/raid1/www/Hosts/bankrupt/CAR_Public/180914.mbx
C L A S S A C T I O N R E P O R T E R
Friday, September 14, 2018, Vol. 20, No. 185
Headlines
ACME TRADING: Fails to Pay Wages to Servers, Neidle et al. Say
ADVANCED COLLECTION: Faces Rodriguez Suit Over FDCPA Violations
ADVOCARE INTERNATIONAL: Court Narrows Claims in Pyramid Scheme Suit
AGRI STATS: Faces Allison Suit over Price Fixing of Pork
AGRI STATS: Faces Anderson et al. Suit over Price Fixing of Pork
AIMBRIDGE HOSPITALITY: Rivera Suit Removed to M.D. Florida
AK STEEL: Court Grants Preliminary Approval of Class Settlement
ALBERTSONS COS: Bid to Bifurcate Discovery in Renvall Suit Denied
ASSOCIATED BUILDING: Urbino Moves for FLSA Class Certification
AUSTRALIA: Class Action Mulled Over Newcastle Light Rail Work
AUSTRALIA: Newcastle Traders Gather to Hear Class Action Plan
BAYER: Aware of Impending Class Action Over Essure Implant
BLACK HILLS: January Jury Trial Set in Insurance Class Action
BLACKROCK INSTITUTIONAL: Plaintiffs Can File SAC in Securities Suit
BLARNEY ENTERPRISES: Bartenders Hit Illegal Tip Pool
BUCKINGHAM COAL: Fails to Pay OT to Scoop Operators, Cozort Says
CAPITAL MANAGEMENT: Bluming Sues in N.Y. Over FDCPA Violations
CHAMPION PETFOODS: Pet Foods Contain Heavy Metals, Says Leppert
CHEMOURS: Class Action Over Water Contamination Pending
CHESAPEAKE ENERGY: Settles Royalties Class Action for $7.75MM
CHICAGO ORNAMENTAL: Court Denies Garrido's Bid to Certify Class
CHINA AGRITECH: Drinker Biddle Attorneys Discuss Court Ruling
CHINA TELECOM: Has Made Unsolicited Calls, Begay Suit Alleges
CHOICE PHYSICIANS: Fleming Disputes Collection Letter Validity
CHRYSLER GROUP: Court Rejects Non-Party's Bid to Intervene
CORRECTIONS CORP: Confidential Witness Identity Disclosure Denied
CREDIT PROTECTION: McRobie Moves to Certify Penn. Residents Class
CYTOSPORT INC: Summary Judgment Bid in Clay Suit Partly Granted
DENKA: St. John Plaintiffs File Amended LaPlace Plant Lawsuit
DESERT STATE: Victims Await Restitution, Class Action Pending
DISH NETWORK: Violates Disabilities Act, Mendez Suit Alleges
DOMINION ENERGY: Bid to Remand Metzler Stockholder Suit Granted
DR. SMOOD: Brown Suit Moved to Southern District of New York
ENVISION HEALTHCARE: Faces Barrett Suit over Kohlberg Merger
EVERGREEN MONEYSOURCE: Feb. 8 Final Settlement Approval Hearing
EXPRESS SCRIPTS: Neufeld Seeks to Halt Sale to Cigna Corp.
FACEBOOK INC: Hwang Hits Illegal Collection of Personal Data
FAUST HARRISON: Mendez Sues Over Disabilities Act Violations
FORD MOTOR: Cal. App. Affirms Summary Judgment in Dagher
FXCM INC: Policemen's Annuity Appeals Order, Judgment to 2nd Cir.
GENERAL INFORMATION: Smith's FCRA Case Transferred to D.S.C.
HEALTH-ADE LLC: Burson & Fisher Named Interim Class Counsel
IMPINJ INC: Schultz Sues over 14% Drop in Shares Price
JACKS ENTERPRISE: Pays Below Minimum Wage, Lloyd Suit Says
JIMMY JOHN: Illinois Court Narrows Claims in Antitrust Suit
KANSAS: Seeks 10th Cir. Review of Ruling in Fish v. Kobach
KELLOGG SALES: Hadley Appeals Class Cert. Order to 9th Cir.
KIND LLC: Faces Song Suit Alleging Product Liability Claims
L'OREAL USA: Claims in Suit Over Amla Legend Hair Relaxer Narrowed
LANNETT CO: Bid to Dismiss Utesch Securities Fraud Suit Granted
LTD FINANCIAL: Consumers Class Certified Under FDCPA in Saroza Suit
MARQUEE CONSTRUCTION: Underpays Construction Workers, Camps Claim
MDL 2672: VWGoA Can Enforce 2-Liter Settlement Release v. Maciel
MDL 2854: Court Denies Bid to Centralize Labor Suits
MERCEDES-BENZ USA: Court Narrows Claims in Elfaradi Suit
MERCY HEALTH: Court Grants Bid to Dismiss Sanzone's ERISA Suit
METALS USA: Sept. 21 Hearing on Wilson Deal Prelim Approval Bid
MGM RESORTS: $150K Settlement in Hanson Suit Has Prelim Approval
MICON SCAFFOLDING: Underpays Yard Foremans, Garcia Alleges
MIZUHO BANK: Court Grants Dismissal of Withdrawal Class Suit
NCS PLUS INC: Hudson Seeks Damages Under FDCPA
NIKE INC: Female Staff Paid Less, Cahill & Johnston Claim
NY PIZZA CO: Wilson Sues Over Unpaid Wages Under FLSA
OPTEL TECH: Daniels Action Seeks to Recover Unpaid Overtime
OVASCIENCE INC: Court Won't Dismiss Dahhan Securities Suit
PEET'S COFFEE: Faces Goldboss Suit in Calif. Super. Ct.
PEOPLEREADY INC: Hampton Sues Over Unpaid Missed Breaks, Overtime
PET SUPERMARKET: Illegally Sent SMS Ads, Eldridge Suit Says
PIEDIMONTE FARMS: Migrant Workers File Wage Theft Class Action
PITCHER PARTNERS: Faces Class Action Over Slater & Gordon Audits
POP SELLS LLC: Levinton Hits Illegal Telemarketing SMS
POWER PRESSURE: Green Claims Unpaid Overtime Pay
RADIUS GLOBAL: Douglas Class Suit Asserts FDCPA Violation
REGAL CASH GROUP: Hardin Sues Over Illegal Telemarketing Calls
RELATED ISG: Has Made Unsolicited Calls, Gonzalez Suit Alleges
ROBERT BROGDEN: Bid for Prelim Approval of Foster Deal Partly OK'd
ROYAL CARRIBEAN: Duenas Sues Over Illegal Termination, Unpaid OT
SAMSUNG ELECTRONICS: 11th Cir. Affirms NLRB "Do Not Talk" Ruling
SANDISK LLC: Class of Stockholders Certified in Securities Suit
SAPPHIRE NURSING: Faces Class Action Over Lack of Staff
SHARK BITES INC: Pittman Sues to Recover Unpaid OT Wages
SODEXO INC: $200K Attorneys' Fees Awarded in Mejia FLSA Suit
STEINWAY AND SONS: Violates Disabilities Act, Mendez Suit Says
STERLING M ENTERPRISES: Goldboss Files Suit in Cal. Super. Ct.
SUMMERHILL, NY: Faces Ward Suit in N. Dist. New York
SWEPI LP: Court Won't Reconsider Summary Judgment in Walney Suit
TACOMANIA INC: Court Denies Bid for Employees' Home Contact Info
TARGET CORP: Neumann Appeals Ruling in Meta Suit to 6th Cir.
TESLA INC: Faces Class Actions Over Elun Musk's Stock Tweets
TRANSWORLD SYSTEMS: Rigo Files Suit Under FDCPA
U-HAUL INTERNATIONAL: Can Compel Arbitration of Kauffman Claims
UNITED STATES: Class Action Against FEMA Pending in Mass. Court
UNITED STATES: Fund Set to Distribute $266MM Civil Rights Deal
UNITED STATES: Teneng Seeks Certification of Civil Detainee Class
VALEANT PHARMA: Court Narrows Claims in Lord Abbett Securities Suit
VCG HOLDING: Individual Arbitration of Dancers' Claims Affirmed
VUARNET INC: Accused by Mendez Suit of Violating Disabilities Act
WASTE MANAGEMENT: Holbert Action to Recover Overtime Pay
WELLS FARGO BANK: Lotsoff Suit Removed to S.D. Cal.
YOGURT CITY: Mendez Suit Asserts Disabilities Act Breach
Asbestos Litigation
ASBESTOS UPDATE: 5th. Cir. Affirmed Remand of S. Melancon P.I. Suit
ASBESTOS UPDATE: Ashland Global Had 53,000 Open Claims at June 30
ASBESTOS UPDATE: Bolin's P.I. Claims vs. Southern Wall Dismissed
ASBESTOS UPDATE: Grabowski's Claims vs. Miracle-Gro Dismissed
ASBESTOS UPDATE: Hercules LLC Had 12,000 PI Claims at June 30
ASBESTOS UPDATE: J. Brazan P.I. Suit Remanded to State Court
ASBESTOS UPDATE: J.H. Cox's Claims vs. American Honda Dismissed
ASBESTOS UPDATE: J.H. Cox's Claims vs. Federal-Mogul Dismissed
ASBESTOS UPDATE: J.H. Cox's Claims vs. Nissan Dismissed
ASBESTOS UPDATE: J.H. Cox's Claims vs. Toyota Motor Dismissed
ASBESTOS UPDATE: Jenkins May Appeal Until December 2018 Term
ASBESTOS UPDATE: Kraus Couple's Suit Remains in Dist. Court
ASBESTOS UPDATE: Lindsey's Suit Dismissed for Forum Non Conveniens
ASBESTOS UPDATE: Military-Veterans' Amicus Brief Accepted on Appeal
ASBESTOS UPDATE: National's Share in Resco Case Affirmed on Appeal
ASBESTOS UPDATE: Rogers Corp. Had 686 Pending Claims at June 30
ASBESTOS UPDATE: Standard Motor Had $32.34MM Liability at June 30
ASBESTOS UPDATE: Univar Faces Less Than 230 Claims at June 30
ASBESTOS UPDATE: W. Clayton Claims vs. Metalclad, MetLife Dismissed
ASBESTOS UPDATE: Ward's Suit Dismissed for Forum Non Conveniens
*********
ACME TRADING: Fails to Pay Wages to Servers, Neidle et al. Say
--------------------------------------------------------------
ANTHONY P. NEIDLE; ALISSA RAGONA; and CHRISTIAN HARDMAN,
individually and on behalf of all others similarly situated,
Plaintiffs v. ACME TRADING EXPEDITIONS, LLC; GOURMET EXPEDITIONS,
LLC; CHIANTI RISTORANTE ITALIANO; TARANTELLA RISTORANTE; FEMMINA
ITALIAN GRILLE; BIAGIO COPPOLA; OCTAVIO COPPOLA; FRANCO COPPOLA;
ABC CORPORATION; and JOHN DOE, Defendants, Case No. CAM-L-003026-18
(N.J. Super., Camden Cty., Aug. 9, 2018) alleges that the
Defendants intentionally, willfully and repeatedly engage in a
pattern, practice and policy violating the New Jersey Wage Law by
willfully withholding and diverting a portion of wages earned by
the Plaintiffs during a shift.
The Plaintiffs were employed by the Defendants as servers. Mr.
Neidle was employed from December 2014 to January 2018. Ms. Ragona
from November 2008 to November 2017. Mr. Hardman from the year 2011
to 2018.
Acme Trading Expeditions, LLC is a New Jersey limited liability
company engaged in the restaurant business. [BN]
The Plaintiffs are represented by:
Joseph A. D'Aversa, Esq.
Stephen P. DeNittis, Esq.
Joseph A. Osefchen, Esq.
DENITTIS OSEFCHEN PRINCE, P.C
525 Route 73 North, Suite 410
Marlton, NJ 08053
Telephone: (856) 797-9951
ADVANCED COLLECTION: Faces Rodriguez Suit Over FDCPA Violations
---------------------------------------------------------------
A class action lawsuit has been filed against Advanced Collection
Bureau, Inc., et al. The case is captioned as Yamila Rodriguez,
individually and on behalf of all others similarly situated v.
Advanced Collection Bureau, Inc., and John Does 1-25, Case No.
1:18-cv-23599-DPG (S.D. Fla., September 4, 2018).
The lawsuit arises from alleged violations of the Fair Debt
Collection Practices Act.
Advanced Collection Bureau is a debt collector based in Rockledge,
Florida.[BN]
The Plaintiff is represented by:
Justin E. Zeig, Esq.
ZEIG LAW FIRM, LLC
3595 Sheridan Street, Suite 103
Hollywood, FL 33021
Telephone: (754) 217-3084
E-mail: justin@zeiglawfirm.com
ADVOCARE INTERNATIONAL: Court Narrows Claims in Pyramid Scheme Suit
-------------------------------------------------------------------
The United States District Court for the Northern District of
Texas, Dallas Division, granted in part and denied the Motion to
Dismiss filed by Defendant AdvoCare International, L.P., in the
case captioned LISA RANIERI and MEGAN CORNELIUS, individually and
on behalf of a class of similarly situated persons v. ADVOCARE
INTERNATIONAL, LP., DANIEL McDANIEL, JENNY DONNELLY, CRYSTAL
THURBER, WES BEWLEY, DAWN FUNK, and TYLER DEBERRY. Civil Action No.
3:17-CV-0691-S. (N.D. Tex.).
This class action lawsuit arises out of allegations that AdvoCare,
a company that distributes health and nutritional products, is a
pyramid scheme. Plaintiffs Lisa Ranieri (Ranieri) and Megan
Cornelius (Cornelius) allege that AdvoCare is a pyramid scheme with
a twist because it sells participants both a product and the right
to share in the money paid by other participants.
The Plaintiff allege that both Advocate and the Individual
Defendants violated Sections 1962(c) and (d) of the Racketeer
Influenced and Corrupt Organizations Act (RICO). Plaintiffs allege
both primary RICO violations3 and conspiracy to violate RICO.
Third, they allege that AdvoCare committed federal securities
fraud. The Complaint does not indicate on which provision(s) of the
federal securities laws Plaintiffs' claims are based, Fourth,
Plaintiffs bring a claim for unjust enrichment against AdvoCare.
LEGAL STANDARDS
Rule 12(b)(6)
To defeat a motion to dismiss filed pursuant to Federal Rule of
Civil Procedure 12(b)(6), a plaintiff must plead enough facts to
state a claim to relief that is plausible on its face. To meet this
facial plausibility standard, a plaintiff must plead factual
content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.
Rule 9(b)
Because the Plaintiffs' Complaint alleges fraud, the Plaintiffs
must plead the elements of their claims with the heightened
particularity required by Rule 9(b). At a minimum, Rule 9(b)
requires allegations of the particulars of time, place, and
contents of the false representations, as well as the identity of
the person making the misrepresentation and what he obtained
thereby.
The Private Securities Litigation Reform Act (PSLRA)
The PSLRA has raised the pleading bar even higher and enhances Rule
9(b)'s particularity requirement for pleading fraud in two ways.
First the plaintiff must specify each statement alleged to have
been misleading. Second, for each act or omission alleged to be
false or misleading, plaintiffs must state with particularity facts
giving rise to a strong inference that the defendant acted with the
requisite state of mind.
RICO Violations
RICO makes it unlawful for any person employed by or associated
with any enterprise to conduct or participate, directly or
indirectly, in the conduct of such enterprise's affairs through a
pattern of racketeering activity.
To plead a RICO conspiracy claim, a plaintiff must show: (1) an
agreement between two or more people to commit a substantive RICO
offense; and (2) that defendants knew of and agreed to the overall
objective of the RICO offense.
Advocare spends no more than a single footnote contesting the
merits of Plaintiffs' RICO claims. In discussing the Plaintiffs'
securities fraud claims, AdvoCare argues that the Complaint's
failure to adequately allege scienter also dooms Plaintiffs' RICO
claims. Civil RICO claims based on mail and wire fraud violations
require allegations that the defendants acted with the specific
intent to deceive or to defraud. AdvoCare's cursory argument fails
to account for the differences between RICO scienter allegations
and securities fraud scienter allegations.
The Court finds that the Plaintiffs' scienter allegations are
sufficient.
Regarding the Plaintiffs' RICO conspiracy claim, Plaintiffs have
not sufficiently pleaded that AdvoCare knew of or agreed to the
overall objective of the RICO offense. The core of a RICO civil
conspiracy is an agreement to commit predicate acts, and the
plaintiff must allege specifically such an agreement. Direct
evidence of agreement is unnecessary and proof of such an agreement
may rest upon inferences drawn from relevant and competent
circumstantial evidence . Plaintiffs have provided insufficient
evidence of any sort of agreement.
Securities Fraud
Rule 10b-5(b), promulgated under Section 10(b), pertains to
deceptive statements and omissions. To state a claim under Rule
10b-5(b), a plaintiff must allege, in connection with the purchase
or sale of securities, (1) a misstatement or omission (2) of
material fact (3) made with scienter (4) on which the plaintiff
relied (5) that proximately caused the plaintiff's injury.
The Plaintiffs argue that this statement is misleading because it
does not inform Distributors that retail sales are not actually a
viable source of income. Plaintiffs argue that this statement is
misleading because it fails to inform Distributors that very few
Distributors are likely to earn any profit from participating in
AdvoCare, regardless of how much work they put in and regardless of
what part of the country they live in.
AdvoCare argues that the Plaintiffs' pleadings fall short as to
three elements of a Rule 10b-5(b) claim: materiality, reliance, and
scienter. As to materiality, AdvoCare argues that the Retail
Statement is not misleading when read in context.
The Court disagrees.
However, the Court reaches a different conclusion with regard to
the Effort Statement. The Plaintiffs attack this statement on the
ground that it does not indicate that very few Distributors are
likely to earn any profit, but the statement does not contain any
express or implied promise of a profit. Thus, it does not conflict
with the alleged actual state of affairs. Thus, while the Retail
Statement satisfies the materiality requirement, the Effort
Statement does not.
Next, AdvoCare argues that the Plaintiffs have not adequately
alleged reliance. Reliance generally requires that the plaintiff
have known of the particular misrepresentation, have believed it to
be true, and because of that knowledge and belief purchased or sold
the security in question.
The Plaintiffs argue that they are entitled to a presumption of
reliance because AdvoCare represents that it is a legal multi-level
marketing program, when it is in fact a fraudulent pyramid scheme.
However, Torres is a RICO case, and RICO does not always require
proof of first-party reliance. Securities fraud, by contrast,
expressly requires a showing of reliance. This Court declines to
extend the Tories presumption of reliance to the securities fraud
context. Without the assistance of a presumption, the Court finds
that Plaintiffs' pleadings are inadequate to show that they relied
on any alleged misrepresentations.
Finally, as to scienter, AdvoCare argues that Plaintiffs'
allegations fail because they do not link any specific individual
to any of the challenged statements. Further, AdvoCare argues that
where Plaintiffs did plead scienter, they did so in a conclusory
fashion. The required state of mind for scienter is "an intent to
deceive, manipulate, defraud, or severe recklesness.
First, the Plaintiffs argue that, because the statements at issue
come from AdvoCare's Policies, the statements should be attributed
to AdvoCare. However, internal policies are distinguishable from
the public disclosures at issue in Southland. Further, the
Southland court knew which individual defendants made the
complained-of statements and knew that the defendants were
executive officers of the corporate defendant] whose actions were
intended to benefit the corporate defendant. In the instant case,
Plaintiffs have not provided the Court with the identity of the
individuals responsible for creating AdvoCare's Policies.
Second, the Plaintiffs rely on an out-of-circuit case to argue that
it is possible to draw a strong inference of corporate scienter
without being able to name the individuals who concocted and
disseminated the fraud. The Tellabs court created this exception
for situations in which an announcement is issued that is so
dramatic that it would have been approved by corporate officials
sufficiently knowledgeable about the company to know that the
announcement was false. Courts applying the Tellabs exception
within the Fifth Circuit have interpreted it narrowly.
In the instant case, the Court finds that the allegedly false or
misleading statements are not sufficiently dramatic that the
statements should be attributed to AdvoCare.
Finally, the Plaintiffs argue that the persons in AdvoCare's
management responsible for the text of the Policies knew that the
statements about retail sales were misleading because they knew
that (1) sales of retail products rarely happen; (2) the real
purpose of AdvoCare is to re-allocate Distributors' money; and (3)
all but a small percentage of Distributors will be net losers.
Without evidence of who those persons are, however, the Court
cannot conduct a scienter analysis.
Thus, the Court grants AdvoCare's Motion to Dismiss as to
Plaintiffs' Rule 10b-5(b) claim.
Unjust Enrichment
The Plaintiffs' final cause of action is for unjust enrichment. The
parties dispute whether unjust enrichment is an independent cause
of action in Texas.
Courts in the Northern District of Texas tend to agree that unjust
enrichment is not a standalone cause of action, finding instead
that it is a theory of liability that a plaintiff can pursue
through several equitable causes of action. The reasoning of these
courts is persuasive, and this Court adopts their approach.
Therefore, the Court dismisses Plaintiffs' unjust enrichment claim
with prejudice.
The Court grants in part and denies in part both motions to
dismiss. The Court denies both motions with regard to the argument
that the PSLRA bars Plaintiffs' RICO causes of action, and the
Court denies AdvoCare's motion to dismiss Plaintiffs' claims
predicated on primary RICO violations. In all other respects, both
motions are granted. The Court grants AdvoCare's motion to dismiss
Plaintiffs' RICO conspiracy claim, securities fraud claim
predicated on Rule 10b-5(b), and unjust enrichment claim.
The Court dismisses the Plaintiffs' unjust enrichment cause of
action with prejudice.
A full-text copy of the District Court's August 27, 2018 Memorandum
Opinion and Order is available at https://tinyurl.com/y76v8eva from
Leagle.com.
Lisa Ranieri & Megan Cornelius, Plaintiffs, represented by J.
Benjamin King -- bking@rctlegal.com -- Reid Collins & Tsai LLP &
Randall Adam Swick -- aswick@rctlegal.com -- Reid Collins & Tsai
LLP.
Advocare International LP, Defendant, represented by Thomas M.
Melsheimer -- tmelsheirmer@winston -- Winston & Strawn LLP, John
C.C. Sanders, Jr. -- jsanders@winston.com -- Winston & Strawn LLP,
Rex Andrew Mann -- rmann@winston.com -- Winston & Strawn LLP &
Steven H. Stodghill , Fish & Richardson.
Daniel McDaniel, Jenny Donnelly, Crystal Thurber, Wes Bewley, Dawn
Funk & Tyler Deberry, Defendants, represented by Michael S. Catlett
-- michael.catlett@quarles.com -- Quarles & Brady LLP, pro hac
vice, E. Sawyer Neely -- sneely@swtriallaw.com -- Sayles Werbner,
Edward A. Salanga -- edward.salanga@quarles.com -- Quarles & Brady
LLP, pro hac vice, Joshua Maggard -- joshua.maggard@quarles.com -
Quarles & Brady, pro hac vice, Kevin Duffy Quigley --
kevin.quigley@quarles.com -- Quarles & Brady LLP, pro hac vice &
Mark S. Werbner -- mwerbner@swtriallaw.com -- Sayles Werbner.
AGRI STATS: Faces Allison Suit over Price Fixing of Pork
--------------------------------------------------------
JEFFREY ALLISON, individually and on behalf of all others similarly
situated, Plaintiffs v. AGRI STATS, INC.; CLEMENS FOOD GROUP, LLC;
HORMEL FOODS CORPORATION; INDIANA PACKERS CORPORATION; JBS USA FOOD
COMPANY; SEABOARD FOODS, LLC; SMITHFIELD FOODS, INC.; TRIUMPH
FOODS, LLC; and TYSON FOODS, INC., Defendants, Case No.
0:18-cv-02337 (Minn. Dist., Aug. 9, 2018) alleges violation of the
Sherman act over price fixing of pork.
The Plaintiff alleges in the complaint that the Defendants entered
into a conspiracy from at least 2009 to the present to fix, raise,
maintain and stabilize the price of pork. The principal, but not
exclusive, method by which the Defendants implemented and executed
their conspiracy was by coordinating their output and limiting
production with the intent and expected result of increasing pork
prices in the United States. In furtherance of their conspiracy,
the Defendants exchanged detailed, competitively sensitive, and
closely guarded non-public information about prices, capacity,
sales volume and demand through their co-conspirator Agri Stats.
Agri Stats, Inc. was founded in 1985. The company's line of
business includes providing accounting, bookkeeping, and related
auditing services.[BN]
The Plaintiffs are represented by:
Daniel E. Gustafson, Esq.
Daniel C. Hedlund, Esq.
Michelle J. Looby, Esq.
Joshua J. Rissman, Esq.
GUSTAFSON GLUEK PLLC
120 South 6th Street, Suite 2600
Minneapolis, MN 55402
Telephone: (612) 333-8844
Facsimile: (612) 339-6622
E-mail: dgustafson@gustafsongluek.com
dhedlund@gustafsongluek.com
mlooby@gustafsongluek.com
jrissman@gustafsongluek.com
- and -
Steve W. Berman, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1918 Eighth Avenue, Suite 3300
Seattle, WA 98101
Telephone: (206) 623-7292
Facsimile: (206) 623-0594
E-mail: steve@hbsslaw.com
- and -
Shana E. Scarlett, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
715 Hearst Avenue, Suite 202
Berkeley, CA 94710
Telephone: (510) 725-3000
Facsimile: (510) 725-3001
E-mail: shanas@hbsslaw.com
- and -
Elizabeth A. Fegan, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
455 N. Cityfront Plaza Drive, Suite 2410
Chicago, IL 60611
Telephone: (708) 628-4949
Facsimile: (708) 628-4950
E-mail: beth@hbsslaw.com
- and -
Kevin Landau, Esq.
Miles Greaves, Esq.
TAUS CEBULASH & LANDAU, LLP
80 Maiden Lane, Suite 1204
New York, NY 10038
Telephone: (212) 931-0704
Facsimile: (212) 931-0703
AGRI STATS: Faces Anderson et al. Suit over Price Fixing of Pork
----------------------------------------------------------------
MICHAEL ANDERSON; DUNCAN BIRCH; THOMAS COSGROVE; ROBERT ECCLES; and
REBECCA GREEN WATSON, individually and on behalf of all others
similarly situated, Plaintiffs v. AGRI STATS, INC.; CLEMENS FOOD
GROUP, LLC; HORMEL FOODS CORPORATION; INDIANA PACKERS CORPORATION;
JBS USA FOOD COMPANY; SEABOARD FOODS, LLC; SMITHFIELD FOODS, INC.;
TRIUMPH FOODS, LLC; and TYSON FOODS, INC., Defendants, Case No.
0:18-cv-02338 (Minn. Dist., Aug. 9, 2018) alleges violation of the
Sherman act over price fixing of pork.
The Plaintiff alleges in the complaint that the Defendants entered
into a conspiracy from at least 2009 to the present to fix, raise,
maintain and stabilize the price of pork. The principal, but not
exclusive, method by which the Defendants implemented and executed
their conspiracy was by coordinating their output and limiting
production with the intent and expected result of increasing pork
prices in the United States. In furtherance of their conspiracy,
the Defendants exchanged detailed, competitively sensitive, and
closely guarded non-public information about prices, capacity,
sales volume and demand through their co-conspirator Agri Stats.
Agri Stats, Inc. was founded in 1985. The company's line of
business includes providing accounting, bookkeeping, and related
auditing services.[BN]
The Plaintiff is represented by:
Daniel E. Gustafson, Esq.
Daniel C. Hedlund, Esq.
Michelle J. Looby, Esq.
Joshua J. Rissman, Esq.
GUSTAFSON GLUEK PLLC
120 South 6th Street, Suite 2600
Minneapolis, MN 55402
Telephone: (612) 333-8844
Facsimile: (612) 339-6622
E-mail: dgustafson@gustafsongluek.com
dhedlund@gustafsongluek.com
mlooby@gustafsongluek.com
jrissman@gustafsongluek.com
- and -
Steve W. Berman, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1918 Eighth Avenue, Suite 3300
Seattle, WA 98101
Telephone: (206) 623-7292
Facsimile: (206) 623-0594
E-mail: steve@hbsslaw.com
- and -
Shana E. Scarlett, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
715 Hearst Avenue, Suite 202
Berkeley, CA 94710
Telephone: (510) 725-3000
Facsimile: (510) 725-3001
E-mail: shanas@hbsslaw.com
- and -
Elizabeth A. Fegan, Esq.
HAGENS BERMAN
SOBOL SHAPIRO LLP
455 N. Cityfront Plaza Drive, Suite 2410
Chicago, IL 60611
Telephone: (708) 628-4949
Facsimile: (708) 628-4950
E-mail: beth@hbsslaw.com
- and -
Fred T. Isquith, Sr., Esq.
Thomas H. Burt, Esq.
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP
270 Madison Ave.
New York, NY 10016
Telephone: (212) 545-4600
Facsimile: (212) 686-0114
E-mail: isquith@whafh.com
burt@whafh.com
- and -
Carl V. Malmstrom, Esq.
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC
70 W. Madson St., Suite 1400
Chicago, IL 60602
Telephone: (312) 984-0000
Facsimile: (312) 214-3110
E-mail: malmstrom@whafh.com
AIMBRIDGE HOSPITALITY: Rivera Suit Removed to M.D. Florida
----------------------------------------------------------
The class action lawsuit entitled Rivera v. Aimbridge Hospitality,
LLC, Case No. 18CA7870, was removed on September 4, 2018, from the
13th Judicial Circuit in and for Hillsborough County, Florida, to
the U.S. District Court for the Middle District of Florida (Tampa).
The District Court Clerk assigned Case No. 8:18-cv-02192-EAK-JSS
to the proceeding.
The lawsuit arises from an alleged data breach.
Aimbridge Hospitality, LLC, is headquartered in Plano, Texas, but
does substantial business in Florida. Aimbridge is the nation's
largest independent hotel investment and management firm.
Aimbridge provides management, asset management, development,
renovation and consulting services. Aimbridge currently owns
and/or manages approximately 700 upscale, independent and branded
hotels with approximately 85,000 rooms across the United States and
the Caribbean, including such affiliations as Marriott, Hilton,
Embassy Suites, DoubleTree, Hilton Garden Inn, Hampton Inn &
Suites, Aloft, Hyatt, Wyndham, Choice Hotels and the Phoenix Inn
Suites chain of hotels.[BN]
Plaintiff Arinda Rivera, on behalf of herself and on behalf of all
others similarly situated, is represented by:
Brandon J. Hill, Esq.
Luis A. Cabassa, Esq.
WENZEL FENTON CABASSA, PA
1110 N Florida Ave., Suite 300
Tampa, FL 33602-3343
Telephone: (813) 224-0431
Facsimile: (813) 229-8712
E-mail: bhill@wfclaw.com
lcabassa@wfclaw.com
Defendant Aimbridge Hospitality, LLC, is represented by:
Francis Morton McDonald, Jr., Esq.
Sarah Anne Long, Esq.
MCDONALD TOOLE WIGGINS, PA
111 N Magnolia Ave., Suite 1200
Orlando, FL 32801
Telephone: (407) 246-1800
Facsimile: (407) 246-1895
E-mail: fmcdonald@mtwlegal.com
slong@mtwlegal.com
AK STEEL: Court Grants Preliminary Approval of Class Settlement
---------------------------------------------------------------
The United States District Court for the Eastern District of
Michigan, Southern Division, granted preliminary approval of the
class action settlement in the case captioned TERRY NELSON, ROBERT
SECRETE, KEVIN FORD and THOMAS LAREAU, on behalf of themselves and
a similarly situated class, U.S. THE INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA
(UAW and its LOCAL 600, Plaintiffs, v. AK STEEL CORPORATION,
Defendant. Case No. 2:17-cv-14209. (E.D. Mich.).
The Court granted preliminary approval of the settlement,
conditionally certified the Class pursuant to Rule 23(a) and
23(b)(1) and (2) of the Federal Rules of Civil Procedure,
conditionally appointed Class Representatives and class counsel.
The following class is conditionally certified:
Current and future hourly retirees who are or were represented
by the UAW in collective bargaining in Dearborn, MI and:(1) who
retired from AK Steel, or from Severstal North America, Inc.,
Severstal Dearborn, Inc., and/or Severstal Dearborn, LLC (together,
Severstal NA), on or after January 30, 2004; or (2) who may in the
future retire from AK Steel or its successors; and the surviving
spouses of the retirees and the future retirees.
The Class does not include hourly employees of AK Steel or its
successors hired on or after January 1, 2018, nor does it include
the surviving spouses of such employees.
The Court approves the terms of the proposed settlement and finds
that it is, in all respects, fair, reasonable, and adequate. The
Defendant shall provide the agreed upon settlement benefit plan,
with the agreed upon Company contributions and Class member monthly
premiums, as set forth in the settlement, effective on January 1,
2019 or as soon thereafter as administratively feasible.
A full-text copy of the District Court's August 23, 2018 Order is
available at https://tinyurl.com/y7uzkumc from Leagle.com.
Terry Nelson, Robert Secrete, Kevin Ford & Thomas Lareau,
Plaintiffs, represented by Lisa M. Smith --
lsmith@michworkerlaw.com -- McKnight, Canzano, Smith, Radtke &
Brault, P.C.
INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA & UAW Local 600, Plaintiffs,
represented by Stuart M. Israel -- israel@legghioisrael.com --
Legghio & Israel, P.C.
AK Steel Corporation, Defendant, represented by Andrea M. Johnson
-- ajohnson@zacfirm.com -- Zausmer, Kaufman & Gregory P. Rogers --
rogers@taftlaw.com -- Taft, Stettinius.
ALBERTSONS COS: Bid to Bifurcate Discovery in Renvall Suit Denied
-----------------------------------------------------------------
In the case, KATIE RENVALL, individually and on behalf of all
others similarly situated, Plaintiff, v. ALBERTSONS COMPANIES,
INC., Defendant, Case No. 3:18-cv-00809-H-NLS (S.D. Cal.), Judge
Marilyn L. Huff of the U.S. District Court for the Southern
District of California denied Albertsons'a motion to bifurcate
discovery and partially stay the case.
The putative class action arises under the Telephone Consumer
Protection Act ("TCPA"). Renvall alleges that she received an
illegal unsolicited text message from Albertsons on March 15, 2018.
She seeks to recover statutory damages for herself and on behalf
of a class of persons who received similar text messages between
2014 and 2018.
On June 8, 2018, Albertsons filed a motion to bifurcate discovery
and partially stay the case. Renvall opposed the motion on July
24, 2018, and Albertsons replied on July 27, 2018.
Albertsons contends that it was not the "maker" of the text message
sent to Renvall, as that term is defined by federal law. In the
motion, Albertsons asks the Court to bifurcate discovery solely on
the discrete and dispositive issue of whether Albertsons is the
'maker' of the text the Plaintiff received, and to stay the
remainder of the case. In other words, Albertsons wishes to forgo
any class proceedings unless and until Renvall survives a summary
judgment motion on her individual claim.
After considering the parties' respective arguments and relevant
legal authorities, Judge Huff concludes that bifurcating discovery
would not substantially improve the efficiency of the litigation,
and denied the motion. However, she agrees with Albertsons that it
is desirable to ascertain as early as possible whether Renvall's
individual claim is viable. She accordingly ordered the parties to
meet and confer, and work and good faith to prioritize discovery
related to whether Albertsons was the "maker" of the text message
sent to Renvall on March 15, 2018. At a minimum, the parties must
exchange all discovery relevant to this issue by Oct. 1, 2018. The
Judge referred any disputes related to compliance with the Order,
and any discovery disputes in general, to the Hon. Nita L. Stormes
for disposition in the first instance.
A full-text copy of the Court's Aug. 1, 2018 Order is available at
https://bit.ly/2QlqOtW from Leagle.com.
Katie Renvall, individually and on behalf of all others similarly
situated, Plaintiff, represented by Francis A. Bottini, Bottini &
Bottini, Inc. & Frank S. Hedin, Hedin Hall LLP.
Albertsons Companies, Inc., formerly doing business as, Defendant,
represented by Mark S. Eisen -- meisen@beneschlaw.com -- Benesch
Friedlander Coplan & Aronoff LLP.
ASSOCIATED BUILDING: Urbino Moves for FLSA Class Certification
--------------------------------------------------------------
The Plaintiff in the lawsuit captioned CESAR URBINO, on behalf of
himself and other persons similarly situated v. ASSOCIATED BUILDING
SERVICES, LLC, and TROY STRAHAN, Case No. 2:18-cv-04006-SM-JCW
(E.D. La.), moves for conditional class certification, judicial
notice, and for disclosure of the names and addresses of potential
"opt-in" plaintiffs.
The action arises from a "generally applicable rule, policy, or
practice" pursuant to the Fair Labor Standards Act.
Associated Building Services, LLC., established in 2003, has over
35 years experience providing quality janitorial services in the
Gulf South.
The Plaintiff is represented by:
Roberto Luis Costales, Esq.
William H. Beaumont, Esq.
Emily A. Westermeier, Esq.
Jonathan Mille Kirkland, Esq.
BEAUMONT COSTALES LLC
3801 Canal Street, Suite 207
New Orleans, LA 70119
Telephone: (504) 534-5005
Facsimile: (504) 272-2956
E-mail: costaleslawoffice@gmail.com
whbeaumont@gmail.com
eaw@beaumontcostales.com
jmk@beaumontcostales.com
AUSTRALIA: Class Action Mulled Over Newcastle Light Rail Work
-------------------------------------------------------------
Michael Parris, writing for Newcastle Herald, reports that lawyers
for traders claiming they have been affected by Newcastle light
rail construction say the state government has failed in its duty
of care to the businesses.
Mitry Lawyers partner Richard Mitry was in Newcastle on Aug. 11
signing up potential claimants in a class action being organised by
Sydney businesswoman and politician Angela Vithoulkas.
The government initially intended to complete the light rail work
in stages but changed its mind at the end of last year and shut
down about 1.5 kilometres of Hunter and Scott streets to finish the
project sooner.
Mr Mitry said this decision had unfairly affected business owners'
revenue.
"In this case, the authority, the government . . . owed a duty of
care to the businesses," he told the Newcastle Herald.
"We're saying they failed in that duty by not managing it properly
in any way and they should have known -- what's known as reasonable
foreseeability – that what would happen would be the damage that
has now occurred to these businesses.
"And by blocking out such a large part in one hit, without really
managing it in any way, ripping up footpaths, ripping up roads,
they've caused that damage and they should be liable by reason of
their failure to comply with their duty of care."
Mr Mitry said the government's assurances that it would stage the
construction and not block access to shops "indicates what they
considered their duty to be".
"If they're telling people that ‘we won't impede your access',
you could infer from that what they were saying is that they
considered they had a duty not to impede the access to
businesses."
The government has repeatedly rejected Newcastle traders' requests
for compensation because the project is running on time. It has
also argued that the traders will benefit greatly from the light
rail line and city beautification works when the trams start
running early next year.
Asked whether it rejected the lawyer's assertions, Transport for
NSW said on Aug. 12: "Construction is progressing well on Newcastle
Light Rail, with around 40 percent of the on-road route reopened to
traffic, and testing due to start on tracks later this year after
the arrival of the first tram.
"Services are on track to start early next year, and it's the
businesses on the light rail alignment that will see the biggest
uplift from the NSW Government's $650 million investment in the
city."
Mr Mitry said he had spoken to third-party litigation funders about
financing the lawsuit and would go back to them once the businesses
owners had completed registration forms detailing their losses.
He said he planned to file a similar class suit in Sydney soon, but
that action would remain separate from Newcastle's. [GN]
AUSTRALIA: Newcastle Traders Gather to Hear Class Action Plan
-------------------------------------------------------------
Michael Parris, writing for Newcastle Herald, reports that the last
thing Newcastle's inner-city traders need right now are empty
promises.
About 50 of them gathered at Customs House on Aug. 11 to hear
Sydney businesswoman and state Upper House hopeful Angela
Vithoulkas outline plans for a class action against the state
government after more than seven months of light rail disruption in
the CBD.
Ms Vithoulkas, who is a City of Sydney councillor and will contest
the NSW election in March under the banner of her own Small
Business Party, said she was there to fight for the Newcastle
traders.
Most of those present signed registration forms with the group of
lawyers she brought from Sydney. She also arrived with her own team
of helpers decked out in black "Save Small Business" T-shirts.
At the end of her speech she urged the crowd to vote for her in
March. Novocastrians are traditionally cynical about anyone with a
political pitch, but the traders gave her an enthusiastic
reception. They even clapped the lawyer.
These business people clearly want someone on their side after
months of feeling neglected, and Ms Vithoulkas is a feisty
advocate.
She has started a similar class action in Sydney and is waging a
campaign on behalf of 23 north coast road subcontractors left out
of pocket when construction firm Ostwald Bros went bust last year.
She is staking her political reputation on being able to help small
business, and she will hope the lawyers can get a result in the
Sydney and Newcastle class actions.
Both cases are relying on third-party litigation funders to stump
up the money to fight the government and absorb the risk of an
adverse ruling on costs if they lose. If they win, the lawyers and
funders likely will take a large share of the payout.
The twin cases -- if indeed they proceed -- will be closely watched
in political and legal circles, especially with an election looming
and the government facing multiple lawsuits from light rail
contractors in Sydney.
The government will no doubt argue that it is obliged to build
infrastructure to benefit its constituents and should be free to do
so without fear of being sued. The class-action lawyers argue the
state has mismanaged both projects and caused foreseeable harm.
Whatever the outcome, the fallout from the government's decision to
run trams down Hunter Street and not the old rail corridor promises
to continue. [GN]
BAYER: Aware of Impending Class Action Over Essure Implant
----------------------------------------------------------
Belinda Tasker, writing for news.com.au, reports that Australian
women who've suffered severe complications from the contraceptive
implant Essure are joining a class action against pharmaceutical
giant Bayer which manufactured the device.
Dozens of women have contacted law firm Slater and Gordon, which
hopes to take the case to court before Christmas.
The device was recalled by Bayer in May 2017 after many women
suffered severe side effects including irregular periods, pelvic or
abdominal pain, reduced libido, and pain during intercourse.
Tanya Davidson, a mum of four from Swan Hill in Victoria, has
joined the class action after enduring "eight years of hell" with
the implant.
She says she suffered severe side effects including hair loss,
severe menstrual bleeding, chronic fatigue and stabbing ovarian
pain before being diagnosed with a nickel allergy.
Doctors removed her implant in early 2016, but because the device
broke during the procedure she needed to have a hysterectomy six
months later because of damage caused by implant fragments.
"For years doctors told me that the symptoms were in my head and
that they couldn't be related to the device," Ms Davidson said.
"I know there must be other women out there who are in the same
boat and I want them to know they are not alone."
Lawyer Ebony Birchall said hundreds of women are thought to have
been affected and they are being urged to join the class action.
"A lot of women have said to us that they suffered for years and
didn''t realise it was the Essure device was the problem," she told
AAP.
"Many of their symptoms have gone away after they had the product
removed."
The implant, which has been recalled from sale around the world,
features a metal coil which expands to anchor the device in the
fallopian tube.
However it corroded inside some women, exposing them to nickel
poisoning, and causing problems with their uterus and other
organs.
Ms Birchall said some women had developed nickel toxicity as a
result of the implant, while others had discovered the device had
migrated into their uterus.
Bayer won't say how many Australian women were fitted with the
device, saying the information was "commercial in confidence" but
there is speculation that it could be up to 5000.
Bayer said it was aware of the impending class action and would
consider any legal claim.
"Patient safety is of the utmost importance to Bayer, and we are
always saddened to hear of anyone experiencing an adverse event
with any medical device," Bayer said.
"Bayer respects the rights of every individual to seek legal advice
and take such further action as they may be advised."
Slater and Gordon said the class action is open to all women who
have suffered complications as a result of an Essure implant.
Other legal cases involving the Essure implants are underway in
Canada, Britain and the US. [GN]
BLACK HILLS: January Jury Trial Set in Insurance Class Action
-------------------------------------------------------------
Victoria Wicks, writing for SDPB Radio, reports that a jury trial
has been set for January in a class-action lawsuit against Black
Hills Federal Credit Union and the Credit Union National
Association, or CUNA. Those agencies are accused of changing
policies and raising rates for death or disability insurance
without adequate notice to more than four thousand borrowers.
The suit has been going on for years. It was first filed in 2011.
In August 2013, the South Dakota Supreme Court issued an opinion
that a class action could commence. [GN]
BLACKROCK INSTITUTIONAL: Plaintiffs Can File SAC in Securities Suit
-------------------------------------------------------------------
The United States District Court for the Northern District of
California granted Plaintiffs' Motion for Leave to File a Second
Amended Complaint in the case captioned CHARLES BAIRD, et al.,
Plaintiffs, v. BLACKROCK INSTITUTIONAL TRUST COMPANY, N.A., et al.,
Defendants. Case No. 17-cv-01892-HSG. (N.D. Cal.).
This is a putative class action brought pursuant to Sections
502(a)(2) and (a)(3) of the Employee Retirement Income Security Act
of 1974, (ERISA), in which the Plaintiffs allege that the
Defendants violated their fiduciary duties and engaged in
prohibited transactions by choosing high-cost and poor-performing
investments options for the BlackRock retirement plan. Plaintiffs
allege that Defendants gave preferential treatment to their own
BlackRock products.
LEGAL STANDARD
The party seeking to amend a pleading after expiration of the
deadline set by the pretrial scheduling order must satisfy the good
cause standard of Federal Rule of Civil Procedure 16(b)(4), which
provides that a schedule may be modified only for good cause and
with the judge's consent,' rather than the liberal standard of
Federal Rule of Civil Procedure 15(a).
As fact discovery has not yet completed, the class certification
hearing date is set for April 4, 2019, and no trial date has been
set, the Court sees no undue prejudice to Defendants that will
result from the Plaintiffs' amendments. The Court agrees with the
Plaintiffs that the proposed amendments do not fundamentally alter
the nature of their claims. Finally, the Court is not persuaded by
the Defendants' argument regarding the futility of the motion. The
Defendants' substantive challenges to the Plaintiffs' theory are
appropriately addressed on their merits, and do not warrant denial
of the motion for leave to amend.
For these reasons the Court grants the Plaintiffs' motion. The SAC
must be filed within two days from the date of this Order. Once the
SAC is filed, the pending motion to dismiss the FAC, will be
terminated as moot.
A full-text copy of the District Court's August 23, 2018 Order is
available at https://tinyurl.com/yb9qrhd4 from Leagle.com.
Charles Baird, individually, and on behalf of all others similarly
situated, and on behalf of the BlackRock Retirement Savings Plan,
Plaintiff, represented by Nina Rachel Wasow, Feinberg, Jackson,
Worthman & Wasow LLP, Daniel Ryan Sutter, Cohen Milstein Sellers
and Toll, PLLC, pro hac vice, Julia Horwitz, Cohen Milstein Sellers
Toll, Julie S. Selesnick, Cohen Milstein Sellers & Toll, PLLC,
Karen L. Handorf, Cohen Milstein Sellers and Toll PLLC, pro hac
vice, Mary Joanne Bortscheller, Cohen Milstein Sellers Toll PLLC,
Michelle C. Yau, Cohen Milstein Sellers & Toll PLLC, pro hac vice &
Todd F. Jackson, Feinberg, Jackson, Worthman and Wasow LLP.
Lauren Slayton, Plaintiff, represented by Nina Rachel Wasow ,
Feinberg, Jackson, Worthman & Wasow LLP, Daniel Ryan Sutter , Cohen
Milstein Sellers and Toll, PLLC, pro hac vice, Julia Horwitz ,
Cohen Milstein Sellers Toll & Mary Joanne Bortscheller , Cohen
Milstein Sellers Toll PLLC.
BlackRock Institutional Trust Company, N.A., Blackrock, Inc., The
BlackRock, Inc. Retirement Committee & The Investment Committee of
the Retirement Committee, Defendants, represented by Brian David
Boyle , O'Melveny Myers LLP, Adam Manes Kaplan , O'Melveny & Myers
LLP, Meaghan McLaine VerGow , OMelveny and Myers LLP, Michael John
McCarthy , O'Melveny & Myers LLP & Randall W. Edwards , O'Melveny &
Myers LLP.
Catherine Bolz, Chip Castille, Paige Dickow, Daniel A. Dunay,
Jeffrey A. Smith, Anne Ackerley, Any Engel, Nancy Everett, Joseph
Feliciani, Jr., Ann Marie Petach, Michael Fredericks, Corin Frost,
Daniel Gamba, Kevin Holt, Chris Jones, Philippe Matsumoto, John
Perlowski, Andy Phillips, Kurt Schansinger & Tom Skrobe,
Defendants, represented by Brian David Boyle , O'Melveny Myers LLP,
Randall W. Edwards , O'Melveny & Myers LLP, Meaghan McLaine VerGow
, OMelveny and Myers LLP & Michael John McCarthy , O'Melveny &
Myers LLP.
Amy Engel, Defendant, represented by Brian David Boyle , O'Melveny
Myers LLP & Meaghan McLaine VerGow , OMelveny and Myers LLP.
BLARNEY ENTERPRISES: Bartenders Hit Illegal Tip Pool
----------------------------------------------------
Morgan Kulchawik, Austin Ives and Bernadette Balek, on behalf of
themselves and those similarly situated, Plaintiffs, v. Blarney
Enterprises, Inc., Defendant, Case No. 18-cv-05962, (N.D. Ill.,
August 30, 2018), seeks to recover minimum wages under the Fair
Labor Standards Act and the Illinois Minimum Wage Law.
Defendant operates the Port of Blarney Bar and Restaurant in
Antioch, Illinois, in Lake County where Kulchawik, Ives and Balek
worked as bartenders. Defendants illegally took out a tip credit
from the Plaintiffs who were paid below the minimum wage rates,
says the complaint. [BN]
The Plaintiff is represented by:
Kenneth E. Kraus, Esq.
KEN KRAUS LAW, LLC
215 Glen Hollow Road
Madison, WI 53705
Tel: 312.420.7292
Email: ken@kenkrauslaw.com
- and -
Luke DeGrand, Esq.
Tracey Wolfe, Esq.
DEGRAND & WOLFE, P.C.
20 South Clark Street, Suite 2620
Chicago, IL 60603
Tel: (312) 236-9200
Email: ldegrand@degrandwolfe.com
twolfe@degrandwolfe.com
BUCKINGHAM COAL: Fails to Pay OT to Scoop Operators, Cozort Says
----------------------------------------------------------------
FLOYD COZORT, individually and on behalf of all others similarly
situated, Plaintiff v. BUCKINGHAM COAL CO., LLC; and WESTMORELAND
RESOURCE PARTNERS, LP, Defendants, Case No. 2:18-cv-00814-MHW-CMV
(S.D. Ohio, Aug. 9, 2018) seeks to recover from the Defendants
unpaid overtime compensation under the Fair Labor Standards Act.
Plaintiff was employed by the Defendants as scoop operator from
September 26, 2003 until March 8, 2018.
Buckingham Coal Company was founded in 1981. The Company's line of
business includes providing coal mining services. [BN]
The Plaintiff is represented by:
Sharon Cason-Adams, Esq.
ADAMS & LIMING, L.L.C.
1335 Dublin Road, Suite 104D
Columbus, OH 43215
Telephone: (614) 488-2053
Facsimile: (614) 488-2069
E-mail: sharon@adamsliming.com
CAPITAL MANAGEMENT: Bluming Sues in N.Y. Over FDCPA Violations
--------------------------------------------------------------
A class action lawsuit has been filed against Capital Management
Services, L.P. The case is styled as Avrohom Bluming, on behalf of
himself and all other similarly situated consumers v. Capital
Management Services, L.P., Case No. 1:18-cv-04998 (E.D.N.Y.,
September 4, 2018).
The Plaintiff filed the case under the Fair Debt Collection
Practices Act.
Capital Management Services L.P. operates as a collections agency,
and provides delinquent receivables resolutions. The Company
monitors and tracks debt collection laws, state licensing, company
profile, and client contractual expectations.[BN]
The Plaintiff is represented by:
Adam Jon Fishbein, Esq.
ADAM J. FISHBEIN, P.C.
735 Central Avenue
Woodmere, NY 11598
Telephone: (516) 668-6945
E-mail: fishbeinadamj@gmail.com
CHAMPION PETFOODS: Pet Foods Contain Heavy Metals, Says Leppert
---------------------------------------------------------------
Deborah Leppert and Zachary Chernik, individually and on behalf of
all others similarly situated, Plaintiff, v. Champion Petfoods USA
Inc. and Champion Petfoods LP, Defendants, Case No. 18-cv-04347,
(N.D. Ill., June 22, 2018), seeks all available remedies, damages
and awards for breach of express and implied warranty, fraud,
negligence and for violation of the Ohio Consumer Sales Practices
Act.
Champion sells a variety of premium-priced dog foods throughout the
United States. Its dry dog food products are sold under the
"Orijen" and "Acana" brand names. Its packaging prominently states
that its products are "biologically appropriate" and contain
"fresh, regional ingredients" featuring fresh, raw or dehydrated
ingredients from minimally processed poultry, fish and eggs.
However, Plaintiff claims that they contain excessive levels of
harmful heavy metals, including arsenic, lead, cadmium, and
mercury. [BN]
Plaintiff is represented by:
Katrina Carroll, Esq.
Kyle A. Shamberg, Esq.
LITE DEPALMA GREENBERG, LLC
211 West Wacker Drive, Suite 500
Chicago, IL 60606
Telephone: 312.750.1265
Email: kcarroll@litedepalma.com
kshamberg@litedepalma.com
- and -
Rebecca A. Peterson, Esq.
Robert K. Shelquist, Esq.
LOCKRIDGE GRINDAL NAUEN PLLP
100 Washington Ave. S Ste. 2200
MPLS, MN 55401−2179
Tel: (612) 339−6900
Fax: (612) 339−0981
Email: rkshelquist@locklaw.com
rapeterson@locklaw.com
- and -
Kevin A. Seely, Esq.
Steven M. McKany, Esq.
ROBBINS ARROYO LLP
600 B Street, Suite 1900
San Diego, CA 92101
Telephone: (619) 525-3990
Facsimile: (619) 525-3991
E-mail: kseely@robbinsarroyo.com
smckany@robbinsarroyo.com
- and -
Charles J. Laduca, Esq.
CUNEO GILBERT & LaDUCA LLP
4725 Wisconsin Ave., NW, Suite 200
Washington, DC 20016
Telephone: 202-789-3960
Facsimile: 202-789-1813
Email: charles@cuneolaw.com
- and -
Glen Devalerio, Esq.
Daryl Andrews, Esq.
ANDREWS DEVALERIO LLP
265 Franklin Street, Suite 1702
Boston, MA 02110
Telephone: (617) 936-2796
Email: glen@andrewsdevalerio.com
daryl@andrewsdevalerio.com
- and -
Gustavo F. Bruckner, Esq.
Samuel J. Adams, Esq.
POMERANTZ LLP
600 Third Avenue
New York, NY 10016
Telephone: (212) 661-1100
Email: gfbruckner@pomlaw.com
sjadams@pomlaw.com
CHEMOURS: Class Action Over Water Contamination Pending
-------------------------------------------------------
Michael Futch, writing for Fayobserver, reports that "Give Us Clean
Air and Water" read a handmade sign that Rebekah Cain Saenz held up
by the side of the highway. Beside her, a fellow protester
displayed the words "Stop Chemours" from an upright placard.
Occasionally, a truck driver or motorist honked in support while
barrelling by on N.C. 87 North.
Eight people had gathered just after noon on Aug. 11 at the corner
of N.C. 87 and County Line Road, which serves as the main entrance
to the Fayetteville Works site. There, along the Cape Fear River,
Chemours and DuPont are among the three companies that produce
various products. Some of the products contain fluorochemical
compounds, which research has shown can cause cancer and disrupt
sexual development in lab animals. The health effects of one of
these compounds, GenX, on humans remain controversial.
Ms. Saenz, who is 30, is a stay-at-home mother who lives in Hope
Mills.
She's no newcomer to this cause.
She's tied to it by family.
"This is home to me. This is where I grew up," Ms. Saenz said,
referring to Pages Lake Road by Camp Dixie. "For over 100 years, my
family has had a family farm in this community. I believe clean air
and clean water are basic human rights, and I believe they have
been taken away from us."
For 38 years, DuPont (and later, spin-off Chemours) allegedly has
violated environmental and public health laws by illegally dumping
chemicals into the Cape Fear. In June 2017, the state started
investigating Chemours when news broke that researchers had
discovered GenX in the Cape Fear River downstream from the plant.
The river is a source of drinking water for much of the southeast
part of the state.
The GenX compound, which has since been found in hundreds of
private wells around the facility, has been linked to several forms
of cancer in animal studies. It's unknown if the effect is the same
on humans.
There was no immediate response from Chemours or DuPont, after a
message and reporter's business card were left with a plant
security guard seeking comment.
The companies say they have taken measures, including having GenX
incinerated off the property at Texas and installing "air
scrubbers" in their towers, to stop the emission of the
controversial GenX into the air.
In January, lawyers filed a new class action suit against DuPont
and Chemours, claiming that the two firms contaminated the river
with fluorosurfactants. That filing consolidates and updates three
class action suits filed since October by lawyers representing
thousands of people who claim they are ill or could get ill because
they drank water from the Cape Fear River and from wells
surrounding the plant. A judge in U.S. Federal District Court in
Wilmington ordered the consolidation in early January to streamline
the effort to try claims.
On Aug. 14, the U.S. Environmental Protection Agency was holding a
community engagement forum in Fayetteville from 10 a.m. to 8 p.m.
to hear from property owners and residents about GenX and other
perflourinated chemicals that have contaminated drinking water for
decades.
"That's really big," said Beth Markesino, who is director of the
nonprofit NC Stop Gen-X in Our Water. "They come to places that are
really contaminated. I'm interested in seeing how they respond to
our community and our community's needs. Are they really going to
listen to us. These chemicals are an epidemic."
On Aug. 11, not far from Ms. Saenz, stood 63-year-old Debra
Stewart. She was dressed as the Grim Reaper in black Revolutionary
War attire. She said she chose that period because it was when
freedom of speech was guaranteed to all.
Stewart lives in nearby Gray's Creek, her home since 1980.
"We found this place out here," she said, "and thought it was
paradise."
But paradise has turned into what she describes as a nightmare. She
has two wells on her property, and both are contaminated.
She has suffered health conditions, including hypothyroidism and
the loss of part of her colon, that she blames on the plant. She
has had three horses that died from heaves, the most prevalent lung
disease seen in horses. Five of her dogs died mysteriously, she
said, and a pig that drank from one of the contaminated wells was
diagnosed with testicular cancer.
"I want to shut this plant down," Ms. Stewart said, "before it
endangers anyone else."
She was waving a flag by the road that said, "Protect our land,
water, and air! Shut it down!" [GN]
CHESAPEAKE ENERGY: Settles Royalties Class Action for $7.75MM
-------------------------------------------------------------
Bill Holland, writing for S&P Global, reports that Chesapeake
Energy has agreed to end a four-year federal class-action battle
over natural gas royalties with Pennsylvania leaseholders for $7.75
million, but left the door open to walking away from the settlement
if the state's attorney general does not drop an unfair-trade
action in state court.
Chesapeake said it would set up a fund to pay an estimated 10,000
leaseholders to make up for deductions from their royalty checks
for post-production processing and pipeline costs, deductions that
in some months left the leaseholders with negative balances,
according to the settlement filed in federal court on Aug. 9. The
fund, which would pay class action lawyers up to one-third of the
settlement amount, would recoup an estimated 8% of post-production
payments for the leaseholders if US District Court Judge Malachy
Mannion approves the deal.
The leaseholders, mostly landowners in northeast Pennsylvania's
Marcellus Shale, claimed that Chesapeake and a then-affiliated
midstream company, Access Midstream Partners, inflated the costs
for gathering and transporting gas to market by sweetheart deals.
Access was spun off before Williams bought it in 2014.
Chesapeake denied that claim and insisted in the settlement
agreement that its payment practices were proper and met
Pennsylvania's legal requirements. Chesapeake said it was settling
the action to save money on legal fees.
The potential fly in the settlement's ointment is the state
attorney general's office, which has torpedoed previous settlements
by refusing to drop its case in state court, alleging
"bait-and-switch" tactics by Chesapeake.
"The private class-action settlement does not impact our case at
all," Joe Grace, spokesman for Pennsylvania Attorney General Josh
Shapiro, told the Pittsburgh Post-Gazette in an Aug. 10 story. "Our
claims against these energy companies are active and ongoing, and
they are intended to protect all Pennsylvanians against this kind
of corporate misconduct, not just one group of individuals in one
case."
The attorney general's office on Aug. 13 did not reply to questions
regarding the settlement.
The settlement would also give leaseholders an option to change
their royalty agreements. Leaseholders can keep whatever agreement
they have, with its post-production deductions, or change to an
agreement to be paid a royalty as a percentage of the index price
published by S&P Global Platts for Tennessee Gas Pipeline's Zone 4
Leg 300, a pricing point for gas delivered into the gigantic
Tennessee Gas system in Pennsylvania's Tioga and Susquehanna
counties. [GN]
CHICAGO ORNAMENTAL: Court Denies Garrido's Bid to Certify Class
---------------------------------------------------------------
The Clerk of the U.S. District Court for the Northern District of
Illinois made a docket entry on September 4, 2018, in the case
titled Rene Garrido, et al. v. Chicago Ornamental Iron, Inc., et
al., Case No. 1:17-cv-03236 (N.D. Ill.), relating to a hearing held
before the Honorable Rebecca R. Pallmeyer.
The minute entry states that:
-- Plaintiffs' motion to certification of the class is denied
without prejudice to opt−ins; and
-- Status hearing set for September 25, 2018, at 9:30 a.m.,
for purposes of setting a trial date.
CHINA AGRITECH: Drinker Biddle Attorneys Discuss Court Ruling
-------------------------------------------------------------
Michael P. Daly, Esq. -- michael.daly@dbr.com -- and Matthew M.
Morrissey, Esq. -- matthew.morrissey@dbr.com -- of Drinker Biddle &
Reath LLP, in an article for The National Law Review, wrote that
the Northern District of Illinois recently granted a motion to
decertify a class of TCPA plaintiffs in light of the U.S. Supreme
Court's decision in China Agritech, Inc. v. Resh, 138 S. Ct. 1800
(2018), which held that the equitable tolling doctrine does not
apply to successive class actions. See Practice Mgmt. Support
Servs., Inc. v. Cirque du Soleil, Inc., No. 14-2032, 2018 WL
3659349 (N.D. Ill. Aug. 2, 2018). In doing so, the court observed
that plaintiffs can no longer "wait out" a statute of limitations
and then "piggy back on an earlier, timely filed class action." Id.
at *1.
The Cirque du Soleil case was the "third successive action filed
against defendants by the same counsel . . . based on the same fax
transactions." Id. at *1. The plaintiff alleged that defendants had
advertised theatrical shows by transmitting faxes that lacked
proper opt-out instructions. Id. The plaintiff filed the case in
2014 and asserted TCPA claims arising from faxes that defendants
had allegedly sent in 2009. Id. at *2. Thus, it was undisputed that
the plaintiff had not filed the case within the applicable
four-year limitations period. Id.
The defendants moved for summary judgment and argued that the
claims were time-barred. See id. at *2. But the court denied that
motion in light of the controlling rule in the Seventh Circuit at
the time, which was that the "commencement of the original class
suit . . . toll[ed] the running of the statute of limitations for
all purported members of the class" -- regardless of whether the
class members subsequently filed an individual action or yet
another class action. Id. Earlier this year, the court granted the
plaintiff's motion for class certification. Id.
A few months later, however, the Supreme Court's decision in China
Agritech abrogated the prior Seventh Circuit rule by drawing "a
clear distinction between successive individual suits and
successive class actions." Id. at *3. The China Agritech court
explained that previous Supreme Court case law on the subject
'"addressed only putative members who wished to sue individually
after a class-certification denial."' Id. (quoting China Agritech,
138 S. Ct. at 1806). The cases "did not 'so much as hint[] that
tolling extends to otherwise time-barred class claims."' Id.
(same).
The Cirque du Soleil defendants then moved to decertify the class
and argued that the plaintiff's class claims were untimely in light
of the China Agritech holding. Id. at *1. The court granted that
motion, finding that a "straightforward application of China
Agritech . . . does not permit the maintenance of a follow-on class
action past the expiration of the statute of limitations." Id. at
*3. "Allowing the same counsel to litigate three successive class
actions over nine years," the court explained, "is exactly the
abuse of tolling that China Agritech seeks to prevent." Id. at *6.
Accordingly, the court decertified the class, leaving the plaintiff
with only its individual claim on its own behalf. [GN]
CHINA TELECOM: Has Made Unsolicited Calls, Begay Suit Alleges
-------------------------------------------------------------
MARLENE BEGAY, individually and on behalf of all others similarly
situated, Plaintiff v. CHINA TELECOM AMERICAS, CORP., Defendant,
Case No. 5:18-cv-04834 (N.D. Cal., Aug. 9, 2018) seeks to stop the
Defendants' practice of making unsolicited calls.
The Plaintiff alleges in the complaint that the Defendant or its
agents called the Plaintiff on her cellular telephone using an
autodialer and an artificial or prerecorded voice. The Plaintiff
did not give the Defendant prior express written consent to make
this call.
China Telecom Americas Corporation provides data, IP and voice
wholesale, and managed services for multinational companies,
organizations, corporations, and carriers worldwide. It serves
financial, logistics, and retail industries. China Telecom Americas
Corporation was formerly known as China Telecommunications
Corporation and changed its name to China Telecom Americas
Corporation in October 2007. The company was founded in 2000 and is
based in Herndon, Virginia. It has additional offices in Virginia,
Chicago, Los Angeles, New York, San Jose, Dallas, and Toronto.
China Telecom Americas Corporation operates as a subsidiary of
China Telecom Corp. Ltd. [BN]
The Plaintiff is represented by:
L. Timothy Fisher, Esq.
Blair E. Reed, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Telephone: (925) 300-4455
Email: ltfisher@bursor.com
breed@bursor.com
- and -
Scott A. Bursor, Esq.
BURSOR & FISHER, P.A.
888 Seventh Avenue
New York, NY 10019
Telephone: (212) 989-9113
Facsimile: (212) 989-9163
E-Mail: scott@bursor.com
CHOICE PHYSICIANS: Fleming Disputes Collection Letter Validity
--------------------------------------------------------------
Lisa Fleming, on behalf of herself and all others similarly
situated, Plaintiff, v. Choice Physicians Billing, Inc., Defendant,
Case No. 18-cv-00441, (M.D. Fla., June 22, 2018), seeks awards of
actual, compensatory, statutory and punitive damages, prejudgment
and post-judgment interest on any amounts awarded, reasonable
attorney's fees and costs, injunctive relief and such other and
further relief pursuant to the Fair Debt Collection Practices Act
and the Florida Consumer Collection Practices Act.
Plaintiff's alleged obligation arises from personal medical
services when she was involved in a vehicle collision in 2012 and
sought medical services at the Injury Treatment Center of Naples.
Defendant's February 8, 2018 letter stated that the balance of her
debt is comprised of services rendered during November 13, 2012 to
April 30, 2013 despite the applicable statute of limitations in
Florida for medical services is five years and thus no longer
enforceable by judicial means, says the complaint. [BN]
The Plaintiff is represented by:
Alex D. Weisberg
WEISBERG CONSUMER LAW GROUP, PA
5846 S. Flamingo Rd, Ste. 290
Cooper City, FL 33330
Tel: (954) 212-2184
Fax: (866) 577-0963
Email: aweisberg@afclaw.com
CHRYSLER GROUP: Court Rejects Non-Party's Bid to Intervene
----------------------------------------------------------
The United States Court of Appeals, Ninth Circuit, affirmed the
District Court's judgment denying the Center for Auto Safety's
Motion to Unseal Certain Documents and to Intervene in the case
captioned THE CENTER FOR AUTO SAFETY, Proposed Intervenor,
Movant-Appellant, v. CHRYSLER GROUP, LLC, Defendant-Appellee. No.
17-55269. (9th Cir.).
CAS, a non-party automobile safety advocacy organization, appeals
the denial of CAS's motions to unseal certain documents and to
intervene solely for that purpose.
Jacqueline Young and other purchasers of certain Dodge Durango and
Jeep Grand Cherokee vehicles brought a class action suit against
Chrysler Group, LLC n/k/a FCA US, LLC (Chrysler) for purported
defects found in power systems installed in those vehicles, known
as the Totally Integrated Power Module (TIPM).
CAS filed motions to intervene and to unseal certain records.
Chrysler opposed the motions, arguing that good cause existed for
maintaining the documents under seal and that CAS's motions should
be denied. After the district court denied CAS's motions, CAS
appealed. The Court held that because the MPI was more than
tangentially related to the merits of the case, the district
court's order should be vacated and a compelling reasons standard
should be applied.
CAS argues that the district court erred by denying its motion to
intervene. In reviewing a denial of a motion to permissively
intervene under Fed. R. Civ. P. 24(b), the Court only have
jurisdiction if the district court abused its discretion in denying
the motion. Accordingly, the Court must conduct a
cart-before-the-horse inquiry and first decide whether the district
court abused its discretion in denying the motion. If the Court
finds an abuse of discretion, we retain jurisdiction and reverse.
If there was no abuse of discretion, we dismiss for want of
jurisdiction. .
Intervention under Rule 24(b) is appropriate where independent
grounds for jurisdiction exist, a timely motion has been filed, and
a common question of law and fact exists between the proposed
intervenor's claim or defense, and the main action. No independent
jurisdictional basis need be established where, as here, a
non-party intervenor seeks to intervene solely for the purpose of
ensuring public access to court records.
Finding that no outstanding purpose remained for CAS to intervene
in the parties' lawsuit, the district court denied CAS's motion to
intervene. The Court determined that CAS's interest was adequately
represented; and concluded that the district court did not abuse
its discretion in denying CAS's motion to intervene. Accordingly,
for want of jurisdiction, the Court dismisses that portion of CAS's
appeal relating to permissive intervention.
A full-text copy of the Ninth Circuit's August 23, 2018 Memorandum
is available at https://tinyurl.com/yb7njgt2 from Leagle.com.
CORRECTIONS CORP: Confidential Witness Identity Disclosure Denied
-----------------------------------------------------------------
In the case, NIKKI BOLLINGER GRAE, Individually and on Behalf of
All Others Similarly Situated, Plaintiff, v. CORRECTIONS
CORPORATION OF AMERICA, DAMON T. HININGER, DAVID M. GARFINKLE, TODD
J. MULLENGER, and HARLEY G. LAPPIN, Defendants, Case No.
3:16-cv-2267 (M.D. Tenn.), Judge Aleta A. Trauger of the U.S.
District Court for the Middle District of Tennessee, Nashville
Division, denied CoreCivic, Inc.'s Motion to Compel Disclosure of
Identity of Plaintiff's Confidential Witness.
CoreCivic is a publicly traded real estate investment trust that
owns and operates correctional, detention, and residential reentry
facilities. In the period from Feb. 27, 2012, through Aug. 17,
2016, its federal clients, including the Federal Bureau of Prisons
("BOP") and other agencies, allegedly accounted for between 43% and
51% of the company's annual revenue.
On Aug. 18, 2016, Deputy Attorney General Sally Q. Yates issued a
memorandum to the BOP entitled "Reducing our Use of Private
Prisons." The Yates Memorandum stated that private prisons served
an important role during a difficult period, but time has shown
that they compare poorly to our own BOP facilities. Private
facilities, Yates wrote, simply do not provide the same level of
correctional services, programs, and resources; they do not save
substantially on costs; and they do not maintain the same level of
safety and security. Yates concluded that, in light of those
inferior services and the lack of substantial cost savings, the BOP
should begin the process of reducing -- and ultimately ending --
the use of privately operated prisons.
On Aug. 23, 2016, Nikki Bollinger Grae filed a Class Action
Complaint in the case, alleging that CoreCivic and its executives
had been aware of widespread deficiencies in CoreCivic facilities
relative to BOP expectations but had made falsely and/or
misleadingly rosy public statements that had concealed the risk of
the withdrawal of BOP patronage. Notice of the suit was published
in accordance with the Private Securities Litigation Reform Act of
1995 ("PSLRA"), and Amalgamated filed a timely motion to be
appointed the lead Plaintiff. The court granted Amalgamated's
motion, appointing it the lead Plaintiff for the case. Amalgamated
filed an Amended Complaint on March 13, 2017.
Amalgamated's Amended Complaint cites information from a number of
sources, including an anonymous former CoreCivic employee
identified only as "FE1." Amalgamated relies on FE1 primarily for
FE1's description of CoreCivic's internal quality assurance
practices, including the manner in which senior CoreCivic
executives received information regarding facility deficiencies and
BOP write-ups thereof. There is no indication, in the Amended
Complaint, that FE1 was uniquely or especially well situated to
provide the relevant information, relative to other employees with
similar duties; rather, he or she merely described aspects of
CoreCivic's internal processes that any number of other employees,
including the senior executives themselves, presumably could, if
true, confirm. CoreCivic's public statements during the Class
Period had frequently included references to its quality assurance
structures.
CoreCivic moved to dismiss the Amended Complaint, and the court
denied that motion. The parties proceeded to discovery, and
CoreCivic issued a first round of Interrogatories to Amalgamated.
CoreCivic's Interrogatory No. 8 asks Amalgamated to identify the
person cited or otherwise referred to as FE1 in the Complaint.
Amalgamated objected to the request, arguing that FE1's identity is
irrelevant to any contested issues at trial and, in any event, is
protected by the work-product doctrine. The parties were unable to
reach an agreement with regard to how to proceed regarding
Interrogatory No. 8, and CoreCivic filed a Motion to Compel
Disclosure of Identity of Plaintiff's Confidential Witness, asking
the Court to order Amalgamated to reveal the identity of FE1.
Judge Trauger denied CoreCivic's Motion. She finds that in the
preparation of its Amended Complaint, Amalgamated assembled a wide
array of information about CoreCivic, its internal practices, its
business model, and its public statements. In so doing, the
counsel for Amalgamated presumably made innumerable decisions about
what information to include and how to convey that information so
as to best serve the interests of its client while maintaining the
basic ethical obligation of candor that every attorney owes the
Court.
One of those many decisions was to reveal that some of the
information in the Amended Complaint came from one particular
former CoreCivic employee -- but not reveal that employee's
identity. If Amalgamated is forced to divulge the identity of FE1,
then CoreCivic will know that Amalgamated elected not to rely on
other employees and will know that Amalgamated decided, based on
its professional judgment, that something about FE1's current
wishes and/or circumstances warranted anonymizing him or her. It
would be impossible, therefore, to force Amalgamated to reveal
FE1's identity now without providing at least some window into the
decision-making process of Amalgamated's counsel in drafting the
Amended Complaint.
Moreover, the Judge holds that the fact that the pleading
requirements of the PSLRA are what occasioned this conflict weighs
against a finding of waiver. When Congress enacted the PSLRA, it
could have imposed both heightened pleading requirements and
heightened disclosure obligations, but it did not. To the
contrary, nothing about the text of the PSLRA suggests any intent
to alter the traditional discovery dynamics in the adversary
system.
CoreCivic's waiver argument, however, would give a PSLRA defendant
a right to discover information that an ordinary defendant could
not, because a PSLRA plaintiff would, in order to meet the
statute's pleading requirements, be forced into waivers he could
otherwise avoid. CoreCivic, in other words, the Judge says, seeks
to take its already extraordinarily favorable pleading standard and
parlay that advantage into an extratextual right to greater
discovery. Neither the PSLRA, the Rules of Civil Procedure, nor
traditional notions of work-product protection support such a
rule.
A full-text copy of the Court's July 31, 2018 Memorandum and Order
is available at https://bit.ly/2CIde15 from Leagle.com.
Nikki Bollinger Grae, Plaintiff, represented by Brian Schall --
brian@goldberglawpc.com -- Goldberg Law PC, J. Alexander Hood, II
-- ahood@pomlaw.com -- Pomerantz LLP, Jeremy A. Lieberman --
jalieberman@pomlaw.com -- Pomerantz LLP, Marc Gorrie --
mgorrie@pomlaw.com -- Pomerantz LLP, Michael Goldberg --
michael@goldberglawpc.com -- Goldberg Law PC, Patrick V. Dahlstrom
-- pdahlstrom@pomlaw.com -- Pomerantz LLP, Paul Kent Bramlett --
PKNASHLAW@aol.com -- Bramlett Law Offices & Robert P. Bramlett --
Robert@BramlettLawOffices.com -- Bramlett Law Offices.
Luvell L. Glanton, Plaintiff, represented by Christopher T. Cain,
Scott & Cain.
Corrections Corporation of America, Damon T. Hiniger, David M.
Garfinkle & Todd J. Mullenger, Defendants, represented by Anna E.
Berces -- anna.berces@lw.com -- Latham & Watkins, Brian T. Glennon
-- brian.glennon@lw.com -- Latham & Watkins, LLP, David J.
Schindler -- david.schindler@lw.com -- Latham & Watkins, LLP, Faraz
Mohammadi -- faraz.mohammadi@lw.com -- Latham & Watkins, LLP,
Milton S. McGee, III -- tmcgee@rwjplc.com -- Riley, Warnock &
Jacobson, Morgan E. Whitworth, Latham & Watkins & Steven Allen
Riley, Riley, Warnock & Jacobson.
Harley G. Lappin, Defendant, represented by Anna E. Berces, Latham
& Watkins, Faraz Mohammadi , Latham & Watkins, LLP, Morgan E.
Whitworth , Latham & Watkins & Steven Allen Riley, Riley, Warnock &
Jacobson.
CCA INVESTOR GROUP, Intervenor Plaintiff, represented by Paul Kent
Bramlett, Bramlett Law Offices.
Burton Siegal, Movant, represented by James A. Holifield, Jr.,
Holifield Janich Rachal & Associates, PLLC.
Amalgamated Bank, as Trustee for the LongView Collective Investment
Fund, Movant, represented by Christopher Hamp Lyons, Robbins Geller
Rudman & Dowd LLP, Christopher M. Wood, Robbins Geller Rudman &
Dowd LLP, Dennis J. Herman, Robbins Geller Rudman & Dowd LLP, Jerry
E. Martin, Barrett Johnston Martin & Garrison, LLC, Kenneth J.
Black, Robbins Geller Rudman & Dowd LLP & Willow E. Radcliffe,
Robbins Geller Rudman & Dowd LLP.
CREDIT PROTECTION: McRobie Moves to Certify Penn. Residents Class
-----------------------------------------------------------------
The Plaintiff in the lawsuit titled Elizabeth McRobie, on behalf of
herself and all others similarly situated v. Credit Protection
Association, Case No. 5:18-cv-00566-JFL (E.D. Pa.), asks the Court
to certify a class consisting of:
"All natural persons residing in Pennsylvania, New Jersey and
Delaware to whom CPA mailed a postcard, substantially
similar to the Postcard sent to Plaintiff, in an attempt to
collect a debt, where the postcard was not returned as
undeliverable."
Ms. McRobie also asks the Court to appoint her as Class
Representative and to appoint Sergei Lemberg, Esq., of Lemberg Law,
LLC as Class Counsel.
The Plaintiff is represented by:
Sergei Lemberg, Esq.
LEMBERG LAW, LLC
43 Danbury Road
Wilton, CT 06897
Telephone: (203) 653-2250
Facsimile: (203) 653-3424
E-mail: slemberg@lemberglaw.com
CYTOSPORT INC: Summary Judgment Bid in Clay Suit Partly Granted
---------------------------------------------------------------
Judge M. James Lorenz of the U.S. District Court for the Southern
District of California granted in part and denied in part the
Defendant's motion for partial summary judgment in the case, CHAYLA
CLAY et al., Plaintiffs, v. CYTOSPORT, INC., Defendant, Case No.
3:15-cv-00165-L-AGS (S.D. Cal.).
The Plaintiffs are consumers who purchased the Defendant's protein
shake and/or protein powder. They allege that (1) the Nutrition
Facts panel and packaging of some of the Defendant's ready-to-drink
protein shake products overstated the amount of protein content;
(2) the Ingredients section on the labels of their Muscle Milk
protein powder products included amino acid L-glutamine, it was
also listed as an ingredient of the "Precision Protein Blend"
elsewhere on the labels, and an L-glutamine molecule was also shown
in a chart of the amino acids profile for some of the products,
implying that L-glutamine was included in its unbonded form, when
none was included; and (3) prominently displaying on its Muscle
Milk protein powder packaging that the product was "lean" or
contained a special blend of "Lean Lipids," when the products
contained oils and were no leaner than other protein powders on the
market which were not marketed as lean.
The Plaintiffs contend that the Defendant's product labeling is
false and misleading in violation of the federal Food, Drug and
Cosmetic Act, other federal laws, as well as California, Florida
and Michigan state consumer protection laws. In the operative
first amended complaint, they allege causes of action for violation
of California False Advertising Law ("FAL"); violation of
California Consumer Legal Remedies Act ("CLRA"); violation of
California Unfair Competition Law ("UCL"); violation of Florida
Deceptive and Unfair Trade Practices Act ("FDUTPA"); violation of
Michigan Consumer Protection Act ("MCPA"); breach of express
warranty under California, Florida and Michigan state laws; and
violation of Magnuson-Moss Warranty Act for breach of written
warranty. On behalf of themselves and a putative nationwide class
with California, Florida and Michigan subclasses, the Plaintiffs
seek, among other remedies, injunctive relief, damages, restitution
and/or disgorgement of the Defendant's profits.
The Defendant filed a motion for partial summary judgment, arguing
that the FAL, CLRA and UCL claims fail for lack of statutory
standing, the MCPA claim fails for lack of reliance, the Michigan
and Florida express warranty claims fail for lack of notice, the
California express warranty claim fails for lack of reliance, and
the Magnuson-Moss claim fails for lack of a written warranty. The
Plaintiff opposes these arguments.
Judge Lorenz granted in part and denied in part the Defendant's
motion for partial summary judgment. The Defendant is entitled to
summary adjudication with respect to some of the claims asserted by
the Plaintiffs Clay and Reichert. Clay lacks standing to assert
claims under FAL, CLRA, and UCL with respect to the Defendant's
representations regarding L-glutamine in protein powder products.
He finds Reichert lacks standing to assert FAL and UCL claims with
respect to the Defendant's statements about protein content of its
shakes, and "lean" statements about protein powders. All other
claims asserted for FAL, CLRA and UCL violations survive the
Defendant's motion.
The Judge granted the Defendant's motion with respect to any claim
the Plaintiffs assert for violation of MCPA. The Plaintiffs' claim
for violation of Michigan Comp. L. Section 445.903(1)(c) survives
the Defendant's motion. He also granted the Defendant's motion for
summary adjudication of the express warranty claim alleged under
Michigan and Florida state law. The motion is denied with respect
to the express warranty claim under California law. He granted the
Defendant's motion for summary adjudication of the claim for breach
of written warranty under the Magnuson-Moss Warranty Act.
Among other things, Judge Lorenz finds that (i) Clay's and
Reichert's testimonies are sufficient for a reasonable jury to
conclude that they relied on the protein content at least for some
of her purchases; (ii) the Plaintiffs' state in their reply that
the only claim they seek to litigate is the claim arising under
M.C.L. Section 445.903(1)(c) with respect to their MCPA violation;
(iii) although the Plaintiffs did more than just serve the
complaint, notice was not sufficient to comply with Michigan state
law requirements with respect to their claim for breach of express
warranty under Michigan law; and (iv) the Plaintiffs cite no
binding legal authority for the proposition that an expiration date
is sufficient for purposes of a written warranty under the
Magnuson-Moss Warrantay Act.
A full-text copy of the Court's July 31, 2018 Order is available at
https://bit.ly/2Qmcy41 from Leagle.com.
Chayla Clay, individually and on behalf of all others similarly
situated, Plaintiff, represented by Amy L. Marino --
amarino@sommerspc.com -- Sommers Schwartz, P.C., pro hac vice,
Jason J. Thompson -- jthompson@sommerspc.com -- Sommers Schwartz
PC, pro hac vice, Nick Suciu, III, Barbat Mansour & Suciu PLLC, pro
hac vice, Trenton R. Kashima -- trk@classactionlaw.com --
Finkelstein & Krinsk, LLP & Jeffrey R. Krinsk --
jrk@classactionlaw.com -- Finkelstein and Krinsk.
Erica Ehrlichman, individually and on behalf of all others
similarly situated & Logan Reichert, individually and on behalf of
all others similarly situated, Plaintiffs, represented by Amy L.
Marino, Sommers Schwartz, P.C., pro hac vice, Jason J. Thompson,
Sommers Schwartz PC, pro hac vice, Trenton R. Kashima, Finkelstein
& Krinsk, LLP & Jeffrey R. Krinsk, Finkelstein and Krinsk.k.
Chris Roman, Intervenor Plaintiff, represented by Jason J.
Thompson, Sommers Schwartz PC, pro hac vice & Trenton R. Kashima,
Finkelstein & Krinsk, LLP.
Cytosport, Inc., a California Corporation, Defendant, represented
by Aaron D. Van Oort -- aaron.vanoort@faegrebd.com -- Faegre Baker
Daniels LLP, pro hac vice, Christine R.M. Kain --
christine.kain@faegrebd.com -- Faegre & Benson LLP, pro hac vice,
David P. Burke -- dburke@neildymott.com -- Neil Dymott Frank McFall
& Trexler, Sarah Lynn Brew -- sarah.brew@faegrebd.com -- Faegre
Baker Daniels LLP, pro hac vice, Tyler A. Young --
tyler.young@faegrebd.com -- Faegre Baker Daniels LLP, pro hac vice
& Matthew I. Kaplan -- matthew.kaplan@tuckerellis.com -- Tucker
Ellis & West LLP.
DENKA: St. John Plaintiffs File Amended LaPlace Plant Lawsuit
-------------------------------------------------------------
Nick Reimann, writing for The New Orleans Advocate, reports that
thirteen St. John the Baptist Parish plaintiffs have filed an
amended lawsuit against a LaPlace chemical plant, claiming the
plant has caused them health problems ranging from shortness of
breath to mucus membrane irritation.
U.S. District Judge Martin Feldman had demanded such specifics as
he considers a motion to dismiss the suit.
The suit asks Judge Feldman to order that the plant, which is
operated by the company Denka Performance Elastomer, reduce or halt
its operations until its emissions of a chemical compound called
chloroprene drop below a suggested threshold.
The Environmental Protection Agency calls chloroprene a "likely
carcinogen."
The chemical is used to make the synthetic rubber neoprene, which
is then used to make products like wet suits and medical braces.
But Denka says the level of 0.2 micrograms of chloroprene per cubic
meter of air that the EPA calls the upper limit for safe exposure
is too low and is unrealistic to reach.
Its attorneys have called for the lawsuit's dismissal, arguing
there is no evidence that the Denka plant has caused health
problems for nearby residents.
Judge Feldman agreed in a July 26 ruling, calling the suit filed by
the group Concerned Citizens of St. John "wholly defective" in its
claim that the plant is a nuisance.
In his ruling, Judge Feldman threw out any claim that DuPont, the
company that started producing chloroprene at the plant in 1969 and
sold it to Denka in 2015, was at fault for alleged health
problems.
He also said the suit against Denka in its original form would
likely be dismissed, but he gave an opportunity for the plaintiffs
to file an amended motion by Aug. 10.
Attorneys for the plaintiffs filed that amended suit on Aug. 9,
outlining numerous health problems that each plaintiff claims the
plant has caused them.
There has been disagreement between the EPA and state regulators
over how harmful chloroprene is, with the EPA saying St. John
Parish had the highest risk of cancer from airborne pollutants
anywhere in the country in 2015. The state says the long-term
effects of chloroprene exposure are unknown.
But Larry Sorapuru, a parish councilman and a plaintiff in the
lawsuit, said the results are obvious in health problems across the
community.
In the amended lawsuit, Mr. Sorapuru says his own issues include
headaches, respiratory difficulties, mucous membrane irritation and
insomnia.
"He enjoys going on walks and bicycle rides but is unable to do so
when in the vicinity of his residence because his physical symptoms
intensify when he goes outside. He dreads going outside," the
amended lawsuit states. "The symptoms hamper his ability to
maintain an active lifestyle as a senior citizen. As a result, he
suffers depression and anxiety for his family's future."
Denka's attorneys argue there is no proof that emissions from the
plant cause any health problems. However, the company has tried to
reduce its chloroprene emissions. Denka said it has spent more than
$30 million in an effort to reduce the emissions by 85 percent,
though that may not drop them below the 0.2 percent limit set by
the EPA.
The effort has led to a steady decline in airborne chloroprene
around the plant over the last two years, according to the state
Department of Health.
Still, Mr. Sorapuru said in an interview that the company's efforts
don't go far enough and that the EPA guidelines should be the
deciding factor in the case.
"I think the judge has no sympathy for the people of St. John
Parish," he added.
Attorney Hugh Lambert, who represents the plaintiffs, said
Feldman's dismissal of the suit against DuPont -- and, if it
happens, against Denka -- will be appealed.
Judge Feldman ruled in March that the plaintiffs' case would not be
granted class-action status, as they wanted; he said they had
missed the deadline to do that.
A spokesman for Denka said the company would not comment on pending
litigation. [GN]
DESERT STATE: Victims Await Restitution, Class Action Pending
-------------------------------------------------------------
Colleen Heild, writing for Albuquerque Journal, reports that a
woman known in court records as "J.W." died destitute this year.
But she had once been a co-beneficiary of a $600,000 trust at the
now-defunct and disgraced Desert State Life Management company of
Albuquerque.
Her money, along with savings and trust accounts of more than 70
other vulnerable people who were clients of Desert State, were part
of the estimated $4.8 million embezzled by company CEO Paul
Donisthorpe, who pleaded guilty last November to federal money
laundering and mail fraud charges in the scheme.
J.W.'s death several months ago left her daughters scrambling to
find the money to bury their developmentally disabled mother.
They eventually found a "patchwork of people" to pay for funeral
expenses, said Charles Reynolds, who had been her conservator.
"But it was very frustrating and sad to think there were no funds
for an immediate burial," Mr. Reynolds said. "It highlights how
pathetic the situation was."
More than a year after state regulators uncovered the crime, the
dozens of victims who relied on Desert State to keep their savings
safe are still waiting for financial relief. A proposed class
action lawsuit for those defrauded was filed in June, but one of
Desert State's insurance companies has gone to court to keep from
paying claims. Desert State was placed into state receivership last
year.
Meanwhile, federal authorities have been trying to locate all of
Mr. Donisthorpe's assets that could be sold or liquidated to make
restitution to victims.
Mr. Donisthorpe, 62, faces eight to 12 years in prison. As part of
his plea, he agreed to pay more than $4.8 million in restitution.
But there's been no reimbursement yet and it's not clear when that
might happen.
"I have a lot of hope," said Christopher Moya, acting director of
the state Financial Services Division. "We knew it wasn't going to
be a quick turnaround, just because the legal process slows
everything down."
Mr. Donisthorpe is on supervised release awaiting sentencing, which
has been set twice and canceled with no explanation in court
records. His attorney didn't return a Journal request for comment.
As a condition of release, Mr. Donisthorpe was required to "provide
all requested financial information to U.S. Pretrial/Probation
Services."
"Until this is done," Mr. Moya said, "I will still have sleepless
nights."
Class action lawsuit
At least one other Desert State client, who lost a $32,000 trust in
the scheme, has died in the past year.
Donna Burk said her 97-year-old mother, Marjorie, died June 5 in
Texas. Ms. Burk said she never informed her mother about the
embezzlement because of how much it would have upset her.
"I carried the weight of it," said Ms. Burk, who was profiled by
the Journal last year.
Her mother's decline in the five weeks before her death took a
toll, as Ms. Burk struggled financially and missed work.
She cared for her mother at her home, but, "I really needed
round-the-clock help and I couldn't afford it."
"It was horrible the money ($32,000) wasn't there so I could have
hired a full-time caregiver. I should have been able to have my
time with her, to be a daughter and sit and hold her hand."
Instead, Burk said she had to perform nursing duties, such as
lifting her mother, and is now suffering physically.
A proposed class action lawsuit was filed June 20 in state District
Court in Albuquerque that could cover all 77 or so victims of the
fraud. Mr. Moya said if a class is certified, that would eliminate
the need for victims to hire their own lawyers to pursue claims
against Desert State.
The lawsuit was filed on behalf of Andrew Graham, whose special
needs account at Desert State was bilked of at least $100,000.
The firm dates back to the 1980s. Mr. Donisthorpe's scheme to steal
client funds operated from at least 2009 to 2016.
In the final two years, the Graham lawsuit says, Mr. Donisthorpe
stepped up the illicit transfers from client investment accounts.
By September 2014, he had deactivated the firm's computerized
accounting system, keeping only paper records of client accounts.
He moved client assets into his associated affiliate companies and
personal investments, which included a Texas cattle operation. That
property could be sold as early as August by the federal
government, which is handling the forfeiture of Mr. Donisthorpe's
assets to repay victims.
Mr. Moya said that about 90 percent of client funds were drained by
the time state regulators began examining Desert State's books in
early 2017 and found major discrepancies.
Mr. Donisthorpe spent client money on personal items, including
business ventures, his home mortgage, the mortgage for his vacation
home in Angel Fire, vehicles, credit card bills and IRS debts,
court records allege.
Scott Fuqua, a lawyer who previously worked in the New Mexico
Attorney General's office, represents a Texas businessman who says
he, too, was swindled by Mr. Donisthorpe.
"The unfortunate thing about fraud cases is that people who steal
money don't put the money in the bank," Mr. Fuqua said. "That's why
they steal it in the first place -- to spend."
Liability insurance
Even as he was bilking clients, Mr. Donisthorpe bought professional
liability insurance in October 2016 for the firm.
But the insurer, Evanston Insurance Company, seeks to rescind that
policy, alleging Mr. Donisthorpe made "material misrepresentations"
in applying for the insurance.
The company filed a lawsuit July 23, noting that it has received a
series of claims by those defrauded. But the lawsuit alleges that
statements Mr. Donisthorpe made at his plea hearing last November
show his responses to questions on the insurance application were
false.
"Donisthorpe was clearly aware of his conduct, and therefore, was
aware of wrongdoing that might afford grounds for a claim against
DSLM that might fall within the insurance provided by the Evanston
Policy," the lawsuit says.
Evanston offered to refund Mr. Donisthorpe's premium payment of
$9,328 to help those defrauded, its lawsuit stated. Now Evanston
wants a federal judge to decide the issue.
Still pending on the federal forfeiture radar are Mr. Donisthorpe's
luxury vacation home in Angel Fire and a 120-acre cattle ranch in
Athens, Texas, that Mr. Donisthorpe owned with Darrell Pitchford.
Mr. Pitchford contends he too was a victim and knew nothing about
the criminal scheme in New Mexico.
Federal authorities say Mr. Donisthorpe used client funds to invest
in Corazon-Pitchford Cattle Co. LLC, which featured Santa Gertrudis
breeding stock.
The sale of the ranch property could bring as much $500,000, said
Mr. Fuqua, who represents Mr. Pitchford. But the earlier sale of
its cattle didn't net as much as hoped.
"He's (Pitchford) complained to me several times that the
Corazon-Pitchford brand is just poisonous because of what
Donisthorpe did," Fuqua told the Journal. "Word got around this guy
was a crook, and it doesn't have anything to do with the quality of
the cattle that Mr. Pitchford has been raising. But you know how a
market sale works. Things go for what people are willing to pay.
And if everybody wants to pay less because they think Donisthorpe
is a crook, that's what's going to happen." [GN]
DISH NETWORK: Violates Disabilities Act, Mendez Suit Alleges
------------------------------------------------------------
A class action lawsuit has been filed against Dish Network, LLC.
The case is titled as Himelda Mendez, on behalf of herself and all
others similarly situated v. Dish Network, LLC, Case No.
1:18-cv-08051 (S.D.N.Y., September 4, 2018).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Dish Network L.L.C. provides broadcasting services. The Company
offers international channels, HD, and DVR technology.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Telephone: (917) 299-6612
Facsimile: (929) 575-4195
E-mail: joseph@cml.legal
DOMINION ENERGY: Bid to Remand Metzler Stockholder Suit Granted
---------------------------------------------------------------
Judge Margaret B. Seymour of the U.S. District Court for the
District of South Carolina, Columbia Division, granted the
Plaintiffs' motion to remand the case, Metzler Assett Management
GmbH and Joseph Heinz, on behalf of themselves and all others
similarly situated, Plaintiffs, v. Gregory E. Aliff, James A.
Bennett, John F.A.V. Cecil, Sharon A. Decker, D. Maybank Hagood,
Lynne M. Miller, James W. Roquemore, Maceo K. Sloan, Alfredo
Trujillo, Dominion Energy, Inc., and Sedona Corp., Defendants, C/A
No. 3:18-505-MBS (D. S.C.).
Plaintiffs Metzler and Heinz, on behalf of themselves and all
others similarly situated, filed the shareholder class action
complaint in the Richland County, South Carolina, Court of Common
Pleas on Feb. 8, 2018. The Plaintiffs allege that Defendants
Aliff; Bennett; Cecil; Decker; Hagood; Miller; Roquemore; Sloan;
and Trujillo, as members of the Board of Directors of SCANA Corp.,
breached their fiduciary duties to the shareholders of SCANA in
certain respects. They further allege that Defendants Dominion and
Sedona aided and abetted the Board of Directors in breaching their
fiduciary duties.
Dominion and Sedona Corp. removed the action to the Court on Feb.
21, 2018, contending that the Court has subject matter jurisdiction
under the Class Action Fairness Act ("CAFA").
The matter now is before the Court on the Plaintiffs' motion to
remand, which motion was filed on July 11, 2018. The Plaintiffs
contend that the court lacks subject matter jurisdiction for the
reasons set forth in Firemen's Retirement System and City of
Warren.
Judge Seymour agrees. As the Court previously found, section
1332(d)(9) should be read to encompass the Plaintiffs' aiding and
abetting claims as "concerning" or "relating to" one or all of the
exceptions to CAFA set forth therein. He is informed that the
Defendants do not intend to file a memorandum in opposition to the
Plaintiffs' motion, given the Court's prior ruling. Therefore, he
granted the Plaintiffs' motion to remand.
A full-text copy of the Court's Aug. 1, 2018 Order and Opinion is
available at https://bit.ly/2NBpvbC from Leagle.com.
Metzler Asset Management GmbH, on Behalf of Themselves and All
Others Similarly Situated & Joseph Heinz, on Behalf of Himself and
All Other Similarly Situated, Plaintiffs, represented by Graham Lee
Newman -- gln@harpootlianlaw.com -- Chappell Smith and Arden,
Lawrence P. Eagel -- eagel@bespc.com -- Bragar Eagel and Squire PC,
pro hac vice & Melissa A. Fortunato -- fortunato@bespc.com --
Bragar Eagel and Squire PC, pro hac vice.
Gregory E Aliff, James A Bennett, John F.A.V. Cecil, Sharon A
Decker, D Maybank Hagood, Lynne M Miller, James W Roquemore, Maceo
K Sloan & Alfredo Trujillo, Defendants, represented by Benjamin
Palmer Carlton, Richardson Plowden and Robinson, George Craig
Johnson , Johnson Toal and Battiste, IS Leevy Johnson, Johnson Toal
and Battiste, Steven J. Pugh, Richardson Plowden and Robinson &
Michael R. Smith, King and Spalding, pro hac vice.
Dominion Energy Inc & Sedona Corp, Defendants, represented by
Andrew Addison Mathias -- amathias@nexsenpruet.com -- Nexsen Pruet,
Burl Franklin Williams -- bwilliams@nexsenpruet.com -- Nexsen
Pruet, William W. Wilkins -- bwilkins@nexsenpruet.com -- Nexsen
Pruet, Brian E. Pumphrey -- bpumphrey@mcguirewoods.com --
McGuireWoods LLP, pro hac vice & Brian D. Schmalzbach --
bschmalzbach@mcguirewoods.com -- McGuireWoods LLP, pro hac vice.
DR. SMOOD: Brown Suit Moved to Southern District of New York
------------------------------------------------------------
The class action lawsuit titled Equan Brown, individually and on
behalf of those similarly situated, the Plaintiff, v. Dr. Smood
1151 Broadway LLC; Dr. Smood 285 Madison LLC; Dr Smood 485 Lex LLC;
Dr Smood Soho LLC; Dr Smood Orchard LLC; Dr Smood New York
Production LLC; Rene Sindlev, individually; and Patricia Manici
Sindlev, individually, the Defendants, Case No. 155146-2018, was
removed from the New York State Supreme Court to the U.S. District
Court for the Southern District of New York (Foley Square) on Sept.
4, 2018. The New York Southern District Court Clerk assigned Case
No. 1:18-cv-08038-KPF to the proceeding. The case is assigned to
the Hon. Judge Katherine Polk Failla. The suit alleges Labor
related violation.[BN]
Attorneys for Defendants:
Katherine Healy Marques, Esq.
Qian Shen, Esq.
Loren Lee Forrest , Jr., Esq.
HOLLAND & KNIGHT LLP (NY)
31 West 52nd Street
New York, NY 10019
Telephone: (212) 513 3200
Facsimile: (212) 385 9010
E-mail: katherine.Marques@hklaw.com
qian.shen@hklaw.com
loren.forrest@hklaw.com
ENVISION HEALTHCARE: Faces Barrett Suit over Kohlberg Merger
------------------------------------------------------------
JON BARRETT, individually and on behalf of all others similarly
situated, Plaintiff v. ENVISION HEALTHCARE CORPORATION; WILLIAM A.
SANGER; CAROL J. BURT; LEONARD M. RIGGS; MICHAEL L. SMITH;
CHRISTOPHER A. HOLDEN; JAMES A. DEAL; JOHN T. GAWALUCK; STEVEN I.
GERINGER; JAMES D. SHELTON; and JOEY A. JACOBS, Defendants, Case
No. 1:18-cv-01219-UNA (D. Del., Aug. 9, 2018) is an action against
the Defendants for their violations of the Securities Exchange Act
of 1934 and the Securities and Exchange Commission, in connection
with the proposed acquisition of Envision by Kohlberg Kravis
Roberts & Co. L.P. and its affiliates.
According to the complaint, on June 10, 2018, the Board caused the
Company to enter into an Agreement and Plan of Merger with
Enterprise Parent Holdings Inc., and Enterprise Merger Sub Inc.,
pursuant to which each common share of Envision will be converted
into the right to receive $46.00 in cash.
On July 9, 2018, to convince Envision's shareholders to vote in
favor of the Proposed Transaction, Defendants authorized the filing
of a materially incomplete and misleading proxy statement with the
SEC.
In particular, the Proxy contains materially incomplete and
misleading information concerning: (i) financial projections for
Envision; (ii) the valuation analyses performed by Envision's
financial advisors, J.P. Morgan Securities LLC, Evercore Group
L.L.C., and Guggenheim Securities, LLC, in support of their
respective fairness opinions; and (iii) the potential conflict of
interests Evercore faced as a result of its historical dealings
with Envision and Kohlberg Kravis.
Envision Healthcare Corporation provides physician-led outsourced
medical services in the United States. The company was formerly
known as Emergency Medical Services Corporation and changed its
name to Envision Healthcare Corporation in June 2013. Envision
Healthcare Corporation is headquartered in Greenwood Village,
Colorado. Envision Healthcare Corporation was formerly a subsidiary
of Envision Healthcare Holdings, Inc. As a result of Envision
Healthcare Holdings, Inc.'s acquisition by Envision Healthcare
Corporation on June 15, 2016, Envision Healthcare Corporation
operates as a subsidiary of Envision Healthcare Corporation. [BN]
The Plaintiff is represented by:
Blake A. Bennett, Esq.
COOCH AND TAYLOR, P.A.
The Brandywine Building
1000 West Street, 10th Floor
Wilmington, DE 19801
Telephone: (302) 984-3800
- and -
Juan E. Monteverde, Esq.
MONTEVERDE & ASSOCIATES PC
The Empire State Building
350 Fifth Avenue, Suite 4405
New York, NY 10118
Telephone: (212) 971-1341
Facsimile: (212) 202-7880
E-mail: jmonteverde@monteverdelaw.com
EVERGREEN MONEYSOURCE: Feb. 8 Final Settlement Approval Hearing
---------------------------------------------------------------
The United States District Court for the Eastern District of
California issued an Order amending the Order Approving Plaintiffs'
Class Action Settlement in the case captioned JARED ACOSTA,
Plaintiff, v. EVERGREEN MONEYSOURCE MORTGAGE COMPANY, a Washington
Corporation; and DOES 1 to 100, inclusive, Defendants. Case No.
2:17-cv-00466-KJM-DB. (E.D. Cal.).
The Parties wish to reset the date for the final fairness hearing
to post-date the close of the notice period and deadline for the
settlement administrator to provide a declaration, while also
providing adequate time to prepare and submit a motion for final
approval.
The Court's Order will be modified in the following respects only:
The final approval hearing set for November 2, 2018 is vacated and
reset for February 8, 2019 at 10:00 a.m. in Courtroom 3, with
briefs and supporting documentation due two weeks prior to the
hearing.
A full-text copy of the District Court's August 23, 2018 Order is
available at https://tinyurl.com/y9oxw7r8 from Leagle.com.
Jared Acosta, Plaintiff, represented by Galen T. Shimoda --
attorney@shimodalaw.com -- Shimoda Law Corp. & Justin Paul
Rodriguez -- jrodriguez@shimodalaw.com -- Shimoda Law Corp.
Evergreen Moneysource Mortgage Company, Defendant, represented by
Julie Grace Yap -- jyap@seyfarth.com -- Seyfarth Shaw LLP,
Alexander A. Baehr -- alexb@summitlaw.com -- Summit Law Group,
PLLC, pro hac vice & Tiffany Tran -- ttran@seyfarth.com -- Seyfarth
Shaw LLP.
EXPRESS SCRIPTS: Neufeld Seeks to Halt Sale to Cigna Corp.
----------------------------------------------------------
Abraham Neufeld, and all others similarly situated, Plaintiffs, v.
Express Scripts Holding Company, Maura C. Breen, William J.
Delaney, Elder Granger, Nicholas J. Lahowchic, Thomas P. Mac Mahon,
Kathleen M. Mazzarella, Woodrow A. Myers, Jr., Frank Mergenthaler,
Roderick A. Palmore, George Paz, William L. Roper, Seymour
Sternberg and Timothy Wentworth, Defendants, Case 18-cv-01017 (E.D.
Mo., June 22, 2018) seeks to enjoin defendants and all persons
acting in concert with them from proceeding with, consummating, or
closing the acquisition of Express Scripts by Cigna Corporation;
rescinding it and setting it aside or awarding rescissory damages
in the event defendants consummate the merger; costs of this
action, including reasonable allowance for attorneys' and experts'
fees; and such other and further relief under the Securities
Exchange Act of 1934.
Express Scripts stockholders will receive 0.2434 of a share of New
Cigna common stock and $48.75 in cash for each Express Scripts
common share held. The proposed transaction is valued at
approximately $54 billion, excluding debt.
The complaint contends that the registration statement, which
recommends that Express Scripts stockholders vote in favor of the
Proposed Transaction, omits Express Scripts' and Cigna's financial
projections, relied upon by the former's financial advisors,
Centerview Partners LLC and Lazard Freres & Co. LLC in connection
with the rendering of their fairness opinions.
Express Scripts is an independent pharmacy benefit management
company located at One Express Way, St. Louis, Missouri 63121.
Cigna is a global health service company that provides medical,
pharmacy, behavioral, dental, disability, life and accident
insurance and related products and services. [BN]
Plaintiff is represented by:
Matthew L. Dameron, Esq.
WILLIAMS DIRKS DAMERON LLC
1100 Main Street, Suite 2600
Kansas City, MO 64105
Telephone: (816) 945-7135
Facsimile: (816) 945-7118
Email: matt@williamsdirks.com
- and -
Melissa A. Fortunato, Esq.
BRAGAR EAGEL & SQUIRE P.C.
885 Third Avenue, Suite 3040
New York, NY 10022
Telephone: (212) 308-5858
Facsimile: (212) 486-0462
Email: fortunato@bespc.com
- and -
Richard A. Acocelli, Esq.
Michael A. Rogovin, Esq.
Kelly C. Keenan, Esq.
WEISSLAW LLP
1500 Broadway, 16th Floor
New York, NY 10036
Tel: (212) 682-3025
Fax: (212) 682-3010
FACEBOOK INC: Hwang Hits Illegal Collection of Personal Data
------------------------------------------------------------
Susan Hwang, individually, on behalf of herself and all others
similarly situated, Plaintiff, v. Facebook, Inc., a Delaware
corporation, Defendant, Case No. 18-cv-05357, (N.D. Cal., August
30, 2018), seeks declaratory and injunctive relief and compensatory
damages resulting from breach of contract, intrusion into private
affairs in violation of California's Unfair Competition Law, Unfair
Competition Law, Consumer Legal Remedies Act and the California
Penal Code.
Facebook Inc. is a publically-traded social media company with its
headquarters and principal place of business in Menlo Park,
California. It has accumulated and stored information including
users' call and text histories, metadata such as the names and
phone numbers of persons contacted, the times of such contacts and
the lengths of such contacts, notes the complaint.
Hwang has owned and used a Facebook account on her mobile device
for over five years. [BN]
Plaintiff is represented by:
Clayeo C. Arnold, Esq.
Joshua H. Watson, Esq.
CLAYEO C. ARNOLD, A PROFESSIONAL LAW CORPORATION
865 Howe Avenue
Sacramento, CA 95825
Tel: (916) 777-7777
Fax: (916) 924-1829
Email: carnold@justice4you.com
jwatson@justice4you.com
- and -
John Yanchunis, Esq.
Ryan J. McGee, Esq.
Marisa Glassman, Esq.
MORGAN & MORGAN COMPLEX LITIGATION GROUP
201 North Franklin Street, 7th Floor
Tampa, FL 33602
Tel: (813) 223-5505
Fax: (813) 223-5402
Email: jyanchunis@forthepeople.com
mglassman@forthepeople.com
rmcgee@ForThePeople.com
- and -
Kevin S. Hannon, Esq.
THE HANNON LAW FIRM, LLC
1641 Downing Street
Denver, CO 80218
Phone: (303) 861-8800
Email: khannon@hannonlaw.com
- and -
Steven Teppler, Esq.
ABBOTT LAW GROUP P.A.
2929 Plummer Cove Road
Jacksonville, FL 32223
Tel: (904) 292-1111
Fax: (904) 292-1220
Email: steppler@abbottlawpa.com
- and -
Briana Kim, Esq.
BRIANA KIM, PC
249 East Ocean Blvd., Suite 814
Long Beach, CA 90802
Tel: (714) 482-6301
Fax: (714) 482-6302
Email: briana@brianakim.com
FAUST HARRISON: Mendez Sues Over Disabilities Act Violations
-------------------------------------------------------------
A class action lawsuit has been filed against Faust Harrison
Pianos, Inc. The case is styled as Himelda Mendez, on behalf of
herself and all others similarly situated v. Faust Harrison Pianos,
Inc., Case No. 1:18-cv-08054 (S.D.N.Y., September 4, 2018).
The Plaintiff alleges violations of the Americans with Disabilities
Act.
Faust Harrison Pianos, Inc., retails musical instruments. The
Company offers pre-owned and new pianos. The Company provides
tuning and repair, piano rental, storage and appraisals, and
consignment selling of pianos.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Telephone: (917) 299-6612
Facsimile: (929) 575-4195
E-mail: joseph@cml.legal
FORD MOTOR: Cal. App. Affirms Summary Judgment in Dagher
--------------------------------------------------------
The Court of Appeals of California, Fourth District, Division One,
affirmed the judgment of the Trial Court granting Defendant's
Motion for Summary Judgment in the case captioned GREG DAGHER,
Plaintiff and Appellant, v. FORD MOTOR COMPANY, Defendant and
Respondent. No. D072436. (Cal. App.).
The trial court agreed, granted Ford's Motion for Summary Judgment,
and entered judgment accordingly.
Greg Dagher asserted various claims against Ford Motor Company
(Ford) arising from alleged defects in his Ford truck's diesel
engine.
Summary Judgment Standards
A defendant's motion for summary judgment should be granted if no
triable issue exists as to any material fact and the defendant is
entitled to a judgment as a matter of law. A defendant moving for
summary judgment on an affirmative defense has the initial burden
of showing that the undisputed facts support each element of the
defense.
Claim Preclusion
Dagher contends the trial court erred by granting Ford's motion for
summary judgment on its affirmative defense of claim preclusion. He
relies in large part on California authorities discussing claim
preclusion under California law. However, because the Navistar, In
re: Navistar Diesel Engine Products Liability Litigation (N.D.Ill.,
No. 11 C 2496, MDL No. 2223) (Navistar).), judgment was rendered by
a federal district court sitting in Illinois, it appears that
either federal common law or Illinois law would apply, depending on
whether the judgment was based on federal question jurisdiction or
diversity jurisdiction.
Claim preclusion prevents relitigation of the same cause of action
in a second suit between the same parties or parties in privity
with them. Claim preclusion arises if a second suit involves (1)
the same cause of action (2) between the same parties (3) after a
final judgment on the merits in the first suit.
If claim preclusion is established, it operates to bar relitigation
of the claim altogether. Because class members are in privity with
named class action plaintiffs, the doctrine applies to a
court-approved settlement agreement in a class action dismissed
with prejudice.
Dagher disputes only the same parties element of claim preclusion.
He argues that Ford did not present evidence he was a member of the
Navistar settlement class.
The Court disagree.
The Navistar judgment defined the settlement class as all entities
and natural persons who currently own or lease (or who in the past
owned or leased) a model year 2003-2007 non-ambulance Ford vehicle
sold or leased in the United States and equipped with a 6.0-liter
PowerStroke diesel engine that received one or more repairs covered
by Ford's New Vehicle Limited Warranty during the vehicle's first
five years in service or 100,000 miles, whichever comes first, to
the turbocharger. The undisputed evidence showed that Dagher and
his vehicle fell within this description. Dagher owns a 2006 Ford
truck with the specified engine, and he received warranty service
on the truck's turbocharger during its first five years in service
and 100,000 miles.
Indeed, Dagher repeatedly alleged in his operative complaint that
he was a putative class member in the Navistar litigation. These
allegations are binding on Dagher and conclusive of the truth of
the matter. Dagher attempts to avoid the binding effect of these
allegations by relying on authorities where a plaintiff was allowed
to amend his complaint but Dagher made no such attempt here. These
allegations are part of his operative complaint in his lawsuit;
they are therefore binding on him.
Due Process
Dagher further contends that it would violate due process to give
preclusive effect to the Navistar judgment under the circumstances
here.
As the United States Supreme Court has explained, When the judgment
of a state court, ascribing to the judgment of another court the
binding force and effect of res judicata, is challenged for want of
due process it becomes the duty of this Court to examine the course
of procedure in both litigations to ascertain whether the litigant
whose rights have thus been adjudicated has been afforded such
notice and opportunity to be heard as are requisite to the due
process which the Constitution prescribes.
The only evidence Dagher cites in support of the proposition that
he was not sent notice of the Navistar settlement is his
declaration, but the trial court sustained Ford's objection to the
relevant portion of that declaration. Dagher has not challenged
that evidentiary ruling on appeal, so we will not consider the
excluded evidence. Dagher's claim that he was not sent notice of
the Navistar settlement is therefore unsupported by any evidence,
and it is insufficient to raise a triable issue of material fact
regarding the application of claim preclusion here.
The importance of evidence on the issue of adequate notice is
illustrated by Peters v. National R.R. Passenger Corp. (D.C. Cir.
1992) 966 F.2d 1483. In Peters, an absent class member claimed the
notice sent to him was not reasonably calculated to advise him of
the class action because it did not include his apartment number
and it used an incorrect zip code. The court examined the
circumstances of the omissions individually. It found that the
omission of his apartment number was reasonable because there was
no evidence that the defendant or class counsel had actual
knowledge the address was incomplete. And the incorrect zip code
was attributable to class counsel's error and was not foreseeable
by the defendant. The court therefore concluded no due process
violation occurred because, notwithstanding these deficiencies, the
notice was reasonably calculated to inform the absent class member
of his rights.
Here, Dagher has presented no evidence that he was not sent notice
of the Navistar settlement, let alone evidence of the surrounding
circumstances.
The judgment is affirmed.
A full-text copy of the Cal. App.'s August 27, 2018 Memorandum and
Order is available at https://tinyurl.com/y9tbfbww from
Leagle.com.
Rosner, Barry & Babbitt, Hallen D. Rosner -- hal@rbblawgroup.com --
and Arlyn L. Escalante -- arlyn@rbblawgroup.com -- Lemon Law
Associates of California and Susan A. Yeck , for Plaintiff and
Appellant.
Wilson Turner Kosmo, Vickie E. Turner --
vturner@wilsonturnerkosmo.com -- Robert A Shields --
rshields@wilsonturnerkosmo.com -- Robert K. Dixon --
rdixon@wilsonturnerkosmo.com -- and Mark A. Rein --
mrein@wilsonturnerkosmo.com -- Dykema Gossett, John M. Thomas --
jthomas@dykema.com -- and Tamara A. Bush -- tbush@dykema.com -- for
Defendant and Respondent.
FXCM INC: Policemen's Annuity Appeals Order, Judgment to 2nd Cir.
-----------------------------------------------------------------
Plaintiff Retirement Board of the Policemen's Annuity and Benefit
Fund of Chicago filed an appeal from the District Court's opinion
and order dated August 10, 2018, and judgment dated August 13,
2018, in its lawsuit styled RETIREMENT BOARD OF THE POLICEMEN'S
ANNUITY AND BENEFIT FUND OF CHICAGO ON BEHALF OF THE POLICEMEN'S
ANNUITY AND BENEFIT FUND OF CHICAGO, et al. v. FXCM Inc., et al.,
Case No. 15-cv-3599, in the U.S. District Court for the Southern
District of New York (New York City).
As previously reported in the Class Action Reporter, the putative
class action complaint alleges securities fraud against the
Defendants.
The appellate case is captioned as International Union of Operating
Engineers Local No. 478 Pension Fund, et al. v. FXCM Inc., et al.,
Case No. 18-2604, in the United States Court of Appeals for the
Second Circuit.[BN]
Plaintiff-Appellant Retirement Board of the Policemen's Annuity and
Benefit Fund of Chicago on Behalf of the Policemen's Annuity and
Benefit Fund of Chicago is represented by:
Deborah Clark Weintraub, Esq.
SCOTT & SCOTT, ATTORNEYS AT LAW, LLP
The Helmsley Building
230 Park Avenue
New York, NY 10169
Telephone: (212) 223-6444
E-mail: dweintraub@scott-scott.com
Defendant-Appellee FXCM Inc. is represented by:
Israel Dahan, Esq.
KING & SPALDING LLP
1185 Avenue of the Americas
New York, NY 10036
Telephone: (212) 556-2114
E-mail: idahan@kslaw.com
Defendants-Appellees Dror Niv and Robert Lande are represented by:
Paul R. Bessette, Esq.
KING & SPALDING LLP
500 W. 2nd Street
Austin, TX 78701
Telephone: (512) 457-2050
E-mail: pbessette@kslaw.com
GENERAL INFORMATION: Smith's FCRA Case Transferred to D.S.C.
------------------------------------------------------------
The United States District Court for the Southern District of Ohio,
Eastern Division, granted Plaintiff's Motion to Transfer Venue to
the District of South Carolina in the case captioned DEVON SMITH,
et al., Plaintiffs, v. GENERAL INFORMATION SOLUTIONS, INC.,
Defendant. Case No. 2:18-cv-230. (S.D. Ohio).
The Plaintiff alleges that the Defendant, which procures background
check information regarding individuals seeking employment with its
customers, violated the Fair Credit Reporting Act (FCRA) in
connection with its procurement of his consumer report. The
Plaintiff specifically alleges that the Defendant violated the FCRA
by obtaining consumer reports without proper authorizations and by
failing to provide required information to potential employees like
Plaintiff who suffered concrete harm resulting from these failures.
The Plaintiff moves to transfer venue pursuant to 28 U.S.C. Section
1404(a). Under 28 U.S.C. Section 1404(a), for the convenience of
parties and witnesses, in the interest of justice, a district court
may transfer any civil action to any other district or division
where it might have been brought. The threshold issue under Section
1404(a) is whether the action could be brought in the transferee
court.
The Defendant specifically advises that it takes no position with
respect to the relief requested in Plaintiff's Motion to Transfer
Venue to the United States District Court of South Carolina.
The Defendant argues, however, that this Court should first rule in
its favor on the Motion to Compel Arbitration before considering
Plaintiff's Motion to Transfer Venue.
Contrary to the Defendant's argument, the Court finds it
appropriate and in the interest of judicial economy to consider
first the Plaintiff's Motion to Transfer Venue.
Turning to the merits of the Plaintiff's Motion to Transfer Venue,
the Court agrees with the Plaintiff that the private interests
weigh in favor of transferring this case. The Plaintiff now
represents that he prefers South Carolina as the venue to litigate
this case. The Plaintiff's choice of forum carries weight,
particularly where, like here, the chosen forum has a connection to
the litigation and the Defendant maintains its principal place of
business there.
The Court likewise concludes that the public interests favor
transfer to South Carolina. These public interests include, inter
alia, enforceability of judgment, practical considerations, and
judicial economy. Here, the Defendant has filed a Motion to Dismiss
based, in part, on lack of personal jurisdiction and seeks to
dismiss all class allegations of any putative plaintiff outside of
Ohio. As the Plaintiff points, transferring this action to South
Carolina where the Defendant maintains its principal place of
business will resolve the jurisdictional question raised by the
Defendant without reducing or dividing the putative classes.
Transferring this action therefore conserves judicial resources and
eliminates any delay caused by resolving a jurisdictional
challenge, permitting the parties to proceed with discovery and to
the merits of the claims.
A full-text copy of the District Court's August 23, 2018 Opinion
and Order is available at https://tinyurl.com/yctrdrkb from
Leagle.com.
Devon Smith, Plaintiff, represented by Steven Charles Babin, Jr. ,
Chapin Legal Group LLC,Brandi L. Staley , Chapin Legal Group, LLC,
Lance Chapin , Chapin Legal Group, LLC, Matthew R. Wilson --
mwilson@meyerwilson.com -- Meyer Wilson Co., LPA & Michael J.
Boyle, Jr. -- mboyle@meyerwilson.com -- Meyer Wilson, LPA.
General Information Services, Inc., Defendant, represented by
Acacia Marie Perko -- aperko@reminger.com -- Reminger Co., LPA,
Cindy D. Hanson -- cindy.hanson@troutman.com -- Troutman Sanders,
pro hac vice & H. Scott Kelly -- scott.kelly@troutman.com --
Troutman Sanders, pro hac vice.
HEALTH-ADE LLC: Burson & Fisher Named Interim Class Counsel
-----------------------------------------------------------
The United States District Court for the Northern District of
California granted the Bayol Plaintiffs' Motion to Interim Class
Counsel in the cases captioned GABRIELA BAYOL, et al., Plaintiffs,
v. HEALTH-ADE LLC, et al., Defendants, LYNETTE GONZALEZ, et al.,
Plaintiffs, v. HEALTH-ADE LLC, Defendant. Case Nos.
18-cv-01462-MMC, 18-cv-01836-MMC (N.D. Cal.).
Before the Court is Motion for Appointment of Interim Class Counsel
filed by the plaintiffs in Bayol v. Health-Ade, LLC (Bayol
Plaintiffs), by which said plaintiffs seek an order appointing
their counsel of record as interim class counsel.
The plaintiffs allege that certain of the statements made on the
labels and/or packaging of defendant Health-Ade LLC's (Health-Ade)
kombucha beverages are false and misleading.
In determining whether to appoint an attorney as interim class
counsel, the court must consider: (i) the work counsel has done in
identifying or investigating potential claims in the action; (ii)
counsel's experience in handling class actions, other complex
litigation, and the types of claims asserted in the action; (iii)
counsel's knowledge of the applicable law; and (iv) the resources
that counsel will commit to representing the class.
Here, as to the first factor, counsel for the Bayol Plaintiffs,
prior to filing a complaint on behalf of their respective clients,
each conducted an investigation into Health-Ade's practices,
counsel in the Bayol Plaintiffs' case identifying a greater number
of claims, namely claims based on both the alcohol content and the
sugar content of Health-Ade's kombucha products.
As to the second factor, although counsel in both cases have
extensive experience in handling class actions, counsel for the
Bayol Plaintiffs have significant experience in bringing class
action lawsuits in which false advertising claims are alleged,
whereas counsel for the Gonzalez Plaintiffs' experience has been
primarily in connection with class actions alleging unlawful
employment practices and privacy violations.
Next, as to the third factor, counsel for the plaintiffs in both
cases appear to be generally knowledgeable about the governing law,
although, as noted, counsel for the Bayol Plaintiffs have had more
experience in cases involving false advertising claims.
Lastly, as to the fourth factor, all counsel have shown they have
the resources necessary to effectively represent the putative class
members.
The Court finds that, on balance, the factors identified in Rule
23(g)(1) weigh in favor of appointing counsel for the Bayol
Plaintiffs as interim class counsel. In particular, counsel for the
Bayol Plaintiffs have more extensive experience in representing
clients in false advertising cases, including a case factually
similar to that here, and, in the instant case, have done a
considerable amount of pre-filing work in an effort to identify and
plead potential claims.
Accordingly, the Bayol Plaintiffs' motion is granted and Burson &
Fisher, P.A. is appointed as interim class counsel.
A full-text copy of the District Court's August 23, 2018 Order is
available at https://tinyurl.com/y72jp6wg from Leagle.com.
Gabriela Bayol & Bruce Verbeck, individually and on behalf of all
others similarly situated, Plaintiffs, represented by Lawrence
Timothy Fisher -- ltfisher@bursor.com -- Bursor & Fisher, P.A. &
Yeremey O. Krivoshey -- ykrivoshey@bursor.com -- Bursor Fisher,
P.A.
Health-Ade LLC & Whole Foods Market California, Inc., Defendants,
represented by Robert James Herrington -- herringtonr@gtlaw.com --
Greenberg Traurig LLP.
IMPINJ INC: Schultz Sues over 14% Drop in Shares Price
------------------------------------------------------
DREW S. SCHULTZ, individually and on behalf of all others similarly
situated, Plaintiff v. IMPINJ, INC.; CHRIS DIORIO; and ERIC
BRODERSEN, Defendants, Case No. 2:18-cv-06765 (C.D. Cal., Aug. 7,
2018) alleges violations of the Securities Act of 1934.
According to the complaint, Impinj claims that it is working to
deliver a platform that powers item-to-cloud connectivity, enabling
developers to innovate Internet-of-Things, or IoT, applications.
On August 2, 2018, Impinj announced that it was delaying the
release of its second quarter 2018 results. The Company also
disclosed that its Audit Committee commenced an independent
investigation in connection with a complaint filed by a former
employee, and that Impinj contacted the SEC to advise the SEC of
the independent investigation. Impinj further disclosed that it
would "not be in a position" to file its Form 10-Q until after the
Audit Committee completed its investigation.
On this news, Impinj's share price fell $3.02 per share, or 13.7%,
to close at $18.97 per share on August 3, 2018, on unusually heavy
trading volume.
The Defendants made materially false and misleading statements, as
well as failed to disclose material adverse facts about the
Company's business, operations, and prospects. Specifically,
Defendants failed to disclose: (1) that the Company had engaged in
conduct that could lead to an employee complaint and/or Audit
Committee investigation; (2) that the Company lacked adequate
internal and financial controls; and (3) that, as a result of the
foregoing, Defendants' statements about Impinj's business,
operations, and prospects, were materially false and/or misleading
and/or lacked a reasonable basis.
Impinj, Inc. operates a platform that enables wireless connectivity
to everyday items by delivering each item's unique identity,
location, and authenticity to business and consumer applications.
Impinj, Inc. was founded in 2000 and is headquartered in Seattle,
Washington. [BN]
The Plaintiff is represented by:
Lionel Z. Glancy, Esq.
Robert V. Prongay, Esq.
Lesley F. Portnoy, Esq.
Charles H. Linehan, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
JACKS ENTERPRISE: Pays Below Minimum Wage, Lloyd Suit Says
----------------------------------------------------------
Lyndsey Michelle Loyd, on behalf of herself and all others
similarly situated, Plaintiff, v. Jacks Enterprise, LLC, Defendant,
Case No. 18-cv-00059 (S.D. Ga., August 30, 2018), seeks to recover
unpaid minimum and overtime wages under the Fair Labor Standards
Act.
Jacks Enterprise operates as Johnny's Pizza, a pizza restaurant
chain in the state of Georgia, where Loyd worked as a server at
their Dublin, Laurens County location. Plaintiff says the
Defendants illegally took out a tip credit from her, despite being
paid below the minimum wage rates as well as spending more than 20%
of their shift performing non-tip-producing work. [BN]
Plaintiff is represented by:
Michael J. Moore. Esq.
POPE, MCGLAMRY, KILPATRICK, MORRISON AND NORWOOD P.C.
3391 Peachtree Road, Suite 300
Atlanta, GA 30326
Tel: (404) 523-7706
Fax: (404) 524-1648
Email: michaelmoore@pmkm.com
efile@pmkm.com
- and -
David W. Garrison, Esq.
Joshua A. Frank, Esq.
BARRET, JOHNSTON, MARTIN & GARRISON LLC
414 Union Street, Suite 900
Nashville, TN 37219
Tel: (615) 244-2202
Fax: (615) 252-3798
Email: dgarrison@barrettjohnston.com
jfrank@barrettjohnston.com
JIMMY JOHN: Illinois Court Narrows Claims in Antitrust Suit
-----------------------------------------------------------
Judge Michael J. Reagan of the U.S. District Court for the Southern
District of Illinois granted in part and denied in part the
Defendants' motion to dismiss the case, SYLAS BUTLER, on behalf of
himself and all others similarly situated, Plaintiffs, v. JIMMY
JOHN'S FRANCHISE, LLC, et al., Defendants, Case No.
18-cv-0133-MJR-RJD (S.D. Ill.).
Section 1 of the Sherman Act prohibits certain agreements that
restrain trade. The class action asks whether franchisees of the
national sandwich chain "Jimmy John's" violated Section 1 by
agreeing amongst themselves and with corporate headquarters not to
hire employees that have worked at another Jimmy John's location
within the preceding year.
Jimmy John's sells and delivers deli-style sandwiches. The chain
has over 2,700 locations in more than 40 states plus the District
of Columbia. About 98% of these locations are franchisees that are
independently owned and operated as separate entities from Jimmy
John's corporate; the other two percent are owned and operated by
Jimmy John's itself. Basically, when a franchisee contracts with
Jimmy John's, the franchisee signs a ten-year franchise agreement
for a fee of $35,000. Those agreements then allow the franchisee
to utilize the Jimmy John's brand in the operation of an
independently owned store.
According to the Plaintiff, these agreements give the franchisees
significant amounts of independence. Not only do the contracts
explicitly provide that the franchisees are independent of Jimmy
John's, but the agreements also state that the franchisees (1) are
responsible for developing the restaurant, including all
obligations and liabilities of the business; (2) do not receive an
exclusive territory; (3) and may face competition from other
franchisees, including in the same delivery area.
The case arises from something that Jimmy John's does make the
franchisees do. The franchise agreements order that the franchisee
must not solicit or initiate recruitment of any person then
employed, or who was employed within the preceding 12 months, by
Jimmy John's, any of its affiliates, or another Jimmy John's
Restaurant franchisee. In plain language, this means that one
Jimmy John's franchisee cannot hire the employee of another Jimmy
John's franchisee, unless that employee has not worked at a Jimmy
John's shop in over a year. If a franchisee violates the no-hire
provision, Jimmy John's headquarters considers it a non-curable
default of the franchise agreement that is grounds for termination
of the entire contract. Termination also subjects the franchisee
to liquidated damages in the form of up to three years' worth of
restaurant royalties, which the franchisee must pay within 15 days
of termination. The penalties are even higher if the employee in
question is a manager.
Butler brings this class action lawsuit on behalf of a nationwide
class of persons who are current or former employees at a Jimmy
John's franchise restaurant. The complaint alleges that Jimmy
John's utilized the employee no-hire agreements in violation of
three statutes: (1) Section 1 of the Sherman Antitrust Act; (2) the
Illinois Antitrust Act; and (3) the Illinois Consumer Fraud and
Deceptive Business Practices Act. Specifically, Butler alleges
that Jimmy John's employees have suffered reduced wages, reduced
hours, reduced employment benefits, loss of professional growth
opportunities, and worsened, illegal working conditions because of
the express restraint of trade among Jimmy John's franchisees, as
orchestrated by Jimmy John's itself. Butler also points out that
the no-hire agreement affects potentially tens of thousands of
businesses in the United States that also sell sandwiches, as Jimmy
John's employees are not allowed to go work at those other
businesses either.
The Defendants have now moved to dismiss the complaint under
Federal Rules of Civil Procedure 12(b)(1) & (6) for a lack of
standing and for failure to state a claim.
Judge Reagan granted in part and denied in part Jimmy John's motion
to dismiss. He dismissed without prejudice the state law claims --
Counts II and III. The Sherman Act claim will proceed.
The Judge finds that if the evidence in the case shows that the
franchisees are truly as independent as Butler pleads, the case
will likely result in a quick look analysis. If the evidence of
franchisee independence is Herculean, then the per se rule might
even apply. And if the evidence of franchisee independence is
weak, or if Jimmy John's carries its burden under the quick look
approach, then the rule of reason may rear its head and burn the
case to the ground. But that is a matter for a later stage in
these proceedings. At this point, he finds that Butler has stated
a plausible claim for relief under Section 1 of the Sherman Act.
In addition, he finds that both of Butler's state-law claims are
deficient. Although the Judge is dubious as to whether Butler will
be able to plead around the issues in the case and save those
state-law claims, he nevertheless granted Butler 30 days to file an
amended complaint, if he so chooses.
A full-text copy of the Court's July 31, 2018 Memorandum and Order
is available at https://goo.gl/vz1iDS from Leagle.com.
Sylas Butler, on behalf of himself and all others similarly
situated, Plaintiff, represented by Derek Y. Brandt --
dyb@mccunewright.com -- McCune Wright Arevalo LLP, Michele M.
Vercoski -- mmv@mccunewright.com -- McCune Wright, LLP, pro hac
vice & Richard D. McCune, Jr. -- rdm@mccunewright.com -- McCune
Wright, LLP, pro hac vice.
Jimmy John's Franchise, LLC, a Delaware limited liability company,
Jimmy John's Enterprises, LLC, a Delaware limited liability company
& Jimmy John's LLC, a Delaware limited liability company,
Defendants, represented by Russell K. Scott -- rks@greensfelder.com
-- Greensfelder, Hemker & Gale PC, Caeli A. Higney --
chigney@gibsondunn.com -- Gibson Dunn & Crutcher LLP, pro hac vice,
Kahn A. Scolnick -- kscolnick@gibsondunn.com -- Gibson, Dunn &
Crutcher, LLP, pro hac vice & Rachel Susan Brass --
rbrass@gibsondunn.com -- Gibson Dunn & Crutcher LLP, pro hac vice.
KANSAS: Seeks 10th Cir. Review of Ruling in Fish v. Kobach
----------------------------------------------------------
Defendant Kris W. Kobach filed an appeal from a court ruling in the
lawsuit titled Fish, et al. v. Kobach, Case No. 2:16-CV-02105-JAR,
in the U.S. District Court for the District of Kansas - Kansas
City.
Kris W. Kobach is sued in his official capacity as Secretary of
State for the state of Kansas.
The appellate case is captioned as Bednasek, et al. v. Kobach, Case
No. 18-3186, in the United States Court of Appeals for the Tenth
Circuit.
As reported in the Class Action Reporter on August 7, 2018, Mr.
Kobach filed an appeal from a court ruling in the lawsuit. That
appellate case is entitled Fish, et al. v. Kobach, Case No.
18-3133.
The Plaintiffs have sought to represent two classes:
(1) all eligible Kansas motor-voter registrants who do not
currently appear on the active voter registration list
due to purported failure to submit documentary proof of
citizenship under Kan. Stat. Ann.; and
(2) Kansas residents eligible to vote who have submitted a
registration application but do not currently appear on
the active voter registration list due to purported
failure to submit documentary proof of citizenship
under Kan. Stat. Ann. and who do not have documentary
proof of citizenship records under their current name
on file with State agencies in Kansas.
The briefing schedule in the Appellate Case is set as follows:
-- Docketing statement is due on September 18, 2018, for Kris
W. Kobach;
-- Transcript order form is due on September 18, 2018, for
Kris W. Kobach;
-- Notice of appearance is due on September 18, 2018, for
Parker Bednasek, Thomas J. Boynton, Donna Bucci, Steven
Wayne Fish, Douglas Hutchinson, Kris W. Kobach, League of
Women Voters of Kansas and Charles Stricker.[BN]
Plaintiff-Appellee PARKER BEDNASEK is represented by:
Paul Treanor Davis, Esq.
FAGAN EMERT & DAVIS, LLC
730 New Hampshire, Suite 210
Lawrence, KS 66044
Telephone: (785) 331-0300
E-mail: pdavis@fed-firm.com
- and -
Mark P. Johnson, Esq.
Samantha Wenger, Esq.
Curtis E. Woods, Esq.
DENTONS
4520 Main Street, Suite 1100
Kansas City, MO 64111
Telephone: (816) 460-2400
E-mail: mark.johnson@dentons.com
samantha.wenger@dentons.com
curtis.woods@dentons.com
Plaintiffs-Appellees STEVEN WAYNE FISH, on behalf of themself and
all others similarly situated; DONNA BUCCI, on behalf of themself
and all others similarly situated; CHARLES STRICKER, on behalf of
themself and all others similarly situated; THOMAS J. BOYNTON, on
behalf of themself and all others similarly situated; DOUGLAS
HUTCHINSON, on behalf of themself and all other similarly situated;
and LEAGUE OF WOMEN VOTERS OF KANSAS are represented by:
Lauren Bonds, Esq.
ACLU FOUNDATION OF KANSAS
6701 West 64th Street, Suite 210
Overland Park, KS 66202
Telephone: (913) 490-4100
E-mail: lbonds@aclukansas.org
- and -
Rodkangyil Orion Danjuma, Esq.
Dale Ho, Esq.
Sophia Lin Lakin, Esq.
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
125 Broad Street, 18th Floor
New York, NY 10004
Telephone: (212) 549-2563
E-mail: odanjuma@aclu.org
dale.ho@aclu.org
slakin@aclu.org
- and -
Daphne Ha, Esq.
Neil A. Steiner, Esq.
Rebecca Kahan Waldman, Esq.
DECHERT LLP
1095 Avenue of the Americas
New York, NY 10036-6797
Telephone: (212) 698-3500
E-mail: daphne.ha@dechert.com
neil.steiner@dechert.com
rebecca.waldman@dechert.com
- and -
Angela M. Liu, Esq.
DECHERT LLP
35 West Wacker Drive, Suite 3400
Chicago, IL 60601
Telephone: (312) 646-5800
E-mail: angela.liu@dechert.com
Plaintiffs-Appellees DONNA BUCCI, on behalf of themself and all
others similarly situated; CHARLES STRICKER, on behalf of themself
and all others similarly situated; THOMAS J. BOYNTON, on behalf of
themself and all others similarly situated; DOUGLAS HUTCHINSON, on
behalf of themself and all other similarly situated; and LEAGUE OF
WOMEN VOTERS OF KANSAS are represented by:
Emily Rong Zhang, Esq.
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
125 Broad Street, 18th Floor
New York, NY 10004
Telephone: (212) 549-2500
E-mail: ezhang@aclu.org
Defendant-Appellant KRIS W. KOBACH, in his official capacity as
Secretary of State for the State of Kansas, is represented by:
Sue Becker, Esq.
Garrett Roe, Esq.
KANSAS SECRETARY OF STATE
120 SW 10th Avenue, 1st Floor
Topeka, KS 66612-1594
Telephone: (785) 296-4564
E-mail: sue.becker@ks.gov
garrett.roe@sos.ks.gov
- and -
Toby Crouse, Esq.
Stanley R. Parker, Esq.
OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF KANSAS
120 SW 10th Street, 2nd Floor
Topeka, KS 66612
Telephone: (785) 296-2215
E-mail: toby.crouse@ag.ks.gov
stanley.parker@ag.ks.gov
KELLOGG SALES: Hadley Appeals Class Cert. Order to 9th Cir.
-----------------------------------------------------------
Plaintiff Stephen Hadley filed an appeal from a court ruling in his
lawsuit titled Stephen Hadley v. Kellogg Sales Company, Case No.
5:16-cv-04955-LHK, in the U.S. District Court for the Northern
District of California, San Jose.
The appellate case is captioned as Stephen Hadley v. Kellogg Sales
Company, Case No. 18-80107, in the United States Court of Appeals
for the Ninth Circuit.
As reported in the Class Action Reporter on Sept. 12, 2018, Kellogg
filed an appeal from a court ruling in the lawsuit. That appellate
case is styled as Stephen Hadley v. Kellogg Sales Company, Case No.
18-80106.
The Hon. Judge Lucy H. Koh had entered an order on August 17,
2018:
1. granting in part and denying in part Plaintiff's motion for
class certification;
2. denying Kellogg's motion to exclude the opinion testimony
of Steven P. Gaskin under Daubert;
3. certifying following Rule 23(b)(3) class, which is composed
of three subclasses:
"all persons in California who, on or after August 29,
2012, purchased for household use and not for resale or
distribution";
Raisin Bran Subclass:
"Kellogg's Raisin Bran (including Omega-3) or Kellogg's
Raisin Bran Crunch Cereals in a 13.7 oz., 14.3 oz., 18.2
oz., 18.7 oz., 23.5 oz., 24.8 oz., 29 oz., 30.3 oz.,
43.3 oz., 56.6 oz., or 76.5 oz. package stating heart
healthy";
Smart Start Subclass:
"Kellogg's Smart Start Original Antioxidants cereal in a
17.3 oz. package"; and
Frosted Mini-Wheats Subclass:
"Kellogg's Frosted Mini-Wheats Bite Size (Original,
Maple Brown Sugar, Strawberry, or Blueberry varieties),
Big Bites (Original variety), Little Bites (Chocolate or
Cinnamon Roll varieties), or Touch of Fruit in the
Middle (Mixed Berry and Raspberry varieties) cereals in
a 15.2 oz., 15.5 oz., 15.8 oz., 16.5 oz., 18 oz., 21
oz., or 24 oz. package."
4. appointing Stephen Hadley as representative of the class.
As Kellogg does not challenge the adequacy of proposed
class counsel;
5. appointing Jack Fitzgerald of The Law Office of Jack
Fitzgerald, P.C., as class counsel.[BN]
Plaintiff-Petitioner STEPHEN HADLEY, on behalf of himself, all
others similarly situated, and the general public, is represented
by:
Jack Fitzgerald, Esq.
Trevor Flynn, Esq.
THE LAW OFFICE OF JACK FITZGERALD, PC
3636 Fourth Avenue, Suite 202
San Diego, CA 92103
Telephone: (619) 692-3840
Facsimile: (619) 362-9555
E-mail: jack@jackfitzgeraldlaw.com
trevor@jackfitzgeraldlaw.com
Defendant-Respondent KELLOGG SALES COMPANY is represented by:
Kenneth K. Lee, Esq.
Alexander Smith, Esq.
JENNER & BLOCK LLP
633 West 5th Street, Suite 3600
Los Angeles, CA 90071
Telephone: (213) 239-5152
E-mail: klee@jenner.com
asmith@jenner.com
- and -
Dean N. Panos, Esq.
JENNER & BLOCK LLP
353 N. Clark Street
Chicago, IL 60654
Telephone: (312) 923-2765
E-mail: dpanos@jenner.com
KIND LLC: Faces Song Suit Alleging Product Liability Claims
-----------------------------------------------------------
A class action lawsuit has been filed against Kind LLC and Kind
INC. The case is styled as Cassandra Song, individually and on
behalf of all others similarly situated v. Kind LLC and Kind INC.,
Case No. 1:18-cv-04982 (E.D.N.Y., September 4, 2018).
The Plaintiff filed the case asserting product liability claims.
KIND LLC engages in the production and distribution of bars, grains
bars, breakfast bars, fruit snacks, and grains clusters. The
Company sells its products online, as well as through online
retailers. The company was incorporated in 1998 and is based in
New York City.[BN]
The Plaintiff is represented by:
Spencer I. Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
891 Northern Blvd., Suite 201
Great Neck, NY 11021
Telephone: (516) 303-0552
Facsimile: (516) 234-7800
E-mail: spencer@spencersheehan.com
L'OREAL USA: Claims in Suit Over Amla Legend Hair Relaxer Narrowed
------------------------------------------------------------------
In the case, In re: AMLA LITIGATION, Case No. 16-cv-6593 (S.D.
N.Y.), Judge Jed S. Rakoff of the U.S. District Court for the
Southern District of New York (i) decertified both 23(b)(2)
classes, the Florida 23(b)(3) class, and the New York 23(b)(3)
class as to its unjust enrichment claims; (ii) dismissed all claims
for injunctive and declaratory relief, all claims related to the
dangerousness of the relaxer cream, the New York Plaintiffs' unjust
enrichment claim, and the California Plaintiffs' fraud and
negligent misrepresentation claims that are premised on omissions;
(iii) denied Defendants' the motion for summary judgment as to all
remaining claims premised on the alleged dangerousness of the scalp
protector, misleading representations or warranties regarding its
functionality, and implicit misrepresentations that the product is
safer than relaxers that contain lye.
Nine individuals from eight different states brought 15n claims
against the Defendants L'Oreal. All claims are based on alleged
defects in the Amla Legend Rejuvenating Ritual Relaxer, which is
used to chemically straighten naturally curly hair. The product is
a single kit that contains five components: (1) the scalp
protector, (2) a relaxer cream, (3) a shampoo, (4) a conditioner,
and (5) an oil moisturizer. The Plaintiffs allege that defects in
the relaxer cream and scalp protector render the product
unreasonably dangerous and that L'Oreal misrepresented the
product's safety and breached various related warranties, causing
the Plaintiffs to suffer economic and physical injuries.
The Court previously certified a class of New York consumers,
defined as all persons who bought one or more of the Products in
New York from August 19, 2013 to the present; and a class of
Florida consumers, defined as all persons who bought one or more of
the Products in Florida from Dec. 1, 2012 to the present.
Both classes were certified under Rule 23(b)(3) to bring unjust
enrichment claims, and the New York class to also seek $50 in
statutory damages for each class member pursuant to New York's
General Business Law ("NYGBL") Section 349. The classes were also
certified under Rule 23(b)(2) to seek injunctive and declaratory
relief pursuant to Florida's Deceptive and Unfair Trade Practices
Act ("FDUTPA"), and NYGBL Section 349. The motions for class
certification were otherwise denied. The Class notice was complete
on Feb. 28, 2018 and the opt-out date was April 2, 2018.
L'Oreal now moves for summary judgment on all claims. Following
briefing and oral argument, the Court, on April 3, 2018, issued a
preliminary "bottom line" order, denying in part and granting in
part L'Oreal's motion, as well as ordering supplemental briefing on
claims involving the scalp protector. Thereafter, however, the
Court held an in-court hearing with testimony from the Plaintiffs'
key expert, Patrick Obukowho, to determine the admissibility of his
testimony for purposes of summary judgment, and ordered further
briefing on several issues.
Having duly considered the voluminous briefing and argument from
both parties, as well as the testimony of Mr. Obukowho, Judge
Rakoff now (1) decertifief the 23(b)(3) unjust enrichment classes;
(2) decertified the 23(b)(2) classes seeking injunctive and
declaratory relief; and (3) granted L'Oreal's motion for summary
judgment as to (A) all claims for injunctive and declaratory
relief; (B) all claims related to the dangerousness of the relaxer
cream; (C) the New York Plaintiffs' unjust enrichment claims; and
(D) the California Plaintiffs' fraud and negligent
misrepresentation claims insofar as they are premised on omissions.
However, the Judge denied the motion as to (1) the NYGBL claims,
both on behalf of the New York class and the individual named
Plaintiffs; (2) all remaining claims based on the alleged
dangerousness of the scalp protector and representations or
warranties regarding its ability to protect scalps; and (3) all
remaining claims premised on implicit misrepresentations that the
product is safer than relaxers that contain lye.
Among other things, the Judge finds that (i) that Obukowho's
conclusion that the relaxer cream is unreasonably dangerous because
it works so quickly is inadmissible; (ii) the handful of studies
and communications referencing higher levels of customer complaints
are insufficient for a reasonable juror to find that the product is
unreasonably dangerous; (iii) the Plaintiffs have thus shown a
genuine dispute as to whether the scalp protector in fact protects
scalps from the hydroxide in the relaxer cream, whether
representations and warranties to the contrary are misleading or
were breached, whether this flaw renders the kit unreasonably
dangerous, and whether the defect caused their physical injuries;
(iv) the Dennis survey regarding the no-lye representation is
therefore admissible, and a genuine dispute exists as to whether
that representation, alone or in combination with others on the
box, meaningfully communicates to users that it is safer or gentler
than relaxers that do contain lye; and (v) although the Plaintiffs
did not include the individual claims in their class certification
motion, they originally sought to represent a nationwide class as
to their MMWA claims.
The Judge holds that summary judgment is appropriate if the movant
shows that there is no genuine dispute as to any material fact.
There is no genuine dispute if, drawing all reasonable inferences
in favor of a non-movant, no reasonable trier of fact could find in
favor of that party. A fact is material if it might affect the
outcome of the suit under the governing law.
The Clerk of Court is directed to close all open motions on the
docket of the case.
A full-text copy of the Court's July 31, 2018 Opinion and Order is
available at https://goo.gl/TksjwS from Leagle.com.
Tiffany Raines, on behalf of themselves and all others similarly
situated & Sandi Turnipseed, on behalf of themselves and all others
similarly situated, Plaintiffs, represented by Andrea Gold --
agold@tzlegal.com -- Tycko & Zavareei, LLP, Michael Harris Rosner,
Levi & Korsinsky, LLP, Nick Suciu, III, Barbat Mansour & Suciu
PLLC, John A. Yanchunis, Morgan & Morgan, P.A., Rachel L. Soffin ,
Morgan & Morgan, Rosemary M. Rivas -- rrivas@zlk.com -- Levi &
Korsinsky LLP, Jonathan K. Tycko , Tycko & Zavareei LLP & Lori Gwen
Feldman, Levi & Korsinsky, LLP.
Lavette Jacobs, on behalf of themselves and all others similarly
situated, Plaintiff, represented by Andrea Gold, Tycko & Zavareei,
LLP, Michael Harris Rosner, Levi & Korsinsky, LLP, Nick Suciu, III,
Barbat Mansour & Suciu PLLC, Rachel L. Soffin , Morgan & Morgan,
Charles E. Schaffer, Levin, Fishbein, Sedran & Berman, John A.
Yanchunis, Morgan & Morgan, P.A., Jonathan Betten Cohen, Morgan &
Morgan Complex Litigation Group, Rosemary M. Rivas, Levi &
Korsinsky LLP, Jonathan K. Tycko, Tycko & Zavareei LLP & Lori Gwen
Feldman , Levi & Korsinsky, LLP.
Terri Oravillo, Plaintiff, represented by Michael Harris Rosner,
Levi & Korsinsky, LLP, Nick Suciu, III, Barbat Mansour & Suciu
PLLC, John A. Yanchunis, Morgan & Morgan, P.A., Rachel L. Soffin,
Morgan & Morgan, Rosemary M. Rivas, Levi & Korsinsky LLP, Andrea
Gold , Tycko & Zavareei, LLP & Lori Gwen Feldman, Levi & Korsinsky,
LLP.
Malinda Johnson, Tara Riles, Devon Harris, Alexis Holman, RaShea
Martin & Tarsha Hankinson, Plaintiffs, represented by Elizabeth S.
Metcalf, Safirstein Metcalf LLP, Peter George Safirstein,
Safirstein Metcalf LLP, Rachel L. Soffin, Morgan & Morgan & John A.
Yanchunis, Morgan & Morgan, P.A.
Delecia Taylor, Plaintiff, represented by Michael Harris Rosner,
Levi & Korsinsky, LLP, Charles Joseph LaDuca, Cuneo Gilbert &
LaDuca, LLP, Ling Y. Kuang, Audet & Partners, LLP, Michael Andrew
McShane, Audet & Partners, LLP, Rachel L. Soffin, Morgan & Morgan,
Rosemary M. Rivas, Levi & Korsinsky LLP, S. Clinton Woods, Audet &
Partners, LLP, William Harold Anderson, Cuneo Gilbert & Laduca,
LLP, John A. Yanchunis, Morgan & Morgan, P.A. & Lori Gwen Feldman,
Levi & Korsinsky, LLP.
Nicole Coleman & Jennifer Sanon, Plaintiffs, represented by Michael
Harris Rosner, Levi & Korsinsky, LLP, Rosemary M. Rivas, Levi &
Korsinsky LLP & Lori Gwen Feldman, Levi & Korsinsky, LLP.
Jasmine Hervey, Plaintiff and Proposed Class Representative,
Plaintiff, represented by Rosemary M. Rivas, Levi & Korsinsky LLP.
Kishta Finch, Consolidated Plaintiff, represented by Gregory
Bradley Linkh , Glancy Prongay & Murray LLP, Michael Harris Rosner,
Levi & Korsinsky, LLP, Bryan Lee Clobes, Cafferty Faucher LLP,
Nyran Rose Rasche, Cafferty Faucher LLP, Rachel L. Soffin, Morgan &
Morgan, Rosemary M. Rivas, Levi & Korsinsky LLP, John A. Yanchunis,
Morgan & Morgan, P.A. & Lori Gwen Feldman, Levi & Korsinsky, LLP.
Kishta Finch, on behalf of all others similarly situated,
Consolidated Plaintiff, represented by Gregory Bradley Linkh,
Glancy Prongay & Murray LLP & Rachel L. Soffin, Morgan & Morgan.
Sharon Manier, Individually and on Behalf of All Others Similarly
Situated, Consolidated Plaintiff, represented by Andrea Lee
Clisura, Levi & Korsinsky, LLP, Benjamin Jared Meiselas, Geragos
and Geragos APC, pro hac vice, Courtney Elizabeth Maccarone, Levi &
Korsinsky, LLP, Lori Gwen Feldman, Levi & Korsinsky, LLP & Mark J.
Gerago, Geragos & Geragos, Apc, pro hac vice.
Dorothy Riles, Individually and on Behalf of All Others Similarly
Situated, Consolidated Plaintiff, represented by Andrea Lee
Clisura, Levi & Korsinsky, LLP, Benjamin Jared Meiselas, Geragos
and Geragos APC, pro hac vice, Courtney Elizabeth Maccarone, Levi &
Korsinsky, LLP, Lori Gwen Feldman, Levi & Korsinsky, LLP, Mark J.
Geragos, Geragos & Geragos, Apc, pro hac vice, Michael Harris
Rosner, Levi & Korsinsky, LLP & Rosemary M. Rivas, Levi & Korsinsky
LLP.
L'Oreal U.S.A., Inc. & Soft Sheen-Carson, LLC, Defendants,
represented by M.D. Scully -- mscully@grsm.com -- Gordon & Rees
LLP, Nora Coleman, Haworth Coleman & Gerstman, LCC, Peter George
Siachos -- psiachos@grsm.com -- Gordon & Rees, LLP, Scott Lawrence
Haworth -- scott.haworth@hrglawfirm.com -- Haworth, Coleman &
Gerstman, LLC, Ilene R. Goodman, Haworth Coleman & Gerstman, LCC &
Justin Daniel Lewis -- jlewis@grsm.com -- Gordon & Rees Scully
Mansukhani LLP.
LANNETT CO: Bid to Dismiss Utesch Securities Fraud Suit Granted
---------------------------------------------------------------
Judge Wendy Beetlestone of the U.S. District Court for the Eastern
District of Pennsylvania granted the Defendants' motion to dismiss
the case, JOHN UTESCH, Plaintiff, v. LANNETT COMPANY, INC., ARTHUR
P. BEDROSIAN AND MARTIN P. GALVAN, Defendants, Civil Action No.
16-5932 (E.D. Pa.).
The case is a putative securities class action centered on alleged
misstatements and omissions made by Lannett, a pharmaceutical
company, and its CEO Bedrosian and CFO Galvan. The Lead Plaintiff,
the University of Puerto Rico Retirement System, avers that the
Defendants misrepresented the nature of price competition for
certain generic drugs that Lannett produced. The Defendants
allegedly colluded with other manufacturers to price-fix certain
generic drugs, all while simultaneously touting Lannett's legal
compliance to investors.
The Plaintiff alleges that Lannett colluded with other
manufacturers to fix the price of several generic drugs, including
Doxycycline Monohydrate, Digoxin, Levothyroxine Sodium,
Acetazolamide, and Ursodiol. Lannett derives the majority of its
revenue from the sale of the Generic Drugs. The Plaintiff seeks to
recover on behalf of the class for alleged damages it suffered as a
result of the Defendants' misstatements and omissions from May 9,
2013 to Oct. 31, 2017.
The Plaintiff asserts securities fraud claims under Section 10(b)
of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder against all the Defendants, as well as individual claims
under Section 20(a) against Bedrosian and Galvan. All of its
securities fraud claims turn on an underlying allegation that the
Defendants violated antitrust laws.
The Defendants move to dismiss all of the claims under Rule
12(b)(6) of the Federal Rules of Civil Procedure, arguing that the
Plaintiff has failed to adequately plead scienter in support of its
claims.
Judge Beetlestone granted the Defendants' motion. He finds that
the scienter allegations do not give rise to a strong inference
that the Defendants acted with fraudulent intent in representing
that the market for Generic Drugs was price competitive or that
Lannett had effective internal controls over its financial
reporting. As currently styled, the Plaintiff's theory of
securities fraud liability is premised on misstatements that Galvan
or Bedrosian made in either SEC filings or conference calls with
investors and analysts. Because their scienter allegations are
deficient as to both individuals, the scienter pleading is
accordingly deficient for Lannett as well.
While sketching the contours of Lannett's alleged antitrust
violations is necessary for the success of the Plaintiff's claims,
the Judge finds that it is not sufficient to satisfy the scienter
standard for securities fraud. That requires more a "strong
inference" that Bedrosian, Galvan, and Lannett acted with a
culpable state of mind. The Plaintiff has not met that standard.
Thus, the Rule 10b-5 claims against all the Defendants are
dismissed without prejudice. The Plaintiff will be given leave to
amend to address the scienter pleading deficiency.
Finally, Section 20(a) of the Securities Exchange Act authorizes a
cause of action against individuals who control a corporation that
has violated Section 10(b). 15 U.S.C. Section 78t(a). Therefore,
liability under Section 20(a) is derivative of an underlying
violation of Section 10(b) by the controlled person. Because the
Plaintiff has failed to adequately plead scienter, the Judge holds
that the Section 20(a) claim against Bedrosian and Galvan
necessarily fails and dismissed without prejudice.
An order follows.
A full-text copy of the Court's July 31, 2018 Opinion is available
at https://goo.gl/xSiH1x from Leagle.com.
UNIVERSITY OF PUERTO RICO RETIREMENT SYSTEM, Lead Plaintiff,
represented by LAWRENCE D. LEVIT, ABRAHAM FRUCHTER & TWERSKY LLP,
MATTHEW GUARNERO, ABRAHAM FRUCHTER & TWERSKY LLP, MITCHELL M.Z.
TWERSKY, ABRAHAM FRUCHTER & TWERSKY LLP, TODD KAMMERMAN, ABRAHAM
FRUCHTER & TWERSKY LLP, DAVID M. PROMISLOFF -- david@prolawpa.com
-- PROMISLOFF LAW, P.C. & JEFFREY J. CIARLANTO, Profy Promisloff &
Ciarlanto, P.C.
JOHN UTESCH, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY
SITUATED, Plaintiff, represented by FRANCINE FRIEDMAN GRIESING --
fgriesing@griesinglaw.com -- GRIESING LAW LLC, JACOB A. GOLDBERG --
jgoldberg@rosenlegal.com -- THE ROSEN LAW FIRM, DAVID M.
PROMISLOFF, PROMISLOFF LAW, P.C. & MICHAEL J. HYNES --
info@hynesauto.com -- HYNES KELLER & HERNANDEZ.
LANNETT COMPANY, INC., ARTHUR P. BEDROSIAN & MARTIN P. GALVAN,
Defendants, represented by IAN M. COMISKY, BLANK ROME, LLP, MATTHEW
DAVID LEE, FOX ROTHSCHILD LLP & NATHAN HUDDELL, FOX ROTHSCHILD
LLP.
LTD FINANCIAL: Consumers Class Certified Under FDCPA in Saroza Suit
-------------------------------------------------------------------
The Hon. Jose L. Linares granted, subject to certain terms and
conditions, the Motion for Class Certification filed by the
Plaintiff in the lawsuit entitled NESTOR SAROZA, on behalf of
himself and all others similarly situated v. LTD FINANCIAL
SERVICES, L.P., Case No. 2:16-cv-06259-JLL-JAD (D.N.J.).
The Class consists of:
All consumers located in New Jersey that were sent a letter
or notice by LTD FINANCIAL SERVICES, L.P., during the Class
Period, similar to Exhibit A to the Complaint that included
the language, "IRS requires certain amounts that are
discharged as a result of the cancellation of debt to be
reported on a Form 1099-C."
The Class is certified as a Class pursuant Rule 23(b)(3) of the
Federal Rules of Civil Procedure, as to claims for damages under
the Fair Debt Collection Practices Act.
The Class Period is the continuous period beginning October 1,
2015, and ending October 1, 2016. Plaintiff Nestor Saroza is
designated as Class Representative for the Class, and his attorney
is appointed as Class Counsel for the Class.
MARQUEE CONSTRUCTION: Underpays Construction Workers, Camps Claim
-----------------------------------------------------------------
BRAD CAMP; and BRIAN CAMP, individually and on behalf of all others
similarly situated, Plaintiffs v. MARQUEE CONSTRUCTION, INC.; MARK
E. HEINY and KEITH W. ECKLES, Defendants. Case No.
2:18-cv-00831-ALM-EPD (S.D. Ohio., Aug. 9, 2018) is an action
against the Defendants for failure to pay overtime wages under the
Fair Labor Standards Act.
Mr. Brad Camp was employed by the Defendants as construction worker
from September 2016 to July 2018. Mr. Brian Camp was employed as
construction worker from the year 1996 to July 2018.
Marquee Construction, Inc. is a corporation organized under the
laws of the State of Ohio. It is engaged as a construction company.
[BN]
The Plaintiffs are represented by:
Kevin M. McDermott II, Esq.
Joseph F. Scott, Esq.
SCOTT & WINTERS LAW FIRM, LLC
812 E. Huron Rd. E., Suite 490
Cleveland, OH 44115
Telephone: (216) 912-2221
Facsimile: (216) 350-6313
E-mail: jscott@ohiowagelawyers.com
kmcdermott@ohiowagelawyers.com
MDL 2672: VWGoA Can Enforce 2-Liter Settlement Release v. Maciel
----------------------------------------------------------------
In the case, IN RE: VOLKSWAGEN "CLEAN DIESEL" MARKETING, SALES
PRACTICES, AND PRODUCTS LIABILITY LITIGATION. This Order Relates
To: Dkt. No. 5068, MDL No. 2672 CRB (JSC) (N.D. Cal.), Judge of the
U.S. District Court for the Northern District of California (i)
granted Volkswagen Group of America, Inc. ("VWGoA")'s motion to
enforce the 2.0-liter settlement release against Maria Luisa
Maciel; and (ii) enjoined Ms. Maciel from continuing to prosecute
the released claims in her state court suit in the 406th Judicial
District Court of Webb County, Texas, Case No. 2017CVK001839D4.
On June 29, 2018, the Court ordered 2.0-liter class member Ms.
Maciel to show cause, if any, for why the Court should not enjoin
her from continuing to pursue released claims in her suit against
VWGoA and Ancira Volkswagen of Laredo in Texas state court. Ms.
Maciel has not shown cause and the date by which to do so has now
passed.
A full-text copy of the Court's July 31, 2018 Order is available at
https://goo.gl/74oLLo from Leagle.com.
Nicholas Benipayo, Plaintiff, represented by Robert B. Carey --
rob@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice,
Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro
LLP, pro hac vice & Thomas Eric Loeser -- toml@hbsslaw.com --
Hagens Berman Sobol Shapiro LLP, pro hac vice.
David Fiol, Plaintiff, represented by William M. Audet, Audet &
Partners, LLP, Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP,
Peter B. Fredman -- peter@peterfredmanlaw.com -- Law Office of
Peter Fredman, Robert B. Carey, Hagens Berman Sobol Shapiro LLP,
pro hac vice, Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro
hac vice & Thomas Eric Loeser, Hagens Berman Sobol Shapiro LLP, pro
hac vice.
Nadine Bonda, Plaintiff, represented by Adam M. Stewart --
astewart@shulaw.com -- Shapiro Haber & Urmy LLP & Thomas G. Shapiro
-- tshapiro@shulaw.com -- Shapiro Haber and Urmy, LLP.
Brian Connelly, Plaintiff, represented by Thomas G. Shapiro.
Nicholas Allen, Plaintiff, represented by Caleb Marker --
caleb.marker@zimmreed.com -- Zimmerman Reed LLP, pro hac vice &
Charles S. Zimmerman -- charles.zimmerman@zimmreed.com -- Zimmerman
Reed, PLLP, pro hac vice.
Brett Alters, Plaintiff, represented by Elizabeth J. Cabraser,
Lieff Cabraser Heimann & Bernstein, LLP, David S. Stellings, Lieff
Cabraser Heimann and Bernstein, Kevin R. Budner, Lieff, Cabraser,
Heimann and Bernstein, LLP, Nicholas Diamand, Lieff Cabraser
Heimann and Bernstein LLP, Phong-Chau Gia Nguyen, Lieff Cabraser
Heimann & Bernstein, LLP, Tana Lin -- tlin@kellerrohrback.com --
Keller Rohrback LLP & Todd A. Walburg, Lieff, Cabraser, Heimann,
Bernstein.
Donald Ardine, Plaintiff, represented by Amy Williams-Derry --
awilliams-derry@kellerrohrback.com -- Keller Rohrback L.L.P., Dean
Noburu Kawamoto -- dkawamoto@kellerrohrback.com -- Keller Rohrback
LLP, Derek William Loeser -- dloeser@kellerrohrback.com -- Keller
Rohrback, LLP, Gretchen Freeman Cappio --
gcappio@kellerrohrback.com -- Keller Rohrback, LLP, pro hac vice,
Lynn L. Sarko -- lsarko@kellerrohrback.com -- Keller Rohrback
L.L.P., pro hac vice & Tana Lin, Keller Rohrback LLP.
Annie Argento, Plaintiff, represented by Amy Williams-Derry, Keller
Rohrback L.L.P., Dean Noburu Kawamoto, Keller Rohrback LLP, Derek
William Loeser, Keller Rohrback, LLP, Gretchen Freeman Cappio,
Keller Rohrback, LLP, pro hac vice, Lynn L. Sarko, Keller Rohrback
L.L.P., pro hac vice & Tana Lin, Keller Rohrback LLP.
Arkansas State Highway Employees Retirement System, Plaintiff,
represented by Jai K. Chandrasekhar -- jai@blbglaw.com -- Bernstein
Litowitz Berger Grossmann LLP, pro hac vice, James A. Harrod --
jim.harrod@blbglaw.com -- Bernstein Litowitz Berger Grossmann LLP,
Matthew I. Henzi -- mhenzi@swappc.com -- Sullivan, War, Niki L.
Mendoza, Bernstein Litowitz Berger & Grossmann LLP, Ross M.
Shikowitz -- ross@blbglaw.com -- Bernstein Litowitz Berger
Grossmann LLP, pro hac vice & Susan Rebbeca Podolsky, The Law
Offices of Susan R. Podolsky.
Volkswagen Group of America, Inc., Defendant, represented by Amie
Adelia Vague -- avague@lightfootlaw.com -- Lightfoot Franklin &
White, Casey Erin Lucier -- clucier@mcguirewoods.com --
McGuireWoods LLP, Charles J. Baker, III -- cbaker@wcsr.com --
Womble Carlyle Sandridge and Rice, Colin Hampton Tucker --
chtucker@rhodesokla.com -- Rhodes Hieronymus Jones Tucker & Gable,
Dana Woodrum Lang -- wlang@wcsr.com -- Womble Carlyle Sandridge and
Rice, David M. Eisenberg, Baker, Sterchi, Cowden & Rice, LLC,
Elizabeth L. Deeley -- elizabeth.deeley@kirkland.com - - Kirkland &
Ellis LLP, Henry Buist Smythe, Jr., Womble Carlyle Sandridge and
Rice, Howard Feller, McGuireWoods LLP, Hugh J. Bode, Reminger &
Reminger Co LPA, J. Randolph Bibb, Jr., Lewis, Thomason, King,
Krieg & Waldrop, P.C., James K. Toohey, Johns & Bell LTD, Jeffrey
L. Chase, Chase Kurshan Herzfeld & Rufin LLC, Jeffrey S. Rugg,
Brownstein Hyatt Farber Schreck, LLP, Jennifer Marino Thibodaux,
Gibbons PC, John W. Cowden, Baker, Sterchi, Cowden & Ric, LLC-KCMO,
John W. Cowden, Baker Sterchi Cowden and Rice LLC, John L. Hone,
Lipshultz and Hone Chtd, John H. Tucker, Rhodes Hieronymus Jones
Tucker & Gable, Kerry R. Lewis, Rhodes Hieronymus Jones Tucker &
Gable, Kurt E. Lindquist, II, Womble Carlyle Sandridge & Rice,
PLLC, Larry Martin Roth, Rumberger,
Kirk & Caldwell, PA, Michael D. Begey, Rumberger, Kirk & Caldwell,
PA, Michael R. McDonald, Gibbons PC, Natalie Marie Lefkowitz, Chase
Kurshan Herzfeld & Rubin LLC, Ronald G. DeWald, Lipshultz and Hone
Chtd, Russ Ferguson, Womble Carlyle Sandridge & Rice LLP, Ryan
Nelson Clark, Lewis, Thomason, King, Krieg & Waldrop, P.C., Sara
Anne Ford, Lightfoot Ffanklin & White LLC, Seth Abram Schaeffer,
McGuireWoods LLP, Thomas R. Valen, Gibbons PC, William L. Boesch,
Sugarman Rogers Barshak & Cohen, Adam K. Bult, Brownstein Hyatt
Farber Schreck, Allison Rachel McLaughlin, Wheeler Trigg O'Donnell
LLP, Andrew Brian Clubok, Kirkland & Ellis, pro hac vice, Andrew R.
Levin, Sugarman Rogers Barshak & Cohen, PC, Andrew R. Levin,
Sugarman, Rogers, Barshak & Cohen, P.C., Anne Katherine Guillory,
Dinsmore & Shohl LLP, April L. Watson, Sessions, Fishman & Nathan,
Benjamin K. Reitz, Brownstein Hyatt Farber Schreck, Blake Adam
Gansborg, Wheeler Trigg O'Donnell, LLP, Brett R. Leland, Verrill
Dana LLP, Brian C. Langs, Johnson & Bell LTD, C. Vernon Hartline,
Jr., Hartline Dacus Barger Dreyer LLP, pro hac vice, Carine M.
Williams, Sullivan & Cromwell LLP, pro hac vice, Caroline M.
Tinsley, BAKER AND STERCHI, LLC, Charles William McIntyre, Jr.,
McGuireWoods LLP, Charles Pendleton Mitchell, Rumberger Kirk &
Caldwell,
Christine Kingston, Nelson Mullins Riley & Scarborough LLP,
Christopher Edward Tribe, McGuireWoods LLP Gateway Plaza, Dan R.
Larsen, Dorsey and Whitney LLP, Darrell L. Barger, Hartline Dacus
Barger Dreyer LLP, David L. Ayers, Watkins and Eager PLLC, David A.
Barry, Esq., Sugarman Rogers Barshak & Cohen, David N. May,
Bradshaw Fowler Proctor & Fairgrove, David M.J. Rein, Sullivan &
Cromwell LLP, David T. Schaefer, Dinsmore & Shohl LLP, Edward W.
Hearn, JOHNSON & BELL, PC, Elena Lalli Coronado, Sullivan and
Cromwell, Elizabeth Righton Johnson, Balch & Bingham LLP, Emily
Anne Ellis, Brownstein Hyatt Farber Shreck, Eric R. Burris,
Brownstein Hyatt Farber Schreck, Erin Patricia Mead, Thorn,
Gershon, Tymann & Bonanni, LLP, Gail Ponder Gaines, Barber Law Firm
PLLC, Garrett L. Boehm, Jr., Johnson & Bell LTD, Harlan I. Prater,
IV, Lightfoot, Franklin & White, Hugh Brown McNatt, McNatt, Greene
& Peterson, J. Gordon Cooney, Jr., Morgan Lewis & Bockius LLP,
James L. Hollis, Balch & Bingham, Jeffrey L. Chase, Herzfeld &
Rubin PC, Jimmy B. Wilkins, WATKINS & EAGER, Jo E. Peifer, Lavin,
O'Neil, Ricci, Cedrone & DiSipio, John David Ayers, WATKINS &
EAGER, PLLC, John D. Donovan, Jr., Ropes and
Gray LLP, John Alan Knox, Williams Kastner & Gibbs, John Garrett
McCarthy, Sullivan and Cromwell LLP, pro hac vice, John Thomas
Prisbe, Venable LLP, Jonathan M. Hoffman, MB Law Group, LLP, Joy
Goldberg Braun, Sessions, Fishman, Nathan & Israel, Kenneth Abrams,
McGuire Woods LLP, Kevin P. Polansky, Nelson Mullins Riley &
Scarborough LLP, Laura Kabler Oswell, Sullivan & Cromwell LLP, Mark
A. Weissman, Herzfeld & Rubin, P.C., pro hac vice, Mary E. Bolkcom,
Hanson Bolkcom Law Group, Ltd., Matthew A. Schwartz, Sullivan and
Cromwell LLP, pro hac vice, Melissa Fletcher Allaman, Nelson,
Mullins, Riley & Scarborough, LLP, Meredith J. McKee, Womble
Carlyle Sandridge & RIice, PLLC, Meredith J. McKee, Womble Carlyle
Sandridge & Rice, Michael Thad Allen, Day Pitney LLP-HTFD, Michael
B. Gallub, Herzfeld and Rubin, pro hac vice, Michael E. Hale,
Barber Law Firm PLLC, Michael L. O'Don ell, Wheeler Trigg
O'Donnell, LLP, Michael H. Steinberg, Sullivan & Cromwell, LLP,
Michael A. Yoshida, MB Law Group, LLP, Mickey W. Greene, Hanson
Bolkcom Law Group, Ltd., Miranda Hanley, Smith Welch Webb & White,
LLC, Ningur Akoglu, Herzfeld & Rubin PC, Patricia Rodriguez
Britton, Nelson Mullins Riley Scarborough LLP, Patrick Demetrios
Grindlay, Paul T. Collins, Nelson Mullins Riley & Scarborough LLP,
pro hac vice, Paul E.D. Darsow, Hanson Bolkcom Law Group, Ltd.,
Paul D. Williams, Day Pitney LLP-Htfd-CT, Richard White Crews, Jr.,
Hartline Dacus Barger Dreyer LLP, Righton Johnson, Robert J.
Giuffra, Jr., Sullivan and Cromwell LLP, Ryan P. McCarthy, Morgan,
Lewis & Bockius LLP, Ryan A.
Morrison, Dinsmore & Shohl LLP, S. Keith Hutto, Nelson Mullins
Riley & Scarborough, Sarah Motley Stone, Womble Carlyle Sandridge &
Rice, PLLC, Sharon L. Nelles, Sullivan and Cromwell LLP, Sharon L.
Nelles, Sullivan & Cromwell LLP, pro hac vice, Shawn P. George,
George & Lorensen, Stanley Abbott Roberts, McGuireWoods LLP,
Stephen D. Bell, Dorsey & Whitney LLP, Steve S. Tervooren, Hughes
Gorski Seedorf Odsen & Tervooren LLC, Stuart A. Drake, Kirkland and
Ellis LLP, pro hac vice, Suhana S. Han, Sullivan and Cromwell LLP,
pro hac vice, Sverker K. Hogberg, Sullivan & Cromwell LLP, Thomas
R. Ferguson, III, Womble Carlyle Sandridge & Rice, PLLC, Thomas W.
Purcell, MB Law Group LLP, William B. Monahan, Sullivan and
Cromwell LLP, pro hac vice & William Henry Wagener, Sullivan and
Cromwell LLP, pro hac vice.
Audi AG, Defendant, represented by Elizabeth L. Deeley --
elizabeth.deeley@kirkland.com - Kirkland & Ellis LLP, Matthew Henry
Marmolejo -- mmarmolejo@mayerbrown.com -- Mayer Brown LLP, Michael
Howard Steinberg -- steinbergm@sullcrom.com -- Sullivan & Cromwell,
LLP, Andrew Brian Clubok - andrew.clubok@kirkland.com -- Kirkland &
Ellis, pro hac vice, Andrew R. Levin -- levin@sugarmanrogers.c0m --
Sugarman, Rogers, Barshak & Cohen, P.C., Brett R. Leland -
bleland@verrilldana.com -- Verrill Dana LLP, David Maxwell James
Rein -- reind@sullcrom.com -- Sullivan & Cromwell LLP, G. Stewart
Webb, Jr. -- gswebb@Venable.com -- Venable LLP, Garrett L. Boehm,
Jr. -- boehmg@jbltd.com -- Johnson & Bell LTD, J. Gordon Cooney,
Jr. -- gordon.cooney@morganlewis.com -- Morgan Lewis & Bockius
LLP,
James K. Toohey -- tooheyj@jbltd.com -- Johns & Bell LTD, John
Thomas Prisbe -- jtprisbe@venable.com -- Venable LLP, Laura Kabler
Oswell -- oswelll@sullcrom.com -- Sullivan & Cromwell LLP, Robert
J. Giuffra, Jr. -- giuffrar@sullcrom.com -- Sullivan and Cromwell
LLP, Ryan P. McCarthy -- ryan.mccarthy@morganlewis.com -- Morgan,
Lewis & Bockius LLP, Sharon L. Nelles -- nelless@sullcrom.com --
Sullivan and Cromwell LLP, Sharon L. Nelles, Sullivan & Cromwell
LLP, Stephen D. Bell -- bell.steve@dorsey.com -- Dorsey & Whitney
LLP, Stuart A. Drake -- stuart.drake@kirkland.com -- Kirkland and
Ellis LLP, pro hac vice & William B. Monahan --
monahanw@sullcrom.com -- Sullivan and Cromwell LLP.
Volkswagen AG, Defendant, represented by Elizabeth L. Deeley,
Kirkland & Ellis LLP, Matthew H. Marmolejo, Mayer Brown LLP,
Michael H. Steinberg, Sullivan & Cromwell, LLP, Andrew Brian
Clubok, Kirkland & Ellis, pro hac vice, Andrew R. Levin, Sugarman,
Rogers, Barshak & Cohen, P.C., Brett R. Leland, David M.J. Rein,
Sullivan & Cromwell LLP, G. Stewart Webb, Jr., Venable LLP, John D.
Donovan, Jr., Ropes and Gray LLP, Laura Kabler Oswell, Sullivan &
Cromwell LLP, Robert J. Giuffra, Jr., Sullivan and Cromwell LLP,
Sharon L. Nelles, Sullivan & Cromwell LLP, Stuart A. Drake,
Kirkland and Ellis LLP, pro hac vice & William B. Monahan, Sullivan
and Cromwell LLP.
Audi of America LLC, Defendant, represented by Matthew H.
Marmolejo, Mayer Brown LLP, Michael H. Steinberg, Sullivan &
Cromwell, LLP, Andrew Brian Clubok, Kirkland & Ellis, pro hac vice,
Andrew R. Levin, Sugarman, Rogers, Barshak & Cohen, P.C., Brett R.
Leland, David M.J. Rein, Sullivan & Cromwell LLP, G. Stewart Webb,
Jr., Venable LLP, John D. Donovan, Jr., Ropes and Gray LLP, Laura
Kabler Oswell, Sullivan & Cromwell LLP, Robert J. Giuffra, Jr.,
Sullivan and Cromwell LLP, Sharon L. Nelles, Sullivan & Cromwell
LLP, Stuart A. Drake, Kirkland and Ellis LLP, pro hac vice &
William B. Monahan, Sullivan and Cromwell LLP.
Volkswagen Group of America, a New Jersey corporation, Defendant,
represented by P. Arley Harrel, Williams Kastner & Gibbs, PLLC,
Gerard Cedrone, Lavin, O'Neil Ricci Cedrone & DiSipio, Kenneth
Abrams, McGuire Woods LLP, Laura Kabler Oswell, Sullivan & Cromwell
LLP & William B. Monahan, Sullivan and Cromwell LLP.
Audi of America, Inc., Defendant, represented by Matthew H.
Marmolejo, Mayer Brown LLP, Carine M. Williams, Sullivan & Cromwell
LLP, pro hac vice, Cheryl A. Bush, Bush, Seyferth & Paige, PLLC,
Colin H. Tucker, Rhodes Hieronymus Jones Tucker & Gable, David M.J.
Rein, Sullivan & Cromwell LLP, pro hac vice, John H. Tucker, Rhodes
Hieronymus Jones Tucker & Gable, Laura Kabler Oswell, Sullivan &
Cromwell LLP, Melissa Fletcher Allaman, Nelson, Mullins, Riley &
Scarborough, LLP, Michael R. Williams, Bush Seyferth & Paige PLLC,
Robert J. Giuffra, Jr., Sullivan and Cromwell LLP & William B.
Monahan, Sullivan and Cromwell LLP.
Dr. Ing. h.c.F. Porsche AG, Defendant, represented by Abby L.
Parsons, King & Spalding LLP, Adam G. Sowatzka, King & Spalding
LLP, Alexander K. Haas, King & Spalding LLP, Andrew R. Levin,
Sugarman, Rogers, Barshak & Cohen, P.C., Brett R. Leland, David M.
Fine, King, Spaulding Law Firm, G. Stewart Webb, Jr., Venable LLP,
Garrett L. Boehm, Jr., Johnson & Bell LTD, J. W. Codinha, Nixon
Peabody, LLP, James K. Toohey, Johns & Bell LTD, James K. Vines,
King & Spalding, John Thomas Prisbe, Venable LLP, Joseph Eisert,
King & Spalding LLP, Kenneth Yeatts Turnbull, King & Spalding LLP,
Matthew A. Goldberg, DLA Piper LLP, pro hac vice, Matthew A.
Holian, DLA Piper LLP, Nathan P. Heller, DLA Piper LLP, Sheldon T.
Bradshaw, KING & SPALDING, Sonya R. Braunschweig, DLA Piper LLP, W.
Scott O'Connell, Nixon Peabody LLP, pro hac vice & William F.
Kiniry, Jr., DLA Piper LLP, pro hac vice.
David Antellocy, Defendant, represented by Thomas Eric Loeser,
Hagens Berman Sobol Shapiro LLP, pro hac vice, Scott Moen,
Defendant, represented by Peter B. Fredman, Law Office of Peter
Fredman, Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac
vice & Thomas Eric Loeser, Hagens Berman Sobol Shapiro LLP, pro hac
vice.
Porsche AG, Defendant, represented by Alexander K. Haas, King &
Spalding LLP, Christina Courtney Sheehan, Modrall Sperling Roehl
Harris & Sisk PA, Joseph Eisert, King & Spalding LLP, Laura Kabler
Oswell, Sullivan & Cromwell LLP, Matthew A. Goldberg, DLA Piper
LLP, Nathan P. Heller, DLA Piper LLP, Susan Miller Bisong, Modrall
Sperling Roehl Harris & Sisk PA & William F. Kiniry, Jr., DLA Piper
LLP.
Robert Bosch GmbH, Defendant, represented by Matthew D. Slater,
Cleary Gottlieb Steen and Hamilton LLP, pro hac vice, Carmine D.
Boccuzzi, Jr., Cleary Gottlieb Steen & Hamilton LLP, pro hac vice &
David Lloyd Anderson, Sidley Austin LLP.
Bay Ridge Volvo-American, Inc, Defendant, represented by Natalie
Marie Lefkowitz, Chase Kurshan Herzfeld & Rubin LLC.
Audi USA, Defendant, represented by Laura Kabler Oswell, Sullivan &
Cromwell LLP.
MDL 2854: Court Denies Bid to Centralize Labor Suits
----------------------------------------------------
In the case, IN RE: EXPRESS COURIER INTERNATIONAL, INC., FAIR LABOR
STANDARDS ACT (FLSA) AND WAGE AND HOUR LITIGATION, MDL No. 2854,
Judge Sarah S. Vance of the U.S. Judicial Panel on Multidistrict
Litigation denied the Plaintiffs' motion for centralization of
these actions.
The litigation consists of 13 actions pending in 13 districts. All
the Plaintiffs move under 28 U.S.C. Section 1407 to centralize
pretrial proceedings in the litigation in the Middle District of
Tennessee or, alternatively, the Southern District of Texas. The
Defendants oppose the motion.
The Plaintiffs, current or former courier drivers for Express,
allege that they were misclassified by Express as independent
contractors under the Fair Labor Standards Act ("FLSA") and seek as
damages unpaid overtime and/or minimum wages. They bring their
claims on an individual basis, following the decertification of a
collective class action in the Western District of Arkansas.
On the basis of the papers filed and hearing session held, Judge
Vance concludes that centralization is not necessary for the
convenience of the parties and witnesses or to further the just and
efficient conduct of the litigation. All actions do involve
questions of fact as to the classification of Express couriers as
independent contractors, as well as about whether Express denied
the Plaintiffs minimum and overtime wages under the FLSA. The 13
actions pending encompass the claims of more than 750 Plaintiffs.
Despite the overlap in the Plaintiffs' allegations and the number
of pending claims, she is not convinced that centralization will
deliver significant benefits in terms of enhancing the efficient
conduct of these actions or the convenience of the parties. The
determination of whether an individual is an employee or an
independent contractor requires an individualized inquiry involving
multiple factors. She has found that centralization of wage and
hour litigation is less appropriate where it would involve
significant localized discovery.
While she is not bound by the Court's decertification order, its
findings persuade her that centralization is not necessary to
prevent duplicative discovery. It does not appear that much
further discovery is necessary, aside from the Plaintiff-specific
discovery. While the 13 courts are not obligated to adopt a
discovery schedule agreed to by the parties, the parties should
attempt such informal means of coordination before resorting to
Section 1407 centralization.
For these reasons, Judge Vance denied the motion for centralization
of these actions.
A full-text copy of the Court's Aug. 1, 2018 Order is available at
https://bit.ly/2O6p9qA from Leagle.com.
MERCEDES-BENZ USA: Court Narrows Claims in Elfaradi Suit
--------------------------------------------------------
The United States District Court for the Eastern District of
Missouri, Eastern Division, granted in part and denied in part
Defendants' Motion to Dismiss the case captioned SAID ELFARIDI, et
al., Plaintiffs, v. MERCEDES-BENZ USA, LLC, et al., Defendants.
Case No. 4:16 CV 1896 CDP. (E.D. Mo.).
MBUSA and Daimler AG seek dismissal, arguing that each count fails
to state a claim upon which relief can be granted.
Plaintiffs Hend Aitoufella1 and Dean and Katherine Jarman bring
this putative class action against Mercedes Benz USA, LLC, and
Daimler AG, claiming to represent purchasers and lessees of all
2003-2015 Mercedes-Benz vehicles equipped with factory-installed
panoramic sunroofs, which plaintiffs allege suffer from a defect
that can cause the sunroofs to spontaneously shatter.
Plaintiff Aitoufella seeks to represent both a nationwide class and
a Missouri sub-class and asserts claims for: breach of express
warranty under the Magnuson-Moss Warranty Act (MMWA) and Missouri
state law; unjust enrichment; violation of the Missouri
Merchandising Practices Act (MMPA); and, breach of the implied
warranty of merchantability under Missouri law.
Motion to Dismiss Standard
Rule 8(a)(2), Fed. R. Civ. P., provides that a complaint must
contain a short and plain statement of the claim showing that the
pleader is entitled to relief. To to survive a motion to dismiss, a
complaint must contain enough factual allegations, accepted as
true, to state a claim for relief that is plausible on its face.
Count III - Violation of the MMPA
The Missouri Merchandising Practices Act makes unlawful the act,
use or employment by any person of any deception, fraud, false
pretense, misrepresentation, unfair practice, or the concealment,
suppression, or omission of any material fact in connection with
the sale or advertisement of any merchandise. In MMPA actions,
courts apply the more stringent pleading requirements of Fed. R.
Civ. P. 9(b) pertaining to fraud. Under Rule 9(b), the
circumstances constituting fraud" must be stated with
particularity.
Here, Aitoufella claims defendants 1) made actionable
misrepresentations, and 2) concealed and omitted material facts
about the defective sunroofs. With regard to an alleged
misrepresentation, Rule 9(b) requires a plaintiff to allege facts
such as time, place and contents of false representations, as well
as the identity of the person making the misrepresentation and what
was obtained or given up thereby.
In contrast, where the MMPA claim concerns an omission of a
material fact and not an affirmative misrepresentation, to meet
Rule 9(b)'s heightened pleading standard, plaintiffs must allege
with specificity the time and place of the conduct complained of,
the content omitted, the identity of the person who omitted it, and
what was obtained or given up thereby.
The first advertisement set forth in the amended complaint
describes a 2012 E-Class Coupe. Under the phrases, invisible
strength and incomparable scenery, the ad highlights several
features of the vehicle. First, the ad refers to the four
pillarless side windows in the vehicle and states no other
automaker offers such a feature because they lack Mercedes'
engineering strength which allows Mercedes to match style with
safety. The ad then turns to a different feature the panoramic
sunroof, noting that it provides a breathtaking view of the sun and
stars. At the bottom of the ad, these features are again addressed
in more detail. Under the heading, Panoramic roof, the ad expounds
on the dramatic view of the sky and how the front portion of the
window can tilt up or be slid back for a breeze. The second
advertisement in the amended complaint pertains to the 2015 G model
vehicle. The ad describes the advantages of the panoramic sunroof,
the views it affords, how its glass rejects heat, and how it lets
passengers take in the breeze.
The Court do not find that these two advertisements constitute
actionable misrepresentations giving rise to a MMPA claim. First of
all, the ads pertain to different models of vehicles, the 2012
E-Class Coupe and the 2015 GLA, than the vehicles purchased by
Aitoufella (2013 GLK350) or the Jarmans (2013 C300). Moreover, the
alleged deceptive statements in the advertisements regarding
strength, safety and superior engineering were made in reference
to a feature other than the panoramic sunroof. In the first ad, the
claims of safety and engineering describe the pillarless design of
the side windows. The second ad does not even mention safety or
engineering.
Accordingly, the advertisements not only fail to satisfy Rule 9(b),
but they also fail to satisfy Rule 8(a)(2)'s less stringent
requirements. As such, the Court finds Aitoufella has not
sufficiently alleged an actionable misrepresentation in her amended
complaint.
Count VI - Violation of the WCPA
In Count VI, the Jarmans alleges defendants violated the Washington
Consumer Protection Act, RCW 19.86.010 et seq. To prevail on a
claim under the WCPA, a plaintiff must show: (1) an unfair or
deceptive act or practice, (2) that occurs in trade or commerce,
(3) a public interest, (4) injury to the plaintiff in his or her
business or property, and (5) a causal link between the unfair or
deceptive act and the injury suffered.
The Court will first address the Jarmans' allegation that
defendants made actionable statements that misled consumers in
violation of the WCPA. As noted in my discussion of Aitoufella's
MMPA claim, plaintiffs allege the advertisements included in the
amended complaint constituted deceptive statements and satisfy Rule
9(b)'s specificity requirement. For the same reasons articulated
above in my analysis of Aituoufella's claim under the MMPA, the
Court concludes the advertisements do not constitute actionable
misrepresentations giving rise to a WCPA claim.
Likewise, the Court concludes that the Jarmans have not alternately
stated a claim under the WCPA by alleging that defendants failed to
disclose the defect and concealed material facts about the
panoramic sunroof. Like the MMPA, the WCPA has a scienter
requirement for claims based upon fraudulent concealment and the
omission of a material fact. As detailed above, plaintiffs do not
sufficiently plead that defendants had knowledge of the alleged
defect in the panoramic sunroofs at the time plaintiffs purchased
their vehicles.
Accordingly, Count VI will be dismissed.
Count V - Aitoufella's Claim for Breach of Express Warranty
In Count V of the amended complaint, plaintiff Aitoufella alleges
defendants' refusal to honor the warranty with a free repair and
replacement constitutes breach. Defendants respond that
Aitoufella's claim fails because there is no dispute that her 2013
vehicle was well outside the express warranty's one year/12,000
mile limitation for glass damage caused by stress cracks.
The Court do not find defendants' argument persuasive that this
provision of the warranty was inapplicable because plaintiff failed
to present positive proof of a manufacturing defect when her
sunroof was replaced. The plain language of the NVLW does not
require positive proof of a manufacturing defect to be presented by
a vehicle owner at the time of repair. It only requires that the
defect can be established. It is well settled that unequivocal
language in written contracts must be given its plain meaning and
enforced as written. The NVLW does not address the timing or manner
of providing proof of a manufacturing defect. Furthermore, it
essentially would be an impossible task for an ordinary vehicle
owner to provide positive proof of a manufacturing defect when
trying to obtain a repair.
At this preliminary stage, because plaintiffs have alleged the
spontaneous shattering was due to such a defect, the Court cannot
say the repair was not covered by the warranty.
Accordingly, the Court finds the amended complaint lacks
sufficient allegations to support an express warranty claim against
Daimler, and Aitoufella's claim for breach of express warranty
against Daimler will be dismissed. Her claim for breach of express
warranty against MBUSA, however, survives dismissal.
Count I - Aitoufella's MMWA Claim
Defendants contend that Aitoufella's Magnuson-Moss Warranty Act
claim fails because plaintiff does not assert a viable state-law
warranty claim. However, for the reasons discussed above, the Court
have concluded that Aitoufella has successfully plead a violation
of state warranty law against MBUSA, and will therefore deny
defendants' motion to dismiss plaintiff's MMWA claim as it pertains
to MBUSA. The Court will, however, grant defendants' motion to
dismiss Count I against Daimler as no state warranty claim remains
against it.
Counts IV and VII - Implied Warranty Claims
In Counts IV and VII of the amended complaint, plaintiffs allege
defendants breached the implied warranty of merchantability in
violation of Missouri and Washington law. Specifically, plaintiffs
contend their vehicles were not in merchantable condition and were
not fit for the ordinary purpose for which vehicles are used
because they were fitted with defective panoramic sunroofs.
The Defendants move to dismiss the plaintiffs' implied warranty
claims, arguing that plaintiffs do not allege a defect that made
their vehicles unfit for the ordinary purpose of providing
transportation. With regard to the Jarman plaintiffs, defendants
additionally argue that they did not allege breach within the
applicable warranty period.
In this case, Aitoufella's 2013 vehicle successfully functioned for
several years before the sunroof shattered in 2016, and continued
to function after the sunroof was replaced. This extensive
performance satisfies a minimum level of quality such that
defendants did not breach the implied warranty of merchantability
based upon Aitoufella's allegations. Although Aitoufella claims
that a single incident of broken glass renders a vehicle unsafe and
unfit for transportation, she provides no authority supporting this
proposition. Instead she cites to a factually distinguishable
California case, involving a vehicle with a litany of problems
requiring numerous repairs.
Accordingly, the Court finds that the facts alleged do not
establish that plaintiff's vehicle was unmerchantable.Therefore, as
plaintiff has not successfully pleaded a violation of the implied
warranty of merchantability under Missouri law, the Court will
dismiss Count IV with prejudice.
Count II - Unjust Enrichment Claim
In Count II, plaintiffs Aitoufella and the Jarmans assert
defendants were unjustly enriched as a result of their acts and
omissions related to the defective sunroofs. Defendants argue
plaintiffs' claims for unjust enrichment fail because they are
categorically barred by the contract that governs the subject of
this dispute, the NVLW.
A claim for unjust enrichment is founded upon equitable principles
whereby the law implies a contract. Under Missouri and Washington
law, to state a claim for unjust enrichment, a plaintiff must show
that: (1) the defendant was enriched by the receipt of a benefit;
(2) the enrichment was at the expense of the plaintiff; and (3) it
would be unjust to allow the defendant to retain the benefit.
In this case, plaintiffs expressly allege the existence of a
contract the NVLW. In the section of the amended complaint
entitled, Mercedes' Deceptive Warranty Practices, the amended
complaint states that plaintiffs and class members reasonably
expected that all damage that resulted from the panoramic sunroof
defect would be covered under the warranty, and that they would not
be charged anything for such repairs. Plaintiffs further contend
that Mercedes has systematically denied coverage and plaintiffs
have been forced to incur substantial repair bills and other
related damages.
In alleging defendants were unjustly enriched, plaintiffs premise
their argument on the NVLW by stating that Mercedes unjustly
charged Plaintiffs and class members for repairs and/or replacement
of the defective panoramic sunroofs. Plaintiffs contend that
defendants appreciated, accepted, and retained the non-gratuitous
benefits conferred by Plaintiffs.
Thus, the plaintiffs have explicitly based their unjust enrichment
claims on the violation of the NVLW. Because the NVLW governs the
same subject matter, plaintiffs are precluded from recovering under
an equitable theory. Moreover, plaintiffs' additional contention
that they unjustly enriched defendants by overpaying for vehicles
with defective sunroofs similarly fails due to the existence of the
NVLW, which explicitly addresses and covers manufacturing defects.
Accordingly, defendants' motion to dismiss Count II will be
granted. Plaintiffs' unjust enrichment claims are dismissed with
prejudice.
Defendants Mercedes Benz USA, LLC, and Daimler AG's motions to
dismiss and are GRANTED as to Counts II, III, IV, VI and VII of the
complaint, and those Counts are hereby dismissed with prejudice.
Daimler AG's motion to dismiss Counts I and V is granted with
respect to defendant Daimler AG only. In all other respects, the
motions to dismiss are denied.
A full-text copy of the District Court's August 27, 2018 Memorandum
and Order is available at https://tinyurl.com/yd77rwot from
Leagle.com.
Hend Aitoufella, Plaintiff, represented by Adam A. Edwards --
adam@gregcolemanlaw.com -- GREG COLEMAN LAW PC, Andrew S. Williams
-- awilliams@simmonsfirm.com -- SIMMONS AND HANLY, LLC, Eric S.
Johnson -- ejohnson@simmonsfirm.com -- SIMMONS AND HANLY, LLC,
Gregory F. Coleman -- greg@gregcolemanlaw.com -- GREG COLEMAN LAW
PC, Lisa A. White -- lisa@gregcolemanlaw.com -- GREG COLEMAN LAW
PC, Mark E. Silvey -- mark@gregcolemanlaw.com -- GREG COLEMAN LAW
PC, Mitchell M. Breit -- mbreit@simmonsfirm.com -- SIMMONS AND
HANLY, LLC, Paul J. Hanly, Jr. -- phanly@simmonsfirm.com -- SIMMONS
AND HANLY, LLC & Ronald J. Eisenberg , SCHULTZ AND ASSOCIATES,
L.L.P.
Dean Jarman & Katherine Jarman, on behalf of themselves and all
others similarly situated, Plaintiffs, represented by Adam A.
Edwards , GREG COLEMAN LAW PC, Andrew S. Williams , SIMMONS AND
HANLY, LLC, Eric S. Johnson , SIMMONS AND HANLY, LLC, Gregory F.
Coleman , GREG COLEMAN LAW PC, Lisa A. White , GREG COLEMAN LAW PC,
Mark E. Silvey , GREG COLEMAN LAW PC, Mitchell M. Breit , SIMMONS
AND HANLY, LLC & Paul J. Hanly, Jr. , SIMMONS AND HANLY, LLC.
Mercedes-Benz USA, LLC, a Delaware Limited Liability Company,
Defendant, represented by Brandi Lynne Burke --
bburke@thompsoncoburn.com -- THOMPSON COBURN, LLP, Christopher M.
Hohn -- chohn@thompsoncoburn.com -- THOMPSON COBURN, LLP, Daniel C.
Cox -- dcox@thompsoncoburn.com -- THOMPSON COBURN, LLP, Roman P.
Wuller -- rwuller@thompsoncoburn.com -- THOMPSON COBURN, LLP, Eric
J. Knapp -- eric.knapp@squirepb.com -- SQUIRE AND PATTON, LLP &
Troy M. Yoshino -- yoshino@squirepb.com -- SQUIRE AND PATTON, LLP.
MERCY HEALTH: Court Grants Bid to Dismiss Sanzone's ERISA Suit
--------------------------------------------------------------
The United States District Court for the Eastern District of
Missouri, Eastern Division, granted Defendants' Motion to Dismiss
Plaintiffs' Consolidated Second Amended Class Action Complaint in
the case captioned .SALLY SANZONE, et al., Plaintiffs, v. MERCY
HEALTH, et al., Defendants. Case No. 4:16 CV 923 CDP. (E.D. Mo.).
Plaintiffs Sally Sanzone and Gene Grasle worked at different health
care facilities operated by defendant Mercy Health. Plaintiffs
bring this action against Mercy Health, the Mercy Health Benefits
Committee, and the Mercy Health Stewardship Committee. Plaintiffs
allege that defendants have underfunded the Plan and have violated
various provisions of the Employment Retirement Income Security Act
(ERISA), including their duties under ERISA as fiduciaries or
sponsors of the Plan.
They contend that the Mercy Plan does not qualify for ERISA's
church plan exemption because is it not maintained by an
organization whose principal purpose is providing benefits for
employees of a church.
The Defendants invoke both Rule 12(b)(1) and 12(b)(6) to dismiss
plaintiffs' federal claims. The Defendants base their
jurisdictional argument on their claim that plaintiffs lack
standing to raise any of their federal claims.
ERISA Claims
ERISA generally requires private employers offering pension plans
to adhere to a statutory framework designed to ensure plan solvency
and to protect plan participants. But church plans are not ERISA
plans and are exempt from complying with ERISA's requirements.
Accordingly, if the Plan at issue here is a church plan, no federal
question exists over plaintiffs' purported ERISA claims because the
Plan is not covered by ERISA.
For the following reasons, the Court concludes that the Mercy Plan
here is a church plan and is not subject to ERISA. The ERISA claims
raised in Counts 1 through 8 of the second amended complaint fail
to present a federal question that would bring the claims within
this Court's subject-matter jurisdiction. They must therefore be
dismissed.
Since its enactment in 1974, ERISA has exempted church plans from
compliance with ERISA's requirements. Initially, a church plan was
defined only as a plan established and maintained for its employees
by a church or by a convention or association of churches.
In 1980, however, Congress expanded the category of plans
established and maintained by a church to include plans, maintained
by an organization, whether a civil law corporation or otherwise,
the principal purpose or function of which is the administration or
funding of a plan or program for the provision of retirement
benefits or welfare benefits, or both, for the employees of a
church or a convention or association of churches, if such
organization is controlled by or associated with a church or a
convention or association of churches.
Who Maintains the Plan?
The Plaintiffs first argue that Mercy Health is the organization
that maintains the Plan, and because Mercy Health's principal
purpose is the provision of health care and not to administer or
fund the Plan, it cannot be considered a principal-purpose
organization under Section 1002(33)(C)(i).
Black's Law Dictionary provides several meanings for the word
maintain, the most relevant being: "1. To continue something . . .
and 4. To care for (property) for purposes of operational
productivity or appearance; to engage in general repair and
upkeep."
Here, the evidence and information before the Court shows that,
under the totality of the circumstances, the Benefits Committee
maintains the Mercy Plan. First, plaintiffs' complaint identifies
the Benefits Committee as having the sole responsibility for
administration of the Plan and all discretionary powers and
authority necessary to carry out the provisions of the Plan. The
complaint further delineates some of the Committee's specific
duties and responsibilities, including: "plan administration;
interpreting the Plan to determine all questions arising in the
administration, interpretation and application of the Plan;
adopting rules for the Plan; employing accountants, actuaries,
counsel, specialists and other persons necessary to help carry out
the Committee's duties and responsibilities under the Plan; issuing
directions to the Trustee concerning all benefits which are to be
paid from the Trust Fund pursuant to the provisions of the Plan;
directing the Trustee's exercise of its power in the administration
and investment of the Trust Fund; making all decisions and
determinations concerning the right of any person to a benefit
under the Plan; requiring each Participant Employer to keep such
books, records, and other data as it deems necessary for the proper
administration of the Plan; exercising discretion to determine that
the Participating Employers pay or reimburse costs and expenses of
the Plan; and monitoring other fiduciaries."
While plaintiffs are correct that Mercy Health is the sole entity
that can modify or terminate the Plan, the totality of the
circumstances shows that the Benefits Committee is the entity that
actually maintains the Plan as that term is ordinarily used in the
context most relevant here.
Is the Benefits Committee an Organization?
The Plaintiffs argue that if the Benefits Committee is considered
to be the entity that maintains the Plan, it nevertheless cannot be
considered an organization under Section 1002(33)(C)(i) because it
merely is an internal subset of Mercy Health and does not have a
distinct, separate existence.
Webster's defines organization as an administrative and functional
structure.
Organization, Merriam-Webster's II Collegiate Dictionary (10th ed.
2002). In the Cambridge Dictionary, organization is defined as a
group of people who work together in an organized way for a shared
purpose. Similarly, Black's Law Dictionary defines organization as
a body of persons such as a union or corporation formed for a
common purpose.
The Benefits Committee is a body made up of five members, with one
member designated as the chairperson of the committee. Its common
purpose is to administer the Plan in accordance with its terms and
with such powers and authority as is necessary to carry out the
Plan's provisions. The Committee's specific responsibilities are
set out in the Plan; and its interpretations, decisions, and
determinations of any matter under the Plan are conclusive, final,
and binding upon all persons, including Mercy Health.
Because the Benefits Committee is a body of persons formed for a
common and particular purpose and has specific and exclusive
responsibilities to further this purpose, it meets the dictionary
definition of organization as that term is ordinarily used. When
considered with ERISA's reference to such a group as a form of
organization under the statute, the Court concludes that for
purposes of Section 1002(33)(C)(i), the Benefits Committee is an
organization.
Are Mercy Health and the Benefits Committee Controlled by or
Associated with a Church?
Mercy Health
The term employee of a church or a convention or association of
churches includes an employee of an organization which is exempt
from tax under and which is controlled by or associated with a
church or a convention or association of churches.
Mercy Health, the corporate arm of the Ministry, is listed in the
Official Catholic Directory. Courts view an organization's listing
in the Official Catholic Directory as a public declaration by the
Roman Catholic Church that that organization is associated with the
Church. The IRS also considers any organization listed in this
directory as associated with the Roman Catholic Church in the
United States. In short, by listing Mercy Health in the Official
Catholic Directory, the Roman Catholic Church has publicly declared
Mercy Health to be a Catholic organization.
Benefits Committee
Plaintiffs aver that the Benefits Committee is an internal subset
of Mercy Health. Given that Mercy Health is associated with a
church, application of simple logic as the Supreme Court did in
Stapleton, 137 S. Ct. at 1658-59, shows that the Benefits Committee
must therefore necessarily be associated with a church:
Premise 1: Mercy Health is associated with a church.
Premise 2: Mercy Health includes the Benefits Committee.
Deduction: The Benefits Committee is associated with a church.
Plaintiffs' claim to the contrary fails.
Is the Plan Disqualified as a Church Plan?
To qualify for the church-plan exemption, substantially all of the
individuals included in a church plan must be deemed employees of a
church.
In their second amended complaint, plaintiffs specifically aver
that Mercy Health has more than 40,000 current and former employees
and that the more than 40,000 participants in the Mercy Plan are or
were employees of Mercy, which, as described by plaintiffs, is a
non-profit healthcare system. Because Mercy Health is associated
with a church, its employees are employees of a church or a
convention or association of churches. Accordingly, because the
Mercy Plan covers more than 40,000 participants who are or were
Mercy Health employees, and Mercy Health's past and current
employees number over 40,000, it follows that substantially all of
the 40,000+ Plan participants are Mercy Health employees who, under
Section 1002(33)(C)(ii)(II), are employees of a church.
Against these specific averments made in their complaint,
plaintiffs' general assertion that the Mercy Plan covers more than
an insubstantial number of employees who do not work for a church
or a tax-exempt entity, with nothing more, is insufficient for me
to conclude that the Mercy Plan fails to qualify as a church plan.
The Mercy Plan is a Church Plan Exempt from ERISA.
For all of the foregoing reasons, the Mercy Plan at issue in this
case is maintained by a church-associated principal-purpose
organization for the provision of benefits for the employees of a
church or a convention or association of churches, and whose
membership does not disqualify it as a church plan under 29 U.S.C.
Section 1002(33)(B)(ii). Because the Mercy Plan satisfies the
statutory requirements for church-plan exemption under ERISA, the
Plan is not an ERISA plan and no federal question jurisdiction
exists over plaintiffs' purported ERISA claims.
The claims raised in Counts 1 through 8 of plaintiffs' second
amended complaint will therefore be dismissed for lack of
subject-matter jurisdiction.
Establishment Clause
For Article III standing, plaintiffs must show: (1) that they
suffered an injury in fact (2) that a causal relationship exists
between the injury and the challenged conduct and (3) that the
injury likely will be redressed by a favorable decision.
Here, plaintiffs make no specific allegations to suggest that they
would have a better funded pension if the church-plan exemption did
not apply to the Mercy Plan. Plaintiffs do not allege a concrete
harm or that the relief they seek would redress an alleged injury.
While plaintiffs raise the specter of a potentially underfunded
Plan in the future without ERISA protections, they make no claim of
any specific or concrete injury suffered by them as a consequence
of being a participant in a church plan. Allegations of possible
future injury do not satisfy the requirements of Art. III. A
threatened injury must be certainly impending to constitute injury
in fact. Were all purely speculative increased risks deemed
injurious, the entire requirement of actual or imminent injury
would be rendered moot, because all hypothesized, nonimminent
injuries could be dressed up as increased risk of future injury.
Accordingly, plaintiffs' asserted Establishment Clause claim fails
to meet the constitutional requirement that a plaintiff demonstrate
harm that is actual or imminent, not conjectural or hypothetical.
Plaintiffs have therefore failed to carry their burden of
demonstrating that they have standing under Article III to bring
the claim, because they cannot show that they have suffered or will
immediately suffer a concrete injury in fact if the Plan is
permitted to proceed as a church plan and remain exempt from ERISA.
The Court will therefore dismiss the claim raised in Count 9 of
plaintiffs' second amended complaint for lack of subject-matter
jurisdiction.
A full-text copy of the District Court's August 27, 2018 Memorandum
and Order is available at https://tinyurl.com/ycgqrw5l from
Leagle.com.
Sally Sanzone, individually and behalf of all others similarly
situated, Plaintiff, represented by Karen Louise Handorf --
khandorf@cohenmilstein.com -- COHEN AND MILSTEIN, Laura R. Gerber
-- lgerber@kellerrohrback.com -- KELLER ROHRBACK LLP, Ron Kilgard
-- rkilgard@kellerrohrback.com -- KELLER ROHRBACK LLP, James I.
Singer, SCHUCHAT AND COOK, Rhona S. Lyons, SCHUCHAT AND COOK &
Scott M. Lempert -- slempert@cohenmilstein.com -- COHEN AND
MILSTEIN PLLC, pro hac vice.
Gene Grasle, Plaintiff, represented by Laura R. Gerber , KELLER
ROHRBACK LLP.
Mercy Health & Mercy Health Benefits Committee, Defendants,
represented by Jeffrey R. Fink -- jfink@thompsoncoburn.com --
THOMPSON COBURN, LLP, Richard J. Pautler --
rpautler@thompsoncoburn.com -- THOMPSON COBURN, LLP & Allen D.
Allred -- aallred@thompsoncoburn.com -- THOMPSON COBURN, LLP, pro
hac vice.
Mercy Health Stewardship Committee, Defendant, represented by
Jeffrey R. Fink , THOMPSON COBURN, LLP & Allen D. Allred , THOMPSON
COBURN, LLP, pro hac vice.
United States of America, Movant, represented by Emily Sue Newton ,
U.S. Department of Justice.
METALS USA: Sept. 21 Hearing on Wilson Deal Prelim Approval Bid
---------------------------------------------------------------
In the case, JAMES WILSON, an individual, and JACK WHITE, an
individual, on behalf of themselves and all others similarly
situated, Plaintiffs, v. METALS USA, INC., a Delaware Corporation;
and DOES 1-100, inclusive, Defendants, Case No.
2:12-cv-00568-KJM-DB (E.D. Cal.), Judge Kimberly J. Mueller of the
U.S. District Court for the Eastern District of California
continued the parties' deadline to file and serve the motion for
preliminary approval of the class action settlement to Aug. 31,
2018, and scheduled a hearing on the motion for preliminary
approval on Sept. 21, 2018 at 10:00 a.m.
A full-text copy of the Court's Aug. 3, 2018 Order is available at
https://is.gd/fFgoF0 from Leagle.com.
James Wilson & Jack White, Plaintiffs, represented by Gene Joseph
Stonebarger, Esq. -- gstonebarger@stonebargerlaw.com -- and Richard
David Lambert, Esq. -- rlambert@stonebargerlaw.com -- STONEBARGER
LAW.
Rita White, Plaintiff, represented by Gene Joseph Stonebarger,
Stonebarger Law & Richard David Lambert , Stonebarger Law.
Metals USA, Inc., A Delaware Corporation, Defendant, represented by
Frank Busch, Esq. -- busch@kerrwagstaffe.com -- and Adrian J.
Sawyer, Esq. -- sawyer@kerrwagstaffe.com -- KERR & WAGSTAFFE, LLP
-- Bartholomew Dalton, Esq. -- Bdalton@kilpatricktownsend.com --
KILPATRICK TOWNSEND & STOCKTON, LLP
MGM RESORTS: $150K Settlement in Hanson Suit Has Prelim Approval
----------------------------------------------------------------
In the case, DAVID HANSON, individually and on behalf of all others
similarly situated, Plaintiff, v. MGM RESORTS INTERNATIONAL and
COSTCO WHOLESALE CORPORATION, Defendants, Case No. 16-cv-001661-RAJ
(W.D. Wash.), Judge Richard A. Jones of the U.S. District Court for
the Western District of Washington, Seattle, granted Hanson's
unopposed motion for preliminary approval of class certification
and class action settlement.
On Oct. 24, 2016, the Plaintiff filed the case alleging that MGM
and Costco violated the Electronic Fund Transfers Act ("EFTA") and
other state laws. Defendant MGM is a hospitality and entertainment
company that sells gift cards to consumers, which are redeemable at
MGM's casinos, resorts, and affiliates. Costco is a
membership-based wholesale warehouse club where MGM Gift Cards are
available for purchase.
Costco displayed signs advertising MGM Gift Cards that also stated
that an inactivity fee will apply. The MGM Gift Cards also
indicate that a monthly inactivity fee would be assessed 18 months
from a date specified on the cards, on cards showing no activity.
In March of 2015, Plaintiff purchased 140 MGM Gift Cards at a
Coscto in Seattle, Washington. The terms printed on each MGM Gift
Card state that a monthly inactivity fee would be assessed 18
months from March 2015 on cards showing no activity, and that $2.50
monthly maintenance fee would be deducted from the card balance
after 18 months of no activity from the date printed on the front
of the card. However, the Plaintiff alleges that he was assessed a
monthly fee of $2.50 beginning 12 months after his purchase.
On Oct. 24, 2016, the Plaintiff filed the action against MGM and
Costco on behalf of himself and similarly situated consumers who
purchased MGM gift cards and incurred the same or similar
inactivity fees. Less than one month after he filed his Complaint,
the Defendants represent that they fully refunded every MGM Gift
Card on which an inactivity fee was prematurely assessed. They
then filed a motion to dismiss, which was granted in part and
denied in part.
The Plaintiff alleges (1) a claim against MGM for breach of
contract; (2) a claim against MGM and Costco for violation of the
Electronic Funds Transfer Act ("EFTA"); (3) a claim against Costco
for violation of Washington's Consumer Protection Act ("CPA"); (4)
a claim against MGM for breach of express warranty; and (5) a claim
against Costco for breach of express warranty. Hanson brings the
first and fourth claims individually and on behalf of a nationwide
class, the second individually and on behalf of a nationwide EFTA
subclass, the third individually and on behalf of a nationwide
Washington CPA class, and the fifth individually and on behalf of a
nationwide Costco subclass. He seeks actual, declaratory, and
injunctive relief.
Following the ruling on the Defendants' motion to dismiss, the
parties reached a settlement agreement. The proposed Settlement
Agreement provides for a settlement class of all individuals in the
United States who, from Oct. 24, 2010 to the date of preliminary
approval of the settlement, purchased an MGM Gift Card and were
assessed an inactivity fee that was deducted from the balance of
funds remaining on the Gift Card. The Plaintiff represents that
there are approximately 22,500 settlement class members.
The Settlement Agreement also provides for a settlement fund in the
amount of $150,000 from which each class member that submits a
valid claim form will receive a pro rata portion. Any attorneys'
fees, costs, claims administration costs, and an incentive award
will also be drawn from the settlement fund. In exchange for a
portion of the settlement fund, the settlement class members agree
to release the Defendants from any and all claims relating in any
way to the assessment of inactivity fees on the class members' MGM
Gift Cards.
The matter comes before the Court on Hanson's unopposed motion for
preliminary approval of class certification and class action
settlement. The Plaintiff proposes that the Court certifies the
class of all individuals in the United States who, from Oct. 24,
2010 to the date of preliminary approval of the settlement,
purchased an MGM Gift Card and were assessed an inactivity fee that
was deducted from the balance of funds remaining on the Gift Card.
Judge Jones granted the Plaintiff's unopposed motion for
preliminary approval of the Settlement Agreement. The Final
Approval Hearing will be held on Sept. 28, 2018 at 1:30 p.m. No
later than Oct. 15, 2018, the Plaintiff must file his papers in
support of the Class Counsel's application for attorneys' fees and
expenses. No later than Sept. 14, 2018, he must file his papers in
support of final approval of the Settlement Agreement and in
response to any objections.
The Judge approved the Notice in the Settlement Agreement. The
Direct Notice will be transmitted not less than 30 days after the
entry of the Order.
Pursuant to the Settlement Agreement, Heffler Claims Group is
appointed as the Settlement Administrator. Any Settlement Class
Member who wishes to be excluded from the Settlement Class must
send a written request for exclusion to the Settlement
Administrator.
Any Settlement Class Member who has not filed a timely and proper
written request for exclusion and who complies with the
requirements of this Paragraph may comment in support of, or in
opposition to, any aspect of the proposed Settlement either on his
or her own or through an attorney hired at his or her expense. Any
papers submitted in support of said objection will be received by
the Court and sent to both the Class Counsel and the Defense
Counsel at the following locations: Rafey S. Balabanian Aravind
Swaminathan Eve-Lynn Rapp Charles Ha EDELSON PC ORRICK, HERRINGTON
& SUTCLIFFE 123 Townsend, Suite 100 LLP San Francisco, California
94107 701 5th Avenue, Suite 5600 Telephone: (415) 212-9300 Seattle,
WA 98104-7097 Facsimile: (415) 373-9435 Telephone: (206) 839-4300
Facsimile: (206) 839-4301.
The Judge authorized the Parties to take all necessary and
appropriate steps to implement the Settlement Agreement.
A full-text copy of the Court's July 31, 2018 Order is available at
https://goo.gl/FH6RZr from Leagle.com.
David Hanson, individually and on behalf of all others similarly
situated, Plaintiff, represented by Eve-Lynn Rapp --
erapp@edelson.com -- EDELSON PC, pro hac vice, Kevin Arnold Bay --
kbay@tousley.com -- TOUSLEY BRAIN STEPHENS & Kim D. Stephens --
kstephens@tousley.com -- TOUSLEY BRAIN STEPHENS.
MGM Resorts International, a Delaware corporation & Costco
Wholesale Corporation, a Delaware corporation, Defendants,
represented by Aravind Swaminathan -- aswaminathan@orrick.com --
ORRICK HERRINGTON & SUTCLIFFE LLP & Melanie D. Phillips --
mphillips@orrick.com -- ORRICK HERRINGTON & SUTCLIFFE LLP.
MICON SCAFFOLDING: Underpays Yard Foremans, Garcia Alleges
----------------------------------------------------------
EDUARDO GARCIA, individually and on behalf of all others similarly
situated, Plaintiff v. MICON SCAFFOLDING LLC; and MICHAEL CONNELL,
Defendants, Case No. 1:18-cv-23249-JEM (S.D. Fla., Aug. 9, 2018) is
an action against the Defendants to recover unpaid overtime
compensation under the Fair Labor Standards Act.
Mr. Garcia was employed by the Defendants as yard foreman from
October 20, 2014 to March 13, 2017.
Micon Scaffolding LLC is engaged in the scaffolding business within
Miami-Dade County. [BN]
The Plaintiff is represented by:
J.H. Zidell, Esq.
J.H. Zidell, P.A.
300 71st Street, Suite 605
Miami Beach, FL 33141
Telephone: (305) 865-6766
Facsimile: (305) 865-7167
Email: ZABOGADO@AOL.COM
MIZUHO BANK: Court Grants Dismissal of Withdrawal Class Suit
------------------------------------------------------------
The United States District Court for the Eastern District of
Pennsylvania granted Defendant's Motion to Dismiss the case
captioned GREGORY PEARCE, individually and on behalf of all others
similarly situated, Plaintiff, v. MIZUHO BANK, LTD. and MARK
KARPELES, Defendants. Civil action No. 18-306. (E.D. Pa.).
In his Class Action Complaint, Pearce alleges one count of
negligence and one count of fraud against Defendant Mark Karpeles
(Karpeles), the Chief Executive Officer and President of Mt. Gox,
on behalf of himself and the Mt. Gox Class and one count of
tortious interference with contract against Defendant Mizuho Bank,
Ltd. (Mizuho), a Japanese financial institution based in Tokyo,
Japan, on behalf of himself and the Withdrawal Subclass.
LEGAL STANDARD
Though the plaintiff initially need only allege sufficient facts to
establish a prima facie case of jurisdiction once those allegations
are contradicted by an opposing affidavit plaintiff must present
similar evidence in support .
General Jurisdiction
In a signed declaration submitted in support of Mizuho's Motion,
Yasuo Imaizumi, a Deputy General Manager, Legal Division of Mizuho,
states that: (1) Mizuho is incorporated and located in Tokyo,
Japan; (2) Mizuho has no branch offices or representatives in
Pennsylvania; (3) Mt. Gox opened its bank accounts at a Mizuho
branch office located in Tokyo, Japan; (4) Mizuho did not open or
make any decisions regarding bank accounts belonging to Mt. Gox in
Pennsyvania; and (5) Mt. Gox users made withdrawal requests
directly to Mt. Gox, not Mizuho, and Mizuho, in accord with its
general practice and Japanese banking laws, does not communicate
with its customer's customers.
While it may be true that Mizuho Securities is an agent of Mizuho,
Pearce has not alleged how the activities conducted by Mizuho
Securities are at all relevant to this case. Mizuho Securities has
placed its securities trading services into the stream of commerce
with the expectation that they will be purchased by consumers in
Pennsylvania, but Mizuho has not done so with its banking services.
Thus, it does not follow that Mizuho should have reasonably
anticipated being haled into Pennsylvania court for its banking
activities.
Accordingly, this Court does not have general jurisdiction over
Mizuho.
Specific Jurisdiction
Alleged Facts Do Not Support a Prima Facie Case of Specific
Jurisdiction
The Traditional Test
To establish specific jurisdiction, the Court must conduct a
three-part inquiry. First, the defendant must have purposefully
directed its activities at the forum. Second, the litigation must
arise out of or relate to at least one of those activities. And
third, a court may consider whether the exercise of jurisdiction
otherwise comports with fair play and substantial justice.
In this case, Mizuho asserts that all claim-related activities
occurred in and were directed at Japan. Mizuho argues that the only
relationship between Pearce's claim and Pennsylvania is the fact
that Pearce resides there. It is well established that a
plaintiff's residency alone cannot sustain personal jurisdiction
over a defendant.
The facts of Pearce's claim fall somewhere in between those of Lack
and Greene. However, the facts in Pearce's claim are more aligned
to Greene's because Mizuho never engaged in any transactional
contact with Pearce. Therefore, under the facts alleged by Pearce,
the Court do not find that Mizuho created any relationship among
itself, the forum, and the litigation. Therefore, Pearce cannot
establish the first prong of the prima facie case of specific
jurisdiction.
As to the second and third prongs, since we have found that no
activities were directed at Pennsylvania, it follows that Pearce's
claim cannot arise out of or relate to such an activity.
Therefore, because Pearce fails to establish the first and second
prongs, the Court needs not consider the third prong.
The Calder Effects Test
In Calder v. Jones, 465 U.S. 783 (1984)), the plaintiff can
demonstrate a court's jurisdiction over a defendant even when the
defendant's contacts with the forum alone are far too small to
comport with the requirements of due process' under our traditional
analysis.
To establish personal jurisdiction under Calder, the plaintiff must
show that: (1) the defendant committed an intentional tort; (2) the
plaintiff felt the brunt of the harm in the forum such that the
forum can be said to be the focal point of the harm suffered by the
plaintiff as a result of that tort; and (3) the defendant expressly
aimed his tortious conduct at the forum such that the forum can be
said to be the focal point of the tortious activity.
It is unclear from the Class Action Complaint whether Mizuho was
ever aware of Pearce's withdrawal request. Pearce asserts that he
submitted a withdrawal request to Mt. Gox, with instructions to
deposit the funds in his U.S. bank account and that he received an
email from Mt. Gox confirming that the withdrawal request had been
received. Pearce never alleges that Mt. Gox actually sent his
request, which would have included details, such as his banking
details and address, to Mizuho for processing. Pearce only
communicated with Mt. Gox and does not allege any communication
took place with Mizuho.
If Mizuho never received Pearce's withdrawal request from Mt. Gox,
it would be impossible for it to know that Pearce would suffer harm
in Pennsylvania because of Mizuho's policy. Likewise, if Mizuho
never received Pearce's withdrawal request, there could be no
specific activity aimed at Pennsylvania. Therefore, Pearce has not
alleged that Mizuho has expressly aimed any conduct at
Pennsylvania. Since he cannot meet this prong, Pearce has failed to
satisfy the Calder test and we need not analyze the remaining two
prongs.
Pearce has not established a prima facie case for personal
jurisdiction over Mizuho.
Mizuho's Motion to Dismiss for Lack of Jurisdiction is granted.
A full-text copy of the District Court's August 27, 2018 Memorandum
is available at https://tinyurl.com/y73xwvw2 from Leagle.com.
GREGORY PEARCE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY
SITUATED, Plaintiff, represented by DAVID S. SENOFF --
dsenoff@anapolweiss.com -- Anapol Weiss & RAFEY S. BALABANIAN --
rbalabanian@edelson.com -- EDELSON PC.
NCS PLUS INC: Hudson Seeks Damages Under FDCPA
----------------------------------------------
Darnell Hudson, individually and on behalf of all others similarly
situated, Plaintiff, v. NCS Plus Incorporated and John Does 1-25,
Defendants, Case No. 18-cv-00271, (N.D. Ind., August 30, 2018)
seeks damages and declaratory relief pursuant to the Fair Debt
Collection Practices Act.
NCS is a debt collector who attempted to collect an obligation
arising out of transactions for medical services via a collection
letter that threatened to report the said debt to the National
Credit Reporting Bureau, says the complaint. [BN]
The Plaintiff is represented by:
Rachel B. Drake, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Phone: (201) 282-6500
Fax: (201) 282-6501
Email: rdrake@steinsakslegal.com
NIKE INC: Female Staff Paid Less, Cahill & Johnston Claim
---------------------------------------------------------
KELLY CAHILL; and SARA JOHNSTON, individually and on behalf of all
others similarly situated, Plaintiffs v. NIKE, INC., Defendant,
Case No. 3:18-cv-01477-PK (D. Ore., Aug. 9, 2018) alleges wage rate
discrimination based on gender in violation of the Equal Pay Act.
The Plaintiffs allege in the complaint that the Defendant pays and
promotes women less than men at Nike Headquarters. The gender
disparities occurred, and continue to occur, because of specific
employment policies or practices that are developed and carried out
in a workplace that is hostile towards women and where the ultimate
arbiters of these policies or practices are a small group of
high-level executives who are majority male.
NIKE, Inc., together with its subsidiaries, designs, develops,
markets, and sells athletic footwear, apparel, equipment, and
accessories worldwide. The company was formerly known as Blue
Ribbon Sports, Inc. and changed its name to NIKE, Inc. in 1971.
NIKE, Inc. was founded in 1964 and is headquartered in Beaverton,
Oregon. [BN]
The Plaintiffs are represented by:
Laura Salerno Owens, Esq.
David B. Markowitz, Esq.
Harry B. Wilson, Esq.
Anna M. Joyce, Esq.
MARKOWITZ HERBOLD PC
1211 SW Fifth Avenue, Suite 3000
Portland, OR 97204-3730
Telephone: (503) 295-3085
Facsimile: (503) 323-9105
E-mail: LauraSalerno@MarkowitzHerbold.com
DavidMarkowitz@MarkowitzHerbold.com
HarryWilson@MarkowitzHerbold.com
AnnaJoyce@MarkowitzHerbold.com
- and -
Laura L. Ho, Esq.
Barry Goldstein, Esq.
Byron Goldstein, Esq.
Katharine L. Fisher, Esq.
GOLDSTEIN BORGEN DARDARIAN & HO
300 Lakeside Drive, Suite 1000
Oakland, CA 94612
Telephone: (510) 763-9800
Facsimile: (510) 835-1417
E-mail: lho@gbdhlegal.com
bgoldstein@gbdhlegal.com
brgoldstein@gbdhlegal.com
kfisher@gbdhlegal.com
- and -
Craig Ackerman, Esq.
ACKERMANN & TILAJEF PC
1180 S Beverly Drive, Suite 610
Los Angeles, CA 90035
Telephone: (310) 277-0614
Facsimile: (310) 277-0635
E-mail: cja@ackermanntilajef.com
- and -
India Lin Bodien, Esq.
INDIA LIN BODIEN, ATTORNEY AT LAW
2522 North Proctor Street, #387
Tacoma, WA 98406-5338
Telephone: (253) 503-1672
Facsimile: (253) 276-0081
E-mail: india@indialinbodienlaw.com
NY PIZZA CO: Wilson Sues Over Unpaid Wages Under FLSA
------------------------------------------------------
Tabatha Wilson, individually and on behalf of all others similarly
situated, Plaintiff, v. NY Pizza Company, LLC, Defendant, Case No.
18-cv-00149 (S.D. Ga., August 30, 2018), seeks to recover unpaid
minimum and overtime wages under the Fair Labor Standards Act.
NY Pizza Co. is a franchisee of Johnny's Pizza, a pizza restaurant
chain in the state of Georgia, where Wilson worked as a server at
their Bethlehem, Barrow County location. Defendants illegally took
out a tip credit from her, despite being paid below the minimum
wage rates as well as spending more than 20% of their shift
performing non-tip-producing work. [BN]
Plaintiff is represented by:
Michael J. Moore. Esq.
Aimee J. Hall, Esq.
POPE, MCGLAMRY, KILPATRICK, MORRISON AND NORWOOD P.C.
3391 Peachtree Road, Suite 300
Atlanta, GA 30326
Tel: (404) 523-7706
Fax: (404) 524-1648
Email: michaelmoore@pmkm.com
aimeehall@pmkm.com
efile@pmkm.com
- and -
David W. Garrison, Esq.
Joshua A. Frank, Esq.
BARRET, JOHNSTON, MARTIN & GARRISON LLC
414 Union Street, Suite 900
Nashville, TN 37219
Tel: (615) 244-2202
Fax: (615) 252-3798
Email: dgarrison@barrettjohnston.com
jfrank@barrettjohnston.com
OPTEL TECH: Daniels Action Seeks to Recover Unpaid Overtime
-----------------------------------------------------------
Donnie Daniels, individually and on behalf of other employees
similarly situated, Plaintiff, v. Optel Technologies Inc., Optel
Vision, Inc. and Optel Group USA Inc., Defendant, Case No.
18-cv-02120 (S.D. Tex., June 22, 2018), seeks to recover unpaid
back wages with liquidated damages, attorneys' fees and costs,
prejudgment and post-judgment interest under the Fair Labor
Standards Act.
Optel provides equipment and software that allows manufacturers to
serialize, track and trace pharmaceuticals. Daniels worked for
Optel as a field technician. He claims that Optel paid him on a
salary rate but paid no compensation for any hours after the first
forty in each week. [BN]
Plaintiff is represented by:
Trang Q. Tran, Esq.
TRAN LAW FIRM
2537 South Gessner Road, Suite 104
Houston, TX 77063
Tel: (713) 223–8855
Fax: (713) 623–6399
Email: ttran@tranlawllp.com
service@tranlawllp.com
OVASCIENCE INC: Court Won't Dismiss Dahhan Securities Suit
----------------------------------------------------------
Judge Indira Talwani of the U.S. District Court for the District of
Massachusetts denied the Defendants move to dismiss the case, FADI
DAHHAN, Individually and on Behalf of All Others Similarly
Situated, Plaintiff, v. OVASCIENCE, INC., et al, Defendant, Civil
Action No. 1:17-cv-10511-IT (D. Mass.).
OvaScience is a fertility company launched in 2011. It has
developed to the point of commercialization only one potential
treatment known as AUGMENT, which involves harvesting mitochondria
from a woman's immature egg cells also called "egg precursor cells"
or "EggPC cells" and injecting them into her egg at the time of in
vitro fertilization ("IVF") in order to supplement the energy level
in the egg and to address problems caused in the development of
newly formed embryos by inadequate energy in the cell division
process.
Freedman Family brings the action against Defendants OvaScience,
Michelle Dipp, and Jeffrey Young. Count I of the Amended Class
Action Complaint alleges that OvaScience and Dipp artificially
raised the market price of OvaScience's stock by disseminating
false and misleading information and failing to disclose material
facts, in violation of Section 10(b) of the Securities Exchange Act
and Rule 10b-5 promulgated thereunder. Count II alleges that Dipp
and Young are liable under Section 20(a) of the Exchange Act,
because they were controlling persons of OvaScience and thus had
the ability to prevent issuance of false statements.
The Defendants move to dismiss the claims against them for failure
to state a claim on which relief may be granted, pursuant to
Federal Rule of Civil Procedure 12(b)(6).
Judge Talwani finds that disclosures as to losses occurred in the
early stages of product research and as to development and funding
capital that still needed to be raised would only be part of the
information an investor would reasonably consider material in
evaluating the treatment's potential commercial success, and in no
way negates the materiality of Dipp's statements suggesting that
the AUGMENT treatment was effective.
The Judge also finds that because the Complaint alleges sufficient
facts to infer that, at the time of the January 2015 offering, the
Defendants knew that Dipps' statements regarding the efficacy of
AUGMENT were misleading, the Complaint sufficiently states a claim
based on the Defendants' failure to make mandatory disclosures.
And because a company exercising reasonable diligence should have
investigated why it failed to achieve its publicly-stated goal, to
the extent that the explanation offered was untrue, one can infer
that the Defendants either knowingly misrepresented the reason or
recklessly failed to investigate the reason.
Finally, because the Judge disagrees with the Defendants'
contention that the Plaintiff's Section 20(a) claim fails because
the Complaint fails to state a claim for an underlying securities
violation, she finds too that the Complaint has sufficiently stated
a Section 20(a) claim.
For these reasons, Judge Talwani denied the Defendants' Motion to
Dismiss the Amended Class Action Complaint.
A full-text copy of the Court's July 31, 2018 Memorandum and Order
is available at https://bit.ly/2NFHLRz from Leagle.com.
FADI DAHHAN, individually and on behalf of all others similarly
situated, Plaintiff, represented by Mitchell J. Matorin --
mmatorin@matorinlaw.com -- Matorin Law Office LLC.
OvaScience, Inc., Michelle Dipp & Jeffrey E. Young, Defendants,
represented by John F. Sylvia -- JSylvia@mintz.com -- Mintz, Levin,
Cohn, Ferris, Glovsky & Popeo, PC, Matthew D. Levitt, Mintz, Levin,
Cohn, Ferris, Glovsky and Popeo, PC & Emily K. Musgrave, Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, PC.
Freedman Family Investments LLC, Movant, represented by Alan L.
Kovacs -- akovacs@kovacslaw.com -- Law Office of Alan L. Kovacs,
Constantine P. Economides, Robbins Geller Rudman & Dowd LLP, pro
hac vice, Elizabeth A. Shonson, Robbins Geller Rudman & Dowd LLP,
pro hac vice, Jack Reise, Robbins Geller Rudman Dowd, LLC, pro hac
vice, Sabrina E. Tirabassi, Robbins Geller Rudman & Dowd, pro hac
vice & Stephen R. Astley, Robbins Geller Rudman & Dowd LLP, pro hac
vice.
PEET'S COFFEE: Faces Goldboss Suit in Calif. Super. Ct.
-------------------------------------------------------
A class action lawsuit has been filed against Peet's Coffe & Tea,
LLC. The case is titled as LAUREN GOLDBOSS, INDIVIDUALLY AND ON
BEHALF OF ALL OTHERS SIMILARLY SITUATED v. PEET'S COFFEE & TEA,
LLC, A LIMITED LIABILITY CORPORATION D/B/A PEET'S COFFEE 54 andDOES
1 TO 25, Case No. CGC18569419 (Cal. Super. Ct., San Francisco
Cty., September 4, 2018).
Peet's Coffee & Tea, Inc., together with its subsidiaries, operates
as a specialty coffee roaster and marketer of fresh-roasted coffee
and tea in the United States. The Company offers whole bean coffee
and related products consisting of products for home brewing, tea,
and packaged foods; and beverages and pastries. The Company sells
its Peet's brand coffee and tea through various channels of
distribution, including grocery stores, home delivery, office, and
restaurant and foodservice accounts, as well as company-owned
and-operated stores.[BN]
The Plaintiff is represented by:
Joshua Bordin-Wosk, Esq.
BORDIN SEMMER LLP
6100 Center Drive, Suite 1100
Los Angeles, CA 90045-9213
Telephone: (323) 457-2110
Facsimile: (323) 457-2120
E-mail: jbordinwosk@bordinsemmer.com
PEOPLEREADY INC: Hampton Sues Over Unpaid Missed Breaks, Overtime
-----------------------------------------------------------------
Sterling Hampton, individually and on behalf of all others
similarly situated, Plaintiff, v. Peopleready, Inc. and Trueblue,
Inc., Defendants, Case No. 18-cv-00844, (W.D. Okla., August 30,
2018) seeks damages and other legal and equitable relief pursuant
to the Fair Labor Standards Act, Oklahoma Protection of Labor Act
and the Oklahoma Anti-Discrimination Act.
Defendants are engaged in the business of staffing third party
employers with temporary and permanent employees with approximately
six hundred branches throughout the US. Plaintiffs worked as
staffing specialists. They regularly worked well in excess of 40
hours per workweek and worked through their meal breaks, all
without overtime premium, notes the complaint. [BN]
The Plaintiff is represented by:
Rachel E. Gusman, Esq.
GRAVES MCLAIN PLLC
7137 S. Harvard Avenue, Suite F
Tulsa, OK 74135
Tel: (918) 359-6600
Fax: (918) 359-6605
Email: rachel@gravesmclain.com
- and -
James A. Vagnini, Esq.
Robert R. Barravecchio Esq.
Alexander M. White, Esq.
VALLI KANE & VAGNINI LLP
600 Old Country Road, Suite 519
Garden City, NY 11530
Tel: (516) 203-7180
Fax: (516) 706-0248
Email: jvagnini@vkvlawyers.com
rrb@vkvlawyers.com
awhite@vkvlawyers.com
PET SUPERMARKET: Illegally Sent SMS Ads, Eldridge Suit Says
-----------------------------------------------------------
Troy Eldridge, on behalf of himself and all others similarly
situated, Plaintiff, v. Pet Supermarket, Inc., Defendants, Case No.
18-cv-22531, (S.D. Fla., June 22, 2018), seeks statutory damages
and other legal and equitable remedies resulting from the
transmittal of advertising and telemarketing text messages, en
masse through the use of an automatic telephone dialing system
without any of the recipients' prior express written consent, in
violation of the Telephone Consumer Protection Act.
Defendant owns and operates a chain of pet care supply retail
stores throughout the United States, including Florida, selling pet
food, treats, toys, beds, cages, carriers, collars, leads, feeders,
bowls and a wide range of other pet items. When buying a few things
for his dog, Eldridge joined an e-raffle for a chance to win a
yearlong supply of free pet food via text message. Since then, he
has been receiving automated text ads from Pet Supermarket. [BN]
Plaintiffs are represented by:
David P. Milian, Esq.
Ruben Conitzer, Esq.
CAREY RODRIGUEZ MILIAN GONYA LLP
1395 Brickell Avenue, Suite 700
Miami, FL 33131
Telephone: (305) 372-7474
Facsimile: (305) 372-7475
Email: dmilian@careyrodriguez.com
mmartucci@careyrodriguez.com
rconitzer@careyrodriguez.com
cperez@careyrodriguez.com
PIEDIMONTE FARMS: Migrant Workers File Wage Theft Class Action
--------------------------------------------------------------
Steve Orr, writing for Rochester Democrat and Chronicle, reports
that seven migrant workers, saying they've been shorted on wages
and forced to live in deplorable conditions, have filed suit
against a large Orleans County farm.
The workers, some of whom live in western New York, say Piedimonte
Farms of Holley and related companies paid lower wage rates than
required by law and did not pay mandatory overtime.
They also say the living quarters supplied by the farm were
"overcrowded and unsafe." At one point, 17 people allegedly were
assigned to a house with just two rooms and one toilet.
The lawsuit was filed on Aug. 8 in U.S. District Court in Rochester
by lawyers for the Worker Justice Center of New York.
It seeks unpaid wages and overtime from 2012 through the present
plus monetary damages for each worker. It also seeks monetary
damages for those who lived in the housing the plaintiffs deem
substandard.
The plaintiffs also will ask a judge to approve class-action status
so that more than 75 other workers similarly affected are covered
by the suit.
The papers name four related farm companies and two individuals,
including Anthony J. Piedimonte, whom the plaintiffs identified as
an owner of the companies. The farm grows green beans, cabbage,
tomatoes and other vegetables on more than 2,300 acres.
There was no answer at its office on Aug. 10, and emails seeking
comment were not returned.
John Marsella, a lawyer for the Worker Justice Center in Rochester,
said circumstances such as those alleged in the lawsuit are far
from rare.
"I do want to say there are a number of law-abiding employers in
New York. But the conditions for many farm workers in the United
States remain very poor," Mr. Marsella said.
Affronts such as wage theft and poor living conditions "are
common," he said. "They happen to farm workers all the time."
The papers say that Piedimonte employed immigrants who entered the
country under the H-2A guest-worker program. Farms that make use of
the H-2A program are obligated to pay domestic workers the same
wages.
But the complaint alleges the farm paid the seven plaintiffs a
lower hourly wage.
The plaintiffs are U.S. citizens or lawful residents of this
country. Three live in Orleans County, the others in Indiana and
Florida when they are not traveling for work
The papers also say that Piedimonte processed and packed vegetables
grown by other farmers. Under the law, workers who do that
processing must be paid overtime. The complaint alleges that they
were not paid an overtime rate.
The plaintiffs also say the farm failed to give them written
statements of their wages or to notify them of their rights under
law. [GN]
PITCHER PARTNERS: Faces Class Action Over Slater & Gordon Audits
----------------------------------------------------------------
Misa Han, writing for Australian Financial Review, reports that
Maurice Blackburn has alleged that Slater & Gordon's former auditor
Pitcher Partners wrongly signed off on an inadequate financial
report in 2015.
The class action against Pitcher Partners comes after Maurice
Blackburn settled an investor class action against Slater & Gordon
for $36.5 million, well below the $250 million figure flagged by
Maurice Blackburn at the time of the filing.
At the time of the settlement, Maurice Blackburn flagged it would
consider suing Slaters' advisers to recover the remainder of
shareholders' losses.
Maurice Blackburn special counsel Lee Taylor said the firm's
clients have known for "some time" the firm intended to bring the
claim against Pitcher Partners.
"Now that the first tranche of recovery for shareholders against
Slater and Gordon has been secured, it is time to pursue other
responsible parties," he said.
"It's hard to say at this point what we might be able to recover,
but we have a strong claim, we are optimistic about being able to
help investors in Slater and Gordon claw back more of the
staggering losses they suffered as a result of poor corporate
conduct."
Pitcher Partners to defend
Pitcher Partners spokeswoman said the firm conducted Slaters' audit
a month after the firm purchased Quindell for $1.3 billion and the
firm was "confident" the firm's audit of Slater's financial
accounts was "conducted appropriately and took into account all
information available to us at the time".
"Pitcher Partners took no role in the decision to purchase Quindell
nor in the price that was paid for the business. We are reviewing
the statement of claim and will defend the matter," she said.
In a statement of claim filed in the Federal Court on July 31,
Maurice Blackburn on behalf of shareholders alleges Slater &
Gordon's 2015 financial report overstated Quindell's professional
services division by $145 million.
It also alleges the financial report overstated the value of
Slaters' intangible assets and the value of Quindell's goodwill
asset by $548 million.
Maurice Blackburn says the 2015 financial report was therefore not
prepared in accordance with the accounting standards and did not
give an accurate view of Slaters' financial position, because the
report materially overstated these figures.
By signing off on the financial report, Pitcher partners misled
shareholders and should be liable for some of the losses suffered
by Slaters' shareholders when the share price fell, Maurice
Blackburn says.
Second class action
Maurice Blackburn says Pitcher Partners materially contributed to
Slaters' share price drop by signing off in the inaccurate
financial report.
Adrian Fitzpatrick was the partner in charge of signing off on the
Slaters' 2015 financial report. He has retired from Pitcher
Partners in 2016, his LinkedIn profile says.
Slater & Gordon replaced Pitcher Partners with EY as its new
auditor in December 2015.
Maurice Blackburn is the second law firm to run a class action
against Pitcher Partners.
Last year, law firm Johnson Winter & Slattery filed a class action
against the auditor on behalf of Babscay, a self-managed super
fund, with backing from global litigation funder Vannin Capital.
Maurice Blackburn is seeking compensation, interests and costs on
behalf of Slaters' shareholders. [GN]
POP SELLS LLC: Levinton Hits Illegal Telemarketing SMS
------------------------------------------------------
Martin Levinton, individually and on behalf of all others similarly
situated, Plaintiff, v. Pop Sells, LLC, Defendant, Case No.
18-cv-61408 (S.D. Fla., June 22, 2018), seeks an injunction
prohibiting Oasis from continuing to engage in illegal
telemarketing. The lawsuit further seeks attorneys' fees and costs
for violation of the Telephone Consumer Protection Act.
Pop Sells sent a text message containing an offer to negotiate the
sale of a boat, without Plaintiff's expressed consent, notes the
complaint. [BN]
Plaintiff is represented by:
Andrew J. Shamis, Esq.
SHAMIS & GENTILE, P.A.
14 NE 1st Avenue, Suite 400
Miami, FL 33132
Telephone: 305-479-2299
Email: ashamis@shamisgentile.com
POWER PRESSURE: Green Claims Unpaid Overtime Pay
------------------------------------------------
Garren Green and Alejandro Morante, Jr. Individually and on behalf
of all others similarly situated, Plaintiffs, v. Power Pressure
Control, LLC, JRPPC, LLC, Jack B. Rettig and Mike Montemayor,
Defendants, Case No. 18-cv-00157, (W.D. Tex., August 30, 2018)
seeks to recover compensation, overtime wages, liquidated damages,
attorneys' fees and costs pursuant to the Fair Labor Standards Act
of 1938.
Power Pressure Control is an oilfield service company that provides
pressure control and lubrication services to its clients in the oil
and gas industry throughout the State of Texas. Montemayor is the
President of Power Pressure Control while JRPPC is a managing
member of Power Pressure Control and is managed by Rettig. Green
and Morante were jointly employed by the Defendants in the pump and
lubrication division and did not receive compensation for all hours
worked or the correct amount of overtime compensation for all hours
worked in excess of forty hours per workweek, says the complaint.
[BN]
The Plaintiff is represented by:
Clif Alexander, Esq.
Lauren E. Braddy, Esq.
Carter T. Hastings, Esq.
Austin W. Anderson, Esq.
Alan Clifton Gordon, Esq,
George Schimmel Esq.
ANDERSON2X, PLLC
819 N. Upper Broadway
Corpus Christi, TX 78401
Tel: (361) 452-1279
Fax: (361) 452-1284
Email: clif@a2xlaw.com
lauren@a2xlaw.com
carter@a2xlaw.com
austin@a2xlaw.com
geordie@a2xlaw.com
RADIUS GLOBAL: Douglas Class Suit Asserts FDCPA Violation
---------------------------------------------------------
A class action lawsuit has been filed against Radius Global
Solutions, LLC. The case is captioned as Claudia Douglas, Anna
Solovyova, Zakema T. Wallace, Beatriz Mercado and Jamie Zheng,
individually and on behalf of all others similarly situated v.
Radius Global Solutions, LLC, Case No. 1:18-cv-04991 (E.D.N.Y.,
September 4, 2018).
The lawsuit is brought over alleged violations of the Fair Debt
Collection Practices Act.
Radius Global Solutions LLC provides accounts receivable and
customer relations management solutions. The Company offers Radius
360, a platform that enables communications based on consumer's
preferred communication modality that includes Cell Manager for
assisting clients in achieving compliance with the Telephone
Consumer Protection Act.[BN]
The Plaintiffs are represented by:
Craig Sanders, Esq.
SANDERS LAW, PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530
Telephone: (855) 643-9884
Facsimile: (516) 281-7601
E-mail: csanders@sanderslawpllc.com
REGAL CASH GROUP: Hardin Sues Over Illegal Telemarketing Calls
--------------------------------------------------------------
Tenley Hardin, individually and on behalf of all others similarly
situated, Plaintiff, v. Regal Cash Group, Inc. and Does 1 through
10, inclusive, Defendants, Case No. 18-cv-07594 (C.D. Cal., August
30, 2018), seeks damages and any other available legal or equitable
remedies for the Defendant's practice of contacting Plaintiff on
his cellular telephone in violation of the Telephone Consumer
Protection Act.
Regal Cash Group, a small business loan company, promotes their
financial services using an "automatic telephone dialing system"
thereby incurring a charge for incoming calls, says the complaint.
[BN]
Plaintiff is represented by:
Todd M. Friedman, Esq.
Meghan E. George, Esq.
Adrian R. Bacon, Esq.
Thomas E. Wheeler, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard St. Suite 780,
Woodland Hills, CA 91367
Phone: (877) 206-4741
Fax: (866) 633-0228
Email: tfriedman@toddflaw.com
mgeorge@toddflaw.com
abacon@toddflaw.com
twheeler@toddflaw.com
RELATED ISG: Has Made Unsolicited Calls, Gonzalez Suit Alleges
--------------------------------------------------------------
MANUEL GONZALEZ, individually and on behalf of all others similarly
situated, Plaintiff v. RELATED ISG REALTY, LLC, Defendant, Case No.
1:18-cv-23238-RNS (S.D. Fla., Aug. 9, 2018) seeks to stop the
Defendant's practice of sending unauthorized and unwanted text
messages promoting its realty services and real estate listings,
and to obtain redress for all persons similarly injured by the
Defendant's conduct.
Related ISG Realty, LLC provides residential and commercial real
estate brokerage services in Latin America, Asia, and Europe. The
company was founded in 2011 and is based in Aventura, Florida with
additional offices in Coral Gables, Edgewater, and Fort Lauderdale.
Related ISG Realty, LLC operates as a subsidiary of The Related
Group Inc. and International Sales Group, LLC. [BN]
The Plaintiff is represented by:
Avi R. Kaufman, Esq.
KAUFMAN P.A.
400 NW 26th Street
Miami, FL 33127
Telephone: (305) 469-5881
E-mail: kaufman@kaufmanpa.com
ROBERT BROGDEN: Bid for Prelim Approval of Foster Deal Partly OK'd
------------------------------------------------------------------
In the case, ASHLEY FOSTER, individually and on behalf of other
similarly situated persons, Plaintiff, v. ROBERT BROGDEN'S OLATHE
BUICK GMC, INC., Defendant, Case No. 17-2095-DDC-JPO (D. Kan.),
Judge Daniel D. Crabtree of the U.S. District Court for the
Distirct of Kansas granted in part and denied in part, without
prejudice to refiling, the parties' Joint Motion for Preliminary
Approval of Proposed Collective Action Settlement under 29 U.S.C.
Section 216(b).
Foster, individually and on behalf of other similarly situated
persons, filed the lawsuit against the Defendan. She alleges that
the Defendant violated the Fair Labor Standards Act ("FLSA") and
the Kansas Wage Payment Act ("KWPA"). The Plaintiff alleges that
the Defendant failed to pay her and the putative class members
fully and fairly because of an automatic pay deduction protocol.
She says this pay deduction protocol deducted 30 minutes from every
hourly employee's daily pay record even if the employee did not
take a lunch break. The Defendant denies these allegations.
The Court assigned the matter to mediation, and on Nov. 21, 2017,
the parties engaged in that process before Mr. Joseph Eischens.
The parties reached an agreement in principle on the FLSA
collective action claim at mediation. And the Plaintiff stipulated
to dismiss the KWPA claim without prejudice. On Jan. 28, 2018, the
parties reached a proposed settlement agreement.
The settlement agreement proposes that: (i) the Defendant will pay
$12,000 plus the costs of mediation into a settlement fund to be
held in escrow by the settlement administrator for payment to the
putative class members who opt-in; (ii) the payments to the class
members will be based on automatic deductions for lunch breaks
assessed against each class member from March 1-Dec. 31, 2016;
(iii) the Defendant will not discharge or discriminate against any
current or former employee who is a member of the settlement class;
and (iv) at least 10 days before the final fairness hearing, the
Plaintiffs' counsel will apply to the Court for an attorneys' fee
award to be paid from and not to exceed one-third of the settlement
payment. Also, the Plaintiffs' counsel will ask the Court to order
reimbursement for their reasonable out-of-pocket litigation costs
and expenses.
Now, the parties seek the Court's preliminary approval of their
collective action settlement.
Judge Crabtree conditionally certified the collection action,
approved the proposed notice, and approved the settlement
administrator. Otherwise, the parties have failed to provide
sufficient information for the Court to make a final certification
ruling, determine whether a bona fide dispute exists, determine
whether the proposed settlement is fair and equitable, make an
attorneys' fee award, or determine whether the proposed service
payment to the Plaintiff is fair and equitable. He thus denied the
portion of the motion seeking preliminary approval of proposed
collective action settlement under 29 U.S.C. Section 216(b).
He granted in part and denied in part, without prejudice to
refiling the parties' Joint Motion for Preliminary Approval of
Proposed Collective Action Settlement under 29 U.S.C. Section
216(b). The parties must notify the Court by Aug. 31, 2018 of
their intention either to: (1) file a revised settlement agreement
and supporting documentation considering the rulings in the Order;
or (2) abandon settlement and proceed to litigate the dispute. If
the parties wish to file a revised settlement agreement and
supporting documentation, they may include with it any proposed
deadlines for the continuation of the cause of action.
A full-text copy of the Court's July 31, 2018 Memorandum and Order
is available at https://bit.ly/2NxqPfO from Leagle.com.
Ashley Foster, Plaintiff, represented by Amy L. Coopman --
acoopman@fwpclaw.com -- Foland, Wickens, Eisfelder, Roper & Hofer,
PC, Christopher R. Mirakian -- cmirakian@fwpclaw.com -- Foland,
Wickens, Eisfelder, Roper & Hofer, PC & David W. White --
dwhite@fwpclaw.com -- Foland, Wickens, Eisfelder, Roper & Hofer,
PC.
Robert Brogden's Olathe Buick GMC, Inc., Defendant, represented by
James Christian Morrow, Morrow Willnauer Church, LLC & Peggy A.
Wilson -- pwilson@mwcattorneys.com -- Morrow Willnauer Church,
LLC.
ROYAL CARRIBEAN: Duenas Sues Over Illegal Termination, Unpaid OT
----------------------------------------------------------------
Milton Joseph Duenas, and other similarly-situated individuals,
Plaintiff, v. Royal Carribean Cruises Ltd., Defendant, Case No.
18-cv-22519, (S.D. Fla., June 22, 2018), seeks damages in the form
of lost compensation and benefits, interests, liquidated damages
for willful violations, attorney's fees and costs, equitable
relief, and any and all relief applicable under the Fair Labor
Standards Act and the Family and Medical Leave Act.
Royal Carribean Cruises is an international cruise line providing
cruises all over the world and with offices and operations in Miami
and other international locations. Duenas worked for Royal as a
Care Team Specialist for approximately 11 years. He was terminated
from employment on or about January 16, 2018 and was on medical
leave on account of a serious medical condition. Defendant
allegedly terminated any employee on extended leave rather than
have them return to regular or alternate position. He claims that
he worked over forty hours per week but was never compensated at
the requisite time and one half for the hours he worked in excess
of 40 hours. [BN]
Plaintiff is represented by:
Mayra L. Kadzinski, Esq.
KADZINSKI LAW FIRM
1200 N. Federal Highway, Suite 200
Boca Raton, FL 33432
Tel: (561) 210-8535
Fax: (888) 682-4158
SAMSUNG ELECTRONICS: 11th Cir. Affirms NLRB "Do Not Talk" Ruling
----------------------------------------------------------------
In the cases, JORGIE FRANKS, Petitioner, v. NATIONAL LABOR
RELATIONS BOARD, Respondent. SAMSUNG ELECTRONICS AMERICA, INC.,
f.k.a. Samsung Telecommunications America, LLC, Petitioner-Cross
Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross
Petitioner, Case Nos. 16-10644, 16-10788 (11th Cir.), Judge Frank
M. Hull of the U.S. Court of Appeals for the Eleventh Circuit (1)
denied the NLRB's cross-application for enforcement, (2) denied
Franks' petition for review, (3) granted Samsung's petition for
review, (4) reversed the NLRB panel's ruling that Samsung's
agreement violated the NLRA, (5) reversed the NLRB panel's ruling
that Samsung unlawfully interrogated Franks, and (6) affirmed the
NLRB panel's ruling that Samsung did not issue an unlawful "do not
talk" order to Franks.
On Nov. 13, 2014, Franks, along with several former employees of
Samsung, filed a Nationwide Collective Action Complaint against
Samsung in the U.S. District Court for the Middle District of
Florida. The complaint alleged that Samsung violated the Fair
Labor Standards Act by failing to pay overtime wages to its Field
Sales Managers and by failing to maintain adequate records.
On Jan. 9, 2015, after demanding that the complaint be withdrawn in
light of the arbitration clause in its employment agreements,
Samsung filed a Motion to Dismiss and Compel Mediation/Arbitration.
On Jan. 27, 2015, the Samsung Class Plaintiffs voluntarily
dismissed their lawsuit against Samsung without prejudice.
On Jan. 26, 2015 -- the day before the Samsung Class Plaintiffs
dismissed their lawsuit against Samsung -- after leaving her job at
Samsung, Jorgie Franks filed an unfair labor charge with the NLRB.
In her charge, Franks alleged that Samsung violated the National
Labor Relations Act ("NLRA") (1) maintaining an employment
agreement that required employment disputes to be resolved through
individualized arbitration and that waived its employees' rights to
pursue collective action lawsuits against Samsung; (2)
interrogating Franks about her pursuit of a collective action
lawsuit against Samsung; and (3) ordering Franks not to talk to her
coworkers about the prospect of filing a collective action lawsuit
against Samsung.
A three-member panel of the NLRB ruled that Samsung's employment
agreement violated the NLRA and that Samsung had unlawfully
interrogated Franks. However, the NLRB panel found that Samsung
did not issue a "do not talk" order to Franks.
In 2016, Samsung filed a petition for review of the NLRB panel's
order in the Court, challenging the NLRB panel's findings that
Samsung's employment agreement violated the NLRA and that Sanchez
unlawfully interrogated Franks. Franks also filed a petition for
review, challenging the NLRB panel's rejection of her "do not talk"
claim and asking this Court to affirm the remainder of the NLRB
panel's order.
The NLRB subsequently filed a cross-application for enforcement of
the order, arguing that Samsung's employment agreement violated the
NLRA and that the NLRB panel's finding that Samsung unlawfully
interrogated Franks was supported by substantial evidence. The
NLRB also asserted that the NLRB panel's finding that Sanchez did
not instruct Franks not to talk to other employees was supported by
substantial evidence.
After the NLRB panel issued its order, the Supreme Court decided
Epic Systems Corp. v. Lewis, which forecloses Franks' first claim
against Samsung. Epic Systems concerned whether employer-employee
agreements that contain class and collective action waivers and
stipulate that employment disputes are to be resolved by
individualized arbitration violate the NLRA. The Supreme Court
held that such agreements do not violate the NLRA and that the
agreements must be enforced as written pursuant to the Federal
Arbitration Act. Judge Hull therefore will grant Samsung's
petition for review and will reverse the NLRB panel's ruling
concerning the legality of Samsung's employee arbitration agreement
with Franks.
In light of Epic Systems, the Judge also reverses the NLRB panel's
finding that during the September 3 phone call Sanchez "unlawfully"
interrogated Franks about Franks' pursuit of a collective action
lawsuit against Samsung. Franks validly forfeited the right to
pursue a collective action against Samsung when she signed
Samsung's employment agreement. Thus, Samsung could not have
violated the NLRA when it allegedly dissuaded Franks from filing a
collective action lawsuit, as she was legally not able to do so
once she signed her employment agreement.
Finally, the Judge finds that the NLRB panel determined that
neither Franks' nor Sanchez's testimony about the September 3 call
deserved to be credited over the other. Based on the entire
record, this credibility determination was not inherently
unreasonable or self-contradictory. And because the NLRB panel
otherwise supported its determination by reference to the remaining
relevant record testimony and circumstantial evidence in the case,
there is no issue meriting reversal on this ground.
For these reasons, Judge Hull (i) denied the NLRB's
cross-application for enforcement of the NLRB panel's order; (ii)
denied Franks' petition for review; (iii) granted Samsung's
petition for review and reverse the NLRB panel's conclusions (1)
that Samsung's employment agreement violated the NLRA and (2) that
Samsung unlawfully interrogated Franks about filing a collective
action lawsuit against Samsung; and (iv) affirmed the NLRB panel's
conclusion that Samsung did not issue an unlawful "do not talk"
order to Franks.
The Judge also (i) denied NLRB's cross-application for enforcement;
(ii) denied Frank's petition for review; (iii) granted Samsung's
petition for review; and (iv) affirmed in part and reversed in part
NLRB Panel's order.
A full-text copy of the Court's July 31, 2018 Order is available at
https://bit.ly/2N7ZRvN from Leagle.com.
Linda Dreeben, for Respondent.
Mark E. Zelek -- mark.zelek@morganlewis.com -- for Respondent.
Allyson Newton Ho, for Respondent.
Christopher Zerby, for Respondent.
Derek J. Dilberian, for Respondent.
Elizabeth Ann Heaney, for Respondent.
Jeffrey William Burritt, for Respondent.
Andrew R. Frisch, for Petitioner.
Barbara Ann Sheehy, for Respondent.
Kira Dellinger Vol, for Respondent.
Richard F. Griffin, Jr., for Respondent.
SANDISK LLC: Class of Stockholders Certified in Securities Suit
---------------------------------------------------------------
The Hon. Vince Chhabria grants the Plaintiffs' motion for class
certification in the lawsuit titled IN RE: SANDISK LLC SECURITIES
LITIGATION, Case No. 3:15-cv-01455-VC (N.D. Cal.).
Judge Chhabria appoints as class counsel the Lead Plaintiffs'
counsel.
The class definition is modified to exclude those who purchased or
otherwise acquired SanDisk's publicly traded common stock during
the class period but who sold their stock prior to the first
corrective disclosure on March 26, 2015. Although it seems
unlikely that those who purchased stock after the first corrective
disclosure and sold it before the second will be able to prove
damages, the Court declines to exclude them at this time.
SAPPHIRE NURSING: Faces Class Action Over Lack of Staff
-------------------------------------------------------
Daniel Axelrod, writing for Times Herald-Record, reports that
nurses picketed, state Department of Health inspectors swarmed, and
complaints streamed to local elected leaders and the Times
Herald-Record in the months after for-profit owners bought the
former Elant nursing home in Goshen.
Now, nearly a year after the home became Sapphire Nursing and Rehab
at Goshen, a Westchester law firm has filed a scathing lawsuit
against the business, and the attorneys are seeking class-action
status.
The plaintiffs, a current resident of the home and the estate of a
deceased resident, accuse the owners of slashing staff so deeply
that residents often sat in their own waste, begging visitors for
bathroom help, meals and care.
The suit seeks monetary damages, but also asks the court to require
the home to provide proper care.
Sapphire's troubles under its new leadership reflect a larger
trend, according to nursing home experts.
Facing challenges like inadequate government reimbursements and a
lack of self-funded patients, New York's nonprofit nursing home
companies are increasingly selling to commercial operators that cut
staff to boost revenue.
Trouble began in Goshen when Brooklyn investors Richard Aryeh
Platschek, Esther Farkovits, Machla Abramczyk and Robert Schuck
acquired the nursing home and three others in Beacon, Newburgh and
Wappingers Falls from nonprofit Elant Inc. in September.
They immediately began shedding staff in Goshen, which led to a
"failure to maintain a safe, clean, comfortable and homelike
environment," according to the state DOH and a state-ordered
corrective action plan.
As a result, residents were left unattended for hours, medication
errors occurred and patients were not kept hydrated, properly
nourished and infection-free, according to the DOH.
The lawsuit against Sapphire at Goshen concurs with the DOH's
findings. It was filed July 31 in state Supreme Court in Orange
County by Finkelstein, Blankinship, Frei-Pearson & Garber, LLP, of
White Plains, which represents current resident Mary Rice, 93, and
the estate of former resident Adeline Ramlow, who died in November
at age 96.
Mr. Ramlow's family claims that during a visit, a half-dozen
nursing-home residents pleaded with them for food, help eating and
diaper changes, and staff was nowhere to be found. Joe Guyt, 54, of
Central Valley, is considering joining the suit. His mother,
Lillian, died at the home in February. She was 84.
"My family and I believe the administrators at Sapphire have my
mother's blood on their hands because she laid there for days, if
not weeks, with a urinary tract infection, because she wasn't being
changed properly, which turned to sepsis," Mr. Guyt said. "You can
be for-profit and still care for the residents. You can be
efficient in other ways, and still give critical medical
attention."
After layoffs late last year, the home provided just 1.9 hours of
individual patient care per day from certified nursing assistants,
0.40 hours for licensed practical nurses, and 0.24 from registered
nurses -- sharp cuts from 2016 totals under Elant of 2.29 hours
from CNAs, 0.88 hours from LPNs and 0.58 hours from RNs, according
to the DOH.
Sapphire at Goshen should provide 2.58 hours from CNAs, 0.71 hours
from LPNs and 1.32 hours from RNs, based on the home's federally
reported acuity level, according to nursing-home expert Charlene
Harrington.
After the ownership transition, "it was horrible," said Middletown
Mayor Joe DeStefano, whose father is a resident at the Goshen home.
"It's no question staffing was the difference after the transition
to new owners. . . . Thankfully, they've improved the care for my
father lately, and it's because of all the attention on the place
from Congressman (Sean Patrick) Maloney and others."
In the spring, Sapphire compliance officer Jay Pepper said he
planned to fill up to 26 positions. In recent months, he has
declined to say how many people have been hired and whether they're
RNs, CNAs or LPNs. Pepper recently told the Record, "Sapphire at
Goshen is in substantial compliance" with the state corrective
action plan.
For-profit nursing homes
Across the state, nonprofit nursing homes are increasingly selling
to for-profits that are often more willing to make staff cuts to
handle the elder-care industry's many challenges, said Dan Heim,
executive vice president at LeadingAge New York, a trade group
representing nonprofit and government-owned geriatric-care
providers.
"Not-for-profits are mission-based providers, and as such they've
got their own philosophy about how they're going to provide care
that often manifests in a different staffing pattern,
quality-of-life activities and initiatives," Heim said.
All told, 46 percent of New York's nonprofit nursing homes and 98
percent of government-run homes operated in the red in 2015,
according to a LeadingAge analysis. Those losses have led to many
sales. From 2006 to 2017, New York's nonprofit nursing-home tally
fell from to 213 from 283, while the for-profit total grew to 371
from 322, according to Heim.
Although Medicare reimbursements are generous, they only pay for a
nursing-home patient's first 100 days of care, leaving homes
dependent on less generous Medicaid reimbursements thereafter, Heim
said. Most people lack the savings for elder care, and underused
long-term care insurance is pricey, so Medicaid picks up the slack,
he added.
Between 75 percent and 80 percent of all resident days in New
York's nursing homes are covered at least partly by Medicaid,
according to Heim. On average, Medicaid underpaid New York nursing
homes by an estimated 17.1 percent in 2015, or $48.43 per resident
per day, compared to the actual cost of care, according to the
accounting firm Hansen Hunter & Co.
Thanks to for-profit operators' staff cuts, homes have become more
profitable, Harrington said. After five straight years of
increases, the average nursing home was worth $99,200 per bed in
2016, according to a recent report in the trade publication
SeniorCare Investor.
"Believe me, these for-profit owners are not going to lose money,"
Harrington said. "That's the whole point of cutting all the staff.
. . . They're in the business of making money."
Carly Moore Sfregola, a spokeswoman for the American Health Care
Association, cautioned not to paint all for-profit providers with a
negative brush. Her trade group represents America's for-profit and
nonprofit long-term care providers.
Yes, Ms. Sfregola said, some nursing homes "are struggling for a
wide variety of reasons including poor Medicaid reimbursement
rates, low census, staffing costs, the cost of medical technology,
capital upkeep of the building, mortgages and the high cost of
medication."
"However, broad generalities about changes in ownership don't play
out across the field," Ms. Sfregola said. "The best way to gauge
the quality of care provided in skilled nursing centers is by
looking at health outcomes for the people under our care."
But while every for-profit nursing-home operator is not a bad
actor, Elant's decision to sell its homes illustrates the
challenges nonprofits face competing and finding new owners.
Elant's decision to sell
Elant began 33 years ago as the Arden Hill Senior Health System
when it opened its first nursing home, the Arden Hill Life Care
Center.
By 2005, the company had changed its name to Elant and grown into
eight interwoven nonprofits operating six nursing homes and other
adult-care facilities across the mid-Hudson. At its peak, Elant had
a $50 million budget, served 2,350 people daily and employed 760,
but it struggled financially in later years.
Today, it operates only the Glen Arden assisted-living facility
next to Sapphire's Goshen home. Between 2012 and 2015 alone, Elant
hemorrhaged $20.1 million running the Goshen facility, according to
tax records.
Other Elant properties offset those losses, but Elant lost $4
million systemwide in 2016, its last year as a full company, said
Donna Cornell, Elant's board chairwoman and a board member since
2004.
The company's troubles stemmed from maintaining staffing levels
that were higher than some local nursing homes, relying on low
Medicaid reimbursements and lacking the economies of scale or
purchasing power of larger chains, Ms. Cornell said.
Adding to Elant's costs, each home operated with its own leaders,
not a centralized administration. Crucially, the company's more
profitable private-pay patient total also dropped to 8 percent from
17 percent in the firm's final years, Ms. Cornell said, leaving
Medicaid to make up more of the home's revenue.
"With Medicaid reimbursements reduced by the federal government,
between the feds and state, and the overall loss of the private pay
market, we just took it on the chin," Ms. Cornell said. [GN]
SHARK BITES INC: Pittman Sues to Recover Unpaid OT Wages
--------------------------------------------------------
Jesyca Pittman, individually and on behalf of all others similarly
situated vs. Shark Bites Inc., NLR Sharks Inc., Jacksonville Sharks
Fish and Chicken Inc., T&A Sharks of Little Rock Inc., Sharks of
Roosevelt & Broadway Inc., Sharks of Hot Springs LLC, Mahdi Saleh,
Thaer Assi, Mohammed Yafai and Khalid Hourani, Defendants, Case
18-cv-00415 (E.D. Ark., June 22, 2018) seeks declaratory judgment,
monetary damages, liquidated damages, prejudgment interest, costs
and reasonable attorney's fees, for the Defendants' failure to pay
proper overtime compensation under the Fair Labor Standards Act and
the Arkansas Minimum Wage Act.
Defendants operate Sharks Fish and Chicken, a chain of restaurants
located at several locations in Arkansas where Pittman worked as a
cashier in one of their stores. [BN]
Plaintiffs are represented by:
Daniel Ford, Esq.
Chris Burks, Esq.
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
One Financial Center
650 South Shackleford, Suite 411
Little Rock, AR 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
Email: josh@sanfordlawfirm.com
dominique@sanfordlawfirm.com
SODEXO INC: $200K Attorneys' Fees Awarded in Mejia FLSA Suit
------------------------------------------------------------
In the case, MARIA LUISA MEJIA, ELVIRA MUNGIA LOPEZ, MARIA
BENAVIDEZ, and MARTIN MONTER, individually and acting in the
interest of other current and former employees, Plaintiffs, v.
SODEXO, INC., a Delaware corporation; SDH SERVICES WEST, LLC, a
Delaware limited liability company (and wholly owned and controlled
subsidiary of SODEXO, INC.), and DOES 1 through 20, inclusive,
Defendants, Case No. 16-cv-02120-LEK (E.D. Cal.), Judge Leslie E.
Kobayashi of the U.S. District Court for the Eastern District of
California granted the named Plaintiffs' Motion for Attorneys'
Fees, Costs and Class Representative Enhancement Fees.
In accordance with the Preliminary Approval Order, the Class
Members have been given notice of the terms of the Settlement,
including the amount of attorneys' fees, costs and Class
Representative enhancement fees, and have had the opportunity to
object to the amounts requested herein.
Having received and considered the Settlement, the Plaintiffs'
motion, the supporting papers filed by the Plaintiffs, and the
evidence and argument received by the Court at the hearing before
it entered the Preliminary Approval Order and at the final approval
hearing on July 9, 2018, Judge Kobayashi grnted the Plaintiffs'
motion.
She granted (i) the Class Counsel's request for an award of
attorneys' fees in the amount of $200,000 (33 & 1/3 % of the Gross
Settlement Amount); (ii) the Class Counsel's request for an award
reimbursing them for litigation costs in the amount of $25,850.31;
and (iii) the named Plaintiffs' request for the Class
Representative enhancement fees of $8,000 each for their service to
the Class. These amounts will be paid from the Settlement Fund.
A full-text copy of the Court's Aug. 1, 2018 Order is available at
https://bit.ly/2MnILVs from Leagle.com.
Elvira Mungia Lopez, Maria Luisa Mejia, Martin Monter & Maria
Benavidez, Plaintiffs, represented by Eric Sebastian Trabucco --
ETrabucco@TheMMLawFirm.com -- Mallison & Martinez, Hector Rodriguez
Martinez -- HectorM@TheMMLawFirm.com -- Mallison & Martinez, Joseph
Donald Sutton -- JSutton@TheMMLawFirm.com -- Mallison & Martinez,
Marco A. Palau -- MPalau@TheMMLawFirm.com -- Mallison & Martinez &
Stanley S. Mallison -- StanM@TheMMLawFirm.com -- Mallison &
Martinez.
Sodexo, Inc., a Delaware Corporation & SDH Services West, LLC, a
Delaware Limited Liability Company (and wholly owned and controlled
subsidiary of Sodexo, Inc.), Defendants, represented by Zina Deldar
-- zinadeldar@paulhastings.com -- Paul Hastings, LLP, Jeffrey D.
Wohl -- jeffwohl@paulhastings.com -- Paul Hastings LLP & William
Tucker Page -- tuckerpage@paulhastings.com -- Paul Hastings LLP.
STEINWAY AND SONS: Violates Disabilities Act, Mendez Suit Says
--------------------------------------------------------------
A class action lawsuit has been filed against Steinway and Sons.
The case is titled as Himelda Mendez, on behalf of herself and all
others similarly situated v. Steinway and Sons, Case No.
1:18-cv-08053 (S.D.N.Y., September 4, 2018).
The lawsuit is brought over alleged violations of the Americans
with Disabilities Act.
Steinway & Sons was founded in 1993. The Company's line of
business includes the manufacturing of pianos, organs, and other
musical instruments.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Telephone: (917) 299-6612
Facsimile: (929) 575-4195
E-mail: joseph@cml.legal
STERLING M ENTERPRISES: Goldboss Files Suit in Cal. Super. Ct.
--------------------------------------------------------------
A class action lawsuit has been filed against Sterling M.
Enterprises, Inc., et al. The case is captioned as LAUREN
GOLDBOSS, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY
SITUATED v. STERLING M. ENTERPRISES, INC. A CALIFORNIA CORPORATION
D/B/A LEE'S DELI and DOES 1 TO 25, Case No. CGC18569418 (Cal.
Super. Ct., San Francisco Cty., September 4, 2018).
Sterling M. Enterprises, Inc., is a California corporation doing
business as Lee's Deli. The Company's line of business includes
the retail sale of a range of canned foods and dry goods.[BN]
The Plaintiff is represented by:
Joshua Bordin-Wosk, Esq.
BORDIN SEMMER LLP
6100 Center Drive, Suite 1100
Los Angeles, CA 90045-9213
Telephone: (323) 457-2110
Facsimile: (323) 457-2120
E-mail: jbordinwosk@bordinsemmer.com
SUMMERHILL, NY: Faces Ward Suit in N. Dist. New York
----------------------------------------------------
A class action lawsuit has been filed against Town of Summer Hill
and Cayuga County. The case is styled as Matthew Ward,
individually and on behalf of other similarly situated parties v.
Town of Summer Hill and Cayuga County, Case No.
5:18-cv-01053-GLS-ATB (N.D.N.Y., September 4, 2018).
The cause of suit is stated as real property tort to land.
The Town of Summerhill is a subdivision of Cayuga County, in New
York.[BN]
The Plaintiff is represented by:
Melody Domenica Westfall, Esq.
SCALFONE LAW PLLC
247 West Fayette St., Suite 203
Syracuse, NY 13202
Telephone: (315) 412-0440
Facsimile: (315) 216-5388
E-mail: scalfone@scalfonelaw.com
SWEPI LP: Court Won't Reconsider Summary Judgment in Walney Suit
----------------------------------------------------------------
The United States District Court for the Western District of
Pennsylvania denied Defendant's Motion for Reconsideration in the
case captioned THOMAS J. WALNEY and RODNEY A. BEDOW, SR.,
individually and on behalf of all others similarly situated,
Plaintiffs, v. SWEPI LP and SHELL ENERGY HOLDING GP, LLC,
Defendants. Civil Action No. 13-102 Erie. (W.D. Pa.).
Presently pending is a motion filed by SWEPI LP and its general
partner, Shell Energy Holding GP, LLC SWEPI seeking reconsideration
of the court's ruling wherein the court granted partial summary
judgment in favor of the class.
The Plaintiffs contend that class members were promised the bonus
monies as an incentive for signing their Leases, but the bonuses
were never paid. In their operative pleading, they asserted claims
for breach of contract, among other things.
This court entered a memorandum opinion and order denying SWEPI's
motion for summary judgment and granting plaintiffs' motion for
summary judgment in part. The court ruled that enforceable
contracts existed between SWEPI and the class members as a matter
of law, but that disputed issues of fact relative to SWEPI's
alleged breaches and resulting damages precluded the court from
granting plaintiffs' request for a class-wide monetary judgment.
Standard of Review
Motions for reconsideration of interlocutory orders whether denials
of summary judgment, grants of partial summary judgment, or any
other non-final orders are motions under Federal Rule of Civil
Procedure 54(b). Pursuant to Rule 54(b): "any order or other
decision, however designated, that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the parties
does not end the action as to any of the claims or parties and may
be revised at any time before the entry of a judgment adjudicating
all the claims and all the parties' rights and liabilities."
SWEPI now argues that the court should vacate its entry of partial
summary judgment in favor of the class and deny plaintiffs' motion
for summary judgment in its entirety. This argument is predicated
on the court's determination that no conclusive inferences could be
drawn about class members' awareness of the proffered industry
usage. SWEPI reasons that, if class members' knowledge is
determinative of whether custom and usage is binding and
dispositive, then the lack of any conclusive inferences on the
matter means that a genuine issue of material fact exists in this
case.
Upon consideration of all arguments raised in the parties'
respective briefs, the court is not persuaded that reconsideration
is warranted. As was previously explained by the court, SWEPI's
proposed interpretation of the no liability clause is disfavored
under Pennsylvania's rules for contract construction because it
would render certain other contractual provisions superfluous or
illusory. SWEPI nevertheless sought to impute its subjective and
disfavored interpretation to the class by demonstrating that it
comported with standard usage within the oil and gas industry. As
the proponent of custom and usage evidence, SWEPI had the burden to
show that members of the class knew of the usage or had reason to
know of it.
In observing that no conclusive inference can be drawn regarding
the class members' awareness of the proffered oil and gas industry
customs and usages, the court acknowledged that it could not draw
any definitive conclusions either in favor of or against such
awareness because of the paucity of evidence on the point. The
court did not determine, however, that the record would support a
reasonable inference of class members' actual or constructive
knowledge. In fact, the court noted that nothing in Jenevein's
declaration suggests that Southeast shared or conveyed to
landowners SWEPI's subjective understanding that Drafts could be
cancelled for reasons entirely unrelated to title examination.
Thus, there was no basis for inferring that class members learned
about the industry usage through SWEPI's agents. The court further
observed that Ms. McManus' acknowledgment that she routinely
advised her clients not to accept drafts as a medium of payment
suggests that lay persons outside of the oil and gas industry may
have no reason to know of the industry practices to which Ms.
McManus attests. As a case in point, Walney testified in his
deposition that he had no particular understanding of what the no
liability clause meant prior to presenting it to his bank and never
discussed the provision with SWEPI's landman. Bedow testified that
he never read the contents of the Draft after receiving it and
prior to presenting it to his bank.
SWEPI nevertheless contends that the existence of the custom is
itself evidence that at least some class members knew of it class
members who, for example, sought the advice of someone like Ms.
McManus, were involved in prior leasing, or worked in the industry
or consulted someone who did.
SWEPI also suggests that the court should infer class members'
awareness based on evidence that at least some of the class members
negotiated specialized lease terms pertaining to surface, crop or
timber damages, spud fees, and Pugh clauses. The inferences that
SWEPI asks this court to draw, however, are based solely on
speculation. As such, they are insufficient to support the
existence of a genuine issue of fact concerning the applicability
of the proffered industry usage.
SWEPI's request for reconsideration will be denied.
A full-text copy of the District Court's August 27, 2018 Memorandum
Opinion is available at https://tinyurl.com/yayrv6yv from
Leagle.com.
THOMAS J. WALNEY & RODNEY A. BEDOW, SR, individually and on behalf
of all others similarly situated, Plaintiffs, represented by Joseph
E. Altomare , The Law Office of Joseph Altomare.
SWEPI LP & SHELL ENERGY HOLDING GP, LLC, Defendants, represented by
Jeremy A. Mercer -- jmercer@porterwright.com -- Porter Wright
Morris & Arthur LLP & Daniel M. McClure --
dan.mcclure@nortonrosefulbright.com -- Norton Rose Fulbright US
LLP.
SOUTHEAST LAND SERVICES LLC, Movant, represented by Jeremy A.
Mercer , Porter Wright Morris & Arthur LLP.
TACOMANIA INC: Court Denies Bid for Employees' Home Contact Info
----------------------------------------------------------------
The United States District Court for the Northern District of
California, San Jose Division, denied the Request for Home Contact
Information in the case captioned ZELYN SANCHEZ, ET AL.,
Plaintiffs, v. TACOMANIA, INC., et al., Defendants. Case No.
17-cv-01691-EJD (VKD). (N.D. Cal.).
The parties jointly filed a discovery letter with their respective
positions.
This is a conditionally certified collective class action for
damages for unpaid overtime compensation and loss of meal and rest
breaks and a permanent injunction under the Fair Labor Standards
Act (FLSA).
The Plaintiffs offer only two other hints of why they seek this
discovery. First, they say: The reason for discovery of contact
information is obviously for the discovery of relevant
class-related information in order to obtain information to prepare
for inter alia, a motion to decertify. However, plaintiffs do not
describe the relevant class-related information that they contend
is relevant to a motion to decertify or to any other issue. Second,
plaintiffs say that the contact information is necessary for the
proof of the Plaintiffs' case-in-chief, especially damages.
Here, too, the plaintiffs do not explain why they require the
contact information of putative class members who are not currently
participating in the action as named plaintiffs or opt-in members
in order to prove damages or any other matter.
The Plaintiffs' request for home contact information for all
employees who worked for Tacomania as non-exempt, hourly cashiers
and cooks is denied.
A full-text copy of the District Court's August 23, 2018 Order is
available at https://tinyurl.com/yalrxjvv from Leagle.com.
Zelyn Sanchez & Eloina Fuentes, Plaintiffs, represented by Robert
David Baker -- rbaker@rdblaw.net -- Robert David Baker, Inc.
Tacomania, Inc., Josefina Flores & Jose A. Romero, Defendants,
represented by Elisa Nadeau -- enadeau@littler.com -- Littler
Mendelson, PC, Harry Michael DeCourcy -- hdecourcy@littler.com --
Littler Mendelson & Hector J. Rodriguez -- hjrodriguez@littler.com
-- Littler Mendelson, P.C.
TARGET CORP: Neumann Appeals Ruling in Meta Suit to 6th Cir.
------------------------------------------------------------
Plaintiff Erich B. Neumann filed an appeal from a court ruling in
the lawsuit styled Christopher Meta, et al. v. Target Corporation,
et al., Case No. 4:14-CV-00832, in the U.S. District Court for the
Northern District of Ohio at Youngstown.
As previously reported in the Class Action Reporter, the Plaintiff
asserts that he began purchasing the red, toddler wipes from a
Target store in Boardman, Ohio, in July 2011. Mr. Meta alleges
that the Up & Up brand of flushable wipes caused the problems when
they caked together in his pipes and septic system after flushing,
despite representations on the product packaging and on Target's
Web site that the wipes are flushable, break apart after flushing,
and are safe for sewers and septic systems. Based on these
allegations, Mr. Meta seeks certification of a class consisting of
all persons residing in the State of Ohio, who purchased
Target-Brand 'up&up(R)' 'flushable' moist tissue wipes and toddler
and family wipes.
The appellate case is captioned as Christopher Meta, et al. v.
Target Corporation, et al., Case No. 18-3840, in the United States
Court of Appeals for the Sixth Circuit.
Plaintiff-Appellant ERICH B. NEUMANN, of Miami Beach, Florida,
appears pro se.[BN]
Plaintiff-Appellee CHRISTOPHER META, On behalf of himself and all
others similarly situated, is represented by:
Jeremy Tor, Esq.
SPANGENBERG, SHIBLEY & LIBER LLP
1001 Lakeside Avenue, E., Suite 1700
Cleveland, OH 44114
Telephone: (216) 696-3232
E-mail: Jtor@spanglaw.com
- and -
Hassan A. Zavareei, Esq.
TYCKO & ZAVAREEI LLP
1828 L Street, N.W., Suite 1000
Washington, DC 20036
Telephone: (202) 973-0900
E-mail: hzavareei@tzlegal.com
Defendants-Appellees TARGET CORPORATION and NICE-PAK PRODUCTS,
INC., are represented by:
John Q. Lewis, Esq.
Jennifer L. Mesko, Esq.
TUCKER ELLIS LLP
950 Main Avenue, Suite 1100
Cleveland, OH 44113
Telephone: (216) 592-5000
Facsimile: (216) 592-5009
E-mail: john.lewis@tuckerellis.com
jennifer.mesko@tuckerellis.com
TESLA INC: Faces Class Actions Over Elun Musk's Stock Tweets
------------------------------------------------------------
Brett Molina, writing for USA TODAY, reports that Tesla and its
CEO, Elon Musk, face a pair of class action lawsuits claiming the
billionaire violated federal securities law through tweets
suggesting a plan to go private.
On August 7, Musk published a tweet saying he is considering taking
Tesla private in a proposal valuing the company at $420 a share.
Musk also said funding for the deal had been secured.
According to a class action complaint filed in federal court in San
Francisco by plaintiff Kalman Issacs, Tesla and Musk "embarked on a
scheme and course of conduct to artificially manipulate the price
of Tesla stock to completely decimate the Company's short-sellers,"
beginning with Musk's August 7 tweet.
The complaint says the series of tweets about the proposal drove
shares of Tesla up $45.47 above the previous day's closing. The
lawsuit also claims Musk falsely stated he had secured the
necessary funding to take Tesla private.
In a separate class-action lawsuit also filed in federal court in
San Francisco, plaintiff William Chamberlain claims Musk
"materially misled investors" between August 7 and August 10 on
plans to take Tesla private, including falsely claiming investor
support for the proposal was confirmed, and that funding was
secured.
Tesla could not be immediately reached for comment.
Meanwhile, Tesla and Musk could face an investigation from the
Securities and Exchange Commission. According to The Wall Street
Journal, the SEC has talked to Tesla about Musk's tweet, as well as
why he made the disclosure on Twitter.
Tesla's board of investors is reportedly planning to meet with
financial advisors to explore a proposal to take the company
private. CNBC reports the board will likely ask Musk to recuse
himself. [GN]
TRANSWORLD SYSTEMS: Rigo Files Suit Under FDCPA
-----------------------------------------------
Sandro Rigo, on behalf of himself and all others similarly
situated, Plaintiffs, v. Transworld Systems Inc., Defendants, Case
No. 18-cv-61413, (S.D. Fla., June 22, 2018), seeks statutory
damages, actual damages, including all amounts paid on
time-barred debts, attorney's fees, litigation expenses and costs
of suit and such other and further relief for violation of the Fair
Debt Collection Practices Act.
The debt at issue (the Consumer Debt) is the amount Plaintiff
allegedly owes the current creditor. The original creditor of the
Consumer Debt is believed to be First Bank of Delaware. The current
creditor of the Consumer Debt is Jefferson Capital Systems, LLC.
On March 20, 2018, the Defendant sent a collection letter to
Plaintiff in an attempt to collect the Consumer Debt. Said
consumer debt is a time-barred debt and the letter does not advise
that that Consumer Debt is in fact time-barred or that making a
payment towards the Consumer Debt will revive the statute of
limitations, says the complaint. [BN]
Plaintiff is represented by:
Jibrael S. Hindi, Esq.
THE LAW OFFICE OF JIBRAEL S. HINDI, PLLC
110 SE 6th Street
Ft. Lauderdale, FL 33301
Telephone: (954) 907-1136
Facsimile: (855) 529-9540
Email: jibrael@jibraellaw.com
U-HAUL INTERNATIONAL: Can Compel Arbitration of Kauffman Claims
---------------------------------------------------------------
The United States District Court for the Eastern District of
Pennsylvania granted Defendant's Motion to Compel Arbitration in
the case captioned MICHAEL KAUFFMAN, Plaintiff, v. U-HAUL
INTERNATIONAL, INC.; COLLEGEBOXES, LLC; and eMOVE, INC.,
Defendants. No. 5:16-cv-04580. (E.D. Pa.).
Plaintiff Michael Kauffman has filed a class action lawsuit against
Defendants U-Haul International (U-Haul), Collegeboxes, LLC, and
eMove, Inc. Kauffman alleges that he worked as a mover for
Defendants from December 2010 until fall 2015 and that they failed
to pay him and other similarly-situated movers overtime wages, in
violation of the Fair Labor Standards Act and Pennsylvania law.
Legal Standard
When it is apparent, based on the face of a complaint, and
documents relied upon in the complaint, that certain of a party's
claims `are subject to an enforceable arbitration clause, a motion
to compel arbitration should be considered under a Rule 12(b)(6)
standard without discovery's delay.
Kauffman contends that the arbitration clause in the eMove
Agreement is unenforceable for four reasons. First, Kauffman
contends that the arbitration clause is unenforceable because the
eMove Agreement is a contract of employment and he belongs to a
class of workers namely, transportation workers whose employment
contracts are exempt from the Federal Arbitration Act.
Second, he contends that the arbitration clause is unenforceable
under both the FAA and Pennsylvania law because it is procedurally
and substantively unconscionable and prevents him from effectively
vindicating his rights.
Third, he contends that his claims in this action are outside the
scope of the arbitration clause.
And fourth, Kauffman contends that U-Haul and Collegeboxes cannot
enforce the arbitration clause because they are non-signatory
third-parties and the eMove Agreement includes an express
third-party disclaimer.
The Court need not decide whether the eMove Agreement is
enforceable under the Federal Arbitration Act
Kauffman contends that (1) he is a worker engaged in foreign or
interstate commerce and (2) the eMove Agreement is a contract of
employment and that, as a result, the FAA does not apply to the
eMove Agreement and cannot be relied upon by Defendants to enforce
the Agreement's arbitration clause.
Here, the Defendants contend that because Kauffman's role as a
moving helper at most only incidentally involved transporting goods
interstate, he cannot be regarded as a transportation worker under
the FAA. Kauffman responds that he was, in fact, a transportation
worker because he physically and directly provided the moving
services for Defendants, which was an integral part of the
transportation services Defendants offered.
Second, with respect to whether the eMove Agreement was a contract
of employment, Defendants contend that under the terms of the eMove
Agreement, Kauffman was an independent contractor, not an employee,
and they point out that a number of district courts have determined
that independent-contractor agreements are not contracts of
employment under Section 1. Kauffman responds that the eMove
Agreement is a contract of employment, regardless of whether
Kauffman was an independent contractor or employee, and, moreover,
at this stage the Court must accept as true Kauffman's allegations
that he was an employee.
The Court need not resolve these matters, however, because even if
the eMove Agreement is exempt from the FAA, the Agreement's
arbitration clause is nevertheless enforceable under Pennsylvania
law.
Even if the eMove Agreement is exempt from the FAA, it is
nevertheless enforceable under Pennsylvania law
The arbitration clause can be enforced under state law in the
absence of a state law contingency clause
In Atwood v. Rent-A-Ctr. E., Inc., No. 15-CV-1023-MJR-SCW, 2016 WL
2766656, at *3 (S.D. Ill. May 13, 2016), the court found that the
FAA did not apply because the plaintiff was a transportation
worker, but that the clause was nevertheless enforceable under
state law:
The plaintiff did agree to arbitrate this dispute, and the fact
that the Federal Arbitration Act doesn't apply only means that its
enforcement mechanisms aren't available, not that the whole dispute
can't be arbitrated by enforcing the contract through another
vehicle like state law.
That's true even when the contract says that the Federal
Arbitration Act applies and mentions no other law if the federal
act doesn't apply, the agreement to arbitrate remains viable, and
the only question becomes what state's law applies to the contract
to arbitrate.
In short, the inapplicability of the FAA does not render the
parties' arbitration provision unenforceable where, as here, the
arbitration provision clearly demonstrates the parties' intent to
arbitrate disputes. Accordingly, despite the absence of a state law
contingency provision, the arbitration clause may be enforced under
Pennsylvania law.
The Agreement contains unconscionable terms, but these can be
severed from the Agreement
Here, the Court finds that the primary purpose of the arbitration
bargain entered into by the parties was not to regulate costs or
attorney's fees but rather to provide a mechanism to resolve
disputes. Accordingly, the unconscionable provisions each of which
concerns costs and fees are ancillary and discrete and can be
severed without disturbing the essential purpose of the arbitration
clause. The fact that there are multiple unconscionable provisions
does not change this analysis. Further, there is no evidence of
serious misconduct or moral turpitude on eMove's part. As described
above, the unconscionable aspects of the arbitration clause relate
solely to fees, and the clause does not otherwise impose unfair or
one-sided terms in favor of eMove.
Although the loser-pays provision and the fee-splitting provision
can be easily excised from the arbitration clause, however,
severance of the provision requiring application of the AAA
Commercial Arbitration Rules requires a slightly more complicated
procedure. The provision cannot be severed in its entirety because,
in its absence, there would be no rules at all governing the
arbitration. Nor should the provision be severed in its entirety,
as it is unconscionable only with respect to its allocation of
expenses and fees but is otherwise unobjectionable.
Accordingly, the Court severs the provision requiring the
application of the AAA Commercial Arbitration Rules only insofar as
those rules require Kauffman to pay arbitration fees and costs.
The Court will direct that eMove pay all such fees and costs.
Kauffman's claims are within the scope of the arbitration
provision
The arbitration clause applies to any and all disputes, lawsuits,
legal controversies, legal actions or legal claims arising out of
or relating to this Agreement.
Kauffman contends that his claims in this case do not fall within
the scope of the arbitration provision because his claims do not
arise out of or relate to the Agreement. Defendants respond that
the Third Circuit, in concert with the other circuit courts, has
held that arising out of and relating to language is broad in
nature.
Here, the arbitration provision at issue is the quintessential
broad arbitration provision, that directs to arbitration any
controversy or claim arising out of' or related to' the agreement.
As Defendants point out, the Third Circuit has observed that when
phrases such as arising under and arising out of' appear in
arbitration provisions, they are normally given broad construction.
Further, district courts within this circuit have determined that
arbitration clauses similar to that at issue here apply to
statutory claims.
Here, the eMove Agreement established and governed the relationship
between Kauffman and eMove, including among other things Kauffman's
employment status and the terms of his payment. Kauffman's claims
in this lawsuit, all of which concern his employment status and
payment, arise out of or relate to the eMove Agreement.
U-Haul and Collegeboxes can enforce the arbitration clause
Finally, Kauffman contends that U-Haul and Collegeboxes cannot
enforce the arbitration clause because they were not signatories to
the eMove Agreement. Kauffman contends that the eMove Agreement was
between only himself and eMove, and he observes that the Agreement
contains a no third-party beneficiaries clause, which expressly
states that no person other than the parties hereto, shall have any
rights or claims under this Agreement.
As the Defendants point out, however, Kauffman alleges in his
Complaint that although eMove and Collegeboxes purport to be
separate from U-Haul, in reality, U-Haul, eMove and Collegeboxes
are one and the same company since they act as an integrated
enterprise, alter egos of each other and as a single or joint
employer: that is, U-Haul. In short, according to the Complaint,
eMove, U-Haul, and Collegeboxes are one and the same and, as a
result, the third-party beneficiary issue does not arise.
Further, as the Defendants also point out, under the doctrine of
equitable estoppel, a plaintiff who treats the non-signatory and
signatory party as jointly liable for the same alleged conduct is
estopped from resisting arbitration with the nonsignatory.
Accordingly, U-Haul and Collegeboxes may enforce the Agreement.
A full-text copy of the District Court's August 27, 2018 Opinion is
available at https://tinyurl.com/ybg7oe5u from Leagle.com.
MICHAEL KAUFFMAN, Plaintiff, represented by NATALIE FINKELMAN
BENNETT -- nfinkelman@sfmslaw.com -- SHEPHERD FINKELMAN MILLER &
SHAH LLC & JAMES C. SHAH -- jshah@sfmslaw.com -- SHEPHERD FINKELMAN
MILLER & SHAH LLC.
U-HAUL INTERNATIONAL, INC., COLLEGEBOXES, LLC & EMOVE, INC.,
Defendants, represented by KATHLEEN McLEOD CAMINITI --
kcaminiti@fisherphillips.com -- FISHER & PHILLIPS LLP & MICHAEL R.
GALEY -- ngaley@fisherphillips.com -- FISHER & PHILLIPS LLP.
UNITED STATES: Class Action Against FEMA Pending in Mass. Court
---------------------------------------------------------------
Arelis R. Hernandez, writing for The Washington Post, reports that
the calls, warning that they soon would have to leave and find
their own places to live, came by robot.
Every two weeks or so, the automated voice would tell Analee Dalmau
and hundreds of other displaced Puerto Rican families that the
deadline was looming, that they would soon have to move out of
their hotel rooms, that their refuge would no longer be covered by
federal funds.
Ms. Dalmau, 24, fled her home near the island's tropical rain
forest after Hurricane Maria lashed the U.S. territory more than 10
months ago. She landed in West Springfield, Mass., where she, her
sister and three nephews have been stuck. Finding a job has been
nearly impossible. Though a local charity gave them a
restriction-heavy housing voucher, every door they've knocked on
has been closed because of the family's extreme poverty.
"It's been frustrating. We cry. We get angry. We panic. It's not
just for us, but for our kids," Ms. Dalmau said. "We are in
anguish, and I'm getting sick thinking about going back to living
in a borrowed car with my entire family on the streets."
It has been a chaotic and uncertain year for the thousands of
displaced Puerto Ricans who are still living in hotels across the
country. Pushed out of their homes that were destroyed last
September in the powerful hurricane, they have nowhere else to go.
LatinoJustice, a civil rights organization, has filed a
class-action lawsuit challenging the Federal Emergency Management
Agency's decision to end its Transitional Sheltering Assistance
program without having a long-term plan for the U.S. citizens who
effectively will be rendered homeless when federal aid runs out.
The case is playing out in Massachusetts District Court, where
Judge Timothy S. Hillman is expected to take action at a hearing
scheduled for Aug. 31, when more than 2,000 hotel dwellers might
have to check out.
Federal authorities say the program can't continue forever, that it
is meant to be a bridge from disaster to recovery, one that thus
far has lasted nearly a year.
"FEMA has never been designed to be a final solution," said Michael
Byrne, the federal coordinating officer for FEMA in Puerto Rico.
"We care about these people, we've been working with them for
months . . . This is not a cold, callous approach to
anything."
LatinoJustice argues FEMA is treating Puerto Ricans differently
from other U.S. disaster survivors, alleging the federal agency is
stopping the sheltering program prematurely and is failing to
activate a long-term housing program that it used to help storm
victims on the mainland after Hurricanes Katrina and Sandy.
"I know FEMA has dumped a lot of money on this. But they didn't
dump the money in the right pot," said Emmanuel Ayala, director of
community engagement for the Episcopal Church's Latino Assistance
in central Florida. Mr. Ayala has worked closely with Puerto Ricans
who are now living in hotels. "It's not getting down to the people
in the way that people need it."
Few options
The options FEMA has offered Puerto Rican hurricane refugees often
haven't matched their circumstances, advocates say. The hundreds of
families left in FEMA's hotel program as of late June represent the
island's poorest, the elderly, the sick.
Of the more than 1.1 million Puerto Ricans who registered for FEMA
help after Hurricane Maria, 2 out of 5 applicants were deemed
ineligible for various types of assistance. And when they tried to
appeal, most -- 80 percent -- were rejected for the programs, FEMA
data shows.
One FEMA program awarded families cash to partially rehab damaged
homes to make them livable. But many evacuees had rented their
homes, couldn't prove ownership because of difficulty obtaining the
documents, or lived in houses that were built informally.
Maria Monet, a single mother in Philadelphia, scrambled after the
hurricane destabilized the family home on Puerto Rico's east coast.
Her mother had died two months earlier, leaving Ms. Monet the
property; she also was left with the task of trying to obtain the
title to apply for FEMA funds.
But the 49-year-old lost her biomedical factory job as conditions
worsened on the island. She soon had no money for food. Moving to
the mainland, and into a FEMA-funded hotel, felt like her only
option.
While FEMA also offered rental assistance, or to lease housing
units on the island, two months of rent wasn't enough for most
families. For some, returning to Puerto Rico meant potentially
severe health risks, such as for the chronically ill, like
7-year-old Viktoria Guzman.
Viktoria's health had been failing for months, as her liver stopped
functioning. Her mother, Miriam Huertas, knew if she didn't leave
their damaged home in Puerto Rico, it could claim her daughter's
life. She aimed for Philadelphia because she knew the Children's
Hospital there could help Viktoria receive a transplant. A social
worker helped connect her to the FEMA hotel program after she was
living in her daughter's hospital room for six weeks.
"I felt stranded at the hotel. I told FEMA I couldn't go home and I
couldn't go to a shelter," said Ms. Huertas, 35. She lived in the
Franklin hotel, along with 30 other evacuee families. "I didn't
even know what it was to see my daughter play anymore because she
was so sick."
Relieved
It was a snowy day when Will Gonzalez discovered a peculiar but
powerful proviso embedded in Pennsylvania's public housing law that
would give scores of displaced Puerto Rican families a chance at a
home after a monstrous hurricane took theirs.
Mr. Gonzalez, a lawyer and director of an umbrella Latino advocacy
group in Philadelphia, was working with a coalition of faith,
relief and community leaders to find long-term housing for nearly
80 families stuck in FEMA-funded hotels in the city of brotherly
love.
Time was running out. The agency had set an expiration date for the
program, and soon the survivors of one of the most powerful and
destructive storms in Puerto Rico's history would have but two
choices: a plane ticket back to San Juan or homelessness.
Mr. Gonzalez and the members of the Greater Philadelphia Long Term
Recovery Committee found they could legally help place the families
-- who represent the island's most vulnerable -- in public housing
expeditiously because they were survivors of a federally declared
disaster. The coalition, working with local government officials,
secured a "super preference" that boosted the families to the front
of the housing wait list.
The exhaustion in Ms. Monet's tired eyes dissipated momentarily,
and the anxiety of the last year fell away the moment she crossed
the threshold of her new public housing unit over the Fourth of
July weekend, she said. She had been living with her three teenage
children in a hotel for months.
"Ayyy," she exhaled and stretched her arms out gleefully after
entering her new home on a recent day. She has a new housekeeping
job, expects to fill the place with donated furniture, and she's
getting to know her neighborhood — explaining to a local grocer
what it was she was hoping to buy most: a "caldero," a traditional
copper pot used for cooking large amounts of rice.
The walls were still bare, the refrigerator empty and each of the
apartment's four rooms had nothing more than a box fan and air
mattress for each member of Monet's family. But none of that
mattered.
"Nothing bothers me anymore," Ms. Monet said. "That's how happy,
no, relieved I am to finally have a home and restart our lives."
Not everyone has been so lucky.
The lawsuit
Attorney Kira Romero-Craft and her LatinoJustice colleagues have
been pulling all-nighters for weeks to prepare the case against
FEMA and keep families in hotels until the federal government comes
up with a long-term plan for the Puerto Ricans she represents.
"We are not seeing a systemic approach to addressing the needs of
the evacuees," she said. "Other help was extended in other
circumstances. Why isn't it happening here?"
What advocates want is for FEMA to implement its Disaster Housing
Assistance Program, which pays for and locates long-term housing
for low-income families.
FEMA said the program is expensive and inefficient, citing reports
from its Office of the Inspector General detailing high costs and
shortfalls in meeting specific needs. In court documents, agency
attorneys say officials have discretion in doling out emergency aid
and are immune from liability when they make those decisions.
The transitional housing or hotel program must end because FEMA
says it can no longer absorb 100 percent of the costs. The
government of Puerto Rico is supposed to take over payment for at
least 10 percent of the program, but the territory is in the midst
of a form of bankruptcy.
"It's not an effective program," said Mr. Byrne, of FEMA, noting
that other programs, such as partnerships with Habitat for
Humanity, which is rebuilding homes, have more permanence and
success. "If I'm going to invest time and effort in a program, I'm
going to do it in a program that is more effective. There are lots
of other ways to get them help."
But affordable housing advocates say the agency has been
deliberately undermining the program for years after Hurricane
Sandy, when FEMA provided rental subsidies to survivors for at
least a year so they could rebuild their lives. The Governor of
Puerto Rico and members of Congress have requested the same
program, but FEMA rejected it.
FEMA officials said that as of the end of June, 90 percent of
disaster survivors who fled Puerto Rico after the hurricane
reported that they could not return to the island. FEMA expects
those who are displaced to depend on social service agencies and
nonprofits in the states where they have relocated.
"If they've chosen to stay in the continental United States, we
look to local states and communities to help supply that support
framework," Mr. Byrne said. "We are spending billions of dollars .
. . and sometimes the programs are just not enough for
particular families."
New York City, the state of Massachusetts and nongovernmental
organizations have been paying for extended hotel stays, moving
families into existing homeless shelter programs or providing
housing vouchers. The vast majority of evacuees went to Florida,
where public housing wait lists are, in some cases, years long.
Ms. Dalmau is No. 502 on the Springfield, Mass., waiting list. Her
housing voucher pays for one year of rent, but landlords want to
know what happens after that. She has visited more than two dozen
places since April, but she suspects that property managers become
skeptical when they learn she has three children -- one with
special needs -- and a sister living with her.
Her lack of a permanent address has caused problems for her when
she applies for jobs -- without one, she can't get a call back.
In Puerto Rico, Ms. Dalmau had plans. She had a job and was going
to start a physical therapy program at a university. The hurricane
destroyed everything.
"I've been working since I was 18," Ms. Dalmau said. "I've never
had to depend on anyone, or the government. People think that is
why Puerto Ricans came here, but it's not true. We just want a real
chance to make things work." [GN]
UNITED STATES: Fund Set to Distribute $266MM Civil Rights Deal
--------------------------------------------------------------
Spencer S. Hsu, writing for The Washington Post, reports that the
largest U.S. philanthropy serving Native American farmers and
ranchers has been established to distribute $266 million from a
landmark 2010 civil rights settlement in which the U.S. government
agreed to pay for almost 20 years of official discrimination, court
filings show.
The class-action case settled for a total of $680 million, but far
fewer people than expected made successful claims to the money,
leaving $266 million to be distributed through the new Native
American Agriculture Fund.
The fund can spend the money at its discretion over the next 20
years under terms filed with a federal judge in Washington.
If the judge had not approved creation of the trust, all the
leftover money would have been distributed in equal shares to
nonprofit groups chosen by class attorneys in the lawsuit, an
outcome all sides opposed once it became clear that the sum would
be vast.
The Native American Agriculture Fund was approved two years ago but
was on hold pending the resolution of appeals. The fund's 14-member
board of trustees of native peoples held its first meeting after a
court gave its final approval in late July.
[Judge approves $380 million change to landmark 2010 Native
American farm suit]
"This is a monumental day for Native American communities
nationwide," lead counsel Joseph M. Sellers of Cohen Milstein
Sellers & Toll said in a statement prepared for release on
Aug. 13 and obtained by The Washington Post. Sellers, who launched
the case 19 years ago, added, "Today we bring a landmark legal
case, and hopefully with it, a regrettable part of our nation's
history to a close."
The suit alleged that the Agriculture Department discriminated
against Native Americans in loan programs from 1981 to 1999.
The fund may issue grants for business assistance, education and
technical support, and recipients may include new nonprofits as
well as certain agencies of tribal governments.
Trust Chairwoman Elsie Meeks, a rancher with the Oglala Sioux tribe
in South Dakota and the first Native American to serve on the U.S.
Commission on Civil Rights, said the fund is moving cautiously as
it develops its strategy, starting at an Aug. 22 meeting in
Minnesota, knowing that necessities and potential opportunities are
great.
"All of us having served on foundation boards understand how to go
about developing a strategy," Ms. Meeks said. "We have a long way
to go, but this is a national fund. . . . With some 560 Native
American tribes, this could be a drop in a bucket -- which is why
we have to be really smart about how we use this money."
One initiative could be to improve Indian Country access to the
$260 billion taxpayer-subsidized Farm Credit System by reducing
lender risk, she said, in much the way private mortgage insurance
helps home borrowers meet down payments required for federally
subsidized mortgage loans.
Applicants working reservation land are eligible for fewer and
smaller loans because they do not hold title to the land, which
remains held in trust by the federal government, Ms. Meeks
explained.
As the lawsuit wound through the court for years, attorneys for the
government and for the farmers and ranchers injured by federal
discrimination estimated there were 10,000 people who would be
eligible for a payment.
But only 3,600 succeeded in meeting payout terms -- and they
received about $302 million initially, and an additional $77
million in surplus funding.
That left the large pool of unclaimed money.
Some nonprofits have already been awarded $38 million to use on
projects including scholarships and research grants in agriculture,
extension programs for 36 tribes, a new national community
development bank and new services to assist native farmers with
legal and loan paperwork, according to documents obtained by The
Post.
The Trump administration's Justice Department successfully asked
the U.S. Supreme Court not to take up a challenge to the agreement,
which was reached before President Trump took office.
Administration attorneys had asked the trial judge in the case to
scrutinize proposed grants to two of the recipients for potential
conflicts of interest or the possibility their grants could be used
for lobbying or political activities in violation of the deal's
terms.
U.S. District Judge Emmet G. Sullivan of the District of Columbia
agreed to bar Farmers Legal Action Group of St. Paul, Minn., from
spending any of its $692,213 grant for drafting legislation.
But Judge Sullivan said class attorneys had "used a comprehensive
process to ensure that . . . [recipients] are free from
conflicts of interest." [GN]
UNITED STATES: Teneng Seeks Certification of Civil Detainee Class
-----------------------------------------------------------------
The Plaintiffs in the lawsuit styled STEPHENSON AWAH TENENG, MARCEL
NGWA, ANKUSH KUMAR, GURJINDER SINGH, ATINDER PAUL SINGH, NOE
MAURICIO GRANADOS AQUINO, and all others similarly situated v.
DONALD J. TRUMP, President of the United States, KIRSTJEN NIELSEN,
Secretary Department of Homeland Security; RONALD D. VITIELLO,
Acting Director, Immigration and Customs Enforcement; DAVID MARIN,
Field Office Director, Los Angeles Field Office of Immigration and
Customs Enforcement; JEFFERSON BEAUREGARD SESSIONS, III, U.S.
Attorney General; HUGH J. HURWITZ, Acting Director, Federal Bureau
of Prisons, DAVID SHINN, Warden, FCI Victorville Medium Security
Prison I/II, in their official capacities only, Case No.
5:18-cv-01609-JGB-KK (C.D. Cal.), ask the Court to certify a
Plaintiff Class and a Plaintiff Subclass:
* "Civil Detainee Class" consists of:
"All persons who are now, or in the future will be, in the
legal custody of the U.S. Immigrations and Customs
Enforcement ("ICE") and detained at Federal Correctional
Institution ("FCI") Victorville;" and
* "Religious Freedom Subclass" consists of:
"All religious persons who are now, or in the future will
be, in the legal custody of ICE and detained at FCI
Victorville"
The Plaintiffs ask the Court to certify them as representatives of
the Civil Detainee Class and to certify Plaintiffs Marcel Ngwa,
Gurjinder Singh, Atinder Paul Singh, and Noe Mauricio Granados
Aquino as representatives of the Religious Freedom Subclass. They
also ask the Court to appointing their counsel of record as Class
Counsel for the Plaintiff Class and Subclass.
The Plaintiffs further ask the Court to direct the parties to
confer and submit a proposed notice to the Plaintiff Class and
Subclass, and the proposed method of distribution of that notice,
within 30 days of the Order certifying the Plaintiff Class and
Subclass.
The Court will commence a hearing on October 9, 2018, at 9:00 a.m.,
to consider the Motion.
The Plaintiffs are represented by:
Donald Specter, Esq.
Corene T. Kendrick, Esq.
Margot K. Mendelson, Esq.
PRISON LAW OFFICE
1917 Fifth Street
Berkeley, CA 94710
Telephone: (510) 280-2621
Facsimile: (510) 280-2704
E-mail: dspecter@prisonlaw.com
ckendrick@prisonlaw.com
mmendelson@prisonlaw.com
- and -
David C. Fathi, Esq.
Daniel Mach, Esq.
Victoria Lopez, Esq.
Heather L. Weaver, Esq.
ACLU FOUNDATION
915 15th St. N.W., 7th Floor
Washington, DC 20005
Telephone: (202) 548-6603
Facsimile: (202) 393-4931
E-mail: dfathi@aclu.org
dmach@aclu.org
vlopez@aclu.org
hweaver@aclu.org
- and -
Timothy Fox, Esq.
Elizabeth Jordan, Esq.
CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER
104 Broadway, Suite 400
Denver, CO 80203
Telephone: (303) 757-7901
Facsimile: (303) 593-3339
E-mail: tfox@creeclaw.org
ejordan@creeclaw.org
- and -
Nancy E. Harris, Esq.
Ellyn L. Moscowitz, Esq.
Jason S. Rosenberg, Esq.
MEYERS, NAVE, RIBACK, SILVER & WILSON
555 12th St., Suite 1500
Oakland, CA 94607
Telephone: (510) 808-2000
Facsimile: (510) 444-1108
E-mail: nharris@meyersnave.com
emoscowitz@meyersnave.com
jrosenberg@meyersnave.com
- and -
Anne E. Smiddy, Esq.
MEYERS, NAVE, RIBACK, SILVER & WILSON
101 W. Broadway, Suite 1105
San Diego, CA 92101
Telephone: (619) 569-2099
Facsimile: (619) 330-4800
E-mail: asmiddy@meyersnave.com
VALEANT PHARMA: Court Narrows Claims in Lord Abbett Securities Suit
-------------------------------------------------------------------
In the cases, LORD ABBETT INVESTMENT TRUST-LORD ABBETT SHORT
DURATION INCOME FUND, et al., Plaintiffs, v. VALEANT
PHARMACEUTICALS INTERNATIONAL, INC., et al., Defendants, THE BOEING
COMPANY EMPLOYEE RETIREMENT PLANS MASTER TRUST AND THE BOEING
COMPANY EMPLOYEE SAVINGS PLANS MASTER TRUST, Plaintiffs, v. VALEANT
PHARMACEUTICALS INTERNATIONAL, INC., et al., Defendants, PUBLIC
EMPLOYEES' RETIREMENT SYSTEM OF MISSISSIPPI, Plaintiff, v. VALEANT
PHARMACEUTICALS INTERNATIONAL, INC., et al., Defendants, Civil
Action Nos. 17-6365 (MAS) (LHG), 17-7636 (MAS) (LHG), 17-7625 (MAS)
(LHG) (D. N.j.), Judge Michael A. Shipp of the U.S. District Court
for the District of New Jersey (i) granted PricewaterhouseCoopers
LLP ("PwC")'s motions to dismiss the Section 10(b) claims; (ii)
denied Carro's motion to dismiss the Section 10(b) claim in Lord
Abbett; (iii) denied Valeant Defendants' motions to dismiss the
RICO claims; (iv) granted PwC's motions to dismiss the RICO claims;
(v) denied the Defendants' motions to dismiss the Section 18
claims; and (vi) granted the Defendants' motions to dismiss the
common law fraud and negligent misrepresentation claims.
The cases are direct actions arising out of the same facts and
circumstances as the class action currently pending before the
Court under docket number 15-7658. Essentially, the Plaintiffs
allege that Valeant and certain executives, namely, Robert
Rosiello, Howard Schiller, Michael Pearson, and Tanya Carro engaged
in a "massive, fraudulent scheme" to artificially inflate the price
of Valeant's securities. The Plaintiffs allege the Defendants used
a clandestine pharmacy network, deceptive pricing and
reimbursement, and fictitious accounting to perpetrate the fraud.
The Plaintiffs in these actions bring claims for:(1) Racketeering
in Violation of N.J.S.A. Section 2C:41-2(c); (2) Racketeering in
Violation of N.J.S.A. Section 2C:41-2(d); (3) Aiding and Abetting
in Violation of N.J.S.A. Section 2C:41-2(c) and (d); (4) Violations
of Section 10(b) of the Securities Exchange Act of 1934 and Rule
10b-5; and (6) Violation of Section 20(a) of Exchange Act (against
Pearson, Schiller, and Rosiello). In addition, the Plaintiffs in
Lord Abbett and Boeing bring the following claims: (1) Violation of
Section 18 of the Exchange Act (against Valeant, Pearson, Schiller,
and Rosiello); (2) Common Law Fraud; and (3) Negligent
Misrepresentation (against the Valeant Defendants).
The matter comes before the Court on 15 motions to dismiss filed in
the matters. The Valeant Defendants, Pearson, and Schiller move to
dismiss the N.J. RICO, Section 18, and common law fraud and
negligent misrepresentation claims in each of the Complaints. PwC
moves to dismiss all claims against it. Carro moves to dismiss all
claims against her in Lord Abbett, and all claims against her
except the Section 10(b) claims in Mississippi and Boeing.
Even taking the Plaintiffs' allegations as true, Judge Shipp finds
that the allegations in the Complaints do not establish either.
The Complaints sound in negligence, not fraud -- and certainly do
not support the strong inference of scienter required for a Section
10(b) claim. The Plaintiffs' own argument relies on what a
"reasonable accountant" should have concluded, clearly suggesting a
negligence standard -- not conscious misbehavior or recklessness.
Further, to the extent the Plaintiffs argue that PwC had a motive
and opportunity to commit fraud, the only "motive" identified in
the Complaints is PwC's receipt of fees for completion of the
audit. Accordingly, he granted PwC's motion to dismiss Count IV in
each of the Complaints.
Next, the Judge finds that the conduct alleged as to Carro, even
without the two misstatements allegedly made on an October call,
are sufficient to survive the motions to dismiss. Therefore,
considering the acts alleged in the Complaints, and using the
fraud-on-the-market presumption, it would be premature to dismiss
the Section 10(b) claim against Carro at this stage of the
proceedings. arro's motion, therefore, is denied.
Reviewing the Complaint against the backdrop of the New Jersey
Supreme Court's analysis, the Judge finds that the Plaintiffs have
sufficiently alleged N.J. RICO claims under section c against the
Valeant Defendants. The Complaints specifically allege the
participants in the enterprise who acted over the course of eight
years in furtherance of the group's ongoing efforts to deceive the
public for the benefit of the company and themselves. Therefore,
he finds that the Plaintiffs have sufficiently pled the existence
of an "enterprise" to survive a motion to dismiss.
Given the scope of these allegations, and as a Section 10(b) claim
is undoubtedly a predicate act under N.J. RICO, N.J.S.A. Section
2C:41-1(a)(1)(p), the Judge finds that the Plaintiffs have alleged
the requisite pattern of racketeering activity. Further, a
complete analysis as to the knowledge and agreement of each
individual will be more appropriate at summary judgment. At this
early stage of the proceedings, and evaluating the pleadings
against the Rule 8(a) standard, the Judge finds that the pleadings
are sufficient.
For the same reasons he is permitting the substantive RICO claims
to proceed, the Judge also finds that the NJ RICO claims should
survive for purposes of the motion. It would be premature to
determine the aiding and abetting claims at this early stage of the
proceedings. Valeant Defendants' motions on these counts,
therefore, are denied.
The Judge also finds that, at this early stage of the proceedings,
it would be premature to dismiss claims predicated on the purchases
of the notes based on lack of injury. The Plaintiffs pled that
they purchased the notes at inflated prices due to the conduct of
the Defendants. In addition, the issue of whether any particular
plaintiff was an original or downstream purchaser, or whether there
is standing based on specific purchases of an individual Plaintiff,
should be reviewed with the benefit of a full discovery record.
Hence, the Defendants' motion on this ground is, therefore,
denied.
Because the Plaintiffs only plead that PwC performed the audit in
order to be paid its professional fees and should have recognized
potential issues with the financial records, PwC's motions as to
each of the NJ RICO claims against it, are dismissed, without
prejudice. Further, the Judge denied the Defendants' motions
regarding the timeliness of the Section 18 claims. Section 18 is
different because a Section 18 mistake made in good faith or
without knowledge of a statement's falsity is immune from
liability.
Finally, allowing the Plaintiffs to proceed on their state law
negligent misrepresentation and fraud claims, therefore, would
directly contravene Congress' intent behind SLUSA's preemption
provision as interpreted by the Supreme Court in Dabit.
Accordingly, the Judge finds that the Lord Abbett and Boeing
Plaintiffs' state common law claims are preempted under SLUSA.
An Order consistent with the Memorandum Opinion will be entered.
A full-text copy of the Court's July 31, 2018 Memorandum Opinion is
available at https://goo.gl/iszCSu from Leagle.com.
THE BOEING COMPANY EMPLOYEE RETIREMENT PLANS MASTER TRUST & THE
BOEING COMPANY EMPLOYEE SAVINGS PLANS MASTER TRUST, Plaintiffs,
represented by STEPHEN WILLIAM TOUNTAS -- stountas@kasowitz.com --
Kasowitz Benson Torres LLP.
VALEANT PHARMACEUTICALS INTERNATIONAL, INC., ROBERT L. ROSIELLO &
TANYA CARRO, Defendants, represented by RICHARD HERNANDEZ --
rhernandez@mccarter.com -- MCCARTER & ENGLISH, LLP & ROBERT N.
WARD, MACCARTER & ENGLISH, LLP.
J. MICHAEL PEARSON, Defendant, represented by HOLLY SUSANNE
WINTERMUTE -- hswinter@debevoise.com -- DEBEVOISE & PLIMPTON LLP.
HOWARD B. SCHILLER, Defendant, represented by JAMES S. RICHTER --
jrichter@winston.com -- WINSTON & STRAWN, LLP.
VCG HOLDING: Individual Arbitration of Dancers' Claims Affirmed
---------------------------------------------------------------
The United States Court of Appeals, Sixth Circuit, affirmed the
individual arbitration ruling in the appeals case captioned MELISSA
McGREW, et al., Plaintiffs-Appellants, v. VCG HOLDING CORP., et
al., Defendants-Appellees. No. 17-5474. (6th Cir.).
Plaintiffs had entered into individual arbitration agreements with
the Defendants, so the district court dismissed the case and
compelled individual arbitration.
The Plaintiffs, a group of exotic dancers who worked at a
gentleman's club, attempted to bring a class action against the
club, a holding company that owned the club, and two executives,
alleging that the Defendants had misclassified the Plaintiffs as
independent contractors rather than as employees, resulting in
violations of the Fair Labor Standards Act (FLSA) and certain
Kentucky state employment laws.
The Plaintiffs appealed, raising four issues. First, whether under
NLRB v. Alternative Entertainment, Inc., 858 F.3d 393 (6th Cir.
2017), decided after the district court's decision, the individual
arbitration agreements conflicted with the National Labor Relations
Act (NLRA)'s collective-action guarantees. Second, whether the
individual arbitration agreements conflicted with the FLSA's
collective-action guarantees. Third, whether the arbitrator or the
district court should initially decide whether the Plaintiffs were
employees who are covered by the NLRA and FLSA or independent
contractors (who are not covered by the NLRA or FLSA. Fourth,
whether the district court abused its discretion by enforcing
individual arbitration before facilitating notice to other
potential class members pursuant to Section 216(b) of the FLSA.
The Court delayed deciding this case because the Supreme Court's
then-pending decision in Epic Sys. Corp. v. Lewis, 138 S.Ct. 1612
(2018), would resolve the first issue, and our then-pending
decision in Gaffers v. Kelly Servs., Inc., No. 16-2210 (6th Cir.
2018), would resolve the second issue. In Epic, the Supreme Court
abrogated our Alternative Entertainment decision and held that
individual arbitration agreements do not conflict with the NLRA's
collective-action guarantees.
And in Gaffers, the Court held that individual arbitration
agreements do not conflict with the FLSA's collective-action
guarantees. Epic and Gaffers control here, and resolve the first
and second issues in this case in the Defendants' favor. And
because the holdings of Epic and Gaffers mean that individual
arbitration agreements are enforceable against both employees and
independent contractors, the Court need not resolve what would have
been the third issue in this case if Epic and Gaffers had gone the
other way.
This leaves the Court with only the fourth issue, and Epic and
Gaffers have made it an easy one. In FLSA collective actions, the
Supreme Court has authorized district courts to facilitate notice
to similarly situated potential plaintiffs. Whether or how to
facilitate notice, however, is within the discretion of the
district court. The Plaintiffs cite no in-circuit authority showing
that the district court abused its discretion at the time by
declining to facilitate notice to other potential plaintiffs. But
even if the district court did abuse its discretion, after Epic and
Gaffers there will be no FLSA collective action against the
Defendants about which the district court could facilitate notice.
A full-text copy of the Sixth Circuit's August 23, 2018 Opinion is
available at https://tinyurl.com/y9asd5es from Leagle.com.
VUARNET INC: Accused by Mendez Suit of Violating Disabilities Act
-----------------------------------------------------------------
A class action lawsuit has been filed against Vuarnet Inc. The
case is styled as Himelda Mendez, on behalf of herself and all
others similarly situated v. Vuarnet Inc., Case No. 1:18-cv-08056
(S.D.N.Y., September 4, 2018).
The Plaintiff accuses the Defendant of violating the Americans with
Disabilities Act.
Vuarnet creates, manufactures and distributes luxury sunglasses
fitted with mineral lenses providing protection, precision and
durability. Vuarnet is a Franch sunglass brand founded in 1957 and
re-launched in US in 2015.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Telephone: (917) 299-6612
Facsimile: (929) 575-4195
E-mail: joseph@cml.legal
WASTE MANAGEMENT: Holbert Action to Recover Overtime Pay
--------------------------------------------------------
Thomas Holbert, individually and on behalf of all others similarly
situated, Plaintiff, v. Waste Management, Inc., Defendants, Case
No. 18-cv-02649, (E.D. Pa., June 22, 2018), seeks unpaid overtime
compensation and prejudgment interest, liquidated and exemplary
damages, litigation costs, expenses, attorneys' fees and such other
and further relief under the Fair Labor Standards Act of 1938.
Waste Management provides sanitation and trash collection services
where Holbert worked as a waste collector for the Delaware Valley
South location in Pennsylvania. He routinely worked more than 40
hours a week but did not receive overtime pay for hours worked in
excess of 40 a week, says the complaint. [BN]
Plaintiff is represented by:
Shanon J. Carson, Esq.
Sarah R. Schalman-Bergen, Esq.
Camille Fundora, Esq.
BERGER & MONTAGUE, P.C.
1622 Locust Street
Philadelphia, PA 19103
Telephone: (215) 875-3000
Facsimile: (215) 875-4604
Email: scarson@bm.net
sschalman-bergen@bm.net
cfundora@bm.net
WELLS FARGO BANK: Lotsoff Suit Removed to S.D. Cal.
---------------------------------------------------
The case captioned Helen Lotsoff and Ashleigh Hartman, on behalf of
themselves and all others similarly situated, Plaintiffs, v. Wells
Fargo Bank, N.A., FCTI, Inc. and Does 1-50, inclusive, Defendants,
Case No. 37-2018-00026392, (Cal. Super., May 29, 2018), was removed
to the U.S. District Court for the Southern District of California
on August 30, 2018 under Case No. 18-cv-02033.
Lotsoff and Hartman sued Wells Fargo for improperly charging her
two overdraft fees in connection with their Uber purchases. [BN]
Plaintiff is represented by:
Todd D. Carpenter, Esq.
CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP
1350 Columbia Street, Suite 603
San Diego, CA 92101
Tel: (619) 762-1910
Fax: (619) 756-6991
Email: tcarpenter@carlsonlynch.com
Defendant is represented by:
Edward D. Vogel, Esq.
Alejandro E. Moreno, Esq.
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
501 West Broadway, 19th Floor
San Diego, CA 92101-3598
Telephone: (619) 338-6500
Facsimile: (619) 234-3815
E-mail evogel@sheppardmullin.com
amoreno@sheppardmullin.com
YOGURT CITY: Mendez Suit Asserts Disabilities Act Breach
--------------------------------------------------------
A class action lawsuit has been filed against Yogurt City Inc. The
case is captioned as Himelda Mendez, on behalf of herself and all
others similarly situated v. Yogurt City Inc., Case No.
1:18-cv-08052 (S.D.N.Y., September 4, 2018).
The lawsuit arises from alleged violations of the Americans with
Disabilities Act.
Yogurt City Inc. is a privately held company in New York City. The
Company sells yogurt.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Telephone: (917) 299-6612
Facsimile: (929) 575-4195
E-mail: joseph@cml.legal
Asbestos Litigation
ASBESTOS UPDATE: 5th. Cir. Affirmed Remand of S. Melancon P.I. Suit
-------------------------------------------------------------------
The Fifth Circuit of the United States Court of Appeals affirmed
the district court's order remanding the case to state court.
The appealed case Sandra Vicknair Melancon; Lynn M. Melancon,
Plaintiffs-Appellees, v. Lamorak Insurance Company, as successor in
interest to the liability for policies of insurance Commercial
Union Insurance Company, Employers Commercial Union Insurance
Company, and American Employers Insurance Company issued by;
Huntington Ingalls, Incorporated, formerly known as Northrop
Grumman Shipbuilding, Incorporated, formerly known as Northrop
Grumman Ship Systems, Incorporated, formerly known as Avondale
Industries, Incorporated, formerly known as Avondale Shipyards,
Incorporated, formerly known as Avondale Marine Ways, Incorporated;
Albert Bossier, Jr.; J. Melton Garrett, Defendants-Appellants, No.
18-30113. Summary Calendar, (5th Cir.) is the latest in an
ever-increasing line of cases brought by former Huntington Ingalls
employees or their family members in state court alleging asbestos
exposure.
Tyrone Melancon's widow Sandra Melancon and his daughter Lynn
Melancon filed suit in Louisiana state court alleging that their
husband and father was exposed to asbestos while working for
Huntington Ingalls. They allege that Tyrone Melancon's exposure to
asbestos and asbestos-containing products occurred on a daily basis
from 1965 to 1979 while he was employed at the Huntington Ingalls
shipyard and that this exposure contributed to his development of
mesothelioma and eventual death. The Melancons sued Huntington
Ingalls, Huntington Ingalls executives Albert Bossier, Jr. and J.
Melton Garrett, and Lamorak Insurance Company (collectively,
Huntington Ingalls) for negligent failure to warn Tyrone Melancon
of the dangers of asbestos and failure to implement safety
procedures for handling asbestos.
Huntington Ingalls removed the case to the United States District
Court for the Eastern District of Louisiana under the federal
officer removal statute, 28 U.S.C. Section 1442(a)(1), alleging
that removal was permissible because the company used and installed
asbestos-containing materials during the construction of Navy and
Coast Guard ships. The government had contractually mandated the
use of asbestos-containing materials in the construction of these
ships and government officials frequently inspected the ships to
ensure compliance with these specifications.
The Melancons moved to remand to state court, and the district
court granted the motion to remand. The district court held that
Huntington Ingalls did not satisfy the causal nexus requirement
necessary for federal officer removal because the government
officials had no control over the warnings provided by Huntington
Ingalls or the safety procedures implemented. Huntington Ingalls
appeals.
Here, as in Legendre and Templet v. Huntington Ingalls, Inc., the
Melancons allege negligence pertaining to the failure to "warn,
train, and adopt safety procedures." The Court has held that such
"private conduct . . . implicate[s] no federal interest." As in
Legendre, "nothing . . . suggests that [Huntington Ingalls] was not
free to adopt the safety measures the plaintiffs now allege would
have prevented their injuries." The Court finds no evidence that
Huntington Ingalls could not have adopted the warnings or safety
procedures proposed by the Melancons. Under the Court's current
precedent, the district court properly held that Huntington Ingalls
failed to show a "causal nexus" between the government's actions
and the charged conduct as required under 28 U.S.C. Section 1442.
The causal nexus test derives from the pre-2011 statutory language.
Huntington Ingalls seeks a revised approach that eliminates the
causal requirement from the nexus test following the 2011
amendment. Yet the Court has already altered this test to
incorporate the new "relating to" language. The Court has
acknowledged that "the 2011 amendment expanded the breadth of acts
sufficient to establish a causal nexus even further," but the court
explained that the "causal nexus inquiry must . . . be tailored to
fit the facts of each case." A showing "of precise federal
direction" is not required, and the "plain import of the phrase
'relating to' is that some attenuation is permissible," but the
court "cannot attenuate the causal nexus requirement to the point
of irrelevance."
A copy of the Per Curiam dated July 26, 2018, is available at
https://tinyurl.com/y9odmvkk from Leagle.com.
Brian Carl Bossier -- bbossier@bluewilliams.com -- for
Defendant-Appellant.
Edwin A. Ellinghausen, III -- eellinghausen@bluewilliams.com -- for
Defendant-Appellant.
John Maurice Futrell -- jfutrell@leefutrell.com -- for
Defendant-Appellant.
Gary Allen Lee -- glee@leefutrell.com -- for Defendant-Appellant.
Samuel M. Rosamond, III , for Defendant-Appellant.
Gerolyn Petit Roussel , for Plaintiff-Appellee.
Jonathan Brett Clement , for Plaintiff-Appellee.
ASBESTOS UPDATE: Ashland Global Had 53,000 Open Claims at June 30
-----------------------------------------------------------------
Ashland Global Holdings Inc. disclosed in its Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended June 30, 2018, that there were 53,000 open
asbestos-related claims filed against the Company at June 30,
2018.
The Company states, "The claims alleging personal injury caused by
exposure to asbestos asserted against Ashland result primarily from
indemnification obligations undertaken in 1990 in connection with
the sale of Riley. The amount and timing of settlements and number
of open claims can fluctuate from period to period.
"From the range of estimates, Ashland records the amount it
believes to be the best estimate of future payments for litigation
defense and claim settlement costs, which generally approximates
the mid-point of the estimated range of exposure from model
results. Ashland reviews this estimate and related assumptions
quarterly and annually updates the results of a non-inflated,
non-discounted approximate 50-year model developed with the
assistance of Nathan.
"During the most recent annual update of this estimate completed
during the June 2018 quarter, it was determined that the liability
for Ashland asbestos-related claims should be decreased by US$8
million. Total reserves for asbestos claims were US$385 million at
June 30, 2018 compared to US$419 million at September 30, 2017.
"Ashland has insurance coverage for certain litigation defense and
claim settlement costs incurred in connection with its asbestos
claims, and coverage-in-place agreements exist with the insurance
companies that provide substantially all of the coverage that will
be accessed.
"For the Ashland asbestos-related obligations, Ashland has
estimated the value of probable insurance recoveries associated
with its asbestos reserve based on management's interpretations and
estimates surrounding the available or applicable insurance
coverage, including an assumption that all solvent insurance
carriers remain solvent. A substantial portion of the estimated
receivables from insurance companies are expected to be due from
domestic insurers.
"At June 30, 2018, Ashland's receivable for recoveries of
litigation defense and claim settlement costs from insurers
amounted to US$142 million (excluding the Hercules receivable for
asbestos claims) compared to US$155 million at September 30, 2017.
During the June 2018 quarter, the annual update of the model used
for purposes of valuing the asbestos reserve and its impact on
valuation of future recoveries from insurers was completed. This
model update resulted in a US$5 million decrease in the receivable
for probable insurance recoveries."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2wLroIi
ASBESTOS UPDATE: Bolin's P.I. Claims vs. Southern Wall Dismissed
----------------------------------------------------------------
The District Court of Appeal of Florida reverses the trial court's
order denying Southern Wall Products' motion to dismiss for lack of
personal jurisdiction in this products liability action because the
record shows lack of minimum contacts to support specific personal
jurisdiction.
The appellees, Steven and Deborah Bolin, filed a 2017 products
liability lawsuit in Broward Circuit Court against multiple
defendants, including Southern Wall. They alleged in their amended
complaint that Steven Bolin was exposed to asbestos-containing
products over a period of years, between 1969 and 1981, at numerous
job sites in Florida. They claimed that as a result, he contracted
mesothelioma.
In their complaint, they alleged jurisdiction against all
defendants based on numerous allegations of conducting business in
Florida, including that: (1) the defendants conducted business or
had offices within the state; (2) the plaintiffs' cause of action
arose out of the defendants' business ventures within the state;
(3) the defendants' asbestos-containing materials were sold in
Florida and Steven Bolin used them in Florida; (4) the defendants
engaged in nationwide marketing and specifically targeted Florida
for their asbestos-containing products; (5) the defendants
conducted substantial and not isolated activities within the state;
and (6) the defendants maintained agents for service of process
within the state. The plaintiffs also alleged that the defendants
received substantial revenues from the sale of products in Florida
at all times material to the cause of action.
Specific to Southern Wall, the complaint stated that Steven Bolin
was exposed to a joint compound in Florida from Southern Wall in
1975-1977 while working as a laborer or construction worker for a
company in Clearwater, Florida.
Southern Wall moved to dismiss for lack of personal jurisdiction.
It attached an affidavit of its bookkeeper, averring that Southern
Wall, a corporation with its principal place of business in Tucker,
Georgia, had never maintained any office or physical presence in
Florida, and that neither did its predecessor, Ruco of Atlanta,
Inc., also a Georgia corporation. During the 1970s, Ruco's sales
were centralized in Georgia, and neither Southern Wall nor Ruco
marketed or sold any product in Florida.
To counter the motion to dismiss, the Bolins filed a response,
quoting from Steven Bolin's deposition that he had used an
asbestos-containing joint compound in 1977 while working as a
laborer and that one of them was named Ruco. The response also
quoted from a deposition of Richard Whitcomb for Southern Wall, who
said Southern Wall was currently distributing its product in
Florida at the time of his deposition, which was in 2017.
Approximately twenty percent of Southern Wall's sales are made in
Florida. The Bolins argued that Southern Wall had continuous
contacts and sales in Florida of asbestos-containing products and
that Southern Wall is subject to specific personal jurisdiction
pursuant to section 48.193, Florida Statutes (2014).
The trial court held a non-evidentiary hearing on the motion to
dismiss. Counsel for the Bolins declared that they were alleging
specific personal jurisdiction against Southern Wall, not general
jurisdiction. The court questioned whether the fact that Southern
Wall was doing business in Florida at the time of the hearing,
decades after the exposure, would support finding personal
jurisdiction over Southern Wall now. Southern Wall objected,
arguing that at the time of the alleged Florida exposure, Southern
Wall did not do business in Florida. The trial court entered an
order denying the motion to dismiss, prompting this appeal.
In this case, the Bolins asserted jurisdiction pursuant to section
48.193(1)(a)6., Florida Statutes, which specifically provides for
jurisdiction over an out-of-state defendant for causes of action
arising out of the following acts: "Causing injury to persons or
property within this state arising out of an act or omission by the
defendant outside this state, if, at or about the time of the
injury, either (a) the defendant was engaged in solicitation or
service activities within this state; or (b) products, materials,
or things processed, serviced, or manufactured by the defendant
anywhere were used or consumed within this state in the ordinary
course of commerce, trade, or use."
The sworn affidavit of Southern Wall representative states that
neither Southern Wall nor its predecessor Ruco sold any product in
Florida. Bolin, on the other hand, stated that he used
asbestos-containing joint compound from Ruco in construction in
Florida in the 1970s, although he did not state that either he or
his employer purchased the compound in Florida.
The Court explains that substantial connection between the
defendant and the forum State necessary for a finding of minimum
contacts must come about by an action of the defendant purposefully
directed toward the forum State. While the Bolins alleged that the
defendant marketed nationally, targeted Florida, and sold into
Florida, the affidavit of Southern Wall representative averred
that: 1) the company had no offices or employees in Florida; 2) did
not advertise in Florida; and 3) did not sell its products in
Florida during the 1970s. Bolin responded with his own deposition
testimony that he used a Ruco joint compound while working
construction in Florida in the 1970s.
The Court holds that placement of a product into the stream of
commerce, without more, is not an act of the defendant purposefully
directed toward the forum State. At most, even if Bolin is correct
regarding his use of the product in Florida, the Court maintains
that this amounts to a single use which is insufficient to prove
minimum contacts. The Court believes that there could be more facts
which Bolin could have brought forth regarding Ruco's contact with
Florida, however, he did not, and it was his burden to do so.
Instead, the Court points out that Bolins rely on Southern Wall's
current sales and marketing within Florida to satisfy minimum
contacts. The Court agrees with Southern Wall's contention that the
minimum contacts analysis must be made at the time of the acts
subjecting the foreign defendant to jurisdiction. To support an
exercise of specific personal jurisdiction, the defendant's
contacts with the forum state must directly relate to the
challenged conduct or transaction. In order to determine whether a
claim relates to or arises out of a party's contacts, the court
cannot simply aggregate all of a defendant's contacts with a state
-- no matter how dissimilar in terms of geography, time, or
substance -- as evidence of the constitutionally-required minimum
contacts.'" The current activity of Southern Wall in Florida forty
years later does not relate to this cause of action. The acts
involved in this action occurred in the 1970s. Bolin offered no
evidence with respect to contacts of Southern Wall or Ruco during
that period.
The Court finds that the Bolins presented no evidence that Southern
Wall purposely availed itself of the privilege of conducting
activities in or targeted activities at Florida. It had no contact
with Florida at all in the 1970s. There is no evidence that it was
marketing its product in the state, that it employed agents in the
state, or had agreements with distributors or any contact at all
which would suggest purposeful availment of privileges of the
forum. Southern Wall's sworn affidavit states that it sold no
product in Florida at all. Assuming that Bolin was using the Ruco
product in his work, there is no explanation of how it was
distributed. Was it purchased in Florida, or was it purchased in
Georgia and shipped to Florida? Was it a one-time sale in Florida?
Without some contrary evidence, the plaintiff did not refute the
affidavit presented by Southern Wall. There is no evidence to
support the proposition that Southern Wall should have anticipated
being hale into court under the facts of this case.
As a general rule, the Court explains that the sovereign's exercise
of power requires some act by which the defendant purposefully
avails itself of the privilege of conducting activities within the
forum State, thus invoking the benefits and protections of its
laws. In products-liability cases like this one, it is the
defendant's purposeful availment that makes jurisdiction consistent
with traditional notions of fair play and substantial justice.
Accordingly, the Court reverses the order denying Southern Wall's
motion to dismiss for lack of personal jurisdiction. On remand, the
trial court will dismiss Southern Wall from the appealed case
entitled Southern Wall Products, Inc., Appellant, v. Steven E.
Bolin and Deborah Bolin, his wife, Appellees, No. 4D18-875, (Fla.
4th Dist. Ct. App.).
A copy of the Corrected Opinion dated July 25, 2018, is available
at https://tinyurl.com/ydz4tgcf from Leagle.com.
Walter G. Latimer , Bruno Renda and Noor Fawzy --
nfawzy@mkclaw.us.com -- McGivney, Kluger & Cook, P.C., Fort
Lauderdale, for appellant.
Rebecca S. Vinocur of Rebecca S. Vinocur, P.A., Coral Gables, for
appellees.
ASBESTOS UPDATE: Grabowski's Claims vs. Miracle-Gro Dismissed
-------------------------------------------------------------
The Hon. Manuel J. Mendez of the Supreme Court of New York County
grants The Scotts Miracle-Gro Company's motion to dismiss
Plaintiffs' Third Amended Complaint and orders that all
Cross-Claims against The Scotts Miracle-Gro Company are severed and
dismissed.
Miracle-Gro moves to dismiss Plaintiff's Third Amended Complaint
and all cross-claims against it contending that the Court does not
have personal jurisdiction over it because (1) Mr. Grabowski's
exposures occurred outside of the State of New York, (2) Mr.
Grabowski did not reside in the State of New York, (3) Miracle-Gro
is not incorporated in New York and does not maintain its principal
place of business in New York, therefore there is no general
jurisdiction. Furthermore, Miracle-Gro contends that Plaintiff's
claims do not arise from any of Miracle-Gro New York transactions,
and Miracle-Gro did not commit a tortious act within the State of
New York or without the state of New York that caused an injury to
person or property within the State of New York, therefore there is
no specific jurisdiction.
Plaintiff opposes the motion contending that this Court does have
personal general jurisdiction and long-arm jurisdiction over
Miracle-Gro.
Plaintiff's deceased, Alex Grabowski, a New Jersey resident his
entire life, was diagnosed with mesothelioma in 2017. Plaintiff
alleges Mr. Grabowski was exposed to asbestos in a variety of ways.
Plaintiff alleges exposure to The Scotts Company LLC's
asbestos-containing products when using Scotts Turf Builder,
topsoil, seed, pre-mixed soil, and miracle-gro on his family lawn
in Union, New Jersey from 1957 through 2017.
Mr. Grabowski testified that he would typically apply Turf Builder
three times a year, which would result in him inhaling the
allegedly asbestos-containing dust that was produced. Mr. Grabowski
testified that he would purchase the Scotts Turf Builder from a
nursery in Springfield, New Jersey, or from a Home Depot in Union,
New Jersey. Plaintiff commenced this action on September 11, 2017
to recover for injuries resulting from Mr. Grabowski's exposure to
asbestos.
Plaintiff argues that Miracle-Gro has consented to general
jurisdiction in the State of New York because Scotts registered
with the Secretary of State as a foreign corporation and appointed
the New York State Secretary of State as an agent for the service
of process. The Court finds, however, that Miracle-Gro itself is
not registered to do business in New York. The Court explains that
a foreign corporation is not present on the basis of control unless
there is in existence at least a parent-subsidiary relationship.
The control over the subsidiary's activities must be so complete
that the subsidiary is, in fact, merely a department of the parent
The Court explains that General Jurisdiction permits a court to
adjudicate any cause of action against the defendant, wherever
arising, and whoever the plaintiff. To demonstrate jurisdiction
pursuant to CPLR Section 301, the plaintiff must show that the
defendant's "affiliations with [New York] are so continuous and
systematic as to render them essentially at home in" New York. For
a corporation the paradigm forum for general jurisdiction, that is
the place where the corporation is at home, is the place of
incorporation and the principal place of business.
The Court, therefore, concludes that it cannot exercise General
Personal jurisdiction over Miracle-Gro because it is not
incorporated, nor does it have its principal place of business in
the State of New York. Miracle-Gro is an Ohio corporation, with its
principal place of business in the State of Ohio. The Court finds
Plaintiff's contention that Miracle-Gro subjected itself to general
jurisdiction because its subsidiary Scotts was once a "wholly owned
subsidiary" of ITT Company, an "international business
conglomerate" with its headquarters in New York from 1971 to 1986
unpersuasive.
The Court finds that Miracle-Gro did not exist until November 2004,
and regardless, the relevant time frame for judicial inquiry under
section 301 is at the time of service of the summons and complaint.
Furthermore, Plaintiff's contention that Miracle-Gro is "at home"
in New York because it is on the New York Stock Exchange is
unavailing. Finally, the Plaintiff is unable to demonstrate
"exceptional circumstances" for the Court to exercise General
Personal Jurisdiction over Miracle-Gro.
Moreover, the Court finds that Plaintiff does not allege or present
evidence that Scotts is merely a department of Miracle-Gro.
Furthermore, Miracle-Gro maintains separate officers and directors.
The Court concludes that Miracle-Gro did not consent to general
jurisdiction because Scotts registered with the Secretary of State
as a foreign corporation and appointed the New York State Secretary
of State as an agent for the service of process. Thus, the mere
fact Scotts registered to do business in New York is insufficient
to confer general jurisdiction in New York over the corporation.
The Court also concludes that it cannot exercise Specific Personal
jurisdiction under CPLR Section 302(a)(1) because there is no
articulable nexus or substantial relationship between Miracle-Gro's
in state conduct and the claims asserted. The record before the
Court establishes that the injuries asserted by the Plaintiff did
not arise from any activity Miracle-Gro undertook within the state
of New York. Mr. Grabowski admitted that the products at issue were
purchased in New Jersey. The Court says that Plaintiff's attempt to
introduce evidence including Miracle-Gro's subsidiary Scotts'
having a soil-testing facility and call centers located in New York
is unavailing as it does not relate to this action.
Likewise, the Court cannot exercise personal specific jurisdiction
under CPLR Section 302(a)(2) because Miracle-Gro has not committed
a tortious act within the state of New York. The Court finds that
all of the alleged exposures to defendant's product occurred in the
State of New Jersey. Exercise of specific jurisdiction under this
section requires a defendant to be physically present in New York.
Moreover, the Court cannot exercise personal specific jurisdiction
under CPLR Section 302(a)(3) because the injury did not occur in
the State of New York. Mr. Grabowski was exposed to Miracle-Gro's
subsidiary Scotts' products in New Jersey, meaning that New Jersey
is the situs of the injury. Since the exposure and the injury --
the original event-took place outside of the State of New York, Mr.
Grabowski is not and has never been a resident of the State of New
York, the New York courts cannot exercise jurisdiction.
The case is In Re: New York City Asbestos Litigation. Irene
Grabowski, as Personal Representative of the Estate of Alex
Grabowski, Plaintiffs, v. A.O. Smith Corporation, et al.,
Defendants, Docket No. 190267/2017, Motion Seq. No. 008, (N.Y.).
A copy of the Order dated July 25, 2018, is available at
https://tinyurl.com/ychy5mxz from Leagle.com.
ASBESTOS UPDATE: Hercules LLC Had 12,000 PI Claims at June 30
-------------------------------------------------------------
Ashland Global Holdings Inc. disclosed in its Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended June 30, 2018, that wholly-owned subsidiary Hercules
LLC had 12,000 open claims filed against it related to asbestos
matters at June 30, 2018.
The Company states, "Hercules has liabilities from claims alleging
personal injury caused by exposure to asbestos. Such claims
typically arise from alleged exposure to asbestos fibers from resin
encapsulated pipe and tank products which were sold by one of
Hercules' former subsidiaries to a limited industrial market. The
amount and timing of settlements and number of open claims can
fluctuate from period to period.
"From the range of estimates, Ashland records the amount it
believes to be the best estimate of future payments for litigation
defense and claim settlement costs, which generally approximates
the mid-point of the estimated range of exposure from model
results. Ashland reviews this estimate and related assumptions
quarterly and annually updates the results of a non-inflated,
non-discounted approximate 50-year model developed with the
assistance of Nathan. As a result of the most recent annual update
of this estimate, completed during the June 2018 quarter, it was
determined that the liability for Hercules asbestos-related claims
should be decreased by US$19 million. Total reserves for asbestos
claims were US$289 million at June 30, 2018 compared to US$323
million at September 30, 2017.
"For the Hercules asbestos-related obligations, certain
reimbursement obligations pursuant to coverage-in-place agreements
with insurance carriers exist. As a result, any increases in the
asbestos reserve have been partially offset by probable insurance
recoveries. Ashland has estimated the value of probable insurance
recoveries associated with its asbestos reserve based on
management's interpretations and estimates surrounding the
available or applicable insurance coverage, including an assumption
that all solvent insurance carriers remain solvent. The estimated
receivable consists exclusively of solvent domestic insurers.
"As of June 30, 2018, Ashland's receivable for recoveries of
litigation defense and claims costs from insurers with respect to
Hercules amounted to US$54 million compared to US$68 million at
September 30, 2017. During the June 2018 quarter, the annual
update of the model used for purposes of valuing the asbestos
reserve and its impact on valuation of future recoveries from
insurers was completed. This model update resulted in a decrease
of US$14 million in the receivable for probable insurance
recoveries."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2wLroIi
ASBESTOS UPDATE: J. Brazan P.I. Suit Remanded to State Court
------------------------------------------------------------
The Hon. Nannette Jolivette Brown of the U.S. District Court for
the Eastern District of Louisiana remands the case entitled Joseph
Brazan, v. Lamorak Insurance Co., et al., Section: "G" (2), Civil
Action Case No. 18-6898, (E.D. La.) to the Civil District Court for
the Parish of Orleans, State of Louisiana because it lacks subject
matter jurisdiction in this case.
In this case, Plaintiff alleges he contracted malignant
mesothelioma as a result of exposure to asbestos products at
various worksites from 1960 through 1979. On September 29, 2017,
Plaintiff filed a petition for damages in the Civil District Court
for the Parish of Orleans against twenty defendants.
On July 23, 2018, according to Removing Defendants' Notice of
Removal, Plaintiff settled with all remaining parties, except for
Removing Defendants. The Removing Defendants are Union Carbide
Corporation and Bayer CropScience, Inc. Bayer CropScience, Inc., as
Successor to Rhone-Poulenc AG Company, f/k/a Amchem Products, Inc.,
f/k/a Benjamin Foster Company.
The Removing Defendants allege there exists complete diversity, as
"Plaintiff, by his voluntary act, has definitely and clearly
indicated his intention to abandon or discontinue his action
against all non-diverse defendants," and the amount in controversy
exceeds $75,000.
On July 23, 2018, Plaintiff filed the instant motion to remand,
arguing that a non-diverse defendant still remains in this case,
which destroys complete diversity. In the motion to remand,
Plaintiff argues that the instant case should be remanded because
complete diversity does not exist between the parties. Plaintiff
asserts that Reilly-Benton Company, Inc., a Louisiana citizen,
remains a non-diverse defendant in this case. According to
Plaintiff, Reilly-Benton filed for bankruptcy after Plaintiff filed
suit, meaning all claims asserted against Reilly-Benton are subject
to an automatic stay.
Removing Defendants argue that Reilly-Benton's Louisiana
citizenship should not be considered for purposes of diversity,
contending that Plaintiff voluntarily discontinued his case against
Reilly-Benton. Plaintiff asserts that he has not dismissed
Reilly-Benton from this case and Plaintiff's current inability to
further prosecute the case against Reilly-Benton was not voluntary,
but rather a result on the automatic stay put in place once
Reilly-Benton filed for bankruptcy.
The parties do not contest that Reilly-Benton is a citizen of
Louisiana, as Reilly-Benton is incorporated under Louisiana law and
has its principal place of business in Louisiana. Removing
Defendants do not argue that Reilly-Benton's citizenship should not
be considered because of its bankruptcy, but rather argue that in
state court, on July 23, 2018, Plaintiff discontinued its case
against Reilly-Benton, when Plaintiff's counsel stated that the
only remaining defendants in this case, after settlement, were
Amchem and Union Carbide. Removing Defendants further argue that
Plaintiff demonstrated his intent to discontinue his case against
Reilly-Benton because Plaintiff did not address Reilly-Benton in
Plaintiff's proposed jury interrogatories, pretrial inserts, or
expert reports.
The Court notes that the Removing Defendants attempt to ignore the
fact that Reilly-Benton is in bankruptcy and that pre-bankruptcy
petition claims against Reilly-Benton, such as the instant suit,
are barred under the automatic stay, with resulting penalties and
punitive damages.
Furthermore, the Court notes that Plaintiff points to excerpts of
the transcript of a hearing held in state court on July 23, 2018,
where Plaintiff's counsel identified the parties with whom
Plaintiff settled, which did not include Reilly-Benton, and where
Plaintiff reserved his rights against all other Defendants. Thus,
Plaintiff has not voluntarily discontinued his case against
Reilly-Benton, but instead Plaintiff's inability to prosecute his
case against Reilly-Benton was caused by the effect of the
automatic stay, and not by any voluntary acts of Plaintiff.
The Court concludes that Plaintiff's case against Reilly-Benton is
stayed due to its bankruptcy, not discontinued nor abandoned due to
any voluntary act of Plaintiff. Therefore, Reilly-Benton is a
"real" party, and its citizenship must be considered in determining
whether the Court has diversity jurisdiction over this case.
The Court settles that given the presence of Reilly-Benton, a
citizen of Louisiana, in this lawsuit at both the initiation of the
lawsuit and at the time of removal destroys complete diversity, as
Plaintiff is a Louisiana citizen, thus, the Court lacks subject
matter jurisdiction.
Joseph F Brazan, Plaintiff, represented by Gerolyn Petit Roussel ,
Roussel & Clement, Benjamin Peter Dinehart , Roussel & Clement,
Jonathan Brett Clement , Roussel & Clement, Lauren Roussel Clement
, Roussel & Clement & Perry Joseph Roussel, Jr. , Roussel &
Clement.
Union Carbide Corporation & Bayer CropScience, Inc., Successor to
Rhone Poulenc AG Company, Defendants, represented by McGready Lewis
Richeson -- mricheson@pugh-law.com -- Pugh, Accardo, Haas, Radecker
& Carey, David M. Stein -- dstein@pugh-law.com -- Pugh, Accardo,
Haas, Radecker & Carey, Ernest G. Foundas -- efoundas@pugh-law.com
-- Pugh, Accardo, LLC, Francis Xavier deBlanc, III --
fdeblanc@pugh-law.com -- Pugh, Accardo, Haas, Radecker & Carey,
Kathleen Erin Jordan -- kjordan@pugh-law.com -- Pugh, Accardo,
Haas, Radecker & Carey, Milele N. St. Julien --
mstjulien@pugh-law.com -- Pugh, Accardo, Haas, Radecker & Carey &
Perrey S. Lee -- plee@pugh-law.com -- Pugh, Accardo, LLC.
ASBESTOS UPDATE: J.H. Cox's Claims vs. American Honda Dismissed
---------------------------------------------------------------
The Hon. James C. Dever, III of the U.S. District Court for the
Eastern District of North Carolina, upon consideration of the
Parties' Motion to Dismiss American Honda Motor Co., Inc.,
(erroneously sued as "American Honda Motor, Inc., hereinafter
referred to as American Honda Motor Co., Inc.), has dismissed
Plaintiff's claims against Defendant American Honda from the case
styled Jack Howard Cox, Sr., Executor of the Estate of Percy Ray
Cox, Plaintiffs, v. Agco Corporation, et al. Defendants, Civil
Action No. 4:16-cv-00084-D, (E.D.N.C.), with prejudice.
A copy of the Order dated August 23, 2018, is available at
https://tinyurl.com/ydepreht from Leagle.com.
Jack Howard Cox, Sr., Executor of the Estate of Percy Ray Cox,
Dec., Plaintiff, represented by Benjamin D. Braly --
bbraly@dobllp.com -- Dean Omar Branham LLP, Sabrina G. Stone --
sstone@dobllp.com -- Dean Omar Branham LLP, Kevin W. Paul --
kpaul@dobllp.com -- Dean Omar Branham, LLP & Janet Ward Black --
info@wardblacklaw.com -- Ward Black Law.
Arvinmeritor, successor in interest to Rockwell International
Automotive Products & Maremont Corporation, Defendants, represented
by Carter T. Lambeth , Carter T. Lambeth Attorney, P.C. & William
P. Early , Pierce Herns Sloan and Wilson LLC.
Borg-Warner Morse Tec, Inc., successor in interest to Borg-Warner
Corporation, Defendant, represented by David L. Levy --
dlevy@hedrickgardner.com -- Hedrick, Gardner, Kincheloe & Garofalo,
LLP, Kelvin T. Wyles -- kelvin.wyles@dentons.com -- Dentons US LLP,
Lisa L. Oberg -- Lisa.Oberg@dentons.com -- Dentons US LLP & Jon S.
Player , Hedrick, Gardner, Kincheloe & Garofalo, LLP.
Caterpillar, Inc., Defendant, represented by William Michael Starr
-- bill.starr@nelsonmullins.com -- Nelson Mullins Riley &
Scarborough, LLP.
Deere & Company, Inc., doing business as John Deere, Defendant,
represented by Tracy E. Tomlin -- tracy.tomlin@nelsonmullins.com --
Nelson Mullins Riley & Scarborough, LLP, Travis Andrew Bustamante
-- travis.bustamante@nelsonmullins.com -- Nelson Mullins Riley &
Scarborough, LLP & William Michael Starr --
bill.starr@nelsonmullins.com -- Nelson Mullins Riley & Scarborough,
LLP.
Ford Motor Company, Defendant, represented by Christopher R. Kiger
-- ckiger@smithlaw.com -- Smith Anderson Blount Dorsett Mitchell &
Jernigan, LLP, Kirk G. Warner -- kwarner@smithlaw.com -- Smith
Anderson Blount Dorsett Mitchell & Jernigan, LLP & Addie K.S. Ries
-- aries@smithlaw.com -- Smith Anderson Blount Dorsett Mitchell &
Jernigan, LLP.
Honeywell International, Inc., individually and as successor in
interest to the Bendix Corporation, Defendant, represented by H.
Lee Davis, Jr. -- ldavis@davisandhamrick.com -- Davis & Hamrick,
LLP.
Navistar, Inc., successor in interest to International Harvester
Company, Defendant, represented by Robert O. Meriwether , Nelson
Mullins Riley & Scarborough, Tracy E. Tomlin --
tracy.tomlin@nelsonmullins.com -- Nelson Mullins Riley &
Scarborough, LLP, Travis Andrew Bustamante --
travis.bustamante@nelsonmullins.com -- Nelson Mullins Riley &
Scarborough, LLP & William Michael Starr --
bill.starr@nelsonmullins.com -- Nelson Mullins Riley & Scarborough,
LLP.
Parker-Hannifin Corporation & Standard Motor Products, Inc.,
Defendants, represented by Robert David Proffitt , Proffitt & Cox,
LLP, Ronald Brian Cox , Proffitt & Cox, LLP & David A. Shaw --
dshaw@williamskastner.com -- Williams Kastner & Gibbs.
Pneumo Abex LLC, successor in interest to Abex Corporation,
Defendant, represented by Timothy W. Bouch , Leath Bouch &
Seekings.
SPX Corporation, Individually and as successor in interest to Bear
Automotive Service Equipment Company, Defendant, represented by
Gary L. Beaver -- gbeaver@nexsenpruet.com -- Nexsen Pruet, PLLC.
McCord Corporation, Defendant, represented by Allyson R. Twilley --
atwilley@gwblawfirm.com -- Gallivan, White & Boyd, P.A., Daniel B.
White -- dwhite@gwblawfirm.com -- Gallivan, White & Boyd, P.A.,
James M. Dedman, IV -- jdedman@gwblawfirm.com -- Gallivan, White &
Boyd, P.A. & Ronald G. Tate -- rtate@gwblawfirm.com -- Gallivan,
White & Boyd, P.A.
ASBESTOS UPDATE: J.H. Cox's Claims vs. Federal-Mogul Dismissed
--------------------------------------------------------------
Upon consideration of the Joint Motion to Dismiss Defendant
Federal-Mogul Asbestos Personal Injury Trust, sued as successor to
Felt-Products Manufacturing Co., Judge James C. Dever, III of the
U.S. District Court for the Eastern District of North Carolina
dismissed Plaintiff's claims against Defendant Federal-Mogul from
the case styled Jack Howard Cox, Sr., Executor of the Estate of
Percy Ray Cox, Plaintiffs, v. Agco Corporation, et al. Defendants,
Civil Action No. 4:16-cv-00084-D, (E.D.N.C.), with prejudice.
A copy of the Order dated August 23, 2018, is available at
https://tinyurl.com/y87zys2b from Leagle.com.
Jack Howard Cox, Sr., Executor of the Estate of Percy Ray Cox,
Dec., Plaintiff, represented by Benjamin D. Braly --
bbraly@dobllp.com -- Dean Omar Branham LLP, Sabrina G. Stone --
sstone@dobllp.com -- Dean Omar Branham LLP, Kevin W. Paul --
kpaul@dobllp.com -- Dean Omar Branham, LLP & Janet Ward Black --
info@wardblacklaw.com -- Ward Black Law.
Arvinmeritor, successor in interest to Rockwell International
Automotive Products & Maremont Corporation, Defendants, represented
by Carter T. Lambeth , Carter T. Lambeth Attorney, P.C. & William
P. Early , Pierce Herns Sloan and Wilson LLC.
Borg-Warner Morse Tec, Inc., successor in interest to Borg-Warner
Corporation, Defendant, represented by David L. Levy --
dlevy@hedrickgardner.com -- Hedrick, Gardner, Kincheloe & Garofalo,
LLP, Kelvin T. Wyles -- kelvin.wyles@dentons.com -- Dentons US LLP,
Lisa L. Oberg -- Lisa.Oberg@dentons.com -- Dentons US LLP & Jon S.
Player , Hedrick, Gardner, Kincheloe & Garofalo, LLP.
Caterpillar, Inc., Defendant, represented by William Michael Starr
-- bill.starr@nelsonmullins.com -- Nelson Mullins Riley &
Scarborough, LLP.
Deere & Company, Inc., doing business as John Deere, Defendant,
represented by Tracy E. Tomlin -- tracy.tomlin@nelsonmullins.com --
Nelson Mullins Riley & Scarborough, LLP, Travis Andrew Bustamante
-- travis.bustamante@nelsonmullins.com -- Nelson Mullins Riley &
Scarborough, LLP & William Michael Starr --
bill.starr@nelsonmullins.com -- Nelson Mullins Riley & Scarborough,
LLP.
Ford Motor Company, Defendant, represented by Christopher R. Kiger
-- ckiger@smithlaw.com -- Smith Anderson Blount Dorsett Mitchell &
Jernigan, LLP, Kirk G. Warner -- kwarner@smithlaw.com -- Smith
Anderson Blount Dorsett Mitchell & Jernigan, LLP & Addie K.S. Ries
-- aries@smithlaw.com -- Smith Anderson Blount Dorsett Mitchell &
Jernigan, LLP.
Honeywell International, Inc., individually and as successor in
interest to the Bendix Corporation, Defendant, represented by H.
Lee Davis, Jr. -- ldavis@davisandhamrick.com -- Davis & Hamrick,
LLP.
Navistar, Inc., successor in interest to International Harvester
Company, Defendant, represented by Robert O. Meriwether , Nelson
Mullins Riley & Scarborough, Tracy E. Tomlin --
tracy.tomlin@nelsonmullins.com -- Nelson Mullins Riley &
Scarborough, LLP, Travis Andrew Bustamante --
travis.bustamante@nelsonmullins.com -- Nelson Mullins Riley &
Scarborough, LLP & William Michael Starr --
bill.starr@nelsonmullins.com -- Nelson Mullins Riley & Scarborough,
LLP.
Parker-Hannifin Corporation & Standard Motor Products, Inc.,
Defendants, represented by Robert David Proffitt , Proffitt & Cox,
LLP, Ronald Brian Cox , Proffitt & Cox, LLP & David A. Shaw --
dshaw@williamskastner.com -- Williams Kastner & Gibbs.
Pneumo Abex LLC, successor in interest to Abex Corporation,
Defendant, represented by Timothy W. Bouch , Leath Bouch &
Seekings.
SPX Corporation, Individually and as successor in interest to Bear
Automotive Service Equipment Company, Defendant, represented by
Gary L. Beaver -- gbeaver@nexsenpruet.com -- Nexsen Pruet, PLLC.
McCord Corporation, Defendant, represented by Allyson R. Twilley --
atwilley@gwblawfirm.com -- Gallivan, White & Boyd, P.A., Daniel B.
White -- dwhite@gwblawfirm.com -- Gallivan, White & Boyd, P.A.,
James M. Dedman, IV -- jdedman@gwblawfirm.com -- Gallivan, White &
Boyd, P.A. & Ronald G. Tate -- rtate@gwblawfirm.com -- Gallivan,
White & Boyd, P.A..
ASBESTOS UPDATE: J.H. Cox's Claims vs. Nissan Dismissed
-------------------------------------------------------
The Hon. James C. Dever, III of the U.S. District Court for the
Eastern District of North Carolina, upon consideration of the
Parties' Motion to Dismiss Nissan North America, Inc., has
dismissed Plaintiff's claims against Defendant Nissan from the case
styled Jack Howard Cox, Sr., Executor of the Estate of Percy Ray
Cox, Plaintiffs, v. Agco Corporation, et al. Defendants, Civil
Action No. 4:16-cv-00084-D, (E.D.N.C.), with prejudice.
A copy of the Order dated August 23, 2018, is available at
https://tinyurl.com/yafr9shy from Leagle.com.
Jack Howard Cox, Sr., Executor of the Estate of Percy Ray Cox,
Dec., Plaintiff, represented by Benjamin D. Braly --
bbraly@dobllp.com -- Dean Omar Branham LLP, Sabrina G. Stone --
sstone@dobllp.com -- Dean Omar Branham LLP, Kevin W. Paul --
kpaul@dobllp.com -- Dean Omar Branham, LLP & Janet Ward Black --
info@wardblacklaw.com -- Ward Black Law.
Arvinmeritor, successor in interest to Rockwell International
Automotive Products & Maremont Corporation, Defendants, represented
by Carter T. Lambeth , Carter T. Lambeth Attorney, P.C. & William
P. Early , Pierce Herns Sloan and Wilson LLC.
Borg-Warner Morse Tec, Inc., successor in interest to Borg-Warner
Corporation, Defendant, represented by David L. Levy --
dlevy@hedrickgardner.com -- Hedrick, Gardner, Kincheloe & Garofalo,
LLP, Kelvin T. Wyles -- kelvin.wyles@dentons.com -- Dentons US LLP,
Lisa L. Oberg -- Lisa.Oberg@dentons.com -- Dentons US LLP & Jon S.
Player , Hedrick, Gardner, Kincheloe & Garofalo, LLP.
Caterpillar, Inc., Defendant, represented by William Michael Starr
-- bill.starr@nelsonmullins.com -- Nelson Mullins Riley &
Scarborough, LLP.
Deere & Company, Inc., doing business as John Deere, Defendant,
represented by Tracy E. Tomlin -- tracy.tomlin@nelsonmullins.com --
Nelson Mullins Riley & Scarborough, LLP, Travis Andrew Bustamante
-- travis.bustamante@nelsonmullins.com -- Nelson Mullins Riley &
Scarborough, LLP & William Michael Starr --
bill.starr@nelsonmullins.com -- Nelson Mullins Riley & Scarborough,
LLP.
Ford Motor Company, Defendant, represented by Christopher R. Kiger
-- ckiger@smithlaw.com -- Smith Anderson Blount Dorsett Mitchell &
Jernigan, LLP, Kirk G. Warner -- kwarner@smithlaw.com -- Smith
Anderson Blount Dorsett Mitchell & Jernigan, LLP & Addie K.S. Ries
-- aries@smithlaw.com -- Smith Anderson Blount Dorsett Mitchell &
Jernigan, LLP.
Honeywell International, Inc., individually and as successor in
interest to the Bendix Corporation, Defendant, represented by H.
Lee Davis, Jr. -- ldavis@davisandhamrick.com -- Davis & Hamrick,
LLP.
Navistar, Inc., successor in interest to International Harvester
Company, Defendant, represented by Robert O. Meriwether , Nelson
Mullins Riley & Scarborough, Tracy E. Tomlin --
tracy.tomlin@nelsonmullins.com -- Nelson Mullins Riley &
Scarborough, LLP, Travis Andrew Bustamante --
travis.bustamante@nelsonmullins.com -- Nelson Mullins Riley &
Scarborough, LLP & William Michael Starr --
bill.starr@nelsonmullins.com -- Nelson Mullins Riley & Scarborough,
LLP.
Parker-Hannifin Corporation & Standard Motor Products, Inc.,
Defendants, represented by Robert David Proffitt , Proffitt & Cox,
LLP, Ronald Brian Cox , Proffitt & Cox, LLP & David A. Shaw --
dshaw@williamskastner.com -- Williams Kastner & Gibbs.
Pneumo Abex LLC, successor in interest to Abex Corporation,
Defendant, represented by Timothy W. Bouch , Leath Bouch &
Seekings.
SPX Corporation, Individually and as successor in interest to Bear
Automotive Service Equipment Company, Defendant, represented by
Gary L. Beaver -- gbeaver@nexsenpruet.com -- Nexsen Pruet, PLLC.
McCord Corporation, Defendant, represented by Allyson R. Twilley --
atwilley@gwblawfirm.com -- Gallivan, White & Boyd, P.A., Daniel B.
White -- dwhite@gwblawfirm.com -- Gallivan, White & Boyd, P.A.,
James M. Dedman, IV -- jdedman@gwblawfirm.com -- Gallivan, White &
Boyd, P.A. & Ronald G. Tate -- rtate@gwblawfirm.com -- Gallivan,
White & Boyd, P.A.
ASBESTOS UPDATE: J.H. Cox's Claims vs. Toyota Motor Dismissed
-------------------------------------------------------------
The Hon. James C. Dever, III of the U.S. District Court for the
Eastern District of North Carolina, upon consideration of the
Parties' Motion to Dismiss Toyota Motor Sales, U.S.A., Inc., has
dismissed Plaintiff's claims against Defendant Toyota Motor from
the case styled Jack Howard Cox, Sr., Executor of the Estate of
Percy Ray Cox, Plaintiffs, v. Agco Corporation, et al. Defendants,
Civil Action No. 4:16-cv-00084-D, (E.D.N.C.), with prejudice.
A copy of the Order dated August 23, 2018, is available at
https://tinyurl.com/yc6e8d8e from Leagle.com.
Jack Howard Cox, Sr., Executor of the Estate of Percy Ray Cox,
Dec., Plaintiff, represented by Benjamin D. Braly --
bbraly@dobllp.com -- Dean Omar Branham LLP, Sabrina G. Stone --
sstone@dobllp.com -- Dean Omar Branham LLP, Kevin W. Paul --
kpaul@dobllp.com -- Dean Omar Branham, LLP & Janet Ward Black --
info@wardblacklaw.com -- Ward Black Law.
Arvinmeritor, successor in interest to Rockwell International
Automotive Products & Maremont Corporation, Defendants, represented
by Carter T. Lambeth , Carter T. Lambeth Attorney, P.C. & William
P. Early , Pierce Herns Sloan and Wilson LLC.
Borg-Warner Morse Tec, Inc., successor in interest to Borg-Warner
Corporation, Defendant, represented by David L. Levy --
dlevy@hedrickgardner.com -- Hedrick, Gardner, Kincheloe & Garofalo,
LLP, Kelvin T. Wyles -- kelvin.wyles@dentons.com -- Dentons US LLP,
Lisa L. Oberg -- Lisa.Oberg@dentons.com -- Dentons US LLP & Jon S.
Player , Hedrick, Gardner, Kincheloe & Garofalo, LLP.
Caterpillar, Inc., Defendant, represented by William Michael Starr
-- bill.starr@nelsonmullins.com -- Nelson Mullins Riley &
Scarborough, LLP.
Deere & Company, Inc., doing business as John Deere, Defendant,
represented by Tracy E. Tomlin -- tracy.tomlin@nelsonmullins.com --
Nelson Mullins Riley & Scarborough, LLP, Travis Andrew Bustamante
-- travis.bustamante@nelsonmullins.com -- Nelson Mullins Riley &
Scarborough, LLP & William Michael Starr --
bill.starr@nelsonmullins.com -- Nelson Mullins Riley & Scarborough,
LLP.
Ford Motor Company, Defendant, represented by Christopher R. Kiger
-- ckiger@smithlaw.com -- Smith Anderson Blount Dorsett Mitchell &
Jernigan, LLP, Kirk G. Warner -- kwarner@smithlaw.com -- Smith
Anderson Blount Dorsett Mitchell & Jernigan, LLP & Addie K.S. Ries
-- aries@smithlaw.com -- Smith Anderson Blount Dorsett Mitchell &
Jernigan, LLP.
Honeywell International, Inc., individually and as successor in
interest to the Bendix Corporation, Defendant, represented by H.
Lee Davis, Jr. -- ldavis@davisandhamrick.com -- Davis & Hamrick,
LLP.
Navistar, Inc., successor in interest to International Harvester
Company, Defendant, represented by Robert O. Meriwether , Nelson
Mullins Riley & Scarborough, Tracy E. Tomlin --
tracy.tomlin@nelsonmullins.com -- Nelson Mullins Riley &
Scarborough, LLP, Travis Andrew Bustamante --
travis.bustamante@nelsonmullins.com -- Nelson Mullins Riley &
Scarborough, LLP & William Michael Starr --
bill.starr@nelsonmullins.com -- Nelson Mullins Riley & Scarborough,
LLP.
Parker-Hannifin Corporation & Standard Motor Products, Inc.,
Defendants, represented by Robert David Proffitt , Proffitt & Cox,
LLP, Ronald Brian Cox , Proffitt & Cox, LLP & David A. Shaw --
dshaw@williamskastner.com -- Williams Kastner & Gibbs.
Pneumo Abex LLC, successor in interest to Abex Corporation,
Defendant, represented by Timothy W. Bouch , Leath Bouch &
Seekings.
SPX Corporation, Individually and as successor in interest to Bear
Automotive Service Equipment Company, Defendant, represented by
Gary L. Beaver -- gbeaver@nexsenpruet.com -- Nexsen Pruet, PLLC.
McCord Corporation, Defendant, represented by Allyson R. Twilley --
atwilley@gwblawfirm.com -- Gallivan, White & Boyd, P.A., Daniel B.
White -- dwhite@gwblawfirm.com -- Gallivan, White & Boyd, P.A.,
James M. Dedman, IV -- jdedman@gwblawfirm.com -- Gallivan, White &
Boyd, P.A. & Ronald G. Tate -- rtate@gwblawfirm.com -- Gallivan,
White & Boyd, P.A..
ASBESTOS UPDATE: Jenkins May Appeal Until December 2018 Term
------------------------------------------------------------
The Appellate Division of the Supreme Court of New York has granted
Defendant-Appellant Jenkins Bros.'s motion to the extent of
enlarging the time to perfect the appeal to the December 2018 Term,
with leave to seek further enlargements, if necessary.
Defendant-appellant has moved for an enlargement of time to perfect
the appeal taken from an order of the Supreme Court, New York
County, entered on or about August 15, 2017.
The appealed case is In Re: New York City Asbestos Litigation. Ann
Marie Idell, As Executrix of the Estate of Thomas McGlynn,
Deceased, Plaintiff-Respondent, v. Aerco International, Inc., et
al., Defendants, Jenkins Bros., Defendant-Appellant, Motion No.
M-3107, Index No. 190219/16, (N.Y. App. Div.).
A copy of the Order dated August 23, 2018, is available at
https://tinyurl.com/y9fc6wkd from Leagle.com.
ASBESTOS UPDATE: Kraus Couple's Suit Remains in Dist. Court
-----------------------------------------------------------
The Hon. Timothy J. Savage the United States District Court for the
Eastern District of Pennsylvania denies the motion to remand
because the removing defendants have asserted a colorable federal
defense.
After being diagnosed with mesothelioma in December 2017,
Plaintiffs Robert and Margaret Kraus filed suit in the Court of
Common Pleas of Philadelphia County, asserting claims for design
defect and failure to warn. He alleges that the defendants
negligently processed, manufactured, packaged, distributed,
delivered and sold products containing asbestos without warnings.
In support of his design defect claim, Kraus contends that the
defendants were negligent in manufacturing, selling, or supplying
asbestos-containing products, which were defective because they
contained asbestos. He also contends that the defendants' design of
the products and failure to warn him of the health hazards
associated with asbestos exposure were the actual and proximate
causes of his mesothelioma.
According to his complaint, Robert Kraus (Kraus) was exposed to
asbestos during his service in the Navy aboard the U.S.S. Cambria
and later when working at General Electric. From July 1964 through
May 1967, Kraus was a seaman on the Cambria as the electronics
officer and subsequently the communications officer working in
close proximity to asbestos-containing electronic equipment.
Kraus also contends that he suffered from asbestos exposure while
employed by General Electric after his Navy service. While working
for General Electric from 1969 to 1981, Kraus worked near
asbestos-containing electronic equipment, and he was exposed to
asbestos in the office building located at 32nd and Chestnut
Streets in Philadelphia.
The defendants timely removed the case. Kraus responded by moving
for remand, arguing that the defendants have not stated a colorable
federal defense to the failure-to-warn claim. Opposing remand, the
defendants contend they state a colorable federal defense,
supported by several affidavits.
The removing defendant contractors manufactured and installed
equipment and materials on the Cambria that contained asbestos,
including ship service turbine generators, turbines, radar
equipment, and radio equipment. The defendants manufactured and
designed equipment and materials for the Navy in conformity with
the Navy's strict and detailed guidelines, known as military
specifications (MilSpecs).
In moving to remand, Kraus addresses only his failure-to-warn
claim, not his design defect claim. In the context of a
failure-to-warn claim, the defense applies where (1) the government
approved reasonably precise specifications covering warnings; (2)
the warnings conformed to those specifications; and (3) the
defendant warned the government about any asbestos hazards that
were known to it but not to the government.
On the other hand, the removing defendants have shown that the Navy
approved specifications for equipment containing asbestos aboard
the Cambria, including the presence and the content of warnings,
and they provided the warnings required by the Navy. There was no
need to advise the Navy about any asbestos hazards because the Navy
was already aware of them. The defense does not require the
contractor to warn the government of hazards where "the government
knew as much or more than the defendant contractor about the
hazards of the . . . product."
To demonstrate that the Navy exercised control over the
manufactured products, including warnings, the defendants have
submitted affidavits and the pertinent MilSpecs. The MilSpecs
mandated that asbestos be used to manufacture certain equipment,
including, for example, auxiliary turbines incorporated into the
defendant contractors' equipment. The insulation and gaskets used
on the turbines, though not necessarily supplied or installed by
the defendants, were made of asbestos, as required by the
MilSpecs.
In his affidavit, retired Rear Admiral Roger B. Horne, Jr. who
served in the Navy as a commander explains the Navy's expansive
control over the shipbuilding process. According to Horne, any
equipment-related writings were dictated by the MilSpecs and any
warning was subject to the Navy's authorization and approval. When
equipment suppliers affixed a warning, the Navy limited the warning
to use of the equipment that might cause harm. It was "the Navy's
intent to include only warnings concerning how someone might be
immediately physically injured by their actions or cause serious
damage to equipment." According to Horne, the Navy chose to address
the hazards of asbestos exposure through personnel training instead
of relying on warnings.
Dr. Samuel Forman was retained by the Navy to study its knowledge
of asbestos hazards and its response. He learned that the Navy knew
of such hazards in 1922, and later set up protective measures to
prevent asbestos-related injury in 1941. Through the 1960s, while
Kraus served on the Cambria, the Navy never "instructed or
permitted a supplier of engineering equipment . . . to affix or
provide any asbestos-related warning with its equipment." The Navy
opted to address health hazards in the workplace, such as asbestos
exposure, through on-the-job training instead of written warnings
affixed to products or structures in the workplace. Manufacturers
and suppliers were not permitted to affix warnings without the
Navy's approval.
Thomas F. McCaffery, a Navy Commander who has extensively
researched military policies, practices, and procedures related to
the design and procurement of products and equipment installed on
Naval vessels, explained that any radar or radio equipment
"supplied to the Navy by its manufacturer [that] incorporated an
asbestos-containing component . . . was either mandated by the Navy
through the applicable government specifications or approved by the
Navy after careful consideration of the design and application of
that component." He also confirmed that the Navy controlled all
warnings affixed to equipment aboard its vessels. "
Retired Rear Admiral David P. Sargent, Jr., who had been assigned
to positions primarily focused on the operation and maintenance of
Navy warships from 1967 until 1988, states that government
contractors could not deviate from the Navy's specifications
without express written approval. Consequently, a contractor could
not affix written warnings on the equipment installed aboard the
Cambria regarding the risk of asbestos exposure because the Navy
did not expressly mandate such warnings. Sargent reiterated what
McCaffery and Forman stated -- that the Navy was aware of the risk
imposed by asbestos exposure as early as the 1940s.
Accordingly, the Court concludes that the defendants have presented
sufficient facts making out a government contractor defense. First,
they have shown that the government exercised complete control over
the specifications for the manufacture of the equipment and the
content of any written warnings or labels on the equipment
installed aboard the Cambria. The Navy retained "the final say"
over design attributes of naval ships and all equipment. Any
equipment-related warnings were subject to the MilSpecs and to the
Navy's authorization and approval. Second, any warnings conformed
to those specifications. "Manufacturers were not permitted (either
under the specifications or as a matter of Navy practice) to
include any type of warning or cautionary statement that was not
required or approved by the Navy." As to the third element,
defendants had no duty to advise the Navy of what the Navy knew
about the hazards of asbestos exposure. In short, the defendants
did not have superior knowledge it withheld from the Navy.
The case is Robert J. Kraus and Margaret M. Kraus, h/w, v.
Alcatel-Lucent, Allen-Bradley Company, Ametek, Inc., BBC Brown
Boveri, k/n/a ABB, Inc., Belden Wire & Cable Company, LLC, CBS
Corporation, formerly known as Westinghouse Electric Corporation,
Clark Controller Co., Espey Manufacturing & Electronics Corp., Ford
Motor Co., General Dynamics, General Electric Company, Gould
Electronics, Inc., GTE Products of Connecticut Corporation,
Honeywell International, Honeywell, Inc., IMO Industries, Inc.,
formerly known as DeLaval Steam Turbine Company, ITT Industries,
L-3 Communications, Lockheed Martin Corporation Service Company,
Metropolitan Life Insurance Co., Minnesota Mining and
Manufacturing, Motorola Solutions, Navcom Defense Electronics,
Northrop Grumman Norden Systems, Northrop Grumman Corporation,
Philips North America, LLC, Raytheon, Rockbestos Co., Rockwell
Collins, Inc., Rogers Corporation, Space Systems/Loral, Square D
Company, UNISYS and United Technologies, Civil Action No. 18-2119,
(E.D. Pa.)
A copy of the Memorandum Opinion dated July 25, 2018, is available
at https://tinyurl.com/y7ln4lm9 from Leagle.com.
Robert J. Kraus & Margaret M. Kraus, H/W, Plaintiffs, represented
by Robert E. Paul , Paul Reich & Myers, PC.
Allen-Bradley Company, Defendant, represented by G. Daniel Bruch,
Jr. -- gdbruch@swartzcampbell.com -- Swartz Campbell, LLC.
Ametek, Inc., Defendant, represented by Albert L. Piccerilli --
apiccerilli@mmwr.com -- Montgomery McCracken Walker & Rhoads, LLP &
Glenn F. Rosenblum -- grosenblum@mmwr.com -- Montgomery, Mc
Cracken, Walker & Rhoads, LLP.
Belden Wire & Cable Company, LLC, Defendant, represented by Dawn
Dezii -- ddezii@margolisedelstein.com -- Margolis & Edelstein &
Jeanine D. Clark -- jclark@margolisedelstein.com -- Margolis
Edelstein.
CBS Corporation, formerly known as & General Electric Company,
Defendants, represented by John P. Mcshea , McShea Law Firm PC.
Espey Manufacturing & Electronics Corp., Defendant, represented by
Kara D. Hill -- khill@rmh-law.com -- Reilly McDevitt & Henrich Pc &
Susan M. Valinis -- svalinis@rmh-law.com -- Reilly Janiczek &
Mcdevitt P.C.
Ford Motor Co., Defendant, represented by Daniel J. Sinclair --
dsinclair@eckertseamans.com -- Eckert Seamans Cherin & Mellott LLC
& Eric L. Horne -- ehorne@eckertseamans.com -- Eckert Seamans
Cherin & Mellott.
General Dynamics & Motorola Solutions, Defendants, Represented By
Megan Kathleen Bailey -- Mbailey@Grsm.Com -- Gordon Rees Scully
Mansukhani, LLP.
Gould Electronics, Inc., Defendant, represented by Christopher H.
Jones -- cjones@mdmc-law.com -- Mcelroy Deutsch Mulvaney &
Carpenter.
GTE Products of Connecticut Corporation, Defendant, represented by
Edward T. Finch -- Efinch@Lavin-Law.Com -- Lavin, O'Neil, Ricci,
Cedrone & Disipio.
Honeywell International, Defendant, represented by Peter J. Neeson
-- pneeson@rawle.com -- Rawle & Henderson LLP.
Honeywell, Inc., Defendant, represented by Kevin Errol Hexstall --
kehexstall@mdwcg.com -- Marshall Dennehey Warner Coleman & Goggin,
PC.
IMO Industries, Inc., formerly known as De Laval Steam Turbine
Company, Defendant, represented by Joseph I. Fontak --
jfontak@leaderberkon.com -- Leader & Berkon LLP.
ITT Industries, Defendant, represented by Steven A. Luxton --
steven.luxton@morganlewis.com -- Morgan Lewis & Bockius LLP.
L-3 Communications, Defendant, represented by Frederick A. Tecce --
fred.tecce@icemiller.com -- Ice Miller LLP.
Lockheed Martin Corporation Service Company & Space Systems/Loral,
Defendants, represented by Michael David Smith --
smith@glazieryee.com - Glazier Yee LLP.
Minnesota Mining And Manufacturing & Raytheon, Defendants,
represented by Basil A. Disipio -- BDiSipio@lavin-law.com -- Lavin
O'Neil Cedrone & Disipio.
Northrop Grumman Corporation, Defendant, represented by Adam A.
Desipio -- adam.desipio@dlapiper.com -- DLA Piper LLP & Nancy Shane
Rappaport , DLA Piper Rudnick Gray Cary US, LLP.
Philips North America LLC, Defendant, represented by Jonathan D.
Wall -- jonathan.wall@morganlewis.com -- Morgan Lewis & Bockius
LLP.
Rockbestos Co., Defendant, represented by Christian A. Weimann --
caweimann@mdwcg.com -- Marshall Dennehey Warner Coleman & Goggin &
Tiffany Giangiulio -- tjgiangiulio@mdwcg.com -- Marshall Dennehey
Warner Coleman & Goggin.
Square D Company, Defendant, represented by Christina M. Rideout --
crideout@kjmsh.com -- Kelley Jasons McGowen Spinelli & Hanna & W.
Matthew Reber -- mreber@kjmsh.com -- Kelley Jason McGuire &
Spinelli & Hanna.
UNISYS, Defendant, represented by Josette Ferrazza Spivak ,
Hollstein Keating Cattell Johnson & Goldstein & Patricia M. Henrich
-- phenrich@rmh-law.com -- Reilly Janiczek And Mcdevitt P.C.
United Technologies, Defendant, represented by William J. Smith --
wsmith@dmclaw.com -- Dickie, McCamey & Chilcote.
Minnesota Mining And Manufacturing, Cross Claimant, represented by
Basil A. Disipio -- BDiSipio@lavin-law.com -- Lavin O'Neil Cedrone
& Disipio.
Minnesota Mining And Manufacturing & Raytheon, Cross Defendants,
represented by Basil A. Disipio -- BDiSipio@lavin-law.com -- Lavin
O'Neil Cedrone & Disipio.
Belden Wire & Cable Company, LLC, Cross Defendant, represented by
Jeanine D. Clark -- jclark@margolisedelstein.com -- Margolis
Edelstein & Dawn Dezii -- ddezii@margolisedelstein.com -- Margolis
& Edelstein.
CBS Corporation & General Electric Company, Cross Defendants,
represented by John P. McShea , McShea Law Firm PC.
Espey Manufacturing & Electronics Corp., Cross Defendant,
represented by Kara D. Hill -- khill@rmh-law.com -- Reilly McDevitt
& Henrich PC & Susan M. Valinis -- svalinis@rmh-law.com -- Reilly
Janiczek & McDevitt P.C.
Ford Motor Co., Cross Defendant, represented by Daniel J. Sinclair
-- dsinclair@eckertseamans.com -- Eckert Seamans Cherin & Mellott
LLC & Eric L. Horne -- ehorne@eckertseamans.com -- Eckert Seamans
Cherin & Mellott.
General Dynamics & Motorola Solutions, Cross Defendants,
represented by Megan Kathleen Bailey -- mbailey@grsm.com -- Gordon
Rees Scully Mansukhani, LLP.
ITT Industries, Cross Defendant, represented by Steven A. Luxton ,
Morgan Lewis & Bockius LLP.
L-3 Communications, Cross Defendant, represented by Frederick A.
Tecce -- fred.tecce@icemiller.com -- Ice Miller LLP.
Northrop Grumman Corporation, Cross Defendant, represented by Adam
A. Desipio -- adam.desipio@dlapiper.com -- DLA Piper LLP & Nancy
Shane Rappaport , DLA Piper Rudnick Gray Cary US, LLP.
Square D Company, Cross Defendant, represented by Christina M.
Rideout -- crideout@kjmsh.com -- Kelley Jasons McGowen Spinelli &
Hanna & W. Matthew Reber -- mreber@kjmsh.com -- Kelley Jason
McGuire & Spinelli & Hanna.
General Dynamics, Cross Claimant, represented by Megan Kathleen
Bailey -- mbailey@grsm.com -- Gordon Rees Scully Mansukhani, LLP.
Gould Electronics, Inc., Cross Defendant, represented by
Christopher H. Jones -- cjones@mdmc-law.com -- McElroy Deutsch
Mulvaney & Carpenter.
Honeywell International, Cross Defendant, represented by Peter J.
Neeson -- pneeson@rawle.com -- Rawle & Henderson LLP.
IMO Industries, Inc., Cross Defendant, represented by Joseph I.
Fontak -- jfontak@leaderberkon.com -- Leader & Berkon LLP.
Space Systems/LORAL & Lockheed Martin Corporation Service Company,
Cross Defendants, represented by Michael David Smith --
smith@glazieryee.com -- Glazier Yee LLP.
UNISYS, Cross Defendant, represented by Patricia M. Henrich --
phenrich@rmh-law.com -- Reilly Janiczek And Mcdevitt P.C. & Josette
Ferrazza Spivak , Hollstein Keating Cattell Johnson & Goldstein.
United Technologies, Cross Defendant, represented by William J.
Smith -- wsmith@dmclaw.com -- Dickie, McCamey & Chilcote.
GTE Products of Connecticut Corporation, Cross Claimant,
represented by Edward T. Finch -- efinch@lavin-law.com -- Lavin,
O'neil, Ricci, Cedrone & Disipio.
GTE Products Of Connecticut Corporation, Cross Defendant,
represented by Edward T. Finch -- efinch@lavin-law.com -- Lavin,
O'neil, Ricci, Cedrone & Disipio.
Lockheed Martin Corporation Service Company, Cross Claimant,
represented by Michael David Smith -- smith@glazieryee.com --
Glazier Yee LLP.
Philips North America LLC, Cross Defendant, represented by Jonathan
D. Wall -- jonathan.wall@morganlewis.com -- Morgan Lewis & Bockius
LLP.
Square D Company, Cross Claimant, represented by Christina M.
Rideout -- crideout@kjmsh.com -- Kelley Jasons McGowen Spinelli &
Hanna & W. Matthew Reber -- mreber@kjmsh.com -- Kelley Jason
McGuire & Spinelli & Hanna.
Ametek, Inc., Cross Defendant, represented by Albert L. Piccerilli
-- apiccerilli@mmwr.com -- Montgomery McCracken Walker & Rhoads,
LLP & Glenn F. Rosenblum -- grosenblum@mmwr.com -- Montgomery, Mc
Cracken, Walker & Rhoads, LLP.
Rockbestos Co., Cross Defendant, represented by Tiffany Giangiulio
-- tjgiangiulio@mdwcg.com -- Marshall Dennehey Warner Coleman &
Goggin.
Ametek, Inc., Cross Claimant, represented by Albert L. Piccerilli
-- apiccerilli@mmwr.com -- Montgomery McCracken Walker & Rhoads,
LLP & Glenn F. Rosenblum -- grosenblum@mmwr.com -- Montgomery, Mc
Cracken, Walker & Rhoads, LLP.
Allen-Bradley Company, Cross Claimant, represented by G. Daniel
Bruch, Jr. -- gdbruch@swartzcampbell.com -- Swartz Campbell, LLC.
Margaret M. Kraus, H/W & Robert J. Kraus, Cross Defendants,
represented by Robert E. Paul , Paul Reich & Myers, PC.
ASBESTOS UPDATE: Lindsey's Suit Dismissed for Forum Non Conveniens
------------------------------------------------------------------
The Hon. Manuel J. Mendez of the Supreme Court of New York County,
at the behest of Colgate-Palmolive Company, has dismissed the case
styled In Re: New York City Asbestos Litigation. Gerald Lindsey,
Individually and as Administrator of the Estate of Venus L.
Lindsey, Plaintiff(s), v. Colgate-Palmolive Company, Defendant,
Docket No. 190145/2016, Motion Seq. No. 001, (N.Y.), without
prejudice, on the grounds of forum non conveniens.
The dismissal is conditioned that Colgate stipulates: (1) to accept
service of process in a new action to be commenced by Plaintiff, at
his choice, in either the State of Indiana, the State of Ohio, or
the State of Illinois; and (2) waive any defenses, including that
of statute of limitations and jurisdictional defenses, which were
not available in New York at the time of the commencement of this
action, all provided that the new action is commenced within ninety
days after service of the stipulation upon the Plaintiff. However,
if Colgate fails to so stipulate, then the motion is denied.
Colgate moves to dismiss Plaintiff's Complaint against it pursuant
to CPLR Section 327(a) on the grounds of forum non conveniens.
Colgate contends that even though it has its corporate headquarters
in the City and State of New York, this case should be dismissed on
the grounds of forum non conveniens because this case has no nexus
with the state of New York.
Plaintiff alleges Venus L. Lindsey was exposed to asbestos through
the daily use of Colgate's Cashmere Bouquet talcum powder from 1965
through 1983. It is alleged that (a) Mrs. Lindsey was exposed to
asbestos in the States of Indiana, Illinois, Ohio, and the Grand
Bahama Island, where she resided at various points in her life; (b)
her injury manifested in the State of Indiana where she was
diagnosed; (c) her medical treatment took place in the State of
Indiana, which is the place where her medical witnesses and other
witnesses are located. Mrs. Lindsey has never resided in the State
of New York and has never been exposed to Colgate's product in the
State of New York.
Defendant Colgate is a Delaware corporation with its principal
place of business in the City and State of New York. Colgate's
Cashmere Bouquet plants were located in Jersey City, New Jersey.
Colgate alleges that the only connection to the state of New York
is that it has its corporate headquarters here, which merely having
its corporate headquarters in New York is an insufficient nexus,
and therefore the action should be dismissed on the grounds of
forum non conveniens.
Plaintiff opposes the motion on multiple grounds. The Plaintiff
alleges that the action should stay in New York because their
choice of forum is entitled to substantial deference, New York is
the place where Defendant has its corporate headquarters, where
jurisdiction can be obtained against the Defendant and where it is
possible Defendant's witnesses are located. Defendant's asbestos
talc litigation is centered in New York because one of its Cashmere
Bouquet plants is located near New York -- just across the Hudson
River in Jersey City, New Jersey -- and its Research and
Development Center is also located near New York in Piscataway, New
Jersey. Defendant was a member of the Cosmetic Toiletry & Fragrance
Association during the 1970s and regularly attended meetings in New
York City. Defendant further placed advertisements in the New York
Times in New York city to counter negative publicity from a study
performed in the 1970s at Mt. Sinai Hospital in New York that found
Cashmere Bouquet Talc was contaminated with 20 percent asbestos.
Finally, Plaintiff contends that Colgate has taken advantage of
this forum in this litigation for nearly sixteen months before
moving to dismiss on the grounds of forum non conveniens.
The Court clarifies that there is a heavy burden on the movant
challenging the forum to show that there are relevant factors in
favor of dismissing the action based on forum non conveniens. The
Court says that it is not enough that some factors weigh in the
defendants' favor. The motion should be denied if the balance is
not strong enough to disturb the choice of forum made by the
plaintiffs.
The Court is of the opinion that in balancing the interests and
convenience of the parties and the court's, this action could
better be adjudicated in either the court of the State of Indiana,
the State of Ohio, or the State of Illinois. The only nexus this
action has with the State of New York is that the corporate
defendant has its principal place of business in New York. Mrs.
Lindsey resided in the State of Indiana, Ohio, and Illinois for a
majority of her life and was exposed to Colgate's product while
residing in these states. The medical treatment and her medical
doctors are in the State of Indiana. Under these facts the action
should be dismissed without prejudice on the grounds of forum non
conveniens.
Finally, the Court settles that an eight month delay from Plaintiff
Gerald Lindsey's deposition -- where Colgate obtained information
to conclude that the only nexus to the State of New York is that it
is the place where Colgate has its principal place of business --
to the making of this motion to dismiss on grounds of forum non
conveniens is not such a substantial delay so as to constitute a
waiver and deny the motion. These are complex cases where
information is not obtained, sufficient for the making of a motion
to dismiss for lack of jurisdiction or for forum non conveniens,
until substantial discovery is complete. In this particular action,
it took the service and answer of interrogatories, and Plaintiff's
deposition over four months, before sufficient information was
obtained for the making of this motion. Given the complexity of the
subject matter and difficulty in obtaining information, an eight
month delay in moving to dismiss on the grounds of forum non
conveniens is not such a substantial delay as to consider dismissal
on this ground waived.
A copy of the Order dated July 25, 2018, is available at
https://tinyurl.com/y9cg8whd from Leagle.com.
ASBESTOS UPDATE: Military-Veterans' Amicus Brief Accepted on Appeal
-------------------------------------------------------------------
The Court of Appeals of New York has granted Military-Veterans
Advocacy, Inc.'s Motion for leave to file a brief amicus curiae in
the appealed case In The Matter Of New York City Asbestos
Litigation. Mary Juni, etc., Appellant, v. A.O. Smith Water
Products Co., et al., Defendants, Ford Motor Company, Respondent,
Motion No. 2018-638, (N.Y. App. Div.), and has accepted the
proposed brief as filed.
A copy of the Decision dated August 30, 2018, is available at
https://tinyurl.com/y9fpeont from Leagle.com.
ASBESTOS UPDATE: National's Share in Resco Case Affirmed on Appeal
------------------------------------------------------------------
The Court of Appeals of Ohio affirms the trial court's judgment
that determined National Union Fire Insurance Company of
Pittsburgh's equitable share of the costs of defending and
indemnifying its insured, Rust Engineering Company, against
thousands of asbestos-related bodily injury claims.
Rust was a large construction and engineering firm that designed
and built industrial facilities for a variety of clients including
steel, tire, and chemical manufacturers, paper producers, and power
plants. Asbestos-containing products were used in the construction,
repair, and rebuilding of these industrial facilities over the
course of several decades.
Rust obtained primary insurance from several insurance companies,
including Hartford Accident and Indemnity Company, Employers
Insurance Company of Wausau, Travelers Casualty and Surety Company,
Continental Insurance Company, National Union, and a few other
carriers that are now insolvent. Under the policies, the insurers
promised to pay all sums Rust is legally obligated to pay as
damages because of bodily injury caused by an occurrence during the
policy period.
Over 71,000 claims for asbestos-related bodily injuries were filed
against Rust since 1995. The claimants alleged they were exposed to
asbestos at various work sites while Rust was conducting
operations. Consequently, Rust filed a complaint for declaratory
judgment against Hartford, Wausau, Travelers, Continental, National
Union, and certain excess carriers in September 2007, seeking
coverage for the thousands of underlying asbestos-related bodily
injury claims. The primary insurance carriers filed cross-claims
against each other for contribution.
In 2010, Rust filed a motion for summary judgment against four of
the five insurers, seeking a declaration on the trigger of coverage
to be applied in determining coverage under successive insurance
policies, the allocation methodology to be used, and that the
insurers breached their duty to defend Rust. Rust did not move for
summary judgment against National Union because the policies it
issued to Rust were subject to certain indemnity agreements that
required Rust to repay any money that National Union either pays or
"shall become liable to pay" under its insurance policies.
The trial court ruled that the Hartford, Travelers, Continental,
and Wausau policies provided coverage for the asbestos-related
bodily injury claims brought against Rust, and the parties were
left to determine the amounts each insurer was required to
contribute to the aggregate cost of those claims. Hartford, Wausau,
Travelers, and Continental ("the Contribution Plaintiffs")
ultimately entered into a settlement agreement with Rust.
The Contribution Plaintiffs agreed to pay over $35 million to cover
Rust's unreimbursed costs that were incurred before January 1,
2012, and to pay a certain percentage of Rust's future costs for
asbestos-bodily-injury claims up to a capped limit. In exchange for
compensation, Rust dismissed any and all claims against Hartford,
Wausau, Travelers, and Continental, including bad faith claims.
After reaching a settlement with Hartford, Wausau, Travelers, and
Continental, Rust dismissed its claims against National Union
without prejudice. Nevertheless, Wausau, Hartford, Travelers, and
Continental continued to litigate their cross-claims for equitable
contribution against National Union, and the parties later filed
cross-motions for summary judgment on the issue.
In the meanwhile, Continental settled its equitable contribution
claims against National Union. Travelers also settled many of its
claims against National Union, but remained in the case with
respect to costs incurred after January 1, 2017. Consequently, only
the equitable contribution claims of Hartford and Wausau against
National Union and the remaining claims of Travelers were subject
to the bench trial. Ultimately, the trial court determined National
Union's share of liability for the underlying asbestos claims
brought against Rust according to the percentages used in the
Contribution Plaintiffs' 2012 settlement agreement.
Specifically, the trial court determined that National Union's
share of the liability was equal to that of Travelers because they
each provided two years of coverage during a similar period of time
in the 1980s. National Union now appeals this determination.
On appeal, National Union argues the trial court erred when it
based its amount of contribution on percentages outlined in the
2012 settlement agreement between Rust and the Contribution
Plaintiffs. National Union argues the trial court abused its
discretion by arbitrarily imposing on it the amount Travelers
agreed to pay in the settlement agreement because National Union
was not a party to the settlement agreement and therefore did not
have an opportunity to negotiate its share. National Union also
contends that Travelers agreed to pay more than its fair share in
the 2012 settlement agreement in order to obtain a release of
Rust's bad faith claims against it. Therefore, National Union
asserts, the amount Travelers agreed to pay bears no relationship
to any known pro rata methodology and should not have been imposed
on National Union.
National Union further argues that even though Ohio utilizes the
"all sums" approach to allocating contribution, the trial court
should have determined its share of the liability according to a
strict pro rata, time-on-risk standard or methodology. It claims
its share of liability should be based solely on the total amount
of time its policies provided coverage in relation to the total
amount of time provided by all the primary policies.
Hartford and Wausau assumed a significantly larger period of time
on the risk than the other three carriers. Hartford issued 14
policies between 1941 and 1962 for a total of 15 years of coverage,
and Wausau issued 7 policies between 1962 and 1972 for a total of
nine years coverage. Continental only issued one primary policy to
Rust's corporate parent between 1983 and 1986, for a total of three
years of coverage. And, as previously stated, the Continental
policy contained some unique provisions that limited its exposure.
Travelers issued two policies between 1981 and 1983 for a total of
two years of coverage. Like Travelers, National Union only issued
two policies that provided two years of coverage between 1986 and
1988. Therefore, National Union argues, the trial court should have
determined its share of the liability according to a strict
mathematical calculation based on its time on the risk.
As the trial court found, exposure to asbestos triggers every
policy in effect from the date of first exposure until the end of
the "coverage block." Many of the over 71,000 asbestos claimants
alleged no exposure until the 1960s or 1970s. Therefore, these
claims did not trigger the earlier policies issued by Hartford and
Wausau. A policy is triggered by a claimant's date of first
exposure. Because asbestos claims involve "continuous injury,"
virtually all the claims trigger the later policies. Consequently,
not all policies have the same exposure; the earlier policies are
less exposed than later policies. Although Hartford issued the
largest number of policies over the longest period of years, it
issued its policies between 1941 and 1962. Therefore, its exposure
to claims relative to its time-on-risk is less than the exposure of
later policies that accumulated all the claims that were triggered
earlier.
The trial court recognized that the parties' settlement agreement
considered these factors. Thus, the trial court adopted the
reasoning applied by the parties to the settlement agreement in
reaching the percentages of contribution owed by each insurer.
Indeed, National Union's exposure was comparable to Travelers'
exposure. Their policies contained substantially similar language
and were functionally the same. Travelers and National Union were
similarly situated because they each issued two years of coverage
in the 1980s. The only difference between the policies is that
Travelers provided coverage from 1981 to 1983, and National Union
provided coverage from 1986 to 1988. And since asbestos-related
claims trigger later policies more than earlier policies, the
National Union policies had at least equal, if not greater,
exposure than the Travelers policies. Therefore, the Court finds
that the trial court's decision to equate the Travelers policies
with the National Union policies was reasonable under the
circumstances.
National Union nevertheless argues that Travelers paid more than
its fair share in order to obtain certain benefits, including a
release of Rust's bad faith claims against it. Thus, National Union
disputes the trial court's factual finding that National Union's
exposure was substantially similar to Travelers' exposure. However,
the Court determines that Travelers and National Union each issued
two policies providing coverage for two years during the 1980s.
Therefore, their positions are similar, except for the fact that
National Union's policies were issued after the Travelers'
policies.
Furthermore, the Court finds National Union's claim that Travelers
agreed to pay more than its fair share in order to obtain certain
benefits as purely speculative. There is no evidence that Travelers
paid more than it owed under its policies. And as the trial court
observed, the purpose of the settlement agreement was not to change
how much any insurer was obligated to pay, "but to streamline the
claims-paying process so that the Defending Insurers could pay a
fixed amount of total costs rather than calculate the share it
would owe on a claim-by-claim basis for each of the more than
70,000 Asbestos suits individually."
Because determining the actual shares of liability on a
claim-by-claim basis would be time consuming and expensive, the
Court concludes that the 2012 settlement agreement was a
cost-effective solution for everyone. Based on the evidence adduced
at trial, the trial court found that the 2012 settlement agreement
was negotiated in good faith and at arm's-length. And since
National Union's position was substantially similar to Travelers,
it was reasonable for the trial court to conclude that National
Union's share of liability was the same as Travelers.
National Union further argues that the trial court's judgment
should be reversed because it failed to determine Hartford and
Wausau's shares of liability individually based upon the amount
each insurer paid in excess of its fair share. By the same token,
National Union asserts the trial court's judgment should be
reversed because it erroneously allowed Hartford and Wausau to seek
contribution from National Union jointly, rather than
individually.
The trial court found that Hartford and Wausau, together, paid more
than their collective fair share. The Court finds this conclusion
reasonable since National Union contributed nothing toward its
share of the liability and has therefore paid less than its fair
share. And since Hartford and Wausau collectively paid more than
their fair share, the court concluded they could jointly seek
contribution from National Union to pay its fair share. Since there
is no law prohibiting the court from allowing multiple insurers
from jointly prosecuting a combined equitable contribution claim,
the Court finds no error in the court's decision to allow Hartford
and Wausau to jointly prosecute their equitable contribution claims
against National Union.
National Union also argues the trial court erred in awarding an
undefined amount of "interest" for past defense and indemnity
costs. National Union concedes that if the order to pay interest
refers to postjudgment interest, then the order is not reversible
because R.C. 1343.03 provides for the accrual of postjudgment
interest on a final judgment that has been awarded on any claim.
The Court finds, however, that trial court's judgment simply awards
a specified amount of damages "plus interest." The judgment entry
does not provide any indication that the trial court intended to
award prejudgment interest and the court made none of the required
findings to sustain an award of prejudgment interest. The Court
concludes that the judgment entry provides for postjudgment
interest rather than prejudgment interest.
The appealed case is Resco Holdings, L.L.C., Plaintiff, v. AIU
Insurance Co., et al. Defendants-Appellees. [Appeal by National
Union Fire Insurance Company, of Pittsburgh, Pennsylvania,
Appellant], No. 106234, (Ohio Ct. App. 8d).
A copy of the Journal Entry and Opinion dated July 19, 2018, is
available at https://tinyurl.com/y7meozqs from Leagle.com.
Daniel J. Lynn -- dlynn@jackscamp.com -- Donald C. Brown --
dbrown@jackscamp.com -- Timothy R. Dingilian --
tdingilian@jackscamp.com -- Jackson & Campbell, P.C., One Lafayette
Centre, 300 South Tower, 1120 20th Street, N.W., Washington, DC
20036, Stephen W. Funk -- sfunk@ralaw.com -- Ronald B. Lee --
rlee@ralaw.com -- Roetzel & Andress, L.P.A., One Cleveland Center,
10th Floor, 1375 East Ninth Street, Cleveland, Ohio 44114; Arthur
M. Kaufman -- ak@kdglegal.com -- Kaufman, Drozdowski & Grendell,
L.L.C., 29525 Chagrin Blvd, Pepper Pike, Ohio 44122; Richard C.O.
Rezie -- rrezie@gallaghersharp.com -- Alton L. Stephens , Gallagher
Sharp, L.L.C., 1501 Euclid Avenue, Cleveland, Ohio 44115; Kevin M.
Young -- kevin.young@tuckerellis.com -- Tucker Ellis, L.L.P., 950
Main Avenue, Suite 1100, Cleveland, Ohio 44113, Attorneys for
Appellant.
Michael C. Brink , Kevin M. Young -- kevin.young@tuckerellis.com --
Tucker Ellis, L.L.P., 950 Main Avenue, Suite 1100, Cleveland, Ohio
44113; Michele L. Backus -- mbackus@goodwin.com -- 1133 Connecticut
Avenue, Washington, DC 20036, Edward B. Parks, II --
eparks@goodwin.com -- James P. Ruggeri -- jruggeri@goodwin.com --
Shipman & Goodwin, L.L.P., 1875 K. Street, Suite 600, Washington,
DC 20006, Arthur M. Kaufman -- ak@kdglegal.com -- Kaufman,
Drozdowski & Grendell, L.L.C., 29525 Chagrin Blvd., Suite 250,
Pepper Pike, Ohio 44122; Keven Drummond Eiber , 5903 Grafton Road,
Valley City, Ohio 44280; Richard C.O. Rezie --
rrezie@gallaghersharp.com -- Gallagher Sharp, L.L.C., 1501 Euclid
Avenue, Cleveland, Ohio 44115, Attorneys for Appellee, Hartford
Accident and Indemnity Company.
Daniel J. Lynn -- dlynn@jackscamp.com -- Donald C. Brown --
dbrown@jackscamp.com -- Timothy R. Dingilian --
tdingilian@jackscamp.com -- Jackson & Campbell, P.C., One Lafayette
Centre, 300 South Tower, 1120 20th Street, N.W., Washington, DC
20036, Ronald B. Lee -- rlee@ralaw.com -- Roetzel & Andress,
L.P.A., 222 South Main Street, Suite 400, Akron, Ohio 44308,
Attorneys for Appellee, AIU Insurance Company.
Eric E. Caugh , Rolf E. Gilbertson , Patricia St. Peter , Zelle
Hofmann Voelbel & Mason, L.L.P., 500 Washington Avenue South, Suite
4000, Minneapolis, Minnesota 55415, Thomas S. Mazanec , Terry
Williams -- twilliams@mrrlaw.com -- Mazanec, Raskin & Rider Co.,
L.P.A., 100 Franklin's Row, 34305 Solon Road, Cleveland, Ohio
44139; Kevin M. Young -- kevin.young@tuckerellis.com -- Tucker
Ellis, L.L.P., 950 Main Avenue, Suite 1100, Cleveland, Ohio 44113.,
Attorneys for Appellee Employers Insurance Company of Wausau.
Edward B. Parks, II -- eparks@goodwin.com -- James P. Ruggeri --
jruggeri@goodwin.com -- Shipman & Goodwin, L.L.P., 1875 K. Street,
N.W., Suite 600, Washington, DC 20006, Michael C. Brink , Kevin M.
Young -- kevin.young@tuckerellis.com -- Tucker Ellis, L.L.P., 950
Main Avenue, Suite 1100, Cleveland, Ohio 44113; Michele L. Backus
-- mbackus@goodwin.com -- 1133 Connecticut Avenue, Washington, DC
20036, Keven Drummond Eiber , 5903 Grafton Road, Valley City, Ohio
44280, Attorneys for Appellee, First State Insurance Company.
Kaisa Adams , Christopher R. Paar , Rolf E. Gilbertson --
rgilbertson@zelle.com -- Patricia St. Peter , Eric E. Caugh --
ecaugh@zelle.com -- Zelle Hofmann Voelbel & Mason, L.L.P., 500
Washington Avenue South, Suite 4000, Minneapolis, Minnesota 55415,
Thomas S. Mazanec -- tmazanec@mrrlaw.com -- Mazanec, Raskin & Rider
Co., L.P.A., 100 Franklin's Row, 34305 Solon Road, Cleveland, Ohio
44139, Attorneys for Appellee, Nationwide Indemnity Company.
Arthur M. Kaufman -- ak@kdglegal.com -- Kaufman, Drozdowski &
Grendell, L.L.C., 29525 Chagrin Blvd., Suite 250, Pepper Pike, Ohio
44122; Kevin M. Young -- kevin.young@tuckerellis.com -- Tucker
Ellis, L.L.P., 950 Main Avenue, Suite 1100, Cleveland, Ohio 44113;
Terry Williams -- twilliams@mrrlaw.com -- Mazanec, Raskin & Rider
Co., L.P.A., 100 Franklin's Row, 34305 Solon Road, Cleveland, Ohio
44139; Stephen P. Brown -- sbrown@plunkettcooney.com -- Charles W.
Browning -- cbrowning@plunkettcooney.com -- Maryanne B. Foster --
mfoster@plunkettcooney.com -- Patrick E. Winters --
pwinters@plunkettcooney.com -- Plunkett & Cooney, P.C., 38505
Woodward Avenue, Suite 2000, Bloomfield Hills, Michigan 48304.,
Attorneys for Appellee St. Paul Surplus Lines Insurance Company.
Henry G. Grendell -- hg@kdglegal.com -- Kaufman, Drozdowski &
Grendell, L.L.C., 29525 Chagrin Blvd., Suite 250, Pepper Pike, Ohio
44122; Terry Williams -- twilliams@mrrlaw.com -- Mazanec, Raskin &
Rider Co., L.P.A., 100 Franklin's Row, 34305 Solon Road, Cleveland,
Ohio 44139, Attorneys for Appellee Travelers Casualty & Surety
Company.
Patrick E. Winters -- pwinters@plunkettcooney.com -- Maryanne B.
Foster -- mfoster@plunkettcooney.com -- Charles W. Browning --
cbrowning@plunkettcooney.com -- Stephen P. Brown --
sbrown@plunkettcooney.com -- Plunkett & Cooney, P.C., 38505
Woodward Avenue, Suite 2000, Bloomfield Hills, Michigan 48304,
Arthur M. Kaufman -- ak@kdglegal.com -- 29525 Chagrin Blvd, Pepper
Pike, Ohio 44122, Attorneys for Appellee Travelers Casualty &
Surety Company.
Arthur M. Kaufman -- ak@kdglegal.com -- 29525 Chagrin Blvd, Pepper
Pike, Ohio 44122; Kevin M. Young -- kevin.young@tuckerellis.com --
Tucker Ellis, L.L.P., 950 Main Avenue, Suite 1100, Cleveland, Ohio
44113; Terry Williams -- twilliams@mrrlaw.com -- Mazanec, Raskin &
Rider Co., L.P.A., 100 Franklin's Row, 34305 Solon Road, Cleveland,
Ohio 44139; Maryanne B. Foster -- mfoster@plunkettcooney.com --
Charles W. Browning -- cbrowning@plunkettcooney.com -- Stephen P.
Brown -- sbrown@plunkettcooney.com -- Patrick E. Winters --
pwinters@plunkettcooney.com -- Plunkett & Cooney, P.C., 38505
Woodward Avenue, Suite 2000, Bloomfield Hills, Michigan 48304,
Attorneys for Appellee Travelers Indemnity Company,
James P. Ruggeri -- jruggeri@goodwin.com -- Edward B. Parks, II --
eparks@goodwin.com -- Shipman & Goodwin, L.L.P., 1875 K. Street,
N.W., Suite 600, Washington, DC 20006, Keven Drummond Eiber , 5903
Grafton Road, Valley City, Ohio 44280; Michele L. Backus --
mbackus@goodwin.com -- 1133 Connecticut Avenue, Washington, DC
20036, Eric Weiss -- EWeiss@cavitch.com -- Cavitch, Familo & Durkin
Co., L.P.A., 1300 East Ninth Street, 20th Floor, Cleveland, Ohio
44114; Kevin M. Young -- kevin.young@tuckerellis.com -- Michael C.
Brink , Tucker Ellis, L.L.P., 950 Main Avenue, Suite 1100,
Cleveland, Ohio 44113, Attorneys for Appellee Twin City Fire
Insurance Company,
Ronald B. Lee -- rlee@ralaw.com -- Roetzel & Andress, L.P.A., 222
South Main Street, Suite 400, Akron, Ohio 44308, Attorneys for
Appellee Lexington Insurance Company Granite State Insurance
Company, Landmark Insurance Company and, American Home Assurance
Company.
Daniel J. Lynn -- dlynn@jackscamp.com -- Donald C. Brown --
dbrown@jackscamp.com -- Timothy R. Dingilian --
tdingilian@jackscamp.com -- Jackson & Campbell, P.C., One Lafayette
Centre, 300 South Tower, 1120 20th Street, N.W., Washington, DC
20036. Attorneys for Appellee Lexington Insurance Company, Granite
State Insurance Company, Landmark Insurance Company and, American
Home Assurance Company.
ASBESTOS UPDATE: Rogers Corp. Had 686 Pending Claims at June 30
---------------------------------------------------------------
Rogers Corporation still defends itself against 686
asbestos-related product liability claims as of June 30, 2018,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2018.
The Company states, "We, like many other industrial companies, have
been named as a defendant in a number of lawsuits filed in courts
across the country by persons alleging personal injury from
exposure to products containing asbestos. We have never mined,
milled, manufactured or marketed asbestos; rather, we made and
provided to industrial users a limited number of products that
contained encapsulated asbestos, but we stopped manufacturing these
products in the late 1980s. Most of the claims filed against us
involve numerous defendants, sometimes as many as several hundred.
"For the six months ended June 30, 2018, 110 claims were dismissed
and 17 claims were settled. Settlements totaled approximately
US$4.9 million for the six months ended June 30, 2018.
"We recognize a liability for asbestos-related contingencies that
are probable of occurrence and reasonably estimable. In connection
with the recognition of liabilities for asbestos related matters,
we record asbestos-related insurance receivables that are deemed
probable. Our estimates of asbestos-related contingent liabilities
and related insurance receivables are based on an independent
actuarial analysis and an independent insurance usage analysis
prepared annually by third parties. The actuarial analysis
contains numerous assumptions, including general assumptions
regarding the asbestos-related product liability litigation
environment and company-specific assumptions regarding claims rates
(including diseases alleged), dismissal rates, average settlement
costs and average defense costs. The insurance usage analysis
considers, among other things, applicable deductibles, retentions
and policy limits, the solvency and historical payment experience
of various insurance carriers, the likelihood of recovery as
estimated by external legal counsel and existing insurance
settlements.
"We review our asbestos-related forecasts annually in the fourth
quarter of each year unless facts and circumstances materially
change during the year, at which time we would analyze these
forecasts. During 2017, we reviewed the projections of our current
and future asbestos claims, and determined it was appropriate to
extend the liability projection period to cover all current and
future claims through 2058. We based our conclusion on our history
and experience with the claims data, the diminished volatility and
consistency of observable claims data, the period of time that has
elapsed since we stopped manufacturing products that contained
encapsulated asbestos and an expectation of a downward trend in
claims due to the average age of our claimants, which is
approaching the average life expectancy. As a result, we believe
we are now able to make a reasonable estimate of the actuarially
determined liability for current and future asbestos claims through
2058, the expected end of our asbestos liability exposure.
"As of December 31, 2017, the balances of the asbestos-related
claims and insurance receivables, which are projected to cover all
current and future claims through 2058, were US$76.2 million and
US$69.2 million, respectively. To date, the defense and settlement
costs of our asbestos-related product liability litigation have
been substantially covered by insurance. We have identified
continuous coverage for primary, excess and umbrella insurance from
the 1950s through the mid-1980s, except for a period in the early
1960s, with respect to which we have entered into an agreement for
primary, but not excess or umbrella, coverage. In addition, we
have entered into a cost sharing agreement with most of our
primary, excess and umbrella insurance carriers to facilitate the
ongoing administration and payment of claims by the carriers. The
cost sharing agreement may be terminated by any party, but will
continue until a party elects to terminate it. As of the filing
date for this report, the agreement has not been terminated.
During the first quarter of 2018, we received notice that primary
coverage for a period of eight years and excess coverage for a
period of two years had been exhausted, and as a result, we
incurred indemnity and defense costs of US$0.2 million and US$0.5
million for the three and six months ended June 30, 2018,
respectively. These costs reduced our existing asbestos-related
liabilities to US$75.7 million as of June 30, 2018. We expect to
exhaust individual primary, excess and umbrella coverages over
time, and there is no assurance that such exhaustion will not
accelerate due to additional claims, damages and settlements or
that coverage will be available as expected.
"The amounts recorded for the asbestos-related liabilities and the
related insurance receivables were based on facts known at the time
and a number of assumptions. However, projecting future events,
such as the number of new claims to be filed each year, the average
cost of disposing of such claims, the length of time it takes to
dispose of such claims, coverage issues among insurers and the
continuing solvency of various insurance companies, as well as the
numerous uncertainties surrounding asbestos litigation in the
United States could cause the actual liability and insurance
recoveries for us to be higher or lower than those projected or
recorded.
"There can be no assurance that our accrued asbestos liabilities
will approximate our actual asbestos-related settlement and defense
costs, or that our accrued insurance recoveries will be realized.
We believe that it is reasonably possible that we may incur
additional charges for our asbestos liabilities and defense costs
in the future, which could exceed existing reserves and insurance
recovery, but we are unable to estimate the amount of such
additional liabilities and costs. We will continue to vigorously
defend ourselves and believe we have substantial unutilized
insurance coverage to mitigate future costs related to this
matter."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2LZ7dwf
ASBESTOS UPDATE: Standard Motor Had $32.34MM Liability at June 30
-----------------------------------------------------------------
Standard Motor Products, Inc.'s accrued asbestos liabilities
amounted to US$32,339,000 as of June 30, 2018, according to the
consolidated balance sheets in the Company's Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended June 30, 2018.
The Company states, "We are responsible for certain future
liabilities relating to alleged exposure to asbestos-containing
products. In accordance with our accounting policy, our most
recent actuarial study as of August 31, 2017 estimated an
undiscounted liability for settlement payments, excluding legal
costs and any potential recovery from insurance carriers, ranging
from US$35.2 million to US$54 million for the period through 2060.
Based on the information contained in the actuarial study and all
other available information considered by us, we have concluded
that no amount within the range of settlement payments was more
likely than any other and, therefore, in assessing our asbestos
liability we compare the low end of the range to our recorded
liability to determine if an adjustment is required.
"Based upon the results of the August 31, 2017 actuarial study, in
September 2017 we increased our asbestos liability to US$35.2
million, the low end of the range, and recorded an incremental
pre-tax provision of US$6 million in loss from discontinued
operations in the accompanying statement of operations. In
addition, according to the updated study, future legal costs, which
are expensed as incurred and reported in loss from discontinued
operations in the accompanying statement of operations, are
estimated to range from US$44.3 million to US$79.6 million for the
period through 2060.
"We will continue to perform an annual actuarial analysis during
the third quarter of each year for the foreseeable future. Based
on this analysis and all other available information, we will
continue to reassess the recorded liability and, if deemed
necessary, record an adjustment to the reserve, which will be
reflected as a loss or gain from discontinued operations."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2PCvzxU
ASBESTOS UPDATE: Univar Faces Less Than 230 Claims at June 30
-------------------------------------------------------------
Univar Inc. had fewer than 230 asbestos-related claims as of June
30, 2018, according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2018.
Univar states, "The Company is subject to liabilities from claims
alleging personal injury from exposure to asbestos. The claims
result primarily from an indemnification obligation related to
Univar USA Inc.'s ("Univar") 1986 purchase of McKesson Chemical
Company from McKesson Corporation ("McKesson"). Univar is also a
defendant in a small number of asbestos claims. As of June 30,
2018, there were fewer than 230 asbestos-related claims for which
the Company has liability for defense and indemnity pursuant to the
indemnification obligation. The volume of such cases has decreased
in recent quarters. Historically, the vast majority of the claims
against both McKesson and Univar have been dismissed without
payment. The Company does incur costs in defending these claims.
While the Company is unable to predict the outcome of these
matters, it does not believe, based upon currently available facts,
that the ultimate resolution of any of these matters will have a
material effect on its overall financial position, results of
operations or cash flows. However, the Company cannot predict the
outcome of any present or future claims or litigation and adverse
developments could negatively impact earnings or cash flows in a
particular future period."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2oEn6z4
ASBESTOS UPDATE: W. Clayton Claims vs. Metalclad, MetLife Dismissed
-------------------------------------------------------------------
The Hon. James L. Robart of the United States District Court of
Western Washington, based on the Stipulation of Dismissal signed by
all parties who have appeared, has dismissed all claims against
Defendants Metalclad, LLC and Metropolitan Life Insurance Company
in the case entitled William R. Clayton and Jill D. Clayton,
husband and wife, Plaintiffs, v. Air & Liquid Systems Corporation,
et al., Defendants, No. 2:18-cv-00748-JLR, (W.D. Wash.), without
prejudice.
Plaintiffs will continue to pursue their claims against Defendants
Vigor Shipyard and Warren Pumps, LLC in this case.
A copy of the Stipulation and Order dated August 22, 2018, is
available at https://tinyurl.com/y8zfvzgy from Leagle.com.
William R. Clayton & Jill D. Clayton, husband and wife, Plaintiffs,
represented by Glenn S. Draper -- glenn@bergmanlegal.com -- Bergman
Draper Oslund, Matthew Phineas Bergman -- matt@bergmanlegal.com --
Bergman Draper Oslund & Ruby K. Aliment , Bergman Draper Oslund.
Air & Liquid Systems Corporation, successor in interest, Defendant,
represented by Kevin J. Craig -- kcraig@grsm.com -- Gordon Rees
Scully Mansukhani LLP, Mark B. Tuvim -- mtuvim@grsm.com -- Gordon
Rees Scully Mansukhani LLP & Trevor J. Mohr -- tmohr@grsm.com --
Gordon Rees Scully Mansukhani LLP.
CBS Corporation, a Delaware corporation, Defendant, represented by
Alice Coles Serko -- aserko@tktrial.com -- Tanenbaum Keale LLP,
Christopher S. Marks -- cmarks@tktrial.com -- Tanenbaum Keale LLP,
Erin P. Fraser -- efraser@tktrial.com -- Tanenbaum Keale LLP &
Malika Johnson -- mjohnson@tktrial.com -- Tanenbaum Keale LLP.
Crown Cork & Seal Company Inc, Defendant, represented by Alice
Coles Serko -- aserko@tktrial.com -- Tanenbaum Keale LLP, Barry
Neal Mesher , Christopher S. Marks -- cmarks@tktrial.com --
Tanenbaum Keale LLP, Erin P. Fraser -- efraser@tktrial.com --
Tanenbaum Keale LLP & Malika Johnson -- mjohnson@tktrial.com --
Tanenbaum Keale LLP.
Saberhagen Holdings Inc, successor in interest Tacoma Asbestos
Company, successor in interest The Brower Company, Defendant,
represented by Timothy Kost Thorson -- thorson@carneylaw.com --
Carney Badley Spellman PS.
Warren Pumps LLC, individually, Defendant, represented by Allen
Eraut -- aeraut@rizzopc.com -- Rizzo Mattingly Bosworth PC & Shaun
Mary Morgan -- smorgan@rizzopc.com -- Rizzo Mattingly Bosworth PC.
Vigor Shipyards Inc, a subsidiary of Vigor Shipyards Inc,
Defendant, represented by Walter Eugene Barton --
gbarton@karrtuttle.com -- Karr Tuttle Campbell.
ASBESTOS UPDATE: Ward's Suit Dismissed for Forum Non Conveniens
---------------------------------------------------------------
The Hon. Manuel J. Mendez for the Supreme Court of New York County
has dismissed the case styled In Re: New York City Asbestos
Litigation. Sharon Ward, Plaintiff, v. Colgate-Palmolive Company,
Defendant(s), Docket No. 190091/16, Motion Seq. No. 001, (N.Y.).
The dismissal is conditioned that Colgate stipulates: (1) to accept
service of process in a new action to be commenced by Plaintiff, at
his choice, in either the State of Indiana, the State of Texas; and
(2) waive any defenses, including that of statute of limitations
and jurisdictional defenses, which were not available in New York
at the time of the commencement of this action, all provided that
the new action is commenced within ninety days after service of the
stipulation upon the Plaintiff. However, if Colgate fails to so
stipulate, then the motion is denied.
Plaintiff commenced this action on April 1, 2016 to recover against
the defendant Colgate-Palmolive Company -- a Delaware corporation
with its principal place of business in the City and State of New
York -- for the injuries allegedly sustained by plaintiff Sharon
Ward as a result of her exposure to asbestos from the defendant's
product. Thereafter, Plaintiff Sharon Ward's videotaped deposition
was taken on June 14, 2016 in the State of Texas.
Plaintiff Sharon Ward claims that she developed mesothelioma as a
result of her exposure to asbestos contained in defendant's
Cashmere Bouquet Talcum powder during a 16-year period from
approximately the late 1940s through the early 1960s. During the
period of exposure plaintiff resided in the State of Texas, where
she resided and continues to reside except for a brief residence of
approximately two to three years starting in 1971, when she lived
in Richmond, Virginia. Plaintiff claims there was no exposure while
she resided in Virginia. At no time has plaintiff resided in the
State of New York, or has plaintiff alleged to have been exposed to
defendant's asbestos containing product in the State of New York.
Plaintiff moved back to the State of Texas around 1974, where she
and her family currently reside. She was diagnosed with
mesothelioma in October of 2015. Plaintiff's medical treatment
(hospital and doctors) has taken place in the State of Texas, where
all her witnesses are located. Plaintiff has not received any
medical treatment in the state of New York.
On August 15, 2017 Defendant moved to dismiss this case pursuant to
CPLR Section 327(a) on the grounds of forum non conveniens.
Defendant alleges that, even though it has its corporate
headquarters in the City and State of New York, this case should be
dismissed on the grounds of forum non conveniens because this case
has no nexus with the state of New York.
It is alleged that plaintiff was exposed to asbestos in the State
of Texas, where she has resided for approximately 70 years; her
injury manifested in the State of Texas where she currently
resides; her medical treatment took place in the State of Texas,
which is the place where her medical witnesses and most of her
other witnesses are located. Plaintiff has never resided in the
State of New York and has never been exposed to defendant's product
in the State of New York. Defendant alleges that the only
connection to the state of New York is that defendant has its
corporate headquarters here, that merely having its corporate
headquarters in New York is an insufficient nexus, and therefore
the action should be dismissed on the grounds of forum non
conveniens.
Plaintiff opposes the motion on multiple grounds. Plaintiff alleges
that the action should stay in New York because this is the place
where defendant has its corporate headquarters, where jurisdiction
can be obtained against the defendant and where it is possible
defendant's witnesses are located. Defendant's asbestos talc
litigation is centered in New York because one of its Cashmere
Bouquet plants was located near New York -- just across the Hudson
River in Jersey City, New Jersey -- and its Research and
Development Center is also located near New York in Piscataway, New
Jersey. Defendant was a member of the Cosmetic Toiletry & Fragrance
Association during the 1970s and regularly attended meetings in New
York City. Defendant further placed ads in the New York times in
New York City to counter negative publicity from a study performed
in the 1970s at Mt. Sinai Hospital in New York that found Cashmere
Bouquet Talc was contaminated with 20 percent asbestos. Finally
plaintiff argues that defendant has taken advantage of this forum
in this litigation for over 16 months before moving to dismiss on
the grounds of forum non conveniens.
The Court is of the opinion that in balancing the interests and
convenience of the parties and the court's, this action could
better be adjudicated in the courts of the State of Texas. The only
nexus this action has with the State of New York is that the
corporate defendant has its principal place of business in New
York. The plaintiff is a resident of the State of Texas and
Plaintiff Sharon Ward was exposed to the defendant's product while
she resided in the State of Texas. The medical treatment, her
medical doctors and almost all of her witnesses are in the State of
Texas. Under these facts the action should be dismissed without
prejudice on the grounds of forum non conveniens.
Finally, a seven month delay from plaintiff's deposition -- where
defendant obtained information to conclude that the only nexus to
the State of New York is that it is the place where defendant has
its principal place of business -- to the making of this motion to
dismiss on grounds of forum non conveniens is not such a
substantial delay so as to constitute a waiver and deny the motion.
These are complex cases where information is not obtained,
sufficient for the making of a motion to dismiss for lack of
jurisdiction or for forum non conveniens, until substantial
discovery is complete.
In this particular case it took the service and answer of
interrogatories, and plaintiff's deposition over many months before
sufficient information was obtained for the making of this motion.
Given the complexity of the subject matter and difficulty in
obtaining information, a seventh month delay in moving to dismiss
on the grounds of forum non conveniens is not such a substantial
delay as to consider dismissal on this ground waived.
A copy of the Order dated July 25, 2018, is available at
https://tinyurl.com/y72nbh96 from Leagle.com.
*********
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