendants also object to Avendano-Ruiz's effort to
limit the class to those persons who were 'not cited for a
dangerous driving offense,' on the grounds it is unclear which
offenses are considered 'dangerous' for purposes of ascertaining
class membership. Avendano-Ruiz includes as an exhibit to his
motion for class certification a chart summary of all potential
class members, which shows that individuals have been pulled over
for offenses that vary from speeding to driving without functioning
brake lights. The Defendants contend the proposed class includes
individuals who were stopped for what were arguably 'dangerous'
driving offenses, including failure to stop at a stop sign and
driving on the wrong side of the road. Avendano-Ruiz's suggested
solution, which calls upon the Court to review the driving offense
summaries and determine which qualify as 'dangerous' for the
purposes of class membership, is not a reasonable method of
resolving this difficulty. Moreover, Avendano-Ruiz's theory of the
case is that each Section 14602.6 impound is imposed as a blanket
policy, without regard to the nature of the offense that
precipitated the seizure of class members' vehicles. If
certification were otherwise appropriate, the better course of
action would be simply to strike the phrase 'not cited for a
dangerous driving offense' from the class definition."
SHOW TECHNOLOGY: Stanley Seeks Overtime Pay under FLSA
------------------------------------------------------
TARIQUE STANLEY, and all others similarly situated under 29 U.S.C.
section 216(b), Plaintiff(s), v. SHOW TECHNOLOGY, INC. a Florida
corporation, and JOE LOUISSAINT, individually, the Defendants, Case
No. 1:18-cv-22964-UU (S.D. Fla., July 23, 2018), seeks to recover
overtime pay under the Fair Labor Standards Act.
According to the complaint, on or about February 1, 2015, the
Plaintiff began working for Defendants as a non-exempt employee and
assisted in arranging audio/visual presentations including the
programming, preparation, and assembly and disassembly of custom
audio/visual presentations. The Plaintiff continued his employment
with Defendants until on or about February 15, 2016. During
Plaintiff's employment, Defendants compensated Plaintiff at a rate
of $45,000 annually that was intended to cover the first 40 hours
of work per week. This salary yields a regular hourly rate of
$21.63 per hour for the first 40 hours worked each week. The
Defendants failed to compensate Plaintiff, and all others similarly
situated, for any hours ever worked in excess of 40 per week.
STI operates in the information/technology field and specializes in
audio/visual production, and in preparing custom audio/visual
presentations, and was founded by Joe Louissaint.[BN]
The Plaintiff is represented by:
Jordan Richards, Esq.
JORDAN RICHARDS, PLLC
401 East Las Olas Blvd., Suite 1400
Fort Lauderdale, FL 33301
Telephone: (954) 871 0050
E-mail: Jordan@jordanrichardspllc.com
livia@jordanrichardspllc.com
jake@jordanrichardspllc.com
SIX FLAGS: Murphy Files Suit v. Amusement Park
----------------------------------------------
A class action lawsuit has been filed against Six Flags
Entertainment Corporation. The case is styled as James Murphy, on
behalf of himself and all others similarly situated, Plaintiff v.
Six Flags Entertainment Corporation, Defendant, Case No.
1:18-cv-06744 (S.D. N.Y., July 26, 2018).
The lawsuit arises under the Americans with Disabilities Act.
Six Flags, officially Six Flags Entertainment Corporation, is an
amusement park corporation based in the United States, with
properties in the US, Canada, and Mexico.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
STARWOOD HOTEL: James Murphy Files ADA Class Action
---------------------------------------------------
James Murphy has filed an Americans with Disabilities Act class
action lawsuit against Starwood Hotel & Resorts Worldwide, LLC.
The case is styled as James Murphy, on behalf of himself and all
others similarly situated, Plaintiff v. Starwood Hotel & Resorts
Worldwide, LLC doing business as: The Residences at W New York
Downtown, Defendant, Case No. 1:18-cv-06750 (S.D. N.Y., July 26,
2018).
Starwood Hotels & Resorts Worldwide, Inc., together with its
subsidiaries, operates as a hotel and leisure company worldwide.
The company owns, operates, and franchises luxury and upscale
full-service hotels, resorts, residences, retreats, select-service
hotels, and extended stay hotels under the St. Regis, The Luxury
Collection, W, Westin, Le Meridien, Sheraton, Four Points, Aloft,
Tribute Portfolio, and Element brand names. It also provides
financing to customers who purchase such interests. In addition,
the company develops, markets, and sells residential units at mixed
use hotel projects.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
SUPER MICRO: 9th Circuit Appeal Filed in "Wanca" Securities Suit
----------------------------------------------------------------
Plaintiff Andrew Wanca filed an appeal from a court ruling in his
lawsuit styled Andrew Wanca v. Super Micro Computer, Inc., et al.,
Case No. 5:15-cv-04049-EJD, in the U.S. District Court for the
Northern District of California, San Jose.
As previously reported in the Class Action Reporter, the lawsuit
alleges that the Defendants made materially false and misleading
statements regarding the Company's business, operational and
compliance policies. The class action seeks to recover damages
against the Defendants for alleged violations of the federal
securities laws under the Securities Exchange Act of 1934.
The appellate case is captioned as Andrew Wanca v. Super Micro
Computer, Inc., et al., Case No. 18-16391, in the United States
Court of Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Transcript must be ordered by August 23, 2018;
-- Transcript is due on September 24, 2018;
-- Appellant Andrew Wanca's opening brief is due on
November 1, 2018;
-- Appellees Howard Hideshima, Charles Liang and Super Micro
Computer, Inc.'s answering brief is due on December 3,
2018; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiff-Appellant ANDREW WANCA, Individually and On Behalf of All
Others Similarly Situated, is represented by:
Lionel Z. Glancy, Esq.
Robert Vincent Prongay, Esq.
GLANCY BINKOW & GOLDBERG, LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
E-mail: lglancy@glancylaw.com
rprongay@glancylaw.com
esams@glancylaw.com
Defendants-Appellees SUPER MICRO COMPUTER, INC., CHARLES LIANG and
HOWARD HIDESHIMA are represented by:
David Priebe, Esq.
DLA PIPER LLP (US)
2000 University Avenue
East Palo Alto, CA 94303
Telephone: (650) 833-2056
E-mail: david.priebe@dlapiper.com
- and -
Shirli Fabbri Weiss, Esq.
DLA PIPER LLP (US)
401 B Street
San Diego, CA 92101-4297
Telephone: (619) 699-2700
E-mail: shirli.weiss@dlapiper.com
SUPERSHUTTLE FRANCHISE: Appeals Ruling in "Shenouda" to 9th Cir.
----------------------------------------------------------------
Defendants SuperShuttle International, Inc., SuperShuttle Los
Angeles, Inc., SuperShuttle Orange County, Inc., SuperShuttle San
Francisco, Inc. and Supershuttle Franchise Corporation filed an
appeal from a court ruling in the lawsuit entitled Margerges
Shenouda v. Supershuttle Franchise Corporation, et al., Case No.
5:17-cv-02464-TJH-KK, in the U.S. District Court for the Central
District of California, Riverside.
The lawsuit arises from labor-related issues.
The appellate case is captioned as Margerges Shenouda v.
Supershuttle Franchise Corpora, et al., Case No. 18-55879, in the
United States Court of Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Appellants SuperShuttle International, Inc., SuperShuttle
Los Angeles, Inc., SuperShuttle Orange County, Inc.,
SuperShuttle San Francisco, Inc. and Supershuttle Franchise
Corporation's opening brief is due on August 28, 2018;
-- Appellee Margerges Shenouda's answering brief is due on
September 28, 2018; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiff-Appellee MARGERGES SHENOUDA, individually and on behalf
of all others similarly situated, is represented by:
Christopher A. Olsen, Esq.
OLSEN LAW OFFICES, APC
10935 Vista Sorrento Pkwy.
San Diego, CA 92130
Telephone: (858) 829-9072
E-mail: Chris@OlsenLawAPC.com
Defendants-Appellants SUPERSHUTTLE FRANCHISE CORPORATION, a
Delaware Corporation; SUPERSHUTTLE INTERNATIONAL, INC., a Delaware
corporation; SUPERSHUTTLE LOS ANGELES, INC., a California
corporation; SUPERSHUTTLE ORANGE COUNTY, INC., a California
corporation; and SUPERSHUTTLE SAN FRANCISCO, INC., a California
corporation, are represented by:
Paul Bruno Arenas, Esq.
Paul Marron, Esq.
MARRON LAWYERS, APLC
3711 Long Beach Blvd., Suite 601
Long Beach, CA 90807
Telephone: (562) 432-7422
E-mail: parenas@marronlaw.com
pmarron@marronlaw.com
TAO SPA GROUP: Faces Gomez ADA Suit in S.D. Florida
---------------------------------------------------
A class action lawsuit has been filed against Tao Spa Group, LLC.
The case is styled as Andres Gomez, on his own and on behalf of all
other individuals similarly situated, Plaintiff v. Tao Spa Group,
LLC, Defendant, Case No. 1:18-cv-23044-DPG (S.D. Fla., July 26,
2018).
The lawsuit arises under the Americans with Disabilities Act.
TAO SPA GROUP, LLC, was a Florida corporation with its principal
place of business in South Florida, engaged in commerce in the
field of spa services.[BN]
The Plaintiff is represented by:
Jessica Lynn Kerr, Esq.
The Advocacy Group
200 S.E. 6th Street
Suite 504
Fort Lauderdale, FL 33301
Tel: (954) 282-1858
Fax: (844) 786-3694
Email: service@advocacypa.com
TAPESTRY INC: Norma Garcia Suit Moved to C.D. California
--------------------------------------------------------
The class action lawsuit titled Norma Garcia, individually, on a
representative basis, and on behalf of all others similarly
situated, the Plaintiff, v. Tapestry, Inc., doing business as:
Coach a Maryland Corporation, which will do business in California
as Coach Leatherware California, Inc., and Does 1 through 10,
inclusive, the Defendants, Case No. RIC1811996, was removed from
the Superior Court of California Riverside County, to the U.S.
District Court for the Central District of California (Eastern
Division - Riverside) on July 19, 2018. The Central District of
California Court Clerk assigned Case No. 5:18-cv-01537-DMG-SHK to
the proceeding. The case is assigned to the Hon. Judge Dolly M.
Gee.
Tapestry, Inc. is an American multinational luxury fashion company
based in New York City. Tapestry, Inc. owns three major brands:
Coach New York, Kate Spade New York, and Stuart Weitzman.[BN]
Attorneys for Norma Garcia, individually, on a representative
basis, and on behalf of all others similarly situated:
Brian J Mankin, Esq.
FERNANDEZ AND LAUBY LLP
4590 Allstate Drive
Riverside, CA 92501
Telephone: (951) 320 1444
Facsimile: (951) 320 1445
E-mail: bjm@fernandezlauby.com
- and -
Misty M Lauby, Esq.
FERNANDEZ AND LAUBY LLP
4590 Allstate Drive
Riverside, CA 92501
Telephone: (951) 320 1444
Facsimile: (951) 320 1445
Attorneys for Tapestry, Inc.
Jonathan S Christie, Esq.
Victor A Salcedo, Esq.
Gregory W Knopp, Esq.
AKIN GUMP STRAUSS HAUER AND FELD LLP
1999 Avenue of the Stars Suite 600
Los Angeles, CA 90067-6022
Telephone: (310) 229 1000
Facsimile: (310) 229 1001
E-mail: christiej@akingump.com
vsalcedo@akingump.com
gknopp@akingump.com
TEXAS: 5th Cir. Appeal Filed in Prisoner's Civil Rights Suit
------------------------------------------------------------
Plaintiff Lentiona Taylor filed an appeal from a court ruling in
the lawsuit titled Lentiona Taylor v. David Gutierrez, et al., Case
No. 1:18-CV-65, in the U.S. District Court for the Western District
of Texas, Austin.
The nature of suit is stated as Prisoner - Civil Rights.
The appellate case is captioned as Lentiona Taylor v. David
Gutierrez, et al., Case No. 18-50523, in the U.S. Court of Appeals
for the Fifth Circuit.
Plaintiff-Appellant LENTIONA TAYLOR, Individually, and on Behalf of
All Present and Future Inmates Similarly Situated, is currently
incarcerated at the CID Mountain View Prison, in Gatesville, Texas.
The Plaintiff appears pro se.
The Defendants-Appellees are DAVID GUTIERREZ, Chair of the Texas
Criminal Justice Board of Pardons and Paroles; ROEL TEJANO, Parole
Commissioner, Texas Board of Pardon and Parole; and LEE ANN
MASSINGILL, Parole Commissioner, Texas Board of Pardons and
Parole.[BN]
TF CORNERSTONE: ADA Suit Filed Against Firm
-------------------------------------------
A real estate agency in New York City is facing a class action
lawsuit arising under the Americans with Disabilities Act.
The case is styled as James Murphy, on behalf of himself and all
others similarly situated, Plaintiff v. TF Cornerstone Inc.,
Defendant, Case No. 1:18-cv-06745 (S.D. N.Y., July 26, 2018).[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
THREE SONS: Fails to Pay OT & Minimum Wage, Leano et al. Claim
--------------------------------------------------------------
JUAN J. LEANO and GERONIMO MARTINEZ, as individuals, on behalf of
themselves and all others similarly situated, the Plaintiff, v.
THREE SONS, INC., a California Corporation d/b/a AMERICAN MEAT
COMPANIES; and DOES 1 through 100, the Defendant, Case No. BC715053
(Cal. Super. Ct., July 23, 2018), seeks to recover overtime wages
and minimum wage under the California Labor Code.
According to the complaint, the Plaintiffs was hired by Defendants
to work as a "Driver" (or similarly titled position) in
approximately 2008 and has been on medical leave since
approximately October 2017. The Plaintiff also worked for
Defendants in approximately 2008 through approximately October
2017. During Plaintiffs' employment with Defendants, Defendants
misclassified Plaintiffs and other non-exempt employees as exempt
salaried employees, even though they did not qualify for any
exemption under the law. Plaintiffs often worked over 8 hours per
workday and/or more than 40 hours per workweek but did not receive
overtime compensation equal to one and one-half times their regular
rate of pay for working overtime hours and/or double their regular
rate of pay for working over 12 hours in a workday. Specifically,
under Defendants' policies/practices, Defendants paid Plaintiffs
and other non-exempt employees working as Drivers and
similarly-titled positions, at pre-determined daily and/or weekly
salaries no matter how many hours they actually worked, and despite
the fact that Plaintiffs would often work 14- 15 hour days.
Although, Plaintiffs did not record the hours that they worked in a
traditional sense due to Defendants' misclassification of them as
exempt employees, Plaintiffs would record the times that they
dropped off cash in the vault at the end of the day, which would
tend roughly correlate with the end of the workday. As a result of
these policies/practices, the Plaintiffs were underpaid of all
wages due, including minimum, overtime and double-time wages.[BN]
Attorneys for Plaintiffs:
Paul K. Haines, Esq.
Tuvia Korobkin, Esq.
Stacey M. Shim, Esq.
Jamin Xu, Esq.
HAINES LAW GROUP, APC
222 N. Sepulveda Blvd.
El Segundo, CA 90245
Telephone: (424) 292 2350
Facsimile: (424) 292 2355
E-mail: phaines@haineslawgroup.com
tkorobkin@haineslawgroup.com
sshim@haineslawgroup.com
jxu@haineslawgroup.com
TODAY'S WELLNESS: Andres Gomez Files ADA Suit in S.D. Fla.
----------------------------------------------------------
Today's Wellness, Inc. is facing a class action lawsuit under the
Americans with Disabilities Act. The case is captioned Andres
Gomez, individually and on behalf of all other individuals
similarly situated, Plaintiff v. Today's Wellness, Inc., Defendant,
Case No. 1:18-cv-23047-CMA (S.D. Fla., July 26, 2018).
Today's Wellness, Inc. offers a unique, healthcare environment
combining holistic healing with today's conventional, medical
practices.[BN]
The Plaintiff is represented by:
Jessica Lynn Kerr, Esq.
The Advocacy Group
200 S.E. 6th Street, Suite 504
Fort Lauderdale, FL 33301
Tel: (954) 282-1858
Fax: (844) 786-3694
Email: service@advocacypa.com
TRADE SUPPLIES: Ruben Garcia Seeks Unpaid Wages under Labor Code
----------------------------------------------------------------
RUBEN GARCIA, individually and on behalf of all others similarly
situated, the Plaintiff, v. TRADE SUPPLIES, LLC, a California
Limited Liability Company, and DOES 1-50, inclusive, the
Defendants, Case No. BC713769 (Cal. Super. Ct., July 19, 2018),
alleges that Defendants failed to pay wages including overtime;
provide meal periods; authorize and permit rest periods; timely pay
wages; and provide accurate itemized wage statements, pursuant to
the California Labor Code.
According to complaint, the Plaintiff and Class Members were
consistently required to work in excess of four hours (or major
fraction thereof) without receiving lawful 10 minute rest periods.
The Class Members were also not provided with one hour wages in
lieu thereof. The Plaintiff and the other Class Members were
systematically denied their rest breaks due to the demands placed
upon them by Defendants. The lawsuit says Defendants' policies and
practices included Defendants' implementation of a work schedule
and workload requirements that denied and failed to authorize and
permit the Class all of their entitled rest periods, including
first rest periods of at least 10 minutes for every shift worked of
at least three and a half to four hours, a first and second rest
period of at least 10 minutes for every shift worked greater than
six hours, and a third rest period of at least ten minutes for
every shift worked in excess of ten hours, as Defendants'
management would have Plaintiff and Class Members perform work
related tasks during their rest breaks such as pulling orders for
customers that arrived at the warehouse, attend to vendors, or to
handle freight. Defendants' policies resulted in untimely rest
breaks and ultimately prevented Plaintiff and Class Members from
taking rest breaks as Defendants' demands were high. Nevertheless,
Defendants never paid Plaintiff, and on information and belief,
never paid Class Members an extra hour of pay as required by
California law where rest breaks were not provided, or not provided
within the legally required time frames.
Trade Supplies, LLC distributes disposable products. The Company
offers dry-grocery, janitorial, packaging, paper and plastic
disposable, and health care products.[BN]
The Plaintiff is represented by:
James R. Hawkins, Esq.
Gregory Mauro, Esq.
JAMES HAWKINS APLC
Research Drive, Suite 200
Irvine, CA 92618
Telephone: (949) 387 7200
Facsimile: (949) 387 6676
E-mail: James@jameshawkinsaplc.com
Greg@jameshawkinsaplc.com
TRADER JOE'S: Mislabeled Manuka Honey Product, Moore et al. Claim
-----------------------------------------------------------------
LYNN MOORE, SHANQUE KING, and JEFFREY AKWEI, the Plaintiffs, v.
TRADER JOE'S COMPANY, the Defendant, the Case No. 4:18-cv-04418
(N.D. Cal., July 20, 2018), seeks redress for the Defendant's
misleading practices in its marketing, advertising, labeling and
promotion of its 8.8 oz. Trader Joe's Manuka Honey product.
According to the complaint, some of Defendant's labels state that
that Product is "100% New Zealand Manuka Honey" while others state
only "New Zealand Manuka Honey." Regardless of how the Product is
labeled, the ingredients statement lists only one ingredient,
manuka honey. Whether or not the front of the label states that the
Product is "100%" manuka honey, the ingredient statement would lead
a reasonable consumer to conclude exactly this. Since manuka honey
is the only ingredient listed, the mathematically irresistible
inference is that the Product is entirely manuka honey.
However, Plaintiffs' testing confirms that this is false, because
the Product only contains between 57.3% to 62.6% manuka honey. As a
result, the Product is mislabeled and is misleading to consumers.
No matter which of the Defendant's representations consumers
encounter, they will have been deceived. Manuka honey is not the
only ingredient in the Product. The Product is not 100% manuka
honey.
The therapeutic benefits of manuka honey are well-known. The
especially high antibacterial properties of manuka honey, a type of
honey from bees that pollinate the flowers of the manuka bush
(Leptospermum Scoparium), indigenous to New Zealand, has received
considerable attention from the scientific world. Research by an
international network of laboratories has shown that New Zealand's
manuka honeys are one of the two major medicinal honeys that have
exhibited high antibacterial potency relative to other honeys. Its
efficacy as dressing for wounds, burns, skin ulcers and in reducing
inflammation has been well documented. Such research findings have
spurred the commercial growth of New Zealand apiaries (places where
beehives of honey bees are kept, also known as bee yards), whose
manuka honey products have become increasingly sought-after by the
health-conscious middle class in a number of Western countries,
including the United States. While the demand for manuka honey has
increased, the supply of natural manuka honey with high
antibacterial potency remains limited. As a result, the price for a
bottle of manuka honey can be as much as ten times higher than that
of ordinary non-manuka honey.[BN]
Attorneys for Plaintiffs and the Proposed Class:
C.K. Lee, Esq.
LEE LITIGATION GROUP, PLLC
30 East 39th Street, Second Floor
New York, NY 10016
Telephone: (212) 465 1188
Facsimile: (212) 465 1181
E-mail: cklee@leelitigation.com
- and -
David Makman, Esq.
LAW OFFICES OF DAVID A. MAKMAN
655 Mariner's Island, Suite 306
San Mateo, CA 94404
Telephone: 650 242 1560
Facsimile: 650 242 1547
E-mail: david@makmanlaw.com
TRIANGLE CAPITAL: Carlson Files Suit Over Asset Sale to Benefit
---------------------------------------------------------------
Dan Carlson, individually, and on behalf of all others similarly
situated v. Triangle Capital Corporation, E. Ashton Poole, Steven
C. Lilly, W. McComb Dunwoody, Mark M. Gambill, Benjamin S.
Goldstein, Mark F. Mulhern, Simon B. Rich, Jr., and Garland S.
Tucker III, Case No. 5:18-cv-00332 (E.D. N.C., July 6, 2018), is
brought against the Defendants for violations of the Securities Act
of 1934, in connection with the sale of all of the Company's assets
to Benefit Street Partners, LLC.
The Plaintiff alleged the the Proxy Statement filed by the
Defendants contains materially incomplete and misleading
information concerning (i) the financial projections of the
Company; (ii) the valuation analyses conducted by the Company's
financial advisor, Houlihan Lokey Capital, Inc.; and (iii) the
background process leading up to the Proposed Transaction.
The Plaintiff is a common stockholder of Triangle Capital.
The Defendant Triangle Capital Corporation is a Maryland
corporation with its principal executive offices located at 3700
Glenwood Avenue, Suite 530, Raleigh, North Carolina 27612. Triangle
Capital is a specialty finance company that provides customized
financing to lower midlle market companies located primarily in the
United States. Triangle common stock is traded on NYSE under the
ticker symbol "TCAP".
The Individual Defendants are members of the Company's board of
directors. [BN]
The Plaintiff is represented by:
Janet Ward Black, Esq.
Nancy Meyers, Esq.
WARD BLACK LAW
208 West Wendover Avenue
Greensboro, NC 27401
Tel: (336) 510-2014
Fax: (336) 510-2181
E-mail: jwblack@wardblacklaw.com
- and -
Juan E. Monteverde, Esq.
Miles D. Schreiner, Esq.
MONTEVERDE & ASSOCIATES PC
The Empire State Building
350 Fifth Avenue, Suite 4405
New York, NY 10118
Tel: (212) 971-1341
Fax: (212) 202-7880
E-mail: jmonteverde@monteverdelaw.com
mschreiner@monteverdelaw.com
UNITED STATES: Appeals Decision in Vidal Suit to 2nd Cir.
---------------------------------------------------------
Defendants Kirstjen M. Nielsen, Jefferson B. Sessions III and
Donald J. Trump filed an appeal from a court ruling in the lawsuit
titled Batalla Vidal, et al. v. Nielsen, et al., Case No.
16-cv-4756, in the U.S. District Court for the Eastern District of
New York (Brooklyn).
As previously reported in the Class Action Reporter, several
appeals have already been filed by parties of the lawsuit.
The Plaintiffs challenge the rescission of the Deferred Action for
Childhood Arrivals program, as well as other actions that the
Defendants are alleged to have taken in connection with the
rescission of that program. The Plaintiffs challenge the
rescission on substantive and procedural grounds under the
Administrative Procedure Act. The Plaintiffs also alleged that the
rescission violated equal protection and that the implementation of
the rescission violated due process.
The appellate case is captioned as Batalla Vidal, et al. v.
Nielsen, et al., Case No. 18-1985, in the United States Court of
Appeals for the Second Circuit.[BN]
Plaintiffs-Appellees Martin Jonathan Batalla Vidal, Make the Road
New York, on behalf of itself, its members, its clients, and all
similarly situated individuals, Antonio Alarcon, Eliana Fernandez,
Carlos Vargas, Mariano Mondragon and Carolina Fung Feng, on behalf
of themselves and all other similarly situated individuals, are
represented by:
Michael Joel Wishnie, Esq.
YALE LAW SCHOOL
P. O. Box 209090
New Haven, CT 06520
Telephone: (203) 436-4780
E-mail: michael.wishnie@yale.edu
Defendants-Appellants Kirstjen M. Nielsen, Secretary of Homeland
Security; Jefferson B. Sessions III, United States Attorney
General; and Donald J. Trump, President of the United States, are
represented by:
Thomas Pulham, Esq.
UNITED STATES DEPARTMENT OF JUSTICE
1100 L Street, NW
Washington, DC 20530
Telephone: (202) 514-2217
E-mail: thomas.pulham@usdoj.gov
- and -
Abby Christine Wright, Esq.
UNITED STATES DEPARTMENT OF JUSTICE
950 Pennsylvania Avenue, NW
Washington, DC 20530
Telephone: (202) 514-5089
E-mail: Abby.Wright@usdoj.gov
UNITED STATES: Garfield, Mesa Counties Mulling to Join PILT Suit
-----------------------------------------------------------------
Dennis Webb, writing for The Daily Sentinel, reports that area
counties face a Sept. 14 deadline to decide whether to join a
class-action lawsuit that could let them recover underpayments by
the U.S. government between 2015-17 under a program designed to
help offset the lack of property tax collections involving federal
lands.
Garfield and Mesa counties are among those currently considering
the matter, which involves the federal Payment in Lieu of Taxes
program. Garfield County could collect more than $121,000, minus
attorney fees, if it participates, officials there say. Mesa County
Administrator Frank Whidden said the estimate he's heard for Mesa
County is $117,000.
Those would be among the larger payments collected under the suit,
according to the law firm Smith, Currie & Hancock LLP, which is
handling the suit. It estimates that recovery amounts could range
from $100 or less to a high of $130,000 or more.
Judge Elaine Kaplan of the U.S. Court of Federal Claims has held
the federal government liable for the underpayments, although that
decision is subject to appeal.
The case was brought by Kane County, Utah.
The PILT program is administered by the Interior Department based
on the PILT Act, which prescribes a formula for computing annual
payments based on annually adjusted per-acre and population
variables, according to Interior Secretary Ryan Zinke's letter to
Gov. John Hickenlooper announcing this year's payments in
Colorado.
The program was fully funded this year, resulting in about 1,900
jurisdictions receiving nearly $553 million in PILT payments, up
from $464.6 million last year. Payments in Colorado this year
topped $40.1 million, up from $36.6 million last year.
Mesa County received the most of any government in the state this
year -- nearly $3.6 million, involving more than 1.5 million acres
of land. Garfield County came in second, at about $3.2 million for
nearly 1.2 million acres.
The underpayments occurred because in the pertinent years, Congress
appropriated too little money to satisfy PILT obligations.
The court ruling doesn't include the amount of underpayment in 2015
that resulted from a congressional requirement that the Treasury
Department "sequester" amounts exceeding annual spending caps.
"Kane County did not seek to recover the additional underpayment
resulting from sequestration because the Court of Federal Claims
had ruled in an earlier lawsuit that units of local government are
not entitled to recover that portion of PILT funds eliminated by
sequestration," Smith, Currie & Hancock LLP says in a
frequently-asked-questions section on the case on its website.
In Kaplan's ruling, she rejected the government's argument that the
Interior Department's obligation was limited by the failure of
Congress to appropriate enough money. She also disagreed that the
PILT law is ambiguous and the court should defer to Interior's
regulations when it comes to its payment obligations when there is
an appropriations shortfall.
Garfield County commissioners gave initial consideration to the
matter but decided to hold off on a decision whether to participate
in the class-action suit so they could confer with their lobbyist.
Whidden said Mesa County Attorney Patrick Coleman, Esq., joined in
a conference call on July 12 on the matter.
"We really haven't had a chance for the county attorney to review
that material, analyze it and then present it to the board" of
county commissioners, he said.
Governments that don't participate could pursue the underpayments
issue on their own. Smith, Currie & Hancock says on its website
that joining the class-action suit would be the cheaper option.
"Lower litigation costs for each Class Member is a principal
advantage of a class action lawsuit," the firm says.
Smith, Currie & Hancock plans to ask the court to approve attorney
fees equaling a third of the amounts recovered by entities that
opted in to the suit, plus miscellaneous expenses not expected to
exceed a fraction of a percent of recovered amounts.
Participants would pay nothing if the government successfully
appeals.
Gini Pingenot, legislative director of Colorado Counties Inc., said
she thinks some counties are exploring taking their own legal
action. But she said CCI is suggesting that they can't recover
underpayments any more cheaply than by joining the class-action
suit.
"I think the administrative costs of doing it on your own don't
make it worthwhile" given the amount of underpayments involved, she
said.
Garfield County officials have participated in a webinar on the
matter that included an attorney involved in the class-action suit.
County Manager Kevin Batchelder said he was assured that there was
unlikely to be a political backlash in terms of future PILT
legislation or relationships with members of Congress as a result
of participation in the suit. Batchelder said he was told the suit
"is really pretty much flying under the radar" of members of
Congress.
Said Garfield Commissioner Tom Jankovsky, "That would be my
concern, is that senators or congressmen who are against PILT would
use this against us next year."
But in later calling for further exploring the matter, he said,
"$121,000 less attorney fees, we don't want to let that pass us
by."
Garfield Commissioner John Martin noted that the issue arose
because of an act of Congress.
"So there shouldn't be any political fallout. It's an accounting
issue," he said.
So far, the governments that have opted in to the suit are Chaffee,
Crowley, Dolores, Douglas, Gilpin, Jackson, Las Animas, Rio Grande
and Weld counties.
Although many class-action suits include qualifying parties in them
unless they opt out, the rules of the Court of Federal Claims
expressly require opting in to be included. [GN]
UPLOAD PICTURES: Fails to Pay Proper OT, "Castaneda" Suit Alleges
-----------------------------------------------------------------
A. CASTANEDA, individually and on behalf of others similarly
situated, Plaintiff v. UPLOAD PICTURES, INC.; BARAL WHALEY
PRODUCTIONS, INC.; DAVID BARAL; PHILIP WALEY; JOEL BARAL; HOWARD
BARAL; and DOE 1 through and including DOE 10, Case No. BC712863
(Cal. Super., July 5, 2018) is an action against the Defendants for
failure to pay minimum wages and overtime compensation in
accordance with the Fair Labor Standards Act.
The Plaintiff Castaneda was employed by the Defendants as a crew
member for the Defendant's production on January 11, 2018.
Upload Pictures, Inc. is a California corporation doing business in
Los Angeles, California. [BN]
The Plaintiff is represented by:
Alan Harris, Esq.
Priya Mohan, Esq.
Lin Zhan, Esq.
HARRIS & RUBLE
655 North Central Avenue, 17th Floor
Glendale, CA 91203
Telephone: (323) 962-3777
Facsimile: (323) 962-3004
E-mail: harrisa@harrisandruble.com
pmohan@harrisandruble.com
lzhan@harrisandruble.com
VELOX EXPRESS: York et al. Suit Moved to W.D. Kentucky
------------------------------------------------------
The class action lawsuit titled VANESSA YORK, MARSHAL EMMERLING,
and MATTHEW MOSS, Each Individually and on Behalf of All Others
Similarly Situated, the Plaintiff, v. VELOX EXPRESS, INC. the
Defendant, Case No. 4:17-cv-00562, was transferred from the U.S.
District Court for Eastern District of Arkansas, to the U.S.
District Court for the Western District of Kentucky (Louisville) on
July 20, 2018. The Western District of Kentucky Court Clerk
assigned Case No. 3:18-cv-00481-CRS to the proceeding. The case is
assigned to the Hon. Judge Charles R. Simpson, III.
The Plaintiffs, individually and on behalf of all others similarly
situated, brought this action under the Fair Labor Standards Act
and the Arkansas Minimum Wage Act, for declaratory judgment,
monetary damages, liquidated damages, prejudgment interest, civil
penalties and costs, including reasonable attorneys' fees as a
result of Defendant's failure to pay Plaintiffs and all others
similarly situated minimum and overtime wages as required by the
FLSA and AMWA.
Attorneys for Plaintiffs:
Joshua Sanford, Esq.
Stephen Rauls, Esq.
SANFORD LAW FIRM
One Financial Center
650 South Shackleford, Suite 411
Little Rock, AR 72211
Telephone: (501) 221 0088
Facsimile: (888) 787 2040
Attorneys for Velox Express Inc.
Matthew G. Gallagher
LITTLER MENDELSON, PC - MEMPHIS
3725 Champion Hills Drive, Suite 3000
Memphis, TN 38125
Telephone: (901) 795 6695
Facsimile: (901) 531 8478
E-mail: mgallagher@littler.com
W. 6 RESTAURANT: Underpays Cocktail Waitress, Stacey Cargill Says
-----------------------------------------------------------------
STACEY CARGILL, individually and on behalf of all others similarly
situated, Plaintiff v. W. 6 RESTAURANT GROUP, LTD.; ROBERT GEORGE;
COREY MAY; and JOE ORAVEC, Defendants, Case No. 1:18-cv-01575 (N.D.
Ohio, July 10, 2018) is an action against the Defendants to recover
unpaid minimum wages and overtime compensation for all hours worked
over 40 hours in a workweek.
Ms. Cargill was employed by the Defendants as cocktail waitress at
the Defendants' restaurant in Cleveland from July 2014 to April
2017.
W. 6 Restaurant Group, Ltd. operates a bar and restaurant called
Barley House located at Cleveland, Ohio. [BN]
The Plaintiff is represented by:
Thomas A. Downie, Esq.
46 Chagrin Falls Plaza #104
Chagrin Falls, OH 44022
Telephone: (440) 973-9000
E-mail: tom@chagrinlaw.com
- and -
Scott D. Perlmuter, Esq.
2012 West 25 th Street, Ste. 716
Cleveland, OH 44113
Telephone: (216) 308-1522
E-mail: scott@tittlelawfirm.com
WALGREEN CO: Fails to Pay Minimum Wages & OT, Botros Says
---------------------------------------------------------
EHAB BOTROS, on behalf of himself and all others similarly
situated, the Plaintiff, v. WALGREEN CO., an Illinois corporation,
and DOES 1 through 10, inclusive, the Defendants, Case No.
RG18913696 (Cal. Super. Ct., July 20, 2018), alleges that the
Company failed to pay minimum wages and overtime wages, authorize
and permit rest periods, reimburse business expenses, and provide
accurate wage statements.
According to the complaint, Walgreens is in the business of
operating retail stores and pharmacies throughout California and
the United States. Walgreens has employed Plaintiff and Class
Members as staff pharmacists and paid Plaintiff and Class Members
on an hourly basis. However, Walgreens has failed to pay Plaintiff
and Class Members who worked at multiple locations for all hours
worked, in particular, for the time they spent driving to their
assigned work locations that exceeded the time of their regular
commutes. Walgreens has also failed to provide Plaintiff and Class
Members with proper rest periods, and failed to pay one additional
hour of pay at Plaintiff's and Class Members' respective regular
rates of compensation for each workday that they were not provided
an adequate off-duty rest period.[BN]
Attorneys for Plaintiff and the Putative Class:
Hunter Pyle, Esq.
Chad Saunders, Esq.
HUNTER PYLE LAW
428 Thirteenth Street, Eleventh Floor
Oakland, CA 94612
Telephone: (510) 444 4400
Facsimile: (510) 444 4410
E-mail: hunter@hunterpylelaw.com
csaunders@hunterpylelaw.com
WELLS FARGO: 9th Cir. Appeal Filed in Jabbari Suit
--------------------------------------------------
Objector Lydia LaBelle de Rios filed an appeal from a court ruling
in the lawsuit styled Shahriar Jabbari, et al. v. Wells Fargo &
Company, et al., Case No. 3:15-cv-02159-VC, in the U.S. District
Court for the Northern District of California, San Francisco.
As previously reported in the Class Action Reporter, Wells Fargo
will pay $142 million to settle class action claims that it
secretly opened credit cards and unauthorized accounts in
customers' names going back to 2002.
The bank was hit hard by the discovery that its staff opened
millions of bank accounts and credit cards for customers without
their consent in an effort to meet internal sales goals.
Lead Plaintiff Shahriar Jabbari sued Wells Fargo in May 2015,
claiming it encouraged employees to use fraudulent and deceptive
tactics to persuade customers to open fee-generating accounts by
misrepresenting them or not informing them at all.
The appellate case is captioned as Shahriar Jabbari, et al. v.
Wells Fargo & Company, et al., Case No. 18-16236, in the United
States Court of Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Transcript must be ordered by August 2, 2018;
-- Transcript due September 4, 2018;
-- Appellant Lydia LaBelle de Rios' opening brief is due on
October 11, 2018;
-- Appellees Kaylee Heffelfinger, Shahriar Jabbari, Wells
Fargo & Company and Wells Fargo Bank, N.A.'s answering
brief is due on November 13, 2018; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiffs-Appellees SHAHRIAR JABBARI and KAYLEE HEFFELFINGER, on
behalf of themselves and all others similarly situated, are
represented by:
Gretchen Freeman Cappio, Esq.
Derek W. Loeser, Esq.
Daniel Parke Mensher, Esq.
Lynn Lincoln Sarko, Esq.
KELLER ROHRBACK LLP
1201 Third Avenue, Suite 3200
Seattle, WA 98101
Telephone: (206) 623-1900
E-mail: gcappio@kellerrohrback.com
dloeser@kellerrohrback.com
dmensher@kellerrohrback.com
lsarko@kellerrohrback.com
- and -
Jeffrey Greg Lewis, Esq.
KELLER ROHRBACK LLP
300 Lakeside Drive, Suite 1000
Oakland, CA 94612
Telephone: (510) 463-3900
E-mail: jlewis@kellerrohrback.com
- and -
Matthew J. Preusch, Esq.
KELLER ROHRBACK LLP
1129 State Street, Suite 8
Santa Barbara, CA 93101
Telephone: (805) 456-1496
Facsimile: (805) 456-1497
E-mail: mpreusch@kellerrohrback.com
Objector-Appellant LYDIA LABELLE DE RIOS is represented by:
Annette Borzakian, Esq.
ANNETTE BORZAKIAN APLC
601 S. Figueroa St.
Los Angeles, CA 90017
Telephone: (213) 330-4235
E-mail: Annette@mamatried.org
Defendants-Appellees WELLS FARGO & COMPANY and WELLS FARGO BANK,
N.A., are represented by:
Manuel Francisco Cachan, Esq.
Bart H. Williams, Esq.
PROSKAUER ROSE LLP
2049 Century Park East
Los Angeles, CA 90067-3206
Telephone: (310) 284-4568
E-mail: manuel.cachan@mto.com
bart.williams@mto.com
- and -
Erin J. Cox, Esq.
Eric P. Tuttle, Esq.
MUNGER, TOLLES & OLSON LLP
350 South Grand Avenue, 50th Floor
Los Angeles, CA 90071
Telephone: (213) 683-9575
E-mail: erin.cox@mto.com
Eric.Tuttle@mto.com
- and -
Jeslyn A. Everitt, Esq.
David H. Fry, Esq.
MUNGER TOLLES & OLSON, LLP
560 Mission Street, 27th Floor
San Francisco, CA 94105
Telephone: (415) 512-4040
E-mail: jeslyn.everitt@mto.com
david.fry@mto.com
WELLS FARGO: Briefing for Chief's Market Class Cert. Bid Continued
------------------------------------------------------------------
In the lawsuit styled Taysir Tayeh dba Chief's Market, et al., the
Plaintiff, v. Wells Fargo Bank, N.A., et al., the Defendants, Case
No. 1:16-cv-11223 (N.D. Ill.), the Hon. Judge Rebecca R. Pallmeyer
entered an order continuing briefing for class certification.
According to the docket entry made by the Clerk on July 30, 2018,
the Plaintiffs' motion for class certification is entered and
continued for briefing. Memorandum in support is due by Jan. 16,
2019. Oppositions due is by March 18, 2019. Reply memorandum due
is by April 17, 2019. Appearance on July 30, 2018 is stricken.
WELLS FARGO: Farmer Appeals Ruling in Jabbari Suit to 9th Cir.
--------------------------------------------------------------
Objector Chad Michael Farmer filed an appeal from a court ruling in
the lawsuit entitled Shahriar Jabbari, et al. v. Wells Fargo &
Company, et al., Case No. 3:15-cv-02159-VC, in the U.S. District
Court for the Northern District of California, San Francisco.
As previously reported in the Class Action Reporter, Wells Fargo on
Jan. 22 issued a reminder that in order to participate in the
class-action settlement agreement concerning improper retail sales
practices, eligible current and former customers must submit claims
online or by mail by Feb. 3, 2018.
The broad and far-reaching $142 million settlement agreement sets
aside funds for customer remediation. The settlement class will
consist of all persons who claim that Wells Fargo opened, without
their consent, a consumer or small business checking or savings
account or an unsecured credit card or line of credit or enrolled
them, under certain circumstances, in Identity Theft Protection
services, in each case between May 1, 2002, and April 20, 2017.
The appellate case is captioned as Shahriar Jabbari, et al. v.
Wells Fargo & Company, et al., Case No. 18-16213, in the United
States Court of Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Transcript must be ordered by July 27, 2018;
-- Transcript is due on August 27, 2018;
-- Appellant Chad Michael Farmer's opening brief is due on
October 5, 2018;
-- Appellees Kaylee Heffelfinger, Shahriar Jabbari, Wells
Fargo & Company and Wells Fargo Bank, N.A.'s answering
brief is due on November 5, 2018; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Objector-Appellant CHAD MICHAEL FARMER is represented by:
Timothy R. Hanigan, Esq.
LANG, HANIGAN & CARVALHO, LLP
21550 Oxnard Street
Woodland Hills, CA 91367
Telephone: (818) 883-5644
E-mail: trhanigan@gmail.com
Plaintiffs-Appellees SHAHRIAR JABBARI and KAYLEE HEFFELFINGER, on
behalf of themselves and all others similarly situated, are
represented by:
Gretchen Freeman Cappio, Esq.
Derek W. Loeser, Esq.
Daniel Parke Mensher, Esq.
Lynn Lincoln Sarko, Esq.
KELLER ROHRBACK LLP
1201 Third Avenue, Suite 3200
Seattle, WA 98101
Telephone: (206) 623-1900
E-mail: gcappio@kellerrohrback.com
dloeser@kellerrohrback.com
dmensher@kellerrohrback.com
lsarko@kellerrohrback.com
- and -
Jeffrey Greg Lewis, Esq.
KELLER ROHRBACK LLP
300 Lakeside Drive, Suite 1000
Oakland, CA 94612
Telephone: (510) 463-3900
E-mail: jlewis@kellerrohrback.com
- and -
Matthew J. Preusch, Esq.
KELLER ROHRBACK LLP
1129 State Street, Suite 8
Santa Barbara, CA 93101
Telephone: (805) 456-1496
E-mail: mpreusch@kellerrohrback.com
Defendants-Appellees WELLS FARGO & COMPANY and WELLS FARGO BANK,
N.A., are represented by:
Manuel Francisco Cachan, Esq.
Bart H. Williams, Esq.
PROSKAUER ROSE LLP
2049 Century Park East
Los Angeles, CA 90067-3206
Telephone: (310) 284-4568
E-mail: mcachan@proskauer.com
bart.williams@mto.com
- and -
Erin J. Cox, Esq.
Eric P. Tuttle, Esq.
MUNGER, TOLLES & OLSON LLP
350 South Grand Avenue, 50th Floor
Los Angeles, CA 90071
Telephone: (213) 683-9575
E-mail: erin.cox@mto.com
- and -
Jeslyn A. Everitt, Esq.
David H. Fry, Esq.
MUNGER TOLLES & OLSON LLP
560 Mission Street, 27th Floor
San Francisco, CA 94105
Telephone: (415) 512-4040
E-mail: jeslyn.everitt@mto.com
david.fry@mto.com
Asbestos Litigation
ASBESTOS UPDATE: $229.7K Fine for Asbestos Removal Contractor
-------------------------------------------------------------
My Edmonds News reported that an Edmonds-based asbestos removal
contractor has been cited by the Washington Department of Labor &
Industries for multiple willful safety violations for improper
handling of asbestos. Along with the citations, the company faces
fines totaling $229,700.
In an announcement issued on July 16, Labor & Industries said it
has cited Above & Beyond Asbestos Removal in connection with two
separate inspections. Along with citing and fining a company, Labor
& Industries may also decertify an asbestos contractor for multiple
willful violations. This company is under review, the department
said.
"This company has demonstrated a continuous indifference to
Washington's asbestos handling rules which protect workers and the
public from harm," said Anne Soiza, L&I's assistant director for
the Division of Occupational Safety and Health. "This fine delivers
a clear message that asbestos is a deadly hazard and we won't
tolerate any company that doesn't follow the rules to keep the
public and workers safe."
According to the department announcement, asbestos is extremely
hazardous and can cause potentially fatal diseases like asbestosis,
mesothelioma and lung cancer. Only a certified abatement contractor
that follows the specific asbestos related safety and health rules
may remove and dispose of asbestos-containing building materials.
The two recent inspections of Above & Beyond each uncovered several
similar violations. One worksite involved the emergency removal of
boiler insulation in a Seattle apartment complex, and the other
concerned the removal of asbestos popcorn ceiling material in a
single-family residence.
In both cases, the workers did not use proper safety equipment,
required air sampling was not performed, and asbestos-containing
material was left exposed to the public and was improperly taken
through public areas. Asbestos-containing dust can harm both
workers and the public until it is eliminated.
The two inspections resulted in multiple willful and serious
violations, the announcement said. A willful violation is one where
Labor & Industries finds evidence of plain indifference or an
intentional disregard to a hazard or rule.
Above & Beyond has been cited in the past for similar violations
and has been identified by L&I as a severe violator -- a
designation that carries consequences, such as follow-up
inspections at any of their facilities or sites that could have
similar hazards.
The employer has 15 business days to appeal the citations.
Reached by phone, an Above & Beyond representative said he was
aware of the citation but declined to comment.
ASBESTOS UPDATE: 105 East Sussex Schools Contain Asbestos
---------------------------------------------------------
Ben Hatton of Kent Live reported that a total of 105 East Sussex
schools contain asbestos and the council has paid out more than
£250,000 in exposure settlements in recent years.
Freedom of Information (FOI) requests show five claims have been
made against East Sussex County Council for exposure to asbestos
within a school since 2011.
The council has not said what number of those are past or present
school staff or students.
All five claims have been settled, at a combined cost of
GBP257,805.
But there have been no reported cases of asbestos exposure in
recent years.
ASBESTOS UPDATE: A. Edwards Suit v. Andrea Electronics Resolved
---------------------------------------------------------------
The asbestos-related lawsuit filed by Audrey Edwards against Andrea
Electronics Corporation has been resolved, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended March 31, 2018.
The Company states, "In December 2010, Audrey Edwards, Executrix of
the Estate of Leon Leroy Edwards, filed a lawsuit in the Superior
Court of Providence County, Rhode Island, against 3M Company and
over 90 other defendants, including the Company, alleging that the
Company processed, manufactured, designed, tested, packaged,
distributed, marketed or sold asbestos containing products that
contributed to the death of Leon Leroy Edwards. In April 2018,
Andrea sought and was granted a Motion for Summary Judgment and
Motion for Entry of Final Judgment pursuant to Rule 54(b);
therefore this matter is considered resolved."
A full-text copy of the Form 10-Q is available at
https://is.gd/EBI1J9
ASBESTOS UPDATE: Adjusted Survival Ratio Remains Below 8Yrs
-----------------------------------------------------------
Claims Journal reported that following a review of recent years'
asbestos related claims and litigation activity and insurers' paid
and incurred loss experience, Fitch has raised projection for
ultimate all-time U.S. industry incurred losses to $100 billion
compared with a previous estimate of $90 billion. Consideration of
several future loss payment scenarios for this level of ultimate
incurred losses leads to a continued range of target asbestos
survival ratios of 11.0x-14.0x.
The industry's 2017 survival ratio was up modestly to 7.8x versus
the prior year. Based on these survival ratio targets, Fitch
estimates the U.S. industry's asbestos reserve deficiency is in the
range of $8 billion-$16 billion at year-end 2017.
"Overall, the industry reserves remain deficient, but Fitch
believes insurers, in aggregate, rated entities will absorb the
deficiency over time without adversely effecting capital adequacy
or ratings over the long term," said Doug Pawlowski, senior
director.
Calendar year incurred losses for asbestos have been relatively
stable at approximately $1.6 billion from 2014-2017. Continued
reported loss stability along with demonstration that higher paid
loss and settlement activity are mitigating exposures could support
a modest reduction in Fitch's survival ratio targets.
Asbestos losses continue to create a modest earnings drag for the
industry and insurers with meaningful asbestos exposures. For a
group of 25 insurers with the largest U.S. asbestos exposures,
continued asbestos incurred losses have added 70 basis points to
the group's aggregate combined ratio over the past five years.
ASBESTOS UPDATE: Asbestos Ban Not Enough to Wipe Out Mesothelioma
-----------------------------------------------------------------
Alex Strauss of Surviving Mesothelioma reported that twenty-six
years after Italy instituted a ban on cancer-causing asbestos, the
number of people dying of malignant mesothelioma is still rising.
Researchers with the Istituto Superiore di Sanita in Rome computed
the mortality rates from mesothelioma between 2003 and 2014 in each
of the country's 8,047 municipalities and found that more than
16,000 people had died from malignant mesothelioma.
Most of those deaths were from pleural mesothelioma and most
occurred in areas near industrial asbestos sources.
Malignant Mesothelioma and Asbestos Bans
An estimated 80 percent of people diagnosed with mesothelioma have
some type of known exposure to asbestos, a naturally-occurring
fibrous mineral that embeds itself in body tissues.
Even though scientists were exploring the connection between
asbestos exposure and diseases like pleural mesothelioma, lung
cancer, pleural plaques and asbestosis as early as the 1930s, it
took decades for country-wide bans of the toxin to be enacted.
Iceland was the first country to ban all type of asbestos in 1983.
After having been one of the primary producers and consumers of
asbestos in Europe, Italy did not ban the substance until 1992.
Clusters of Mesothelioma Deaths
Before the 1992 ban, thousands of Italian workers were exposed to
asbestos in mining, cement production, shipyards, and textile
mills. The communities in which these businesses were located were
also impacted, raising the environmental mesothelioma risk for
residents.
"Significant clusters were found corresponding to areas that hosted
major asbestos-cement plants, naval shipyards, petrochemical plants
and refineries," writes lead investigator Lucia Fazzo in Cancer
Epidemiology. "Excesses were found also in areas near the
chrysotile mine of Balangero, and in Biancavilla, a town with a
stone quarry contaminated by fluoro-edenitic fibres."
Fluoro-edenite is another fibrous mineral that has also been linked
to pleural mesothelioma and lung cancer.
Understanding Mesothelioma Mortality Trends
Mesothelioma deaths are continuing to rise in Italy and many other
countries with asbestos bans not because bans do not work but
because mesothelioma has an unusually long latency period.
It can take decades for asbestos fibers to work their way deep into
the tissues and trigger the cellular changes that result in
malignant mesothelioma.
Eventually, mesothelioma deaths in Italy will likely level off and
even drop as fewer and fewer asbestos workers are still living.
In the meantime, the research team says understanding the
distribution of mesothelioma deaths in the country gives public
health workers important information they can use to monitor and
educate residents in high risk areas.
ASBESTOS UPDATE: Asbestos Discovered in Modern Australian Homes
---------------------------------------------------------------
9news.com.au reported that a young family lost almost everything
they owned and are $30,000 out of pocket after a DIY project
exposed asbestos in their modern home.
Jase, Karla and their young children purchased their home five
years ago, and just last month uncovered the hazardous material in
their bathroom.
Jase said when he turned the water off to find a small leak, he
decided to start undertaking some home renovation.
"So I pretty much tore it apart -- cut, smashed, pulled the floor
out, tore the walls out," he said.
Karla said she began noticing a porous material drifting through
the house.
"At the start I was just thinking, this stuff is really dusty, but
then it started to get thicker and thicker and then I was like, oh
my gosh, what if it's actually asbestos?" she said.
They were forced to leave the house immediately, and were unable to
return for almost two months.
"We left this house on Sunday with just the clothes on our back and
that was it," Karla said.
"The kids didn't have uniforms for school on Monday, we had
nothing."
The family lost all their clothing, shoes, the kids' mattresses,
blankets and even the kids' toys.
Asbestos removal specialist John Limpus said finding asbestos in
even modern homes was a common issue.
"The problem is the home renovators and builders, to save money,
have clattered over the asbestos with gyprock or in a bathroom, for
instance, take the tiles off and then retile over old asbestos," he
said.
Asbestos Diseases Foundation of Australia president Barry Robson
said unlike commercial buildings, residential properties do not
have a register that identifies asbestos.
In most cases, a pest certificate will suffice, which the experts
say is not good enough.
"Even new houses these days should be checked for asbestos," Mr
Robson said.
ASBESTOS UPDATE: Asbestos From Steam Explosion Forces Evacuation
----------------------------------------------------------------
Peter Szekely and Tea Kvetenadze of Reuters reported that residents
and workers from 49 buildings near the site of an early-morning
steam pipe explosion in Manhattan were evacuated, many for at least
two days, after lung-damaging asbestos was found on debris from the
blast, officials said.
The blast at the start of the morning rush hour near the sharply
angled Flatiron Building in bustling Midtown opened a giant crater
in the street and creating an urban geyser that sent a vapor plume
into the air for hours.
The asbestos discovery raised concerns that the substance, which
had encased the 86-year-old ruptured pipe, may have spread to the
street, buildings and ventilation systems, all of which would need
to be decontaminated, Mayor Bill de Blasio said.
"Now that we know there's asbestos present, we're not going to cut
any corners," de Blasio told reporters at the scene. "We're going
to be thorough."
Street closings and the evacuations of 28 buildings in the "hot
zone" near the explosion at Fifth Avenue and West 21 Street will
probably last while crews decontaminate the area, de Blasio said.
Some of the 49 buildings on the outer fringe of the explosion area
may be reopened earlier, he said.
"People will not be let back into their apartments until we have
cleared their building," the mayor said.
About 500 people from nearly 250 residential units were displaced
by the evacuation order, according to the city's Emergency
Management Department.
Authorities said only minor injuries resulted from the explosion of
the steam pipe, which was installed in 1932.
New York Governor Andrew Cuomo said he was directing the state's
Department of Public Service to conduct a full investigation into
the cause of the explosion and determine whether any utility
activities contributed to it.
Dr. Herminia Palacio, deputy mayor of health and human services,
said the main health risks were from repeated exposure to asbestos
fibers, rather than brief, temporary contact.
Officials urged anyone who may be contaminated to shower and remove
their clothes, bag them and bring them to Consolidated Edison Inc,
the power company that maintains the steam line.
The blast may have damaged other subterranean lines in the vicinity
that carry water, gas and electricity, all which have been shut
down until repairs are done, Fire Commissioner Daniel Nigro said.
The steam pipes are part of a 136-year-old system that Con Ed said
is the nation's largest steam network, stretching from the southern
tip of Manhattan to 96th Street.
Although the blast and the resulting street closings snarled
vehicular traffic in the immediate area, other commuting
disruptions were minimal.
ASBESTOS UPDATE: Asbestos May Drive Mesothelioma Progression
------------------------------------------------------------
Alex Strauss of Surviving Mesothelioma reported that a new study
suggests that asbestos, the primary trigger for almost all cases of
malignant mesothelioma, may do more than cause the disease—it may
also play a role in how quickly it grows and spreads.
Malignant mesothelioma is typically a disease of old age. Once
inhaled or swallowed, it can take decades for asbestos fibers to
work their way into tissues and wreak havoc with the DNA of
mesothelial cells.
But the new joint Italian/American study suggests that that time
may be significantly shortened in cases of heavy exposure.
Researchers at Duke University Medical Center in North Carolina and
the National Tumor Institute in Milan have found that the younger
a person is at the time of their mesothelioma diagnosis, the
heavier their exposure to asbestos was likely to have been.
More Asbestos = Earlier Diagnosis
The new report evaluates the cases of 594 malignant pleural
mesothelioma patients for whom there was data available on the
actual amount of asbestos bodies and fibers in their lung tissues.
The researchers also considered other factors that could have
impacted the development of their mesothelioma including gender,
tumor location, histological subtype and whether they were exposed
to asbestos as children.
"For both measures of asbestos in lung tissue, younger age at
diagnosis was associated with higher internal measures of exposure
to asbestos," states Italian researcher Tommaso A Dragani, first
author on the paper published in Carcinogenesis. "None of the other
variables considered was associated with age at diagnosis."
Asbestos May Do More Than Cause Mesothelioma
Scientists already knew that the reverse was true: People are more
likely to eventually get a mesothelioma diagnosis if their
asbestos exposure occurred early in life. This is likely because of
mesothelioma’s long latency period.
But the idea that early diagnosis may indicate heavier exposure
suggests that asbestos may do more than just plant the "seed" for
pleural mesothelioma; it may also drive its growth.
"Our finding that tumors become clinically apparent at a younger
age in heavily exposed subjects suggests that asbestos is involved
not only in malignant mesothelioma tumor initiation but, somehow,
also in the progression of the disease," concludes the report
summary.
Early Asbestos Exposure Also Raises Risk
The study emphasizes, once again, the dangerous nature of toxic
asbestos.
While this report focuses on people with high levels of exposure,
other studies have indicated that even low-level asbestos exposure
raises the lifetime risk for mesothelioma. The risk is compounded
if the exposure occurs early in life.
Many mesothelioma patients who did not spend their careers in
fields typically associated with asbestos exposure (mining,
construction, electrical work, plumbing, shipbuilding, etc.)
realize too late that their exposure occurred during some type of
hands-on summer job in their youth.
This was the case for actors Merlin Olsen and Paul Gleason, as well
as for the world's longest living mesothelioma survivor, Paul
Kraus, author of "Surviving Mesothelioma and Other Cancers." Kraus
now spreads the word that mesothelioma survival is possible with
radical lifestyle and dietary intervention.
Source:
Dragani, TA, et all, "Malignant mesothelioma diagnosed at a younger
age is associated with heavier asbestos exposure," June 30, 2018.
ASBESTOS UPDATE: Boeing's Bid to Review Remand of "Betzner" Denied
------------------------------------------------------------------
The Hon. Staci M. Yandle of the United States District Court for
the Southern District of Illinois has issued a Memorandum and Order
denying Boeing Company's Motion for Reconsideration in the case
styled Bruce Betzner and Barbara Betzner, Plaintiffs, v. A.O. Smith
Corporation, et al, Defendants, Case No. 18-CV-1294-SMY-RJD, (S.D.
Ill.).
Plaintiffs Bruce and Barbara Betzner originally filed this lawsuit
in the Circuit Court of the Third Judicial Circuit, Madison County,
Illinois, alleging that Bruce Betzner sustained injuries due to
asbestos exposure. On June 18, 2018, Defendant Boeing Company
removed the action to the District Court for the Southern District
of Illinois, asserting federal subject matter jurisdiction pursuant
to 28 U.S.C. Section 1442, the federal officer removal statute.
The Court sua sponte remanded the case to state court, finding that
it lacked subject matter jurisdiction due to Boeing's failure to
support its claimed government contractor defense.
Boeing filed a Motion for Reconsideration. In support of its Motion
for Reconsideration, Boeing asserts that the Court's decision to
remand is flawed because Boeing's Notice of Removal sufficiently
set forth the grounds for federal officer jurisdiction. More
specifically, Boeing maintains that it was acting under an officer
or agency of the United States government in relation to
Plaintiffs' claims, and that it can state at least a colorable
federal defense to said claims.
Citing Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S.Ct.
547 (2014), Boeing contends it need only provide a short and plain
statement -- not evidentiary submissions -- to support removal.
Boeing further contends that the submission of evidence
establishing the factual allegations underlying removal is only
required when the plaintiff contests, or the court questions, the
defendant's allegations. In Dart Cherokee Basin Operating Co., LLC
v. Owens, the Supreme Court examined whether a Notice of Removal in
an action filed under the Class Action Fairness Act need only
plausibly demonstrate the amount in controversy, or whether actual
evidence of the amount in controversy must be expressly provided in
the Notice. The Supreme Court concluded that only a "short and
plain" statement is necessary in the Notice of Removal as to amount
in controversy.
But the Court finds Dart Cherokee is inapposite to the instant case
and also finds Boeing's argument problematic for two reasons; its
reliance on Dart Cherokee is wholly flawed, and the Court in fact
questions its allegations.
The Court points out that Boeing sought to remove this action based
on the federal officer removal statute. As the proponent of
removal, it had the burden of establishing that it was a (1)
"person" (2) "acting under" the United States, its agencies, or its
officers (3) that has been sued "for or relating to any act under
color of such office," and (4) has a colorable federal defense to
Plaintiff's claim. The Court is not required to take Boeing's
allegations at face value. While Boeing's Notice and attachments
were voluminous, the Court notes that they simply did not provide
sufficient information on which the Court could find that removal
was proper. That being the case, the Court did not commit a
manifest error of law or fact -- the Notice was deficient and
Boeing failed to establish the existence of federal jurisdiction.
Recognizing the deficiencies in its Notice, Boeing now seeks the
opportunity to file a substantive memorandum with supporting
affidavits and exhibits purportedly evidencing federal officer
jurisdiction. In support of its Motion for Reconsideration, and as
an example, Boeing submitted an almost-illegible Affidavit from
George Durham III, taken from a 2008 state court case. Boing claims
Durham's Affidavit establishes that the U.S. Air Force maintained
the ultimate authority to approve the design specifications and
other contractual requirements of B-1 aircraft. However, "being
regulated even when a federal agency directs, supervises, and
monitors a company's activities in considerable detail . . . is not
enough to make a private firm a person 'acting under' a federal
agency."
Moreover, it is obvious that Boeing waited until the eleventh hour
to file its Notice, hoping the Court would either disregard its
failure to provide sufficient support for removal or allow it to
supplement after the 30-day removal deadline. Accordingly, the
Court declines to grant such a mulligan.
A copy of the Memorandum and Order dated June 29, 2018, is
available at https://tinyurl.com/y92w3fou from Leagle.com.
Bruce Betzner & Barbara Betzner, Plaintiffs, represented by Judith
E. Conway , Cooney & Conway.
The Boeing Company, Defendant, represented by Brian Thomas
Lesiewicz -- BLesiewicz@maronmarvel.com -- Maron Marvel Bradley, et
al., Leslie Anne Federer -- LFederer@maronmarvel.com -- Maron
Marvel Bradley, et al. & Greg M. McMahon --
GMcMahon@maronmarvel.com -- Maron Marvel Bradley, et al.
Hexcel Corporation, Defendant, represented by Julie Fix Meyer --
jfixmeyer@armstrongteasdale.com -- Armstrong Teasdale LLP, Anita M.
Kidd -- akidd@armstrongteasdale.com -- Armstrong Teasdale LLP,
Raymond R. Fournie -- rfournie@armstrongteasdale.com -- Armstrong
Teasdale LLP & Sarah E. Harmon -- sharmon@armstrongteasdale.com --
Armstrong Teasdale LLP.
ASBESTOS UPDATE: Building Reopens After Steam Blast Asbestos Scare
------------------------------------------------------------------
WABC-TV reported that giant plastic sheets now surround the crater
left by the steam pipe explosion in Manhattan's Flatiron District,
as buildings in the area continue to reopen.
Workers installed the sheets to reduce the risk of more asbestos
flying into the air while the excavation work continues, and to
keep passersby from slowing down traffic by looking at the hole.
Most of the buildings closed because of the explosion have been
reopened, city officials said.
Of the 45 buildings tested for asbestos contamination, 39 have been
cleared for people to return, officials said. Crews are still
working to clean up the rest, they added.
It was a dramatic scene after a steam pipe exploded in Manhattan's
Flatiron District on July 19, 2018, sending thick clouds of steam
shooting into the air.
The city Department of Environmental Protection also collected more
than 1,800 outdoor air samples in the area to test for asbestos and
determined that the air is safe for the public, officials said.
The cleanup is being done in response to the rupture of an aging
Con Edison pipe containing cancer-causing asbestos. The blast on
July 19 spewed a geyser of white vapor 10 stories high. It forced
street closures and the evacuation of hundreds of people, but
caused no major injuries.
Similar explosions over the year have drawn attention to the aging
infrastructure beneath the streets of the nation's largest city.
Officials said the pipe that blew was installed in 1932.
More than 100 miles of steam pipe run beneath Manhattan, delivering
vapor that powers heating and cooling systems, among other
functions, in thousands of buildings. The pipes share the crowded
underground with subway and commuter rail tunnels,
telecommunications and electric cable, and water pipe
ASBESTOS UPDATE: Carcinogenicity of Talc Sans Asbestos Unclear
--------------------------------------------------------------
Monthly Prescribing Reference reported that talcum powder, made
from talc, which contains asbestos is considered carcinogenic to
humans, while the, according to the American Cancer Society.
Talcum powder is widely used in cosmetic products. Some talc
contains asbestos, although all talcum products used in homes in
the United States have been free from asbestos since the 1970s.
In laboratory studies, exposure of rats, mice, and hamsters to
asbestos-free talc resulted in mixed findings, with tumor formation
in some studies. Findings from studies in women that examined the
possible link between talcum powder and ovarian cancer were mixed,
with some studies showing a slightly increased risk. A small
increase in risk was seen in many case-control studies. No
increased risk was seen in one prospective cohort study, while a
modestly increased risk was seen in a second study. Increased risk
of lung cancer and other respiratory diseases has been seen in some
studies of talc miners and millers. Lung cancer risk was not
increased with reports of cosmetic talcum powder use. One study
suggested increased risk of endometrial cancer with genital talcum
powder use.
The International Agency for Research on Cancer classifies talc
that contains asbestos as "carcinogenic to humans," while talc not
containing asbestos is "not classifiable as to carcinogenicity in
humans." Perineal use of talc-based body powder is classified as
"possibly carcinogenic to humans."
ASBESTOS UPDATE: Columbus McKinnon Records $6.2MM Liability
-----------------------------------------------------------
Columbus McKinnon Corporation has US$6,235,000 as its
asbestos-related aggregate liability that is probable and estimable
as of March 31, 2018, according to the Company's Form 10-K filing
with the U.S. Securities and Exchange Commission for the fiscal
year ended March 31, 2018.
The Company states, "Like many industrial manufacturers, the
Company is involved in asbestos-related litigation. In continually
evaluating costs relating to its estimated asbestos-related
liability, the Company reviews, among other things, the incidence
of past and recent claims, the historical case dismissal rate, the
mix of the claimed illnesses and occupations of the plaintiffs, its
recent and historical resolution of the cases, the number of cases
pending against it, the status and results of broad-based
settlement discussions, and the number of years such activity might
continue. Based on this review, the Company has estimated its
share of liability to defend and resolve probable asbestos-related
personal injury claims. This estimate is highly uncertain due to
the limitations of the available data and the difficulty of
forecasting with any certainty the numerous variables that can
affect the range of the liability. The Company will continue to
study the variables in light of additional information in order to
identify trends that may become evident and to assess their impact
on the range of liability that is probable and estimable.
"Based on actuarial information, the Company has estimated its
asbestos-related aggregate liability including related legal costs
to range between US$4,000,000 and US$7,700,000 using actuarial
parameters of continued claims for a period of 37 years from March
31, 2018. The Company's estimation of its asbestos-related
aggregate liability that is probable and estimable, in accordance
with U.S. generally accepted accounting principles approximates
US$6,235,000, which has been reflected as a liability in the
consolidated financial statements as of March 31, 2018. The
recorded liability does not consider the impact of any potential
favorable federal legislation. This liability will fluctuate based
on the uncertainty in the number of future claims that will be
filed and the cost to resolve those claims, which may be influenced
by a number of factors, including the outcome of the ongoing
broad-based settlement negotiations, defensive strategies, and the
cost to resolve claims outside the broad-based settlement program.
Of this amount, management expects to incur asbestos liability
payments of approximately US$2,000,000 over the next 12 months.
Because payment of the liability is likely to extend over many
years, management believes that the potential additional costs for
claims will not have a material effect on the financial condition
of the Company or its liquidity, although the effect of any future
liabilities recorded could be material to earnings in a future
period.
"The Company believes that a share of its previously incurred
asbestos-related expenses and future asbestos-related expenses are
covered by pre-existing insurance policies. The Company has
engaged in a legal action against the insurance carriers for those
policies to recover these expenses and future costs incurred. When
the Company resolves this legal action, it is expected that a gain
will be recorded for previously expensed cost that is recovered.
In July 2017, the Company received a US$1,741,000 settlement
payment, net of legal fees, from one of its insurance carriers as
partial reimbursement for asbestos-related expenses. This partial
payment has been recorded as a gain in cost of products sold. In
February 2018, an additional settlement payment of US$621,000 was
received from another insurance carrier as partial reimbursement
for asbestos-related expenses. The Company is continuing its
actions to recover further past costs and to cover future costs."
A full-text copy of the Form 10-K is available at
https://is.gd/o9ESGO
ASBESTOS UPDATE: Council Probe Asbestos in Bridge of Don Academy
----------------------------------------------------------------
Aberdeen Evening Express reported that the discovery was made
during maintenance work at the city’s Bridge of Don Academy.
Asbestos materials were disturbed by building service workers
during the removal of a panel.
The material -- which was taken away for testing -- has been
confirmed as asbestos.
Unite regional officer Tommy Campbell said there is "great concern"
that workers were contaminated with the material.
He said: "If the full health and safety procedures relating to
suspected asbestos exposure were not followed by management these
workers have left the site and run the risk of contaminating other
workers and members of the public.
"Unite representatives have repeatedly made our health and safety
concerns known about previous potential, asbestos exposure
incidents.
"It beggars belief that we have yet another serious, potentially
dangerous situation where the management have failed to respond
properly in line with health and safety regulations and follow
their own policies and procedures.
"Unite is demanding that a full and transparent investigation
should be carried by the HSE, given the number of serious
complaints the union has had to make over the past year to Aberdeen
City Council."
The council has confirmed it will make a full investigation and the
Health and Safety Executive (HSE) is being notified.
A spokesman for the local authority said: "On Thursday a
potentially harmful material was disturbed within a corridor at
Bridge of Don Academy where work to improve security is being
carried out during the school holidays.
"The area involved was made safe and sealed off and the material
removed for examination.
“The material has now been confirmed as asbestos."
ASBESTOS UPDATE: D/C Distribution Still Faces A&F Suit at March 31
------------------------------------------------------------------
Kaanapali Land, LLC's subsidiary, D/C Distribution Corporation,
continues to defend itself against the insurance coverage lawsuit
filed by American & Foreign Insurance Company, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended March 31, 2018.
The Company states, "On February 15, 2005, D/C was served with a
lawsuit entitled American & Foreign Insurance Company v. D/C
Distribution and Amfac Corporation, Case No. 04433669 filed in the
Superior Court of the State of California for the County of San
Francisco, Central Justice Center. No other purported party was
served. In the eight-count complaint for declaratory relief,
reimbursement and recoupment of unspecified amounts, costs and for
such other relief as the court might grant, plaintiff alleged that
it is an insurance company to whom D/C tendered for defense and
indemnity various personal injury lawsuits allegedly based on
exposure to asbestos containing products. Plaintiff alleged that
because none of the parties have been able to produce a copy of the
policy or policies in question, a judicial determination of the
material terms of the missing policy or policies is needed.
Plaintiff sought, among other things, a declaration: of the
material terms, rights, and obligations of the parties under the
terms of the policy or policies; that the policies were exhausted;
that plaintiff is not obligated to reimburse D/C for its attorneys'
fees in that the amounts of attorneys' fees incurred by D/C have
been incurred unreasonably; that plaintiff was entitled to
recoupment and reimbursement of some or all of the amounts it has
paid for defense and/or indemnity; and that D/C breached its
obligation of cooperation with plaintiff. D/C filed an answer and
an amended cross-claim. D/C believed that it had meritorious
defenses and positions, and intended to vigorously defend. In
addition, D/C believed that it was entitled to amounts from
plaintiffs for reimbursement and recoupment of amounts expended by
D/C on the lawsuits previously tendered. In order to fund such
action and its other ongoing obligations while such lawsuit
continued, D/C entered into a Loan Agreement and Security Agreement
with Kaanapali Land, in August 2006, whereby Kaanapali Land
provided certain advances against a promissory note delivered by
D/C in return for a security interest in any D/C insurance policy
at issue in this lawsuit. In June 2007, the parties settled this
lawsuit with payment by plaintiffs in the amount of US$1,618. Such
settlement amount was paid to Kaanapali Land in partial
satisfaction of the secured indebtedness.
"Because D/C was substantially without assets and was unable to
obtain additional sources of capital to satisfy its liabilities,
D/C filed with the United States Bankruptcy Court, Northern
District of Illinois, its voluntary petition for liquidation under
Chapter 7 of Title 11, United States Bankruptcy Code during July
2007, Case No. 07-12776. Such filing is not expected to have a
material adverse effect on the Company as D/C was substantially
without assets at the time of the filing. Kaanapali Land filed
claims in the D/C bankruptcy that aggregated approximately
US$26,800, relating to both secured and unsecured intercompany
debts owed by D/C to Kaanapali Land. In addition, a personal
injury law firm based in San Francisco that represents clients with
asbestos-related claims, filed proofs of claim on behalf of
approximately two thousand claimants. While it is not likely that
a significant number of these claimants have a claim against D/C
that could withstand a vigorous defense, it is unknown how the
trustee will deal with these claims. It is not expected, however,
that the Company will receive any material additional amounts in
the liquidation of D/C."
A full-text copy of the Form 10-Q is available at
https://is.gd/WW5bOo
ASBESTOS UPDATE: D/C Lift Stay Issue Still Ongoing at March 31
--------------------------------------------------------------
A motion to lift stay is still pending in the bankruptcy cases of
Kaanapali Land, LLC's subsidiary, D/C Distribution Corporation,
according to the Kaanapali's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
March 31, 2018. The bankruptcy court has previously lifted the
stay in 2015, but the decision was reversed by the district court
in 2016.
The Company states, "On or about April 28, 2015, eight litigants
who filed asbestos claims in California state court (hereinafter,
"Petitioners") filed a motion for relief from the automatic stay in
the D/C bankruptcy (hereinafter "life stay motion"). Under
relevant provisions of the bankruptcy rules and on the filing of
the D/C bankruptcy action, all pending litigation claims against
D/C were stayed pending resolution of the bankruptcy action. In
their motion, Petitioners asked the bankruptcy court to lift the
stay in the bankruptcy court to name D/C and/or its alternate
entities as defendants in their respective California state court
asbestos actions and to satisfy their claims against insurance
policies that defend and indemnify D/C and/or their alternate
entities. The Petitioner's motion to lift stay thus in part has as
an objective ultimate recovery, if any, from, among other things,
insurance policy proceeds that were allegedly assets of both the
D/C and Oahu Sugar bankruptcy estates.
"Kaanapali, the EPA, and the Navy are claimants in the Oahu Sugar
bankruptcy and the Fireman's Fund policies are allegedly among the
assets of the Oahu Sugar bankruptcy estate as well. For this and
other reasons, Kaanapali, the EPA and the Navy opposed the motion
to lift stay.
"After briefing and argument, on May 14, 2015, the United States
Bankruptcy Court, for the Northern District of Illinois, Eastern
Division, in In Re D/C Distribution, LLC, Bankruptcy Case No.
07-12776, issued an order lifting the stay. In the order, the
court permitted the Petitioners to "proceed in the applicable
nonbankruptcy forum to final judgment (including any appeals) in
accordance with applicable nonbankruptcy law. Claimants are
entitled to settle or enforce their claims only by collecting upon
any available insurance Debtor's liability to them in accordance
with applicable nonbankruptcy law. No recovery may be made
directly against the property of Debtor, or property of the
bankruptcy estate." Kaanapali, Firemen's Fund and the United States
appealed the bankruptcy court order lifting the stay.
"In March 2016, the district court reversed the bankruptcy court
order finding that the bankruptcy court did not apply relevant law
to the facts in the case to arrive at a reasoned decision. On
appeal the district court noted that the law requires consideration
of a number of factors when lifting a stay to permit certain claims
to proceed, including consideration of the adequacy of remaining
insurance to meet claims still subject to the stay. Among other
things, the court noted that the bankruptcy court failed to explain
why it was appropriate for the petitioners to liquidate their
claims before the other claimants whose claims remained subject to
the stay. The district court remanded the case for further
proceedings. It is uncertain whether such further proceedings on
the lift stay will take place.
"The parties in the D/C and Oahu Sugar bankruptcies have reached
out to each other to determine if there is any interest in pursuing
a global settlement of the claims in the Oahu Sugar and D/C
bankruptcies insofar as the Fireman's Fund insurance policies are
concerned. If such discussions take place, they may take the form
of a mediation or other format and involve some form of resolution
of Kaanapali's interest in various of the Fireman's Fund insurance
policies for Kaanapali's various and future insurance claims.
Kaanapali may consider entering into such discussions, but there is
no assurance that such discussions will take place or prove
successful in resolving any of the claims in whole or in part."
A full-text copy of the Form 10-Q is available at
https://is.gd/WW5bOo
ASBESTOS UPDATE: EPA to Help Oil Refinery Asbestos Abatement
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Emily Walkenhorst of NWA Online reported that the abandoned
MacMillan Ring Free Oil refinery in Union County had high levels of
friable asbestos, or asbestos that easily crumbles and releases
fibers into the air, in the boiler building and the soils on the
ground outside of it when the Arkansas Department of Environmental
Quality and the Arkansas Department of Health inspected the
refinery in June.
Norphlet Middle School is west of the property, and it and its
recreational facilities are within 500 feet of some of the asbestos
contamination, according to the EPA.
The refinery was abandoned in 1991.
It became a Superfund site in 2014, which means it's a national
priority site for cleanup funds. The EPA is doing a feasibility
study on cleanup actions.
Proposal targets endangered fish
The U.S. Fish and Wildlife Service has issued a final recovery plan
for the yellowcheek darter fish in north-central Arkansas.
The service listed the fish as endangered in 2011, and it can be
found only in the four forks of the Little Red River separated by
Greers Ferry Lake. It's threatened by climate change and nearby
land uses, such as mining and improper timber harvests, according
to the plan issued this month.
The plan states that the fish will recover by reducing those
threats, encouraging voluntary soil and water conservation
practices within the Little Red River's watershed, and captive
breeding, among other things.
Estimated costs of the entire recovery plan are at least
$45,320,000 over 30 years, according to the service, but most
individual actions cost only $50,000 to $75,000 over five-year
periods. The multimillion-dollar projects will protect "the habitat
integrity and quality of stream reaches" for the yellowcheek
darter, the plan says.
More information about the recovery plan can be found at
https://bit.ly/2mlEpUx.
ASBESTOS UPDATE: Extra Asbestos Found in Former Reid Hospital
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Jason Truitt of Palladium-Item reported that extra asbestos that
led to the first change order for the demolition of the former Reid
Hospital complex was discovered by accident, according to the
person overseeing the work for the city of Richmond.
Brooks Bertl of TRC Environmental Corp. was at Richmond Common
Council meeting to give his monthly update on the project's
progress. In addition to his usual explanations of the work that's
been done since his last visit, Bertl shed new light on the
unexpected asbestos find in the A Wing, the former hospital's
oldest building.
"(The change order) was for asbestos that was encased between
floorboards on three of the floors. That's not typical. No one
really knows why it was there," he said.
"We actually found it by accident. Our contractor was moving some
material from one floor to another floor and busted a hole in the
floor to move it through."
According to Bertl, it was a good thing that the crews discovered
the unknown asbestos when they did.
"We're never happy about change orders, but it's much better to
have found that now than when we have the building halfway torn
down and we have to stop work and all that sort of thing," he
said.
The change order was approved recently by Richmond's Board of
Public Works and Safety, adding more than $172,000 to the original
contract amount of $3,461,350.
Since Bertl last talked to the council in early June, the final
piece of Leeds Tower has come down and hard demolition has wrapped
up on the east, west and service wings around the tower as well as
the auditorium.
"That essentially takes care of the newer portions of the former
hospital that were located at the bottom of the hill," he said.
About 75 percent of B Wing also has been demolished so far, and the
roof has been removed from Jenkins Hall.
"If it sounds like we've been doing a lot of work, we have. The
contractors have been going along very nicely recently," Bertl
said.
Asbestos remediation continues in the A Wing, but that should be
done by the time Bertl returns for his next council update on Aug.
6.
"It's the oldest building and had lots and lots of asbestos and has
taken a while but hasn't held up any other activities," he said.
Asbestos and soft demolition work on the property began back in
December with the newer buildings. Hard demolition followed,
starting with the canopy over the former emergency room entrance.
Crews have worked their way eastward from there and now are
starting to make their way up the hill toward the older sections of
the complex.
The project remains on schedule to be finished by the expected July
2019 completion date.
Before the recently approved change order, the anticipated total
price tag was $4.33 million.
Wayne County officials have agreed to put up $1.42 million, and
Reid Health will pitch in another $1 million. Those contributions
-- along with lower-than-expected bids for the work -- allowed the
city to forego its original plan to take out loans from the state
to pay for everything.
The city plans to use money from the Richmond Redevelopment
Commission through funds generated by the city's Tax Increment
Financing (TIF) district to pay for the remaining amount.
ASBESTOS UPDATE: F. Cohen's PI Claims v. Imerys America Dismissed
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The Hon. Manuel J. Mendez of the Supreme Court of New York County
grants Defendants Imerys Talc America, Inc. and Cyprus Amax
Minerals Company's motion for summary judgment pursuant to CPLR
section 3212 to dismiss Plaintiffs' Complaint and all cross-claims
against them.
Plaintiff-deceased Florence Cohen, a New York school teacher and
school guidance coordinator, was diagnosed with peritoneal
mesothelioma in December 2015 and passed away in October 2017.
Plaintiffs allege Mrs. Cohen was exposed to asbestos through the
daily use of Colgate-Palmolive Company's Cashmere Bouquet talcum
powder and Mennen talcum powder from the 1950s through 1970s, and
Johnson & Johnson's Baby Powder for around ten years.
On February 22, 2016, Plaintiffs commenced the case styled In Re:
New York City Asbestos Litigation. Steven Andrew Cohen,
Individually and as Personal Representative of the Estate of Sandra
Florence Cohen, deceased, Plaintiffs, v. American Biltrite Inc., et
al., Defendants, Docket No. 190044/2016, Motion Seq. No. 007,
(N.Y.), to recover for injuries resulting from Mrs. Cohen's
exposure to asbestos.
Charles Mathieu, Inc. was the exclusive supplier of talc used to
manufacturer Colgate-Palmolive Company's Cashmere Bouquet during
the years that Mrs. Cohen alleged exposure to the product. Charles
Mathieu also allegedly supplied Italian talc used for Johnson &
Johnson's Baby Powder during the relevant years. Whittaker, Clark &
Daniels was the exclusive supplier of the cosmetic talc used to
manufacture Mennen products until the 1980s.
Cyprus Georesearch, Inc., a wholly owned-subsidiary of Cyprus
Mines, purchased part of Charles Mathieu's assets and none of its
liabilities in August 1979. Cyprus Mines agreed to pay $3.5 million
in cash and up to $1.5 million in commissions on sales of Italian
talc over the next twenty years. Charles Mathieu retained its talc
importation business and Cyprus Mines became one of its customers.
Cyprus Mines sold its talc business on June 5, 1992.
Rio Tinto purchased all outstanding stock from Cyprus Talc
Corporation. Rio Tinto subsequently changed the name of Cyprus Talc
Corporation to Luzenac America, Inc. Defendant Imerys America
purchased all outstanding stock of Luzenac America, Inc. and
changed the name of the company to Imerys Talc America, Inc.
Defendant CMAC was created by the merger of Amax Inc. and Cyprus
Minerals Company in 1993.
The Defendants move for summary judgment to dismiss Plaintiffs'
Complaint and all cross-claims against them, contending that they
are not liable as the putative successor to Charles Mathieu, who
was the exclusive supplier of the talc used to manufacture Cashmere
Bouquet and Johnson & Johnson Baby Powder, or to Whittaker, Clark &
Daniels, the exclusive supplier of the cosmetic talc used to
manufacturer Mennen products, during the years that Mrs. Cohen was
exposed to the product.
The Plaintiffs oppose the motion contending that issues of fact
remain as to whether the Defendants should assume successor
liability due to the de facto merger exception. Furthermore, the
Plaintiffs contend that the Moving Defendants failed to address
their alleged liability from Johnson & Johnson's Baby Powder.
The Court points out that in New York, a corporation that acquires
the assets of another is not liable for the torts of its
predecessor. There are four exceptions to New York's general rule
on successor liability, as the successor may be "held liable for
the torts of its predecessor if (1) it expressly or impliedly
assumed the predecessor's tort liability, (2) there was a
consolidation or merger of seller and purchaser, (3) the purchasing
corporation was a mere continuation of the selling corporation, or
(4) the transaction is entered into fraudulently to escape such
obligations."
The Court finds that Imerys America makes a prima facie showing of
entitlement to judgment as a matter of law. None of the four
exceptions apply to hold Imerys America liable for the torts of its
predecessor. The Court settles that Imerys America cannot be
considered a mere continuation of Charles Mathieu since Charles
Matthieu survived the 1979 asset purchase agreement. Cyprus Mines
did not require Charles Mathieu to dissolve but rather it paid
Charles Mathieu cash consideration for the assets it purchased
along with hundreds of thousands of dollars in commissions over the
course of a decade. The 1979 Agreement did not require Cyprus Mines
to acquire Charles Mathieu's liabilities.
Furthermore, Charles Mathieu continued its importation business
independently throughout the 1980s and retained the right to sell
talc to other customers in the event that Cyprus Mines did not make
any purchases. Imerys America makes a prima facie showing that it
is not liable for the alleged torts of Charles Mathieu as the 1979
Agreement was not a "de facto merger" or a "mere continuation."
Likewise, the Court concludes that CAMC makes a prima facie showing
of entitlement to judgment as a matter of law. Cyprus Mines was the
party to the 1979 Agreement. CAMC is not the successor of Cyprus
Mines but rather a result of a merger between Cyprus Minerals and
Amax Inc., and therefore, not a successor to Charles Mathieu.
Accordingly, the Plaintiffs are unable to raise any triable issues
of fact. Plaintiffs contention that the talc supplied by the Imerys
America's predecessor contained asbestos is unavailing. Even if
true, the Court maintains that the 1979 Agreement between Charles
Mathieu and Cyprus Mines did not include the acquisition of Charles
Mathieu's liabilities. None of the four exceptions to New York's
aversion to successor liability theory apply here. Furthermore,
Plaintiffs fail to contest with any evidence that CAMC is not a
proper defendant.
A copy of the Order dated July 3, 2018, is available at
https://tinyurl.com/yc8o5rgn from Leagle.com.
ASBESTOS UPDATE: Family of Secretary Wins GBP360K Asbestos Payout
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Angie Brown of BBC News reported that the family of a woman who
died after being exposed to asbestos while working as a secretary
in a foundry has been awarded GBP360,000 in compensation.
Winifred Thacker died in September 2014, aged 67, from the lung
disease metastatic mesothelioma.
She had worked as a secretary at the Atlas Steel Foundry in
Armadale, West Lothian, for six years until 1967.
In her judgement, Lady Wise said the firm had done nothing to
prevent Mrs Thacker's exposure to asbestos.
Lawyers for her family said it was a landmark case because it was
the first time a judge had ruled that harmful dust must be
suppressed at its source.
They argued that the foundry's owners could have done this by using
large extractors.
Asbestos fibres
The Atlas Steel Foundry closed in 1989 after 76 years.
While she was employed there, Mrs Thacker would walk in and out of
the foundry to deliver memos and to record slips from the clocking
in machine.
She died from malignant mesothelioma, a rare form of cancer which
affects the thin membrane that lines the chest and abdomen.
According to Cancer Research UK, up to 80% of cases of malignant
mesothelioma are caused by exposure to asbestos fibres.
The lawyers for the foundry said they recognised Mrs Thacker had
died of an asbestos-related condition.
However, they argued that she was too far away in an office and not
in direct contact with the material, so they were not liable to pay
compensation.
Reasonable steps
In her ruling at the Court of Session, Lady Wise said the company
should have should have taken all reasonable steps to suppress the
dust, but had not done so.
She said work at the foundry had created substantial dust,
including asbestos dust, and that Mrs Thacker was "regularly and
frequently" exposed to it during her her employment.
In her written judgement, she said: "While her exposure to asbestos
was less than the levels to which those cutting the asbestos
blankets and covering the castings with them were exposed, her
exposure was to an extent likely to be injurious to her, as it
ultimately was.
"That injury was reasonably foreseeable and the defender did
nothing to prevent it."
Kieran Smith of Thompsons Solicitors, who represented the family,
said: "This decision is important for all of those workers, like
Mrs Thacker, who have suffered injury and death from exposure to
dust and fumes in the workplace many years ago.
"This decision confirms that Scots law recognises that the duty on
the employer is to prevent the giving off of dust and fumes at
source in order to properly protect their workers."
ASBESTOS UPDATE: Firefighters Battle Potential Asbestos Exposure
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Midland Reporter-Telegram reported that Firefighters battled heat,
wind and, in one case, potential exposure to asbestos, as they
battled wildfires across the western United States on Friday.
In Montana, specially trained firefighters wore respirators as they
tackled a blaze near where asbestos-tainted vermiculite was mined
for decades. The forest fire was first discovered Thursday
afternoon near the now-closed W.R. Grace Mine. It had burned about
50 acres (20 hectares) by Friday morning.
Asbestos still lingers in the trees and soil around the mine.
Breathing the fibers can lead to mesothelioma or lung cancer. The
Forest Service requires firefighters to use respirators if they are
going to work near the mine site.
A fast-growing wildfire in the parched sage lands of central
Washington state grew to more than 109 square miles (282 square
kilometers) on Friday, and closed a portion of eastbound Interstate
90, the state's main east-west highway, for half the day.
There were no reports of injuries or any structures lost in the
sparsely populated area.
"This is the busiest (wildfire) season we've ever seen in
Washington,'" state Lands Commissioner Hilary Franz tweeted, with
more than 400 fires reported this year.
The Federal Emergency Management Agency authorized the use of
federal funds to help with costs for a wildfire burning in Grant
County, Washington.
That fire started and has burned some 1.6 square miles (4.1 square
kilometers) of state and private land, and was 10 percent
contained. At one time it threatened more than 1,000 homes and
other infrastructure around the town of Desert Aire, triggering the
federal aid.
There were six other large fires burning uncontrolled within
Washington, and multiple others across the border in Oregon.
Authorities in Oregon said that a 60-year-old homeless man found
dead inside the perimeter of a wildfire in the southwest corner of
the state had died in the blaze. Robert Lee Walker's body was found
but his cause of death had been unclear.
Also in Oregon, crews on Friday battled a major wildfire in
north-central Oregon that had grown to 109 square miles (282 square
kilometers). The Substation Fire, near The Dalles, Oregon, was
about 15 percent contained, fought by about 300 firefighters. It
was blamed for the death of a farmer.
In California, a fire just west of Yosemite National Park expanded
to nearly 36 square miles (93 square kilometers). More than 2,700
firefighters aided by a fleet of helicopters were battling the
Ferguson Fire but only 7 percent of its perimeter was contained.
Ground crews dealt with high heat and rugged terrain with little to
no access by roads, officials said. Thunderstorms with gusty winds
were also a concern.
Several areas were under mandatory evacuation orders, but no homes
had been damaged or destroyed.
Yosemite remained open but one of its scenic routes, Glacier Point
Road, was closed indefinitely Thursday night to stage firefighters.
Glacier Point overlook offers one of the park's grand views,
including Yosemite Valley and such landmarks as Half Dome and
Yosemite Falls.
Wildfires burned or smoldered elsewhere in the state.
The National Weather Service warned that an extended period of high
heat was brewing for a large swath of the state.
ASBESTOS UPDATE: Former Church Warden Dies of Asbestos Exposure
---------------------------------------------------------------
Julian Makey of Hunts Post reported that Basil Gibbons, 89, was
described as being "very fit" before developing mesothelioma which
led to his death in 2017.
His family has instructed specialist asbestos-related disease
lawyers from Irwin Mitchell to investigate how he developed the
condition, a form of lung cancer, which is associated with exposure
to asbestos.
They are appealing for information about working conditions at two
firms where Mr Gibbons worked and would like to hear from former
workmates.
Mr Gibbons, a former church warden, had worked for Mann Egerton in
Ipswich on various dates between 1942 and 1989 and Whitlock in
Hadleigh from 1950-1960.
Basil's son, Keith Gibbons, said: "Dad was always very fit and he
was a church warden for around 30 years prior to his illness.
"It was very difficult to see the impact that mesothelioma had on
him. His allotment was his pride and joy, but sadly after his
diagnosis he was unable to maintain it as he would have liked.
"While nothing will ever bring him back, we are keen to get justice
in his memory. If anyone is able to help with information or detail
regarding asbestos at these two sites it would be hugely
appreciated."
Samantha Shaw, solicitor and asbestos-related disease expert at
Irwin Mitchell's Cambridge office who is representing Basil’s
family, said: "Our clients remain understandably devastated by
their loss.
"His story is yet another which highlights how the tragic
consequences of asbestos exposure often become clear many years
after the initial contact with the material is thought to have
taken place.
"We would be grateful to anyone who may have information regarding
the presence of asbestos at these two employers, as such detail
could go some way towards us securing justice for this family."
Mr Gibbons was employed as an agricultural engineer during his time
at Mann Egerton in the 1940s and his job involved him working on a
range of large machinery, including tractors, and he then used
those skills in a similar capacity at Whitlock.
Anyone with information regarding this case can contact Samantha
Shaw at Irwin Mitchell's Cambridge office on 01223 791 815 or email
samantha.shaw@irwinmitchell.com
ASBESTOS UPDATE: Former Mechanic's Suit Remanded for New Trial
--------------------------------------------------------------
Ronald Rowe worked as an automobile mechanic for a couple of years
in the early 1950s. From 1954 until 1985, however, he worked on
heating equipment, furnaces, and new boilers. In the early 1960s,
he established a business installing, repairing, and servicing
boilers. Rowe operated that business until 1985 when he became
disabled. Plaintiff testified that he came home from work every day
with grayish dust on his clothes. Rowe was diagnosed with
mesothelioma in February or March 2014.
Ronald Rowe died of mesothelioma on April 8, 2015, weeks after the
jury verdict being appealed. The complaint originally named
twenty-seven defendants, including Hilco Inc., the
successor-in-interest to Universal Engineering Co., Inc.
(Universal). Twelve defendants were granted summary judgment, four
were dismissed, and two never appeared and the claims against them
were abandoned.
Eight defendants settled their claims before trial, namely: (1)
Borg Warner Morse Tec (Borg Warner); (2) Burnham, LLC (Burnham);
(3) Dana Companies, LLC (Dana); (4) ECR International, Inc. (ECR);
(5) Honeywell International, Inc. (Honeywell); (6) Peerless
Industries, Inc. (Peerless); (7) Trane US, Inc. (Trane); and (8)
Weil-McLain Company, Inc. (Weil-McLain) (collectively, the settling
defendants). The parties signed stipulations of dismissal as to
Trane on November 21, 2014, as to Honeywell on February 17, 2015,
and as to ECR on June 23, 2015. A stipulation of dismissal as to
Peerless was filed months later, and as to Borg Warner, Burnham,
Dana, and Weil-McLain, months after that.
Only Universal participated in the trial. The company had
cross-claimed for contribution against all co-defendants under the
Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A-1 to-5, and the
New Jersey Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8
(Act).
It is not disputed that Rowe was repeatedly exposed to
asbestos-containing dry furnace cement over three decades. Rowe
testified that he used Universal cement throughout his career both
before and while in business, and estimated he used approximately
1000 bags of the product.
The Plaintiff's expert opined that Rowe's mesothelioma was caused
by his exposure to asbestos. In the expert's opinion, Rowe's use of
Universal cement, containing chrysotile asbestos, was a substantial
factor in causing his mesothelioma. She characterized his exposure
as very substantial. Although on cross-examination she agreed that
all of Rowe's contacts with asbestos were substantial contributing
factors to his mesothelioma, she held to her conclusion that his
use of Universal cement was the predominant exposure to asbestos
contributing to his disease.
Universal's expert testified that chrysotile does not cause
malignant mesothelioma at any dose. Although Rowe was exposed to
asbestos from about 1000 pounds of Universal cement, he considered
it to be "low level of cumulative exposure and not sufficient to
put a -- pose a risk for the development of malignant mesothelioma
in this man." In contrast with Rowe's expert, Universal's expert
opined that Rowe's mesothelioma was caused by the thermal system
insulating materials packaging the units with which he worked,
rather than the Universal cement. A second Universal expert also
testified that Rowe's exposure from Universal products "was
negligible, insignificant, de minimis, profoundly less exposure, a
tiny fraction of exposure of what he would have received from
working with pipe insulation and boiler work" because he used
Universal cement in such small quantities over the years.
To support its demand for apportionment under the Act, Universal
presented evidence to the jury establishing liability on the part
of the eight settling defendants. At the start of the trial,
Universal sought to have the settling defendants ruled unavailable
for purposes of admission of certain answers to interrogatories and
deposition transcripts. Universal sent notices in lieu of subpoena
to each of the eight, demanding the appearance of a corporate
representative to provide testimony. Universal certified that none
of the settling defendants would produce a witness at trial,
despite the notices.
The Plaintiff's counsel objected to the admission of the deposition
of a representative of Borg Warner who had testified in a different
Middlesex County matter, on the grounds that Universal had not
proven the unavailability of the witness, and plaintiff was not
present at his deposition. Counsel also argued that Universal "had
not only the opportunity but the obligation to come to this court
to compel compliance with the notice in lieu of subpoena" served on
Borg Warner. Plaintiff's counsel raised essentially the same
objection to the other settling defendants.
Universal's counsel represented that "as it relates to
unavailability . . . the history of the litigation is that, given
the breadth of the asbestos litigation, the various jurisdictions,
these corporate representatives typically are produced and they're
produced in a few cases but not in every single case." The trial
court accepted the representation of counsel that the
representatives were outside the jurisdiction of the court and
unavailable.
During trial, Universal read sections of testimony from the
depositions of corporate representatives of Borg Warner, Burnham,
Dana, ECR, Peerless, and Weil-McLain. However, the trial court
ultimately disallowed deposition readings from representatives of
Honeywell and Trane because those two settling defendants were
based in New Jersey and, thus, available to appear at trial.
The Plaintiff opposed Universal's application to read answers to
interrogatories from the settling defendants, arguing that
interrogatory answers were only admissible against parties and that
the settling defendants were no longer parties even though
Universal would be entitled to an offset of liability. The court
held that, although the settling defendants were "not active"
parties, Universal "may put in proofs as to those settled
defendants provided that it has asserted cross-claims" against
them. The court allowed the admission of answers to interrogatories
by the settling defendants, whether in the present case or another
matter, as long as they were certified.
Based on these rulings, Universal read selected interrogatory
answers of all eight settling defendants into the record. Some of
the interrogatory answers had been served in the Rowe matter, some
in other Middlesex County matters, and some in matters outside New
Jersey.
At the close of Universal's case, the Plaintiffs moved to dismiss
Universal's claims against the settling defendants under the Act,
contending that no sufficient basis for allocation had been
established. The court rejected Plaintiffs' allocation argument,
stating: "No, the court is satisfied because the -- although there
-- you know, one could contend that there were no expert proofs to
assist the jury on allocations, there were factual proofs that were
presented, and it ultimately will be up to the jury to determine
whether they are sufficient." So that application is denied.
The jury found that Rowe's exposure to a product sold or
distributed by Universal was a substantial factor in causing his
mesothelioma. The jury awarded compensatory damages of $1.5
million, allocated (1) $250,000 to Rowe for damages until the time
of trial, (2) $500,000 to Rowe for future damages, (3) $250,000 to
plaintiff for past loss of services and consortium, and (4)
$500,000 to plaintiff for future loss of services and consortium.
The jury also found that Rowe's exposure to the products of the
settling defendants was a substantial factor in causing his
mesothelioma. The jury allocated twenty percent of the damages to
Universal and apportioned the remaining eighty percent between the
settling defendants as follows: (1) five percent to Borg Warner;
(2) fourteen percent to Burnham; (3) six percent to Dana; (4) nine
percent to ECR; (5) fourteen percent to Honeywell; (6) twelve
percent to Peerless; (7) ten percent to Trane; and (8) ten percent
to Weil-McLain. The judge denied plaintiff's motion for judgment
notwithstanding the verdict and for a new trial. Accordingly,
Plaintiff Donna Rowe appealed the judgment.
The Appellate Division for the Superior Court of New Jersey finds
that the trial judge erred in admitting the settling defendant
evidence. It was not exempt from the general prohibition against
admission of hearsay. The answers to interrogatories were
inadmissible because they were not offered against the settling
defendants, regardless of whether they were still parties at the
time of trial. The court decided the settling defendants were
unavailable merely because they declined to appear without having
been released either by counsel or the court. In ruling, the trial
judge did not identify the evidence or court rule that made
certified interrogatory answers admissible.
Universal contends that the settling defendant evidence, both
interrogatory answers and deposition excerpts, was also admissible
under N.J.R.E. 803(b)(1). That rule includes the statement of a
"party opponent" among those "statements not excluded by the
hearsay rule" if it is "offered against a party" and is "the
party's own statement, made either in an individual or in a
representative capacity."
At the time of trial, the Court sustains that settling defendants'
claims were fully resolved. The Court explains that they had
nothing to gain or lose from the outcome of the trial or any
possible apportionment of liability. The Court further explains
that Universal had no right to any possible future recovery from
the settling defendants, regardless of how well it carried its
burden of proof. Rather, Universal stood to gain only a reduction
in the damages it might ultimately owe as a result of the trial of
plaintiffs' claims against it.
Plaintiff, on the other hand, stood to lose a significant portion
of the jury's quantum of damages if the jury accepted the settling
defendant evidence from Universal as minimizing its responsibility.
The Court finds that the only affirmative claim presented to the
jury and resolved by the jury's verdict was plaintiff's claim
against Universal, and the jury's decisions as to the settling
defendants were significant only because they impacted that claim.
Universal could maximize the impact of that evidence while leaving
plaintiff little recourse. In these circumstances, the settling
defendant evidence was offered only against the plaintiff.
The Court concludes that Universal's repeated insistence that it
retained cross-claims throughout trial and offered the settling
defendant evidence in support of those cross-claims ignores
established law that its cross-claims ceased to exist when the
other defendants settled with plaintiffs. The settling defendant
evidence went to the issue of a credit, not to establishing
affirmative claims against the settling defendants.
Universal also asserts that since plaintiff had planned to use the
settling defendants' evidence against it if they had not settled,
it would be unfair to prevent Universal from using the same
evidence. Similarly, the amici argue that "it would be prejudicial
to the trial defendant to require it to attempt to present its
cases against the settling defendants without the full advantage of
the court rules and evidence that it would have enjoyed if the
settling defendants had not, in fact, settled." These arguments,
however, ignore the rationale for allowing the admission of
interrogatory answers or deposition testimony against the
statement-maker. The statement-maker is present at trial and has a
full and fair opportunity to counter, explain, or supplement any
statements admitted.
The Court settles that there is no unfairness in rules allowing a
plaintiff the use of evidence against co-defendants who are present
at trial, but precluding a defendant from using the same evidence
against the plaintiff when those co-defendants settle and have no
reason or opportunity to present any countervailing evidence.
Allowing the admission of evidence by a defendant against the very
party that crafted the evidence and can defend itself is
qualitatively different than what Universal did here, which was to
transform statements of settling defendants into unrebuttable
admissions to be used against a party that did not make those
admissions.
Thus, the Court determines that the trial court erred in admitting
the settling defendants' evidence under either Rule 4:16-1(b) or
N.J.R.E. 803(b)(1). The error arose because Universal effectively
offered hearsay evidence against plaintiff, not against the
settling defendants. The Court cannot sufficiently stress that
allowing the admission of this evidence transformed the statements
of the settling defendants into irrefutable admissions to be used
against plaintiff, even though plaintiff did not make the
statements.
When served with Universal's valid notices in lieu of subpoena, the
settling defendants became subject to that duty and were subject to
sanctions by the court for failing to perform that duty. Against
that backdrop, the efforts undertaken by counsel for Universal to
obtain compliance with the notices in lieu of subpoena did not
suffice. When sending the notices, Universal correctly advised
counsel for the settling defendants that the notice would "remain
in effect in the event your client settles or is dismissed from the
case." Nevertheless, in the communications following up on the
notices, Universal did not advise the settling defendants that
their appearances continued to be required or again allude to their
continuing duty to appear and testify. Universal did not request
witness names or schedules or otherwise attempt to actually procure
a live witness. Rather, Universal essentially inquired whether the
settling defendants planned to voluntarily appear at trial and then
confirmed that they did not. It was an abuse of discretion for the
trial court to conclude that this inquiry was adequate when it was
not.
Universal's reliance on evidence that was improperly admitted to
establish allocation does not mean that on a retrial it cannot
produce sufficient proofs to enable it to satisfy the requirements
of the Act and benefit from apportionment. Despite Universal's
floodgates argument that the practical implications of a reversal
would bring New Jersey's asbestos litigation to a standstill, they
offer no rationale justifying exempting this type of litigation
from routine applications of the evidence rules. There is no
rational basis for such an exemption.
Thus, having found the court erroneously admitted interrogatory
responses and deposition excerpts because they were not presented
as proofs against the statement-makers, and because Universal
failed to demonstrate the unavailability of witnesses, the Court
reverses and remands on the issue of apportionment.
The appealed case is Donna Rowe, individually and as Executrix and
Executrix ad Prosequendum of the Estate of Ronald Rowe,
Plaintiff-Appellant, v. Bell & Gossett Company, a subsidiary of ITT
Industries; Borg Warner Morse TEC, f/k/a Borg Warner; Bryant
Manufacturing, n/k/a Carrier Corp.; Burnham LLC, individually and
as successor to Burnham Corporation, individually and as
successor-in-interest to Federal Boiler and Radiator Co.; Crane
Co., individually and as successor to Jenkins Valves, Inc., a/k/a
Jenkins Bros.; Crane Pumps & Systems, Inc.; Dana Companies, LLC
f/k/a Dana Corporation, individually and as successor-in-interest
to Victor and Spicer; ECR International, Inc., as
successor-in-interest to Dunkirk Radiator Corporation; General
Electric Company; General Plumbing Supply, Inc., as
successor-in-interest to Ridgewood Corp.; HB Smith Co., Inc.;
Honeywell International, Inc., f/k/a Allied Signal, Inc., as
successor-in-interest to The Bendix Corporation; J.H. France
Refractories Company; Johnson Controls, Inc., individually and as
successor-in-interest to York International Corp.; Lennox Furnace
Co., a/k/a Lennox Industries; Nutley Heating & Cooling Supply
Company; Peerless Industries, Inc., f/d/b/a Peerless Heater Co.;
Ridgewood Corp.; SID Harvey Industries, Inc.; Trane US, Inc., as
successor to American Standard Inc.; union carbide corp.;
WeilMcLain Company, Inc.; CompuDyne Corporation, individually and
as Successor to York-Shipley; New Jersey Plumbing Group, LLC, d/b/a
Blackman Plumbing Supply Company, Inc., as successor-in-interest to
Orange County Plumbing Supply Company and Ridgewood Corporation;
Orange County Plumbing Group, LLC, as successor-in-interest to
Orange County Plumbing Supply Co. and Ridgewood Corporation; York
International, Inc., Defendants, and Hilco, Inc., as
successor-in-interest to Universal Engineering Co., Inc.,
Defendant-Respondent, No. A-4530-14T2, (N.J.Super. App. Div.).
A copy of the Opinion dated June 29, 2018, is available at
https://tinyurl.com/ydytnax7 from Leagle.com.
Amber R. Long argued the cause for appellants (Szaferman, Lakind,
Blumstein & Blader, PC, and Levy Konigsberg, LLP, attorneys; Robert
E. Lytle -- RLytle@szaferman.com -- and E. Elizabeth Sweetser , on
the briefs).
Patricia M. Henrich argued the cause for respondent (Reilly,
Janiczek, McDevitt, Henrich & Cholden, PC, attorneys; Patricia M.
Henrich, Brandy L. Harris and Josette F. Spivak , on the briefs).
McCarter & English, LLP, and Gibbons, PC, attorneys for amicus
curiae Honeywell International, Inc. (John C. Garde --
jgarde@mccarter.com -- of counsel and on the joint briefs; Kim M.
Catullo and Ethan D. Stein , of counsel; Christopher Rojao --
crojao@mccarter.com -- and Elizabeth Monahan , on the joint
briefs).
Caruso Smith Picini, PC, attorneys for amici curiae Union Carbide
Corporation and CertainTeed Corporation (Richard D. Picini --
rpicini@carusosmith.com -- and Anthony J. Caruso --
acaruso@carusosmith.com -- on the joint briefs).
Eckert Seamans Cherin & Mellot, LLC, attorneys for amici curiae
A.O. Smith and Superior Lindgerwood Mundy (David Katzenstein --
dkatzenstein@eckertseamans.com -- on the joint briefs).
Marshall Dennehey Warner Coleman & Goggin, attorneys for amici
curiae Kaiser Gypsum Company, Riley Power, Jaeger Lumber and Supply
Company ( Paul C. Johnson -- pcjohnson@mdwcg.com -- on the joint
briefs).
Pascarella DiVita, PLLC, attorneys for amici curiae Ingersoll Rand
Company, Trane US, Inc., General Cable Corporation, and Rheem
Manufacturing Company ( Lisa M. Pascarella --
lpascarella@pdltlaw.com -- and Stephanie A. DiVita --
sdivita@pdltlaw.com -- on the joint briefs).
Reilly, Janiczek, McDevitt, Henrich & Cholden, PC, attorneys for
Amicus Curiae Aurora Pump Company (Patricia M. Henrich and Brandy
L. Harris , on the joint briefs).
Tannenbaum Keale, attorneys for amici curiae BorgWarner Morse TEC
LLC, Foster Wheeler LLC, survivor to a merger with Foster Wheeler
Corporation and Foster Wheeler Energy Corporation (Christopher J.
Keale -- ckeale@tktrial.com -- on the joint briefs).
Lynch Daskal Emery, LLP, attorneys for amicus curiae
Georgia-Pacific LLP (Diane M. Pompei , on the joint briefs).
McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys for amici
curiae Burnham LLC and Eaton Corporation (Nancy McDonald --
nmcdonald@mdmc-law.com -- on the joint briefs).
McGivney & Kluger, attorneys for amici curiae Ductmate Industries,
The Fairbanks Company, Herman Sommer, and Magid Glove and Safety
(Thomas McNulty -- tmcnulty@mklaw.us.com -- on the joint briefs).
ASBESTOS UPDATE: Former Palisade High School Riddled with Asbestos
------------------------------------------------------------------
Amy Hamilton of The Grand Junction Daily Sentinel reported that
Palisade officials donned full-length pants, long-sleeved shirts
and snapped on dust masks on a recent afternoon even though
temperatures neared the triple-digit mark.
The safety measures were necessary to enter the two-story, former
Palisade high school building on the corner of Iowa and West
Seventh streets. The old school is riddled with hazards like a
leaking roof, broken windows and asbestos.
Palisade officials have long debated how to handle the eyesore
located near the center of town, and those talks may resume.
In the past, it's been both too expensive for the town with limited
means to mitigate the asbestos and too pricey to remodel. Some
renovation ideas called for funds ranging from $4 million to $8
million.
Palisade's new town administrator Janet Hawkinson is asking
trustees to determine whether their priority rests with finding a
solution for the old high school or turning to any number of other
ailing town buildings and projects.
"You have a bunch of town buildings. They all need a lot of work,"
Hawkinson said in a work session following the high school tour.
"You've got a lot of things that need to be fixed, but your budget
is so small."
Trustees signaled they need more information on possible upgrade
costs to a number of projects before focusing on one priority.
Ideas include adding onto the town's Civic Center at 341 West
Seventh St. to absorb all administration workers currently housed
at Palisade's Municipal Building, 175 East Third St.
Palisade could focus on its Veterans Memorial Community Center, 120
W. Eighth St. The circular ramp entrance does not meet requirements
under the Americans with Disabilities Act, and could be replaced
with a stage.
Palisade's swimming pool is in need of a major renovation. The
diving board is broken, the pool's cover is ripped and the pool's
pipes are at risk of bursting, among other needs.
Trustees signaled they are in favor of chasing a $50,000 grant from
the Colorado Department of Local Affairs to stem some of the
problems at the pool while they research the town's other issues.
"Let's do what we need to with the pool," Trustee Greg Mikolai
said. "As far as the other with the community center or the high
school, I don't think we know what we want to do until we have some
more information on it. What's it going to take to do the asbestos?
What's it going to take to do the roof? If we did get it condemned,
then are we going to build on the land or are we going to sell
it?"
Trustee Thea Chase said she's in favor of removing asbestos at the
old school and getting an estimate on costs of fixing the ailing
roof. "If it's $100,000 then we're all going to sit there and say,
call the building inspector and have them condemn the building,"
she said.
Hawkinson said she is investigating a grant option from the Rural
Economic Development Initiative through DOLA that would pay for
demolition of a blighted building under certain circumstances.
Palisade earns about $400,000 a year in sales tax revenue but money
from marijuana taxes came in at more than double that amount this
year. Palisade expects to sock away reserves of $1 million by the
year's end, which is roughly one-third of the town's annual
operating budget.
ASBESTOS UPDATE: Former Plant Asbestos Pollution Study Underway
---------------------------------------------------------------
Brian Nearing of Albany Times Union reported that a Long
Island-based engineering firm will study remaining asbestos
pollution at the former Beech Nut plant and recommend how much, if
any, of the building might be saved from demolition.
Montgomery County officials hired The LiRo Group under a $475,000
contract to examine the partially demolished, 29-acre site that
includes the former baby food factory to determine how much can be
saved and how much cannot.
The century-old property is visible from Exit 29 of the state
Thruway and dominates the small village of Canajoharie, where
officials have been dealing with a polluted eyesore for several
years after a would-be developer stripped the property of valuable
metals, knocked down some buildings and left behind piles of
asbestos-tainted debris.
The sprawling facility is unheated, and has sustained extensive
roof, water and mold damage.
Said Montgomery County Executive Matthew L. Ossenfort, "LiRo seemed
like the best fit due to their experience and success with
completing projects of a similar scale to the Exit 29 redevelopment
site. "
LiRo was chosen from a dozen firms that bid on the project.
Ossenfort said the county was impressed with the company's
experience in cleanup of the 800,000 square-foot former Spaulding
Fibre industrial site in Tonawanda near Buffalo.
"This firm is familiar with the many state agencies that will be
involved with this project and I'm confident in their skill set,"
county Economic Development Director Ken Rose said.
"The village and I feel after all the interviews that these people
gave an excellent presentation," Canajoharie Mayor Francis Avery
added. "We are very comfortable with the selection of this firm and
we feel they will do an excellent job."
LiRo has been involved with numerous high-profile projects
including the post 9/11 rebuilding of lower Manhattan, Niagara
Municipal Complex, and the New York Public Library.
The state has put up $6 million for Montgomery County to support
the study, as well as demolition and remediation work. The county
has also received an $800,000 grant from National Grid.
ASBESTOS UPDATE: Graham Corp. Still Faces Lawsuits at March 31
--------------------------------------------------------------
Graham Corporation still defends itself against lawsuits alleging
personal injury from exposure to asbestos allegedly contained in or
accompanying its products, according to the Company's Form 10-K
filing with the U.S. Securities and Exchange Commission for the
For the fiscal year ended March 31, 2018.
The Company states, "We have been named as a defendant in lawsuits
alleging personal injury from exposure to asbestos allegedly
contained in, or accompanying, our products. We are a co-defendant
with numerous other defendants in these lawsuits and intend to
vigorously defend ourselves against these claims. The claims are
similar to previous asbestos lawsuits that named us as a defendant.
Such previous lawsuits either were dismissed when it was shown
that we had not supplied products to the plaintiffs' places of work
or were settled by us for immaterial amounts. We cannot provide
any assurances that any pending or future matters will be resolved
in the same manner as previous lawsuits.
"As of March 31, 2018, we are subject to the claims, as well as
other legal proceedings and potential claims that have arisen in
the ordinary course of business. Although the outcome of the
lawsuits to which we are, or may become, a party to cannot be
determined and an estimate of the reasonably possible loss or range
of loss cannot be made, we do not believe that the outcomes, either
individually or in the aggregate, will have a material affect on
our results of operations, financial position or cash flows."
A full-text copy of the Form 10-K is available at
https://is.gd/mzzh4V
ASBESTOS UPDATE: Grave Error in Asbestos Removal Closes Campus
--------------------------------------------------------------
Wilborn P. Nobles III of NOLA.com reported that the Lafayette
Academy Charter School is temporarily closing its Uptown campus due
to "grave errors" in renovations on the Carrollton Avenue building
involving the removal of old asbestos in parts of the facility,
according to school officials.
The state-run Recovery School District has engaged in renovations
of the Lafayette School during this summer and last summer as part
of the School Facilities Master Plan for Orleans Parish, according
to letters written in July by the RSD and Orleans Parish School
Board that were posted on the school's website. Asbestos removal on
the third floor began last year in May and was "properly completed"
before students returned last August, according to RSD chief
facilities officer Ronald Bordelon July 13.
Removal renovations resumed in May on the first and second floors
of the school after students were dismissed for the summer, the
letters stated. However, the RSD stated the contractor failed to
follow the appropriate steps in removing the asbestos, according to
a July 16 letter from Mickey Landry, executive director of the
Choice Foundation organization that manages Lafayette Academy.
Landry stated the building and its contents could be contaminated
as a result.
Lafayette Academy has posted construction notices on its website
since May 21, instructing visitors that the school's staff would be
housed at the Choice Foundation's Esperanza Charter School during
construction. Wednesday's (July 16) announcement online stated the
contractor has been terminated, but the company's errors have left
Choice Foundation "with serious challenges to face."
In statement released Wednesday afternoon, the OPSB stated
Lafayette students will be relocated to the old McDonogh 35
building on Kerlerec Street. Some students will also be relocated
to the Paul Dunbar building, which is owned by the OPSB and
occupied by the Choice Foundation. The district stated the Choice
Foundation will decide where each age group will be enrolled as the
OPSB prepares the old McDonogh 35 building for students this fall.
Documents from the Louisiana Department of Environmental Quality
state Baton Rouge-based Advanced Environmental Consulting was hired
to remove at least 165 cubic yards of asbestos from the campus
beginning May 24 through July 31. The company did not immediately
respond to requests for comment Wednesday afternoon.
Louisiana Education Department spokeswoman Sydni Dunn said
Wednesday the Baton Rouge-based Law Industries was the general
contractor for the project. She said AEC was brought on as Law's
environmental subcontractor until Law dismissed AEC. The RSD
dismissed Law, Dunn added.
Renovation observation notes from an LDEQ official inspecting the
school on June 14 stated the flooring and insulation on the second
floor contained asbestos. Among the concerns noted about the work,
holes were seen in the plastic protective material that stops
asbestos from spreading during removal, and workers were walking in
and out of the containment area without changing clothing, eating
lunch and walking around the campus in the same clothes. The
material was also not sufficiently dampened down, the report
states.
Lafayette parent Tuere Burns-Jones has claimed in conversations
with NOLA.com-The Times-Picayune since June 26 that the school's
leadership has exposed students and staff to asbestos for the past
two years. Choice Foundation board chairman James Swanson said
Thursday that those claims are "irresponsible and false." School
officials stressed children have never been exposed to asbestos or
any other hazardous material at any time before, during or after
renovations, but some parents have been vocal online about their
exposure concerns.
RSD's Bordelon and OPSB Superintendent Henderson Lewis Jr. wrote
the contractor's actions have made "timely completion" of the
remaining work "impossible," forcing the work to continue into the
fall. Louisiana Education Department spokeswoman Dunn said no
students or staff will return to the building until all surface and
air-quality tests indicate it is safe to do so.
ASBESTOS UPDATE: Huelsman Couple Seeks Damages on Asbestos Disease
------------------------------------------------------------------
Lhalie Castillo of St. Louis Record reported that an Illinois
couple alleges that the husband developed asbestos-related diseases
as a result to exposure to the substance during his employment at
various locations in Missouri and elsewhere.
Keith Huelsman and Beverly Huelsman filed a complaint on July 6 in
the St. Louis 22nd Judicial Circuit Court against Borg-Warner Morse
TEC Corp., Crane Co., Union Carbide Corp., et al. alleging
negligence and other counts.
According to the complaint, the plaintiffs allege that at various
times during Keith Huelsman's work from 1968 to 2018, he was
exposed to and inhaled or ingested asbestos fibers emanating from
certain products manufactured, sold, distributed or installed by
defendants. The suit states that on or about April 17, he first
became aware that he contracted pleural mesothelioma, an
asbestos-induced disease.
The plaintiffs holds Borg-Warner Morse TEC Corp., Crane Co., Union
Carbide Corp., et al. responsible because the defendant 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 request a trial by jury and seek compensatory
damages of more than $25,000, plus costs, interest and any further
relief as the court deems appropriate. They are represented by
Robert D. Woodard of Simmons Hanly Conroy in Alton, Illinois.
St. Louis 22nd Judicial Circuit Court case number 1822-CC10699
ASBESTOS UPDATE: Insurers Must Prorate GM Asbestos Coverage
-----------------------------------------------------------
Rick Archer of Law360 reported that the Delaware Supreme Court
affirmed a ruling that excess insurers OneBeacon Insurance Co. and
Continental Casualty Co. must share on a prorated basis coverage of
tens of thousands of asbestos injury claims against pre-bankruptcy
General Motors Corp.
The panel rejected arguments by the trust handling some of the auto
giant's pre-bankruptcy insurance claims that the trial court erred
when it found under the language of the policies the insurers owed
coverage proportional to the time their policies were in place.
ASBESTOS UPDATE: IntriCon Still Defends Lawsuits at March 31
------------------------------------------------------------
IntriCon Corporation still defends itself against asbestos lawsuits
related to its discontinued heat technologies segment, according to
the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended March 31, 2018.
IntriCon Corp. states, "The Company is a defendant along with a
number of other parties in lawsuits alleging that plaintiffs have
or may have contracted asbestos-related diseases as a result of
exposure to asbestos products or equipment containing asbestos sold
by one or more named defendants. These lawsuits relate to the
discontinued heat technologies segment which was sold in March
2005. Due to the non-informative nature of the complaints, the
Company does not know whether any of the complaints state valid
claims against the Company.
"Certain insurance carriers have informed the Company that the
primary policies for the period August 1, 1970-1978 have been
exhausted and that the carriers will no longer provide defense and
insurance coverage under those policies. However, the Company has
other primary and excess insurance policies that the Company
believes afford coverage for later years.
"Some of these other primary insurers have accepted defense and
insurance coverage for these suits, and some of them have either
ignored the Company's tender of defense of these cases, or have
denied coverage, or have accepted the tenders but asserted a
reservation of rights and/or advised the Company that they need to
investigate further. Because settlement payments are applied to
all years a litigant was deemed to have been exposed to asbestos,
the Company believes that it will have funds available for defense
and insurance coverage under the non-exhausted primary and excess
insurance policies.
"However, unlike the older policies, the more recent policies have
deductible amounts for defense and settlements costs that the
Company will be required to pay; accordingly, the Company expects
that its litigation costs will increase in the future. Further,
many of the policies covering later years (approximately 1984 and
thereafter) have exclusions for any asbestos products or
operations, and thus do not provide insurance coverage for
asbestos-related lawsuits.
"The Company does not believe that the asserted exhaustion of some
of the primary insurance coverage for the 1970-1978 period will
have a material adverse effect on its financial condition,
liquidity, or results of operations. Management believes that the
number of insurance carriers involved in the defense of the suits,
and the significant number of policy years and policy limits under
which these insurance carriers are insuring the Company, make the
ultimate disposition of these lawsuits not material to the
Company's consolidated financial position or results of
operations."
A full-text copy of the Form 10-Q is available at
https://is.gd/FVGCDg
ASBESTOS UPDATE: Isle of Man Union Leader Battles COPD
------------------------------------------------------
Isle Of Man Today reported that a union leader has enlisted the
support of MHKs in a campaign to bring in a compensation scheme for
victims of asbestos.
Eric Holmes is stepping down on July 31 as regional officer for
Unite after being diagnosed with chronic obstructive pulmonary
disease (COPD).
He suspects his condition has been brought on by his exposure to
asbestos while working as an apprenctice in a Merseyside shipyard
as a teenager in the 1970s.
Between 2011 and 2016, eight people in the island died of
mesothelioma, an aggressive cancer of the lining of the lung caused
by exposure to asbestos.
But Mr Holmes fears more Manx workers will be diagnosed with this
and asbestos-related diseases over the next 40 to 60 years because
he says the material was banned later here than elsewhere.
He said: 'The spotlight has been put onto the issue now.
'As an island we are facing increasing diagnosis of this disease.
We lag behind the UK and the USA stopped using asbestos 20-plus
years ahead of us.'
A Diffuse Mesothelioma Payments Scheme (DMPS) scheme was introduced
in the UK in 2014 as an 'insurer of last resort' for victims of
this terminal disease.
It was brought in because insurance companies failed to keep proper
records from the 1950s to the early 1990s. Not a penny in
compensation was paid out by insurers as no policy proving
liability could be traced.
But no such scheme exists in the Isle of Man.
Asbestos was banned in the UK in 1999 but Mr Holmes believes a ban
did not come into force in the island until later.
He has not been able to establish exactly when but said the island
woke up to the perils of asbestos after a prohibition order was
placed on maintenance work being carried out on the Sea Terminal in
2008.
Mr Holmes, Unite lawyers and representatives from the Merseyside
Asbestos Victims Support Group met with Health Minister David
Ashford and Ramsey MHK and GP Dr Alex Allinson to discuss what can
be done to help victims of asbestos-related diseases.
Dr Allinson said: 'Although the number is very small, the impact on
victims and their families is devastating.
'It is wrong that people in the island who have been exposed to
asbestos while working for companies in the island do not have the
same access to compensation.'
The UK compensation scheme is funded by the insurance industry with
an annual levy of up to 3% on employers' accident at work insurance
premiums.
Mr Holmes served his apprenticeship in a ship repairers company in
Birkenhead and believes he was exposed to asbestos between 1976 and
1978.
He recalls: 'We were all pulled off the ship as there were asbestos
fibres released into the working areas but we were told shortly
thereafter it was okay as it was blue asbestos.
'Later on we were told that it could take 40 or 50 years to
develop.'
He had two uncles who were cleaner labourers in the same shipyard
who both died of asbestosis.
He says by the time a direct link is established to asbestos
exposure, there is very little time left, especially any quality
time, for those diagnosed with the condition.
For his part, he says with his stage one COPD, his health
deteriorated over the last 18 months and his breathlessness
increased dramatically but he believes his cycling is helping him
deal with his condition.
ASBESTOS UPDATE: J&J Ordered to Pay $4.7-Bil. in Asbestos Talc Suit
-------------------------------------------------------------------
Tina Bellon of Fox Business reported a Missouri jury ordered
Johnson & Johnson to pay a record $4.69 billion to 22 women who
alleged the company's talc-based products, including its baby
powder, contain asbestos and caused them to develop ovarian
cancer.
The verdict is the largest J&J has faced to date over allegations
that its talc-based products cause cancer.
The company is battling some 9,000 talc cases. J&J denies both that
its talc products cause cancer and that they ever contained
asbestos. It says decades of studies show its talc to be safe and
has successfully overturned previous talc verdicts on technical
legal grounds.
The massive verdict, handed down in the Circuit Court of the City
of St. Louis, was comprised of $550 million in compensatory damages
and $4.14 billion in punitive damages, according to an online
broadcast of the trial by Courtroom View Network.
J&J in a statement called the trial "fundamentally unfair" and said
it would appeal the decision.
The jury's decision followed more than five weeks of testimony by
nearly a dozen experts on both sides.
The women and their families said decades-long use of Baby Powder
and other cosmetic talc products caused their diseases. They allege
the company knew its talc was contaminated with asbestos since at
least the 1970s but failed to warn consumers about the risks.
"Johnson & Johnson is deeply disappointed in the verdict, which was
the product of a fundamentally unfair process," the company said in
a statement. The company said it remained confident that its
products do not contain asbestos or cause cancer.
"Every verdict against Johnson & Johnson in this court that has
gone through the appeals process has been reversed and the multiple
errors present in this trial were worse than those in the prior
trials which have been reversed," J&J added, saying that it would
pursue all available appellate remedies.
J&J has successfully overturned talc verdicts in the past, with
appeals courts pointing to a 2017 decision by the U.S. Supreme
Court that limits where personal injury lawsuits can be filed.
Of the 22 women in the St. Louis trial, 17 were from outside
Missouri, a state generally regarded as friendly towards
plaintiffs. The practice of combining plaintiffs in such
jurisdictions, commonly criticized as "forum shopping" by
defendants, will be challenged on appeal.
Mark Lanier, the lawyer for the women, in a statement following the
verdict called on J&J to pull its talc products from the market
"before causing further anguish, harm, and death from a terrible
disease."
"If J&J insists on continuing to sell talc, they should mark it
with a serious warning," Lanier said.
The majority of the lawsuits that J&J faces involve claims that
talc itself caused ovarian cancer, but a smaller number of cases
allege that contaminated talc caused mesothelioma, a tissue cancer
closely linked to asbestos exposure.
The cases that went to trial in St. Louis effectively combine those
claims by alleging asbestos-contaminated talc caused ovarian
cancer.
Previous talc trials have produced verdicts as large as $417
million. But that 2017 verdict by a California jury, as well as
other verdicts in Missouri, was overturned on appeal, and
challenges to at least another five verdicts are pending.
The U.S. Food and Drug Administration commissioned a study of
various talc samples from 2009 to 2010, including of J&J's Baby
Powder. No asbestos was found in any of the talc samples, the
agency said.
But Lanier during the trial told jurors that the agency and other
laboratories and J&J have used flawed testing methods that did not
allow for the proper detection of asbestos fibers.
Talc, the world's softest rock, is a mineral closely linked to
asbestos and the two substances can appear in close proximity in
the earth.
Plaintiffs claim the two can become intermingled in the mining
process, making it impossible to remove the carcinogenic substance.
J&J denies those allegations, saying rigorous testing and
purification processes ensure its talc is clean.
ASBESTOS UPDATE: Jersey Woman Fights for Asbestos Compensation
--------------------------------------------------------------
ITV News reported that a woman from Jersey whose husband died from
an asbestos related illness says the island's government needs to
do more to support people exposed to the fibre.
June Summers-Shaw's husband Keith was diagnosed with Mesothelioma,
a terminal form of cancer caused by asbestos, in 2012. He died just
16 days later.
Asbestos is a heat-resistant fibre that was used for insulation on
an industrial scale before the dangers of the material were
realised. It causes lung related diseases and can dangerous if
breathed in.
The use of asbestos is now banned in many countries around the
world but it can still be found in buildings.
In the UK a person who is diagnosed with Mesothelioma would be
automatically entitled to access a compensation scheme and certain
benefits, but this is not the case in Jersey.
While she grieved for her loss, June still had to fight for
compensation in a five year court battle.
June thinks it is a problem that people have not been giving enough
attention to for years.
Today Jersey's new Social Security Minister Deputy Judy Martin,
reassured islanders that a review is ongoing.
June says the change is needed now to support people who will be
diagnosed in the future.
ASBESTOS UPDATE: Kaanapali Insurance Talks Continues at March 31
----------------------------------------------------------------
Kaanapali Land, LLC, disclosed in its Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended March 31, 2018, that it continues to pursue discussions with
Fireman's Fund Insurance Corporation related to insurance coverage
on the asbestos lawsuits that the Company is facing.
The Company states, "On February 12, 2014, counsel for Fireman's
Fund, the carrier that has been paying defense costs and
settlements for the Kaanapali Land asbestos cases, stated that it
would no longer advance fund settlements or judgments in the
Kaanapali Land asbestos cases due to the pendency of the D/C and
Oahu Sugar bankruptcies.
"In its communications with Kaanapali Land, Fireman's fund
expressed its view that the automatic stay in effect in the D/C
bankruptcy case bars Fireman's Fund from making any payments to
resolve the Kaanapali Land asbestos claims because D/C Distribution
is also alleging a right to coverage under those policies for
asbestos claims against it. However, in the interim, Fireman's
Fund advised that it presently intends to continue to pay defense
costs for those cases, subject to whatever reservations of rights
may be in effect and subject further to the policy terms.
"Fireman's Fund has also indicated that to the extent that
Kaanapali Land cooperates with Fireman's Fund in addressing
settlement of the Kaanapali Land asbestos cases through
coordination with its adjusters, it is Fireman's Fund's present
intention to reimburse any such payments by Kaanapali Land,
subject, among other things, to the terms of any lift-stay order,
the limits and other terms and conditions of the policies, and
prior approval of the settlements.
"Kaanapali Land continues to pursue discussions with Fireman's Fund
in an attempt to resolve the issues, however, Kaanapali Land is
unable to determine what portion, if any, of settlements or
judgments in the Kaanapali Land asbestos cases will be covered by
insurance."
A full-text copy of the Form 10-Q is available at
https://is.gd/WW5bOo
ASBESTOS UPDATE: Kaanapali Land Still Faces Lawsuits at March 31
----------------------------------------------------------------
Kaanapali Land, LLC continues to defend itself in personal injury
suits related to asbestos exposure, according to the Company's Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarterly period ended March 31, 2018.
The Company states, "Kaanapali Land, as successor by merger to
other entities, and D/C have been named as defendants in personal
injury actions allegedly based on exposure to asbestos. While
there are relatively few cases that name Kaanapali Land, there were
a substantial number of cases that were pending against D/C on the
U.S. mainland (primarily in California).
"Cases against Kaanapali Land (hereafter, "Kaanapali Land asbestos
cases") are allegedly based on its prior business operations in
Hawaii and cases against D/C are allegedly based on sale of
asbestos-containing products by D/C's prior distribution business
operations primarily in California. Each entity defending these
cases believes that it has meritorious defenses against these
actions, but can give no assurances as to the ultimate outcome of
these cases. The defense of these cases has had a material adverse
effect on the financial condition of D/C as it has been forced to
file a voluntary petition for liquidation.
"Kaanapali Land does not believe that it has liability, directly or
indirectly, for D/C's obligations in those cases. Kaanapali Land
does not presently believe that the cases in which it is named will
result in any material liability to Kaanapali Land; however, there
can be no assurance in that regard."
A full-text copy of the Form 10-Q is available at
https://is.gd/WW5bOo
ASBESTOS UPDATE: L. Jack's PI Claims Against Flowserve Dropped
--------------------------------------------------------------
Plaintiffs and defendant Flowserve US, Inc., solely as
successor-in-interest to Edward Valves, Inc., stipulate to the
entry of an Order of Dismissal in the case styled Leslie Jack,
individually and as Personal Representative of Patrick Jack; David
Jack, individually, Plaintiffs, v. Asbestos Corporation Ltd., et
al., Defendants, Civil Action No. 2:17-cv-00537-JLR, (W.D. Wash.).
The Hon. James L. Robart adjudged and decreed that Plaintiffs'
claims against defendant Flowserve US, Inc., solely as
successor-in-interest to Edward Valves, Inc., its predecessors,
successors, subsidiaries, parents, affiliated entities, directors
and officers, are dismissed without prejudice and without costs to
either party, reserving to plaintiffs all plaintiffs' rights of
action, claims, and demands against any and all other parties.
Moreover, Flowserve US, Inc.'s pending motion for summary judgment
is denied as moot.
A copy of the Order dated July 3, 2018, is available at
https://tinyurl.com/y7hrva9e from Leagle.com.
Leslie Jack, individually and as Personal Representative of Patrick
Jack & David Jack, individually, Plaintiffs, represented by
Benjamin H. Adams -- badams@dobllp.com -- Dean Omar & Branham, LLP,
pro hac vice, Charles W. Branham, III , Dean Omar & Branham, LLP,
pro hac vice, Kristin M. Houser -- houser@sgb-law.com -- Schroeter
Goldmark & Bender, Lisa W. Shirley -- lshirley@dobllp.com -- Dean
Omar Branham, LLP, pro hac vice, Lucas W.H. Garrett --
garrett@sgb-law.com -- Schroeter Goldmark & Bender, William Joel
Rutzick , Schroeter Goldmark & Bender & Thomas J. Breen --
breen@sgb-law.com -- Schroeter Goldmark & Bender.
Air & Liquid Systems Corporation, individually and as
successor-in-interest to Buffalo Pumps, Defendant, represented by
Barry Neal Mesher .
Borg-Warner Morse Tec LLC, sued individually and as
successor-in-interest to Borg-Warner Corporation, Defendant,
represented by Michael J. Madderra , Selman Brietman LLP & Richard
D. Ross , Selman Brietman LLP.
CBS Corporation, sued as successor-by-merger to CBS Corporation
f/k/a Westinghouse Electric Corporation and successor-in-interest
to BF Sturtevant, Defendant, represented by William D. Harvard --
wdharvard@ewhlaw.com -- Evert Weathersby Houff, pro hac vice,
Christopher S. Marks -- cmarks@tktrial.com -- Tanenbaum Keale LLP &
Erin P. Fraser -- efraser@tktrial.com -- Tanenbaum Keale LLP.
Crane Co, Defendant, represented by Ryan J. Groshong --
ryan.groshong@klgates.com -- K&L Gates LLP (Seattle) & G. William
Shaw -- bill.shaw@klgates.com -- K&L Gates LLP.
Ford Motor Company, Defendant, represented by Mark J. Fucile ,
FUCILE & REISING.
Foster Wheeler Energy Corporation, Defendant, represented by
Christopher S. Marks -- cmarks@tktrial.com -- Tanenbaum Keale LLP &
Malika Johnson -- mjohnson@tktrial.com -- Tanenbaum Keale LLP.
General Electric Company, Defendant, represented by Christopher S.
Marks -- cmarks@tktrial.com -- Tanenbaum Keale LLP & Erin P. Fraser
-- efraser@tktrial.com -- Tanenbaum Keale LLP.
Goulds Pumps Inc & Viad Corporation, formerly known as The Dail
Corporation, Defendants, represented by Ronald C. Gardner --
rgardner@gandtlawfirm.com -- Gardner Trabolsi & Assoc. PLLC.
Honeywell International Inc, sued as successor-in-interest to
Bendix Corporation, Defendant, represented by Kristine E. Kruger --
KKruger@perkinscoie.com -- Perkins Coie & Mary P. Gaston --
MGaston@perkinscoie.com -- Perkins Coie.
Ingersoll Rand Company, Defendant, represented by Katherine A.
Lawler -- katherine.lawler@nelsonmullins.com -- Nelson Mullins
Riley & Scarborough LLP, pro hac vice, Kevin J. Craig --
kcraig@grsm.com -- Gordon Rees Scully Mansukhani LLP, Mark B. Tuvim
mtuvim@grsm.com -- Gordon & Rees & Trevor J. Mohr -- tmohr@grsm.com
-- Gordon Rees Scully Mansukhani LLP.
Kelsey-Hayes Company, sued individually and as
successor-in-interest to Fruehauf Trailer, Defendant, represented
by Michael Mackenzie Brown -- mac.brown@bullivant.com -- Bullivant
Houser Bailey, Katherine M. Steele --
katherine.steele@bullivant.com -- Bullivant Houser Bailey & Rachel
Tallon Reynolds -- rachel.reynolds@bullivant.com -- Bullivant
Houser Bailey.
MeadWestvaco Corporation, formerly known as Westvaco, Defendant,
represented by Michael Mackenzie Brown -- mac.brown@bullivant.com
-- Bullivant Houser Bailey & Katherine M. Steele --
katherine.steele@bullivant.com -- Bullivant Houser Bailey.
MeadWestvaco Corporation, formerly known as (SEA), Defendant,
represented by Rachel Tallon Reynolds --
rachel.reynolds@bullivant.com -- Bullivant Houser Bailey.
Metropolitan Life Insurance Company, a wholly-owned subsidiary of
Metlife Inc, Defendant, represented by Richard G. Gawlowski --
gawlowski@wscd.com -- Wilson Smith Cochran & Dickerson.
Pneumo Abex LLC, successor to Abex Corporation & Dana Companies,
LLC, sued as successor in interest to Victor Gasket Manufacturing
Company, Defendants, represented by Diane J. Kero --
dkero@gth-law.com -- Gordon Thomas Honeywell.
Union Pacific Railroad Company, Defendant, represented by Robert H.
Berkes -- rberkes@bcrslaw.com -- Berkes Crane Robinson & Seal, pro
hac vice, Ryan T. Moore -- rmoore@bcrslaw.com -- Berkes Crane
Robinson & Seal, pro hac vice, Viiu Spangler Khare --
vspanglerkhare@bcrslaw.com -- Berkes Crane Robinson & Seal, pro hac
vice, Andrew Gordon Yates -- yatesa@lanepowell.com -- Lane Powell
PC, Jeffrey M. Odom -- odomj@lanepowell.com -- Lane Powell PC & Tim
D. Wackerbarth -- wackerbartht@lanepowell.com -- Lane Powell PC.
Warren Pumps LLC, Defendant, represented by Allen Eraut --
aeraut@rizzopc.com -- Rizzo Mattingly Bosworth PC.
ASBESTOS UPDATE: Lawsuit vs. E-Source Holdings Pending at Mar.31
----------------------------------------------------------------
The asbestos-related lawsuit against Vertex Energy, Inc.'s
subsidiary is still currently set for trial in the summer of 2018,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the fiscal quarter ended
March 31, 2018.
The Company states, "E-Source Holdings, LLC ("E-Source"), the
wholly-owned subsidiary of Vertex Operating, was named as a
defendant (along with Motiva Enterprises, LLC, ("Motiva")) in a
lawsuit filed in the Sixtieth (60th) Judicial District, Jefferson
County, Texas, on April 22, 2015. Pursuant to the lawsuit, Whole
Environmental, Inc. ("Whole"), made certain allegations against
E-Source and Motiva. The claims include Breach of Contract and
Quantum Meruit actions relating to asbestos abatement and
remediation operations performed for defendants at Motiva's
facility in Port Arthur, Jefferson County, Texas. The plaintiff
alleges it is due monies earned. Defendants have denied any
amounts due to plaintiff. The suit seeks damages of approximately
US$864,000, along with pre-judgment and post-judgment interest, the
fair value of certain property alleged to be converted by
defendants and reimbursement of legal fees. E-Source has asserted
a counterclaim against Whole for the filing of a mechanic's lien in
excess of any amount(s) actually due, as well as a cross-claim
against Motiva. Under the terms of E-Source's contract with
Motiva, Motiva was to pay all sums due to any sub-contractors of
E-Source. In management's opinion, any monies due to Whole, should
be paid by Motiva. E-Source seeks to recover the balance due under
its contract with Motiva of approximately US$1,000,000. The case
is set for trial in the summer of 2018. We intend to vigorously
defend ourselves against the allegations made in the complaint.
The Company has no basis of determining whether there is any
likelihood of material loss associated with the claims and/or the
potential and/or the outcome of the litigation."
A full-text copy of the Form 10-Q is available at
https://is.gd/cUPMLE
ASBESTOS UPDATE: Lebanon Fire Exposed Firefighters to Asbestos
--------------------------------------------------------------
Merriell Moyer of Lebanon Daily News reported that a Lebanon woman
burning debris on her property may have exposed several
firefighters to asbestos, according to South Lebanon Township
police.
Janelle Shank, 30, of Lebanon, was charged with violating the South
Lebanon Township burning ordinance after police were summoned to a
fire Shank set on purpose on her property at 900 N. Mine Road at 4
p.m. Friday, police said.
The fire contained debris from a house on the property that was
being torn down, according to police.
After extinguishing the fire, it was determined that it contained
asbestos shingles and siding.
Ten firefighters were involved in putting the fire out and none of
them were wearing breathing apparatus, so they were exposed to the
asbestos through airborne smoke, police said.
The exact departments the firefighters exposed to the asbestos
smoke were with were not listed in the report.
More: Father of Palmyra boy found with 27 Pomeranians now has full
custody of his son
More: Family-friendly events coming to Lebanon
The Lebanon County Hazardous Materials Response Team and the state
Department of Environmental Protection were also called to the
scene due to the contents of the fire.
ASBESTOS UPDATE: Magnetek Has $1.1MM Liability at March 31
----------------------------------------------------------
Columbus McKinnon Corporation's subsidiary, Magnetek, recorded
US$1,074,000 for asbestos-related liability as of March 31, 2018,
according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended March
31, 2018.
The Company states, "Magnetek has been named, along with multiple
other defendants, in asbestos-related lawsuits associated with
business operations previously acquired but which are no longer
owned. During Magnetek's ownership, none of the businesses
produced or sold asbestos-containing products. For such claims,
Magnetek is uninsured and either contractually indemnified against
liability, or contractually obligated to defend and indemnify the
purchaser of these former business operations. The Company
aggressively seeks dismissal from these proceedings. Based on
actuarial information, the asbestos related liability including
legal costs is estimated to be approximately US$1,074,000 which has
been reflected as a liability in the consolidated financial
statements at March 31, 2018."
A full-text copy of the Form 10-K is available at
https://is.gd/o9ESGO
ASBESTOS UPDATE: Mehnert PI Suit Remains in Pa. District Court
--------------------------------------------------------------
The Hon. Nora Barry Fischer of the United States District Court for
the Western District of Pennsylvania denied Plaintiffs' motion to
remand the case styled Harald H. Mehnert and Brigitte E. Mehhert,
his wife, Plaintiffs, v. Agilent Technologies, Inc., et al.,
Defendants, Civil Action No. 18-593, (W.D. Pa.) to the Allegheny
County Court of Common Pleas.
The Defendants engaged in the business of mining, milling,
manufacturing, distributing, supplying, specifying, selling, using,
recommending, installing and/or removing asbestos materials and
other dangerous ingredients and products.
Plaintiff Harald Mehnert worked on Mass Spectrometers at the U.S.
Geological Survey ("U.S.G.S") Department in Denver, Colorado
between 1959 and 1995. During his tenure at this jobsite, Mr.
Mehnert "performed many experiments with various types of asbestos
materials supplied to the laboratory where he worked," and he
"performed weekly cleaning and decontamination of the Mass
Spectrometer." While performing these duties, Mr. Mehnert allegedly
inhaled asbestos dust and fibers contained in the Defendants'
products. This, in turn, caused Mr. Mehnert to develop
mesothelioma, which was first diagnosed on September 12, 2017. In
addition to mesothelioma, Mr. Mehnert suffers from "post-traumatic
anxiety reaction, severe pain and discomfort and other serious
injuries" as a result of the Defendants' actions. Plaintiff
Brigitte Mehnert, his wife, claims loss of consortium as a result
of Mr. Mehnert's injuries.
The Plaintiffs filed this action in the Court of Common Pleas of
Allegheny County, Pennsylvania on November 28, 2017 against
Defendants Agilent Technologies, Inc., Baxter International, Inc.,
Dravo Corporation, Fisher Scientific Company, Inc., Honeywell
International, Inc., Metropolitan Life Insurance Company, Mine
Safety Appliance Company, Safety First Industries, Inc., Union
Carbide Corporation, Univar USA, Inc., Varian Medical Systems,
Inc., and VWR International, LLC arising from Plaintiff Harald
Mehnert's alleged exposure to asbestos and his 2017 diagnosis of
mesothelioma. All of the Defendants were served with the Complaint
by January 17, 2018.
Thereafter, the parties deposed Mr. Mehnert, and, on April 3, 2018,
the Plaintiffs served their Answers to the Defendants'
Interrogatories in which they advised that Mr. Mehnert worked at
the U.S.G.S. at the "Denver Federal Center Building, Lakewood, CO
80255." On May 2, 2018, the Defendants removed the action to this
Court. One week later, on May 9, 2018, the Plaintiffs moved to
remand the case, arguing that the Defendants had not timely removed
the action under 28 U.S.C. Section 1441. Defendants opposed the
remand motion, asserting that they did not have a basis to remove
until they learned on April 3, 2018 that Mr. Mehnert's exposure to
asbestos occurred at a federal enclave, namely the U.S.G.S.
facility in Lakewood, Colorado.
The parties do not dispute that the U.S.G.S. facility at which Mr.
Mehnert worked is a federal enclave or that the Court has original
jurisdiction over this action. At issue is: (a) at what point did
the relevant documents inform Defendants that Plaintiffs' claims
were subject to federal jurisdiction; and (b) whether Defendants
removed the action within thirty days of that notice.
Pursuant to 28 U.S.C. Section 1441, a defendant may remove an
action to district court either: (a) within thirty days after
receipt of a copy of the initial pleadings; or (b) if the case is
not removable based on the initial pleading, within thirty days
after receipt of a copy of "an amended pleading, motion, order or
other paper from which it may first be ascertained that the case in
one which is or has become removable." A removing party has "the
burden to establish the propriety of removal and all doubts must be
resolved in favor of remand."
In their motion for remand, the Plaintiffs argue that, because all
the Defendants were served with the Complaint more than thirty days
before removal and the Complaint alleged that Mr. Mehnert "worked
on Mass Spectrometers at the [U.S.G.S.] in Denver, Colorado," the
Defendants had ample notice that Mr. Mehnart's asbestos exposure
occurred at a federal enclave. As such, they urge the Court to find
that Defendants have not met -- and cannot meet -- their burden of
establishing the propriety of the removal.
Although the Plaintiffs ask the Court to find that Defendants have
failed to meet their burden, the Complaint does not specifically
identify Mr. Mehnart's former jobsite as a federal enclave. The
Court finds the Complaint does not state whether the laboratory at
which Mr. Mehnert worked was located on federal property or in
private space in Denver leased by the government. Nor does it
describe Mr. Mehnert's jobsite as having been located at the Denver
Federal Center, or even in Lakewood, Colorado. This failure to
allege the precise location of Mr. Mehnart's exposure is crucial
because, "in enclave jurisdiction, the determinative fact is the
precise location of the events giving rise to the claims for
relief." Indeed, "it is only when the geography is mapped in a
certain way that an otherwise state claim presents a federal
question."
The Plaintiffs respond that "a cursory internet search plainly
shows that the U.S.G.S. in Denver, Colorado, is located at the
Denver Federal Center." However, and even assuming that the
U.S.G.S. in Denver was located at the Denver Federal Center during
Mr. Mehnart's tenure there (which notably ended over twenty years
ago), the Court sustains that the Defendants had no duty to conduct
the investigation suggested by Plaintiffs. Rather, the Court must
focus on what the relevant documents said and not on what
Defendants knew -- this an objective inquiry limited to the "four
corners of the pleading" and centered on whether "the document
informs the reader, to a substantial degree of specificity, whether
all the elements of federal jurisdiction are present."
In the Court's estimation, the four corners of the Complaint did
not inform the Defendants, with a substantial degree of
specificity, that the elements of federal jurisdiction were
satisfied. The first paper to do so was served on April 3 or 4,
2018, and, as such, the Defendants' removal was timely.
Accordingly, the Court denies the Plaintiffs' Motion to Remand.
A copy of the Memorandum Opinion and Order dated June 29, 2018, is
available at https://tinyurl.com/yauhlzqp from Leagle.com.
Harald H. Mehnert & Brigitte E. Mehnert, his wife, Plaintiffs,
represented by Carla Jo Guttilla -- ellenpresby@nemerofflaw.com --
The Nemeroff Law Firm & Jason P. Yampol -- jyampolsky@mrhfmlaw.com
-- Maune Raichle Hartley French & Mudd, LLC.
Baxter International, Inc., individually, Defendant, represented by
Joseph R. Schaper -- JRS@maronmarvel.com -- Maron Marvel Bradley &
Anderson P.A., Philip T. Barrett -- pbarrett@grsm.com -- Gordon
Rees Scully Mansukhani, LLP, pro hac vice & S. Manoj Jegasothy --
mjegasothy@grsm.com -- Gordon Rees Scully Mansukhani, LLP.
Dravo Corporation, Defendant, represented by Cathy R. Gordon --
gordonc@litchfieldcavo.com -- Litchfield Cavo LLP & Hilary C.
Bonenberger , Swartz Campbell.
Fisher Scientific Company, LLC., Defendant, represented by James V.
Corbelli -- jcorbelli@babstcalland.com -- Babst, Calland, Clements
& Zomnir, Jason H. Nash -- jnash@hww-law.com -- Hinkhouse Williams
Walsh LLP, pro hac vice, John T. Williams -- jwilliams@hww-law.com
-- Hinkhouse Williams Walsh LLP, pro hac vice & Michael J. Morrison
-- mmorrison@hww-law.com -- Hinkhouse William Walsh LLP, pro hac
vice.
Metropolitan Life Insurance Company, Defendant, represented by
Stewart R. Singer -- ssinger@srstlaw.com -- Salmon, Ricchezza,
Singer & Turchi & Ronald L. Daugherty -- rdaugherty@srstlaw.com --
Salmon, Ricchezza, Singer & Turchi, LLP.
Mine Safety Appliance Company, Defendant, represented by Joseph F.
Butcher -- butcher@zklaw.com -- Zimmer Kunz P.L.L.C.
Safety First Industries, Inc., in its own right, Defendant,
represented by Joseph R. Schaper -- JRS@maronmarvel.com -- Maron
Marvel Bradley & Anderson P.A.
Union Carbide Corporation, Defendant, represented by James M. Leety
, Kelley, Jasons, McGowan, Spinelli, Hanna & Reber & Richard L.
Walker -- rwalker@kjmsh.com -- Kelley, Jasons, McGuire & Spinelli.
Univar USA, Inc., individually, Defendant, represented by Damian
Jackson -- djackson@rmh-law.com -- Reilly, McDevitt & Henrich,
P.C., Kara D. Hill -- khill@rmh-law.com -- pro hac vice & Susan M.
Valinis -- svalinis@rmh-law.com -- Reilly McDevitt & Henrich, P.C.,
pro hac vice.
VWR International, LLC, Defendant, represented by Kara D. Hill --
khill@rmh-law.com -- pro hac vice & Susan M. Valinis --
svalinis@rmh-law.com -- Reilly McDevitt & Henrich, P.C., pro hac
vice.
Mine Safety Appliance Company, Cross Claimant, represented by
Joseph F. Butcher -- butcher@zklaw.com -- Zimmer Kunz P.L.L.C.
Agilent Technologies, Inc., individually & Varian Medical Systems,
Inc., Cross Defendants, represented by Elizabeth R. Dill --
Elizabeth.Dill@lewisbrisbois.com -- Lewis Brisbois Bisgaard &
Smith, LLPP, Lee Janiczek -- Lee.Janiczek@lewisbrisbois.com --
Lewis Brisbois Bisgaard & Smith, LLP, Paulyne A. Gardner-Smith --
Paulyne.Gardner-Smith@lewisbrisbois.com -- Lewis Brisbois Bisgaard
& Smith, LLPP & Christopher E. Ballod --
Christopher.Ballod@lewisbrisbois.com -- Lewis Brisbois Bisgaard &
Smith, LLP.
Baxter International, Inc., individually, Cross Defendant,
represented by Joseph R. Schaper -- JRS@maronmarvel.com -- Maron
Marvel Bradley & Anderson P.A., Philip T. Barrett --
pbarrett@grsm.com -- Gordon Rees Scully Mansukhani, LLP & S. Manoj
Jegasothy -- mjegasothy@grsm.com -- Gordon Rees Scully Mansukhani,
LLP.
DRAVO CORPORATION, Cross Defendant, represented by Cathy R. Gordon
-- gordonc@litchfieldcavo.com -- Litchfield Cavo LLP & Hilary C.
Bonenberger , Swartz Campbell.
Fisher Scientific Company, LLC., Cross Defendant, represented by
James V. Corbelli -- jcorbelli@babstcalland.com -- Babst, Calland,
Clements & Zomnir, Jason H. Nash -- jnash@hww-law.com -- Hinkhouse
Williams Walsh LLP, John T. Williams -- jwilliams@hww-law.com --
Hinkhouse Williams Walsh LLP & Michael J. Morrison --
mmorrison@hww-law.com -- Hinkhouse William Walsh LLP.
Metropolitan Life Insurance Company, Cross Defendant, represented
by Stewart R. Singer -- ssinger@srstlaw.com -- Salmon, Ricchezza,
Singer & Turchi & Ronald L. Daugherty -- rdaugherty@srstlaw.com --
Salmon, Ricchezza, Singer & Turchi, LLP.
Safety First Industries, Inc., in its own right, Cross Defendant,
represented by Joseph R. Schaper -- JRS@maronmarvel.com -- Maron
Marvel Bradley & Anderson P.A.
Union Carbide Corporation, Cross Defendant, represented by James M.
Leety , Kelley, Jasons, McGowan, Spinelli, Hanna & Reber & Richard
L. Walker -- rwalker@kjmsh.com -- Kelley, Jasons, McGuire &
Spinelli.
Univar USA, Inc., individually, Cross Defendant, represented by
Damian Jackson -- djackson@rmh-law.com -- Reilly, McDevitt &
Henrich, P.C., Kara D. Hill -- khill@rmh-law.com -- & Susan M.
Valinis -- svalinis@rmh-law.com -- Reilly McDevitt & Henrich, P.C.
VWR International, LLC, Cross Defendant, represented by Kara D.
Hill -- khill@rmh-law.com -- & Susan M. Valinis --
svalinis@rmh-law.com -- eilly McDevitt & Henrich, P.C.
Safety First Industries, Inc., in its own right, Cross Claimant,
represented by Joseph R. Schaper -- JRS@maronmarvel.com -- Maron
Marvel Bradley & Anderson P.A.
Mine Safety Appliance Company, Cross Defendant, represented by
Joseph F. Butcher -- butcher@zklaw.com -- Zimmer Kunz P.L.L.C.
VWR International, LLC, Cross Claimant, represented by Kara D. Hill
-- khill@rmh-law.com -- & Susan M. Valinis -- svalinis@rmh-law.com
-- Reilly McDevitt & Henrich, P.C.
Fisher Scientific Company, LLC., Cross Claimant, represented by
James V. Corbelli -- jcorbelli@babstcalland.com -- Babst, Calland,
Clements & Zomnir, Jason H. Nash -- jnash@hww-law.com -- Hinkhouse
Williams Walsh LLP, John T. Williams -- jwilliams@hww-law.com --
Hinkhouse Williams Walsh LLP & Michael J. Morrison --
mmorrison@hww-law.com -- Hinkhouse William Walsh LLP.
Union Carbide Corporation, Cross Claimant, represented by James M.
Leety , Kelley, Jasons, McGowan, Spinelli, Hanna & Reber & Richard
L. Walker -- rwalker@kjmsh.com -- Kelley, Jasons, McGuire &
Spinelli.
Baxter International, Inc., individually, Cross Claimant,
represented by Joseph R. Schaper -- JRS@maronmarvel.com -- Maron
Marvel Bradley & Anderson P.A., Philip T. Barrett --
pbarrett@grsm.com -- Gordon Rees Scully Mansukhani, LLP & S. Manoj
Jegasothy -- mjegasothy@grsm.com -- Gordon Rees Scully Mansukhani,
LLP.
ASBESTOS UPDATE: More Than 150 Glasgow Schools Contain Asbestos
---------------------------------------------------------------
Eddie Harbison of The Herald reported that more than 150 schools in
Glasgow contain asbestos, new figures reveal.
But education chiefs have sought to put parents' minds at ease
after it was claimed that children running through corridors could
disturb the toxic substance.
In total 167 primaries, secondaries, nurseries and assisted support
needs schools in the city contain asbestos.
Specialist officers are employed by the city council to monitor
education facilities to ensure asbestos is not disturbed and cannot
become harmful. But Hope Robertson, secretary of the Clydebank
Asbestos Group, which covers the west of Scotland, said: "Asbestos
costs an arm and a leg to remove but you can’t put a price on
children's lives.
"Kids run through corridors, they bang doors and that's all it
takes to disturb asbestos and make it go airborne.
"Parents should be aware of the fact that they can request a look
at the asbestos register. Schools must be able to produce that."
"Folk say we're scaremongering but schools, especially the
Consortium of Local Authority Special Programme (CLASP) facilities,
have the old pipe insulation systems in them. They are covered in
asbestos."
Seven CLASP schools and 18 secondaries throughout the city were
identified as having asbestos. Those included Holyrood Secondary,
St Mungo’s Primary and the all-girls Notre Dame High School.
In the west of the city, 50 nurseries, primaries and additional
support needs schools were revealed as containing asbestos, with 42
on the Southside, 29 in the East End and 21 in the north.
If undisturbed, asbestos does not pose a health risk but, if
material containing it is damaged, fibres can enter the lungs,
causing asbestosis if exposed over a prolonged period.
The council said: "We have a robust management programme in place
to ensure safety in all our buildings.
"Whilst there are times where removal is appropriate, it is also
true that on many occasions asbestos is safer when left alone and
managed appropriately.
"Asbestos that remains undisturbed presents no risk and it’s very
unhelpful to worry parents unnecessarily."
ASBESTOS UPDATE: New Hampshire to Get $140K to Address Asbestos
---------------------------------------------------------------
The State reported that New Hampshire is set to receive a $140,000
federal grant to help communities address asbestos contamination in
schools.
The State reported that the state's Democratic congressional
delegation announced that the money from the U.S. Environmental
Protection Agency would be directed to the New Hampshire Asbestos
in Schools Program. The program reviews school asbestos management
plans to ensure they comply with the Asbestos Hazard Emergency
Response Act, maintain an asbestos accreditation and certification
training program, and provide educational outreach to parents,
teachers, and school maintenance personnel on the dangers of
asbestos exposure.
Sen. Jeanne Shaheen said that it was critical for the health and
safety of the children that the state combat asbestos. The grant,
she said, would provide critical information for all stakeholders
in the event of asbestos exposure.
ASBESTOS UPDATE: Old Mo's Lounge Bldg. May See Asbestos Abatement
-----------------------------------------------------------------
Sam Wildow of Piqua Daily Call reported that a vacant structure
that has been a target area for the Downtown Riverfront
Redevelopment Strategy for years may soon be seeing some
improvements.
The Piqua City Commission will consider the asbestos abatement
project at the old Mo's Lounge -- a vacant building located at 111
S. Main St. -- during their next meeting.
The commission will vote on awarding a contract to Environmental
Assurance Company, Inc. for the asbestos abatement project. The
cost is not to exceed $210,000, which includes the bid amount of
$204,900 and a $5,100 contingency amount.
This project will be mostly funded through a U.S. EPA grant that
will cover 71 percent of the cost at an estimated amount of
$149,100. The city's share will be approximately $60,900.
The city purchased the building in April 2014 from Joseph E. Drapp
for $46,600, according to public records. The city has been working
on securing funding for the asbestos abatement at the site since at
least 2015.
Mo's Lounge covers approximately 0.1 acres and contains a
9,200-square-foot, two-story structure. The property also includes
a basement. According to Reese, former uses of the building include
bottling, retail sales, a former furniture shop, a contractor trade
office, a restaurant, a bus stop, a Moose Lodge from approximately
1960 to 1975, and Mo's Lounge from 1980 to 2003. The building has
been vacant since 2003.
Mo's Lounge was recognized as a target area for the Downtown
Riverfront Redevelopment Strategy with the goal being for a private
developer to invest in the property and renovate it. The goal of
the asbestos abatement project will be to prepare the east addition
of the building for demolition and the original portion of the
building for restoration work.
Also during their meeting, the commission will also vote on
authorizing a purchase order to Compass Minerals America, Inc. for
the purchase of road salt for the street department. The cost will
be at a rate of $89.69 per ton, which was higher than last year’s
rate of $49.88.
The street department estimated their usage of 2,500 tons for the
bid, bringing their possible total price to approximately $224,225.
According to the resolution, the street department is required to
purchase at least 2,000 tons during the season, which would cost
approximately $179,380.
The commission will then vote on awarding a contract to Tree Care,
Inc. for the 2018 annual tree removal, pruning, and emergency tree
removal. Their work will include removing trees, including ash
trees and hazard trees, along with annual pruning and emergency
tree removals, such as in the event of a high wind storm. The cost
is not to exceed $40,000.
Following that, the commission with vote on authorizing the city
manager to enter into an agreement with LJB, Inc. for the
environmental services for the Great Miami River Trail Bridge
project. The cost is not to exceed $89,900. The city is receiving
$300,000 of funding from the state’s capital budget for this
project, which includes replacing this pedestrian bridge.
The Staunton Street Solar Field will also be returning to the
commission's agenda to clear up an error with the south property
line. The solar field is now interconnected to Piqua's electric
system operating as a renewal energy source, but the construction
survey identified an error with the south property line that is
contrary to the intent of the city of Piqua and CAP Industries
concerning the property swap previously approved by the
commission.
According to the new resolution coming before the commission, the
city shall deed an additional 0.138-acre property strip along the
project's south border as part the transfer that was previous
approved by the commission. There is no cost to the city for this
action.
Next the on the agenda, the commission will vote on a quitclaim
deed for inlots on a nine-foot section on Roosevelt Street, which
includes a gap between the the former Conrail Railroad right-of-way
that the city owns and the adjacent property, Fincel Door Company.
The quitclaim deed will transfer any legal interest that the city
may unknowingly have to this property to allow the owner of Fincel
Door Company to sell the Fincel Door Company property.
The commission will also vote on a grant application to the Ohio
Public Works Commission (OPWC). The amount will be for $200,000 for
the replacement of 100 deteriorated catch basins.
ASBESTOS UPDATE: Oregon Company Fined for Asbestos Violations
-------------------------------------------------------------
KUOW News and Information reported that Oregon regulators have
fined a Washington County company for violating asbestos rules more
than 100 times.
The Oregon Department of Environmental Quality fined the company,
Oregon Environmental LLC of Cornelius, more than $436,804. It also
revoked the company's license to handle asbestos.
Asbestos was a common component in building materials for houses
and buildings before 1980. When asbestos is improperly removed, its
fibers become airborne. People who breathe those fibers are at risk
of cancer and other diseases.
The DEQ's action followed a year-long investigation, mostly in the
Portland area. It found that Oregon Environmental LLC failed to
conduct required air sampling to ensure worksite air was safe to
breathe, and that it did not dispose of asbestos at an authorized
waste disposal site. The company also submitted false or inaccurate
documentation to DEQ, including in its last two asbestos license
renewal applications, regulators said.
Oregon Environmental LLC lawyer Troy Sexton said the company is
considering its options and intends to appeal.
"They want to make clear that they haven't done anything wrong as
far as the handling of asbestos has gone," he said. "They admit to
some paperwork lapses but they don't think that the penalty is
justified by what actually has occurred."
ASBESTOS UPDATE: Park-Ohio Industries Faces 89 Suits at March 31
----------------------------------------------------------------
Park-Ohio Industries, Inc. remains a co-defendant in around 89
asbestos-related personal injury cases, according to the Company's
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarterly period ended March 31, 2018.
The Company states, "We were a co-defendant in approximately 89
cases asserting claims on behalf of approximately 195 plaintiffs
alleging personal injury as a result of exposure to asbestos.
These asbestos cases generally relate to production and sale of
asbestos-containing products and allege various theories of
liability, including negligence, gross negligence and strict
liability, and seek compensatory and, in some cases, punitive
damages.
"In every asbestos case in which we are named as a party, the
complaints are filed against multiple named defendants. In
substantially all of the asbestos cases, the plaintiffs either
claim damages in excess of a specified amount, typically a minimum
amount sufficient to establish jurisdiction of the court in which
the case was filed (jurisdictional minimums generally range from
US$25,000 to US$75,000), or do not specify the monetary damages
sought. To the extent that any specific amount of damages is
sought, the amount applies to claims against all named defendants.
"There are four asbestos cases, involving 21 plaintiffs, that plead
specified damages against named defendants. In each of the four
cases, the plaintiff is seeking compensatory and punitive damages
based on a variety of potentially alternative causes of action. In
three cases, the plaintiff has alleged three counts at US$3.0
million compensatory and punitive damages each; one count at US$3.0
million compensatory and US$1 million punitive damages; one count
at US$1.0 million. In the fourth case, the plaintiff has alleged
compensatory and punitive damages, each in the amount of US$20.0
million, for three separate causes of action, and US$5.0 million
compensatory damages for the fifth cause of action.
"Historically, we have been dismissed from asbestos cases on the
basis that the plaintiff incorrectly sued one of our subsidiaries
or because the plaintiff failed to identify any asbestos-containing
product manufactured or sold by us or our subsidiaries. We intend
to vigorously defend these asbestos cases, and believe we will
continue to be successful in being dismissed from such cases.
However, it is not possible to predict the ultimate outcome of
asbestos-related lawsuits, claims and proceedings due to the
unpredictable nature of personal injury litigation. Despite this
uncertainty, and although our results of operations and cash flows
for a particular period could be adversely affected by
asbestos-related lawsuits, claims and proceedings, management
believes that the ultimate resolution of these matters will not
have a material adverse effect on our financial condition,
liquidity or results of operations. Among the factors management
considered in reaching this conclusion were: (a) our historical
success in being dismissed from these types of lawsuits on the
bases; (b) many cases have been improperly filed against one of our
subsidiaries; (c) in many cases the plaintiffs have been unable to
establish any causal relationship to us or our products or
premises; (d) in many cases, the plaintiffs have been unable to
demonstrate that they have suffered any identifiable injury or
compensable loss at all or that any injuries that they have
incurred did in fact result from alleged exposure to asbestos; and
(e) the complaints assert claims against multiple defendants and,
in most cases, the damages alleged are not attributed to individual
defendants. Additionally, we do not believe that the amounts
claimed in any of the asbestos cases are meaningful indicators of
our potential exposure because the amounts claimed typically bear
no relation to the extent of the plaintiff's injury, if any.
"Our cost of defending these lawsuits has not been material to date
and, based upon available information, our management does not
expect its future costs for asbestos-related lawsuits to have a
material adverse effect on our results of operations, liquidity or
financial position."
A full-text copy of the Form 10-Q is available at
https://is.gd/SpImjj
ASBESTOS UPDATE: Report on Blue Mountains Asbestos Further Delayed
------------------------------------------------------------------
B.C. Lewis of Blue Mountains Gazette reported that Blue Mountains
councillors have further delayed an expected public release of a
summary report from the Clyde and Co independent asbestos
investigation -- citing legal professional privilege -- prompting
one councillor to wonder "whether the reports will ever be released
in full."
Greens councillor Kerry Brown said debating matters in closed
council "should relate to litigation... this is much more about PR
and political strategy . . . We're not releasing the reports, and
we're not letting people know why we’re not releasing the
reports."
Council's own solicitor, Trevor Cork, in a letter leaked to the
Gazette, said releasing a summary document of the asbestos
investigation could "well attract the scorn of commentators such as
Mr Ray Hadley on the Radio 2GB Morning Program" adding "it is not
difficult to anticipate the kind of criticism of the summary that
might be made in the media and on social media."
The council, with the exception of Cr Brown and Liberal Cr Kevin
Schreiber (who was out of the chamber), voted to engage new
solicitors to prepare the summary and then will ask the advice of
the commissioner conducting the public hearing into the council,
before deciding if they will release the information publicly.
Councillors debated the issue in a confidential session last
Tuesday after a nine to three vote. Crs Brown and Schrieber, as
well as Cr Brendan Christie, wanted the public to hear the debate.
The report was expected to have been available from June 29.
Cr Brown called it "a breach of the Local Government Act to attempt
to close a meeting to save a council from embarrassment or because
it could cause a loss of confidence in the council."
"Council has decided that protecting itself is more important than
the community and staff knowing what occurred at Blue Mountains
Council that led to staff and residents being put at risk.
"If it is not clearly explained to staff and residents what put
them at risk, and what has been investigated, how can we know if it
is not happening again?"
Other reasons Mr Cork suggested for deferring the summary's
release, include: the Minister's planned public inquiry into
council, the fact the matter would directly overlap with that
inquiry and ongoing EPA and SafeWork investigations,and because a
union representing council’s engineers had expressed concerns
about how even redacted names could identify staff.
Mr Cork also said the summary might be considered "biased and
selective" compared to the public inquiry's results, given those
who participated in the Tooma inquiry did so voluntarily.
The mayor, Mark Greenhill, has previously said: "Our approach to
the release of the final investigation report is appropriate and
maintains the commitment to the community whilst responsibly taking
into account procedural fairness and the legal advice provided."
At the December 15, 2017, extraordinary meeting council meeting,
council authorised Michael Tooma of Clyde and Co to conduct his
investigation into council's handling of asbestos in consultation
with SafeWork NSW, the United Services Union (USU) and all other
relevant stakeholders and to publicly release his report and to
make his report available to the Minister for Local Government,
SafeWork NSW and the USU. Council has never rescinded that motion.
Clr Brown said the reports do not vilify individuals and repeatedly
emphasise the organisational factors that created the circumstances
being investigated.
ASBESTOS UPDATE: Retired Teacher Awarded $500K in Damages
---------------------------------------------------------
Joanne McCarthy of Newcastle Herald reported that a retired teacher
diagnosed with mesothelioma more than four decades after building
an asbestos-sided shed with Nelson Bay school students was awarded
$500,000 in damages only weeks before he died in May.
Len Lavis, 76, died less than three months after he was diagnosed,
six months after experiencing the first symptoms, and two weeks
after a bedside hearing of the NSW Dust Diseases Tribunal at his
Salamander Bay home.
His death prompted lawyer and former Federal Government Asbestos
Safety and Eradication Council member Tanya Segelov to warn that
while the risk of contracting mesothelioma was quite small,
renovations and projects from decades ago had devastating
consequences for some people.
The risk from renovations was as acute and real today as 40 years
ago, Ms Segelov said.
"Because there's no immediate effect we are not very good as human
beings in recognising the long term risks posed by asbestos in our
environment and there's a disconnect between knowing the dangers of
asbestos and taking precautions to protect ourselves," she said.
Mr Lavis was an industrial arts teacher at Nelson Bay Central
School in 1974 when he and another teacher built a shed to deal
with the school's storage problems, using a metal roof and asbestos
cement fibro planks. It was four years before asbestos was
identified on building products.
The project was funded by the school's Parents and Citizens
Association and the two teachers worked on it after hours. But Mr
Lavis told the Dust Diseases Tribunal that students worked on the
shed during school hours "as a method of teaching them various
carpentry skills."
The tribunal was told the whole school was later demolished. Mr
Lavis also used asbestos products during renovations at his three
Nelson Bay area homes over a number of decades.
Mr Lavis was born at Wallsend, became a teacher in 1963, married
his wife Lorraine in 1964 and retired in 1996.
He was fit, active and healthy until late October, 2017 when he
first experienced shortness of breath.
By mid-November he was referred to a cardio-thoracic specialist who
could find no problems after a biopsy, but by Christmas Mr Lavis
was using pain medication and by early February he was referred to
the Calvary Mater hospital for pain management.
On February 15, after a second biopsy, he was experiencing
"intense, unremitting pain" and was told he had mesothelioma and
only weeks to live.
Dust Diseases Tribunal Justice Andrew Scotting issued a judgment on
the final day of Mr Lavis’s hearing against Amaca Pty Ltd, the
company formerly known as James Hardie.
He described Mr Lavis as "the pillar of the family and a much loved
patriarch" whose death came shortly after the onset of a disease
that was "swift and unrelenting."
He ordered Amaca to pay $482,000 in damages plus legal costs.
Ms Segelov said it was not unusual that Mr Lavis and another
teacher built a shed with students at a school, and it was not
unusual for such a project to end years later with a case for
damages over mesothelioma.
She said the NSW Government needed to follow the Victorian
Government's lead and remove all asbestos from schools.
"It should be something every state does. A lot of the school
buildings are old or degraded which is where the asbestos problems
start to show. No kids should be exposed to asbestos in their
schools," she said.
The NSW Government offered free testing for hazardous loose-fill
asbestos across five Hunter local government areas after the
product was found in a Glendale home -- the first case in the
region.
Loose-fill asbestos is raw crushed asbestos which was commonly used
for ceiling insulation in the 1960s and 1970s.
A Department of Education spokesperson said Nelson Bay Central
School was a school site from the 1890s until mid 1998 when
students moved to a new Tomaree Public and Tomaree High education
complex at Salamander Bay.
The department was "not currently in a position to confirm the
reference to students taking part in the construction of a shed at
Nelson Bay Central School in 1974," the spokesperson said.
ASBESTOS UPDATE: Rexnord Estimates $38MM Liability at March 31
--------------------------------------------------------------
Rexnord Corporation estimates US$38.0 million potential liability
for asbestos-related claims as of March 31, 2018, according to the
Company's Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended March 31, 2018.
Rexnord Corp. states, "The Company's subsidiaries are involved in
various unresolved legal actions, administrative proceedings and
claims in the ordinary course of business involving, among other
things, product liability, commercial, employment, workers'
compensation, intellectual property claims and environmental
matters. The Company establishes accruals in a manner that is
consistent with accounting principles generally accepted in the
United States for costs associated with such matters when liability
is probable and those costs are capable of being reasonably
estimated. Although it is not possible to predict with certainty
the outcome of these unresolved legal actions or the range of
possible loss or recovery, based upon current information,
management believes the eventual outcome of these unresolved legal
actions, either individually or in the aggregate, will not have a
material adverse effect on the financial position, results of
operations or cash flows of the Company.
"In connection with its sale, Invensys plc ("Invensys") provided
the Company with indemnification against certain contingent
liabilities, including certain pre-closing environmental
liabilities. The Company believes that, pursuant to such indemnity
obligations, Invensys is obligated to defend and indemnify the
Company with respect to the matters relating to the Ellsworth
Industrial Park Site and to various asbestos claims. The indemnity
obligations relating to the matters are subject, together with
indemnity obligations relating to other matters, to an overall
dollar cap equal to the purchase price, which is an amount in
excess of US$900 million. The following paragraphs summarize the
most significant actions and proceedings:
* In 2002, Rexnord Industries, LLC ("Rexnord Industries") was
named as a potentially responsible party ("PRP"), together with at
least ten other companies, at the Ellsworth Industrial Park Site,
Downers Grove, DuPage County, Illinois (the "Site"), by the United
States Environmental Protection Agency ("USEPA"), and the Illinois
Environmental Protection Agency ("IEPA"). Rexnord Industries'
Downers Grove property is situated within the Ellsworth Industrial
Complex. The USEPA and IEPA allege there have been one or more
releases or threatened releases of chlorinated solvents and other
hazardous substances, pollutants or contaminants, allegedly
including but not limited to a release or threatened release on or
from the Company's property, at the Site. The relief sought by the
USEPA and IEPA includes further investigation and potential
remediation of the Site and reimbursement of USEPA's past costs.
Rexnord Industries' allocated share of past and future costs
related to the Site, including for investigation and/or
remediation, could be significant. All previously pending property
damage and personal injury lawsuits against the Company related to
the Site have been settled or dismissed. Pursuant to its indemnity
obligation, Invensys continues to defend the Company in known
matters related to the Site and has paid 100% of the costs to
date.
* Multiple lawsuits (with approximately 300 claimants) are
pending in state or federal court in numerous jurisdictions
relating to alleged personal injuries due to the alleged presence
of asbestos in certain brakes and clutches previously manufactured
by the Company's Stearns division and/or its predecessor owners.
Invensys and FMC, prior owners of the Stearns business, have paid
100% of the costs to date related to the Stearns lawsuits.
Similarly, the Company's Prager subsidiary is a defendant in two
pending multi-defendant lawsuits relating to alleged personal
injuries due to the alleged presence of asbestos in a product
allegedly manufactured by Prager. Additionally, there are numerous
individuals who have filed asbestos related claims against Prager;
however, these claims are currently on the Texas Multi-district
Litigation inactive docket. The ultimate outcome of these asbestos
matters cannot presently be determined. To date, the Company's
insurance providers have paid 100% of the costs related to the
Prager asbestos matters. The Company believes that the combination
of its insurance coverage and the Invensys indemnity obligations
will cover any future costs of these matters.
"In connection with the Company's acquisition of The Falk
Corporation ("Falk"), Hamilton Sundstrand provided the Company with
indemnification against certain products-related asbestos exposure
liabilities. The Company believes that, pursuant to such indemnity
obligations, Hamilton Sundstrand is obligated to defend and
indemnify the Company with respect to the asbestos claims, and
that, with respect to these claims, such indemnity obligations are
not subject to any time or dollar limitations.
"The following paragraph summarizes the most significant actions
and proceedings for which Hamilton Sundstrand has accepted
responsibility:
* Falk, through its successor entity, is a defendant in multiple
lawsuits pending in state or federal court in numerous
jurisdictions relating to alleged personal injuries due to the
alleged presence of asbestos in certain clutches and drives
previously manufactured by Falk. There are approximately 100
claimants in these suits. The ultimate outcome of these lawsuits
cannot presently be determined. Hamilton Sundstrand is defending
the Company in these lawsuits pursuant to its indemnity obligations
and has paid 100% of the costs to date.
"Certain Water Management subsidiaries are also subject to asbestos
litigation. As of March 31, 2018, Zurn and numerous other
unrelated companies were defendants in approximately 6,400 asbestos
related lawsuits representing approximately 16,200 claims.
Plaintiffs' claims allege personal injuries caused by exposure to
asbestos used primarily in industrial boilers formerly manufactured
by a segment of Zurn. Zurn did not manufacture asbestos or
asbestos components. Instead, Zurn purchased them from suppliers.
These claims are being handled pursuant to a defense strategy
funded by insurers.
"As of March 31, 2018, the Company estimates the potential
liability for the asbestos-related claims as well as the claims
expected to be filed in the next ten years to be approximately
US$38.0 million, of which Zurn expects its insurance carriers to
pay approximately US$29.0 million in the next ten years on such
claims, with the balance of the estimated liability being paid in
subsequent years. The US$38.0 million was developed based on
actuarial studies and represents the projected indemnity payout for
current and future claims. There are inherent uncertainties
involved in estimating the number of future asbestos claims, future
settlement costs, and the effectiveness of defense strategies and
settlement initiatives. As a result, actual liability could differ
from the estimate described herein and could be substantial. The
liability for the asbestos-related claims is recorded in Other
liabilities within the consolidated balance sheets.
"Management estimates that its available insurance to cover this
potential asbestos liability as of March 31, 2018, is approximately
US$239.6 million, and believes that all current claims are covered
by insurance. However, principally as a result of the past
insolvency of certain of the Company's insurance carriers, certain
coverage gaps will exist if and after the Company's other carriers
have paid the first US$163.6 million of aggregate liabilities.
"As of March 31, 2018, the Company had a recorded receivable from
its insurance carriers of US$38.0 million, which corresponds to the
amount of this potential asbestos liability that is covered by
available insurance and is currently determined to be probable of
recovery. However, there is no assurance that US$239.6 million of
insurance coverage will ultimately be available or that this
asbestos liability will not ultimately exceed US$239.6 million.
Factors that could cause a decrease in the amount of available
coverage include: changes in law governing the policies, potential
disputes with the carriers regarding the scope of coverage, and
insolvencies of one or more of the Company's carriers. The
receivable for probable asbestos-related recoveries is recorded in
Other assets within the consolidated balance sheets."
A full-text copy of the Form 10-K is available at
https://is.gd/uZXpBe
ASBESTOS UPDATE: Shipwreck Raises Asbestos Pollution Fears
----------------------------------------------------------
Hurriyet Daily News reported that experts and locals of the
Bozcaada district of northwestern province of Canakkale are worried
that a shipwreck that had been dismantled on the shores of the
Beylik Bay may have polluted the area with asbestos and heavy
metals, daily Cumhuriyet reported on July 12.
The Sierra Leone flagged 88-meter-long, 2,250-gross-ton dry cargo
vessel Mercy God ran aground on Beylik Bay in December 2014 due to
bad weather. The grounded ship remained there and become a tourist
attraction until it was dismantled in April.
The Transport, Maritime and Communication Ministry decided the ship
would be dismantled on the spot, citing high maintenance and rescue
operation costs.
However, locals reacted to the ministry's decision on the grounds
that no thorough analyses regarding the possible hazards the
wreckage was posing had been carried out. They argued almost all
old ships contained asbestos, thus the bay must be sealed off to
carry out a comprehensive study.
The locals filed a petition with the local prefecture, asking if
the wreckage contained asbestos. They argued that the dismantling
operation would release asbestos and heavy metals from the vessel
to the environment.
The Transport Ministry commissioned a report to an asbestos removal
expert. The expert's report concluded the ship did not contain any
insulation material containing asbestos, after which the ship was
dismantled in April.
A member of the platform called "Bozcaada Forum" told daily
Cumhuriyet the relevant expert's report "did not reflect the truth"
and they did not trust the information in it.
A researcher at the Middle East Technical University (ODTÜ) Marine
Sciences Institute said a more comprehensive analysis should have
been conducted about the possible pollution from the relevant
shipwreck, urging locals not to swim in the area.
Ozgur Emek Inanmaz has also said such research on marine pollution
should be conducted by specialized staff, including academics
ASBESTOS UPDATE: Southampton Carpenter Dies Asbestos Exposure
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Daily Echo reported that a retired carpenter died as a result of
exposure to asbestos.
Winchester Coroners' Court heard David Marsh, 69, was exposed to
the carcinogenic substance while working as an apprentice carpenter
at Southampton Builders Ltd in 1964.
In October of 2016, Mr March was taken to Southampton General
Hospital after suffering from breathing difficulties.
A biopsy later revealed that he had contracted cancer as a result
of his exposure to asbestos.
Mr Marsh passed away in his Norton Close home on June 13.
Senior Coroner Grahame Short concluded that Mr Marsh had died as a
result of industrial disease.
ASBESTOS UPDATE: Southampton Marine Engr. Dies of Asbestos Exposure
-------------------------------------------------------------------
Southern Daily Echo reported that an inquest heard how as, a young
apprentice, a Southampton marine engineer would often put asbestos
piping in his mouth as a pea shooter and fire it at other
apprentices during "asbestos wars."
Winchester Coroners' Court heard how Ronald Dyer, of Weston Lane,
was often exposed to the carcinogenic substance during his career
throughout the 1950s '60s and '70s.
In a statement taken before his death, the 81-year-old said he was
first exposed as an apprentice at JI Thorneycroft in 1951 when
preparing ship valves.
Later in his career Mr Dyer worked aboard ships which contained
asbestos lagging as well as working on turbines that also contained
the substance which, he said, would hang in the air like a
snowstorm.
Mr Dyer died on April 28 at Countess Mountbatten Hospice in West
End.
A post-mortem revealed that Mr Dyer had asbestos-related lung
cancer which had spread to his kidneys and spine.
Coroner Grahame Short concluded Mr Dyer had died as a result of
industrial disease.
ASBESTOS UPDATE: TIM Found Not Guilty in Workers' Exposure Suit
---------------------------------------------------------------
The Turin Appeal Court has ruled that all the accused in the in the
asbestos-related case against TIM S.p.A., among other defendants,
are not guilty, according to TIM's Form 6-K filing with the U.S.
Securities and Exchange Commission for the month of May 2018. The
ruling overturned the judgment of the court of the first instance
released in July 2016.
The Company states, "In September 2014 the Ivrea Public
Prosecutor's Office closed the investigation on the presumed
exposure to asbestos of 15 former workers from the companies "Ing.
C. Olivetti S.p.A." (now TIM S.p.A.), "Olivetti Controllo Numerico
S.p.A", "Olivetti Peripheral Equipment S.p.A.", "Sixtel S.p.A." and
"Olteco S.p.A" and served notice that the investigations had been
concluded on the 39 people investigated (who include former
Directors of the aforementioned companies).
"On December 2014 the Ivrea Public Prosecutor's Office formulated a
request for 33 of the 39 people originally investigated to be
committed for trial, and at the same time asked that 6
investigations be archived.
"During the preliminary hearing, which started in April 2015, TIM
assumed the role of civilly liable party, after being formally
summonsed by all 26 civil parties (institutions and natural
persons) joined in the proceedings. At the end of the preliminary
hearing, 18 of the original 33 persons accused were committed for
trial. The trial started in November 2015, and, as the party
liable for damages, the Company has reached a settlement agreement
with 12 of the 18 individuals (heirs/injured persons/family
members) who are civil parties to the dispute and they have,
therefore, withdrawn the claim against TIM.
"In the judgment of first instance, in July 2016, 13 of the 18
defendants were found guilty, with sentences ranging from 1 year to
5 years of imprisonment: four of the defendants were found not
guilty, and one case was dismissed for health reasons. The
defendants were also sentenced to pay compensation jointly and
severally with the party liable for damages TIM, of an overall sum
of approximately 1.9 million euros as a provisional payment to
INAIL and 6 heirs who were not part of the settlement. A generic
judgment to pay compensation for damages to the remaining damaged
parties (entities/unions/associations) was issued, although they
must in any case ask the civil court to quantify the damages. The
Company challenged the rationale for the judgment in the first
instance, and signed settlements, including with the final 6 heirs
who constituted the civil party, before the judgment in the second
instance was issued. So the only civil parties to the appeal were
organizations and associations.
"In April 2018 the Turin Appeal Court, overturning the judgment of
the court of the first instance, found all the accused not guilty,
because there was no case to answer for all the charges, and stated
that final motions should be filed within 90 days."
A full-text copy of the Form 6-K is available at
https://is.gd/GwQMB2
ASBESTOS UPDATE: Train Brakes Lined with Asbestos Claim Refuted
---------------------------------------------------------------
Jewel Stolarchuk of The Independent reported that local transport
operator SMRT has refuted a customer service email one of its own
staff members sent out, claiming that SMRT train brakes are lined
with asbestos -- a hazardous fibrous material that can cause
serious and fatal illnesses like lung cancer, mesothelioma, and
asbestosis, if inhaled.
The Government has prohibited the importation of the asbestos and
products containing asbestos for use in Singapore since the late
1980s. The National Environment Agency (NEA) confirmed, "The
prohibition was extended to include asbestos (in the form of
chrysotile) containing vehicle brakes or clutch lining installed in
any vehicles."
In June, the statement claiming that new SMRT trains use "composite
brake blocks made of fibre asbestos with metallic grains" was
emailed to several commuters who wrote in to customer services,
complaining about a burning smell on trains and station platforms.
The SMRT customer services staff assured concerned commuters that
although the brakes allegedly emanate a "strong smell" when heated,
due to the asbestos, the smell does not pose any health risk. The
staff added, "This will gradually reduce as the brakes become
seasoned over time."
When contacted by reporters, SMRT refuted the allegations made in
the customer services email. Asserting that "asbestos is not used
in any part of our MRT network," SMRT's chief commuter engagement
officer Elaine Koh said the confusion occurred due to a "human
error caused by one of our customer relations staff putting his own
words and sending the e-mail reply to a commuter too quickly."
Koh added: "We are tightening the clearance process for all reply
letters. We are sorry for the unnecessary alarm caused."
Commuters, however, remain wary and are calling for more
transparency from SMRT. Given reports -- from public awareness
groups such as Asbestos Global -- that trains imported from China
to New Zealand and Australia were found to contain asbestos as
recently as 2014, commuters are calling on SMRT to be transparent
about where locals trains are imported from.
Facebook user Chengmin Wang shared a screenshot of the original
customer service email and asked: "How to believe this government!
Some trains supplied to Australia and NZ by China contained
asbestos materials in the brake as early as 2014.
"SMRT must reveal the origin of the trains in question and if the
brakes materials contained hazardous substances, just admit it
openly and put the train out of service for emergency replacement.
Not sweeping the fire under the carpet!
"Usually, the first statement is true, subsequent one is just
toilet paper for wiping their white backside!"
Meanwhile, SMRT clarified that the strong smell that commuters
initially complained of is a result of the heat that is generated
when trains apply brake shoes directly onto the train wheels to
come to a halt through friction braking. Koh added: "We are working
with the Land Transport Authority on reducing such occurrences on
the network."
Interestingly, this latest clarification comes after the transport
operator initially claimed that investigations into the smell
yielded no results. The Straits Times reported, "ST had previously
contacted SMRT about the burning smell but was told that its
investigations had found nothing amiss."
It is unclear whether SMRT will point to "human error" to explain
why ST was first told that nothing was amiss in the investigations.
ASBESTOS UPDATE: Welder Dies After 50 Years of Asbestos Exposure
----------------------------------------------------------------
Amy Gibbons of East Anglian Daily Times reported that David Warnes,
who passed away on May 9 aged 76, was exposed to the hazardous
material while working with mechanical components that had to be
kept at a certain temperature -- maintained by the use of "massive
asbestos blankets."
The inquest heard that Mr Warnes died of bronchopneumonia, due to
chronic obstructive pulmonary disease and asbestiosis. This was
said to be directly related to his industrial job.
Mr Warnes' partner, Yvonne, said in a statement: "We have been
together for 24 years and David used to say we were still on
honeymoon as we were so close and did everything together.
"He wasn't one of the best, he was the best."
Concluding the inquest, assistant coroner Kevin McCarthy said: "He
died in Ipswich Hospital from complications arising from a severe
lung disease. I conclude that this was an industrial disease."
ASBESTOS UPDATE: Whittaker May Appeal Until November 2018 Term
--------------------------------------------------------------
The Appellate Division of the Supreme Court of New York has granted
Whittaker Clark & Daniels, Inc.'s motion to the extent of enlarging
the time to perfect the appeal to the November 2018 Term, with
leave to seek further enlargements, if necessary.
An appeal has been taken to the Court from a judgment of the
Supreme Court, New York County, entered on or about August 29,
2017. Whittaker Clark & Daniels, Inc. have moved for an enlargement
of time to perfect the aforesaid appeal until 30 days after the
Court of Appeals decides or disposes of Juni v A.O. Smith Water
Products, Co., et al.
The appealed case is In Re: New York City Asbestos Litigation. This
Document Relates to: Claudia Discala, as Administrator of the
Estate of Joan Robusto, Plaintiff-Respondent, v. Charles B.
Chrystal Company, Inc., et al., Defendants, and Whittaker Clark &
Daniels, Inc., Defendant-Appellant, Motion No. M-2807, Index Nos.
40000/88, 190413/13, (N.Y. App. Div.).
A copy of the Order dated July 3, 2018, is available at
https://tinyurl.com/y75py94w from Leagle.com.
ASBESTOS UPDATE: Workplace Asbestos Exposure Causes Cancer
----------------------------------------------------------
Lhalie Castillo of St. Louis Record reported that a man formerly
employed by various companies in Indiana alleges exposure to
asbestos in the workplace caused him to develop lung cancer.
George Phillips filed a complaint on July 6 in the St. Louis 22nd
Judicial Circuit Court against Advance Auto Parts Inc., Beazer East
Inc., Certain-Teed Corp., et al. alleging negligence.
According to the complaint, the plaintiff alleges that at various
times during his career throughout the 1950s to 1970s, he was
exposed to and inhaled or ingested asbestos fibers emanating from
certain products manufactured, sold, distributed or installed by
defendants. The suit states that on or about May 16, 2017, he first
became aware that he developed lung cancer, an asbestos-induced
disease, and that the disease was wrongfully caused.
The plaintiff holds Advance Auto Parts Inc., Beazer East Inc.,
Certain-Teed Corp., et al. responsible because the defendants
allegedly included asbestos fibers in their products when they knew
that it had toxic, poisonous and highly deleterious effect to human
health and failed to provide adequate warnings and instructions
concerning the dangers of working with or around products
containing asbestos fibers.
The plaintiff requests a trial by jury and seeks actual and
compensatory damages of more than $50,000, plus costs of this
action. He is represented by Benjamin R. Schmickle and Matthew C.
Morris of SWMW Law LLC in St. Louis.
St. Louis 22nd Judicial Circuit Court case number 1822-CC10694
*********
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