/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/181012.mbx C L A S S A C T I O N R E P O R T E R Friday, October 12, 2018, Vol. 20, No. 205 Headlines 1IOTA PRODUCTIONS: Burbon Suit Asserts ADA Breach ALLIANCE GROUND: Lall Seeks Unpaid Wages under Labor Law ALLTRAN FINANCIAL: Weinberg Sues over Debt Collection Practices ALNYLAM PHARMACEUTICALS: Faces Leavitt Securities Suit in N.Y. AQUENT LLC: Court Dismisses Action Against Individual Defendants ARS NATIONAL: Finnell Files FDCPA Suit in New York ARSTRAT LLC: Douglas Files Class Suit Under FDCPA BANK OF AMERICA: Boyd Suit Alleges Breach of Contract BANK OF AMERICA: Sanchez Appeals Ruling in Farrell Suit to 9th Cir. BAYERISCHE MOTOREN: Court Narrows Claims in Kearney Suit BERKELEY, CA: Class Action Over Homeless Encampment Sweeps Okayed BERKELEY, CA: Court Certifies Class of Homeless People BOULEVARD LATIN: Uribe Seeks to Recover Minimum & Overtime Wages BRIDGER LOGISTICS: Smith Suit Moved to Eastern District of Texas CARDINAL HEALTH: Continues to Defend Opioid-Related Class Suits CAVALRY PORTFOLIO: Court OKs Summary Judgment in Gomez Suit CHEGG INC: Faces Shah Securities Class Suit in N.D. California CITIGROUP GLOBAL: Faces Saggio Class Suit in N.Y. Civil Sup. Ct. CREST HILL: Luster Suit Seeks to Recover Overtime Pay Under FLSA DOLCE & GABBANA: Diaz Files ADA Suit in S.D. New York DUN & BRADSTREET: Witmer Balks at Merger Deal with CC Capital ESPARZA ENTERPRISES: Faces Mayen Class Action in Cal. Super. Ct. F.H. CANN: Lazarao Files FDCPA Suit in New Jersey FIRST OHIO: Judgment in Mortgage Broker Act Suit Affirmed FIRST STANDARD: Abante Rooter Suit Alleges TCPA Violation FLAGSTAR BANCORP: Richardson Sues Over Unpaid Minimum & OT Wages FOOTHILL TRANSIT: Gerlach Asserts Discrimination in Bus Services FREEDOM MORTGAGE: Chittick Suit Alleges RESPA Violation FUSHIMI GROUP: Diaz Files ADA Suit in S.D. New York GLOBAL TEL LINK: Kron Appeals Ruling in Lee Suit to 9th Circuit HEWITT CAPITAL: Perry Files FDCPA Suit in S.D. Indiana ILKE INC: Does Not Pay Minimum and OT Wages, Sanchez Suit Says INVUITY INC: Hurtado Seeks to Enjoin Tender Offer by Stryker JETS STADIUM: 3rd Circuit Appeal Filed in Gengo Class Suit JOHNSON & JOHNSON: Hedrick Sues over Sale of Talcum Powder KNIGHTS OF COLUMBUS: Sued for Misclassifying Field Agents KORMAN COMMUNITIES: Bishop Files ADA Suit in S.D. New York LENDINGCLUB SECURITIES: Court OKs $16.4MM Attorney's Fees LIFE TIME: Rodriguez Seeks to Recover Past-Due Wages Under FLSA LOANDEPOT.COM: Faces Diaz ADA Suit in New York LOS ANGELES, CA: Court Denied without Prejudice Class Cert. Bid LYFT: Drivers' Class Action Settlement Gets Final Court Okay MANAGEMENT & TRAINING: Mendoza Suit Moved to S.D. California MANHATTAN PHYSICIANS: Bishop Files ADA Suit in S.D. New York MARSHALLS OF CA: Rodriguez Suit Asserts Labor Law Violations MAXIMUS INC: 4th Cir. Appeal Filed in Steamfitters Securities Suit MIDLAND CREDIT: 3rd Cir. Flips Dismissal of Schultz FDCPA Suit MILTAN MANAGEMENT: Faces Bishop ADA Suit in New York MONSANTO COMPANY: Awads Sue over Sale of Herbicide Roundup MONSANTO COMPANY: Dotson Sues over Sale of Herbicide Roundup MONSANTO COMPANY: Elfers Sue over Sale of Herbicide Roundup MONSANTO COMPANY: Johnson Sues over Sale of Herbicide Roundup MONSANTO COMPANY: Rice Sues over Sale of Herbicide Roundup MONSANTO COMPANY: Shorr Wants Damages From Roundup-Related Injury MONSANTO COMPANY: Walker Sues over Sale of Herbicide Roundup NAVIENT SOLUTIONS: Nov. 30 Settlement Opt-Out Deadline Set NBCUNIVERSAL: Faces Burbon ADA Class Action NEW EQUIPMENT: Court Grants Bid to Dismiss ICFA Suit NOLAN ENTERPRISES: Ct. Won't Compel Arbitration in Dancers' Suit OPTIMA ADVOCATES: Rothman Files Suit Over Illegal Calls PANASONIC CORP: Martinez Sues Over Blind-Inaccessible Web Site PETROBRAS: Settles Bribery Claims with SEC for $1.8 Million PHILIP MORRIS: GPCPF Sues Over Misleading Statements on IQOS PPDAI GROUP: Faces Vora IPO-Related Securities Suit in New York PRIMARK US: Web Site Not Blind-Accessible, Burbon Claims PROMPT NURSING: Seeks 2nd Cir. Review of Paguirigan Suit Ruling REAL ESTATE: Conditional Certification Administratively Terminated REIS INC: Scarantino Balks at Merger Deal with Moody's Corp. ROCHE HOLDING: Court Grants Bid to Dismiss Securities Suit SAFEWAY INC: Helfand Appeals Order in Rodman Suit to 9th Cir. SANDERSON FARMS: Appeal Ongoing in New York Class Action SANDERSON FARMS: Bid to Dismiss North Carolina Class Suit Underway SANDERSON FARMS: Discovery Ongoing in Broiler Chicken-Related Suit SANTA FE, NM: Moya Seeks More Time to File Petition for Writ SARGON ISAAC: Tyler Swain Alleges Racism & Unsafe Housing SHANG SHANG: Jiao Files FLSA Suit in E.D. New York SHELTER MUTUAL: Baggett Suit Moved to Eastern District of Arkansas SONY MUSIC: Rick Nelson Sues over Royalties SOOTHE INC: Herrera Seeks to Stop Sending of Unsolicited Texts SPECIALTY RESCUE: Porter Seeks to Recoup Minimum & Overtime Wages SPENCE FENCE: Slover Files Suit in Cal. Super. Ct. STARBUCKS CORP: 9th Cir. Revives Off-Clock Work Class Action STREMICK'S HERITAGE: Mislabels Kern's Fruit Juices, Levin Alleges TESLA ENERGY: Zamorano Seeks Unpaid Wages under Labor Code THOMAS REUTERS: Court Stay Landry FCRA Suit THRIVE CAUSEMETICS: Barker Suit Removed to W.D. Wash. TOKASH ENTERPRISES: Venegas Seeks OT Pay under FLSA TUESDAY MORNING: Court Approves Settlement in Castillo Suit TUESDAY MORNING: Court Approves Settlement in Velarde Suit UBER TECHNOLOGIES: Can Force Drivers to Arbitrate Claims UBER TECHNOLOGIES: Class Action Settlement Gets Prelim. Court OK UNITED STATES: USCIS Seeks 9th Cir. Review of A.A. Suit Ruling VENETIAN CASINO: Court Conditionally Certifies Housekeepers Class VF OUTDOOR: Faces Burbon Suit Over Blind-Inaccessible Web Site ZWICKER & ASSOCIATES: Campo Files Suit Alleging FDCPA Violation Asbestos Litigation ASBESTOS UPDATE: 203 Cases vs. CECO Still Pending at June 30 ASBESTOS UPDATE: 3rd Cir. Affirms Montana Claims Fit Injunction ASBESTOS UPDATE: Albany Int'l Defends 3,677 Claims at June 30 ASBESTOS UPDATE: Albany Int'l. Still Defends Mount Vernon Lawsuits ASBESTOS UPDATE: Ampco-Pittsburgh Has $137.3MM Liability Reserve ASBESTOS UPDATE: Ampco-Pittsburgh Has 7,146 Claims at June 30 ASBESTOS UPDATE: Appeal of New Rules on Asbestos Docket Rejected ASBESTOS UPDATE: Appeals Court Rules Against Asbestos Companies ASBESTOS UPDATE: Brandon Drying Defends 7,708 Claims at June 30 ASBESTOS UPDATE: Cabot Corp. Has 35,000 AO Respiratory Claimants ASBESTOS UPDATE: Companies Fined $195K foAsbestos Removal ASBESTOS UPDATE: Corp. May Appeal Asbestos Cell Vote ASBESTOS UPDATE: Crane's Bid to Quash Subpoena Affirmed on Appeal ASBESTOS UPDATE: Daughter Appeals for Help on Mum's Asbestos Death ASBESTOS UPDATE: Dismissal of Biederman's Bid to Unseal Affirmed ASBESTOS UPDATE: DOJ Intensifies Attack on Asbestos Trust ASBESTOS UPDATE: Duffus May File Brief Amici Curiae in Juni's Suit ASBESTOS UPDATE: Elderly Residents at Risk of Asbestos ASBESTOS UPDATE: Emerson Electric Had $346MM Liability at June 30 ASBESTOS UPDATE: Employer Must Pay Asbestos Victim's Widow ASBESTOS UPDATE: Everest Had $273.2MM Loss Reserves at June 30 ASBESTOS UPDATE: Farris Case Management Conference Moved to Nov. 28 ASBESTOS UPDATE: Final Dismissal of Kirkland vs. Huntington Entered ASBESTOS UPDATE: Firm Fined for Exposing Employees to Asbestos ASBESTOS UPDATE: Firm Fined for Unlicensed Asbestos Removal ASBESTOS UPDATE: Fit & Healthy Woman Dies of Asbestos Cancer ASBESTOS UPDATE: Flowserve Still Faces PI Lawsuits at June 30 ASBESTOS UPDATE: GMS Units Still Face 37 Lawsuits at July 31 ASBESTOS UPDATE: Hall Employees Exposed to Asbestos for Months ASBESTOS UPDATE: Homes Built Before 1990 May Contain Asbestos ASBESTOS UPDATE: Houston Wire Still Defends PI Suits at June 30 ASBESTOS UPDATE: J-M Manufacturing Appeal of Warren Suit Dismissed ASBESTOS UPDATE: Jury Verdict Favoring BNSF Affirmed on Appeal ASBESTOS UPDATE: Navistar Continues to Defend Claims at July 31 ASBESTOS UPDATE: Park-Ohio Industries Faces 92 Suits at June 30 ASBESTOS UPDATE: School Kitchen Shut Due to Asbestos ASBESTOS UPDATE: TriMas Corp. Had 396 Pending Cases at June 30 ASBESTOS UPDATE: Union Carbide Faces 13,734 Claims at June 30 ASBESTOS UPDATE: Union Carbide Has $1.3BB Liability at June 30 ASBESTOS UPDATE: US Auto Parts Units Still Defend Suits at June 30 ASBESTOS UPDATE: Whittaker May Perfect Appeal Until May 2019 Term UTAH: Summary Judgment in Suit Over Hospital Lien Statute Affirmed ********* 1IOTA PRODUCTIONS: Burbon Suit Asserts ADA Breach -------------------------------------------------- Luc Burbon filed a class action lawsuit against 1IOTA Productions, LLC under the Americans with Disabilities Act. The case is styled as Luc Burbon and on behalf of all other persons similarly situated, Plaintiff v. 1IOTA Productions, LLC., Defendant, Case No. 1:18-cv-09209 (S.D. N.Y., Oct. 8, 2018). 1iota Productions specializes in connecting fans with thousands of live nationwide events in the entertainment world, including exclusive access to popular TV shows, red carpet events, sporting events, movie premiers, music festivals and more. Founded by Rob Crawford and Ben Biscotti in 2002, the company has since grown from a two-man outfit to a bi-coastal operation with over 150 active employees, and a fan base membership of millions of registered users. Members can request free tickets with searchable features by celebrity, television show, date, city and more. 1iota also works behind the scenes to support their clients with premier solutions for event management, ticketing, fan engagement, casting, data and analytics, onsite logistics and more. The Plaintiff appears pro se. ALLIANCE GROUND: Lall Seeks Unpaid Wages under Labor Law -------------------------------------------------------- LALL, MELISSA INDIVIDUALLY, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, the Plaintiff, v. ALLIANCE GROUND INTERNATIONAL, LCC, the Defendant, Case No. 712814/2018 (N.Y. Sup. Court, Sept 24, 2018), seeks recover all unpaid wages including her unpaid overtime wages, and unlawful wage deductions, under the New York Labor. The case is assigned to the Hon. Janice A. Taylor. According to the complaint, the Plaintiff worked 50 or more hours a week for the Defendant, 5-6 days a week, but the Defendant failed to pay the Plaintiff for each and all hours worked in each week during her employment. The Plaintiff was not paid any wages including overtime wages for about 5-6 hours worked in a week, for each week during her employment with the Defendant. In addition, the wage statements provided to the Plaintiff did not state the hours worked in each weekly pay period, among other deficiencies. Alliance Ground provides cargo, mail, and ramp handling services to international airlines in Chicago, New York, Atlanta, Miami, Orlando, Los Angeles, San Francisco, and Fort Lauderdale.[BN] Attorneys for Plaintiff: ABDUL HASSAN LAW GROUP, PLLC. 215-28 Hillside Ave. Queens Village, NY 11427 Telephone: (718) 740 1000 Attorneys for Alliance Ground International: AKERMAN LLP 666 Fifth Avenue 20TH Floor New York, NY 10103 Telephone: (212) 880 3800 ALLTRAN FINANCIAL: Weinberg Sues over Debt Collection Practices --------------------------------------------------------------- BRIAN E. WEINBERG and all others similarly situated, the Plaintiff, vs. ALLTRAN FINANCIAL, LP, a Texas Limited Partnership; and JOHN DOES, the Defendants, Case No. 1:18-cv-011503 (E.D. Wisc., Sept. 25, 2018), alleges that the Defendants failed to provide in an initial communication with a consumer the amount of the debt as required by 15 U.S.C. section 1692g(a)(1), and used a false, deceptive, or misleading representation or means in violation of 15 U.S.C. section 1692e. The Plaintiff brings this action individually and on behalf of all others similarly situated for the illegal practices of Defendant when attempting to collect an alleged debt from them in violation of the Fair Debt Collection Practices Act. Such practices include attempting to collect consumer debts by engaging in conduct prohibited by, or failing to engage in conduct required by, the FDCPA. According to the complaint, ALLTRAN regularly engages in the collection of defaulted consumer debts and regularly collects or attempts to collect debts debts alleged to be owed. The Defendant is a business the principal purpose of which is the collection of others defaulted consumer debts. In attempting to collect debts, ALLTRAN uses the mails, telephone, the internet, and other instruments of interstate commerce. ALLTRAN sent WEINBERG a letter dated January 11, 2018. The Letter alleged WEINBERG had incurred and defaulted on a financial obligation. The alleged Debt arose out of one or more transactions in which the money, property, insurance, or services that were the subject of the transaction were primarily for personal, family, or household purposes. The Letter identified the current creditor of the Debt as "Elan Financial Services". Sometime prior to January 11, 2018, the creditor of the Debt either directly or through intermediate transactions assigned, placed, or transferred the debt to ALLTRAN for collection. The Letter was ALLTRAN's first written communication to WEINBERG in connection with the Debt. The Letter stated: Amount Due as of January 11, 2018: $6,615.52. The unsophisticated consumer would understand the phrase "Amount Due as of January 11, 2018” to imply that after January 11, 2018, the amount of the debt would be greater due to accruing interest, late fees, and other charges that vary from day to day. Prior to the Letter, the creditor had charged-off and accelerated the Debt and, therefore, the amount of the Debt was no longer increasing due to accruing interest, late fees, and other charges that vary from day to day. Prior to the charge-off and acceleration of the Debt the amount of the Debt was increasing due to accruing interest, late fees, and other charges that varied from day to day, the Case says.[BN] Attorneys for Plaintiff, Philip D. Stern, Esq. Andrew T. Thomasson, Esq. Francis R. Greene, Esq. STERN THOMASSON LLP 150 Morris Avenue, 2nd Floor Springfield, NJ 07081 Telephone (973) 379-7500 E-mail: Philip@SternThomasson.com Andrew@SternThomasson.com Francis@SternThomasson.com ALNYLAM PHARMACEUTICALS: Faces Leavitt Securities Suit in N.Y. -------------------------------------------------------------- CARYL HULL LEAVITT, Individually and On Behalf of All Others Similarly Situated v. ALNYLAM PHARMACEUTICALS, INC., JOHN M. MARAGANORE, and MANMEET S. SONI, Case No. 1:18-cv-08845 (S.D.N.Y., September 26, 2018), alleges that the Company sold securities at artificially inflated prices during the class period because the Defendants made materially false and misleading statements regarding its business. Specifically, the Defendants made false and/or misleading statements and/or failed to disclose that: (i) Alnylam overstated the efficacy and safety of its Onpattro (patisiran) lipid complex injection; and (ii) as a result, Alnylam's public statements were materially false and misleading at all relevant times, the Plaintiff alleges. Alnylam is incorporated in Delaware and its principal executive offices are located in Cambridge, Massachusetts. The Individual Defendants are directors and officers of the Company. Alnylam is a global biopharmaceutical company developing therapeutics based on RNA interference ("RNAi"). RNAi is a naturally occurring biological pathway within cells for sequence-specific silencing and regulation of gene expression. Alnylam purports to harness the RNAi pathway to develop a potential new class of innovative medicines, known as RNAi therapeutics. RNAi therapeutics are comprised of small interfering RNA, or siRNA, and function upstream of today's medicines by potently silencing messenger RNA, or mRNA, that encode for disease-causing proteins, thus, preventing them from being made.[BN] The Plaintiff is represented by: Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. Jonathan Lindenfeld, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com jlindenfeld@pomlaw.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP 10 South La Salle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 E-mail: pdahlstrom@pomlaw.com AQUENT LLC: Court Dismisses Action Against Individual Defendants ---------------------------------------------------------------- The United States District Court for the Southern District of California issued an Order granting Individual Defendants' Motion to Dismiss in the case captioned ELIZABETH SEGAL, individually, and on behalf of herself and all others similarly situated, Plaintiffs, v. AQUENT LLC, a Massachusetts limited liability company, et al., Defendants. Case No. 18cv346-LAB (JLB). (S.D. Cal.). Segal filed a Second Amended Complaint against the various Defendants, alleging a variety of wage and hour violations on behalf of herself and a putative class consisting of all the Corporate Defendants' current and former employees who worked in California during the last four years. Each of the remaining Individual Defendants move to dismiss Plaintiff's SAC for lack of personal jurisdiction, alleging that there are insufficient contacts between the Defendants and California to permit this Court to exercise jurisdiction over them. John Chuang John Chuang is the Chairman of Aquent. He states in an affidavit that he is a citizen and resident of Massachusetts. He does not maintain a residence in California, does not own any property in California, and does not intend to reside in California. The Plaintiff alleges that general personal jurisdiction is proper over Chuang because Aquent LLC does business in California. Even if doing business were the standard for jurisdiction over corporate entities (it is not), Aquent's activity does not justify personal jurisdiction over its employees. General personal jurisdiction over Chuang is therefore improper because he is not domiciled in California. Specific personal jurisdiction over Chuag is also inappropriate. Chuang's only contacts with California are a small number of visits for vacations or work-related purposes. This Court has neither general personal jurisdiction nor specific personal jurisdiction over Chuang. Douglas Kaplan Douglas Kalpan is the CEO of Aquent. Kaplan states in an affidavit that he is a resident and citizen of Massachusetts. Like Chuang, he states that he does not maintain a residence in California, does not own any property in California, and does not intend to reside in California. The Plaintiff's arguments as to why this Court should exercise jurisdiction over Kaplan are identical to her arguments regarding Chuang, and they fail for the same reasons. He did not supervise California employees, oversee California operations, or develop any of the policies at issue. Kaplan's contacts with the state of California thus do not give rise to jurisdiction over him. Cheryl King Cheryl King is the President of Aquent Staffing and Studios, a division of Aquent. King states in affidavit that she is a citizen and resident of the state of Washington. Although she owns personal property in California, she has no intent to reside there. Plaintiff has made no allegation that King is domiciled in California, nor has Plaintiff produced any evidence of such. There is no evidence or even allegation of the necessary intent to reside in California permanently. For the reasons set out with respect to Chuang and Kaplan, this Court finds that exercising jurisdiction over King would be improper. The Individual Defendants' motion to dismiss for lack of jurisdiction is GRANTED and those defendants are dismissed with prejudice from the case. A full-text copy of the District Court's September 24, 2018 Order is available at https://tinyurl.com/y7vm3weu from Leagle.com. Elizabeth Segal, individually, and on behalf of herself and all others similarly situated, Plaintiff, represented by Thomas D. Rutledge -- thomasrutledgelaw@gmail.com -- Law Office of Thomas D Rutledge. Aquent, LLC, a Massachusetts limited liability company, Defendant, represented by Elizabeth Mary Levy, Seyfarth Shaw, Marjorie C. Soto, McDermott Will & Emery LLP, Olivia Jee Un Wada, Seyfarth Shaw LLP & Timothy M. Rusche, Seyfarth Shaw, LLP. ARS NATIONAL: Finnell Files FDCPA Suit in New York -------------------------------------------------- A class action lawsuit has been filed against ARS National Services, Inc. The case is styled as Debbie Finnell on behalf of herself and all others similarly situated, Plaintiff v. ARS National Services, Inc., Defendant, Case No. 1:18-cv-05638 (E.D. N.Y., Oct. 9, 2018). The Plaintiff filed the case under the Fair Debt Collection Practices Act. ARS National Services, Inc. offers accounts receivable management services. It caters to financial services organizations, banks, and credit card companies. The company is based in Escondido, California.[BN] The Plaintiff is represented by: Daniel C. Cohen, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West 12th Floor Brooklyn, NY 11201 Phone: (929) 575-4175 Fax: (929) 575-4195 Email: dan@cml.legal ARSTRAT LLC: Douglas Files Class Suit Under FDCPA ------------------------------------------------- Jamie J. Douglas has brought a class action lawsuit against ARStrat, LLC under the Fair Debt Collection Practices Act. The case is captioned Jamie J. Douglas individually and on behalf of all others similarly situated, Plaintiff v. ARStrat, LLC, Defendant, Case No. 2:18-cv-05646 (E.D. N.Y., Oct. 9, 2018). ARstrat is a collection and bad debt resolution provider for the healthcare industry.[BN] The Plaintiff is represented by: Craig B. Sanders, Esq. Sanders Law, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Phone: (516) 203-7600 Fax: (516) 281-7601 Email: csanders@sanderslawpllc.com BANK OF AMERICA: Boyd Suit Alleges Breach of Contract ----------------------------------------------------- Kevin G. Boyd, on behalf of himself and all others similarly situated v. Bank of America, N.A. and Does 1 through 10, Case No. 2:18-cv-01207 (W.D. Wash., August 16, 2018), is brought against the Defendants for breach of written contract and willful refusal to pay wages. This is a Washington class action for unlawful deductions and failure to pay for rest breaks and time worked on non-sales activities by mortgage brokers working for the Defendant. The Defendant paid the Plaintiff and class members based on a contractual sales commission, and unlawfully deducts money advanced for rest breaks and non-sales work, notes the complaint. Plaintiff seeks among other things, all wages and statutory remedies. The Plaintiff Kevin G. Boyd was a resident and citizen of Washington. The Plaintiff Boyd was employed by Defendant as a mortgage broker in the State of Washington. The Defendant Bank of America, N.A. is a bank that is authorized to conduct and is actually conducting business in the State of Washington, and designates its main office in North Carolina. [BN] The Plaintiff is represented by: Joshua H. Haffner, Esq. Graham G. Lambert, Esq. HAFFNER LAW PC 445 South Figueroa Street, Suite 2325 Los Angeles, CA 90071 Tel: (213) 514-5681 Fax: (213) 514-5682 E-mail: jhh@haffnerlawyers.com gl@haffnerlawyers.com BANK OF AMERICA: Sanchez Appeals Ruling in Farrell Suit to 9th Cir. ------------------------------------------------------------------- Objector Estafania Osorio Sanchez filed an appeal from a court ruling in the lawsuit styled Joanne Farrell, et al. v. Bank of America, N.A., Case No. 3:16-cv-00492-L-WVG, in the U.S. District Court for the Southern District of California, San Diego. As previously reported in the Class Action Reporter, the District Court granted preliminary approval of a class action settlement in the case. The Settlement Class consists of: All holders of BANA consumer checking accounts who, during the period between February 25, 2014 and December 30, 2017, were assessed at least one Extended Overdrawn Balance Charge that was not refunded. The appellate case is captioned as Joanne Farrell, et al. v. Bank of America, N.A., Case No. 18-56272, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by October 22, 2018; -- Transcript is due on November 20, 2018; -- Appellant Estafania Osorio Sanchez's opening brief is due on January 3, 2019; -- Appellees Larice Addamo, Bank of America, Ronald Anthony Dinkins and Joanne Farrell's answering brief is due on February 4, 2019; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Objector-Appellant ESTAFANIA OSORIO SANCHEZ is represented by: Michael D. Luppi, Esq. LAW OFFICE OF MICHAEL D. LUPPI 11366 Christy Avenue Sylmar, CA 91342 Telephone: (818) 897-3344 Facsimile: (323) 726-3106 E-mail: luppiacct@gmail.com Plaintiffs-Appellees JOANNE FARRELL, RONALD ANTHONY DINKINS and LARICE ADDAMO, On behalf of themselves and all others similarly situated, are represented by: Bryan Scott Gowdy, Esq. MILLS CREED & GOWDY, P.A. 865 May Street Jacksonville, FL 32204 Telephone: (904) 350-0075 E-mail: bgowdy@appellate-firm.com - and - Walter W. Noss, Esq. SCOTT & SCOTT ATTORNEYS AT LAW LLP 600 W. Broadway, Suite 3300 San Diego, CA 92101 Telephone: (619) 233-4565 E-mail: wnoss@scott-scott.com - and - Hassan Zavareei, Esq. TYCKO & ZAVAREEI LLP 1828 L Street NW, Suite 1000 Washington, DC 20036 Telephone: (202) 973-0900 E-mail: hzavareei@tzlegal.com Defendant-Appellee BANK OF AMERICA, N.A., is represented by: Brian D. Boyle, Esq. Jonathan Hacker, Esq. O'MELVENY & MYERS LLP 1625 Eye Street, N.W. Washington, DC 20006 Telephone: (202) 383-5327 E-mail: bboyle@omm.com jhacker@omm.com - and - Matthew W. Close, Esq. O'MELVENY & MYERS LLP 400 South Hope Street, 18th Floor Los Angeles, CA 90071 Telephone: (213) 430-6000 E-mail: mclose@omm.com - and - Danielle Nicole Oakley, Esq. O'MELVENY & MYERS LLP 610 Newport Center Drive Newport Beach, CA 92660 Telephone: (949) 823-7921 E-mail: doakley@omm.com BAYERISCHE MOTOREN: Court Narrows Claims in Kearney Suit -------------------------------------------------------- In the case, DAVE KEARNEY, JAMES BARR, and ROBIN SCHOENE, Plaintiffs, v. BAYERISCHE MOTOREN WERKE AKTIENGESELLSCHAFT, and BMW of NORTH AMERICA, LLC, Defendants, Civ. No. 17-13544 (WHW-CLW) (D. N.J.), Judge William H. Walls of the U.S. District Court for the District of New Jersey granted in part and denied in part the Defendant BMW North America ("BMW NA")'s motion to dismiss the Amended Complaint. The Plaintiffs initiated the action with a Dec. 22, 2017 class-action complaint. An Amended Class Action Complaint followed on March 13, 2008. The Amended Complaint alleges that BMW NA and Bayerische Motoren Werke Aktiengesellschaft ("BMW AG") violated common and statutory law by selling and leasing vehicles equipped with defective sunroofs and moonroofs that are prone to sudden, unexpected explosion or shattering. Specifically, it alleges that the Defendants wrongfully and intentionally concealed problems with the Defective Sunroofs, exposing the Plaintiffs and class members to a shower of glass and forcing them to incur out of pocket costs to repair or replace the Defective Sunroofs and other vehicle parts. The Amended Complaint is based in part on an October 2017 Consumer Reports investigation detailing complaints of exploding sunroofs across numerous brands, including BMW. Many those complaints relate to panoramic sunroofs, which have grown in popularity over the past decade; the Defendants began installing them in 2004. One month after the Consumer Reports investigation, two United States Senators requested information from BMW and others regarding sunroof safety. Affected vehicles include the following model years when equipped with a sunroof or moonroof: model year (MY) 2005-2018 BMW 3 series; MY 2005-2018 BMW 5 series; MY 2004-2018 BMW X5s; MY2005-2018 X3s; MY 2009-2018 BMW X1s; MY 2008-2018 MINI Clubmans; MY 2006-2018 MINI Coopers; MY 2011-2018 MINI Countrymans; MY 2009-2018 MINI Hardtops; and MY 2013-2018 MINI Pacemans. Panoramic sunroofs and moonroofs are not standard features in the Defendants' base models; they are featured as part of an upgrade. Yje Defendants have neither warned the Class Vehicle owners about the defect, nor agreed to cover replacement of the Defective Sunroofs under the Class Vehicles' applicable warranties. The Plaintiffs bring the action on behalf of themselves and members of the following proposed class and sub-classes: i. Nationwide Class: All persons or entities in the United States that purchased, leased, own, or owned a Class Vehicle' ii. California Sub-Class: All persons or entities that purchased or leased a Class Vehicle in the State of California and all persons or entities in the State of California that purchased, leased, own, or owned a Class Vehicle; iii. Song-Beverly Sub-Class: All persons or entities that purchased or leased a Class Vehicle in the State of California; iv. Texas Sub-Class: All persons or entities that purchased or leased a Class Vehicle in the State of Texas and all persons or entities in the State of Texas that purchased, leased, own, or owned a Class Vehicle; and v. Maryland Sub-Class: All persons or entities that purchased or leased a Class Vehicle in the State of Maryland and all persons or entities in the State of Maryland that purchased, leased, own, or owned a Class Vehicle. The Plaintiffs assert claims for: (i) fraud (Count 1); (ii) negligent misrepresentation (Count 2); (iii) breach of express warranty (Count 3); (iv) breach of implied warranty (Count 4); (v) violation of the Magnuson-Moss Warranty Act (MMWA) (Count 5); (vi) unjust enrichment (Count 6); (vii) violation of California's Consumers Legal Remedies Act (CLRA) (Count 7); (viii) violation of California's Unfair Competition Law (UCL) (Count 8); (ix) violation of California's Song-Beverly Consumer Warranty Act (Count 9); (x) violation of the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA) (Count 10); (xi) violation of Maryland's Consumer Protection Act (MCPA) (Count 11); and (xii) violation of New Jersey's Consumer Fraud Act (NJCFA) (Count 12). Defendant BMW NA now moves to dismiss the Amended Complaint under Federal Rules of Civil Procedure 8, 9, and 12(b)(6). Judge Walls granted in part and denied BMW NA's motion to dismiss. He granted the motion as to Counts 3, 6, 9, and 12 in their entirety, and as to Counts 2, 4, and 5 regarding Plaintiff Kearney only. The remainder is denied. The Judge, among other things, finds that (i) Plaintiff Kearney's express-warranty claim must be dismissed because he does not claim to have experienced any sunroof-related issues with his Class Vehicle; (ii) the Plaintiffs stipulate to the voluntary dismissal of unjust enrichment claim (Count 6); (iii) Kearney offers no indication that his Class Vehicle is not fit for the ordinary purposes for which such vehicle is used which requires the dismissal of Kearney's Song-Beverly Consumer Warranty Act claim; and (iv) the consumer-fraud statutes of the Plaintiffs' home states will apply to the allegations in Count 12, and because Counts 7, 8, 10, and 11 allege violations of those statutes, Count 12 is dismissed. The Plaintiffs are granted 45 days from the date of the Opinion to seek leave to amend the Amended Complaint if they wish. An appropriate order follows. A full-text copy of the Court's Aug. 29, 2018 Opinion is available at https://is.gd/Z1mIQH from Leagle.com. DAVE KEARNEY, On behalf of himself and all others similarly situated, Plaintiff, represented by JOSEPH H. MELTZER -- jmeltzer@ktmc.com -- KESSLER TOPAZ MELTZER & CHECK, LLP, PETER A. MUHIC -- pmuhic@ktmc.com -- KESSLER TOPAZ MELTZER & CHECK, LLP & JAMES E. CECCHI , CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C. JAMES BARR & ROBIN SCHOENE, Plaintiffs, represented by JAMES E. CECCHI -- JCecchi@carellabyrne.com -- CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C. BMW OF NORTH AMERICA, LLC, Defendant, represented by DOUGLAS HARRY AMSTER -- Douglas.Amster@lewisbrisbois.com -- LEWIS BRISBOIS BISGAARD & SMITH, LLC. BERKELEY, CA: Class Action Over Homeless Encampment Sweeps Okayed ----------------------------------------------------------------- Nicholas Iovino, writing for Courthouse News Service, reported that homeless people who lost tents, sleeping gear and other belongings in encampment sweeps can team up to sue Berkeley, California, on claims of civil rights violations, a federal judge ruled on Sept. 25. In granting class certification, U.S. District Judge William Alsup found approximately 1,000 homeless people in Berkeley can seek injunctive relief from the city. However, they cannot seek monetary damages because that would require evaluating claims of property loss on an individual basis. "It means that we can proceed on behalf of all homeless individuals in the city of Berkeley in order to defend their rights to keep their property, which may look like and be treated as trash by the city of Berkeley but often times represents everything that individual owns," said plaintiffs' attorney Emily Rose Johns -- emilyrose@siegelyee.com -- of Siegel Yee & Brunner in Oakland. Ms. Johns said her clients want the city to give more warning before clearing out encampments and provide more information on how people can reclaim seized belongings or get help to retrieving their lost property. "Ideally people wouldn't be deprived of their property in the first place," Ms. Johns said. "Many of these individuals don't have the resources to get their property back, such as cars or assistance from able-bodied folks." Berkeley says it respects the rights of homeless people, giving 72 hours' notice before any eviction deemed necessary for public health and safety and holding property seized during evictions for up to 90 days. But Ms. Johns said the city doesn't always provide 72 hours' notice. When the city warned about a sweep five days before it happened, it assumed people had adequate time to claim their property and deemed everything left there as garbage destined for the dumpster, Ms. Johns said. Several members of the group First They Came For The Homeless, which has organized multiple drug-free encampments in Berkeley, also describe having lost all their possessions in past raids. In asking Judge Alsup to deny class certification, the city contended any loss of property resulted from isolated incidents or employee misconduct, not an official city policy or custom. Judge Alsup refused to consider that argument at this still-early stage of litigation. "The city has a long-standing written policy regarding the collection, storage, and retrieval of property from homeless encampments," Judge Alsup wrote. "Commonality has therefore been demonstrated." But the judge declined to certify a separate class of campers associated with the group First They Came For The Homeless. That group set up camps in prominent areas of Berkeley to raise awareness about homelessness and affordable housing issues, and claims the city specifically targeted them in retaliation for their political activism. Judge Alsup found that because the group members voiced their opinions in different ways -- by protesting, making signs, writing op-eds, and speaking at government meetings -- the activities were too varied to be evaluated on a class-wide, rather than individual, basis. He also found the proposed class size would be less than 40, which courts generally find falls short of the threshold for class certification. Additionally, Judge Alsup refused to let two named plaintiffs -- Clark Sullivan and Adam Bredenberg -- represent the class of people who lost possessions. That's because Mr. Sullivan and Mr. Bredenberg could not conclusively say the city, rather than those helping them move before encampment sweeps, caused the loss or damage of their property. Judge Alsup appointed named plaintiff Benjamin Royer as the sole class representative for the allegedly unlawful seizure of property. Mr. Royer says he lost his tarp, sleeping bag and clothing during an early morning camp eviction in December 2016. According to Ms. Johns, the next step will be to work with Berkeley to craft a plan for notifying approximately 1,000 homeless people about the litigation, giving them an opportunity to opt out of the class action if they want to pursue their claims individually. From there, the plaintiffs will continue to seek discovery from Berkeley and possibly negotiate a settlement or ask Judge Alsup to render a summary judgment ruling based on the evidence and merits of the case, Ms.Johns said. The named plaintiffs and members of First They Came For The Homeless group will continue to pursue their claims of free speech retaliation against the city individually, Johns added. The homeless plaintiffs first sued the city of Berkeley and Bay Area Rapid Transit, or BART, in October 2017 to block a planned eviction from a South Berkeley encampment. Judge Alsup denied the group's request for an injunction at that time, but he allowed claims of free speech retaliation, unlawful seizure of property and due process violations to go forward this past January. BART was dropped as a defendant this past April. In November 2017, Berkeley told Judge Alsup that it lacked the resources necessary to house more than 268 of the city's approximately 1,000 homeless people, despite spending $3.9 million per year on homeless services. The city opened a $2.4 million navigation center in West Berkeley in June, which can house 45 individuals and provides on-site access to mental health counseling and social services. The city also told Judge Alsup last year that it was working to build an 89-unit affordable housing complex and create another 50-bed shelter with modular buildings. Berkeley spokesman Matthai Chakko said the city is working to improve the situation for its homeless residents. "Over the past year, the city has started the Pathways Program which created a structured environment for a broad range of unhoused people to receive housing, meals and other services while transitioning to permanent housing," Mr. Chakko said in a statement. "We've also created more year-round shelter, and we've begun work on a storage program." BERKELEY, CA: Court Certifies Class of Homeless People ------------------------------------------------------ In the class action lawsuit styled CLARK SULLIVAN, ADAM BREDENBERG, and BENJAMIN ROYER, the Plaintiffs, v. CITY OF BERKELEY, the Defendants, Case No. 3:17-cv-06051-WHA (N.D. Cal.), the Hon. Judge William Alsup entered an order on September 25, 2018: 1. certifying a class of: "all homeless individuals in the City of Berkeley who are now subject to the City's policies and practices of property collection, storage and disposal"; 2. appointing Benjamin Royer as class representative; and 3. appointing Plaintiffs' counsel from Siegel, Yee & Brunner as class counsel. The Court said, "By October 5 at noon, the parties shall jointly submit a proposal for class notification with a plan to distribute notice. In crafting their joint proposal, counsel shall please keep in mind the undersigned judge's guidelines for notice to class members in the "Notice and Order Regarding Factors to be Evaluated for Any Proposed Class Settlement".[CC] BOULEVARD LATIN: Uribe Seeks to Recover Minimum & Overtime Wages ---------------------------------------------------------------- JOSE RODRIGO VARGAS URIBE (A/K/A RODRIGO), individually and on behalf of others similarly situated v. BOULEVARD LATIN CUISINE LLC (D/B/A BOULEVARD RESTAURANT), DD7 LLC (D/B/A BOULEVARD RESTAURANT), SHOW LAIN CHENG, JACK CHENG, HOWARD CHENG, CONSUELO QUINTERO, SHAY DOE, TOMAS RODRIGUEZ, and LILIANA DOE, Case No. 1:18-cv-05434 (E.D.N.Y., September 27, 2018), is brought pursuant to the Fair Labor Standards Act and the New York Labor Law to recover alleged unpaid minimum and overtime wages, and applicable liquidated damages, interest, attorneys' fees and costs. Boulevard Latin Cuisine LLC (d/b/a Boulevard Restaurant) is a domestic corporation organized and existing under the laws of the state of New York. DD7 LLC (d/b/a Boulevard Restaurant) is a domestic corporation organized and existing under the laws of the state of New York. The Individual Defendants serve or served as owners, managers, principals, or agents of the Defendant Corporations. The Defendants owned, operated, or controlled a Colombian restaurant, located at 82-24 Northern Blvd., in Jackson Heights, New York, under the name "Boulevard Restaurant."[BN] The Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 E-mail: Michael@Faillacelaw.com BRIDGER LOGISTICS: Smith Suit Moved to Eastern District of Texas ---------------------------------------------------------------- KENNETH SMITH, AND ALL OTHERS SIMILARLY SITUATED UNDER 29 USC 216(B), the Plaintiff, v. BRIDGER LOGISTICS, LLC, a Texas limited liability company, the Respondent, Case No. 2:18-cv-00193, was transferred from the U.S. District Court for the Southern District of Texas, to the U.S. District Court for the Eastern District of Texas (Sherman) on Sept. 24, 2018. The Eastern District of Texas Court Clerk assigned Case No. 4:18-cv-00670-ALM-KPJ to the proceeding. The suit alleges Fair Labor Standards Act violation. The case is assigned to the Hon. Judge Amos L. Mazzant, III. The Defendant attempted to circumvent the Fair Labor Standards Act's protections by misclassifying Plaintiff and other similarly-situated workers as independent contractors in order to deny them overtime wages. Instead of paying overtime, Defendant has paid Plaintiffs a straight-pay rate and in a manner that has failed to compensate them for overtime work. This collective action seeks to recover the unpaid overtime wages and liquidated damages owed to these misclassified workers. Defendant engaged in this behavior willfully and without regard for the economic welfare of their employees and with full knowledge that Plaintiffs were conferring benefits upon Defendant that were improperly procured, the lawsuit says.[BN] Attorneys for Kenneth Smith and all others similarly situated under 29 USC 216(B): Jesse Hamilton Forester, Esq. FORESTER HAYNIE PLLC - DALLLAS 1701 N. Market St., No. 210 Dallas, TX 75202 Telephone: (214) 288 8519 Facsimile: (214) 346-5905 E-mail: jay@foresterhaynie.com Attorneys for Respondent: Emily A. Quillen, Esq. SCOPELITIS GARVIN ET AL 777 Main Street, Suite 3450 Fort Worth, TX 76012 Telephone: (817) 869 1700 Facsimile: (817) 878 9472 E-mail: equillen@scopelitis.com CARDINAL HEALTH: Continues to Defend Opioid-Related Class Suits --------------------------------------------------------------- Cardinal Health, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission for the fiscal year ended June 30, 2018, that the company continues to defend itself against Opioid-related class action lawsuits. Pharmaceutical wholesale distributors, including the company, have been named as defendants in over 1,000 lawsuits relating to the distribution of prescription opioid pain medications. These lawsuits have been filed in various federal, state, and other courts by a variety of plaintiffs, which are primarily counties, municipalities and political subdivisions from 48 states. Plaintiffs also include state attorneys general, unions and other health and welfare funds, hospital systems and other healthcare providers. Of these lawsuits, 32 are purported class actions. The lawsuits seek equitable relief and monetary damages based on a variety of legal theories including various common law claims, such as negligence, public nuisance, unjust enrichment as well as violations of controlled substance laws and various other statutes. Many also name pharmaceutical manufacturers, retail pharmacy chains and other entities as defendants. The vast majority of these lawsuits have been filed in U.S. federal court and have been transferred for consolidated pre-trial proceedings in a Multi-District Litigation proceeding in the United States District Court for the Northern District of Ohio. The court, among other things, ordered that three lawsuits proceed to trial in 2019 depending on the outcome of pre-trial motions. As a part of these proceedings, distributors have engaged in preliminary discussions with various parties, including state attorneys general, regarding possible resolution structures. In addition, 39 state attorneys general have formed a multi-state task force to investigate the manufacturing, distribution, dispensing and prescribing practices of opioid medications. Cardinal Health said , "We have received requests related to this multi-state investigation, as well as civil investigative demands, subpoenas or requests for information from these and other state attorneys general offices. We are cooperating with the offices conducting these investigations. We are vigorously defending ourselves in all of these opioid matters. Since all of the above-referenced lawsuits and investigations are in early stages, we are unable to predict their outcome or estimate a range of reasonably possible losses." Cardinal Health, Inc. operates as an integrated healthcare services and products company in the United States and internationally. It provides medical products and pharmaceuticals, and solutions that enhance supply chain efficiency for hospitals, healthcare systems, pharmacies, ambulatory surgery centers, clinical laboratories, and physician offices. Cardinal Health, Inc. was founded in 1979 and is headquartered in Dublin, Ohio. CAVALRY PORTFOLIO: Court OKs Summary Judgment in Gomez Suit ----------------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, issued a Memorandum Opinion and Order granting Defendant's Motion for Summary Judgment in the case captioned RICARDO A. GOMEZ and DEBORA GOMEZ, Plaintiffs, v. CAVALRY PORTFOLIO SERVICES, LLC and CAVALRY SPV I, LLC, Defendants. No. 14-cv-09420. (N.D. Ill.). This case concerns communications by Defendants Cavalry Portfolio Services, LLC (CPS) and Cavalry SPV I, LLC (Cavalry SPV) to Plaintiffs Ricardo Gomez and Debora Gomez regarding their defaulted credit card debt. Plaintiffs claim that Defendants violated the Fair Debt Collection Practices Act (FDCPA), by misrepresenting the amount of Plaintiffs' debt. Summary judgment is appropriate if the admissible evidence considered as a whole shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law, even after all reasonable inferences are drawn in the nonmovant's favor. Waiver The Plaintiffs' FDCPA claim stems from BOA's alleged waiver of its right to post-charge-off interest prior to selling the account to the Defendants. The Plaintiffs argue that BOA waived all post-charge-off interest on their account, and consequently the Defendants, as assignees, did not have the right to charge and collect such interest. Therefore, when the Defendants sent letters to the Plaintiffs that included the post-charge-off, pre-sale interest as part of the debt owed, the Defendants were misrepresenting the amount the Plaintiffs' owed on their account. The Plaintiffs argue that BOA's actions following the charge off of the Plaintiffs' account clearly demonstrate waiver. The Plaintiffs note that BOA's decision not to charge interest was no mere accident or oversight, but instead, as a BOA representative testified, part of a broader policy to stop tracking and computing post-charge-off interest that BOA implemented in 2007. The BOA representative also testified, however, that their cardholder agreements typically state that BOA's failure to exercise any of its rights under the agreement does not waive those rights in the future. The Defendants argue that based on this testimony, BOA clearly did not intend to give up the right to charge interest simply because it chose not to exercise the right to do so. The Court does not find this argument persuasive. BOA's implied waiver of the right to charge interest on the Plaintiffs' account retroactively is further evidenced by the fact that BOA did not send periodic account statements to Plaintiffs. Federal regulations require banks to send periodic statements on all accounts, including defaulted accounts, for any period during which interest or fees are charged on the account. BOA chose to stop sending financial statements after accounts were charged off for financial reasons, namely, it did not make sense to expend resources on periodic statements for an account that was already written off. This business choice reflects a conscious decision to forego interest rather than continue to pay for periodic statements. Defendants argue that the cessation of monthly statements has no bearing on whether a creditor has waived its right to seek interest. But the Illinois cases to which Defendants point in support of their argument are inapposite. Given the evidence presented, Plaintiffs have demonstrated that there is no genuine issue of material fact as to BOA's waiver of its right to charge and collect post-charge-off interest. As the assignee, Defendants only acquired the rights that BOA had as of the date of assignment. Since BOA waived its right to post-charge-off, pre-sale interest, the Defendants did not acquire the right to this interest and could not seek it from the Plaintiffs. Cavalry SPV's Status as a Debt Collector Even if Defendants improperly sought post-charge-off, pre-sale interest, the FDCPA only regulates such behavior if Defendants are debt collectors. The FDCPA defines a debt collector as any person who "uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Here, Cavalry SPV argues that it is a purchaser of non-performing consumer accounts, not a debt collector, and therefore not covered by the FDCPA. According to Cavalry SPV, CPS is the entity that actually collects debts. Here, Cavalry SPV purchased Plaintiffs' debt two years after the account was charged off, in other words, Cavalry SPV acquired the debt long after it went into default. Because Cavalry SPV is seeking to collect on a defaulted debt, it is a debt collector under the FDCPA. Statute of Limitations Finally, Defendants argue that even if they acted as debt collectors and violated the FDCPA, Plaintiffs' claim still fails because they did not file this lawsuit within the statute of limitations period. A plaintiff must bring an FDCPA claim within one year from the date on which the violation occurs. Here, the initial letters notified Plaintiffs that Defendants were attempting to collect the post-charge-off, pre-purchase interest, thereby providing Plaintiffs with all the information they needed to file a claim. Indeed, those initial communications lie at the core of this lawsuit since they are the only communications provided to the Court that evidence false, deceptive, or misleading behavior. Because Plaintiffs' claims were ripe at the time they received the initial collection letters, there is no continuing violation. Without considering the initial collection letters, however, the March 21, 2014 letter is devoid of false, deceptive, or misleading information. Therefore, the March 21, 2014 letter cannot form the basis of a FDCPA claim. And consequently, Plaintiffs have no improper collection letters that fall within the statute of limitations period. Because Plaintiffs have not shown the existence of a claim that falls within the statute of limitations period, Defendants' summary judgment motion is granted and Plaintiffs' summary judgment motion is denied. Accordingly, the Plaintiffs' motion for summary judgment is denied and the Defendants' motion for summary judgment is granted. A full-text copy of the District Court's September 24, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/ydd8yojt from Leagle.com. Ricardo A. Gomez & Debora Gomez, on behalf of plaintiffs and a class, Plaintiffs, represented by Daniel A. Edelman, Edelman, Combs, Latturner & Goodwin LLC, Cassandra P. Miller, Edelman, Combs, Latturner & Goodwin LLC, Cathleen M. Combs, Edelman, Combs, Latturner & Goodwin LLC, Emiliya Gumin Farbstein, Edelman, Combs, Latturner & Goodwin, LLC, Francis Richard Greene, Stern Thomasson LLP, James O. Latturner, Edelman, Combs, Latturner & Goodwin LLC & Paul Michael Waldera, Edelman, Combs, Latturner & Goodwin LLC. Cavalry Portfolio Services, LLC & Cavalry SPV I, LLC, Defendants, represented by Anna-Katrina S. Christakis, Pilgrim Christakis LLP & Matthew O'Hair Stromquist, Pilgrim Christakis LLP. CHEGG INC: Faces Shah Securities Class Suit in N.D. California -------------------------------------------------------------- BHUPENDRA V. SHAH, Individually and On Behalf of All Others Similarly Situated v. CHEGG, INC., and DANIEL ROSENSWEIG, Case No. 3:18-cv-05956 (N.D. Cal., September 27, 2018), seeks to pursue remedies under the Securities Exchange Act of 1934 over inflated prices of the Company's securities. On September 25, 2018, the Company reported that an unauthorized party had gained access on or around April 29, 2018, to approximately 40 million users' data, including username, e-mail address, shipping address, and hashed Chegg password. On this news, the Company's share price fell $3.91, or approximately 12%, to close at $28.42 per share on September 26, 2018, on unusually heavy trading volume. According to the complaint, throughout the Class Period, the Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, the Defendants failed to disclose to investors: (1) that the Company lacked adequate security measures to protect users' data; (2) that the Company lacked the internal controls and procedures to detect unauthorized access to its systems and to its data; (3) that as a result, the Company would incur additional expenses and litigation risks; and (4) that, as a result of the foregoing, the Defendants' positive statements about the Company's business. Chegg is incorporated under the laws of Delaware with its principal executive offices located in Santa Clara, California. Daniel Rosensweig was the Chief Executive Officer of the Company at all relevant times. Chegg is a direct-to-student learning platform that provides educational materials and services to high school and college students.[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 E-mail: lglancy@glancylaw.com rprongay@glancylaw.com lportnoy@glancylaw.com clinehan@glancylaw.com CITIGROUP GLOBAL: Faces Saggio Class Suit in N.Y. Civil Sup. Ct. ---------------------------------------------------------------- A class action lawsuit has been filed against Citigroup Global Markets, Inc. The case is styled as Greg Saggio on behalf of himself and all others similarly situated, Plaintiff v. Citigroup Global Markets, Inc., Defendant, 610335/2018 (N.Y. Sup. Ct., Nassau Cty. Oct. 4, 2018). Citigroup Global Markets Inc. provides investment banking and financial advisory services. The firm offers equity and debt financing, asset transaction, private equity, underwriting, institutional sales and trading, and mergers and acquisitions advisory services. Citigroup Global Markets Inc. was formerly known as Salomon Smith Barney Inc. and changed its name in April 2003. The firm is based in New York, New York. Citigroup Global Markets Inc. operates as a subsidiary of Citigroup Financial Products Inc.[BN] The Plaintiff is represented by: Westerman Ball Ederer Miller Zucker & Sharfstein, LLP 1201 RXR Plaza Uniondale, NY 11556 Phone: (516) 622-9200 CREST HILL: Luster Suit Seeks to Recover Overtime Pay Under FLSA ---------------------------------------------------------------- KOREY LUSTER, on behalf of himself and those similarly situated v. MICHAEL MARANO, individually, CREST HILL CAPITAL, LLC, and MANTIS FUNDING, LLC, Case No. 9:18-cv-81311-DMM (S.D. Fla., September 26, 2018), seeks to recover alleged unpaid overtime compensation, declaratory relief, and other relief under the Fair Labor Standards Act. Crest Hill Capital, LLC, is a New York Corporation that operates and conducts business in Palm Beach County, Florida. Mantis Funding, LLC, is a Delaware Corporation that operates and conducts business in Palm Beach County. Michael Marano is an owner of the Corporate Defendants. The Defendants provide business financing and loans.[BN] The Plaintiff is represented by: Gary A. Isaacs, Esq. COHEN NORRIS WOLMER RAY TELEPMAN COHEN 712 U.S. Highway One, Suite 400 North Palm Beach, FL 33401 Telephone: (561) 844-3600 Facsimile: (561) 842-4104 E-mail: gai@fcohenlaw.com DOLCE & GABBANA: Diaz Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Dolce & Gabbana USA Inc. The case is styled as Edwin Diaz on behalf of himself and all others similarly situated, Plaintiff v. Dolce & Gabbana USA Inc., Defendant, Case No. 1:18-cv-09246 (S.D. N.Y., Oct. 9, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Dolce & Gabbana USA Inc. designs, produces, and markets clothing, leather goods, footwear, and accessories. It also produces and distributes fragrances, eyewear, timepieces, and jewels. The company was incorporated in 1996 and is based in New York, New York. Dolce & Gabbana USA Inc. operates as a subsidiary of Dolce & Gabbana S.r.l.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Phone: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal DUN & BRADSTREET: Witmer Balks at Merger Deal with CC Capital ------------------------------------------------------------- The case, COLLEEN WITMER, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, v. THE DUN & BRADSTREET CORPORATION, JAMES N. FERNANDEZ, CINDY CHRISTY, L. GORDON CROVITZ, PAUL R. GARCIA, ANASTASSIA LAUTERBACH, RANDALL D. MOTT, and JUDITH A. REINSDORF, the Defendants, Case No. 1:18-cv-01487-UNA (D. Del. Sept. 25, 2018), stems from a proposed transaction announced on August 8, 2018, pursuant to which The Dun & Bradstreet Corporation will be acquired by an investor group led by CC Capital, Cannae Holdings, and funds affiliated with Thomas H. Lee Partners, L.P. The Plaintiff alleges that the Defendants violated Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 in connection with a proxy statement related to the deal. On August 8, 2018, Dun & Bradstreet's Board of Directors caused the Company to enter into an agreement and plan of merger with Star Parent, L.P. and its wholly-owned subsidiary, Star Merger Sub, Inc. Pursuant to the terms of the Merger Agreement, if the Proposed Transaction is approved by Dun & Bradstreet's shareholders and completed, Dun & Bradstreet's stockholders will receive $145.00 in cash for each share of the Dun & Bradstreet common stock they hold. According to the complaint, on September 12, 2018, the Defendants filed a preliminary proxy statement with the United States Securities and Exchange Commission in connection with the Proposed Transaction. The Proxy Statement omits material information with respect to the Proposed Transaction, which renders the Proxy Statement false and misleading. Since 1841, companies of every size rely on Dun & Bradstreet to help them manage risk and reveal opportunity. The Defendants filed the Proxy Statement with the SEC in connection with the Proposed Transaction. The Proxy Statement omits material information with respect to the Proposed Transaction. The Proxy Statement omits material information regarding the Company's financial projections as well as the analyses performed by the Company's financial advisor in connection with the Proposed Transaction, J.P. Morgan Securities LLC. With respect to the Company's financial projections, the Proxy Statement fails to disclose, for all cases of projections: (i) all line items used to calculate Core EBITDA; (ii) all line items used to calculate unlevered free cash flow; and (iii) a reconciliation of all non-GAAP to GAAP metrics. With respect to J.P. Morgan's Discounted Cash Flow Analysis, the lawsuit contends that the Proxy Statement fails to disclose: (i) all line items used to calculate unlevered free cash flow; (ii) the range of terminal values of the Company; (iii) the inputs and assumptions underlying the range of discount rates ranging from 8.25% to 8.75% and the perpetual revenue growth rate ranging from 1.50% to 2.00%; (iv) the Company's net debt and minority interest; and (v) estimated after-tax pension underfunding. The disclosure of projected financial information is material because it provides stockholders with a basis to project the future financial performance of a company, and allows stockholders to better understand the financial analyses performed by the company's financial advisor in support of its fairness opinion. Moreover, when a banker's endorsement of the fairness of a transaction is touted to shareholders, the valuation methods used to arrive at that opinion as well as the key inputs and range of ultimate values generated by those analyses must also be fairly The omission of the above-referenced material information renders the Proxy Statement false and misleading, including, inter alia, the following sections of the Proxy Statement: (i) Background of the Merger; (ii) Recommendation of the Board and Reasons for the Merger; (iii) Opinion of D&B's Financial Advisor; and (iv) Certain Unaudited Prospective Financial Information. The omitted information, if disclosed, would significantly alter the total mix of information available to the Company's stockholders, the lawsuit says. Dun & Bradstreet provides commercial data and analytics. The Company gleans insight from data to enable its customers to connect with prospects, suppliers, clients, and partner.[BN] Attorneys for Plaintiff Richard A. Maniskas, Esq. RM LAW, P.C. 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Telephone: (484) 324-6800 Facsimile: (484) 631-1305 E-mail: rm@maniskas.com - and - Brian D. Long, Esq. Gina M. Serra, Esq. RIGRODSKY & LONG, P.A. 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Telephone: (302) 295-5310 Facsimile: (302) 654-7530 E-mail: bdl@rl-legal.com gms@rl-legal.com ESPARZA ENTERPRISES: Faces Mayen Class Action in Cal. Super. Ct. ---------------------------------------------------------------- A class action lawsuit has been filed against Esparza Enterprises. The case is styled as Julio Mayen, an individual, on his own behalf and on behalf of all others similarly situated, Plaintiff v. Esparza Enterprises, Inc. a California corporation, Defendant, Case No. BCV-18-102526 (Cal. Super. Ct., Kern Cty., Oct. 4, 2018). Esparza Enterprises, Inc. provides staffing services. The Company offers employment services in agricultural labor, warehouse, industrial, and dairy sectors. Esparza Enterprises conducts its business in the State of California.[BN] The Plaintiff is represented by: Kevin A. Lipeles, Esq. Lipeles Law Group, APC 880 Apollo St Ste 336 El Segundo, CA 90245-4783 Phone: (310) 322-2211 Fax: (310) 322-2252 Email: kevin@kallaw.com F.H. CANN: Lazarao Files FDCPA Suit in New Jersey ------------------------------------------------- A class action lawsuit has been filed against F.H. Cann & Associates, Inc. The case is styled as Cintron Lazarao individually and on behalf of all others similarly situated, Plaintiff v. F.H. Cann & Associates, Inc., Defendant, Case No. 2:18-cv-14764 (D. N.J., Oct. 9, 2018). The Plaintiff filed the case under the Fair Debt Collection Practices Act. F.H. Cann and Associates Inc., a receivables management company, provides account receivables and debt collection services. The company was founded in 1999 and is based in North Andover, Massachusetts.[BN] The Plaintiff appears pro se. FIRST OHIO: Judgment in Mortgage Broker Act Suit Affirmed --------------------------------------------------------- The Court of Appeals of Ohio, Ninth District, Lorain County, issued a Decision and Entry affirming the Trial Court’s judgment rendering Final and Appealable the Judgment Entry in the case captioned LYNN A. STRICKLER, et al., Appellees, v. FIRST OHIO BANC & LENDING, INC., et al., Appellants. C.A. No. 17CA011117. (Ohio App.) Defendant-Appellant, First Ohio Banc & Lending, Inc. (First Ohio), appeals all trial court decisions rendered final and appealable by virtue of the judgment entry of the Lorain County Court of Common Pleas. Plaintiff-Appellees, Lynn Strickler and Keith Krese commenced this action. The lengthy and complex procedural history involves individual and class action claims against First Ohio and other named Defendants. Relevant to this appeal is the class action claim alleging First Ohio's violation of the Ohio Mortgage Broker Act and the judgment entered thereon. First Ohio moved the trial court to decertify the class. First Ohio argued that decertification was necessary in light of the Supreme Court of Ohio's decisions in Stammco, and a subsequently decided case: Felix v. Ganley Chevrolet, Inc., 145 Ohio St.3d 329, 2015-Ohio-3430. The trial court determined that decertification was unnecessary and issued a journal entry denying the motion. First Ohio again appealed, contending the trial court erred when it denied its motion to decertify. The parties filed cross-motions for summary judgment and the trial court granted summary judgment in favor of the class, judgment entry. First Ohio timely filed this current appeal, raising two assignments of error for Court’s review. Assignment of Error I The trial court erred in certifying the class and/or in failing to decertify the class based on the plaintiffs' failure to establish the existence of an injury caused by a violation as mandated under R.C. 1322.11. In the first assignment of error, First Ohio seeks to revisit the issue of class certification. In its merit brief, First Ohio vaguely framed the argument assigning error, and omitted any mention of the appropriate standard of review. First Ohio does not clearly identify the assigned errors in the record, but seems to assume that the trial court's order certifying the class, and our decision in Strickler v. First Ohio Banc & Lending, Inc., 9th Dist. Lorain No. 15CA010893, 2016-Ohio-5876 (Strickler III).affirming certification, are subject to reconsideration in this appeal. Certification of the Class The Court affirmed the trial court's decision to grant the motion to certify the class action in Strickler II. When the trial court renders a decision on a particular issue, and that decision is both final and appealable, then following such appeal or waiver of appeal, the aggrieved party is precluded from resubmitting this same issue to the trial court in an effort to obtain a different result. First Ohio has not specifically addressed the issue or argued any foundation for disregarding the law of the case doctrine to reexamine our prior decision in Strickler II. The Court concludes that, because this Court has already reviewed and affirmed the trial court's initial certification of the class, neither the trial court's initial decision nor our affirmance thereof are the proper subject of review in this appeal. However, subsequent to our affirmance of the class certification, First Ohio prompted reconsideration of the issue in the trial court when it filed its motion to decertify, which the trial court ultimately rejected. Therefore, the Court’s review is limited to a determination of whether the trial court erred in declining to decertify the class. Motion to Decertify First Ohio's arguments in support of its motion to decertify the class were premised upon First Ohio's contention that Strickler and Krese had not established the existence of any actual injury' necessary to participate in a class action under R.C. 1322.11. Despite this argument having been previously rejected by the trial court upon certifying the class and by this Court affirming certification, First Ohio argued that the new controlling case law in the Stammco and Felix decisions supported its position that the loss of information under R.C. 1322.062 is not sufficient injury to participate in the statutory remedy of R.C. 1322.11. See Stammco, 136 Ohio St.3d 231 (decided July 16, 2013), and Felix, 145 Ohio St.3d 329 (decided August 27, 2015). The Stammco decision did not alter the existing law or impose any new obligation regarding the trial court's review of the merits of the underlying claim to certify a class rather it clarified that trial courts are not prohibited from undertaking such a review to the extent necessary to make a Civ.R. 23 determination. In the case at bar, there was no discernable issue involving the trial court exceeding the permissible bounds of inquiry to consider the merits of the claim in deciding the issue of certification. Therefore, the Court concludes that First Ohio's reliance on Stammco as an intervening decision is misplaced, and the trial court did not err in declining to decertify the Class in light of its holding. Because the Court have determined that the law of the case doctrine applied without exception, the Court further concludes that the trial court did not err in denying the motion to decertify. First Ohio's first assignment of error is overruled. Assignment of Error II In this assignment of error, First Ohio cites a non-existent subsection of former R.C. 1322.11 to contend that the trial court erred by finding the printed fee calculation statement in a disclosure form deficient. First Ohio asserts that the deficiency identified by the trial court in support of class certification was premised on the printed fee calculation' statement on First Ohio forms. First Ohio mentions forms F0000349, F0000351, and F0000353 but does not clarify the relevance of these three particular forms, and fails to indicate where such forms may be located in the record. Presumably in reference to those forms, First Ohio states: this language came verbatim from that as contained on the state exemplar form. Unfortunately, First Ohio fails to identify the actual language at issue in the forms, and further neglects to specify what language from the state exemplar form it seeks to compare to the language in its own forms. First Ohio has failed to comply with App.R. 16(A)(6), which requires that First Ohio's brief include a statement of facts relevant to the assignments of error presented for review, with appropriate references to the record. Further, First Ohio's woefully underdeveloped argument does not accurately relate to the assigned error and also fails to comport with App.R. 16(A)(7). Pursuant to that rule, an appellant's brief must include an argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies. First Ohio bears the burden of affirmatively demonstrating the assigned error through a properly supported argument with citations to legal authority and facts in the record, and it is not the function of this court to construct an argument on First Ohio's behalf. The Court concludes that First Ohio has not met this burden; therefore, the Court is unable to determine whether the trial court committed any reversible error. Pursuant to App.R. 12(A)(2) and App.R. 16(A), the Court disregards this assignment of error based on the deficiencies outlined above and the failure to comply with the appellate rules. First Ohio's second assignment of error is overruled. Judgment affirmed. A full-text copy of the Court of Appeals' September 24, 2018 Decision and Entry is available at https://tinyurl.com/ybgalew3 from Leagle.com. CLIFFORD C. MASCH -- cmasch@reminger.com -- BRIAN D. SULLIVAN -- bsullivan@foxrothschild.com -- and ANTHONY CATANZARITE -- acatanzarite@reminger.com -- Attorneys at Law, for Appellant. THOMAS R. THEADO, Attorney at Law, for Appellee. JACK MALICKI, Attorney at Law, for Appellee. FIRST STANDARD: Abante Rooter Suit Alleges TCPA Violation --------------------------------------------------------- Abante Rooter and Plumbing, Inc., individually and on behalf of all others similarly situated v. First Standard Financial Company LLC dba Standard Financing, and Does 1 through 10, Case No. 3:18-cv-05003 (N.D. Calif., August 16, 2018), is brought against the Defendants for violation of the Telephone Consumer Protection Act. The Plaintiff is a corporation in the State of California, whose principal place of business in the county of Alameda. The Defendant is a financial services company.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. Tom E. Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Tel: (877) 206-4741 Fax: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com twheeler@toddflaw.com FLAGSTAR BANCORP: Richardson Sues Over Unpaid Minimum & OT Wages ---------------------------------------------------------------- Mark F. Richardson, Individually and on behalf of those similarly situated v. Flagstar Bancorp, Inc., and, Flagstar Bank FSB, Inc., Case No. 2:18-cv-01128-JLG-CMV (S.D. Ohio, September 27, 2018), is brought for alleged unpaid minimum wages and unpaid overtime wages under the Fair Labor Standards Act, the Ohio Constitution and the Ohio Minimum Fair Wage Standards Act. Flagstar Bancorp is a Michigan, for-profit, publicly traded corporation with its principal place of business located in Troy, Michigan. FSB is a subsidiary of Flagstar Bancorp. also headquartered in Troy. Having assets of $17.7 billion, the Defendants offer full-service banking and lending in 99 branches in Michigan and eight branches in California. [BN] The Plaintiff is represented by: Robert E. DeRose, Esq. Jessica R. Doogan, Esq. BARKAN MEIZLISH HANDELMAN GOODIN DEROSE WENTZ, LLP 250 E. Broad St., 10th Floor Columbus, OH 43215 Telephone: (614) 221-4221 Facsimile: (614) 744-2300 E-mail: bderose@barkanmeizlish.com jdoogan@barkanmeizlish.com FOOTHILL TRANSIT: Gerlach Asserts Discrimination in Bus Services ---------------------------------------------------------------- RUTH GERLACH AND CAROL GERLACH, on behalf of themselves and all others similarly situated v. FOOTHILL TRANSIT, and DOES 1-10, inclusive, Case No. 2:18-cv-08321 (C.D. Cal., September 26, 2018), alleges that the Defendants discriminated against the Plaintiffs by failing to ensure that individuals with mobility disabilities have non-discriminatory and safe access to bus services. Foothill Transit is a public entity governed by a Joint Powers Authority of 22-member cities and the County of Los Angeles. Foothill Transit operates a public bus network throughout Los Angeles County. The true names and capacities of the Doe Defendants are currently unknown to the Plaintiffs.[BN] The Plaintiffs are represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. Thomas E. Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard Street, Suite 780 Woodland Hills, CA 91367 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com twheeler@toddflaw.com FREEDOM MORTGAGE: Chittick Suit Alleges RESPA Violation ------------------------------------------------------- Stacy P. Chittick, individually and on behalf of all others similarly situated v. Freedom Mortgage Corporation and NYCB Mortgage Company, LLC, Case No. 1:18-cv-01034 (E.D. Va., August 16, 2018), is brought against the Defendants for violation of the Real Estate Settlement Procedure Act of 1974. The Plaintiff, Stacy Chittick, is and was at all material times, a resident of the Commonwealth of Virginia, residing at 108 Lake Cook Dr., Alexandria VA 22304. The Defendant Freedom Mortgage Corporation was the owner and servicer of the mortgage and loan secured by the real property located at 108 Lake Cook Dr., Alexandria VA 22304, after October 31, 2017 and during the time giving rise to this action. Freedom Mortgage has a principal place of business in Mt. Laurel, New Jersey and is incorporated in New Jersey. The Defendant NYCB Mortgage Company, LLC was the mortgage lender and servicer of the loan secured by the aforementioned real property immediately prior to Freedom. [BN] The Plaintiff is represented by: John J. Beins, Esq. BEINS GOLDBERG LLP 2 Wisconsin Circle, Suite 700 Chevy Chase, MD 20815 Tel: (240) 235-5040 E-mail: jbeins@beinsgoldberg.com FUSHIMI GROUP: Diaz Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against Fushimi Group LLC. The case is styled as Edwin Diaz on behalf of himself and all others similarly situated, Plaintiff v. Fushimi Group LLC, Defendant, Case No. 1:18-cv-09251 (S.D. N.Y., Oct. 9, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Fushimi Group LLC is a restaurant that serves Japanese Cuisine. It is located at 9316 4th Ave, Brooklyn, NY.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Phone: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal GLOBAL TEL LINK: Kron Appeals Ruling in Lee Suit to 9th Circuit --------------------------------------------------------------- Objector Steve Kron filed an appeal from a court ruling in the lawsuit titled Alice Lee, et al. v. Global TelLink Corporation, Case No. 2:15-cv-02495-ODW-PLA, in the U.S. District Court for the Central District of California, Los Angeles. As previously reported in the Class Action Reporter, the District Court last year provisionally granted the motion for class certification and preliminarily approved class settlement in the case. GTL will pay $8,800,000 into a common settlement fund. Class members, who submit a claim will receive a pro-rata share of the balance of that amount -- after payment of notice and administration costs, any Court-ordered award of attorneys' fees and expenses, and any Court-ordered incentive award for the Plaintiff. Because the amount that class members will receive depends on the number of claims submitted, the parties cannot estimate with specificity the amount that members who submit claims are likely to receive. However, they conservatively estimate that if the percentage of potential class members who submit claims is in keeping with typical TCPA cases (roughly 5%), then each class member will receive about $60. In addition to the payment to class members who submit claims, GTL will change its practices to include in all Notification Calls an interactive-voice and/or keyactivated opt-out mechanism that the called party may use to opt-out of all future Notification Calls. The called party will also be provided with a toll-free number that can be used to opt-out. Finally, opting out is effective to block all future calls, regardless of the number of times an inmate attempts to call that number. The appellate case is captioned as Alice Lee, et al. v. Global TelLink Corporation, Case No. 18-56275, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by October 19, 2018; -- Transcript is due on November 19, 2018; -- Appellant Steve Kron's opening brief is due on December 28, 2018; -- Appellees Global TelLink Corporation, Alice Lee and David W. Martin's answering brief is due on January 28, 2019; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Objector-Appellant STEVE KRON is represented by: Caroline V. Tucker, Esq. TUCKER POLLARD 2102 Business Center Drive Irvine, CA 92612 Telephone: (949) 253-5710 E-mail: ctucker@tuckerpollard.com Plaintiffs-Appellees ALICE LEE and DAVID W. MARTIN, on behalf of themselves and all others similarly situated, are represented by: Patric Lester, Esq. PATRIC LESTER & ASSOCIATES 5694 Mission Center Road, Suite 358 San Diego, CA 92108 Telephone: (619) 665-3888 Facsimile: (314) 241-5777 E-mail: pl@lesterlaw.com - and - Candice Renka, Esq. MARQUIS AURBACH COFFING 10001 Park Run Drive Las Vegas, NV 89145 Telephone: (702) 382-0711 E-mail: crenka@maclaw.com - and - Brian Arnold Vogel, Esq. LAW OFFICES OF BRIAN A VOGEL PC 770 County Square Drive Ventura, CA 93003 Telephone: (805) 654-0400 E-mail: brian@bvogel.com Defendant-Appellee GLOBAL TELLINK CORPORATION is represented by: Tyler Ryan Andrews, Esq. GREENBERG TRAURIG, LLP 3161 Michelson Drive, Suite 1000 Irvine, CA 92612 Telephone: (949) 732-6500 E-mail: andrewst@gtlaw.com - and - Matthew Ryan Gershman, Esq. Robert James Herrington, Esq. GREENBERG TRAURIG LLP 1840 Century Park East, Suite 1900 Los Angeles, CA 90067 Telephone: (310) 586-7776 E-mail: gershmanm@gtlaw.com herringtonr@gtlaw.com HEWITT CAPITAL: Perry Files FDCPA Suit in S.D. Indiana ------------------------------------------------------ A class action lawsuit has been filed against Hewitt Capital LLC under the Fair Debt Collection Practices Act. The case is styled as Kayla Perry individually and on behalf of all others similarly situated, Plaintiff v. Hewitt Capital LLC, Defendant, Case No. 1:18-cv-03144-JMS-TAB (S.D. Ind., Oct. 9, 2018). Hewitt Capital LLC is a financial company providing advanced recovery solutions in the distressed receivables market. The company is focused on all aspects of debt management, from accounts receivable to contingency collections, debt recovery and call center consulting.[BN] The Plaintiff is represented by: Craig B. Sanders, Esq. Sanders Law, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Phone: (516) 203-7600 Fax: (516) 281-7601 Email: csanders@sanderslawpllc.com ILKE INC: Does Not Pay Minimum and OT Wages, Sanchez Suit Says -------------------------------------------------------------- JOSE REYES FUENTES SANCHEZ, individually and on behalf of others similarly situated v. ILKE INC. (D/B/A CARNIVAL FRUIT & VEGETABLES), ILKER KARAKAYA, RICHI DOE, VURAL DOE, and ERKAN DOE, Case No. 1:18-cv-05437 (E.D.N.Y., September 27, 2018), accuses the Defendants of requiring the Plaintiff and other employees to work in excess of 40 hours per week without providing the minimum wage and overtime compensation required by the Fair Labor Standards Act and New York Labor Law. ILKE Inc. is a domestic corporation organized and existing under the laws of the state of New York. The Individual Defendants serve or served as owners, managers, principals, or agents of the Defendant Corporation. The Defendants owned, operated, or controlled a produce store, located at 130 Church Ave, in Brooklyn, New York, under the name "Carnival Fruit & Vegetables."[BN] The Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 E-mail: Michael@Faillacelaw.com INVUITY INC: Hurtado Seeks to Enjoin Tender Offer by Stryker ------------------------------------------------------------ HERCULES HURTADO, Individually and on Behalf of All Others Similarly Situated v. INVUITY, INC., GREGORY T. LUCIER, SCOTT FLORA, WILLIAM W. BURKE, RANDALL A. LIPPS, ERIC ROBERTS, and DANIEL WOLTERMAN, Case No. 3:18-cv-05920-VC (N.D. Cal., September 26, 2018), seeks to enjoin the Defendants from closing the tender offer by Stryker Corporation to acquire all of the issued and outstanding shares of Invuity, unless and until certain material information is disclosed to Invuity shareholders. On September 10, 2018, Invuity entered into a definitive agreement and plan of merger, whereby shareholders of Invuity common stock will receive $7.40 in exchange for each share of Invuity stock they own. Invuity is a Delaware corporation and maintains its principal executive office in San Francisco, California. The Individual Defendants are directors and officers of the Company. Invuity is a medical technology company focused on developing and marketing advanced surgical devices to improve the surgeon's ability to perform minimal access surgery through smaller and hidden incisions. Stryker, incorporated on February 20, 1946, is a medical technology company. Stryker offers a range of medical technologies, including orthopedic, medical and surgical, and neurotechnology and spine products.[BN] The Plaintiff is represented by: David E. Bower, Esq. MONTEVERDE & ASSOCIATES PC 600 Corporate Pointe, Suite 1170 Culver City, CA 90230 Telephone: (213) 446-6652 Facsimile: (212) 202-7880 E-mail: dbower@monteverdelaw.com - 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 JETS STADIUM: 3rd Circuit Appeal Filed in Gengo Class Suit ---------------------------------------------------------- Plaintiff James T. Gengo filed an appeal from a court ruling in the lawsuit styled James Gengo v. Jets Stadium Development, LLC, et al., Case No. 2-18-cv-08012, in the U.S. District Court for the District of New Jersey. As previously reported in the Class Action Reporter, the lawsuit was removed from the Superior Court of the State of New Jersey, Bergen County (Case No. BER-L-1955-18) to the District Court. The Defendants in the case are Jets Stadium Development, LLC, and New York Jets, LLC. Jets Stadium operates the development, financing, and marketing of professional football team New York Jets. New York Jets, LLC, owns a professional football team that participates in the National Football League. The Company offers team management and training services, as well as operates a training center. The Company also markets match tickets and sports merchandise. The appellate case is captioned as James Gengo v. Jets Stadium Development, LLC, et al., Case No. 18-3103, in the United States Court of Appeals for the Third Circuit.[BN] Plaintiff-Appellant JAMES T. GENGO, Individually and on behalf of all others Similarly Situated, is represented by: Jeffrey W. Herrmann, Esq. Alex A. Pisarevsky, Esq. COHN LIFLAND PEARLMAN HERRMANN & KNOPF LLP Park 80 West - Plaza One 250 Pehle Avenue, Suite 401 Saddle Brook, NJ 07663 Telephone: (201) 845-9600 E-mail: jwh@njlawfirm.com ap@njlawfirm.com Defendants-Appellees JETS STADIUM DEVELOPMENT LLC and NEW YORK JETS LLC are represented by: Leah Kelman, Esq. Ronald J. Levine, Esq. HERRICK FEINSTEIN LLP One Gateway Center, 22nd Floor Newark, NJ 07102 Telephone: (973) 274-2004 E-mail: lkelman@herrick.com rlevine@herrick.com - and - David R. King, Esq. HERRICK FEINSTEIN LLP 2 Park Avenue New York, NY 10016 Telephone: (609) 452-3802 E-mail: dking@herrick.com JOHNSON & JOHNSON: Hedrick Sues over Sale of Talcum Powder ---------------------------------------------------------- RAMONA J. HEDRICK, the Plaintiff, vs. JOHNSON & JOHNSON, a New Jersey corporation doing business in California; JOHNSON & JOHNSON CONSUMER INC. F/K/A JOHNSON & JOHNSON CONSUMER COMPANIES, INC., a New Jersey corporation doing business in California; IMERYS TALC AMERICA, INC., a Delaware Corporation with its principal place of business, the Defendants, Case No.: 18CV335040 (Cal. Super. Ct., Sept. 24, 2018), contends that, despite the mounting scientific and medical evidence regarding talc use and ovarian cancer development over the past several decades, none of the warnings on the Defendants' product labels or in other marketing materials informed users, or similarly situated individuals, that use of the talcum products in the genital area could lead to an increased risk of ovarian cancer. For example, the only warnings on the Baby Powder label are to "keep powder away from child's face to avoid inhalation, which can cause breathing problems," and to "avoid contact with eyes", the lawsuit says.[BN] Attorneys for Plaintiff: Lee Cirsch, Esq. Michael Akselrud, Esq. THE LANIER LAW FIRM, PC 21550 Oxnard Street, 3rd Floor Woodland Hills, CA 91367 Telephone: (310) 277 5100 Facsimile: (310) 277 5103 E-mail: lee.cirsch@lanierlawfirm.com michael.akselrud@lanierlawfirm.com KNIGHTS OF COLUMBUS: Sued for Misclassifying Field Agents --------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that a federal class action claims the Knights of Columbus, "a Catholic fraternal society that sells billions of dollars of insurance to Catholics across the nation," misclassifies its field agents as independent contractors to cheat them of wages and benefits. KORMAN COMMUNITIES: Bishop Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Korman Communities, Inc. The case is styled as Cedric Bishop on behalf of himself and all others similarly situated, Plaintiff v. Korman Communities, Inc., Defendant, Case No. 1:18-cv-09204 (S.D. N.Y., Oct. 8, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Korman Communities, Inc. engages in developing, managing, leasing, and financing real estate properties in the eastern United States and London. Its portfolio includes accommodations, furnished residences and suites, mid-rise apartment buildings, and garden-style apartments. The company also acquires and redevelops high-rise buildings. The company was founded in 1909 and is based in Plymouth Meeting, Pennsylvania.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Phone: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal LENDINGCLUB SECURITIES: Court OKs $16.4MM Attorney's Fees --------------------------------------------------------- The United States District Court for the Northern District of California issued an Order granting Lead Counsel's Motion for Attorney's Fees and Reimbursement of Litigation Expenses in the case captioned In re LENDINGCLUB SECURITIES LITIGATION. This Document Relates to: ALL ACTIONS. Consolidated Nos. C 16-02627 WHA, C 16-02670 WHA, C 16-03072 WHA. (N.D. Cal.). Defendant LendingClub Corporation, which operated an online peer-to-peer marketplace to match borrowers with lenders for various loans, completed an initial public offering of its common stock. However, numerous discrepancies, weaknesses, and improprieties in LendingClub's business operations came to light, causing its share price to drop and various securities rating agencies to downgrade LendingClub. After over a year of vigorous litigation, a prior order preliminarily approved the proposed class settlement and approved the parties' proposed mail notice to the class. That order also advised that the requested attorney's fees was subject to reduction at the final approval stage. Counsel seek $16,384,087 in attorney's fees, comprising 13.1 percent of the total settlement fund, which would cover both federal and state lead counsel fees and $456,084.63 in expenses, plus interest on both amounts. ATTORNEY'S FEES A district court must ensure that attorney's fees are fair, adequate, and reasonable, even if the parties have entered into a settlement agreement that provides for those fees. As stated, lead counsel seeks $16,384,087 or 13.1 percent of the gross settlement fund that would cover lead counsel's attorney's fees in both federal and state actions. Counsel have agreed to allocate 18 percent of the 13.1 total percent requested or 2.36 percent of the total recovery to co-lead counsel in the state action and the balance to federal lead counsel. Accepting this lodestar figure, the $16,384,087 requested fee represents a multiplier of 1.32. The Court has probed counsel's lodestar. To determine the reasonableness of the requested fee, both state and federal lead counsel were ordered to submit a detailed declaration, organized by discrete project, breaking down all attorney and paralegal time sought to be recovered and an itemized accounting for unreimbursed expenses. In the judgment of the Court, the lodestar includes excessive and hard-to-justify entries. As one nonexhaustive example, state lead counsel spent 299.6 hours on class notice, which resulted in a lodestar, merely for state lead counsel, of $208,534.50. This equates to about 7.5 weeks worth of work by one competent attorney. The class notice issues in this case, while atypical, did not justify the hours spent by state lead counsel. The motion for attorney's fees is granted. EXPENSES Lead counsel also request $456,084.63 (plus interest) in litigation expenses: $277,841.84 for federal lead counsel and $178,242.79 for state lead counsel. The requested amount includes, for example, expert and consultant fees, court fees, travel and lodging costs, legal research fees, and copying expenses. The largest component of these expenses is the cost of lead counsel's experts. The second largest component is the cost of transportation, hotels, and meals. These expenses were a reasonable and necessary part of the litigation and are of the type customarily billed to a fee-paying client. No class member objected to recovery of these costs. The motion for reimbursement of these costs is granted. A full-text copy of the District Court's September 24, 2018 Order is available at https://tinyurl.com/yd72ve44 from Leagle.com. Steeve Evellard, individually and on behalf of all others similarly situated, Plaintiff, represented by Jeremy A. Lieberman -- jalieberman@pomlaw.com -- Pomerantz Grossman Hufford Dahlstrom & Gross LLP, pro hac vice & Jennifer Pafiti -- jpafiti@pomlaw.com -- Pomerantz LLP. Water and Power Employees' Retirement, Disability and Death Plan of the City of Los Angeles, Plaintiff, represented by Carissa Jasmine Dolan -- cdolan@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, Michael Albert -- malbert@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, Rachel Lynn Jensen -- rachelj@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Scott H. Saham -scotts@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Austin P. Brane -- abrane@rgrdlaw.com -- Robbins Geller Rudman Dowd LLP, Danielle Suzanne Myers -- dmyers@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Darren Jay Robbins -- sd@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Jason A. Forge -- jforge@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, Shawn A. Williams -- shawnw@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Theodore J. Pintar -: TedP@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP & Thomas Harry Peters -- thom.peters@lacity.org -- Los Angeles City Attorney's Office. LendingClub Corporation, Defendant, represented by David Michael Grable -davegrable@quinnemanuel.com -- Quinn Emanuel Urquhart Sullivan LLP, Joseph Caldwell Sarles -- josephsarles@quinnemanuel.com -- Quinn Emanuel Urquhart Oliver and Hedges,Beth A. Kaswan , ScottScott, Attorneys at Law, LLP, Diane M. Doolittle -- dianedoolittle@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan, LLP, John T. Jasnoch -- jjasnoch@scott-scott.com -- Scott+Scott Attorneys at Law LLP, John Mark Potter -- johnpotter@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan, LLP, Kyle Kenneth Batter -- kylebatter@gmail.com -- Quinn Emanuel Urquhart Sullivan, Mark Cotton Molumphy -- mmolumphy@cpmlegal.com -- Cotchett, Pitre & McCarthy LLP, Robert Patrick Vance, Jr. -- bobbyvance@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan, LLP, Sean Masson , Scott & Scott Attorneys At Law,Victoria Blohm Parker -- vickiblohm@quinnemanuel.com -- Quinn Emanuel Urquhart Sullivan, LLP & William C. Fredericks -- wfredericks@scott-scott.com -- Scott and Scott Attorneys At Law. LIFE TIME: Rodriguez Seeks to Recover Past-Due Wages Under FLSA --------------------------------------------------------------- GABRIEL RODRIGUEZ, and SARAH GIESMAN v. LIFE TIME FITNESS, INC., a Minnesota corporation; LTF CLUB MANAGEMENT COMPANY, LLC, a Delaware Limited Liability Company; and LTF CLUB OPERATIONS COMPANY, INC., a Minnesota corporation; and DOES 1 to 10, inclusive, Case No. 2:18-cv-01123-ALM-CMV (S.D. Ohio, September 26, 2018), is brought on behalf of the Plaintiffs and all others similarly situated accusing the Defendants of violating the Fair Labor Standards Act and Ohio labor laws. The Plaintiffs bring the lawsuit as a collective action seeking alleged past-due wages and an equivalent amount in liquidated damages for putative class members, who opt-in. Life Time Fitness, Inc., is a Minnesota corporation. LTF Club Management Company, LLC, is a Delaware Limited Liability Company. LTF Club Operations Company, Inc., is also a Minnesota corporation. The Defendants' corporate headquarter is located in Chanhassen, Minnesota. Life Time owns and operates fitness centers throughout the United States and employed the Plaintiffs and thousands of other Personal Trainers. The true names and capacities of the Doe Defendants are unknown to the Plaintiffs.[BN] The Plaintiffs are represented by: Michael L. Fradin, Esq. LAW OFFICE OF MICHAEL L. FRADIN 8401 Crawford Ave., Suite 104 Skokie, IL 60076 Telephone: (847) 986-5889 Facsimile: (847) 673-1228 E-mail: mike@fradinlaw.com - and - Brian D. Chase, Esq. Jerusalem F. Beligan, Esq. BISNAR CHASE LLP 1301 Dove Street, Suite 120 Newport Beach, CA 92660 Telephone: (949) 752-2999 Facsimile: (949) 752-2777 E-mail: bchase@bisnarchase.com jbeligan@bisnarchase.com LOANDEPOT.COM: Faces Diaz ADA Suit in New York ---------------------------------------------- A class action lawsuit has been filed against LoanDepot.com, LLC. The case is styled as Edwin Diaz on behalf of himself and all others similarly situated, Plaintiff v. LoanDepot.com, LLC, Defendant, Case No. 1:18-cv-09252 (S.D. N.Y., Oct. 9, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. LoanDepot.com, LLC focuses on originating, financing, and selling of mortgage loans secured by residential real estate. The company is based in Foothill Ranch, California. loanDepot.com, LLC operates as a subsidiary of Loandepot Holdings, LLC.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Phone: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal LOS ANGELES, CA: Court Denied without Prejudice Class Cert. Bid --------------------------------------------------------------- In the class action styled Leonardo Gonzalez-Tzita, the Plaintiff v. City of Los Angeles, et al., the Defendants, Case No. 2:16-cv-00194-FMO-E (C.D. Cal. Sept. 25, 2018), the Hon. Judge Fernando M. Olguin entered an order on September 25, 2018: 1. denying without prejudice Plaintiffs' motion for class certification and preliminary approval of class settlement; 2. directing Plaintiffs to file a second revised motion for class certification and preliminary approval of settlement agreement no later than October 10, 2018; and 3. advising Plaintiffs that the court will not consider the Motion unless it includes discussion and evidentiary support, where appropriate. According to the Civil Minutes, failure to file the motion for preliminary approval by the deadline set by the court shall result in dismissal of the case for failure to prosecute and/or to comply with a court order. The Court said the motion is deficient in several ways, and does not comply with the Court's Order of December 4, 2017, which set forth the court's requirements for preliminary approval or the Court's Order of August 22, 2018, which denied plaintiffs' first motion for preliminary approval for its various deficiencies. Previously, the section on the class notice was one sentence long, which is substantially shorter than even the court's instructions on what is required to demonstrate the adequacy of the class notice. Now, there is no section on class notice in the memorandum of points and authorities. The Motion is also not accompanied by any "declarations from proposed class representatives as to the adequacy of their representation of the class" as the Court's Orders of December 4, 2017, and August 22, 2018, both require. Counsel is advised that the court raises only the most egregious deficiencies with the Motion. Counsel shall carefully review all of the court's requirements set forth in this Order and its previous orders, and file a renewed motion.[CC] LYFT: Drivers' Class Action Settlement Gets Final Court Okay ------------------------------------------------------------ Robert Kahn, writing for Courthouse News Service, reported that a federal judge granted final approval on Sept. 26 to a $2 million class-action settlement for drivers who claimed Lyft took portions of prime-time ride fees from them, despite promising that drivers would receive 100 percent of the fees. MANAGEMENT & TRAINING: Mendoza Suit Moved to S.D. California ------------------------------------------------------------ Josue Mendoza, on behalf of himself and a class of similarly situated individuals, and the general public, the Plaintiff, v. Management & Training Corporation, and Does 1 to 100, inclusive, the Defendants, Case No. 37-02018-00038572-CU-OE-CTL, was removed from the Superior Court of the State of California, County of San Diego, to the Southern District of California (San Diego) on Sept. 24, 2018. The Southern District of California Court Clerk assigned Case No. 3:18-cv-02181-DMS-BLM to the proceeding. The suit alleges labor related violation. The case is assigned to the Hon. Judge Dana M. Sabraw. MTC is a contractor that manages private prisons and United States Job Corps centers. Based in Centerville, Utah MTC's core businesses are corrections, education & training, MTC medical, and economic & social development. MTC operates 24 correctional facilities in eight states.[BN] Attorneys for Plaintiff: Theodore R. Tang, Esq. LAW OFFICE OF ROBERT STARR 23901 Calabasas Rd. No. 2072 Calabasas, CA 91302 Telephone: (818) 225 9040 Facsimile: (818) 225 9042 E-mail: theodore@starrlaw.com Attorneys for Management & Training Corporation: Shireen Yvette Wetmore, Esq. SEYFARTH SHAW LLP 560 Mission Street, Suite 3100 San Francisco, CA 94105 Telephone: (415) 397 2823 Facsimile: (415) 397 8549 E-mail: swetmore@seyfarth.com MANHATTAN PHYSICIANS: Bishop Files ADA Suit in S.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Manhattan Physicians Laboratories I, Inc. The case is styled as Cedric Bishop on behalf of himself and all others similarly situated, Plaintiff v. Manhattan Physicians Laboratories I, Inc., Defendant, Case No. 1:18-cv-09205 (S.D. N.Y., Oct. 8, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Manhattan Physicians Laboratories, LLC operates as a clinical laboratory in New York. It offers urine, blood, stool/occult blood, and cadmium tests; O&P and stool culture; vitamin B6 and C, and chromium; and citric acid 24 HR urine/creatnine tests. The company also offers C-DIFF and adenovirus; esoteric; and copper and copper/RBC; and STAT tests. Manhattan Physicians Laboratories, LLC was founded in 2008 and is based in New York, New York.[BN] The Plaintiff appears pro se. MARSHALLS OF CA: Rodriguez Suit Asserts Labor Law Violations ------------------------------------------------------------ Alicia Rodriguez, on behalf of herself and all others similarly situated v. Marshalls of CA, LLC, and Does 1 through 10, Case No. 5:18-cv-01716 (C.D. Calif., August 16, 2018), is brought against the Defendants violation of California's Unfair Competition Act. This is a California state-wide class action for gender discrimination and wage and labor violations arising out of, among other things, the Defendant's policy and practice of conducting security checks anytime its employees leave a store with a purse or bag, without providing compensation for that time. This practice disproportionately affects Defendant's female employees, as they carry purses or bags in significantly greater frequency than Defendant's male employees. The Plaintiff has worked for the Defendant or its affiliates in various non-exempt positions for approximately 17 years, and is currently employed as a stockroom coordinator at Defendant's Ontario, California store at the Ontario Mills Mall. The Defendant operates a chain of retail department stores throughout California. [BN] The Plaintiff is represented by: Joshua H. Haffner, Esq. Benson E. Garrett, Esq. Graham G. Lambert, Esq. HAFFNER LAW PC 445 South Figueroa Street, Suite 2325 Los Angeles, CA 90071 Tel: (213) 514-5681 Fax: (213) 514-5682 E-mail: jhh@haffnerlawyers.com benson@haffnerlawyers.com gl@haffnerlawyers.com MAXIMUS INC: 4th Cir. Appeal Filed in Steamfitters Securities Suit ------------------------------------------------------------------ Lead Plaintiff Amalgamated Bank filed an appeal from a court ruling in the lawsuit entitled IN RE MAXIMUS, INC. SECURITIES LITIGATION, Case No. 1:17-cv-00884-AJT-IDD, in the U.S. District Court for the Eastern District of Virginia at Alexandria. As reported in the Class Action Reporter on Sept. 7, 2018, the Hon. Anthony J. Trenga granted the Defendants' motion to dismiss, with prejudice, the amended complaint in the case. The Court held that the Amended Complaint fails to allege facts sufficient to support the Plaintiffs' claims under Sections 10(b) or 20(a) of the Securities Exchange Act of 1934. The Amended Complaint is dismissed. The Plaintiff alleges that the Defendants made a variety of materially false and misleading statements, or failed to disclose material information, concerning the status of the Company's Health Assessment Advisory Service project for the U.K. Department for Work and Pensions from the period of October 20, 2014 through February 3, 2016, and seeks damages to be proved at trial. The appellate case is captioned as Amalgamated Bank v. Maximus, Inc., Case No. 18-2127, in the United States Court of Appeals for the Fourth Circuit.[BN] Plaintiff-Appellant AMALGAMATED BANK, as Trustee for the LongView Collective Investment Funds, is represented by: Harvey B. Cohen, Esq. MILES & STOCKBRIDGE, PC 1751 Pinnacle Drive Tysons Corner, VA 22102-3833 Telephone: (703) 610-8655 Facsimile: (703) 548-3181 E-mail: hcohen@milesstockbridge.com - and - Stacey Rose Harris, Esq. DIMURO GINSBERG, PC 1101 King Street Alexandria, VA 22314-2956 Telephone: (703) 684-4333 Facsimile: (703) 548-3181 E-mail: sharris@dimuro.com Defendants-Appellees MAXIMUS, INCORPORATED, RICHARD MONTONI, RICHARD NADEAU and BRUCE CASWELL are represented by: Brooks Holton Spears, Esq. John David Wilburn, Esq. MCGUIREWOODS, LLP 1750 Tysons Boulevard Tysons Corner, VA 22102-3915 Telephone: (703) 712-5073 E-mail: bspears@mcguirewoods.com jwilburn@mcguirewoods.com MIDLAND CREDIT: 3rd Cir. Flips Dismissal of Schultz FDCPA Suit -------------------------------------------------------------- The United States Court of Appeals, Third Circuit, issued an Opinion reversing the District Court's judgment granting Defendant's Motion to Dismiss the case captioned Robert A. Schultz, Jr.; Donna Schultz, on behalf of themselves and those similarly situated, Appellants, v. MIDLAND CREDIT MANAGEMENT, INC.; JOHN DOES 1-10. Case No. 17-2244. (3rd Cir.). The question before the Court in this matter is whether a statement in a debt collection letter to the effect that forgiveness of the debt may be reported to the Internal Revenue Service constitutes a violation of the Fair Debt Collection Practices Act (FDCPA). Midland sent letters to Robert Schultz, Jr., attempting to collect three separate outstanding debts that had been outsourced to Midland for collection after Robert had defaulted on them. Midland sent Donna Schultz separate letters likewise attempting to collect a separate outstanding debt from her. None of the Schultzes debts exceeded $600. Each letter offered to settle the amount of indebtedness for less than the full amount owing. The Schultzes filed a putative class action complaint on behalf of themselves and others similarly situated asserting violations of the FDCPA. Midland moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss on the ground that the Schultzes failed to plead a plausible violation of the FDCPA. The District Court granted Midland's motion, concluding that the Schultzes indeed failed to plausibly allege a violation of the FDCPA because the language set forth in the dunning letters was not deceptive or otherwise violative of the FDCPA. The portion of the FDCPA relevant here, Section 1692e, states that a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. The section goes on to describe the following as violations of the FDCPA: The threat to take any action that cannot legally be taken or that is not intended to be taken. The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer. On appeal, the Schultzes argue that by including the language, the Court will report forgiveness of debt as required by IRS regulations, Midland presented a false or misleading view of the law one designed to scare or intimidate the Schultzes into paying the outstanding debts listed on the debt collection letters even though Midland knew that any discharge of the Schultzes' debt would not result in a report to the IRS. The Court agrees. Here, the reporting requirement under the Internal Revenue Code is wholly inapplicable to the Schultzes' debts because none of them totaled $600 or more, and IRS regulations clearly state that only discharges of debt of $600 or more must be included on a Form 1099-C and filed with the IRS. By including the reporting language on collection letters addressing debts of less than $600, we believe that the least sophisticated debtor might be persuaded into thinking that the discharge of any portion of their debt, regardless of amount discharged, may be reportable. Midland argues that if the Court was to adopt the Schultzes' interpretation of the language contained in the letters, the Court would essentially give credence to a bizarre or idiosyncratic interpretation of the letters, which does not preserve a quotient of reasonableness and a basic level of understanding and willingness to read with care. For Midland, the use of the conditional might should signal to the least sophisticated debtor that only under certain circumstances will reporting occur. The problem with this argument, however, is that, for the Schultzes, under no set of circumstances will reporting ever occur. As we held in Brown v. Card Serv. Ctr., 464 F.3d 450, 453 (3d Cir. 2006)., even if the language in a letter is true, it can still be deceptive where it can be reasonably read to have two or more different meanings, one of which is inaccurate. And the facts here are not so different than those in Brown, such that our holding here should be different. In Brown, a debt collector suggested that if a debtor did not pay her outstanding debt within five days it could result in a lawsuit against her. While the debt collector had the authority to bring such a suit, because five days passed and it failed to do so and rarely had done so in the past, the threat of legal action was considered deceptive in violation of the FDCPA. While the Court recognizes that Midland, like many debt collection companies, uses form letters when contacting its debtors, we must reinforce that convenience does not excuse a potential violation of the FDCPA. The Court therefore are obligated to reverse the order of the District Court granting Midland's motion to dismiss, as a reasonable juror may find a violation of the FDCPA in this instance. The Court will reverse the May 8, 2017, Order of the District Court as the Court finds that the Schultzes have pled sufficient factual allegations that state a plausible claim upon which a court may grant relief under the FDCPA. The Court will therefore remand for further proceedings consistent with this opinion. A full-text copy of the Third Circuit's September 24, 2018 Opinion is available at https://tinyurl.com/y9guje3w from Leagle.com. Cary L. Flitter, Esq., Andrew M. Milz, Esq., [ARGUED], Flitter Milz, Yongmoon Kim, Esq., Kim Law Firm, Counsel for Plaintiffs-Appellants Robert A. Schultz, Jr. and Donna Schultz Han Sheng Beh, Esq., Ellen B. Silverman, Esq., Hinshaw & Culbertson, Joel D. Bertocchi, Esq., David M. Schultz, Esq., [ARGUED], Hinshaw & Culbertson, Counsel for Defendant-Appellee Midland Credit Management, Inc. MILTAN MANAGEMENT: Faces Bishop ADA Suit in New York ----------------------------------------------------- Miltan Management Corporation is facing a class action lawsuit in New York. The case is styled as Cedric Bishop on behalf of himself and all others similarly situated, Plaintiff v. Miltan Management Corporation doing business as: Helen Mills, Defendant, Case No. 1:18-cv-09203-ALC (S.D. N.Y., Oct. 8, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Miltan Management Corporation is a privately held company in New York, NY and is a Single Location business. It is located at 135 West 26th Street # 4c, New York, NY 10001.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Phone: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal MONSANTO COMPANY: Awads Sue over Sale of Herbicide Roundup ---------------------------------------------------------- VICKIE L. AWAD and SAMIR AWAD, the Plaintiffs, v. MONSANTO COMPANY, the Defendant, Case No. 4:18-cv-01627 (E.D. Mo., Sept. 25, 2018), seeks to recover damages suffered by the Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiffs maintain that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. The Plaintiff's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiffs bring this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiffs are represented by: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com MONSANTO COMPANY: Dotson Sues over Sale of Herbicide Roundup ------------------------------------------------------------ BRENDA DOTSON, the Plaintiffs, v. MONSANTO COMPANY, the Defendant, Case No. 4:18-cv-01624 (E.D. Mo., Sept. 25, 2018), seeks to recover damages suffered by the Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiffs maintain that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. The Plaintiff's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiffs bring this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiffs are represented by: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com MONSANTO COMPANY: Elfers Sue over Sale of Herbicide Roundup ----------------------------------------------------------- VICTORIA ELFER and WARREN ELFER, the Plaintiffs, v. MONSANTO COMPANY, the Defendant, Case No. 4:18-cv-01628-PLC (E.D. Mo., Sept. 25, 2018), seeks to recover damages suffered by the Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiffs maintain that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. The Plaintiff's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiffs bring this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiffs are represented by: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com MONSANTO COMPANY: Johnson Sues over Sale of Herbicide Roundup ------------------------------------------------------------- DEAN C. JOHNSON,, the Plaintiff, v. MONSANTO COMPANY, the Defendant, Case No. 4:18-cv-01616 (E.D. Mo., Sept. 24, 2018), seeks to recover damages suffered by Plaintiff as a direct and proximate result of Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. According to the complaint, the Plaintiff maintains that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. The Plaintiff's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. "Roundup" refers to all formulations of Defendant Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, and Roundup Prodry Herbicide. Monsanto Company, together with its subsidiaries, provides agricultural products for farmers worldwide. It operates in two segments, Seeds and Genomics, and Agricultural Productivity.[BN] The Plaintiff is represented by: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 E-mail: sethw@getbc.com Telephone: (314) 222-2222 Facsimile: (314) 421-0359 MONSANTO COMPANY: Rice Sues over Sale of Herbicide Roundup ---------------------------------------------------------- ROSE M. RICE, the Plaintiff, v. MONSANTO COMPANY, the Defendant, Case No. 4:18-cv-01625 (E.D. Mo., Sept. 25, 2018), seeks to recover damages suffered by the Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiff maintains that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. The Plaintiff's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiff brings this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiffs are represented by: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com MONSANTO COMPANY: Shorr Wants Damages From Roundup-Related Injury ----------------------------------------------------------------- JACK SHORR v. MONSANTO COMPANY, Case No. 4:18-cv-01641 (E.D. Mo., September 27, 2018), is an action for damages allegedly suffered by the Plaintiff as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling and sale of the herbicide Roundup(R), containing the active ingredient glyphosate. The Plaintiff maintains that Roundup(R) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce and lacked proper warnings and directions as to the dangers associated with its use. Monsanto Company is a Delaware corporation with its headquarters and principal place of business in St. Louis, Missouri. Monsanto was the entity that discovered the herbicidal properties of glyphosate and the manufacturer of Roundup(R). Monsanto is a multinational agricultural biotechnology corporation and is the world's leading producer of glyphosate. As of 2009, Monsanto was the world's leading producer of seeds, accounting for 27% of the world seed market. The majority of these seeds are of the Roundup Ready(R) brand.[BN] The Plaintiff is represented by: D. Todd Mathews, Esq. Joseph B. Carnduff, Esq. GORI JULIAN & ASSOCIATES, P.C. 156 N. Main St. Edwardsville, IL 62025 Telephone: (618) 659-9833 Facsimile: (618) 659-9834 E-mail: todd@gorijulianlaw.com jcarnduff@gorijulianlaw.com MONSANTO COMPANY: Walker Sues over Sale of Herbicide Roundup ------------------------------------------------------------ GOVERNOR AND SONDA WALKER, the Plaintiff, v. MONSANTO COMPANY, the Defendant, Case No. 4:18-cv-01626 (E.D. Mo., Sept. 25, 2018), seeks to recover damages suffered by Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiff maintains that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. The Plaintiff's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiff brings this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, the Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiffs are represented by: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com NAVIENT SOLUTIONS: Nov. 30 Settlement Opt-Out Deadline Set ---------------------------------------------------------- Denise Baker v. Navient Solutions, LLC., Case No: 1:17-cv-1160 (LMB/JFA) Why is this notice available? This is a notice of a proposed settlement in a class action lawsuit. The settlement would resolve the lawsuit, which Denise Baker ("Baker") filed against NSL. Please read this notice carefully. It explains the lawsuit, the settlement and your legal rights, including the process for receiving a settlement check, excluding yourself from the settlement or objecting to the settlement. What is this lawsuit about? Baker filed this lawsuit on October 16, 2017. Baker was listed as a credit reference a borrowers student loan application, and NSL subsequently called her cellular telephone, using a dialing process that it contends is manual, in connection with efforts to locate that borrower. Baker alleges that NSL violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. Sec. 227, et seq., in making these calls because the dialing technology constitutes an automatic telephone dialing system, within the meaning of the TCPA, and NSL did not have the requisite prior express consent to call her. The parties have agreed to a settlement. Why is this a class action? In a class action, one or more people called "class representatives" file a lawsuit on behalf of people who have similar claims. All of these people together are a "class" or "class members." The Court accordingly resolves claims for all class members, except for those who exclude themselves from the class. Why is there a settlement? Baker, on the one hand, and NSL, on the other, have agreed to settle the lawsuit to avoid the time, risk and expense associated with it, and to achieve a final resolution of the disputed claims. Under the settlement, participating class members will obtain a payment in settlement of the claims raised in the lawsuit. Baker and her attorneys think the settlement is best for all class members. How do you know if your claims are included in the settlement? The class covers calls made from October 16, 2013 to July 3, 2018 and is defined as: Each person throughout the United States who was: (1) listed as a credit reference on a student loan application; and (2) called by NSL on a cellular telephone number using dialing technology manufactured and/or licensed by Interactive Intelligence. Excluded from the class definition are: (1) persons who were listed as credit references on student loan applications and who also have student loans serviced by NSL; (2) persons or entities included within the class defined in the Final Approval Order (Dkt. # 177) in Johnson v Navient Solutions, Inc., Case No.: 1:15-cv-0716 (S.D. Ind.); and (3) any employees, officers or directors of NSL, any attorneys appearing in this case and any judge assigned to hear this action. What does the settlement provide? NSL will establish a settlement fund in the amount of $2,500,000. Out of the settlement fund, NSL will pay: A. Settlement compensation to the class members; B. The costs and expenses of administrating the class action settlement; C. An award of attorneys' fees in an amount up to one-third of the settlement fund, or $833,333, subject to the Court's approval; D. Costs and expenses incurred litigating this matter, not to exceed $35,000, subject to the Court's approval; and E. A service award to Baker in an amount up to $15,000, subject to the Court's approval. Each class member who submits a timely and valid claim form will be entitled, subject to the provisions of the settlement agreement, to his or her equal share of the settlement fund as it exists after deducting: the costs and expenses of administrating the settlement; the attorneys' fees, subject to the Court's approval; the costs and expenses of the litigation, subject to the Court's approval; and the service award for Baker, subject to the Court's approval. How much each class member receives depends on how many people make approved claims. Plaintiff estimates that the amount of the cash award may be $50.00. Any remaining monies from uncashed settlement awards may be redistributed in a second distribution to class members who submitted valid and timely claims. However, if a second distribution would result in less than $5 per qualifying claimant, the remaining monies will instead be donated to the National Endowment for Financial Education. In the event a second distribution is made, any remaining monies from uncashed second distribution settlement checks will also be donated to the National Endowment for Financial Education. How can you get a payment? You must submit a valid claim form by November 30, 2018. You can file online at https://bakertcpasettlement.com/File-a-Claim. Or you can mail your claim form to the Baker Settlement Administrator Postmarked by November 30, 2018. Baker Settlement Administrator PO Box 44 Minneapolis, MN 55440-0044 If you did not receive a post card claim form in the mail. You can download the claim form at https://is.gd/kU1Eay. Complete and mail to the Baker Settlement Administrator. When will you be paid? If the Court grants final approval of the settlement, settlement checks will be mailed to class members who timely mailed or submitted valid claim forms no later than 30 days after the judgment in the lawsuit becomes final. If there is an appeal of the settlement, payment may be delayed. What rights are you giving up in this settlement? Unless you exclude yourself from the settlement, you will be considered a member of the class, which means you give up your right to sue or continue a lawsuit against NSL over the released claims. Giving up your legal claims is called a release. Unless you formally exclude yourself from the settlement, you will release your claims against NSL. For more information on the release, released parties and released claims, you may obtain a copy of the class action settlement agreement from the settlement administrator, at 1-866-404-0137, or visit https://bakertcpasettlement.com/Documents How can you exclude yourself from the settlement? You may exclude yourself from the settlement, in which case you will not receive a payment. If you wish to exclude yourself from the settlement, you must mail a written request for exclusion to the settlement administrator, at the addresses set forth below, postmarked by November 30, 2018. You must include in your request for exclusion your: A. Full name B. Address C. Telephone number called by NSL; and D. A clear and unambiguous statement that you wish to be excluded from the settlement, such as "I/we request to be excluded from the settlement in the Baker action." You must sign the request personally. If any person signs on your behalf, that person must attach a copy of a power of attorney or other official document authorizing that signature. When and where will the Court decide whether to approve the settlement? The Court will hold a final fairness hearing on February 8, 2019, at 10:00 a.m. The hearing will take place in the United States District Court for the Eastern District of Virginia, 401 Courthouse Square, Alexandria, VA 22314, before the Honorable Leonie M. Brinkema. At the final fairness hearing, the Court will consider whether the settlement is fair, reasonable and adequate and, if so, whether final approval of the settlement should be granted. The Court will hear objections to the settlement, if any. The Court may make a decision at that time, postpone a decision or continue the hearing. Do you have to attend the hearing? No. You are not required to attend the hearing. But you are welcome to attend the hearing at your own expense. You cannot speak at the hearing if you have excluded yourself from the class settlement. Once you have excluded yourself, the class settlement does not affect your legal rights. What if you want to object to the settlement? If you do not exclude yourself from the settlement, you can object to the settlement if you do not believe it is fair, reasonable and adequate. If you wish to object, you must mail a written notice of objection, postmarked by November 30, 2018, to class counsel, NSL's attorneys, and to the Court, at the following addresses: Class Counsel: William L. Downing CONSUMER LEGAL SOLUTIONS, PC 1071 Bay Breeze Drive Suffolk, VA 23435 NSL's Counsel: Lisa M. Simonetti VEDDER PRICE (CA), LLP 1925 Century Park Suite 1900 Los Angeles, CA 90067 Court: U.S. District Court for the Eastern District of Virginia 401 Courthouse Square Alexandria, VA 22314 You must include in your objection your: A. Full name B. Address C. Telephone number called by NSL to demonstrate that you are a person in the Settlement Class D. A statement of the specific objection(s) E. The grounds for the objection(s) F. Identification of any documents to show that you are a person in the Settlement Class or which you desire the Court to consider; and G. A statement noting whether you intend to appear at the fairness hearing. By when must you enter an appearance? Any class member who objects to the settlement and wishes to enter an appearance must do so by November 30, 2018. To enter an appearance, you must file with the Clerk of the Court a written notice of your appearance and you must serve a copy of that notice, by U.S. mail or hand-delivery, upon class counsel and NSL's attorneys, at the addresses set forth above. What if you do nothing? If you do nothing and the Court approves the settlement agreement, you will not receive a share of the settlement fund, but you will release any claim you have against NSL related to the allegations. Unless you exclude yourself from the settlement, you will not be able to sue or continue a lawsuit against NSL over the released claims. What will happen if the Court does not approve the settlement? If the Court does not finally approve the settlement or if it finally approves the settlement and the approval is reversed on appeal, or if the settlement does not become final for some other reason, you will receive no benefits and the lawsuit will continue. Who are the attorneys for Baker? The attorneys are: William L. Downing CONSUMER LEGAL SOLUTIONS, PC 1071 Bay Breeze Drive Suffolk, VA 23435 Henry A. Turner TURNER LAW OFFICES, LLC 403 W. Ponce de Leon Ave., Suite 207 Decatur, GA 30030 The Court has appointed these attorneys to act as class counsel. You do not have to pay class counsel. If you want to be represented by your own lawyer, and have that lawyer appear in Court for you in this case, you must hire one at your own expense. Who are NSL's attorneys? NSL's attorneys are: Lisa M. Simonetti VEDDER PRICE (CA), LLP 1925 Century Park East, Suite 1900 Los Angeles, CA 90067 Where can you get additional information? This notice is only a summary of the settlement. All documents filed with the Court, including the full class action settlement agreement, may be reviewed or copied at the United States District Court for the Eastern District of Virginia. In addition, you can obtain pertinent case materials by visiting https://bakertcpasettlement.com/Documents. If you would like additional information about this matter, please contact: Baker Settlement Administrator PO Box 44 Minneapolis, MN 55440-0044 Telephone: 1-866-404-0137 Please do not call the Judge or the Clerk of the Court about this case. Neither the Judge, nor the Clerk of Court, will be able to give you advice about this case. Further, neither NSL nor NSL's attorneys represent you, and they cannot give you legal advice or information. If you wish to speak with someone, contact William Downing, class counsel, at 757-942-2554. The online filing says, "A claim form has already been submitted for this record." It appears a claim has been filed with your Claimant ID or your phone number. If you believe this is an error, please submit your valid claim form by mail Postmarked by November 30, 2018. Baker Settlement Administrator PO Box 44 Minneapolis, MN 55440-0044 If you did not receive a post card claim form in the mail. You can download the claim form at https://bakertcpasettlement.com/Documents Complete and mail to the Baker Settlement Administrator. NBCUNIVERSAL: Faces Burbon ADA Class Action ------------------------------------------- A class action lawsuit has been filed against NBCUniversal Media LLC. The case is styled as Luc Burbon and on behalf of all other persons similarly situated, Plaintiff v. NBCUniversal Media LLC, Defendant, Case No. 1:18-cv-09210 (S.D. N.Y., Oct. 8, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. NBCUniversal Media, LLC, a media and entertainment company, develops, produces, and distributes entertainment, news and information, sports, and other content for audiences worldwide. The company operates in four segments: Cable Networks, Broadcast Television, Filmed Entertainment, and Theme Parks.[BN] The Plaintiff is represented by: Avi Naveh, Esq. Law Office of Avi A. Naveh 175 Varick Street 3rd Floor New York, NY 10014 Phone: (646) 881-4471 Email: court@navehlaw.com NEW EQUIPMENT: Court Grants Bid to Dismiss ICFA Suit ---------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, issued a Memorandum Opinion and Order granting Defendant’s Motion to Dismiss in the case captioned TARTAN CONSTRUCTION, LLC, individually and on behalf of a class of similarly situated individuals, Plaintiff, v. NEW EQUIPMENT SERVICES CORPORATION d/b/a NES Rentals, NES RENTALS HOLDINGS, and UNITED RENTALS (NORTH AMERICA), INC., Defendants. Case No. 17-cv-5950. (N.D. Ill.) Plaintiff Tartan Construction, LLC alleges that Defendants NES Rentals, NES Holdings, and United Rentals charged two illegitimate fees as part of their standard rental agreements for heavy equipment. Plaintiff claims that these fees unjustly enriched Defendants and violated the Illinois Consumer Fraud and Deceptive Trade Practices Act (ICFA). The Defendants first seek to dismiss the Plaintiff's claims as time-barred under their respective statutes of limitations. Statute of Limitations The Defendants argue that the Plaintiff's TAC should be dismissed in its entirety because the statutes of limitations on all claims expired before Plaintiff became a party to the suit in December 2017. Actions for damages under the ICFA are subject to a three-year statute of limitations. The statute of limitations for Plaintiff's unjust enrichment claim is five years. Both limitations periods are subject to the discovery rule that is, neither begins to run until plaintiffs know or reasonably should know that they have been injured and that their injuries were wrongfully caused. While the discovery rule does not require a plaintiff to file suit immediately after learning of an injury, it does not permit a plaintiff to sit on his or her rights until such time as the plaintiff knows that he or she has a cause of action. Substance of Plaintiff's Arguments Addresses the Discovery Rule The Plaintiff appears to misstate its statutes of limitations arguments. In its response to the Defendants' motion to dismiss, Plaintiff includes a header stating: The Statute of Limitations Was Tolled for the ICFA and Unjust Enrichment Claims. But rather than discuss equitable tolling, the subsequent section goes on to argue that the discovery rule simply postponed the beginning of both limitations periods until November of 2017. In this same section, the Plaintiff's contention that NES Rentals intentionally concealed material facts from Plaintiff also indicates that it is seeking to toll the statute of limitations based upon fraudulent concealment, yet Plaintiff fails to allege any fraudulent concealment outside of this one statement. Moreover, fraudulent concealment implies deliberate efforts by the defendant to prevent the plaintiff from suing within the applicable statute of limitation. Plaintiff has not claimed that Defendants deliberately prevented Plaintiff from suing within the statute of limitations period; this alleged failure to disclose information about the two fees is no different from the alleged wrongdoing upon which Plaintiff bases its ICFA and unjust enrichment claims. Discovery Rule Time-Bars Plaintiff's ICFA Claim First, the Plaintiff does not dispute that it conducted no investigation and made no inquiries as to the fee between 2009 and 2017. Instead, it claims it had no reason to believe the Fees were not what Defendant NES Rentals purported them to be and regardless, any inquiry regarding such Fees would have been futile as Defendant NES Rentals' employees would certainly not have disclosed to customers that the Fees were not what they purported to be. This excuse for not conducting any sort of inquiry is purely speculative. Without any explanation as to why its alleged facts could not have been discovered before November 2017, the beginning of the limitations period cannot be postponed. Second, because the Plaintiff concedes that it made no investigation into the Defendants' fees on its own, the only ostensible reason as to why it could not have discovered the information underlying its ICFA cause of action before 2017 is that it needed a consultation with its attorneys. But the discovery rule does not permit plaintiffs to wait comfortably until advised by a lawyer that he or she can sue. Allowing otherwise would undermine one of the primary purposes behind statutes of limitations in the first place: to encourage claimants to investigate and pursue causes of action in order to discourage delay. Thus, without pleading sufficient facts to demonstrate why Plaintiff's cause of action could not have been discovered between 2009 and 2012, the discovery rule cannot toll the three-year limitations period for Plaintiff's ICFA claim. This Court thus dismisses Count Two. Discovery Rule Time-Bars Plaintiff's Unjust Enrichment Claim The Plaintiff, individually and on behalf of a proposed class, also claims that NES Rentals and United Rentals unjustly enriched themselves by collecting the LDW fee. But as this Court noted in its prior opinion, Plaintiff's unjust enrichment claim depends upon the same conduct that forms the basis of its ICFA claim: the misrepresentations that allegedly deceived Plaintiff as to the true nature of the fees and made it unjust for Defendants to retain the money they collected for those fees. Because Plaintiff's unjust enrichment and ICFA claims depend upon the same conduct, the TAC similarly contains no factual support to justify postponing the beginning of the unjust enrichment limitations period until November 2017 under the discovery rule. Count One is thus also dismissed. Because this Court finds that both counts of the Plaintiff's TAC are dismissed with prejudice as time-barred, it need not consider the Defendants' alternative arguments for dismissal. A full-text copy of the District Court's September 24, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/y9l5juda from Leagle.com. Tartan Construction, LLC, individually and on behalf of a class of similarly situated individuals, Plaintiff, represented by Robert M. Foote -- rmf@fmcolaw.com -- Foote, Mielke, Chavez & O'Neil LLC, Elizabeth Christine Chavez -- ecc@fmcolaw.com -- Foote, Mielke, Chavez & O'neil, LLC, Glenn Alexander McTavish -- amctavish@fmcolaw.com -- Foote, Mielke, Chavez & O'Neil & Matthew J. Herman -- mjh@fmcolaw.com -- Foote, Mielke, Chavez & O'Neil LLC. NES Equipment Services Corporation, doing business as & United Rentals (North America), Inc., Defendants, represented by Matthew R. Devine -- mdevine@jenner.com -- Jenner & Block LLP, Abraham Michael Salander -- asalander@jenner.com -- Jenner & Block, Elizabeth D. Adler -- eadler@kslaw.com -- King & Spalding Llp, pro hac vice, Nicholas G. Hill -- nhill@kslaw.com -- King & Spalding LLP, pro hac vice, Precious Stephanie Jacobs -- pjacobs@jenner.com -- Jenner And Block LLP & S. Stewart Haskins, II -- shaskins@kslaw.com -- King & Spalding, pro hac vice. NOLAN ENTERPRISES: Ct. Won't Compel Arbitration in Dancers' Suit ---------------------------------------------------------------- The United States District Court for the Southern District of Ohio, Eastern Division, issued an Opinion and Order denying Defendant's Motion to Dismiss or to Stay and Motion to Compel Arbitration in the case captioned STEPHANIE DE ANGELIS, Plaintiff, v. NOLAN ENTERPRISES, INC., Defendant. Case No. 2:17-cv-926. (S.D. Ohio). Centerfold is an adult entertainment club in Columbus, Ohio. Plaintiff, Ms. Stephanie De Angelis, alleges that she worked at Centerfold as a dancer. Ms. De Angelis alleges that Centerfold did not pay its dancers any wages. Instead, she avers that Centerfold misclassified all of its dancers as independent contractors, rather than employees, and that the dancers are only compensated through tips from customers. Ms. De Angelis filed this lawsuit as a collective and class action against Centerfold, alleging violations of the Fair Labor Standards Act of 1983 (FLSA), the Ohio Minimum Fair Wage Standards Act (OMFSWA) and the Ohio Semi-Monthly Payment Act, as well as common law unjust enrichment by failing to pay dancers minimum wage for all hours worked, including failure to pay overtime. Under the Federal Arbitration Act (FAA), arbitration contracts shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. If a party who signed an arbitration contract fails or refuses to arbitrate, the aggrieved party may petition the court for an order directing the parties to proceed in arbitration in accordance with the terms of an arbitration agreement. The Court must then determine whether the parties agreed to arbitrate the dispute at issue. Here, Ms. De Angelis argues that the Amendment Provision is an attempt to retain the ability to modify the agreement at any time, making Centerfold's promises illusory. This Court agrees. The Amendment Provision reads: THE CLUB RESERVES THE RIGHT TO MODIFY, DELETE, OR ADD TO ANY OF THE CONDITIONS CONTAINED HEREIN WITHOUT NOTICE, AND RESERVES THE RIGHT TO CANCEL ENTERTAINER TENANT SPACE LEASE AT ANY TIME, WITH OR WITHOUT NOTICE OR CAUSE UPON BREACH OF THIS SPACE LEASE AGREEMENT OR SPACE LEASE USAGE TERMS. With this language, Centerfold reserved the right to modify or cancel the terms of the Agreement at any time without notice, and its promise was therefore illusory. An illusory contract is not binding obligation, and the Agreement, including the delegation provision, thus lacks mutuality of obligation and consideration. As such, the delegation provision and the arbitration agreement are void and unenforceable. Centerfold relies on Blakley v. UBS Fin. Servs. Inc., No. 1: 12-CV-30, 2013 WL 360378, at *7 (S.D. Ohio Jan. 30, 2013), report and recommendation adopted, No. C-1-12-30, 2013 WL 866470 (S.D. Ohio Mar. 7, 2013) to argue that the arbitration agreement is enforceable because the amendment provision appears in a separate section from the arbitration provision, and the duty of good faith and fair dealing prohibits them from actually amending the arbitration agreement. In Blakley, the Magistrate Judge recommended finding that the clause giving the employer the right to modify the agreement did not make the arbitration agreement unenforceable. Blakley is distinguishable, however, because there the employer was required to provide notice of any changes by posting them on its internal intranet. In Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 667-68 (6th Cir. 2003), concluding that arbitration agreement was supported by sufficient consideration and mutuality of obligation when amendment provision gave the employer the authority to alter the agreement on only one day of each year and required them to provide its employees with thirty days' notice before doing so. The Blakley court acknowledged that advanced notice, rather than just notice, was required in Morrison, but found that the lack of advanced notice in the agreement did not make the arbitration agreement unenforceable because the amendment provision was not specific to the arbitration provision and was instead contained in a different section. As an initial note, the Amendment Provision at issue here requires no notice, so whether mere notice is sufficient or notice must be given in advance is neither relevant nor decided here. Additionally, this Court disagrees that the location of the Amendment Provision is relevant to whether such a provision makes the employers' promise illusory under Ohio law. In Stanich, WL 3732129, at *6, this Court held that an amendment provision on the first page of an employee handbook rendered the employer's promise illusory and the entire contract, including the arbitration provision, unenforceable under Ohio law. The Court therefore rejects Centerfold's argument that because the amendment provision appears in a separate section as the arbitration provision, the arbitration clause should not be invalidated and finds Blakley unpersuasive. A full-text copy of the District Court's September 24, 2018 Opinion and Order is available at https://tinyurl.com/y8v6dlyr from Leagle.com. Stephanie De Angelis, Plaintiff, represented by Steven Charles Babin, Jr. -- steven.babin@chapinlegal.com -- Chapin Legal Group LLC, Courtney Werning -- cwerning@meyerwilson.com -- Meyer Wilson Co, LPA, Lance Chapin -- lance.chapin@chapinlegal.com -- Chapin Legal Group, LLC, Matthew R. Wilson -- mwilson@meyerwilson.com -- Meyer Wilson Co., LPA & Michael J. Boyle, Jr. -- mboyle@meyerwilson.com -- Meyer Wilson, LPA. Nolan Enterprises, Inc., Defendant, represented by Charles William Klausman, IV, Klausman Law Ltd., Ilya L. Polyakov -- ilp@olrblaw.com -- Onda LaBuhn Rankin & Boggs Co., LPA & Timothy S. Rankin -- tsr@olrblaw OPTIMA ADVOCATES: Rothman Files Suit Over Illegal Calls ------------------------------------------------------- BEN ROTHMAN, individually and on behalf of all others similarly situated v. OPTIMA ADVOCATES, INC.; DOES 1-10 Inclusive, Case No. 2:18-cv-08341 (C.D. Cal., September 27, 2018), accuses the Defendants of negligently contacting the Plaintiff on his cellular telephone in violation of the Telephone Consumer Protection Act, thereby, invading his privacy. Optima Advocates, Inc., is a company engaged in financial advising. The true names and capacities of the Doe Defendants are currently unknown to the Plaintiff.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Meghan E. George, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@toddflaw.com mgeorge@toddflaw.com abacon@toddflaw.com PANASONIC CORP: Martinez Sues Over Blind-Inaccessible Web Site -------------------------------------------------------------- PEDRO MARTINEZ, Individually and as the representative of a class of similarly situated persons v. PANASONIC CORPORATION OF NORTH AMERICA, Case No. 1:18-cv-05410 (E.D.N.Y., September 26, 2018), is brought under the Americans with Disabilities Act against Panasonic for its failure to design, construct, maintain, and operate its Web site -- http://www.shop.panasonic.com/-- to be fully accessible to and independently usable by the Plaintiff and other blind or visually-impaired persons. Panasonic Corporation of North America is a Delaware Foreign Business Corporation with its principal place of business located in Newark, New Jersey. Panasonic provides to the public the Web site, which provides consumers with access to an array of goods and services, including, the ability to view the various lines of consumer electronic goods including cameras, audio and video equipment, kitchen appliances and many more related products, and find deals, amongst other features.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 44 Court Street, Suite 1217 Brooklyn, NY 11201 Telephone: (917) 373-9128 E-mail: ShakedLawGroup@gmail.com PETROBRAS: Settles Bribery Claims with SEC for $1.8 Million ----------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that Petrobras, the Brazilian oil giant at the center of a giant political corruption scandal, reached a $1.8 billion settlement on Sept. 26 to resolve bribery and bid-rigging allegations from the Securities and Exchange Commission. The settlement stems from a U.S. inquiry into Petrobras's alleged role in facilitating payments to politicians and political parties in Brazil, as well as a related Brazilian investigation. PHILIP MORRIS: GPCPF Sues Over Misleading Statements on IQOS ------------------------------------------------------------ GREATER PENNSYLVANIA CARPENTERS' PENSION FUND, Individually and on Behalf of All Others Similarly Situated v. PHILIP MORRIS INTERNATIONAL INC., ANDRE CALANTZOPOULOS, MARTIN G. KING and JACEK OLCZAK, Case No. 1:18-cv-08814 (S.D.N.Y., September 26, 2018), accuses the Defendants of violating the Securities Exchange Act of 1934 by issuing materially false and misleading statements that result to the trading of the Company's stock at artificially inflated price levels. During the Class Period, the Defendants emphasized a "wide array of benefits" of heat-not-burn products, such as IQOS -- including the "potential to reduce the risk of smoking-related diseases" and less harmful than cigarettes, according to the complaint. However, the Plaintiff alleges, the Defendants' statements were materially false and misleading because the Defendants failed to disclose that there were irregularities in the clinical experiments underpinning Philip Morris' applications to the U.S. Food and Drug Administration for IQOS -- the Company's leading reduced-risk product -- in the United States. Philip Morris is a Virginia corporation with its principal executive offices located in New York City. The Individual Defendants are directors and officers of the Company. In 2008, the Company was spun off from operating company Altria Group, Inc., which focuses on the sale of tobacco products inside the United States. Marlboro is the Company's most recognized and best-selling product. Philip Morris is one of the largest and most recognizable cigarette and tobacco manufacturing companies in the world. The Company's subsidiaries and affiliates and their licensees are engaged in the manufacture and sale of cigarettes and other nicotine-containing products in markets outside of the United States.[BN] The Plaintiff is represented by: Christopher J. Keller, Esq. Eric J. Belfi, Esq. Francis P. McConville, Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Telephone: (212) 907-0700 Facsimile: (212) 818-0477 E-mail: ckeller@labaton.com ebelfi@labaton.com fmcconville@labaton.com PPDAI GROUP: Faces Vora IPO-Related Securities Suit in New York --------------------------------------------------------------- RAVINDRA VORA, Individually and on Behalf of All Others Similarly Situated v. PPDAI GROUP INC., JUN ZHANG, TIEZHENG LI, HONGHUI HU, SIMON TAK LEUNG HO, SHAOFENG GU, RONALD CAO, ZEHUI LIU, CONGLIANG LI, QIONG WANG, NEIL NANPENG SHEN, CREDIT SUISSE SECURITIES (USA) LLC, CITIGROUP GLOBAL MARKETS INC. and KEEFE, BRUYETTE & WOODS, INC., Case No. 654777/2018 (N.Y. Sup. Ct., New York Cty., September 27, 2018), is brought on behalf of those who purchased or otherwise acquired PPDAI American Depositary Shares issued in an initial public offering completed on November 14, 2017, pursuant or traceable to the prospectus and Form F-1 Registration Statement and F-6 Registration Statement filed with the U.S. Securities and Exchange Commission. On November 9, 2017, the Defendants commenced the IPO, issuing 17 million PPDAI ADSs to the investing public at $13 per share, all pursuant to the Offering Documents. According to the complaint, the Offering Documents contained untrue statements of material fact and omitted to state material facts both required by governing regulations and necessary to make the statements made not misleading. Far from experiencing rapid growth in its largest market, China, PPDAI was, in truth, engaging in predatory lending practices and mismanagement, all of which were having a materially negative impact on PPDAI's revenues, margins, and market share, the Plaintiff alleges. PPDAI is a Cayman Islands corporation with principal executive offices located in Shanghai, China. The Individual Defendants are directors and officers of PPDAI. PPDAI is an online consumer finance marketplace with primary operations in China. The Company, launched in 2007, is the first online consumer finance marketplace in China connecting borrowers and investors. The Company provides a proprietary platform featuring an automated loan transaction process. As of June 30, 2018, the Company claimed over 78 million cumulative registered users. Credit Suisse Securities (USA) LLC is a Delaware limited liability company with principal executive offices located in New York City. Credit Suisse is dually registered with the SEC as a broker-dealer and an investment advisor. Citigroup Global Markets Inc. is a New York corporation with principal executive offices located in New York City. Citigroup is registered as a securities broker dealer and investment advisor with the SEC, and a municipal securities dealer and advisor with the Municipal Securities Rulemaking Board. Keefe, Bruyette & Woods, Inc., is a New York corporation with principal executive offices located in New York City. Keefe is principally a broker-dealer in securities and a market-maker in certain financial services' stocks and is subject to regulation and oversight by the SEC and the Financial Industry Regulatory Authority, Inc. Credit Suisse, Citigroup and Keefe served as underwriters of the IPO and are liable for the false and misleading statements in the Registration Statement.[BN] The Plaintiff is represented by: Samuel H. Rudman, Esq. Mary K. Blasy, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: (631) 367-7100 Facsimile: (631) 367-1173 E-mail: srudman@rgrdlaw.com mblasy@rgrdlaw.com - and - Brian J. Robbins, Esq. Stephen J. Oddo, Esq. ROBBINS ARROYO LLP 600 B Street, Suite 1900 San Diego, CA 92101 Telephone: (619) 525-3990 Facsimile: (619) 525-3991 E-mail: brobbins@robbinsarroyo.com soddo@robbinsarroyo.com PRIMARK US: Web Site Not Blind-Accessible, Burbon Claims -------------------------------------------------------- LUC BURBON, on behalf of herself and all others similarly situated v. PRIMARK US CORP., Case No. 1:18-cv-08878 (S.D.N.Y., September 27, 2018), alleges that the Defendant violates the Americans with Disabilities Act by operating a Web site, http://www.primark.com/, that is not equally accessible to blind and visually-impaired consumers. Primark is a Delaware Corporation licensed to do business and doing business in the state of New York. The Company operates PRIMARK clothing stores, and advertises, markets, distributes, and sells clothing and related accessories in New York and throughout the United States.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Telephone: (929) 575-4175 Facsimile: (929) 575-4195 E-mail: Joseph@cml.legal - and - Jeffrey M. Gottlieb, Esq. Dana L. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003-2461 Telephone: (212) 228-9795 Facsimile: (212) 982-6284 E-mail: nyjg@aol.com danalgottlieb@aol.com PROMPT NURSING: Seeks 2nd Cir. Review of Paguirigan Suit Ruling --------------------------------------------------------------- Defendants Prompt Nursing Employment Agency, LLC, et al., filed an appeal from a court ruling in the lawsuit styled Paguirigan v. Prompt Nursing Employment Agency, LLC, et al., Case No. 17-cv-1302, in the U.S. District Court for the Eastern District of New York (Brooklyn). As reported in the Class Action Reporter on Sept. 20, 2018, the Hon. Nina Gershon grants the motion for class certification filed in the lawsuit. The class is comprised of all nurses, who were recruited by the Defendants in the Philippines and were employed by the Defendants in the United States at any time since December 23, 2008. Ms. Paguirigan brings claims for alleged violations of the Trafficking Victims Protection Act. She also brings a breach of contract claim against Defendants Prompt Nursing, Benjamin Landa, Bent Philipson and Berish Rubenstein. The appellate case is captioned as Paguirigan v. Prompt Nursing Employment Agency, LLC, et al., Case No. 18-2833, in the United States Court of Appeals for the Second Circuit.[BN] Plaintiff-Respondent Rose Paguirigan, individually and on behalf of all others similarly situated, is represented by: John Howley, Esq. THE HOWLEY LAW FIRM P.C. 350 5th Avenue New York, NY 10118 Telephone: (212) 601-2728 E-mail: jhowley@johnhowleyesq.com Defendants-Petitioners Prompt Nursing Employment Agency, LLC, DBA Sentosa Services; Sentosacare, LLC; Sentosa Nursing Recruitment Agency; Benjamin Landa; Bent Philipson; Berish Rubenstein, AKA Barry Rubenstein; Francis Luyun; Golden Gate Rehabilitation & Health Care Center LLC; and Spring Creek Rehabilitation and Nursing Center are represented by: Elliot Hahn, Esq. HAHN EISENBERGER PLLC 969 East 27th Street Brooklyn, NY 11210 Telephone: (347) 410-5800 REAL ESTATE: Conditional Certification Administratively Terminated ------------------------------------------------------------------ The United States District Court for the District of New Jersey issued an Opinion and Order administratively terminating Plaintiff's Motion for Conditional Certification in the case captioned PATRICIA THOMPSON, on behalf of herself and all others similarly situated, Plaintiff, v. REAL ESTATE MORTGAGE NETWORK, INC., et at., Defendants. No. 11-1494 (KM)(MAH). (D.N.J.). This is a putative class action against employers for allegedly failing to compensate employees for overtime work, in violation of the Fair Labor Standards Act (FLSA) and the New Jersey Wage and Hour Law (NJWHL). Plaintiff' Patricia Thompson to conditionally certify a collection action under the FLSA and to equitably toll the statute of limitations of the FLSA for a putative class of opt-in plaintiffs. The Plaintiff alleges that the Employers brought this motion for partial summary judgment in lieu of properly filing a cross-motion to the Plaintiff's motion for conditional certification. The abominable result, the Plaintiff says, is that (a) the Defendants will receive more pages to make their arguments; and (b) the Defendants will get the 'last word' on the tolling issue. The Plaintiffs argue that the summary judgment motion should be struck because it is at odds with the mandate of Fed. R. Civ. P. 1 that the rules be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. A motion for summary judgment, however, is not an inappropriate means of challenging time-barred FLSA claims. Indeed, if appropriately granted and I do not prejudge that issue such a motion may streamline the case and contribute to a just,4 speedy, and inexpensive determination of the merits. The Court will exercise that discretionary case-management power, however not to strike the motion, but to reorder the presentation of issues here. The summary judgment and arbitrability issues may profitably be addressed in advance of the conditional certification issues. The partial summary judgment motion however, has never gotten underway because of quibbles over page limits, replies, and the like. The Court is therefore pressing the reset button. The motion for partial summary judgment motion and to compel arbitration and the conditional certification motion are administratively terminated. A full-text copy of the District Court's September 24, 2018 Opinion and Order is available at https://tinyurl.com/y8tcatc7 from Leagle.com. PATRICIA THOMPSON, Plaintiff, represented by MITCHELL A. SCHLEY, LAW OFFICES OF MITCHELL SCHLEY, LLC. REAL ESTATE MORTGAGE NETWORK, INC., SECURITY ATLANTIC MORTGAGE COMPANY, INC., NOEL CHAPMAN, an Individual & SAMUEL LAMPARELLO, an Individual, Defendants, represented by KATHARINE THOMAS BATISTA -- kbatista@offitkurman.com -- Offit Kurman, P.A.. REIS INC: Scarantino Balks at Merger Deal with Moody's Corp. ------------------------------------------------------------ RICHARD SCARANTINO, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, v. REIS, INC., THOMAS J. CLARKE, JR., JONATHAN GARFIELD, LLOYD LYNFORD, M. CHRISTIAN MITCHELL, BYRON C. VIELEHR, MOODY'S CORPORATION, and MOODY'S ANALYTICS MARYLAND CORP., the Defendants, Case No. 1:18-cv-08780 (S.D.N.Y., Sept. 25 2018), seeks to enjoin the Defendants and all persons acting in concert with them from proceeding with, consummating, or closing a proposed transaction, and in the event the Defendants consummate the proposed transaction, rescinding it and setting it aside or awarding rescissory damages. The action stems from the proposed transaction announced on August 30, 2018, pursuant to which Reis, Inc. will be acquired by Moody's Corporation and Moody's Analytics Maryland Corp. On August 29, Reis's Board of Directors caused the Company to enter into an agreement and plan of merger with Moody's. Pursuant to the terms of the Merger Agreement, Moody's commenced a tender offer, set to expire on October 12, and shareholders of Reis will receive $23.00 in cash for each share of Reis common stock. On September 13, the Defendants filed a solicitation/Recommendation Statement with the United States Securities and Exchange Commission in connection with the Proposed Transaction. The Solicitation Statement omits material information with respect to the Proposed Transaction, which renders the Solicitation Statement false and misleading. Accordingly, the Plaintiff alleges that the Defendants violated Sections 14(e), 14(d), and 20(a) of the Securities Exchange Act of 1934 in connection with the Solicitation Statement, the lawsuit says. Reis is a commercial real estate data source, providing an advantage to firms with debt or equity exposure across capital markets.[BN] Attorneys for Plaintiff: Richard A. Maniskas, Esq. RM LAW, P.C. 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Telephone: (484) 324-6800 - and - Timothy J. MacFall, Esq. RIGRODSKY & LONG, P.A. 825 East Gate Boulevard, Suite 300 Garden City, NY 11530 Telephone: (516) 683 3516 - and - Gina M. Serra, Esq. 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Telephone: (302) 295 5310 ROCHE HOLDING: Court Grants Bid to Dismiss Securities Suit ---------------------------------------------------------- The United States District Court for the District of New Jersey issued an Opinion granting Defendant's Motion to Dismiss the case captioned THOMAS BIONDOLILLO, individually and on behalf of all others similarly situated, Plaintiff, v. ROCHE HOLDING AG., SEVERIN SCHWAN, ALAN HIPPE, DANIEL O'DAY, and GOTTLIEB A. KELLER, Defendants. Civ. No. 17-4056. (D.N.J.). This class action, brought on behalf of purchasers of certain securities in Roche, arises from allegations that Defendants made false and misleading statements about the results of a breast cancer treatment study, artificially inflating Roche's stock price. The Amended Complaint alleges that all Defendants violated Section 10(b) of the Securities Exchange Act, 15 U.S.C. Section 78j(b), and Rule 10b-5, 17 C.F.R. Section 240.10b-5. LEGAL STANDARD The Private Securities Litigation Reform Act (PSLRA) imposes a more demanding pleading standard. To allege a false or misleading statement or omission, the complaint must, specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and, if an allegation regarding the statement or omission is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed. The PSLRA requires that a complaint alleging scienter state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind. Section 10(b) and Rule 10b-5 All Defendants are alleged to have violated Section 10(b) and Rule 10b-5 by making any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading. To establish this cause of action, Plaintiff must prove (1) a material misrepresentation or omission by the defendant (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security (4) reliance upon the misrepresentation or omission (5) economic loss; and (6) loss causation. Material Misrepresentation Roche's March 2 Press Release The press release issued by Roche on March 2, 2017 announced positive results, and also made the following specific claims about APHINITY: it found a statistically significant improvement in invasive disease-free survival, it met its primary endpoint, the safety profile of the Perjeta-based regimen was consistent with that seen in previous studies and no new safety signals were identified. The press release also stated that full results would be announced at the ASCO meeting, but made no other warning that the announced headline results should be discounted. Of the specific claims made, the study did find a statistically significant improvement in disease-free survival, and the study did meet its primary endpoint. The press release's statements concerning safety signals were also accurate. Likewise, the press release taken as a whole is not misleading. The press release called the APHINITY results positive, but such interpretations of trial data are matters of opinion and the Amended Complaint offers no evidence that this opinion lacked a reasonable basis. O'Day's Remarks During the April 27 Conference Call During the April 27, 2017 call, O'Day repeated the press release claims that APHINITY met its primary endpoint and that the data shows a reduction in risk recurrence. His claims, specifically his claims that the Perjeta-based regimen can improve the standard of care systematically and that the APHINITY data are clinically meaningful were later doubted by analysts and medical professionals. But his statements are still, like those made in the press release, interpretations of a clinical trial and matters of opinion. That O'Day's statements were opinions is shown by an expert's remark that, A determination of clinical significance is necessarily more nuanced than the hard numbers that determine statistical significance. And Plaintiff does not show that O'Day did not honestly believe these opinions or lacked a reasonable basis for them. O'Day therefore did not make false or misleading statements during the conference call. Scienter Scienter is a mental state embracing intent to deceive, manipulate, or defraud, encompassing reckless or conscious behavior, Here, the Amended Complaint adequately pleads scienter for Defendants Roche and O'Day. Roche, as co-author of the press release, and O'Day, as issuer of statements during the conference call, are impliedly conscious of, or reckless in regard to, the allegedly false content contained in their respective statements. But Plaintiff fails to infer scienter for the three remaining Individual Defendants: Schwan, Hippe, and Keller. Their senior positions at Roche are insufficient, as the Third Circuit does not apply the group pleading doctrine. The Amended Complaint makes no allegations specifically tying these Defendants to the drafting of the press release or any meetings related to the APHINITY study. While these Defendants did sell stock between the March press release and the June ASCO meeting, Plaintiff does not show how these sales were unusual in scope or timing. Because of the Amended Complaint's defects regarding both false and misleading statements and scienter, Defendants' Motion to Dismiss must be granted as to the Section 10(b) and Rule 10b-5 claims. Section 20(a) Section 20(a) of the Securities Exchange Act states that: Every person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action. Liability under Section 20(a) is derivative of an underlying violation of Section 10(b) by the controlled person. Thus, where no Section 10(b) violation has been successfully pled, a Section 20(a) violation must fail as well. The Amended Complaint must therefore be dismissed with regard to Section 20(a). The Defendants' Motion to Dismiss is granted. A full-text copy of the District Court's September 24, 2018 Opinion is available at https://tinyurl.com/y9268rg7 from Leagle.com. Kevin Gardeck, Movant, represented by LAURENCE M. ROSEN -- lrosen@rosenlega.com -- THE ROSEN LAW FIRM, PA. THOMAS BIONDOLILLO, Individually and on behalf of all others similarly situated, Plaintiff, represented by LAURENCE M. ROSEN , THE ROSEN LAW FIRM, PA. ROCHE HOLDING AG, SEVERIN SCHWAN & ALAN HIPPE, Defendants, represented by MICHAEL R. GRIFFINGER -- mgriffinger@gibbonslaw.com -- GIBBONS, PC, CALVIN KUSHNIR MAY -- cmay@gibbonslaw.com -- GIBBONS PC & SAMUEL ISAAC PORTNOY -- sportnoy@gibbonslaw.com -- GIBBONS PC. Daniel O'Day & Gottlieb Keller, Defendants, represented by MICHAEL R. GRIFFINGER , GIBBONS, PC. SAFEWAY INC: Helfand Appeals Order in Rodman Suit to 9th Cir. ------------------------------------------------------------- Objector Steven F. Helfand filed an appeal from a court ruling in the lawsuit styled Michael Rodman, et al. v. Safeway, Inc., Case No. 3:11-cv-03003-JST, in the U.S. District Court for the Northern District of California, San Francisco. The appellate case is captioned as Michael Rodman, et al. v. Safeway, Inc., Case No. 18-16854, in the United States Court of Appeals for the Ninth Circuit. As reported in the Class Action Reporter on Oct. 4, 2018, Judge Jon S. Tigar (i) approved the distribution plan, and (ii) granted in part and denied in part the Plaintiffs' motion for attorneys' fees, expenses, and an incentive award. Mr. Rodman brought the breach of contract case against the Defendant, on behalf of himself and all other individuals similarly situated. The Plaintiffs' claims arise from their purchase of groceries from Safeway's website for home delivery. Safeway promised its online customers that the prices charged for Safeway.com products would be those charged in the physical store proximate to where the groceries were delivered. In fact, Safeway charged more for online purchases than it did for purchases from its brick-and-mortar stores. The Court certified the class of all persons in the United States who registered to purchase groceries through Safeway.com at any time prior to Nov. 15, 2011, and made one or more purchases subject to the price markup implemented on or about April 12, 2010. There are 297,822 class members. On Nov. 30, 2015, the Court entered judgment in favor of the certified class. After pre- and post-judgment interest, the total judgment amounts to $42,321,355.45. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by October 22, 2018; -- Transcript is due on November 20, 2018; -- Appellant Steven F. Helfand's opening brief is due on January 3, 2019; -- Appellees Michael Rodman and Safeway, Inc.'s answering brief is due on February 4, 2019; and -- Appellant's optional reply brief is due 21 days after service of the answering brief. Objector-Appellant Steven F. Helfand, of Miami Beach, Florida, appears pro se.[BN] Plaintiff-Appellee MICHAEL RODMAN, on behalf of himself and all others similarly situated, is represented by: Timothy N. Mathews, Esq. Steven Alan Schwartz, Esq. CHIMICLES & TIKELLIS LLP 361 W. Lancaster Avenue Haverford, PA 19041 Telephone: (610) 642-8500 E-mail: TimothyMathews@chimicles.com SteveSchwartz@chimicles.com - and - James C. Shah, Esq. Scott R. Shepherd, Esq. SHEPHERD FINKELMAN MILLER & SHAH, LLC 35 E. State St. Media, PA 19063 Telephone: (610) 891-9880 E-mail: jshah@sfmslaw.com sshepherd@sfmslaw.com Defendant-Appellee SAFEWAY, INC., is represented by: Scott D. Baker, Esq. James A. Daire, Esq. Jonah Mitchell, Esq. Christine M. Morgan, Esq. REED SMITH LLP 101 Second Street San Francisco, CA 94105 Telephone: (415) 659-5600 E-mail: sbaker@reedsmith.com jdaire@reedsmith.com jmitchell@reedsmith.com cmorgan@reedsmith.com SANDERSON FARMS: Appeal Ongoing in New York Class Action -------------------------------------------------------- Sanderson Farms, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended July 31, 2018, that the appeal is still ongoing in the United States Court of Appeals for the Second Circuit in the putative class action suit filed against the company in the U.S. District Court for the Southern District of New York. Sanderson Farms, Inc.; Joe F. Sanderson, Jr., the Chairman of the Registrant's Board of Directors and its Chief Executive Officer; and D. Michael Cockrell, director and Chief Financial Officer, were named as defendants in a putative class action lawsuit filed on October 28, 2016, in the United States District Court for the Southern District of New York. On March 30, 2017, the lead plaintiff filed an amended complaint adding Lampkin Butts, director, Chief Operating Officer, and President, as a defendant, and on June 15, 2017, the lead plaintiff filed a second amended complaint. The complaint alleges that the defendants made statements in the Company's SEC filings and press releases, and other public statements, that were materially false and misleading in light of the Company's alleged, undisclosed violation of the federal antitrust laws. The complaint also alleges that the material misstatements were made in order to, among other things, "artificially inflate and maintain the market price of Sanderson Farms securities." The complaint alleges the defendants thereby violated the Securities Exchange Act of 1934, as amended (the "Exchange Act"), including Section 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder, and, for the individual defendants, Section 20(a) of the Exchange Act, and seeks damages, interest, costs and attorneys' fees. On January 19, 2018, the Court granted the defendants' motion to dismiss and entered judgment for the defendants. On January 31, 2018, the plaintiff filed a notice of appeal to the United States Court of Appeals for the Second Circuit, and the case is scheduled for argument on August 31, 2018. Sanderson Farms said, "The Company cannot predict the outcome of this action or the appeal. If the plaintiffs were to prevail in the action, the Company could be liable for damages, which could have a material, adverse effect on our financial position and results of operations." Sanderson Farms, Inc., an integrated poultry processing company, produces, processes, markets, and distributes fresh, frozen, and prepared chicken products in the United States. Sanderson Farms, Inc. was founded in 1947 and is headquartered in Laurel, Mississippi. SANDERSON FARMS: Bid to Dismiss North Carolina Class Suit Underway ------------------------------------------------------------------ Sanderson Farms, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended July 31, 2018, that the motion to dismiss the lawsuit in the Eastern District of North Carolina is pending. On January 27, 2017, Sanderson Farms, Inc. and the company's subsidiaries were named as defendants, along with four other poultry producers and certain of their affiliated companies, in a putative class action lawsuit filed in the United States District Court for the Eastern District of Oklahoma. On March 27, 2017, Sanderson Farms, Inc. and the company's subsidiaries were named as defendants, along with four other poultry producers and certain of their affiliated companies, in a second putative class action lawsuit filed in the United States District Court for the Eastern District of Oklahoma. The Court ordered the suits consolidated into one proceeding, and on July 10, 2017, the plaintiffs filed a consolidated amended complaint. The consolidated amended complaint alleges that the defendants unlawfully conspired by sharing data on compensation paid to broiler farmers, with the purpose and effect of suppressing the farmers' compensation below competitive levels. The consolidated amended complaint also alleges that the defendants unlawfully conspired to not solicit or hire the broiler farmers who were providing services to other defendants. The consolidated amended complaint seeks treble damages, costs and attorneys' fees. On September 8, 2017, the defendants filed a motion to dismiss the amended complaint, on October 23, 2017, the plaintiffs filed their response, and on November 22, 2017, the defendants filed a reply. On January 19, 2018, the Court granted the Sanderson Farms defendants' motion to dismiss for lack of personal jurisdiction. The motion to dismiss the complaint filed in the Eastern District of Oklahoma on its merits is pending as to the remaining defendants. On February 21, 2018, the plaintiffs filed a substantially similar lawsuit in United States District Court for the Eastern District of North Carolina against Sanderson Farms and the company's subsidiaries and another poultry producer. Defendants subsequently moved to consolidate this action with the Eastern District of Oklahoma action in the Eastern District of Oklahoma for pre-trial proceedings, which was denied. On July 13, 2018, the defendants moved to dismiss the lawsuit in the Eastern District of North Carolina. That motion is pending. Sanderson Farms said, "We intend to defend this case vigorously; however, the Company cannot predict the outcome of this action. If the plaintiffs were to prevail, the Company could be liable for damages, which could have a material, adverse effect on our financial position and results of operations." Sanderson Farms, Inc., an integrated poultry processing company, produces, processes, markets, and distributes fresh, frozen, and prepared chicken products in the United States. Sanderson Farms, Inc. was founded in 1947 and is headquartered in Laurel, Mississippi. SANDERSON FARMS: Discovery Ongoing in Broiler Chicken-Related Suit ------------------------------------------------------------------ Sanderson Farms, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended July 31, 2018, that discovery is still ongoing in the Broiler Chicken-related lawsuit. Between September 2, 2016 and October 13, 2016, Sanderson Farms, Inc. and the company's subsidiaries were named as defendants, along with 13 other poultry producers and certain of their affiliated companies, in multiple putative class action lawsuits filed by direct and indirect purchasers of broiler chickens in the United States District Court for the Northern District of Illinois. The complaints allege that the defendants conspired to unlawfully fix, raise, maintain, and stabilize the price of broiler chickens, thereby violating federal and certain states' antitrust laws, and also allege certain related state-law claims. The complaints also allege that the defendants fraudulently concealed the alleged anticompetitive conduct in furtherance of the conspiracy. The complaints seek damages, including treble damages for the antitrust claims, injunctive relief, costs, and attorneys' fees. The Court has consolidated all of the direct purchaser complaints into one case, and the indirect purchaser complaints into two cases, one on behalf of commercial and institutional indirect purchaser plaintiffs and one on behalf of end-user consumer plaintiffs. On October 28, 2016, the direct and indirect purchaser plaintiffs filed consolidated, amended complaints, and on November 23, 2016, the direct and indirect purchaser plaintiffs filed second amended complaints. On December 16, 2016, the indirect purchaser plaintiffs separated into two cases. On that date, the commercial and institutional indirect purchaser plaintiffs filed a third amended complaint, and the end-user consumer plaintiffs filed an amended complaint. On January 27, 2017, the defendants filed motions to dismiss the amended complaints in all of the cases, and on November 20, 2017, the motions to dismiss were denied. On February 7, 2018, the direct purchaser plaintiffs filed their third amended complaint, adding three additional poultry producers as defendants. On February 12, 2018, the end-user consumer plaintiffs filed their second amended complaint, in which they also added three additional poultry producers as defendants, along with Agri Stats. On February 20, 2018, the commercial indirect purchaser plaintiffs filed their fourth amended complaint. The parties are currently engaged in discovery. Sanderson Farms said, "We intend to continue to defend the lawsuits vigorously; however, the Company cannot predict the outcome of these actions. If the plaintiffs were to prevail, the Company could be liable for damages, which could have a material, adverse effect on our financial position and results of operations." The company further disclosed that, between December 8, 2017 and August 16, 2018, additional purported direct-purchaser entities individually brought twelve separate suits against 17 poultry producers, including Sanderson Farms and Agri Stats, in the United States District Court for the Northern District of Illinois and the United States District Court for the District of Kansas. These suits allege substantially similar claims to the direct purchaser class complaint described above. Those filed in the Northern District of Illinois are now pending in front of the same judge as the putative class action lawsuits. The parties are currently engaged in discovery. On June 26, 2018, the defendants filed a motion to transfer the case filed in the District of Kansas to the Northern District of Illinois. That motion is still pending. It is possible additional individual actions may be filed. Sanderson Farms, Inc., an integrated poultry processing company, produces, processes, markets, and distributes fresh, frozen, and prepared chicken products in the United States. Sanderson Farms, Inc. was founded in 1947 and is headquartered in Laurel, Mississippi. SANTA FE, NM: Moya Seeks More Time to File Petition for Writ ------------------------------------------------------------ Plaintiffs Mariano Moya, et al., ask Justice Sonia Maria Sotomayor to extend the time to file a petition for a writ of certiorari from October 8, 2018, to November 23, 2018, in the lawsuit titled Mariano Moya, et al. v. Robert Garcia, et al., Case No. 18A326, in the Supreme Court of United States. Robert Garcia is the Sheriff of Santa Fe County, New Mexico. As previously reported in the Class Action Reporter, Plaintiffs Mariano Moya and Lonnie Petry filed an appeal from a court ruling in their lawsuit. The appellate case is captioned as Moya, et al. v. Garcia, et al., Case No. 17-2037, in the United States Court of Appeals for the Tenth Circuit. The lawsuit is brought over alleged civil rights violations. The District Court case is entitled Moya, et al. v. Garcia, et al., Case No. 1:16-CV-01022-WJ-KBM, in the U.S. District Court for the District of New Mexico - Albuquerque.[BN] Plaintiffs-Petitioners Mariano Moya, et al., are represented by: Todd A. Coberly, Esq. COBERLY & MARTINEZ, LLLP 1322 Paseo de Peralta Santa Fe, NM 87501 Telephone: (505) 989-1029 E-mail: todd@coberlymartinez.com Defendants-Respondents ROBERT GARCIA, Santa Fe County Sheriff; MARK CALDWELL, Warden of Santa Fe County Adult Correctional Facility; MARK GALLEGOS, former Warden Santa Fe County Adult Correctional Facility, in their individual capacities; and BOARD OF COMMISSIONERS OF SANTA FE COUNTY are represented by: Brandon Huss, Esq. Dennis K. Wallin, Esq. WALLIN, HUSS & MENDEZ, LLC P.O. Box 696 Moriarty, NM 87035 Telephone: (505) 832-6363 Facsimile: (505) 814-5805 E-mail: bh@whmlawfirm.com dkw@whmlawfirm.com SARGON ISAAC: Tyler Swain Alleges Racism & Unsafe Housing --------------------------------------------------------- TYLER SWAIN, individually and on behalf of all similarly situated persons, the Plaintiff, v. SARGON ISAAC, individually and d/b/a "SI Properties" and/or "Simla Properties," and RICHARD SAMUELS, the Defendants, Case No. 2018CH11987 (Ill. Cir. Ct., Cook Cty., Sept. 24, 2018), seeks to put a stop to Sargon Isaac's racism, and compel him to provide to his tenants the equitable, safe, and sanitary housing required by the law. According to the complaint, Sargon Isaac is a slumlord with an empire of crumbling properties across Chicago and Evanston. He rents damaged houses and apartments which are barely habitable, if at all. Most, if not all, of his properties have infestations, mold problems, water damage, and/or sewage leaks. He doesn't fix those problems, though -- instead, he simply demands rent. And if his tenants withhold rent based on the conditions in the apartment, or complain repeatedly about those conditions, Sargon evicts them. He's filed dozens of evictions in the last 18 months, representing himself in most of them. But Sargon is more than a slumlord, the lawsuit contends. Sargon doesn't return security deposits, doesn't pay security deposit interest, and on move-out charges tenants to fix problems which existed when they moved in. But he will repair the problems in the units of his white tenants. He will work with his white tenants if they fall behind on rent. But if the tenant is a person of color or LGBTQ, Sargon harasses them, refusing to make repairs and charging hundreds of dollars for the few repairs he does make, the lawsuit says.[BN] Attorneys for Plaintiff: Sheryl Ring, Esq. Christopher Riehlmann, Esq. OPEN COMMUNITIES LEGAL ASSISTANCE PROGRAM 990 Grove Street, Suite 500 Evanston, IL 60201 Telephone: (847) 501-5760 E-mail: sheryl@open-communities.org SHANG SHANG: Jiao Files FLSA Suit in E.D. New York -------------------------------------------------- A class action lawsuit has been filed against Shang Shang Qian Inc. The case is styled as Guanglei Jiao, Nan Yu, Ruiji Zhai, Yanjun Li on their own behalf and on behalf of others similarly situated, Plaintiffs v. Shang Shang Qian Inc, Yuan Yuan Wu also known as: Andy Wu, Zhaorui Fan, Dan Wu also known as: Stephy Wu, Meiling Zou also known as: Denise Zou, Defendants, Case No. 1:18-cv-05624 (E.D. N.Y., Oct. 9, 2018). The Plaintiff filed the case under the Fair Labor Standards Act. SSqian, whose full name is Shang Shang Qian, serves companies in the Internet finance, online travel, property and B2B e-commerce firms, where the need for electronic signing is high.[BN] The Plaintiffs appear pro se. SHELTER MUTUAL: Baggett Suit Moved to Eastern District of Arkansas ------------------------------------------------------------------ Samuel Baggett, On Behalf of Himself and all Similarly Situated Persons and Entities, the Plaintiff, v. Shelter Mutual Insurance Company, the Defendant, Case No. 60CV-18-01542, was removed from the Pulaski County Circuit Court, to the U.S. District Court for the Eastern District of Arkansas (Helena) on Sept. 25, 2018. The Eastern District of Arkansas Court Clerk assigned Case no. Case No. 2:18-cv-00134-BRW to the proceeding. The case is assigned to the Hon. Judge Billy Roy Wilson. The suit alleges motor vehicle related violation. Shelter Insurance Company is a mutual insurance company which focuses on Auto, Property, Business, and Life Insurance. It operates in fifteen U.S. states and the headquarters is in Columbia, Missouri.[BN] Attorneys for Samuel Baggett: David S. Mitchell, Esq. DAVID S. MITCHELL, P.A. Prospect Building 1501 North University, Suite 640 Little Rock, AR 72207 Telephone: (501) 663 3322 Facsimile: (501) 663 3320 E-mail: DavidMitchell@DavidMitchellLaw.com - and - Kenneth Jerald Mitchell, Esq. TAYLOR KING & ASSOCIATES, P.A. 5209 John F. Kennedy Boulevard North Little Rock, AR 72116 Telephone: (870) 246 0505 E-mail: rustymitchell@taylorkinglaw.com - and - Marcus Neil Bozeman, Esq. THRASH LAW FIRM 1101 Garland Street Little Rock, AR 72201 Telephone: (501) 374 1058 Facsimile: (501) 374 2222 E-mail: mbozeman@thrashlawfirmpa.com Attorneys for Shelter Mutual Insurance Company: James Melton Sayes, Esq. MATTHEWS, SANDERS & SAYES 825 West Third Street Little Rock, AR 72201 Telephone: (501) 378 0717 E-mail: msayes@msslawfirm.com - and - Sarah E. Greenwood, Esq. Munson, Rowlett, Moore & Boone, P.A. Regions Center, Suite 1900 400 West Capitol Avenue Little Rock, AR 72201 Telephone: (501) 374-6535 E-mail: sarah.greenwood@mrmblaw.com SONY MUSIC: Rick Nelson Sues over Royalties ------------------------------------------- THE RICK NELSON COMPANY, LLC, a Delaware limited liability company, on behalf of itself and all others similarly situated, the Plaintiff, vs. SONY MUSIC ENTERTAINMENT, a Delaware corporation, the Defendant, Case 1:18-cv-08791-LLS (S.D.N.Y., Sept. 25, 2018), alleges that the Defendant failed to properly account to the Plaintiff and Class members for income derived from the exploitation of their works. According to the complaint, Sony Music is a record label which obtained the rights to exploit the artistic works of Plaintiff and Class members in exchange for the payment of certain monies to these individuals and entities as required by standard contracts. The terms of the Compensation Agreements between the Defendant and the Plaintiff and Class members contain the same, if not, identical, language regarding the method of accounting for and paying the artists their share of the revenues based on all of the revenue received by the Defendant. The Defendant is contractually required to pay artists a portion of the international revenue it receives from the exploitation of the Plaintiff's and Class members; artistic works from digital streaming abroad. The Compensation Agreements do not allow the Defendant to assess an "intercompany charge" for international sales reported by the Defendant through its wholly-owned subsidiaries. Despite this fact, the Defendant did, and continues to, assess an intercompany charge for international sales. By assessing an intercompany charge for international sales, the Defendant impermissibly takes up to 68% off the top of the international revenue earned from streaming sales, and bases the artist's royalty rate on the remainder, which methodology directly violates the terms of the Compensation Agreements. The Defendant under reports revenue generated from foreign sales by improperly assessing an intercompany charge on revenues collected through its wholly-owned foreign affiliates, thereby impermissibly reducing the share owed to Plaintiff and Class members by the same amount. The Defendant does not have a contractual or equitable right to assess this intercompany charge on Plaintiff and Class members. The Defendant has unilaterally breached the Compensation Agreements by deciding to pay the Plaintiff and Class members less than the full amount owed to them under the express terms of the Compensation Agreements in connection with the distribution of their works, the lawsuit says.[BN] Attorneys for Plaintiff and the Proposed Class: Laurie Rubinow, Esq. James C. Shah, Esq. SHEPHERD, FINKELMAN, MILLER & SHAH, LLP 52 Duane Street, 7th Floor New York, NY 10007 Telephone: (212) 419 0156 Facsimile: (866) 300 7367 E-mail: lrubinow@sfmslaw.com jshah@sfmslaw.com - and - Neville L. Johnson, Esq. Douglas L. Johnson, Esq. Arun Dayalan, Esq. JOHNSON & JOHNSON LLP 439 N. Canon Dr. Suite 200 Beverly Hills, CA 90210 Telephone: (310) 975 1080 Facsimile: (310) 975 1095 E-mail: njohnson@jjllplaw.com djohnson@jjllplaw.com adayalan@jjllplaw.com - and - Clifford H. Pearson, Esq. Daniel L. Warshaw, Esq. PEARSON, SIMON & WARSHAW, LLP 15165 Ventura Boulevard, Suite 400 Sherman Oaks, CA 91403 Telephone: (818) 788-8300 Facsimile: (818) 788-8104 E-mail: cpearson@pswlaw.com dwarshaw@pswlaw.com bpouya@pswlaw.com - and - Paul R. Kiesel, Esq. Jeffrey A. Koncius, Esq. Nicole Ramirez, Esq. KIESEL LAW LLP 8648 Wilshire Boulevard Beverly Hills, CA 90211-2910 Telephone: (310) 854 4444 Facsimile: (310) 854 0812 E-mail: kiesel@kiesel.law koncius@kiesel.law ramirez@kiesel.law SOOTHE INC: Herrera Seeks to Stop Sending of Unsolicited Texts -------------------------------------------------------------- Antoinette Herrera, individually and on behalf of all others similarly situated v. Soothe, Inc., a Delaware corporation, Case No. 2:18-cv-08318 (C.D. Cal., September 26, 2018), seeks to stop the Defendant's alleged practice of sending unsolicited text messages to cellular telephones without procuring consumers' prior express written consent, in violation of the Telephone Consumer Protection Act. Soothe, Inc., is a corporation incorporated and existing under the laws of the state of Delaware whose primary place of business and corporate headquarters is located in Los Angeles, California. Soothe is a multinational in-home massage service provider.[BN] The Plaintiff is represented by: Aaron D. Aftergood, Esq. THE AFTERGOOD LAW FIRM 1880 Century Park East, Suite 200 Los Angeles, CA 90067 Telephone: (310) 551-5221 Facsimile: (310) 496-2840 E-mail: aaron@aftergoodesq.com - and - Steven L. Woodrow, Esq. Patrick H. Peluso, Esq. Taylor T. Smith, Esq. WOODROW & PELUSO, LLC 3900 East Mexico Avenue, Suite 300 Denver, CO 80210 Telephone: (720) 213-0675 Facsimile: (303) 927-0809 E-mail: swoodrow@woodrowpeluso.com ppeluso@woodrowpeluso.com tsmith@woodrowpeluso.com SPECIALTY RESCUE: Porter Seeks to Recoup Minimum & Overtime Wages ----------------------------------------------------------------- LYNDON PORTER, Individually, and on behalf of all others similarly situated under 29 USC 216(b) v. SPECIALTY RESCUE & FIRE SERVICE, LLC, Case No. 3:18-cv-02584-G (N.D. Tex., September 27, 2018), seeks to recover alleged unpaid minimum wage and overtime compensation, liquidated damages, attorneys' fees, and costs pursuant to the Fair Labor Standards Act of 1938. Specialty Rescue & Fire Service, LLC, is a Texas limited liability company. The primary function of the Defendant's business is Emergency Response training, Consulting and Equipment service, to include servicing confined space equipment, such as silos.[BN] The Plaintiff is represented by: Drew N. Herrmann, Esq. Pamela G. Herrmann, Esq. HERRMANN LAW, PLLC 801 Cherry St., Suite 2365 Fort Worth, TX 76102 Telephone: (817) 479-9229 Facsimile: (817) 887-1878 E-mail: drew@herrmannlaw.com pamela@herrmannlaw.com SPENCE FENCE: Slover Files Suit in Cal. Super. Ct. -------------------------------------------------- A class action lawsuit has been filed against Spence Fence Company Enterprises. The case is styled as Jimmy Slover on behalf of others similarly situated, Plaintiff v. Spence Fence Company Enterprises, a California Corporation, Defendant, Case No. VCU275839 (Cal. Super. Ct., Tulare Cty., Oct. 5, 2018). Spence Fence does many different styles of ornamental iron fencing. They produce wood fencing for most major homebuilders from Tulare, Kings, and Fresno counties to Paso Robles. They also do specialty jobs such as The College of the Sequoias' ballfield, which you can see when driving down Route 198 in Visalia. Chain link fencing is done for residential and commercial properties and they make their own chain link gates in their in-house welding shop.[BN] STARBUCKS CORP: 9th Cir. Revives Off-Clock Work Class Action ------------------------------------------------------------ Courthouse News Service reported that following guidance by the California Supreme Court received in July, a Ninth Circuit panel on Sept. 25 revived a potential labor class action by Starbucks employees in the Golden State who claim they should be paid for menial tasks like closing and locking up stores. STREMICK'S HERITAGE: Mislabels Kern's Fruit Juices, Levin Alleges ----------------------------------------------------------------- DEBORAH LEVIN, on behalf of herself, all others similarly situated, and the general public v. STREMICK'S HERITAGE FOODS, a Delaware Limited Liability Company, Case No. 8:18-cv-01748 (C.D. Cal., September 26, 2018), alleges that the Defendant falsely advertised certain products in California, including Kern's Guava, Apricot, and Peach Nectar. The Products' labels convey to the consumer that these are healthy, natural beverages, brimming with healthful fruit juices. But this is simply false, Ms. Levin contends. She alleges that the Products consist of water and high fructose corn syrup with minimal amounts of fruit puree and 31% or less of the juice of the fruit the Products are named for. Stremick's Heritage Foods, LLC, is a Delaware limited liability company with its headquarters and principal place of business in Santa Ana, California. Stremick's manufactures, packages, labels, advertises, markets, distributes, and sells the Products in California and throughout the United States. Stremick's sells fruit-flavored beverage products under the trade name "Kern's."[BN] The Plaintiff is represented by: Ronald A. Marron, Esq. Michael T. Houchin, Esq. LAW OFFICES OF RONALD A. MARRON 651 Arroyo Drive San Diego, CA 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 E-mail: ron@consumersadvocates.com mike@consumersadvocates.com TESLA ENERGY: Zamorano Seeks Unpaid Wages under Labor Code ---------------------------------------------------------- SALVADOR ZAMORANO on behalf of himself, all others similarly situated, and on behalf of the general public, the Plaintiff, v. TESLA ENERGY OPERATIONS, INC. and DOES 1-100, the Defendants, Case No. 37-2018-00043430-CU-OE-CTL (Cal. Super. Ct., Sept. 25, 2018), alleges that the Defendants did not: -- pay compensation for all time worked at the straight or overtime rate, -- provide accurate itemized wage statements, -- provide paid sick days for all hours worked, and -- pay wages due upon termination under the California Labor Code. According to the complaint, the Plaintiff worked a shift of at least five hours without receiving a meal period and worked four hours, or a major fraction, without receiving a 10 minute net rest break. The Plaintiff was employed in the State of California by the Defendants as a non-exempt panel installer in California during the relevant time period. The Plaintiff was employed in a non-exempt capacity. The Defendants are engaged in the ownership and operation of facilities which manufacture and distribute solar energy equipment located within San Diego County and throughout California.[BN] Attorneys for Salvador Zamorano, on behalf of himself, all others similarly situated, and on behalf of the general public: William Turley, Esq. David Mara, Esq. Jill Vecchi, Esq. Nikki Ousdahl, Esq. THE TURLEY & MARA LAW FIRM, APLC 7428 Trade Street San Diego, CA 92121 Telephone: (619) 234 2833 Facsimile: (619) 234 4048 THOMAS REUTERS: Court Stay Landry FCRA Suit ------------------------------------------- The United States District Court for the District of New Hampshire issued an Order granting Defendant's Motion to Stay in the case captioned Ryan Landry, Plaintiff, v. Thomson Reuters Corporation, Defendant. Case No. 16-cv-507-SM. (D.N.H.) Pending before the court is TRC's motion to stay these proceedings pending resolution of the ongoing arbitration between Landry and Time Warner. Plaintiff, Ryan Landry, filed this proposed class action against his former employer, Time Warner Cable, as well as Thomson Reuters Corporation. Landry alleged that Time Warner violated various provisions of the federal Fair Credit Reporting Act (FCRA), as well as New Hampshire's statutory analogue. Authority to Stay Proceedings In determining whether it is appropriate to stay litigation pending the outcome of related arbitration proceedings, courts consider several factors, including: (1) whether a stay will unduly prejudice or tactically disadvantage the nonmoving party; (2) whether a stay could serve to clarify and/or simplify the remaining issues to be litigated; and (3) whether the case is at an early stage (e.g., whether discovery has been completed, whether a trial date has been set, etc.). Here, TRC asserts that all relevant factors counsel in favor of granting its requested stay. But, its focus is primarily on the second of those factors: whether staying this proceeding while Landry arbitrates his claims against Time Warner would clarify and/or simplify the issues to be litigated in this case. Standing and the Nature of Landry's Claims In the context of an FCRA claim, the Court concluded that, to have standing, a plaintiff must have suffered some actual harm that is, an injury in fact. A claim alleging a bare procedural violation of the FCRA, divorced from any concrete harm, is insufficient. Consequently, the Court noted, a plaintiff does not necessarily have standing simply because he or she can identify some procedural statutory violation in a setting in which Congress has made statutory damages available to those who are unable (or for whom it would be difficult) to prove actual damages. Here, Landry's amended complaint adequately alleges that TRC's violations of the FCRA actually harm, or present a material risk of harm to, the concrete interests Congress enacted the FCRA to protect. Specifically, he alleges that TRC's various violations of the FCRA resulted in the dissemination of a consumer credit report without his knowledge or permission that contained outdated and materially false information including the false statement that he was convicted of a crime, and served a prison sentence, in Texas. Plainly, those are the types of reputational harms flowing from the publication of false and damaging information that Congress sought to prevent when it enacted the FCRA. Consequently, even if Landry cannot demonstrate that his discharge was related to TRC's credit report, his amended complaint adequately alleges concrete and particularized harms, proximately caused by TRC's violations of the FCRA, sufficient to vest him with standing. A Stay is Appropriate In his amended complaint, Landry alleges that, as a result of TRC's willful violations of the FCRA, he and other members of the proposed classes have suffered and continue to suffer damages. But, the amended complaint does not allege that any of the inaccurate or outdated factual statements about Landry as contained in the TRC report were disseminated to anyone outside of the two members Time Warner's Corporate Security Division with whom he met. He does not, for example, claim he lost employment opportunities with other entities as a result of the TRC report, or that he was denied credit, or that he suffered reputation injury in the community. Accordingly, his efforts to recover actual damages from TRC would appear to be linked directly to his ability to establish that Time Warner relied upon TRC's report when it decided to terminate his employment. On balance, then, the factors relevant to the court's determination regarding appropriateness of a stay counsel in favor of such a stay. First, the pending arbitration proceedings will likely clarify and/or simplify material issues to be litigated in this action. Moreover, Landry has not suggested that a stay would cause him to suffer undue prejudice or tactically disadvantage him. And, finally, this proceeding is at a relatively early stage: Landry filed his amended complaint against TRC less than two months ago, a scheduling order has yet to issue, and the parties have yet to engage in discovery. Thomson Reuters Corporation's Motion to Stay Proceedings is granted. A full-text copy of the District Court's September 24, 2018 Order is available at https://tinyurl.com/y7w7qc9e from Leagle.com. Ryan Landry, Plaintiff, represented by Amy E. Tabor, Caddell & Chapman, pro hac vice, Michael A. Caddell, Caddell & Chapman, pro hac vice, Benjamin J. Wyatt, Wyatt Law Offices & Michael Varraso, Wyatt Law Offices. Thomson Reuters Corporation, Defendant, represented by Eric Bosset -- ebosset@cov.com -- Covington & Burling LLP, pro hac vice, Geoffrey J. Vitt -- gvitt@vittandassociates.com -- Vitt & Associates PLC & Neil K. Roman -- nroman@cov.com -- Covington & Burling LLP, pro hac vice. THRIVE CAUSEMETICS: Barker Suit Removed to W.D. Wash. ----------------------------------------------------- The case captioned Sara M. Barker, individually and on behalf of all others similarly situated, Plaintiff v. Thrive Causemetics, Inc. a Delaware corporation, Karissa Bodnar, an individual, Defendants, Case No. 18-00002-21685-1 was removed from King County Superior Court to the United States District Court for the Western District of Washington on Oct. 5, 2018, and assigned Case No. 2:18-cv-01470. Thrive Causemetics, Inc. develops eyeliners, false eyelashes and related adhesives. The company was incorporated in 2015 and is based in Seattle, Washington.[BN] The Plaintiff is represented by: Elizabeth Ann Hanley, Esq. REED LONGYEAR MALNATI & AHRENS 801 SECOND AVE 1415 NORTON BLDG SEATTLE, WA 98104-1522 Phone: (206) 624-6271 Fax: (206) 624-6672 Email: ehanley@reedlongyearlaw.com - and - Eric Riley Nusser, Esq. TERRELL MARSHALL LAW GROUP PLLC 936 NORTH 34TH STREET, STE 300 SEATTLE, WA 98103-8869 Phone: (206) 816-6603 Email: eric@terrellmarshall.com - and - Toby James Marshall, Esq. TERRELL MARSHALL LAW GROUP PLLC 936 NORTH 34TH STREET, STE 300 SEATTLE, WA 98103-8869 Phone: (206) 816-6603 Fax: (206) 319-5450 Email: tmarshall@terrellmarshall.com The Defendants are represented by: John S. Devlin, III, Esq. LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 SEATTLE, WA 98111-9402 Phone: (206) 223-7000 Fax: 223-7107 Email: devlinj@lanepowell.com - and - Erin M Wilson, Esq. LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 SEATTLE, WA 98101-2338 Phone: (206) 233-7432 Email: wilsonem@lanepowell.com - and - Taylor Washburn, Esq. LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 SEATTLE, WA 98111-9402 Phone: (206) 223-7000 Email: washburnt@lanepowell.com TOKASH ENTERPRISES: Venegas Seeks OT Pay under FLSA --------------------------------------------------- JUAN VENEGAS on behalf of himself and all others similarly situated, the Plaintiff, vs. TOKASH ENTERPRISES, INC. d/b/a DEAN'S GREENS, GILLETTE AMOCO, INC., ROBERT TOKASH, individually, and NADINE TOKASH, individually, the Defendants, Case No. Case 2:18-cv-14264 (D.N.J., Sept. 25, 2018), seeks recovery against the Defendants for its violation of the Fair Labor Standards Act and the New Jersey State Wage and Hour Law. The Plaintiff brings this lawsuit against the Defendants as a collective action on behalf of himself and all other persons similarly situated laborers who suffered damages as a result of the Defendants' violations of the FLSA pursuant to the collective action provisions of 29 U.S.C. section 216(b), and as a class action pursuant to Rule 23. According to the complaint, beginning in 2004, and continuing through November 2017, the Defendants engaged in a policy and practice of requiring the Plaintiff and members of the putative collective to regularly work in excess of 40 hours per week, without providing overtime compensation as required by applicable federal and New Jersey state law. The Plaintiff has initiated this action on behalf of himself and similarly situated employees to recover the overtime compensation that the Plaintiff and similarly situated employees were deprived of, plus damages, attorneys' fees, and costs.[BN] Attorneys for Plaintiff and the Putative Class: Andrew I. Glenn, Esq. Jodi J. Jaffe, Esq. JAFFE GLENN LAW GROUP, P.A. 301 N. Harrison Street, Suite 9F, #306 Princeton, NJ 08540 Telephone: (201) 687-9977 Facsimile: (201) 595-0308 E-mail: Aglenn@jaffeglenn.com jjaffe@JaffeGlenn.com TUESDAY MORNING: Court Approves Settlement in Castillo Suit ----------------------------------------------------------- Tuesday Morning Corporation said in its Form 10-K report filed with the U.S. Securities and Exchange Commission for the fiscal year ended June 30, 2018, that the court approved the parties settlement in the purported class action suit initiated by Jerry Castillo. The Company was a defendant in a purported class action lawsuit, Jerry Castillo v. Tuesday Morning Inc., which was filed on December 28, 2017 in the United States District Court, Middle District of Florida. The case was brought under the Fair Labor Standards Act and included allegations that the Company violated various wage and hour labor laws. Relief was sought on behalf of current and former Company employees. The lawsuit sought to recover damages, penalties and attorneys' fees as a result of the alleged violations. The matter settled for an amount not material to the Company on July 6, 2018 and the Court approved the settlement on July 9, 2018. Tuesday Morning Corporation operates as a retailer of products for the home in the United States. The company offers various products, such as upscale home textiles, home furnishings, housewares, gourmet food products, toys, and seasonal décor products. Tuesday Morning Corporation was founded in 1974 and is headquartered in Dallas, Texas. TUESDAY MORNING: Court Approves Settlement in Velarde Suit ---------------------------------------------------------- Tuesday Morning Corporation said in its Form 10-K report filed with the U.S. Securities and Exchange Commission for the fiscal year ended June 30, 2018, that court approved the parties settlement in the purported class action lawsuit filed by Hector Velarde. The Company was a defendant in a purported class action lawsuit, Hector Velarde, on behalf of himself and all other similar situated, Pltf. vs. Tuesday Morning, Inc., which was filed on February 26, 2018 in state court and was pending in the United States District Court, Central District of California. The case was brought under the Unruh Civil Rights Act, California Code Section 51 ci seq. ("Unruh Act"), the California Disabled persons Act, California Civil Code Section 54 et seq. ("CDPA"), and Cal. Civ. Code Section 55 et seq. and included allegations that the Company violated various public access laws. The lawsuit sought to recover damages, penalties and attorneys' fees as a result of the alleged violations. The matter settled for an amount not material to the Company on July 2, 2018 and the Court approved the settlement on July 11, 2018. Tuesday Morning Corporation operates as a retailer of products for the home in the United States. The company offers various products, such as upscale home textiles, home furnishings, housewares, gourmet food products, toys, and seasonal décor products. Tuesday Morning Corporation was founded in 1974 and is headquartered in Dallas, Texas. UBER TECHNOLOGIES: Can Force Drivers to Arbitrate Claims -------------------------------------------------------- Matthew Renda, writing for Courthouse News Service, reported that in a key legal victory for ride-hail giant Uber, a Ninth Circuit panel on Sept. 25 found an arbitrator, not a judge, has authority to decide whether drivers' beef over being classified as independent contractors should be arbitrated or resolved via class action. The three-judge panel unanimously ruled that a federal judge erroneously asserted jurisdiction when he denied Uber's motion to compel arbitration in favor of a class action. Accordingly, the panel also tossed the judge's certification of the class since the matter of whether the claims can be arbitrated must be decided first. The Sept. 25 opinion, written by Senior U.S. Circuit Judge Richard Clifton, comes amid increasing concern over arbitration agreements that employees sign, sometimes mandatorily as a condition of employment, that forfeits their right to join class actions while promising to handle any disputes in arbitration. Consumer advocates decry the trend of arbitration agreements, saying arbitration is less transparent and can't be appealed. But proponents say the process is more streamlined, just as fair, prevents frivolous lawsuits and helps companies save money by not having to defend a litany of suits aimed at shaking them down. The Uber case centered on whether employees are appropriately categorized as independent contractors or if Uber avoids categorizing drivers as employees to duck offering benefits like health insurance, overtime and retirement plans. At oral argument, the plaintiffs said the panel should not let Uber compel arbitration for several of its class members because the lead plaintiff opted out of arbitration -- a decision that was good enough for the entire class. But the panel called the legal reasoning flawed. "Nothing gave the O'Connor lead plaintiffs the authority to take that action on behalf of and binding other drivers," Judge Clifton wrote in the 19-page opinion. The plaintiffs also argued the arbitration agreement violated labor laws, a point that led the panel to wait for the U.S. Supreme Court to decide a similar question in Epic Systems Corp. v. Lewis. The high court's 2018 in Epic invalidated the plaintiffs' argument in the Uber case. "The district court's orders denying Uber's motions to compel arbitration in O'Connor, Yucesoy, and Del Rio must be reversed," Clifton wrote. Finally, because the case against Uber was brought by some who opted out of arbitration and some who did not, the panel held class certification must be revisited. "The class as certified includes drivers who entered into agreements to arbitrate their claims and to waive their right to participate in a class action with regard to those claims," Judge Clifton noted, adding it's up to the arbitrator -- not the federal judge -- to decide whether the agreements are enforceable. The panel remanded the case to the lower court for further proceedings. UBER TECHNOLOGIES: Class Action Settlement Gets Prelim. Court OK ---------------------------------------------------------------- Helen Christophi, writing for Courthouse News Service, reported that a federal judge in San Francisco said on Sept. 27 he'll preliminarily approve a $345,622 class action settlement between Uber and a class of drivers accusing the ride-hail of shortchanging them using its "upfront" pricing model. But U.S. District Judge William Alsup said in an afternoon hearing he'd sign off on the deal only if Uber agrees to release only the specific contract claim certified in the case, brought by North Carolina driver Martin Dulberg in February 2017. "You're only releasing the breach of contract claim asserted here," Judge Alsup told Uber's attorney Randall Edwards -- redwards@omm.com -- of O'Melveny & Myers. "If you don't want to do that, I'm going to reject your deal. I'm not going to let Uber get away on wiping the slate clean on claims not litigated in this case." In his complaint, Mr. Dulberg claimed Uber stopped giving drivers the 80 percent of fares it had promised them in a 2015 driver contract when it switched to its upfront pricing model the following year. The 2016 pricing model calculated fares before a ride so riders knew how much they would be charged. Uber previously calculated a rider's fare at the end of a ride based on actual time and distance driven. Mr. Dulberg alleged the upfront pricing model used "aggressive" time and distance estimates to calculate fares, often resulting in fares higher than what a passenger would have paid under the old model. But instead of giving drivers the higher payments they were owed for the higher upfront fares, Mr. Dulberg said, Uber performed a separate calculation after the ride was over based on actual time and distance driven, and paid drivers 80 percent of that lower fare. Ultimately, drivers got less than the 80 percent of the rider-assessed fare promised them under their contract, he said. Uber, however, insisted drivers were paid based on actual time and distance driven. It said drivers' fare calculations remained the same under the upfront model, and that most drivers got more money under it. In the Sept. 27 hearing, Judge Alsup said he was concerned with the claim-release language in the proposed settlement agreement. The language states the release covers only claims related to contract cause of action related to the alleged breach of the driver agreement based on Uber's upfront pricing model. And Mr. Edwards said Uber was entitled to release of good faith, unjust enrichment and other claims brought in the original complaint. But Judge Alsup ordered the parties to redo the release language to specify only the certified contract claim would be released, so Uber wouldn't try to get similar class actions dismissed. "I'm not going to let you wipe the slate clean of future contract cases," Judge Alsup reiterated to Mr. Edwards, adding that otherwise, "some other class gets the shaft." The judge also said he would likely deny Mr. Dulberg's request for a $5,000 award for prosecuting the case. "If it's not good enough for the plaintiff, it's not good enough for the class members," Judge Alsup said. The class contains 4,594 members nationwide, according to the proposed settlement agreement. After the hearing, class counsel Samuel Moorehead of Napoli Shkolnick was optimistic Judge Alsup would green-light the settlement. "We have a full and fair settlement of these claims, the judge recognizes that," he said. "The judge, in extra consideration of other non-related claims that might come up, has asked us to basically tighten up the language, but it does appear the settlement is going through and that the drivers who were prejudiced by Uber's pricing scheme will be fully compensated for their damages." An Uber spokesperson did not return an email seeking comment on Sept. 27. UNITED STATES: USCIS Seeks 9th Cir. Review of A.A. Suit Ruling --------------------------------------------------------------- Defendants United States Citizenship and Immigration Services, et al., filed an appeal from a court ruling in the lawsuit titled A.A., et al. v. USCIS, et al., Case No. 2:15-cv-00813-JLR, in the U.S. District Court for the Western District of Washington, Seattle. The appellate case is captioned as NWIRP, et al. v. USCIS, et al., Case No. 18-35806, in the United States Court of Appeals for the Ninth Circuit. As previously reported in the Class Action Reporter, Judge James L. Lobart (i) granted in part and denied in part the Defendants' motion to supplement the administrative record, and (ii) granted in part and denied in part the Plaintiffs' cross-motion to supplement the administrative record. Through the injunctive class action, the Plaintiffs seek to compel USCIS to abide by regulatory deadlines for adjudicating applications for employment authorization documents ("EADs") filed by asylum applicants. The Plaintiffs claim that the Defendants have failed to adjudicate EADs within the regulatory timeframe, which constitutes unlawfully withheld or unreasonably delayed agency action. The Plaintiffs filed the putative class action on May 22, 2015, because the Defendants failed to adjudicate I-765 forms within the regulatory deadline. On Nov. 4, 2016, they Plaintiffs filed a third motion for class certification, and the Defendants subsequently filed a third motion to dismiss. The Court denied and dismissed the Plaintiffs' proposed "90-Day" subclass, but certified their "30-Day" subclass. The "30-Day" class is defined as noncitizens who have filed or will file applications for employment authorization that were not or will not be adjudicated within 30 days and who have not or will not be granted interim employment authorization. This class consists of only those applicants for whom 30 days has accrued or will accrue under the applicable regulations. The briefing schedule in the Appellate Case is set as follows: -- Appellants L. Francis Cissna, Kirstjen Nielsen, U.S. Department of Homeland Security and United States Citizenship and Immigration Services' opening brief is due on November 20, 2018; -- Appellees A. A., W. H. and Antonio Machic Yac's answering brief is due on December 20, 2018; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellees W. H., Individually and on behalf of all others similarly situated, A. A. and ANTONIO MACHIC YAC are represented by: Trina A. Realmuto, Esq. AMERICAN IMMIGRATION COUNCIL 100 Summer Street, 23rd Floor Boston, MA 02110 Telephone: (617) 513-0802 E-mail: trealmuto@immcouncil.org - and - Christopher Strawn, Esq. NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue Seattle, WA 98104 Telephone: (206) 957-8628 E-mail: strawn@uw.edu - and - Devin T. Theriot-Orr, Esq. SUNBIRD LAW, PLLC 1001 Fourth Avenue, 3200 Seattle, WA 98154 Telephone: (206) 962-5052 E-mail: devin@sunbird.law - and - Marc Van Der Hout, Esq. VAN DER HOUT, BRIGAGLIANO & NIGHTINGALE, LLP 180 Sutter Street San Francisco, CA 94104 Telephone: (415) 981-3000 Facsimile: (415) 981-3003 E-mail: mv@vblaw.com Defendants-Appellants UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; U.S. DEPARTMENT OF HOMELAND SECURITY; L. FRANCIS CISSNA, Director of USCIS; and KIRSTJEN NIELSEN, Secretary of DHS are represented by: Helen J. Brunner, Esq. DOJ - OFFICE OF THE U.S. ATTORNEY 700 Stewart Street Seattle, WA 98101 Telephone: (206) 553-5172 E-mail: micki.brunner@usdoj.gov - and - Jeffrey S. Robins, Esq. DOJ - U.S. DEPARTMENT OF JUSTICE P.O. Box 868 Ben Franklin Station Washington, DC 20044 Telephone: (202) 616-1246 E-mail: jeffrey.robins@usdoj.gov VENETIAN CASINO: Court Conditionally Certifies Housekeepers Class ----------------------------------------------------------------- The United States District Court for the District of Nevada issued an Order granting Plaintiffs' Motion to Certify Class for Conditional Certification in the case captioned USTAFA YOUSIF and SHARONE WALKER on behalf of themselves and all others similarly situated, Plaintiffs, v. THE VENETIAN CASINO RESORT, LLC; LAS VEGAS SANDS, CORP.; and DOES 1 through 50, inclusive, Defendants. Case No. 2:16-cv-02941-RFB-NKJ. (D. Nev.). The Defendants employed the Plaintiffs as non-exempt hourly paid housekeepers at the Venetian/Palazzo. At the time of separation of employment, Plaintiffs Mustafa Yousif and Sharone Walker were each making about $17.44 per hour. The Plaintiffs regularly worked five shifts per week, at least eight hours per shift, and at least forty hours per workweek. Conditional Certification In a suit brought under the FLSA, an action may be maintained against an employer by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. The Plaintiffs' proposed notice states: To participate in this lawsuit, you must have been employed as a housekeeper by THE VENETIAN/PALAZZO CASINO RESORT, LLC; LAS VEGAS SANDS, CORP at any time from October 27, 2013 to the present and you were not paid compensation for the time it took you to obtain your work station assignment for the day, load and fill your cleaning carts with items required to complete your daily work duties, and attend pre-shift meetings prior to clocking in for your regularly scheduled shift and/or completing room assignments after clocking out. The proposed class is sufficiently similarly situated. The Plaintiffs provide substantial allegations that the putative class members worked pre-shift and post-shift hours without pay while employed as housekeepers by Defendants, supported by the declarations of several employees with personal knowledge of the relevant policies. The Defendants' various contentions that the proposed notice is misleading and lacks required information are without merit. A full-text copy of the District Court's September 24, 2018 Order is available at https://tinyurl.com/ydbxukej from Leagle.com. Mustafa Yousif & Sharone Walker, Plaintiffs, represented by Joshua D. Buck -- josh@thiermanbuck.com -- Thierman Buck, LLP, Leah Lin Jones -- leah@thiermanbuck.com -- Thierman Buck, LLP & Mark R. Thierman -- mark@thiermanbuck.com -- Thierman Buck, LLP. The Venetian Casino Resort, LLC & Las Vegas Sands, Corp., Defendants, represented by Anthony L. Martin -- anthony.martin@ogletree.com -- Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Patrick F. Hulla -- Ogletree Deakins, pro hac vice & Dana B. Salmonson -- dana.salmonson@ogletree.com -- Ogletree Deakins Nash Smoak & Stewart, P.C. VF OUTDOOR: Faces Burbon Suit Over Blind-Inaccessible Web Site -------------------------------------------------------------- LUC BURBON, on behalf of herself and all others similarly situated v. VF OUTDOOR, LLC d/b/a NORTHFACE, Case No. 1:18-cv-08879 (S.D.N.Y., September 27, 2018), is a civil rights action brought pursuant to the Americans with Disabilities Act arising from the Defendant's alleged failure to design, construct, maintain, and operate its Web site -- http://www.thenorthface.com/-- to be fully accessible to and independently usable by the Plaintiff and other blind or visually-impaired people. VF Outdoor, LLC, is a Delaware Limited Liability Company licensed to do business and doing business in the state of New York. The Company operates NORTHFACE clothing stores and its Web site. The Company advertises, markets, distributes, and sells clothing and related accessories.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Telephone: (929) 575-4175 Facsimile: (929) 575-4195 E-mail: Joseph@cml.legal - and - Jeffrey M. Gottlieb, Esq. Dana L. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003-2461 Telephone: (212) 228-9795 Facsimile: (212) 982-6284 E-mail: nyjg@aol.com danalgottlieb@aol.com ZWICKER & ASSOCIATES: Campo Files Suit Alleging FDCPA Violation --------------------------------------------------------------- Zwicker & Associates, P.C. is facing a class action lawsuit under the Fair Debt Collection Practices Act. The case is styled as Susanne Campo on behalf of herself and all others similarly situated, Plaintiff v. Zwicker & Associates, P.C., Defendant, Case No. 2:18-cv-05637 (E.D. N.Y., Oct. 9, 2018). Zwicker & Associates, P.C. operates as a law firm. The Company offers debt collection and other legal services to various sectors. Zwicker & Associates serves clients in the United States.[BN] The Plaintiff is represented by: Mitchell L. Pashkin, Esq. 775 Park Avenue, Ste. 255 Huntington, NY 11743 Phone: (631) 335-1107 Email: mpash@verizon.net Asbestos Litigation ASBESTOS UPDATE: 203 Cases vs. CECO Still Pending at June 30 ------------------------------------------------------------ CECO Environmental Corp. still defends itself against 203 pending asbestos-related cases 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, "Our subsidiary, Met-Pro Technologies LLC ("Met-Pro"), beginning in 2002, began to be named in asbestos-related lawsuits filed against a large number of industrial companies including, in particular, those in the pump and fluid handling industries. In management's opinion, the complaints typically have been vague, general and speculative, alleging that Met-Pro, along with the numerous other defendants, sold unidentified asbestos-containing products and engaged in other related actions which caused injuries (including death) and loss to the plaintiffs. Counsel has advised that more recent cases typically allege more serious claims of mesothelioma. The Company's insurers have hired attorneys who, together with the Company, are vigorously defending these cases. Many cases have been dismissed after the plaintiff fails to produce evidence of exposure to Met-Pro's products. In those cases, where evidence has been produced, the Company's experience has been that the exposure levels are low and the Company's position has been that its products were not a cause of death, injury or loss. The Company has been dismissed from or settled a large number of these cases. Cumulative settlement payments from 2002 through June 30, 2018 for cases involving asbestos-related claims were US$2.9 million, of which, together with all legal fees other than corporate counsel expenses, US$2.8 million has been paid by the Company's insurers. The average cost per settled claim, excluding legal fees, was approximately US$37,000. "Based upon the most recent information available to the Company regarding such claims, there were a total of 203 cases pending against the Company as of June 30, 2018 (with Illinois, New York, Pennsylvania and West Virginia having the largest number of cases), as compared with 218 cases that were pending as of December 31, 2017. During the six months ended June 30, 2018, 53 new cases were filed against the Company, and the Company was dismissed from 29 cases and settled 39 cases. Most of the pending cases have not advanced beyond the early stages of discovery, although a number of cases are on schedules leading to, or are scheduled for trial. The Company believes that its insurance coverage is adequate for the cases currently pending against the Company and for the foreseeable future, assuming a continuation of the current volume, nature of cases and settlement amounts. However, the Company has no control over the number and nature of cases that are filed against it, nor as to the financial health of its insurers or their position as to coverage. The Company also presently believes that none of the pending cases will have a material adverse impact upon the Company's results of operations, liquidity or financial condition." A full-text copy of the Form 10-Q is available at https://bit.ly/2y9HeNA ASBESTOS UPDATE: 3rd Cir. Affirms Montana Claims Fit Injunction --------------------------------------------------------------- Mass-tort liability of entities with asbestos operations typically results in their filing for bankruptcy protection. The Bankruptcy Code allows a court to supplement a confirmed plan of reorganization by entering an injunction that channels this liability to a trust set up to compensate persons injured by the debtor's asbestos. In certain circumstances, channeling injunctions can also protect the interests of non-debtors, such as insurers. The Plaintiffs are a group of individuals suffering from asbestos disease as a result of exposure to the asbestos mining and processing operations in Libby, Montana of W.R. Grace & Co. and its related entities. They seek to hold Grace's insurers, Continental Casualty Company and Transportation Insurance Company (collectively "CNA"), liable under various state-law negligence theories for their injuries (the "Montana Claims"). CNA, however, seeks to enforce third-party-claims channeling injunction entered under Grace's confirmed plan of reorganization to bar the Montana Plaintiffs' action. Plaintiffs filed the Montana Claims in that State against CNA, alleging it breached a duty of care. Plaintiffs alleged that CNA was negligent in inspection of the Grace Libby operations, in failing to report and act upon known hazardous conditions due to insufficient worker education, insufficient warnings to workers, their families and to the community, insufficient dust control . . ., and insufficient medical monitoring. As a direct and proximate result of the negligence of CNA, Plaintiffs have suffered from asbestos-related bodily injuries and incurred the damages alleged herein. CNA filed a complaint in the Bankruptcy Court seeking a declaratory judgment that the Montana Claims fall under the Injunction and accordingly must be enjoined and channeled to the Trust. The Montana Plaintiffs filed a motion to dismiss and CNA filed a motion for summary judgment. The Asbestos PI Trust filed a brief as amicus curiae in support of CNA. The court, after hearing oral argument on the motions, decided the Montana Claims must be enjoined and thus denied the Montana Plaintiffs' motion to dismiss and granted summary judgment to CNA. The court then decided the Montana Claims can only exist "by reason of" CNA's provision of insurance to Grace because any alleged duty CNA has to conduct industrial hygiene services arises from the parties' insurance policies. The court also ruled the Injunction does not exceed the Bankruptcy Court's jurisdiction because the Trust has a contractual obligation to reimburse CNA for liability from personal injury claims (including the Montana Claims) affecting the assets of the bankruptcy estate. Finally, it rejected the Montana Plaintiffs' assertion that CNA's providing insurance is not legally relevant to the Montana Claims, finding instead that they stem from CNA's insurance to Grace. The question raised in the appealed is whether the claims of plaintiffs in the litigation that begun in Montana fit a channeling injunction's coverage. As the Montana Claims fit the text of the Injunction and are not excluded from it, the Third Circuit of the United States Court of Appeals affirms the Bankruptcy Court's decision as it pertains to this issue. The Court, however, does not decide whether it could bar the Montana Claims within the limits of 11 U.S.C. Section 524(g)(4). Instead, the Court vacates this portion of the court's decision and remands for it to make this determination with these guidelines: (a) to determine whether a claim seeks to hold a third party derivatively liable for the debtor, the Court must decide whether the third-party's alleged liability is "wholly separate" from the debtor's liability under the applicable law or instead depends on it; and (b) even assuming the statutory relationship must be a "legally relevant factor" to the third-party's alleged liability, the court should decide whether it is relevant to the elements required for the liability alleged under the applicable law. Section 524(g) of the Bankruptcy Code authorizes bankruptcy courts to form a trust and issue an injunction to channel certain claims to that trust in conjunction with a confirmed plan of reorganization in asbestos bankruptcies. The injunction bars asbestos-related actions against the debtor and claims against certain third parties who are alleged to be directly or indirectly liable for the debtor's conduct along with claims or demands against it. Instead, those actions are directed to the trust, "generally funded by insurance proceeds and securities in the reorganized debtor," which assumes the asbestos liabilities The Third Circuit concludes that the CNA Policies are among those covered by the Injunction's terms, though buried in a befuddling maze of defined terms, and that the Montana Claims do not fall under the Injunction's workers' compensation exclusion. Claims barred by the Injunction include tort claims made against certain protected third parties directly or indirectly resulting from personal injury and exposure to Grace's asbestos. Third parties protected from these claims include CNA and other insurance companies who entered into settlement agreements with Grace. They are protected, however, only to the extent their policies are identified as subject to a settlement agreement. The Third Circuit finds that twenty-five CNA policies are identified in the Settlement Agreement, along with a catch-all for "all known and unknown policies, or portions of policies," issued by CNA to Grace through June 30, 1985 that actually or potentially provide insurance coverage for asbestos-related claims of bodily injury. These asbestos-related claims include any made against Grace or CNA "arising in whole or in part (directly or indirectly) by reason of" CNA's provision of insurance to Grace, if these claims involve bodily injury caused by Grace's asbestos. The Settlement Agreement specifically covers any claims alleging CNA has a duty to provide industrial hygiene, conduct inspections, provide warnings or educational services, or protect third parties from the danger of asbestos exposure. As noted, excluded from protection are any rights or obligations that pertain solely to CNA's coverage for state workers' compensation benefits. The Montana Plaintiffs argue the CNA Workers' Compensation & Employers' Liability Policies are not included among the 25 listed policies and thus are not covered by the Injunction. The Third Circuit, however, finds that CNA entered into a settlement agreement with Grace, that the catch-all for all "known and unknown policies" includes the CNA Policies, and that the CNA Policies provide coverage for bodily injuries caused by Grace asbestos. Hence they are covered by the Injunction though they are not specifically listed. Plaintiffs further contend that claims against CNA may not be enjoined because it is a workers' compensation insurer. The Third Circuit explains that this argument misreads the workers' compensation carve-out: "it excludes from the Injunction rights or obligations that pertain solely to workers' compensation benefits." The Third Circuit points out that CNA provided not only workers' compensation coverage but also employers' liability coverage; provisions of the CNA Policies that pertain to both workers' compensation and employers' liability coverage do not "pertain solely" to workers' compensation and thus are not excluded. The provisions relevant to the Montana Claims -- those that give CNA the right, but not the obligation, to inspect the Libby Facility's industrial hygiene -- apply to both types of coverage. They appear outside the sections on employers' liability and workers' compensation, and, unlike other provisions in the CNA Policies, they contain no indication that they apply to one type of coverage to the exclusion of the other. Accordingly, claims tied to these provisions are barred by the Injunction's terms. The Third Circuit clarifies that the provisions of the CNA Policies that solely cover claims to state workers' compensation benefits are excluded from the terms of the Injunction, and, moreover, the Montana Plaintiffs do not allege any violation of state workers' compensation laws. In this context, the Third Circuit finds no risk that the Grace Plan or the Settlement Agreement would preempt Montana workers' compensation law. The Montana Plaintiffs also argue that the Settlement Agreement provision allowing for $13 million in reimbursements to CNA for any payments made for asbestos personal injury claims does not confer jurisdiction on the Bankruptcy Court to enjoin the Montana Claims. Whether the Court had jurisdiction was not an issue before it. Rather, the Court discussed its jurisdiction in the context of addressing the Montana Plaintiffs' argument that third-party-claims channeling injunctions under Section 524(g)(4) are limited to claims against insurance proceeds. The Court rejected this argument and stated correctly that the relevant jurisdictional inquiry is whether the claims affect the assets of the bankruptcy estate. In this case the indemnification provision in Grace and CNA's Settlement Agreement does so. The Third Circuit agrees with CNA's argument that the Montana Plaintiffs misread the Court's precedent in Combustion Engineering, 391 F.3d 190 and jurisdiction was not an issue before the Court. In that case, the Third Circuit reiterated its oft-repeated Pacor standard for "related to" jurisdiction in bankruptcy: a proceeding is "related to" a Chapter 11 proceeding if "the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy." "Related to" jurisdiction exist] over actions against non-debtors involving contractual indemnity obligations between the debtor and non-debtor that automatically result in indemnification liability against the debtor." Such is the case here, as the Trust is obligated by contract to indemnify CNA up to $13 million for its asbestos personal injury liability within the meaning of Section 524(g)(4). Hence, the Court does not doubt the Bankruptcy Court's jurisdiction to enforce the Injunction. The appealed case is In re: W.R. Grace & Co., et al, Reorganized Debtors. Continental Casualty Company; Transportation Insurance Company, v. Jeremy B. Carr, et al., Jeremy B. Carr, et al., Appellants, No. 17-1208, (3d Cir.), A copy of the Opinion dated August 14, 2018, is available at https://tinyurl.com/ybk6d98o from Leagle.com. Michael Busenkell -- mbusenkell@gsbblaw.com -- Gellert Scali Busenkell & Brown, 1201 North Orange Street, Suite 300, Wilmington, DE 19801. Daniel C. Cohn -- dcohn@murthalaw.com -- Taruna Garg -- tgarg@murthalaw.com -- Murtha Cullina, 99 High Street, 20th Floor, Boston, MA 02110. Allan M. McGarvey , McGarvey, Heberling, Sullivan & Lacey, P.C., 345 First Avenue East, Kalispell, MT 59901, Counsel for Appellants. Brian T. Burgess -- bburgess@goodwinlaw.com -- Michael S. Giannotto -- mgiannotto@goodwinlaw.com -- Goodwin Procter, 901 New York Avenue, N.W., Suite 900 East, Washington, DC 20001. Scott D. Cousins -- scousins@bayardlaw.com -- Evan T. Miller -- emiller@bayardlaw.com -- Bayard P.A., 600 North King Street, Suite 400, Wilmington, DE 19801, Counsel for Appellees. Robert M. Horkovich -- rhorkovich@andersonkill.com -- Anderson Kill, 1251 Avenue of the Americas, 42nd Floor, 41-154W, New York, NY 10020. Edward J. Longosz, II -- elongosz@eckertseamans.com -- Mark A. Johnston -- mjohnston@eckertseamans.com -- Kennedy L. Cabell , Eckert Seamans Cherin & Mellott, 1717 Pennsylvania Avenue, N.W., 12th Floor, Washington, DC 20006. Jeffrey C. Wisler -- jwisler@connollygallagher.com -- Connolly Gallagher, 1000 West Street, The Brandywine Building, Suite 1400, Wilmington, DE 19801, Counsel for Amici Appellees. ASBESTOS UPDATE: Albany Int'l Defends 3,677 Claims at June 30 ------------------------------------------------------------- Albany International Corp. is defending 3,677 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, "Albany International Corp. is a defendant in suits brought in various courts in the United States by plaintiffs who allege that they have suffered personal injury as a result of exposure to asbestos-containing paper machine clothing synthetic dryer fabrics marketed during the period from 1967 to 1976 and used in certain paper mills. "We anticipate that additional claims will be filed against the Company and related companies in the future, but are unable to predict the number and timing of such future claims. Due to the fact that information sufficient to meaningfully estimate a range of possible loss of a particular claim is typically not available until late in the discovery process, we do not believe a meaningful estimate can be made regarding the range of possible loss with respect to pending or future claims and therefore are unable to estimate a range of reasonably possible loss in excess of amounts already accrued for pending or future claims. "While we believe we have meritorious defenses to these claims, we have settled certain claims for amounts we consider reasonable given the facts and circumstances of each case. Our insurance carrier has defended each case and funded settlements under a standard reservation of rights. As of June 30, 2018 we had resolved, by means of settlement or dismissal, 37,699 claims. The total cost of resolving all claims was US$10.3 million. Of this amount, almost 100% was paid by our insurance carrier, who has confirmed that we have approximately US$140 million of remaining coverage under primary and excess policies that should be available with respect to current and future asbestos claims." A full-text copy of the Form 10-Q is available at https://bit.ly/2RdDDH8 ASBESTOS UPDATE: Albany Int'l. Still Defends Mount Vernon Lawsuits ------------------------------------------------------------------ Albany International Corp. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018, that it remains a direct defendant in some asbestos cases as the "successor in interest" to Mount Vernon Mills. The Company states, "In some of these asbestos cases, the Company is named both as a direct defendant and as the "successor in interest" to Mount Vernon Mills ("Mount Vernon"). We acquired certain assets from Mount Vernon in 1993. Certain plaintiffs allege injury caused by asbestos-containing products alleged to have been sold by Mount Vernon many years prior to this acquisition. Mount Vernon is contractually obligated to indemnify the Company against any liability arising out of such products. We deny any liability for products sold by Mount Vernon prior to the acquisition of the Mount Vernon assets. Pursuant to its contractual indemnification obligations, Mount Vernon has assumed the defense of these claims. On this basis, we have successfully moved for dismissal in a number of actions." A full-text copy of the Form 10-Q is available at https://bit.ly/2RdDDH8 ASBESTOS UPDATE: Ampco-Pittsburgh Has $137.3MM Liability Reserve ---------------------------------------------------------------- Ampco-Pittsburgh Corporation has US$137,304,000 reserve at June 30 2018, for the total costs, including defense costs, for Asbestos Liability claims pending or projected to be asserted through 2026, 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, "In 2006, the Corporation retained Hamilton, Rabinovitz & Associates, Inc. ("HR&A"), a nationally recognized expert in the valuation of asbestos liabilities, to assist the Corporation in estimating the potential liability for pending and unasserted future claims for Asbestos Liability. Based on this analysis, the Corporation recorded a reserve for Asbestos Liability claims pending or projected to be asserted through 2013 as of December 31, 2006. HR&A's analysis has been periodically updated since that time. Most recently, the HR&A analysis was updated in 2016, and additional reserves were established by the Corporation as of December 31, 2016, for Asbestos Liability claims pending or projected to be asserted through 2026. The methodology used by HR&A in its projection in 2016 of the operating subsidiaries' liability for pending and unasserted potential future claims for Asbestos Liability, which is substantially the same as the methodology employed by HR&A in prior estimates, relied upon and included the following factors: * HR&A's interpretation of a widely accepted forecast of the population likely to have been exposed to asbestos; * epidemiological studies estimating the number of people likely to develop asbestos-related diseases; * HR&A's analysis of the number of people likely to file an asbestos-related injury claim against the subsidiaries and the Corporation based on such epidemiological data and relevant claims history from January 1, 2014, to September 9, 2016; * an analysis of pending cases, by type of injury claimed and jurisdiction where the claim is filed; * an analysis of claims resolution history from January 1, 2014, to September 9, 2016, to determine the average settlement value of claims, by type of injury claimed and jurisdiction of filing; and * an adjustment for inflation in the future average settlement value of claims, at an annual inflation rate based on the Congressional Budget Office's ten year forecast of inflation. "Using this information, HR&A estimated in 2016 the number of future claims for Asbestos Liability that would be filed through the year 2026, as well as the settlement or indemnity costs that would be incurred to resolve both pending and future unasserted claims through 2026. This methodology has been accepted by numerous courts. "In conjunction with developing the aggregate liability estimate, the Corporation also developed an estimate of probable insurance recoveries for its Asbestos Liabilities. In developing the estimate, the Corporation considered HR&A's projection for settlement or indemnity costs for Asbestos Liability and management's projection of associated defense costs, as well as a number of additional factors. These additional factors included the Settlement Agreements then in effect, policy exclusions, policy limits, policy provisions regarding coverage for defense costs, attachment points, prior impairment of policies and gaps in the coverage, policy exhaustions, insolvencies among certain of the insurance carriers, and the nature of the underlying claims for Asbestos Liability asserted against the subsidiaries and the Corporation as reflected in the Corporation's asbestos claims database, as well as estimated erosion of insurance limits on account of claims against Howden arising out of the Products. In addition to consulting with the Corporation's outside legal counsel on these insurance matters, the Corporation consulted with a nationally recognized insurance consulting firm it retained to assist the Corporation with certain policy allocation matters that also are among the several factors considered by the Corporation when analyzing potential recoveries from relevant historical insurance for Asbestos Liabilities. Based upon all of the factors considered by the Corporation, and taking into account the Corporation's analysis of publicly available information regarding the credit-worthiness of various insurers, the Corporation estimated the probable insurance recoveries for Asbestos Liability and defense costs through 2026. Although the Corporation believes that the assumptions employed in the insurance valuation were reasonable and previously consulted with its outside legal counsel and insurance consultant regarding those assumptions, there are other assumptions that could have been employed that would have resulted in materially lower insurance recovery projections. "Based on the analyses, the Corporation's reserve at December 31, 2016, for the total costs, including defense costs, for Asbestos Liability claims pending or projected to be asserted through 2026, was US$171,181,000 of which approximately 70% was attributable to settlement costs for unasserted claims projected to be filed through 2026 and future defense costs. The reserve at June 30 2018, was US$137,304,000. While it is reasonably possible that the Corporation will incur additional charges for Asbestos Liability and defense costs in excess of the amounts currently reserved, the Corporation believes that there is too much uncertainty to provide for reasonable estimation of the number of future claims, the nature of such claims and the cost to resolve them beyond 2026. Accordingly, no reserve has been recorded for any costs that may be incurred after 2026. "The Corporation's receivable at December 31, 2016, for insurance recoveries attributable to the claims for which the Corporation's Asbestos Liability reserve has been established, including the portion of incurred defense costs covered by the Settlement Agreements in effect through December 31, 2016, and the probable payments and reimbursements relating to the estimated indemnity and defense costs for pending and unasserted future Asbestos Liability claims, was US$115,945,000 (US$91,292,000 at June 30, 2018)." A full-text copy of the Form 10-Q is available at https://bit.ly/2IyoBbg ASBESTOS UPDATE: Ampco-Pittsburgh Has 7,146 Claims at June 30 ------------------------------------------------------------- Ampco-Pittsburgh Corporation has 7,146 asbestos-related claims pending at 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, "Claims have been asserted alleging personal injury from exposure to asbestos-containing components historically used in some products manufactured by predecessors of Air & Liquid ("Asbestos Liability"). Air & Liquid, and in some cases the Corporation, are defendants (among a number of defendants, often in excess of 50) in cases filed in various state and federal courts. "Included as "open claims" are approximately 480 claims as of June 30, 2018, and 2017, classified in various jurisdictions as "inactive" or transferred to a state or federal judicial panel on multi-district litigation, commonly referred to as the MDL. "A substantial majority of the settlement and defense costs was reported and paid by insurers. Because claims are often filed and can be settled or dismissed in large groups, the amount and timing of settlements, as well as the number of open claims, can fluctuate significantly from period to period." A full-text copy of the Form 10-Q is available at https://bit.ly/2IyoBbg ASBESTOS UPDATE: Appeal of New Rules on Asbestos Docket Rejected ---------------------------------------------------------------- Forbes reported that asbestos defendants failed to convince New York's highest court to intervene in a long-running fight over how the New York City asbestos court known as NYCAL does business, leaving them with few options as hundreds of lawsuits march toward trial in the plaintiff-friendly venue. Hundreds of solvent companies including Ford Motor Co., Honeywell, Bayer Crop Sciences and Dow Chemical's Union Carbide unit filed constitutional objections after NYCAL changed its rules in 2017, allowing plaintiffs to seek punitive damages and creating an "Accelerated Docket" forcing defendants to prepare for dozens of cases in less than six months. They filed appeals with the New York Court of Appeals -- the state's supreme court -- after an intermediate appellate court rejected their complaint that the new Case Management Order violated their due process rights under the New York Constitution. That gambit failed when the Court of Appeals also rejected the defendants' appeal, saying NYCAL's new Case Management Order "does not finally determine an action or proceeding within the meaning of the Constitution." New York law allows defendants in civil cases to appeal court rulings all the way up to the state's highest court under narrow circumstances, but the Court of Appeals frequently dismisses them with identical language, in effect rejecting the appeal as being too early. In this case, defendant companies said the new CMO was final and had an immediate and damaging effect on their constitutional rights. They argued the CMO prevents them from mounting an effective defense since they don't have the resources to simultaneously prepare dozens of cases for trial without knowing which ones will actually go before a jury. Each case requires expensive depositions, expert witness testimony and extensive background investigations to determine whether the plaintiff was actually exposed to a defendant's products. The high court's action leaves asbestos defendants with only a few options, none of them attractive. They can again petition the high court for review, arguing the Case Management Order strips them of their constitutional rights. The court considers these appeals the same way as the U.S. Supreme Court considers applications for certiorari, or review -- and has a similarly low rate of acceptance. The other alternative is to take a case to trial, arguing each step of the way that the NYCAL rules deprive the defendant of its due process rights, and appeal the verdict. That exposes the defendant company to a potential jury verdict of tens of millions of dollars, including punitive damages to deter conduct that in virtually every case the company either never engaged in -- many of the solvent defendants are named because they acquired businesses that once had a connection to the asbestos industry -- or ceased decades ago. A month after the intermediate court of appeals refused to modify the case management order in March of this year, a New York City jury hit defendants with a $60 million verdict, including punitives. Plaintiff lawyers have targeted solvent companies with increasingly remote links to the asbestos industry as they have driven the primary manufacturers and distributors of the deadly fiber into bankruptcy. NYCAL is home to one of the country's largest asbestos dockets and a primary battleground for the more than 300 solvent companies seeking to avoid the same fate as bankrupt manufacturers. The American Tort Reform Association has, in recent years, maintained the jurisdiction is a "Judicial Hellhole" in its annual report. The new CMO was issued by Manhattan Supreme Court Justice Peter Moulton in 2017 after being in the works for nearly two years. Written at the urging of plaintiff lawyers, and over the objections of defendants, it restored punitive damages and created the Accelerated Docket, ostensibly to speed cases to trial for plaintiffs who are in danger of dying. Defendants complain the docket requires them to prepare for dozens of cases at a time without knowing which ones plaintiffs actually intend to take to trial. Plaintiff lawyers typically bundle cases that carry the risk of high potential damages with lower-value cases in an effort to negotiate bigger settlements. Since many solvent defendants are public companies, their executives have a fiduciary duty to consider the risk a large jury verdict could place on their share price, regardless of whether it survives through appeal. Lawyers for the defendant companies declined to comment, although it is likely they are considering their options for appealing this latest rejection back to the Court of Appeals. ASBESTOS UPDATE: Appeals Court Rules Against Asbestos Companies --------------------------------------------------------------- Mesothelioma.net reported that when people are diagnosed with malignant mesothelioma, they have several decisions that they need to make, including what type of treatment protocol they want to pursue, how to handle their family affairs, and whether to pursue legal action against those who are responsible. In many cases, the responsible parties are companies whose products were contaminated with asbestos. Though many of these companies have been forced into bankruptcy over the years, others remain solvent and are frequently called to defend themselves in the New York City asbestos court known as NYCAL, which is known to be particularly sympathetic to mesothelioma victims. Some of the most recognized brands in United States chemical and manufacturing industries, including Dow Chemical's Union Carbide, Ford Motor Company, and Honeywell are named in these suits, and recently took legal action to prevent that court from allowing victims to seek punitive damages, as well as to expedite their cases in the face of a terminal diagnosis. They were disappointed when their effort was defeated. The companies facing mesothelioma lawsuits heard from New York's highest court that they would not hear their appeal of a recent ruling that would allow victims to continue to hear their cases in an expedited manner. The companies were looking for the New York Court of Appeals to overturn what has been called the "accelerated docket" on the grounds that it forced them to prepare for multiple cases in a short period of time, even though the cases might not ever make it into a court room, but their argument was denied, with the court saying that the new order "does not finally determine an action or proceeding within the meaning of the Constitution." The higher court'S decision leaves the asbestos companies with few options, despite their argument that they would be burdened by having to prepare depositions, testimony and investigations for cases that might never be heard. Though the companies accused of causing mesothelioma can still ask for another review, based on historic refusals to overturn these types of decision their consideration of the case is unlikely. That leaves them having to defend themselves and possibly face multi-million dollar verdicts compounded by punitive damages. These companies unanimously deny their role in causing mesothelioma, though there is extensive evidence supporting the notion that they put profits over people in their decision making process over the use of asbestos. ASBESTOS UPDATE: Brandon Drying Defends 7,708 Claims at June 30 --------------------------------------------------------------- Albany International Corp.'s subsidiary, Brandon Drying Fabrics, Inc., had 7,708 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. The Company states, "The Company's subsidiary, Brandon Drying Fabrics, Inc. ("Brandon"), is also a separate defendant in many of the asbestos cases in which Albany is named as a defendant, despite never having manufactured any fabrics containing asbestos. While Brandon was defending against 7,708 claims as of June 30, 2018, only ten claims have been filed against Brandon since January 1, 2012, and no settlement costs have been incurred since 2001. "Brandon was acquired by the Company in 1999, and has its own insurance policies covering periods prior to 1999. Since 2004, Brandon's insurance carriers have covered 100% of indemnification and defense costs, subject to policy limits and a standard reservation of rights." A full-text copy of the Form 10-Q is available at https://bit.ly/2RdDDH8 ASBESTOS UPDATE: Cabot Corp. Has 35,000 AO Respiratory Claimants ---------------------------------------------------------------- There were approximately 35,000 claimants as of June 30, 2018 in pending cases asserting claims against Cabot Corporation's American Optical Corporation in connection with respiratory products, 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, "Cabot has exposure in connection with a safety respiratory products business that a subsidiary acquired from American Optical Corporation ("AO") in an April 1990 asset purchase transaction. The subsidiary manufactured respirators under the AO brand and disposed of that business in July 1995. In connection with its acquisition of the business, the subsidiary agreed, in certain circumstances, to assume a portion of AO's liabilities, including costs of legal fees together with amounts paid in settlements and judgments, allocable to AO respiratory products used prior to the 1990 purchase by the Cabot subsidiary. "In exchange for the subsidiary's assumption of certain of AO's respirator liabilities, AO agreed to provide to the subsidiary the benefits of: (i) AO's insurance coverage for the period prior to the 1990 acquisition and (ii) a former owner's indemnity of AO holding it harmless from any liability allocable to AO respiratory products used prior to May 1982. "The respirator liabilities generally involve claims for personal injury, including asbestosis, silicosis and coal worker's pneumoconiosis, allegedly resulting from the use of respirators that are alleged to have been negligently designed and/or labeled. Neither Cabot, nor its past or present subsidiaries, at any time manufactured asbestos or asbestos-containing products. At no time did this respiratory product line represent a significant portion of the respirator market. "As of June 30, 2018 and September 30, 2017, there were approximately 35,000 and 37,000 claimants, respectively, in pending cases asserting claims against AO in connection with respiratory products. Cabot has a reserve to cover its expected share of liability for existing and future respirator liability claims. At June 30, 2018 and September 30, 2017, the reserve was US$17 million and US$18 million, respectively. The Company made payments related to its respirator liability of US$1 million and US$3 million in the first nine months of fiscal 2018 and fiscal 2017, respectively." A full-text copy of the Form 10-Q is available at https://bit.ly/2Qpwgv4 ASBESTOS UPDATE: Companies Fined $195K foAsbestos Removal --------------------------------------------------------- George Barnes of Worcester Telegram reported two companies have agreed to pay a total of $195,000 in penalties for illegal removal of asbestos in two houses in the city. The penalties settle a lawsuit brought by the state attorney general’s office against Capstone General Contracting of Worcester and its owners Charbel and Christine Najem and its subcontractor Simulis Plumbing and Heating of Worcester alleging they violated state law at one of the homes by illegally removing asbestos-wrapped heating pipes, stripping the pipes of asbestos and improperly disposing of the material, according to state Attorney General Maura Healey’s Office. At the other home, a worker illegally smashed and removed siding containing asbestos to make way for the installation of new windows, Healey’s office said. The worker was not informed of the presence of asbestos at the site or of a survey that had determined the siding contained asbestos. Under the agreement, Capstone and the Najems will pay $150,000 in penalties to the state, $25,000 of which may be suspended if the company and its employees complete additional training and submit all asbestos surveys required for their construction and renovation jobs over the next two years to the state Department of Environmental Protection. Simulis agreed to pay $45,000 to the state, $20,000 of which may be suspended if its employees complete asbestos training. ASBESTOS UPDATE: Corp. May Appeal Asbestos Cell Vote ---------------------------------------------------- Jarrod Whittaker of Latrobe Valley Express reported that Morwell Power Station liquidator Energy Brix Australia Corporation will appeal to VCAT or transport asbestos off-site if Latrobe City Council rejects its application to store the hazardous material on-site. Councillors are set to consider EBAC's application for an on-site cell asbestos removed from the Morwell Power Station at their meeting, having twice voted to defer a decision on the matter. At a community consultation meeting, EBAC site remediation manager Barry Dungey ruled out the possibility of using Hazelwood Power Station's planned asbestos cell due to the prohibitive cost. The company considered the option of sharing Hazelwood's asbestos cell at the request of councillors, but found the cost of storing the asbestos at Hazelwood was much higher than transporting it to licensed landfill at Bulla, west of Melbourne, or at an on-site cell. EBAC hopes to begin removing asbestos from the site in November, while the Hazelwood cell would not be available until April 2019. According to EBAC, the cost of storing asbestos at Hazelwood varies depending on the quantity but rises to about $2 million at 10,000 cubic metres, compared to $1 million for the same amount in an on-site cell. The cost of transporting the asbestos to Bulla sits between the other two options. Latrobe City councillors were concerned about the establishment of an asbestos cell so close to Commercial Road, Morwell. But Mr Dungey said he would have to either transport the asbestos to Bulla or fight the matter in the Victorian Civil and Administrative Tribunal if the on-site asbestos cell was rejected by council. "The difficulty with VCAT is that process, by definition, takes another three or four months," he said. "If you look at our project which is due to start in November, by the time we get a decision, potentially we've already sent half our material down the road." The meeting was attended by about 30 people and heard about the company's plans to remove asbestos from the Morwell Power Station before demolishing it by structurally weakening it and pulling it down, rather than using explosives. The Environment Protection Authority will be responsible for ensuring any on-site cell design meets regulatory and licensing requirements. If approved, EBAC would build the cell away from ground water and asbestos would be double wrapped in plastic bags or placed in sealed 44-gallon drums to prevent the release of fibres during cell loading. Asbestos would be deposited in the cell two to three times a month to minimise dust creation and material would not be deposited during high wind days when the wind blows towards housing areas. Moe community activist Cheryl Wragg, who sought to have the Morwell Power Station preserved, raised concerns about whether the proposed dump was suitable to store asbestos forever. "I think the asbestos problem coming out of the Latrobe Valley power industry is such that it dictates an in-perpetuity dump somewhere, properly constructed, concrete lined that can never be disturbed and I think that that is owed to this community," Ms Wragg said. Just one attendee at the meeting identified herself as a resident who lived near the former Morwell Power Station site. ASBESTOS UPDATE: Crane's Bid to Quash Subpoena Affirmed on Appeal ----------------------------------------------------------------- In the appealed case In Re New York City Asbestos Litigation. Ann Marie Idell, etc., Plaintiff-Respondent, v. Aerco International, Inc., et al., Defendants, Crane Co., et al., Defendants-Respondents, Jenkins Bros., Defendant-Appellant, 190219/16, 6938, 6937, 6936, (N.Y. App. 1st Dept.), the First Department of the Appellate Division of the Supreme Court of New York affirms the Orders entered on August 15, 2017, which granted defendants Crane Co. and Warren Pumps LLC's respective motions to quash trial subpoenas issued to them as such subpoenas was improperly served. The Court finds that defendant was properly precluded from eliciting testimony from plaintiff's expert regarding exposure to asbestos in the alleged nonparty tortfeasors' products because the it was found that defendant failed to establish specific causation against such alleged nonparty tortfeasors. The Court also finds that the defendant was properly precluded from introducing evidence of plaintiff's alleged exposure to asbestos in Scotland before he emigrated to the United States because such evidence was speculative. On the issue of recklessness, the Court finds that there was sufficient evidence from which a jury could determine that defendant was aware that workers such as plaintiff were at risk from exposure to asbestos based on the circumstances of the case, which include plaintiff's continued exposure to defendant's valves through 1986. In addition, the Court modifies the Order entered December 15, 2017, which denied defendant Jenkins Bros.' motion pursuant to CPLR 4404 to set aside the verdict, and granted plaintiff's motion pursuant to CPLR 4404 to set aside the verdict to the extent of directing a new trial unless defendant stipulated to an increase in the jury awards of $1.8 million and $1.5 million for past and future pain and suffering, respectively, to $4 million and $2.5 million, respectively. Contrary to defendant's contention that General Obligations Law Section 15-108 requires that the settled defendants be included on the verdict sheet for apportionment purposes regardless of whether any evidence of their liability was presented, the Court maintains that failure to present a prima facie case of their liability "constitutes a waiver of the nonsettling tortfeasor's right to reduction of the verdict based on an apportionment of fault, but not based on the amount of the settlement." The Court finds that a new trial on damages as to past pain and suffering would be proper unless defendant agrees to increase that award to $4 million. However, the Court ratifies that the jury's award for future pain and suffering of $1.5 million should be reinstated as such award did not deviate materially from reasonable compensation. A copy of the Decision and Order dated September 13, 2018, is available at https://tinyurl.com/y8rht45y from Leagle.com. Clyde & Co US LLP, New York ( Peter J. Dinunzio -- Epeter.dinunzio@clydeco.us -- of counsel), for appellant. Simmons Hanly Conroy LLC, New York ( James Kramer of counsel), for Ann Marie Idell, respondent. K & L Gates, LLP, New York ( Tara L. Pehush -- tara.pehush@klgates.com -- of counsel), for Crane Co., respondent. Marshall Dennehey Warner Coleman & Goggin, P.C., New York ( Daniel W. Levin -- dwlevin@mdwcg.com -- of counsel), for Warren Pumps LLC, respondent. ASBESTOS UPDATE: Daughter Appeals for Help on Mum's Asbestos Death ------------------------------------------------------------------ Hull Daily Mail reported that the daughter of an East Yorkshire woman who died from a disease linked to asbestos has appealed for help after watching her mum struggle to breathe and eat in the final months of her life. Clarinda Owst worked in the offices at Capper Pass smelting works for 17 years and sadly died last year from mesothelioma -- a cancer that most commonly affects the lining of the lungs. Ms Owst, a mum and grandma who lived in Beech Road in Elloughton while working at the Melton site, walked through the factory on a daily basis and interacted with other staff who were working on the ground. Now, Renee Raper, her daughter, is appealing for anyone who worked there at the time to come forward to help her understand how her mum, an office-based staff member, could become exposed to what she believes ultimately killed her. Clarinda, known to most as Linda, was affected badly years after working at the site when "she couldn't breathe because her lungs were full of fluid" and as "growths were pressing on her gullet and windpipe." Ms Raper says she believes she contracted it through her time at the smelting works. "She didn't discover it until late on. She was ill and started getting breathing issues. She thought it was a problem with her heart but doctors thought it was ok," Ms Raper said. "She couldn't breathe because her lungs were full of fluid so she had to have them drained. "It was so horrible for her at the end. She couldn't breathe at all. She couldn't eat because growths were pressing on her gullet and windpipe. "She kept saying 'this isn’t life.' In March, she was given one to three years to live. She died within six months of being told that. "It was so horrible the way she went down." She passed away in September 2017 Now, a year on from her death, Ms Raper has filed a compensation claim after believing that during her mum's day-to-day routine at the works, she came into contact with asbestos. She says she believes that is what triggered her breathing problems and, latterly, cancer. She has contacted solicitors to assist her with an asbestos disease compensation claim following her mother's death last year. Discussing her next steps, she said: "I want to speak with anyone who can shine a light on my mum's employment and how she could have been exposed to asbestos. As a personnel officer, she would have been known to a large number of workers and other members of staff, which we hope will increase our chances of finding someone who can help. "Any information provided could be the missing piece of the puzzle we desperately need, so please get in touch with Thompsons Solicitors if you think you can help." Asbestos is the single biggest cause of work-related deaths in the UK, causing thousands of deaths and serious illnesses. The number of asbestos deaths is expected to rise until 2020. Capper Pass, on the banks of the Humber, closed in 1991. Helen Jones, a solicitor supporting Rene, said: "Linda worked at Capper Pass, later Rio Tinto, for a large part of her career and may have come into contact with asbestos in a variety of ways. "We are hoping there will be someone out there who can remember Linda." ASBESTOS UPDATE: Dismissal of Biederman's Bid to Unseal Affirmed ---------------------------------------------------------------- In the appealed case Christine Cole Biederman, Appellant, v. Beverly Jean Brown, Individually and as Personal Representative of the Estate and Heirs of Glenn Edward Brown, Sr., and Baron & Budd, P.C., Appellees, No. 01-17-00263-CV, (Tex. App. 1st), the Hon. Evelyn V. Keyes of the First District of the Court of Appeals of Texas affirms the order of the trial court dismissing Biederman's motion for want of jurisdiction. Appellant Christine Cole Biederman is a journalist and documentary film producer seeking to unseal a deposition taken in 1997 in a case filed by appellee, Beverly Jean Brown, individually and as the personal representative of the estate and heirs of Glenn Edward Brown, Sr., alleging various tort causes of action for Glenn Brown's asbestos-related wrongful death (the Brown Case). Brown was represented in the Brown Case by the law firm Baron & Budd, P.C., which is also an appellee in this appeal. The law firm Baron & Budd filed the underlying Brown Case in 1993 on behalf of Beverly Jean Brown, alleging various tort theories for recovery of damages for Glenn Brown's asbestos-related death. Biederman filed the instant actions as a motion to intervene in the long-closed Brown Case. Pursuant to Texas Rule of Civil Procedure 76a, Biederman sought to unseal the 1997 deposition of Russell Budd on the topic of the discoverability of a memo created by Baron & Budd and used in various asbestos-related cases, including the Brown Case. The appellees Baron & Budd filed a plea to the jurisdiction, which the trial court granted, dismissing Biederman's motion to unseal for want of jurisdiction. In her sole issue on appeal, Biederman argues that the trial court erred by granting the plea to the jurisdiction and dismissing the case without deciding the motion to unseal on the merits because Rule 76a expressly grants continuing jurisdiction in the circumstances of this case. According to the briefing and pleadings of the parties, at some point before the fall of 1997, in an unrelated asbestos case, an attorney for Baron & Budd mistakenly disclosed the existence of a memo that the law firm used to prepare witnesses for deposition. Biederman alleges that the Memo "appeared to coach Baron & Budd clients on how to identify products and exposures that they might not actually remember and, in fact, might never have been exposed to." The defendants in that unrelated case distributed the Memo, which led to extended discovery in multiple cases, including the Brown Case, regarding whether and how the Memo was used in Baron & Budd's asbestos cases. Defense counsel in the Brown Case discovered that the Memo had been used in Brown's case and sought to compel Baron & Budd to produce the Memo through discovery. Baron & Budd resisted, arguing that the Memo was privileged as work product or as an attorney-client communication. In order to determine whether the Memo was discoverable, the trial court -- at that time, the Hon. John Dietz -- ordered the in camera inspection of the Memo and other relevant discovery. Although most of the pleadings, motions, and orders filed in the Brown Case have been destroyed, the record on appeal contains Judge Dietz's September 29, 1997 order. The order stated that it was a protective order pursuant to (now former) Rule of Civil Procedure 166b. Specifically, the order provided: "The discovery ordered by this Court, which will include the Memo and the deposition of the Baron & Budd corporate representative, will be sealed and distribution will be for counsel of record only in Travis County asbestos-related Baron & Budd cases, and may not be disseminated, distributed or disclosed to any third party." According to the parties' pleadings and briefing, Biederman became involved in the Brown Case in 1998. At that time, Biederman was a reporter for the Dallas Observer. Baron & Budd came to believe that she had improperly obtained confidential documents from the law firm, and it sought to depose her regarding those allegations. Biederman filed a motion to quash her deposition. The record does not reflect the outcome of Baron & Budd's efforts to depose Biederman, nor does it reveal any further involvement of Biederman in the Brown Case. Eventually, Judge Dietz dismissed the Brown Case for want of prosecution on July 7, 2006. On November 9, 2016, Biederman filed the instant suit as a motion to intervene in the long-since dismissed Brown Case, seeking to unseal the 1997 Budd Deposition taken in the underlying Brown Case pursuant to Rule of Civil Procedure 76a. Biederman identified "two relevant pleadings" in the Brown Case from the electronic docket sheet that she surmises Brown filed, "presumably in response to the Defendant's deposition notice(s)": a "Motion to Seal Court Records" and a "Notice of Motion to Seal Court Records" filed on September 29, 1997. Neither of these motions is contained in the record in this case, but Biederman alleged "on information and belief" that "Baron & Budd's Motion to Seal invoked Rule 76a in order to seek an order sealing certain records relating to the [Memo] and other issues relevant to Mr. Budd's deposition, as well as the deposition itself." Biederman recounted other events in her motion to intervene in this case that occurred in the Brown Case, again citing her own suppositions about what had happened based on the electronic docket sheet and the few remaining records from that case, as set out above. These included the trial court's September 29, 1997 order in the Brown Case compelling the Budd Deposition and ordering certain discovery protected pursuant to former Rule 166b and the trial court's October 8, 1997 order in that case finding that the Memo was not privileged and ordering Baron & Budd to produce it. Biederman moved the trial court to unseal the Budd Deposition, asserting "on information and belief, it is relevant to issues that have arisen in ongoing asbestos litigation currently pending in a number of courts, a topic upon which she has reported extensively in the past and which is the subject of a documentary film project upon which she currently working." Biederman observed that "the underlying lawsuit has long since been resolved," but she alleged that the trial court retained jurisdiction to unseal the court records sought pursuant to Rule of Civil Procedure 76a(7), which provides in relevant part that the trial court that issues a sealing order retains continuing jurisdiction to enforce, alter, or vacate that order. Biederman further argued that the Budd Deposition was a "court record" within the meaning of Rule 76a(2), stating that, although most depositions are not submitted to the court clerk, "it appears that Mr. Budd's deposition was in fact 'filed' with the Court." She cited a footnote, stating summarily that the Budd Deposition and its exhibits were filed under seal, from an uncertified, unsigned copy of a "Reply in Support of Motion to Quash and Motion for Protective Order" purportedly filed on her behalf in the Brown Case in 1998. However, this document does not bear a file stamp or other indication that it was, in fact, ever filed with the trial court. Biederman also argued that "it is likely that Budd's deposition may have been filed with the court clerk and included as part of the transcript sent to the appeals court." Biederman argued that "Baron & Budd's original Motion to Seal apparently took the position that Rule 76a's requirements applied to Mr. Budd's deposition," but that motion to seal was not included in the record for this case. Baron & Budd filed a plea to the jurisdiction in response to Biederman's motion to unseal. Baron & Budd argued that the trial court lacked jurisdiction to hear Biederman's motion because the court's plenary power expired August 6, 2006, and because the trial court did not have continuing jurisdiction under Rule 76a(7). Baron & Budd argued, in part, that the September 29, 1997 order was not a "sealing order" as referenced in Rule 76a(7), but rather was a protective order under former Rule 166b. Baron & Budd further argued that the Budd Deposition was not a "court record" as defined in Rule 76a(2) because it was not "filed," but it was taken and submitted in camera on issues of privilege from discovery and it did not concern a matter that had a "probable adverse effect upon the general public health or safety," the administration of public office, or the operation of government. It also argued, in the alternative, that Biederman's motion to unseal was barred by waiver and estoppel. Baron & Budd attached as exhibits a certified copy of the September 29, 1997 order and certified copies of the relevant record management policies from the trial court and the Austin Court of Appeals. Baron & Budd asserted that, Biederman could not establish that the Budd Deposition was a court record under Rule 76a, and so the trial court lacked jurisdiction to hear her motion to unseal. And it also argued that, due to Biederman's delay in bringing her motion, the parties had been prejudiced in that the documents were destroyed according to regular document retention schedules. Baron & Budd described the case as being an argument "about a deposition that apparently never was filed, that was protected by Judge Dietz 20 years ago. And we don't have the documents, as she admits in her motion, and we have searched and searched." Baron & Budd filed a plea to the jurisdiction challenging Biederman's pleadings -- her motion to intervene and unseal the Budd Deposition -- that the trial court had jurisdiction over the case. Biederman's motion acknowledges, and the jurisdictional evidence before the trial court established, that the trial court dismissed the Brown Case for want of prosecution on July 7, 2006. Absent the filing of a motion to reinstate, the Court explains that a trial court loses plenary power over a case thirty days after dismissing it for want of prosecution. Plenary power refers to period of time in which trial court may vacate, modify, or correct its judgment and that plenary power generally expires thirty days after final judgment is signed. Thus, the trial court's plenary power expired August 6, 2006. The Court finds in this case that in spite of the fact that plenary power expired in August 2006, Biederman affirmately alleged that the trial court had jurisdiction pursuant to Rule of Civil Procedure 76a to grant her intervention and unseal the Budd Deposition. She alleged in her motion to intervene and unseal the deposition that the Budd Deposition was a "court record" within the meaning of Rule 76a. Baron & Budd challenged these allegations in its plea to the jurisdiction, asserting that Rule 76a did not apply to Biederman's request and, thus, the trial court had no jurisdiction to consider the motion to unseal. Biederman and the amicus argue that Biederman is entitled to a hearing on her motion "even if the status of the sealed discovery as a 'court record' for purposes of Rule 76a(2) is disputed by another party." However, the trial court had an obligation to determine whether it had the constitutional or statutory authority to decide Biederman's motion before allowing the case to proceed any further. Consequently, the court held a hearing to determine the relevant jurisdictional issues. Biederman failed to demonstrate that the Budd Deposition was a court record as defined by Rule 76a, and, thus, she failed to invoke the jurisdiction of the trial court to consider her motion any further. Considering the pleadings and the jurisdictional evidence, the Court concludes that Biederman failed to meet her burden to allege facts that affirmatively establish the trial court's subject matter jurisdiction over her motion to intervene and unseal the Budd Deposition. Biederman failed to provide any evidence that the Budd Deposition was a "court record" as required to invoke the procedures set out in Rule 76a, and thus, the Court resolves that the trial court's implied ruling that the Budd Deposition was not a "court record" as defined in Rule 76a(2) was correct. Because Biederman failed to establish that the Budd Deposition was a court record, the Court concludes that Biederman failed to demonstrate that the provisions of Rule 76a, including the jurisdictional provision in Rule 76a(7), applied to her motion. As a general proposition, before a court may address the merits of any case, the court must have jurisdiction over the party or the property subject to the suit, jurisdiction over the subject matter, jurisdiction to enter the particular judgment, and capacity to act as a court. And because the plenary power of the trial court had long expired, the Court sustains that the trial court correctly determined that it lacked jurisdiction to consider Biederman's request. A copy of the Opinion dated August 14, 2018, is available at https://tinyurl.com/ycc79rea from Leagle.com. Jason M. Panzer , Charles Herring , for Baron and Budd, P.C., Appellee. Christine Cole-Biederman, Paul C. Watler -- pwatler@jw.com -- Matthew Entsminger , for Christine Cole Biederman, Appellant. Kevin Dubose -- kdubose@adjtlaw.com -- Jason M. Panzer , Charles Herring , for Beverly Jean Brown, Individually and as Personal Representative of the Estate and Heirs of Glenn Edward Brown, Sr., Appellee. ASBESTOS UPDATE: DOJ Intensifies Attack on Asbestos Trust --------------------------------------------------------- Alison Frankel of Reuters reported that Jeffrey Prol of Lowenstein Sandler spent two years negotiating a deal to get his client, the sheet metal manufacturer Duro Dyne, in and out of Chapter 11 bankruptcy as quickly as possible. The company has exposure to about 1,000 asbestos plaintiffs, Prol said, but is otherwise healthy. So Prol began talks with Caplin & Drysdale, which represents an ad hoc committee of plaintiffs' firms with asbestos claims against Duro Dyne, about establishing a trust to cabin off asbestos liability. The company and the committee recognized they'd also have to account for the interests of people who may yet file asbestos claims so they brought in Lawrence Fitzpatrick, a highly-credentialed lawyer who has represented future claimants in an array of asbestos bankruptcies. Between them, the lawyers reached an agreement to establish an asbestos trust funded with at least $10.5 million in cash, a $13.5 million note and rights to Duro Dyne's asbestos insurance coverage. On Sept. 11, Duro Dyne filed its prepackaged Chapter 11 in federal bankruptcy court in New Jersey. "We wanted to get in and get out," Prol said. The U.S. Justice Department had other plans. On Wednesday, the DOJ, acting through the U.S. trustee's office, filed an objection to Duro Dyne's motion to appoint Fitzpatrick as the official representative of future asbestos claimants. In its press release announcing the filing -- a first of its kind -- the Justice Department said it was concerned about Fitzpatrick's "apparent conflicts of interest and close connections with lawyers representing current claimants," even though it was the company that moved for his appointment. DOJ's brief elaborated the argument: "The debtors would have the court quickly approve the selection of (a future claims representative) who was vetted and selected by the very parties he will supposedly be negotiating against," the brief said. "Although Mr. Fitzpatrick undoubtedly has significant experience in asbestos cases, those very same past and current engagements give rise to numerous connections and potential conflicts that have neither been fully disclosed nor investigated." The DOJ brief called for U.S. Bankruptcy Court Judge Michael Kaplan of Trenton to investigate Fitzpatrick's involvement in the negotiations preceding the Chapter 11 filing, his relationships with plaintiffs' lawyers and his financial interest in serving the trust that will be created in the proposed plan of reorganization. The tone of the brief, quite frankly, is accusatory. DOJ contends that the burden lies with Duro Dyne to prove Fitzpatrick is not conflicted and is capable of serving as an independent fiduciary. The filing is more evidence that this Justice Department has asbestos trusts in its sites. Earlier this month, you'll recall, the Justice Department filed what is apparently its first-ever statement of interest in the Chapter 11 bankruptcy of a company proposing the establishment of a trust for asbestos claimants. In that case, Kaiser Gypsum, DOJ argued that the company and a committee of asbestos plaintiffs didn't build in sufficient safeguards to prevent fraudulent claims against the trust. Its brief echoed years of tort reform allegations that asbestos trusts -- which have already doled out about $15 billion to purported victims and still contain $25 billion, according to a March 2018 report by the U.S. Chamber of Commerce's Institute for Legal Reform -- are rife with abuse and end up funneling unwarranted compensation to plaintiffs' lawyers, at the expense of current and future legitimate victims. DOJ's brief in the Duro Dyne case is a different vehicle but travels the same terrain. Lawrence Fitzpatrick, the proposed future claimants representative whose appointment DOJ opposes, declined to comment on the filing and asbestos claimants; committee counsel James Wehner of Caplin & Drysdale didn't respond to a phone message. But Duro Dyne counsel Prol told me that DOJ's targeting sends the wrong message. The company and its asbestos creditors, he said, brought Fitzpatrick into negotiations because of his impeccable record and deep experience with asbestos trusts like the one Duro has proposed. DOJ claims that very experience should provoke an inquiry into the lawyer's conflicts. "Follow that logic and that means a future claims rep can only do the job once," Prol said. "I hear their concerns, but attacking the futures rep, I don't think is the answer." Prol said DOJ warned the company about its new determination to police asbestos trusts. But he contends that discouraging repeat players will hurt companies trying to negotiate pre-packaged bankruptcies to minimize the disruption to their businesses. It's notable, he said, that the U.S. trustee's office has never previously objected to a future claims representative selected by a bankrupt company and asbestos claimants. (Debtors' insurers have occasionally raised objections, Prol said, but courts have overruled them.) Prol also said it's not clear from the DOJ brief exactly what process or standards the Justice Department wants to impose for the selections of future claims representatives. And that uncertainty, he said, could add time and expense to the corporate bankruptcy process. DOJ's new engagement with asbestos trusts is exactly what the business lobby has been demanding for years. But sometimes, as the old saying goes, you have to be careful what you wish for. ASBESTOS UPDATE: Duffus May File Brief Amici Curiae in Juni's Suit ------------------------------------------------------------------ The Court of Appeals of New York has granted John Henderson Duffus, et al.'s Motion for leave to file a brief amici curiae on the appealed case entitled 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. 2018-916, (N.Y. App. Div.), and has accepted the proposed brief as filed. A copy of the Order dated September 18, 2018, is available at https://tinyurl.com/y899ku69 Leagle.com. ASBESTOS UPDATE: Elderly Residents at Risk of Asbestos ------------------------------------------------------ BrixtonBuzz reported that since January 2018, elderly residents at Macintosh Court in Streatham have had their health put in danger as works by Lambeth Council to upgrade their homes have gone horribly wrong. The sheltered housing scheme was given grade 2 protection in 2015 after the residents thwarted the council's plans to sell the site to private developers by persuading English Heritage to list their homes. The community of over 55's renamed the estate in honour of its architect -- Kate Macintosh -- most famous for her landmark scheme Dawsons Heights, in nearby Southwark. Last year, Lambeth council authorised a spend of 1.5 million at Macintosh Court to make good 40 years of neglect. Kate was consulted and came up with a series of improvements to make the building suitable for the 21st century, including better insulation and the removal of ugly exterior pipes that had been added after the scheme had gone up. A series of architects and consultants were paid to work on plans for the upgrade. But when builders arrived late last year, all this was ignored. Instead subcontractors working for the council began a series of chaotic works on the building and the residents’ nightmare began. The first sign that things were going wrong was when newly installed roofing started to leak. The first resident to be affected noticed water gushing through her ceiling when she returned from her Christmas break. By January 5th the flooding was so bad that her waterlogged ceiling was unsound and needed taking down. Workers for Lambeth's contractor Engie noticed that the ceiling had an Artex covering: and that this almost certainly contained asbestos. While artex remains safe if left undisturbed, if the ceiling were to break up it would have been possible for the resident and workers to inhale potentially lethal asbestos fibres. Engie called in an emergency team from asbestos specialists Clifford Devlin to remove the ceiling under controlled conditions. It was fortunate that the workers recognised the signs of asbestos in the ceiling, because Lambeth had failed to check the interior of the flats for asbestos before starting work. This was because they'd only carried out safety surveys on the outside of the building. But strangely having eventually realised in early January that the roof works could potentially cause asbestos exposure inside the flats, the council and it's principal designer, Playle and Partners, appear to have carried on without taking any measures to mitigate this newly identified risk. The re-roofing continued, and as it did, more flats were flooded. Building professionals have advised me that normal practice would have been to pause work to find out what was causing the leaks, and meanwhile to erect a temporary waterproof covering to protect the roofs. On the 29th January Mr John Harris an elderly widower and his neighbour next door were flooded after their roofs were renewed. Both required their asbestos riddled ceilings to be removed as they were at risk of collapse. Frail Mr Harris was forced to sleep on the floor of his living room on a damp mattress for over 4 weeks until the council's workers came to renew his bedroom ceiling. Yet still the work went on. By March Mrs Janet Gayle had floodwater gushing through her asbestos coated bathroom ceiling. She reported the leak and the builders came in with buckets to catch the drips. At first the ceiling developed what she describes as a "huge crack," but after a second downpour of rain small pieces of plasterboard with its asbestos coating were breaking away, falling onto the floor and into the buckets below. Lambeth made no offer to evacuate Mrs Gayle to alternative accommodation. Eventually on 29th March Clifford Devlin came in to strip out Mrs Gayle’s ceiling under controlled conditions, but by then both Mrs Gayle and the bucket-emptying labourers had already been put at risk -- a risk that Lambeth should have anticipated after the first asbestos incident more than three months earlier. It was only in May that Lambeth called in a specialist asbestos survey for the building's interiors. By July the resident's association chair Mr John Beechey made formal request to see the survey, yet the council somehow never got round to handing it over to him. It was only on 19th September that Mr Beechey on his own initiative walked into the contractor's office on site and took a photos of the asbestos records held there. The records revealed that 43 out of 45 dwellings at Macintosh Court definitely contained asbestos. The remaining 2 flats contained suspected asbestos. More worryingly, many of the flats had not only white asbestos in the floors and ceilings, but blue asbestos in panels behind kitchen units. Blue asbestos is the deadliest form of the material, breaking easily into long sharp fibres that embed into the lungs of anyone who breathes them. A small amount of blue asbestos is enough to cause terminal cancer. Two residents have reported to me that they believe that these panels were ripped out from their flats without any protective measures taken, and we are awaiting information from Lambeth's project manager Andrew Marshall to find out if their fears could be true. As if this was not enough, heating contractor Mitie have spent the summer installing a network of hideous black-lagged pipework all over the outside of the building. This was illegal, because they didn't have listed building consent. Architect Kate Macintosh reported this breach 9 times to Lambeth's conservation officers Nicola Xureb and her boss Doug Black, yet to date they have refused to take action. It appears that Lambeth's officers had greater loyalty to each other than respect for the rule of law. Meetings with Councillor Paul Gadsby, Lambeth's new housing chief, elicited sympathy but no remedial action. Rather like a Soviet apparatchik spouting tractor production figures, Commissar Gadsby sent me figures boasting of Lambeth's rate of bathroom and kitchen upgrades, but has done nothing to end the resident's misery. John Beechey the long-suffering chair of the resident’s association at Macintosh Court is a man who's determined to find humour in the darkest of moments. And Lambeth's chief press officer Lawrence Conway did the honour of providing light relief in a series of creatively written press releases sent to me about the work. First on the 19th September Conway insisted that only two flats contained asbestos, which had been removed according to all legal requirements. I asked him if he was sure. He demanded evidence, so I sent the asbestos survey summary snapped by John Beechey from the contractor's office. Within minutes, Conway emailed back to say he'd prepare a new statement. He also demanded I take down a copy of his earlier statement, after the residents had uploaded to Twitter as proof of the council's dishonesty. In my 20 year media career, it was the first off-the record press release I'd ever encountered. Sure enough the next day Conway admitted he'd got his facts wrong -- completely unintentionally of course -- but insisted that no one's health had been put at risk. And the council's officers stuck to this story during that evening's Oversight and Scrutiny Committee. But they were anxious to insist that only two flats had needed their ceilings removed, those dealt with on the 29th January. Why had they forgotten the incidents on the 5th January and the 29th March? I only found out about the more extensive asbestos removal by calling asbestos contractors Clifford Devlin myself. Could it be that Lambeth understood that the fuller picture revealed that they had been negligent in their duty to protect their workers and the elderly residents? But back to Comical Conway the inventive press officer: for his final joke, he claimed that Lambeth hadn't deliberately withheld the asbestos survey from the residents. He insisted that the contractors had "provided" John Beechey with the asbestos report when he snapped a photo of it in the contractor's office. Conway insisted all this happened on the council's instruction -- perhaps a new strategy on Lambeth's quest to save paper? John knows he's been asking for the report for months but wonders: why Lambeth didn't just email it to him? Playle and Partners were contacted for comment but have yet to reply. Lawrence Conway has yet to respond to my latest request for clarification sent on 20th September. ASBESTOS UPDATE: Emerson Electric Had $346MM Liability at June 30 ----------------------------------------------------------------- Emerson Electric Co. has US$346 million as liability related to asbestos litigation at 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, "Other long-term assets include US$136 million of asbestos-related insurance receivables." A full-text copy of the Form 10-Q is available at https://bit.ly/2P4ZfEb ASBESTOS UPDATE: Employer Must Pay Asbestos Victim's Widow ---------------------------------------------------------- WorkCompCentral reported that the Montana Workers' Compensation Court ruled that the last employer responsible for exposing a worker to asbestos was liable for the payment of death benefits to the man's widow. The case is Atchley v. Louisiana Pacific Corp., No. 2014-3383, 09/26/2018. Facts and procedural history: Edward Atchley served in the U.S. Navy between 1951 and 1955. He worked in an engine room, and part of his job was repairing lagging, which contained asbestos. ASBESTOS UPDATE: Everest Had $273.2MM Loss Reserves at June 30 -------------------------------------------------------------- Everest Re Group, Ltd. had net asbestos loss reserves of US$273.2 million, or 96.6%, of total net A&E reserves at June 30, 2018, all of which was for assumed business, 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, "On July 13, 2015, we sold Mt. McKinley to Clearwater Insurance Company. Concurrently with the closing, we entered into a retrocession treaty with an affiliate of Clearwater. Per the retrocession treaty, we retroceded 100% of the liabilities associated with certain Mt. McKinley policies, which had been reinsured by Bermuda Re. As consideration for entering into the retrocession treaty, Bermuda Re transferred cash of US$140.3 million, an amount equal to the net loss reserves as of the closing date. Of the US$140.3 million of net loss reserves retroceded, US$100.5 million were related to A&E business. The maximum liability retroceded under the retrocession treaty will be US$440.3 million, equal to the retrocession payment plus US$300.0 million. We will retain liability for any amounts exceeding the maximum liability retroceded under the retrocession treaty. "Ultimate loss projections for A&E liabilities cannot be accomplished using standard actuarial techniques. We believe that our A&E reserves represent management's best estimate of the ultimate liability; however, there can be no assurance that ultimate loss payments will not exceed such reserves, perhaps by a significant amount. "Industry analysts use the "survival ratio" to compare the A&E reserves among companies with such liabilities. The survival ratio is typically calculated by dividing a company's current net reserves by the three year average of annual paid losses. Hence, the survival ratio equals the number of years that it would take to exhaust the current reserves if future loss payments were to continue at historical levels. Using this measurement, our net three year asbestos survival ratio was 5.6 years at June 30, 2018. These metrics can be skewed by individual large settlements occurring in the prior three years and therefore, may not be indicative of the timing of future payments." A full-text copy of the Form 10-Q is available at https://bit.ly/2xWl3LF ASBESTOS UPDATE: Farris Case Management Conference Moved to Nov. 28 ------------------------------------------------------------------- In the case styled Gary Farris and Melva Farris, Plaintiffs, v. 3M Company, et al. Defendants, Case No. 3:18-cv-04186-JST, (N.D. Cal.), the Hon. Jon S. Tigar of the United States District Court for the Northern District of California has issued an order approving the Stipulation between the Plaintiffs and the defendants who have appeared in the matter to date: Carrier Corporation, Crane Co., General Electric Company, Imo Industries, Inc., Parker-Hannifin Corporation, Ricoh Company, Ltd., Ricoh Company, Ltd. and Ricoh USA, Inc. Based on the stipulation by the Parties, the Court orders that: (1) That the Case Management Conference be continued to November 28, 2018; December 5, 2018, at 2:00 p.m.; (2) That the deadline for the Parties to meet and confer concerning a Joint Case Management Statement be continued to November 7, 2018; (3) That the deadline to file the Joint Case Management Statement be continued to November 21, 2018, Plaintiffs Gary Farris and Melva Farris filed a complaint in Alameda County Superior Court alleging causes of action for Strict Liability, Negligence, Fraud, Conspiracy to Defraud, and Market Share, arising out of alleged exposure to asbestos. The matter was removed from the Alameda County Superior Court to the United States District Court for the Northern District of California. Plaintiff's counsel recently discovered that many of the defendants in the matter have not been served. A Case Management Conference is calendared for October 24, 2018 and the Parties are to meet and confer concerning a Joint Case Management Statement by October 3, 2018 and file said same on October 15, 2018. Accordingly, the Parties requested that these dates be pushed out so the Plaintiffs can complete service of all defendants. A copy of the Order dated October 2, 2018, is available at https://tinyurl.com/y8235b5p Leagle.com. Gary Farris & Melva Farris, Plaintiffs, represented by Trey Jones , Law Offices of H.W. Trey Jones. Carrier Corporation, Defendant, represented by James P. Cunningham -- james.cunningham@tuckerellis.com -- Tucker Ellis LLP & Ronald Q. Tran -- ronald.tran@tuckerellis.com -- Tucker Ellis LLP. Crane Co., individually and successor-in-interest to Cochrane Corporation, Chapman Valve Company & Jenkins Valves, Defendant, represented by Geoffrey M. Davis -- Geoffrey.Davis@klgates.com -- K&L Gates LLP & Peter Edward Soskin -- peter.soskin@klgates.com -- K&L Gates LLP. General Electric Company, Defendant, represented by Derek S. Johnson -- djohnson@wfbm.com -- WFBM, LLP, Charles T. Sheldon -- csheldon@wfbm.com -- WFBM, LLP, Emily Elizabeth Anselmo -- eanselmo@wfbm.com -- WFBM, LLP & Katherine Paige Gardiner -- kgardiner@wfbm.com -- WFBM, LLP. IMO Industries, Inc., sued individually and as successor-in-interest to Delaval Turbine, Inc., Defendant, represented by Bobbie Rae Bailey -- bbailey@leaderberkon.com -- Leader & Berkon LLP, Frederick W. Gatt -- fgatt@leaderberkon.com -- Leader & Berkon LLP & Olga Guadalupe Pena -- opena@leaderberkon.com -- Leader & Berkon LLP. Parker-Hannifin Corporation, individually and as successor-in-interest to Sacoma-Sierra Inc., Defendant, represented by Robert Kum -- RKum@duanemorris.com -- Duane Morris LLP & Christopher Sean Patterson -- CSPatterson@duanemorris.com -- Duane Morris LLP. Ricoh Company, Ltd., individually and as successor-in-interest to Savin Corporation and served through its General Manager Ricoh USA, Inc., Defendant, represented by Mary Katherine Back -- mback@mgmlaw.com -- Manning Gross + Massenburg LLP & Tina Broccardo Van Dam -- tvandam@mgmlaw.com -- Manning Gross + Massenburg LLP. Ricoh USA, Inc., individually and as successor-in-interest to Savin Corporation and as general manager of Ricoh Company, Ltd., Defendant, represented by Mary Katherine Back -- mback@mgmlaw.com -- Manning Gross + Massenburg LLP. ASBESTOS UPDATE: Final Dismissal of Kirkland vs. Huntington Entered ------------------------------------------------------------------- The Hon. Halil Suleyman Ozerden of the United States District Court for the Southern District of Mississippi has issued a final judgment of dismissal of the civil action styled Johnny Kirkland, Plaintiff, v. Huntington Ingalls Incorporated, Defendant, Civil No. 1:17-cv135-HSO-JCG, (S.D. Miss.) with prejudice. Invoking federal question jurisdiction, Kirkland filed a pro se Complaint [1] in this Court on May 2, 2017, naming as Defendants Ingalls Shipyard, John (sic) Manville, and Fibre Board. Plaintiff asserts that while he was employed at Ingalls Shipyard, he was exposed to asbestos which resulted in his illness. Kirkland seeks damages in the amount of $2.8 Million. In either 1971 or 1978, Plaintiff Johnny Kirkland was hired by Defendant Huntington Ingalls Incorporated. According to Ingalls, the actual last workday of Kirkland's employment was September 18, 1978, and he was released from employment on September 25, 1978. Kirkland alleges that Ingalls Shipyard was his employer, while John (sic) Manville and Fibre Board were suppliers, and that Defendants "failed to protect my safety and health from harmful chemicals" that were sold by John (sic) Manville and Fibre Board to Ingalls Shipyard. Kirkland asserts that his rights under the Eighth Amendment was "violated by hollowing at me, and threatening to fire me if I didn't do what he told me to do, and by working me under age." Kirkland states that he began working at Ingalls Shipyard in 1971 at the age of 13, although he stated on his application that he was 18. Kirkland worked as a third class laborer, which included cleaning up, painting, cleaning insulation, grinding rust off tanks, cleaning out chemical tanks, and pipe fitting, all in the bottom of ships without any safety gear. Based upon the Exhibits attached to Plaintiff's Response to the Magistrate Judge's Order, the Magistrate Judge directed the Clerk of Court to "alter the docket to reflect that Defendants' proper names are: The Ingalls Shipbuilding Corporation, Johns Manville, and Fibreboard Corporation." Kirkland next filed an Amended Complaint, without leave of Court, on October 4, 2017, naming additional Defendants but dismissing Johns Manville. Kirkland states, in pertinent part, that he worked at age 13 as a laborer in the "27th Department" painting, cleaning up, carrying out insulation in the trash, sand blasting, and rust grinding. Kirkland further asserts that, in addition to the illness he suffers from asbestos exposure, he experienced chemical burns on his skin and hearing loss due to the loud noise at the shipyard and due to a piece of "hot steel" that flew into his ear. Kirkland seeks damages in the amount of "5 or Ten Billion Dollars," and claims that his father worked at Ingalls and was exposed to asbestos, which somehow contributed to Plaintiff's illness. On December 4, 2017, Kirkland filed a Second Amended Complaint which was stricken from the record by the Magistrate Judge for noncompliance with Federal Rule of Civil Procedure 15. Kirkland then filed a Motion to Amend Pleadings on February 2, 2018, apparently seeking to supplement his Amended Complaint with an allegation that Ingalls failed to screen his employment application, or it would have discovered that he was a minor and that he had used his cousin's Social Security number to obtain employment. The Court granted this Motion as unopposed. Ingalls has filed a Motion to Dismiss or, alternatively, for Summary Judgment, Specifically, Ingalls contends that Kirkland's claims are within the exclusive jurisdiction of the Longshore and Harbor Workers' Compensation Act (LHWCA) and are barred by the exclusive remedy provision of Section 905(a) of that Act. In the alternative, to the extent Plaintiff's claims are not preempted by the LHWCA, his claims fail to state a claim upon which relief can be granted because they are implausible and/or time barred by Section 15-1-49(1) of the Mississippi Code. In support of its Motions, Ingalls attaches the Affidavit of Steve Pierce, Manager-Risk Management of Northrop Grumman Shipbuilding, Inc., which avers that while Kirkland was employed there in 1978, Ingalls maintained workers' compensation coverage under both the Mississippi Workers' Compensation Act and the LHWCA. In addition, Ingalls required all of its subcontractors to carry workers' compensation coverage. In response, Kirkland admits that Ingalls is "covered under the LHWCA" but argues for the first time that, in addition to any claims that fall within the purview of the LHWCA, he is also "suing Huntington Ingalls Incorporation (sic) under the Dual Capacity Doctrine for strict liability in tort, breach of duty, negligence, punitive damages, and illegal underage working," citing Mississippi Code Section 71-1-17. Kirkland also posits that his claims are not barred and that the LHWCA would not want anything to do with Ingalls "hiring underage children and exposing them to asbestos." Ingalls replies that to the extent Kirkland's claims are not preempted by the LHWCA, they are barred by the three-year statute of limitations found at Mississippi Code Section 15-1-49(1). Ingalls maintains that although Kirkland is asserting for the first time in his Response that his injuries were latent, such that they fall within the exception set forth at Mississippi Code Section 15-1-49(2), Kirkland has failed to come forward with relevant material evidence to support such a contention. The Court is of the opinion that Ingalls has carried its burden of establishing that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. Kirkland concedes that a portion of his claims against Ingalls fall within the purview of the LHWCA. To the extent Kirkland's pleadings could be construed to assert any additional tort claims that may somehow fall outside the purview of the LHWCA, the Court agrees with Ingalls that those claims would be barred by the three-year statute of limitations found at Mississippi Code Section 15-1-49(1). The LHWCA provides a cause of action for injuries sustained by a broad range of land-based maritime workers. The LHWCA provides a no-fault workers' compensation scheme against a worker's employer for the death or disability of anyone engaged in maritime employment to receive medical costs, prejudgment interest, and two-thirds of the worker's salary for as long as the disability persists. Accordingly, a person who receives LHWCA benefits may not sue his employer under state law for any additional compensatory damages related to his on-the-job injury. Because it is beyond dispute that Kirkland's claims arise out of his employment with Ingalls in either ship construction or repair, the Court concludes that his claims are preempted by the LHWCA, which affords Ingalls immunity from the allegations raised by Kirkland in this matter.Thus, Kirkland's claims should be dismissed pursuant to the LHWCA. Giving Kirkland every benefit of the doubt, to the extent his pleadings could be construed to advance any state law claims not subject to the provisions of the LHWCA, such claims are barred by the relevant statute of limitations. In Mississippi, "all actions for which no other period of limitation is prescribed shall be commenced within three years next after the cause of such action accrued, and not after." Based upon the dates contained in the Employee Separation Certificate provided by Kirkland, and giving Kirkland every benefit of the doubt in terms of the dates of his employment, he worked at Ingalls in either 1971 or 1978 for a brief period of time. Taking as true Kirkland's allegation that he was only thirteen years of age when he worked at Ingalls in either 1971 or 1978, the Court points out that the three-year statute of limitations would have started running once he attained the age of twenty-one, either in 1979 or 1986. Mississippi Code Section 15-1-59 provides that if any person entitled to bring any of the personal actions mentioned shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the actions within the times in this chapter respectively limited, after his disability shall be removed as provided by law. However, the saving in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one (21) years. Therefore, the statute of limitations on any state law tort claim expired three years after Kirkland attained the age of twenty-one in either 1979 or 1986, long before he filed his Complaint in 2017. The Court finds that although Kirkland raises the issue of a latent injury in his Response, he did not plead that he suffered a latent injury. To the contrary, Kirkland stated in his Response that he left work because of breathing problems. In his Amended Complaint, Kirkland alleges that while at work he suffered chemical burns on his skin and hearing loss due to loud noise and hot metal flying into his ear. The record thus supports the conclusion that Kirkland was sufficiently aware of his alleged injuries at the time he left his employment with Ingalls that any cause of action he may be asserting in this case accrued once he reached the age of twenty-one. Mississippi Code Section 15-1-49(2) provides that "in actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury." To the extent any of Kirkland's claims could be construed to fall outside the purview of the LHWCA, the Court opines that they are barred by Mississippi's catchall three year statute of limitations, and any such claims should be dismissed with prejudice. To the extent Kirkland alleges that Ingalls violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution, the Court determines the proper vehicle for raising such claims is through an action under 42 U.S.C. Section 1983, which imposes liability upon any person who, acting under color of state law, deprives another of federally protected rights. However, Kirkland has failed to plausibly state a claim that, at the time of his employment, Ingalls was a state actor or that it acted under color of law, as required by Section 1983. Since his allegations of constitutional violations are insufficient to state a claim, the Court concludes that his case should be dismissed with prejudice. A copy of the Memorandum Opinion and Order dated September 11, 2018, is available at https://tinyurl.com/y9de5x2g from Leagle.com. Johnny Kirkland, Plaintiff, pro se. Huntington Ingalls Incorporated, Defendant, represented by Richard P. Salloum , Franke & Salloum, PLLC & Traci M. Castille , Franke & Salloum, PLLC. ASBESTOS UPDATE: Firm Fined for Exposing Employees to Asbestos -------------------------------------------------------------- BBC News reported that a wood processing mill where four workers died in an explosion has been fined for exposing staff to asbestos. Three men and a woman died in 2015 at Wood Treatment Ltd in Cheshire when the four-storey building collapsed. The Health and Safety Executive said after the blast staff removed cladding in 2016 without being told about the asbestos, although the firm was aware. The company was fined GBP2,000 at Manchester and Salford Magistrates' Court and must pay £3,000 costs. Wood Treatment Ltd, of Tunstall Road, Bosley, pleaded guilty in August to a breach of the Health and Safety at Work Act. Following the explosion in July 2015, the company was told by the HSE to fit new explosion-relief panels to an asbestos cement-clad warehouse. Although an external company had been hired, they did not work with materials that contained asbestos and staff at the wood processing plant removed them instead. Image captionWill Barks, Derek Moore, Jason Shingler and Dorothy Bailey all died on 17 July 2015 in the blast. After the panels were installed, the old asbestos sheets were cut to size and refitted to fill holes left in the wall, the HSE said. Although the company was fully aware of the asbestos and had an asbestos survey and action plan, the HSE said the information was not shared with employees and measures not put in place to contain the risks involved. HSE inspector Ian Betley said: "Asbestos is responsible for thousands of deaths in the UK every year but it only becomes dangerous when it is broken up and fibres are released into the air. "Asbestos should only be removed by specialist contractors, Wood Treatment Ltd put workers at risk by not following the correct safety procedures." The HSE's investigation into the explosion -- described by rescue teams as the "worst incident of its kind" in a decade -- is still on-going. Derek Moore, 62, from Stoke-on-Trent, William Barks, 51, from Leek, Jason Shingler, 38, from North Rode, and Dorothy Bailey, 62 died in the blast. ASBESTOS UPDATE: Firm Fined for Unlicensed Asbestos Removal ----------------------------------------------------------- Construction News reported that Bristol Magistrates' Court heard that a Health and Safety Executive investigation found that materials including asbestos insulation board were left lying outside during TW Parker’s work on the Cherry Tree pub in Oldland Common. Asbestos-containing materials, which require a licence to remove, were also discovered among the debris and in the building structure. TW Parker had been advised that a refurbishment survey was to be undertaken before works commenced. The firm failed to request information from the client regarding the possible presence of asbestos, despite some material being marked as containing asbestos, and failed to use a licensed contractor to undertake the removal works. TW Parker (Building & Groundworks) Ltd of Hicks Common Road, Winterbourne, Bristol pleaded guilty to breaching Section 5, 8(1) and 16 of the Control of Asbestos Regulations 2012. The company was fined GBP7,000 and ordered to pay GBP1,254.60 in costs. Speaking after the hearing, HSE inspector Ian Whittles said: "The dangers associated with asbestos are well known and a wealth of advice and guidance is freely available from the HSE website. "Companies should be aware that HSE will not hesitate to take appropriate enforcement action against those that fall below the required standards." ASBESTOS UPDATE: Fit & Healthy Woman Dies of Asbestos Cancer ------------------------------------------------------------ Daily Mail reported that a 'fit and healthy' young woman died from asbestos-related cancer -- 15 years after helping build a school using the material in her gap year, an inquest heard. Medical researcher Rose Wharton, 33, fell ill from mesothelioma, which is normally associated with older workers involved in the construction industries. The only time she could have been exposed to asbestos was while building a school in Argentina during her gap year when she was 18, her family told the hearing. Oxfordshire coroner Darren Salter said it was a 'very unusual' case because the illness usually only affects those who worked around asbestos for decades. 'I don't think I have seen a case like this,' she told the hearing. 'Mesothelioma normally affects men working as plumbers or heating engineers for 30 or 40 years, but this is very different from that.' Ms Wharton, who worked as a medical statistician and was born in Cambridge, was described as 'fit and well' with no medical problems except asthma. She was diagnosed in September last year and died at her home in Oxford on May 20. As the source of the asbestos exposure could not be confirmed, Mr Salter recorded a narrative verdict, stating the cause of her cancer was not known. A JustGiving crowdfunding page set up in her memory has raised almost GBP3,000 towards research into peritoneal mesothelioma. In a tribute, her colleagues at the Nuffield Department of Clinical Neurosciences at the University of Oxford said Ms Wharton would be 'greatly missed'. She studied Mathematics and Statistics in Newcastle University followed by an MSc in Medical Statistics at the University of Leicester before joining Oxford in 2010. Her group of friends are running the Oxford Half Marathon on Sunday 7th October in her memory. Rose's family added that they wanted to thank John Radcliffe and Churchill Hospitals in Oxford and the Sobell House Hospice who provided excellent care and support and St Ebbe's Church in Headington who provided moral support. WHAT IS MESOTHELIOMA? Mesothelioma is a type of cancer that develops in the lining that covers the outer surface of some of the body's organs. It's usually linked to asbestos exposure. It mainly affects the lining of the lungs (pleural mesothelioma), although it can also affect the lining of the tummy (peritoneal mesothelioma), heart or testicles. More than 2,600 people are diagnosed with the condition each year in the UK. Most cases are diagnosed in people aged 60-80 and men are affected more commonly than women. Unfortunately it's rarely possible to cure mesothelioma, although treatment can help control the symptoms. The symptoms of mesothelioma tend to develop gradually over time. They typically don't appear until several decades after exposure to asbestos. Mesothelioma is almost always caused by exposure to asbestos, a group of minerals made of microscopic fibres that used to be widely used in construction. These tiny fibres can easily get in the lungs, where they get stuck, damaging the lungs over time. It usually takes a while for this to cause any obvious problems, with mesothelioma typically developing more than 20 years after exposure to asbestos. The use of asbestos was completely banned in 1999, so the risk of exposure is much lower nowadays. However, materials containing asbestos are still found in many older buildings. ASBESTOS UPDATE: Flowserve Still Faces PI Lawsuits at June 30 ------------------------------------------------------------- Flowserve Corporation remains a defendant in various asbestos-related personal injury lawsuits, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. The Company states, "We are a defendant in a substantial number of lawsuits that seek to recover damages for personal injury allegedly caused by exposure to asbestos-containing products manufactured and/or distributed by our heritage companies in the past. While the overall number of asbestos-related claims has generally declined in recent years, there can be no assurance that this trend will continue, or that the average cost per claim will not further increase. Asbestos-containing materials incorporated into any such products were encapsulated and used as internal components of process equipment, and we do not believe that any significant emission of asbestos fibers occurred during the use of this equipment. "Our practice is to vigorously contest and resolve these claims, and we have been successful in resolving a majority of claims with little or no payment. Historically, a high percentage of resolved claims have been covered by applicable insurance or indemnities from other companies, and we believe that a substantial majority of existing claims should continue to be covered by insurance or indemnities. Accordingly, we have recorded a liability for our estimate of the most likely settlement of asserted claims and a related receivable from insurers or other companies for our estimated recovery, to the extent we believe that the amounts of recovery are probable and not otherwise in dispute. While unfavorable rulings, judgments or settlement terms regarding these claims could have a material adverse impact on our business, financial condition, results of operations and cash flows, we currently believe the likelihood is remote. "Additionally, we have claims pending against certain insurers that, if resolved more favorably than reflected in the recorded receivables, would result in discrete gains in the applicable quarter. We are currently unable to estimate the impact, if any, of unasserted asbestos-related claims, although future claims would also be subject to then-existing indemnities and insurance coverage." A full-text copy of the Form 10-Q is available at https://bit.ly/2RilIza ASBESTOS UPDATE: GMS Units Still Face 37 Lawsuits at July 31 ------------------------------------------------------------ GMS Inc.'s subsidiaries are still defending themselves against 37 pending asbestos-related personal injury lawsuits as of July 31, 2018, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended July 31, 2018. The Company states, "The building materials industry has been subject to personal injury and property damage claims arising from alleged exposure to raw materials contained in building products as well as claims for incidents of catastrophic loss, such as building fires. As a distributor of building materials, we face an inherent risk of exposure to product liability claims in the event that the use of the products we have distributed in the past or may in the future distribute is alleged to have resulted in economic loss, personal injury or property damage or violated environmental, health or safety or other laws. "Such product liability claims have included and may in the future include allegations of defects in manufacturing, defects in design, a failure to warn of dangers inherent in the product, negligence, strict liability or a breach of warranties. In particular, certain of our subsidiaries have been the subject of claims related to alleged exposure to asbestos-containing products they distributed prior to 1979. "Since 2002 and as of July 31, 2018, approximately 976 asbestos-related personal injury lawsuits have been filed and we vigorously defend against them. Of these, 931 have been dismissed without any payment by us, 37 are pending and only 8 have been settled, which settlements have not materially impacted our financial condition or operating results." A full-text copy of the Form 10-Q is available at https://is.gd/SdrRh5 ASBESTOS UPDATE: Hall Employees Exposed to Asbestos for Months -------------------------------------------------------------- Jeff McDonald of The San Diego Union-Tribune reported that San Diego city officials allowed hundreds of employees to remain in leased office space despite months of construction that exposed workers to cancer-causing asbestos, according to a legal claim filed on behalf of a longtime building inspector. Weeks after employees were moved from a rented high rise south of City Hall early this year, Deputy Chief Operating Officer Ronald Villa told employees a planned relocation had been delayed so the city would not be on the hook for $1 million or more for breaking the lease. "The city exposed its employees to deadly asbestos for months while they occupied the 1010 Second Ave. building, and then the city concealed the significance of the asbestos exposure its employees suffered," the claim states. City officials declined to discuss specific allegations in the legal claim, a formal filing that is generally required before a public agency can be sued in court. But they issued a statement saying that protecting employees from any dangerous work conditions is a top priority. "The city takes the workplace conditions of its employees seriously and that's why action was taken to remove all employees from the building once potential asbestos was discovered," the statement said. "City employees were instructed to leave all their equipment and personal belongings inside to prevent additional contamination." City leaders said they expect to sue the building owner on behalf of the city and its employees. The employee claim was filed Sept. 14 on behalf of city building inspector Bryan Monaghan. It was signed by San Diego attorney Maria Severson, who said up to 550 employees may eventually join the litigation. "They're nervous," Severson said of the city employees. "Some people have acute illnesses and symptoms as a result of the exposure but what the majority of them have is a fear of cancer, which is a recognizable claim. "They are forced to live their life wondering if it is going to materialize." The two-page claim seeks unspecified damages. A 16-page attachment details the history of the building renovations and a timeline showing asbestos-removal work and subsequent complaints from employees about headaches, nausea and other symptoms. According to the attachment, the city began moving employees into the building in January 2016. They came from the planning department, auditor's office, homeland security, information technology and other offices. In July 2017, the county Air Pollution Control District was notified by Clauss Construction that the building owners, Tower 180 Owner LLC, planned to remove approximately 5,000 square feet of asbestos-containing fireproofing. It was not immediately clear whether the county or contractor alerted the city or other tenants in the building to the removal project. Clauss Construction did not respond to a message Tuesday and a county spokesman said the county is not required to make such notifications. By August, city employees in the tower known as the Executive Complex began complaining about side effects of the construction work, the claim says. In January, county air-pollution officials received an emergency notification that asbestos had been disturbed during renovation work in the building lobby -- and the material required immediate removal. During subsequent inspection and air-testing, county officials noted that "poorly constructed polyvinyl sheeting containing holes was all that separated the construction zone and the occupied office space," the claim states. Samples from late January tested positive for two types of asbestos, the claim alleges. Between Jan. 25 and Jan. 29, seven separate samples came back with asbestos contents of 20 to 65 percent in fireproofing material and wall debris, the claim said. Four of those samples were taken on floors that were occupied, results showed. On Jan. 31, the city announced that "in an abundance of caution" it was moving 550 employees from the high rise. "The city's lease of Executive Complex was slated to terminate on June 30, 2019," the statement said. "However, the city has an option to terminate sooner and planned to shift all operations currently located at Executive Complex to 101 Ash St., which the city leased-to-own and is starting renovations in the next few months." Five weeks later, at a March 2 meeting with city workers called to address health concerns of the asbestos exposure, Villa told employees something different. "The reason why it took so long is there was no way for us to break the lease and we would have been held liable for all of that," he said, according to a transcript of the meeting cited in the claim. "Now that is over $1 million. Is that worth everybody's whatever? Maybe, maybe not. "The fact is there is a cost to that and we would have been in litigation over that," added Villa, who also pledged to post test results on the city website and provide copies of a pending report to employees when completed. Also attending the March employee meeting were an environmental services expert and an occupational medicine physician, each of whom told workers that their long-term health risks were minimal. "Everything was within tolerable levels, breathable air levels that would be just as safe as for a hospital or school," the environmental services expert said. The city did not explain the discrepancy between its Jan. 31 press release stating the lease was breakable and Villa's comment to employees in March. Additionally, no test results were posted online and no report was given to employees, the claim alleged. Plans to move hundreds of city employees into the office tower at 101 Ash St. also hit a snag. Last year the city agreed to spend just over $200 million on a lease-to-own deal to acquire the building, former headquarters for Manchester Financial and, before that, Sempra Energy. Aides to Mayor Kevin Faulconer told the City Council the building just needed a $10,000 power wash before hundreds of employees could be moved in by July 2017. That schedule was delayed amid design changes and unexpected renovations. The city has been paying $18,000 a day to lease that vacant building since January 2017, with move-in expected late next year. In August, the council agreed to spend an additional $30 million on renovations for the Ash Street high rise. Tower 180 Owner LLC issued a statement Tuesday saying the company responded prudently to the exposure. "Once notified of the environmental issues on the evening of Friday, Feb. 9, the owners immediately began working closely with the tenants and regulatory agencies to address the concerns surrounding the building," the statement said. "Tenants were notified via an official notice by email on the morning of Feb. 10, 2018." In a report earlier this year, the county Air Pollution Control District said it was "gravely concerned for the potential of repeated and ongoing exposure of the public to harmful asbestos debris both inside and outside the building," the claim states. County spokesman Michael Workman said the asbestos-removal project was written up by air-pollution inspectors for multiple violations. "They were cited and now are in compliance and are checked routinely," Workman wrote in an email. Many of the workers exposed to asbestos in the Executive Complex are represented by the San Diego Municipal Employees Association. Michael Zucchet, the former councilman who now runs the union, said even before he and his members learned about the asbestos exposure in January, working conditions inside the Executive Complex were difficult. "It wasn't just about the asbestos," he said. "There was dust and noise and walled-off windows. Anybody who has lived through a home remodel knows it's terrible. The city just kept saying they had nowhere else to place the employees." ASBESTOS UPDATE: Homes Built Before 1990 May Contain Asbestos ------------------------------------------------------------- Barb Brouwer of Salmon Arm Observer reported that there is a danger lurking in many homes that residents may not know about. Any building constructed before the 1990s is likely to have asbestos in the drywall, advised Ben Van Nostrand, environmental health team leader, to directors at the Sept. 20 Columbia Shuswap Regional District board meeting. "Demolition and renovation materials, including ceiling and other textured drywall, drywall mud and tape, floor tile and attic insulation manufactured through to the late 1980s has been determined to likely contain asbestos," wrote Van Nostrand in his report to the board. "Asbestos was added to these materials to make it more noise absorbent, to improve fire resistant capabilities and to make it stronger." The regional district began recycling drywall in 2010 and, in 2013, partnered with the North Okanagan and Okanagan-Similkameen Regional District to send drywall to a composting facility in Alberta. But in October 2017, the CSRD was informed that, due to uncertainties related to the potential for the drywall to contain asbestos, they would no longer be able to accept it at their facility. As a result, landfills in the Southern Interior, including CSRD facilities, ended up with large stockpiles of drywall, some of which likely contained asbestos. CSRD staff worked with neighbouring regional districts, consultants and Work Safe BC to develop guidelines to ensure the general public, CSRD contractors and staff are protected when disposing of the stockpiles. "At the time of writing this report, all CSRD stockpiles of drywall have either been appropriately landfilled or are in the final process of being removed," wrote Van Nostrand. Directors expressed the concern that many residents may not be aware of the danger of asbestos, or that they might have it in their homes. Van Nostrand pointed out that CSRD staff will continue to explore recycling options for new construction drywall, as landfilling drywall has negative environmental impacts such as the production of hydrogen sulphide gas, which is toxic to humans and can be lethal at higher concentrations. At this point, operations manager Darcy Mooney advised directors that the gas caused a fatality at the landfill a number of years ago. Van Nostrand then noted staff will begin reviewing drywall recycling options, in conjunction with the bylaw and tipping fee, and will potentially advance amendments in 2019 to reflect program changes. "In the meantime, staff will ensure that CSRD workers, contractors and customers of CSRD refuse disposal facilities are educated on the changes in the way in which these demolition and renovation materials are managed and accepted at CSRD facilities," he noted. Individuals wishing to dispose of drywall and associated materials that were manufactured prior to 1990 must ensure they are double-bagged and sealed in plastic bags that are at least 6 mm thick -- before they are taken to the landfills or transfer stations. "The issue is really renovation and demolition stuff and the key point there is 1990, so pre-1990 that you know may contain asbestos, if you want to bring it to the site without some proof that it doesn’t contain asbestos, you can double bag it," says Van Nostrand, noting that the material will be accepted without being bagged if a professional has done a risk assessment and signed off that it doesn't contain asbestos. Or, individuals can sign a waiver declaring the material to be post 1990. Van Nostrand said he wanted to create a number of avenues for the public and hopes to come up with another drywall recycling program in the future. "The problem there is they need to sign off to say it's asbestos free; if it shows up at the Richmond facility, we risk being fined, so the new program will be restricted to construction and brand-new drywall, companies that have signed off that they're bringing clean drywall only." Van Nostrand says the regional district will be providing instructions on demolition, how people can become aware of the risks of asbestos, how to take precautions, or where to find somebody to do a risk assessment. Information will be available on the regional district's website at www.csrd.bc.ca ASBESTOS UPDATE: Houston Wire Still Defends PI Suits at June 30 --------------------------------------------------------------- Houston Wire & Cable Company still defends itself against lawsuits alleging personal injury due to asbestos that may be in certain wire and cable, 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, "The Company, along with many other defendants, has been named in a number of lawsuits in the state courts of Minnesota, North Dakota, and South Dakota alleging that certain wire and cable which may have contained asbestos caused injury to the plaintiffs who were exposed to this wire and cable. These lawsuits are individual personal injury suits that seek unspecified amounts of money damages as the sole remedy. It is not clear whether the alleged injuries occurred as a result of the wire and cable in question or whether the Company, in fact, distributed the wire and cable alleged to have caused any injuries. "The Company maintains general liability insurance that, to date, has covered the defense of and all costs associated with these claims. In addition, the Company did not manufacture any of the wire and cable at issue, and the Company would rely on any warranties from the manufacturers of such cable if it were determined that any of the wire or cable that the Company distributed contained asbestos which caused injury to any of these plaintiffs. "In connection with ALLTEL's sale of the Company in 1997, ALLTEL provided indemnities with respect to costs and damages associated with these claims that the Company believes it could enforce if its insurance coverage proves inadequate." A full-text copy of the Form 10-Q is available at https://bit.ly/2IxSMiA ASBESTOS UPDATE: J-M Manufacturing Appeal of Warren Suit Dismissed ------------------------------------------------------------------ The Court of Appeals of New York has dismissed the appeal in the case styled In The Matter of New York City Asbestos Litigation. Theresa Warren, etc., Respondent, V. Amchem Products, Inc., et al., Defendants, J-M Manufacturing Company, Inc., Appellant, Motion No. 2018-648, (N.Y. App. Div.) upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. ASBESTOS UPDATE: Jury Verdict Favoring BNSF Affirmed on Appeal -------------------------------------------------------------- The Supreme Court of Montana affirms the jury verdict in favor of Burlington Northern Santa Fe Railway Company (BNSF), entered in the Eleventh Judicial District Court, Flathead County. On appeal, Plaintiff Kenneth Daley's arguments broadly assert that BNSF obtained favorable rulings to its requests to exclude evidence, and then made arguments that would have been contradicted by the excluded evidence. Kenneth Daley brought this case against Burlington Northern Santa Fe Railway Company (BNSF) under the Federal Employers Liability Act and the Locomotive Inspection Act. Daley worked at the Somers rail tie treatment plant operated by BNSF's predecessor from 1967 until it closed in 1986, and alleged injury from exposure to asbestos during his work there. The case was heavily litigated, with many pretrial motions. In July 2017, after a seven-day trial, a jury determined that BNSF had not violated the standard of care under FELA and had not violated the LIA. After trial, Daley moved the court to enter default judgment against BNSF for asserted litigation misconduct, which was deemed denied. The Court explains that the authority to grant or deny a motion in limine rests in the inherent power of the court to admit or exclude evidence and to take such precautions as are necessary to afford a fair trial for all parties. The Court has previously held that, when one party "opens the door" by broaching a topic that has been excluded, the trial court does not abuse its discretion by permitting the other party to offer evidence to correct a false impression. District courts to have broad discretion to determine the extent to which a party may respond once the other party opens the door, the Court further said. The district court granted BNSF's motion in limine to exclude the argument that BNSF had placed "profits over safety," reasoning that BNSF's profits were irrelevant to its standard of care under FELA to provide a "reasonably safe" workplace. BNSF's 2004 Form 10-K was referenced in the court's order as evidence that could be offered in support of the prohibited "profits over safety" argument. Form 10-K, a report required by the Securities and Exchange Commission for distribution to shareholders, stated in part: "The company is party to a number of personal injury claims by employees who worked around asbestos. The heaviest exposure for BNSF employees was due to work conducted in an around the use of steam locomotive engines that were phased out between the years of 1950 and 1967. However, other types of exposure, including exposure from locomotive component parts and building materials, continued after 1967, until substantially eliminated by 1985. The Court finds that the Form 10-K was referenced within the court's "profits over safety" order, and the court could have reasonably interpreted the order as excluding that document when the issue was revisited. Even if Form10-K had not been previously referenced, the district court could have later extended its ruling to the Form. Daley did not establish that the general reference in the Form to other "personal injury claims by employees who worked around asbestos" involved circumstances that were "substantially similar" to his claims and "not too remote." Given the lack of demonstrated comparable circumstances between the claims mentioned on the Form 10-K and Daley's experience at the Somers plant, the Court is not convinced that the district court abused its broad discretion, by excluding the evidence, even after BNSF argued Daley had not been exposed to asbestos. The Court notes that despite Daley's argument that he "was not allowed to present the truth," the district court admitted, over BNSF's repeated objections, extensive historical documentation of BNSF's predecessors' understanding of asbestos-related disease, dating back to the 1930s, including documents demonstrating their awareness of the health risks and recommended control measures. The district court also admitted extensive evidence concerning asbestos exposure at the Somers plant, and allowed Dr. Spear, Daley's industrial hygiene expert, significant latitude in his testimony, including about other employees exposed to asbestos who had different jobs than Daley. The Court also finds that the district court granted BNSF's motion in limine to preclude admission of evidence, including several letters, which referenced non-asbestos OSHA violations by BNSF and its refusal to permit access, at other plants, to OSHA inspectors without a warrant. The district court acknowledged the evidence could be admissible under Rule 406 as habit evidence, but excluded it under Rule 403, reasoning that "the evidence does not appear particularly relevant to show that there were violation of OSHA regulations concerning occupational asbestos exposure at the Somers Tie Plant. . . the risk of prejudice, confusion of the issues, and amount of time to develop the evidence from other facilities concerning non-asbestos OSHA regulations militates against its admissibility." Daley argues the district court erred by excluding the letters, first, as evidence of habit or as a party admission, and then by not admitting them in response to BNSF's "opening the door" by asserting during opening statement it was a workplace safety leader, which Daley contends left the jury with "an intentionally false image of the railroad's safety record that was irreconcilable with the excluded evidence." BNSF answers that the incidents referenced in the letters had no relation to Daley or the Somers plant, and that Daley did not preserve the asserted error for appeal. Given the remoteness between the infractions referenced in the letters and either the Somers plant or Daley's asbestos claim, the Court could not conclude the district court's initial exclusion of the letters under Rule 403 was arbitrary or exceeded the bounds of reason. First, the district court admitted significant evidence regarding asbestos-related violations of industry standards and OSHA rules at the Somers plant, including failure to test for asbestos, post required safety posters, provide safety equipment, including respirators, train workers on the proper use of safety equipment, provide medical evaluations, and remove asbestos. Secondly, the Court finds it doubtful that Daley preserved the issue of BNSF's "opening the door" to admission of the evidence. The Court explains that in order to preserve an objection to the admission of evidence for appeal, the objecting party must make a timely and specific objection on the record. The Court finds, however, that Daley does not demonstrate from the record that he argued BNSF's opening statement had opened the door to admission of the letters. Daley points to an "Offer of Proof" he filed with the district court five days into the trial, which offered further argument regarding nine evidentiary rulings he asserted were error, including this one, but that document made no request for relief. It was filed days after the opening statements were made, and it is questionable whether this filing timely provided an opportunity for the court to remedy any error. Further, given the plethora of issues then raised, with no suggested remedy, the Court cannot see how the trial court could have viably addressed them. The Court, therefore, concludes that the district court did not abuse its discretion by excluding the letters. Richard Wang and Robert Fuller, both deceased, were coworkers with Daley at the Somers plant. Both filed lawsuits against BNSF for asbestos exposure in the 1990s. The district court admitted some of their deposition testimony, including their testimony about exposure to asbestos at the Somers plant, reasoning it was relevant to Daley's claim. The district court excluded any reference to Wang and Fuller's illnesses and death, because there was no evidence in their depositions that they had suffered from asbestos-related diseases, and excluded reference to the lawsuits they had filed, reasoning these were irrelevant. On appeal, Daley argues BNSF opened the door to the issue of Wang and Fuller's asbestos claims by mentioning the term "claims" and asserting that Wang and Fuller had not been exposed to asbestos. BNSF responds that the district court appropriately balanced the issue, admitting Wang and Fuller's testimony about their asbestos exposure but excluding evidence about their legal claims on relevance grounds, given that their asserted injuries were not substantially similar, and the lack of evidence from the depositions that the co-workers had been diagnosed with asbestos-related diseases. While Defense Counsel's reference during opening statement to Wang and Fuller's "claims" was likely a violation of the district court's order, any prejudice or false impression given to the jury from this singular mention, made in passing with no additional detail, was minimal. Daley was permitted to present both Wang and Fuller's testimony regarding their exposure to asbestos at the Somers plant, including Fuller's testimony that there was dry "asbestos laying all over the place" and was regularly cleaned up with brooms by everyone working at the plant. The Court cannot conclude that the district court abused its discretion by determining that BNSF's reference had not opened the door to a discussion of the co-workers' illnesses and claims. The Court maintains that it was not improper for BNSF to attack the credibility of Wang and Fuller's testimony by pointing out inconsistencies with each other, and the contradictory test results. In discovery, Daley identified Richard Funk, another of his former co-workers, as a potential witness. However, Daley did not list Funk as a witness on the final pretrial order. Shortly before trial, one of Daley's experts suffered a medical emergency, and the trial was postponed. When the parties submitted a second final pretrial order before the rescheduled trial, Daley added Funk as a witness. BNSF objected, arguing Funk had not been listed in the initial pretrial order, and that, in discovery, Daley had not provided contact information for Funk, leaving BNSF unable to contact Funk about his testimony. The district court barred both parties from adding witnesses to the first pretrial order and disallowed Funk's testimony, reasoning that both parties indicated they were ready for trial when the first pretrial order was filed, and it would not permit a party to "take advantage" of the continuance granted for a medical emergency. Daley argues the district court erred by accepting BNSF's "misrepresentations about surprise and concealment," and that it was "hyper technical" to exclude Funk, given that BNSF had notice that he was a witness and his contact information was available in the local phonebook. The Court confirms the trial judge "is in the best position to determine both whether the party in question has disregarded the opponent's rights, and which sanctions are most appropriate," and thus, the Court cannot conclude that the district court acted arbitrarily or exceeded the bounds of reason by disallowing witnesses not disclosed on the first pretrial order. Daley propounded discovery to identify other injuries to BNSF employees. One interrogatory, for instance, requested that BNSF "identify all claims filed against your company by employees who worked around asbestos" from 1962 to the present. In December 2015, BNSF responded to this interrogatory and other similar requests by objecting that the requests were overly broad and unduly burdensome, stating the requests spanned fifty years and covered all locations, crafts, facilities, and types of injuries. However, along with its objections, BNSF offered to conduct a search and produce information about prior employee exposure to asbestos. Apparently, Daley did not respond to BNSF's proposed search prior to the close of discovery. In June 2016, BNSF similarly objected to Daley's further discovery requests that sought information regarding other accidents, and discovery closed in July 2016. The motions deadlines passed and, in September 2016, Daley certified at a pretrial conference he was ready for trial and did not mention any discovery disputes. Daley made an emergency motion to continue trial, due to a medical emergency of one of his experts, which the District Court granted. Trial was reset for July 2017. Then, in March 2017, Daley filed a motion to compel, arguing BNSF had made improper objections to his discovery requests and withheld documents of other claims, and asserting "it is clear that BNSF has not produced responsive information that Plaintiff has located on his own and that BNSF is well aware of from asbestos litigation against it." BNSF also argued the requests were overbroad, and explained that it had offered in 2015 to conduct a search within proposed parameters for other claims, but that Daley had not responded. BNSF included a spreadsheet providing raw data about BNSF injury claims in Montana that would have been used for the proposed search. The district court denied Daley's motion, ruling that Daley's motion was untimely. The court did not want the parties to use the emergency trial continuance to conduct additional discovery, and set a new motion deadline only because the first final pretrial order referenced unbriefed trial issues that needed to be resolved. Daley's discovery motion was filed more than eight months after the close of discovery and over a year after receiving BNSF's initial objections. The district court found that "Daley's counsel should have recognized his concerns regarding BNSF's objections" before discovery closed, and that Daley's explanation for his delay -- that he was unaware of other claims against BNSF until recently -- was "not compelling" and "not persuasive." Further, the district court found Daley did not comply with the good faith conferral requirement under M. R. Civ. P. 37(a)(1). Based on the timing of the motion, giving BNSF only four days to respond before filing, the district court concluded the motion "smacked of gamesmanship." The district court found that Daley's assertions about the existence of withheld documents were "based fundamentally on assumptions and speculation," and that many of Daley's discovery requests were "overbroad and burdensome requests which do not appear reasonably calculated to lead to the discovery of admissible evidence." Finally, the district court granted BN's attorney fees for defending against the motion under M. R. Civ. P. 37(a)(5)(B), which it reasoned was mandatory under the Rule, absent certain exceptions. On appeal, Daley argues that the district court abused its discretion by not granting its motion to compel, and should have entered a default against BNSF for this "discovery misconduct," as BNSF failed to produce sufficient information in response to his requests. However, under the district court's extensive reasoning, the Court cannot conclude that the district court acted arbitrarily or exceeded the bounds of reason. The Court deliberates that broad discovery requests by a plaintiff and broad discovery objections by a defendant may be anticipated, and a party who believes he is aggrieved by discovery abuse must diligently follow the Rules to pursue relief. The Court has previously recognized the "dim view" taken by courts to inaction or dilatory responses to asserted inadequate discovery answers. An aggrieved party must confer and compel in a timely fashion under the court's scheduling order. Having found that Daley filed the motion well over a year after BNSF first lodged its objections, and having failed to pursue the issue until well after discovery had closed and shortly before the second trial date, the Court concludes that BNSF's tactics and patterns of conduct do not constitute cumulative misconduct that warrant either the entry of a default judgment against BNSF or new trial. A copy of the Opinion dated August 14, 2018, is available at https://tinyurl.com/ya3kjxbs from Leagle.com. The case is Kenneth Daley, Plaintiff and Appellant, v. Burlington Northern Santa Fe Railway Company, a Delaware for Profit Corporation; Great Northern Railway Company, a Foreign for Profit Corporation, and DOES A-Z inclusive, Defendants and Appellees, No. DA 17-0681, (Mont.) John F. Lacey , Ethan Aubrey Welder , McGarvey, Heberling, Sullivan & Lacey, P.C., Kalispell, Montana. James T. Towe , Kimberly L. Towe , Toe & Fitzpatrick, PLLC, Missoula, Montana, for Appellant. Chad M. Knight -- knight@knightnicastro.com -- Anthony M. Nicastro -- nicastro@knightnicastro.com -- Nadia H. Patrick -- npatrick@knightnicastro.com -- Steven T. Williams -- williams@knightnicastro.com -- Knight Nicastro, LLC, Boulder, Colorado, for Appellees. ASBESTOS UPDATE: Navistar Continues to Defend Claims at July 31 --------------------------------------------------------------- Navistar International Corporation still faces asbestos claims related to its facilities and older vehicle models, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended July 31, 2018. The Company states, "Along with other vehicle manufacturers, we have been subject to an increased number of asbestos-related claims in recent years. In general, these claims relate to illnesses alleged to have resulted from asbestos exposure from component parts found in older vehicles, although some cases relate to the alleged presence of asbestos in our facilities. In these claims, we are generally not the sole defendant, and the claims name as defendants numerous manufacturers and suppliers of a wide variety of products allegedly containing asbestos. "We have strongly disputed these claims, and it has been our policy to defend against them vigorously. Historically, the actual damages paid out to claimants have not been material in any year to our financial condition, results of operations, or cash flows. It is possible that the number of these claims will continue to grow, and that the costs for resolving asbestos related claims could become significant in the future." A full-text copy of the Form 10-Q is available at https://bit.ly/2wMlyXg ASBESTOS UPDATE: Park-Ohio Industries Faces 92 Suits at June 30 --------------------------------------------------------------- Park-Ohio Industries, Inc. is still defending itself in around 92 asbestos-related personal injury cases, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. The Company states, "We were a co-defendant in approximately 92 cases asserting claims on behalf of approximately 199 plaintiffs alleging personal injury as a result of exposure to asbestos. These asbestos cases generally relate to production and sale of asbestos-containing products and allege various theories of liability, including negligence, gross negligence and strict liability, and seek compensatory and, in some cases, punitive damages. "In every asbestos case in which we are named as a party, the complaints are filed against multiple named defendants. In substantially all of the asbestos cases, the plaintiffs either claim damages in excess of a specified amount, typically a minimum amount sufficient to establish jurisdiction of the court in which the case was filed (jurisdictional minimums generally range from US$25,000 to US$75,000), or do not specify the monetary damages sought. To the extent that any specific amount of damages is sought, the amount applies to claims against all named defendants. "There are four asbestos cases, involving 21 plaintiffs that plead specified damages against named defendants. In each of the four cases, the plaintiff is seeking compensatory and punitive damages based on a variety of potentially alternative causes of action. In three cases, the plaintiff has alleged three counts at US$3.0 million compensatory and punitive damages each; one count at US$3.0 million compensatory and US$1 million punitive damages; one count at US$1.0 million. In the fourth case, the plaintiff has alleged compensatory and punitive damages, each in the amount of US$20.0 million, for three separate causes of action, and US$5.0 million compensatory damages for the fifth cause of action. "Historically, we have been dismissed from asbestos cases on the basis that the plaintiff incorrectly sued one of our subsidiaries or because the plaintiff failed to identify any asbestos-containing product manufactured or sold by us or our subsidiaries. We intend to vigorously defend these asbestos cases, and believe we will continue to be successful in being dismissed from such cases. However, it is not possible to predict the ultimate outcome of asbestos-related lawsuits, claims and proceedings due to the unpredictable nature of personal injury litigation. Despite this uncertainty, and although our results of operations and cash flows for a particular period could be adversely affected by asbestos-related lawsuits, claims and proceedings, management believes that the ultimate resolution of these matters will not have a material adverse effect on our financial condition, liquidity or results of operations. Among the factors management considered in reaching this conclusion were: (a) our historical success in being dismissed from these types of lawsuits on the bases mentioned; (b) many cases have been improperly filed against one of our subsidiaries; (c) in many cases the plaintiffs have been unable to establish any causal relationship to us or our products or premises; (d) in many cases, the plaintiffs have been unable to demonstrate that they have suffered any identifiable injury or compensable loss at all or that any injuries that they have incurred did in fact result from alleged exposure to asbestos; and (e) the complaints assert claims against multiple defendants and, in most cases, the damages alleged are not attributed to individual defendants. Additionally, we do not believe that the amounts claimed in any of the asbestos cases are meaningful indicators of our potential exposure because the amounts claimed typically bear no relation to the extent of the plaintiff's injury, if any. "Our cost of defending these lawsuits has not been material to date and, based upon available information, our management does not expect its future costs for asbestos-related lawsuits to have a material adverse effect on our results of operations, liquidity or financial position." A full-text copy of the Form 10-Q is available at https://is.gd/4xRkZw ASBESTOS UPDATE: School Kitchen Shut Due to Asbestos ---------------------------------------------------- BBC News reported that the kitchen at a school in Skye had to be closed off following concerns about asbestos in fragments of coating that fell from the ceiling of the room. Sandwiches were provided as lunch to pupils at Broadford Primary. Highland Council said the type of asbestos in the fragments posed a "very low risk". However, the parent council has said the incident was another example of the poor state of the school. Following the closure of the school's kitchen, Highland Council said: "We have thoroughly checked the building and done any remedial work required. "The school is open as normal today and lunches will be served." ASBESTOS UPDATE: TriMas Corp. Had 396 Pending Cases at June 30 -------------------------------------------------------------- TriMas Corporation has 396 pending asbestos-related personal injury cases 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, "As of June 30, 2018, the Company was a party to 396 pending cases involving an aggregate of 4,841 claims primarily alleging personal injury from exposure to asbestos containing materials formerly used in gaskets (both encapsulated and otherwise) manufactured or distributed by certain of its subsidiaries for use primarily in the petrochemical, refining and exploration industries. "In addition, the Company acquired various companies to distribute its products that had distributed gaskets of other manufacturers prior to acquisition. The Company believes that many of its pending cases relate to locations at which none of its gaskets were distributed or used. "The Company may be subjected to significant additional asbestos-related claims in the future, the cost of settling cases in which product identification can be made may increase, and the Company may be subjected to further claims in respect of the former activities of its acquired gasket distributors. The Company is unable to make a meaningful statement concerning the monetary claims made in the asbestos cases given that, among other things, claims may be initially made in some jurisdictions without specifying the amount sought or by simply stating the requisite or maximum permissible monetary relief, and may be amended to alter the amount sought. The large majority of claims do not specify the amount sought. "Of the 4,841 claims pending at June 30, 2018, 60 set forth specific amounts of damages (other than those stating the statutory minimum or maximum). At June 30, 2018, of the 60 claims that set forth specific amounts, there were no claims seeking specific amounts for punitive damages. "In addition, relatively few of the claims have reached the discovery stage and even fewer claims have gone past the discovery stage. "Total settlement costs (exclusive of defense costs) for all such cases, some of which were filed over 20 years ago, have been approximately US$8.7 million. All relief sought in the asbestos cases is monetary in nature. To date, approximately 40% of the Company's costs related to settlement and defense of asbestos litigation have been covered by its primary insurance. "Effective February 14, 2006, the Company entered into a coverage-in-place agreement with its first level excess carriers regarding the coverage to be provided to the Company for asbestos-related claims when the primary insurance is exhausted. The coverage-in-place agreement makes asbestos defense costs and indemnity insurance coverage available to the Company that might otherwise be disputed by the carriers and provides a methodology for the administration of such expenses. Nonetheless, the Company believes it is likely there will be a period within the next six to 12 months, prior to the commencement of coverage under this agreement and following exhaustion of the Company's primary insurance coverage, during which the Company will be solely responsible for defense costs and indemnity payments, the duration of which would be subject to the scope of damage awards and settlements paid. "Based on the settlements made to date and the number of claims dismissed or withdrawn for lack of product identification, the Company believes that the relief sought (when specified) does not bear a reasonable relationship to its potential liability. Based upon the Company's experience to date, including the trend in annual defense and settlement costs incurred to date, and other available information (including the availability of excess insurance), the Company does not believe these cases will have a material adverse effect on its financial position and results of operations or cash flows." A full-text copy of the Form 10-Q is available at https://bit.ly/2NgGSKI ASBESTOS UPDATE: Union Carbide Faces 13,734 Claims at June 30 ------------------------------------------------------------- Union Carbide Corporation has 13,734 unresolved asbestos-related claims at 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. Union Carbide states, "The Corporation is and has been involved in a large number of asbestos-related suits filed primarily in state courts during the past four decades. These suits principally allege personal injury resulting from exposure to asbestos-containing products and frequently seek both actual and punitive damages. The alleged claims primarily relate to products that UCC sold in the past, alleged exposure to asbestos-containing products located on UCC's premises, and UCC's responsibility for asbestos suits filed against a former UCC subsidiary, Amchem Products, Inc. ("Amchem"). In many cases, plaintiffs are unable to demonstrate that they have suffered any compensable loss as a result of such exposure, or that injuries incurred in fact resulted from exposure to UCC's products. "Plaintiffs' lawyers often sue numerous defendants in individual lawsuits or on behalf of numerous claimants. As a result, the damages alleged are not expressly identified as to UCC, Amchem or any other particular defendant, even when specific damages are alleged with respect to a specific disease or injury. In fact, there are no personal injury cases in which only the Corporation and/or Amchem are the sole named defendants. For these reasons and based upon the Corporation's litigation and settlement experience, the Corporation does not consider the damages alleged against it and Amchem to be a meaningful factor in its determination of any potential asbestos-related liability." A full-text copy of the Form 10-Q is available at https://is.gd/GdoWFO ASBESTOS UPDATE: Union Carbide Has $1.3BB Liability at June 30 -------------------------------------------------------------- Union Carbide Corporation's asbestos-related liability for pending and future claims and defense and processing costs was US$1,310 million at 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. Union Carbide states, "The Corporation is and has been involved in a large number of asbestos-related suits filed primarily in state courts during the past four decades. These suits principally allege personal injury resulting from exposure to asbestos-containing products and frequently seek both actual and punitive damages. The alleged claims primarily relate to products that UCC sold in the past, alleged exposure to asbestos-containing products located on UCC's premises and UCC's responsibility for asbestos suits filed against a former UCC subsidiary, Amchem Products, Inc. ("Amchem"). In many cases, plaintiffs are unable to demonstrate that they have suffered any compensable loss as a result of such exposure, or that injuries incurred in fact resulted from exposure to the Corporation's products. "The Corporation expects more asbestos-related suits to be filed against UCC and Amchem in the future, and will aggressively defend or reasonably resolve, as appropriate, both pending and future claims. "Since 2003, the Corporation has engaged Ankura Consulting Group, LLC ("Ankura"), a third party actuarial specialist, to review the Corporation's historical asbestos-related claim and resolution activity in order to assist UCC management in estimating the Corporation's asbestos-related liability. Each year, Ankura has reviewed the claim and resolution activity to determine the appropriateness of updating the most recent Ankura study. "Based on the December 2017 Ankura review and the Corporation's own review of the data, the Corporation's total asbestos-related liability through the terminal year of 2049, including asbestos-related defense and processing costs, was US$1,369 million at December 31, 2017, and was included in "Asbestos-related liabilities - current" and "Asbestos-related liabilities - noncurrent" in the consolidated balance sheets. "Each quarter, the Corporation reviews claims filed, settled and dismissed, as well as average settlement and resolution costs by disease category. The Corporation also considers additional quantitative and qualitative factors such as the nature of pending claims, trial experience of the Corporation and other asbestos defendants, current spending for defense and processing costs, significant appellate rulings and legislative developments, trends in the tort system, and their respective effects on expected future resolution costs. UCC management considers all these factors in conjunction with the most recent Ankura study and determines whether a change in the estimate is warranted. Based on the Corporation's review of 2018 activity, it was determined that no adjustment to the accrual was required at June 30, 2018. "The Corporation's asbestos-related liability for pending and future claims and defense and processing costs was US$1,310 million at June 30, 2018, and approximately 16 percent of the recorded liability related to pending claims and approximately 84 percent related to future claims." A full-text copy of the Form 10-Q is available at https://is.gd/GdoWFO ASBESTOS UPDATE: US Auto Parts Units Still Defend Suits at June 30 ------------------------------------------------------------------ U.S. Auto Parts Network, Inc.'s subsidiaries continue to face lawsuits involving claims for damages caused by installation of brakes that contained asbestos, 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, "A wholly-owned subsidiary of the Company, Automotive Specialty Accessories and Parts, Inc. and its wholly-owned subsidiary Whitney Automotive Group, Inc. ("WAG"), are named defendants in several lawsuits involving claims for damages caused by installation of brakes during the late 1960's and early 1970's that contained asbestos. WAG marketed certain brakes, but did not manufacture any brakes. WAG maintains liability insurance coverage to protect its and the Company's assets from losses arising from the litigation and coverage is provided on an occurrence rather than a claims made basis, and the Company is not expected to incur significant out-of-pocket costs in connection with this matter that would be material to its consolidated financial statements." A full-text copy of the Form 10-Q is available at https://bit.ly/2OvWFtV ASBESTOS UPDATE: Whittaker May Perfect Appeal Until May 2019 Term ----------------------------------------------------------------- In the appealed case In Re: New York City Asbestos Litigation. Claudia Discala, As Administrator of the Estate of Joan Robusto, Plaintiff-Respondent, v. Charles B. Chrystal Company, Inc., et al., Defendants, -And- Whittaker Clark & Daniels, Inc., Defendant-Appellant, Motion No. M-3795, Index No. 190413/13., 40000/88, (N.Y. App. 1st Dept.), the Appellate Division of the Supreme Court of New York, First Department has granted Defendant-Appellant, -And- Whittaker Clark & Daniels, Inc.'s for motion to the extent of enlarging the time to perfect the appeal to the May 2019 Term. The Defendant-Appellant moved for an enlargement of time to perfect their appeal until the earlier of 1) 20 days after the Court of Appeals decides or disposes of the appeal entitled Juni v A.O. Smith Water Prods. Co. (154 A.D.3d 441 [1st Dept 2017]), presently sub judice, or 2) until February 19, 2019, with leave to seek further enlargements, if necessary. A copy of the Order dated September 13, 2018, is available at https://tinyurl.com/ycrgll6k from Leagle.com. UTAH: Summary Judgment in Suit Over Hospital Lien Statute Affirmed ------------------------------------------------------------------ The Supreme Court of Utah issued an Opinion affirming the District Court's judgment granting the Hospital's Motion for Summary Judgment in the case captioned ZACHARY BRYNER, NENITA R. EZAR, MICHELLE GALLAGHER, and CHRISTOPHER FURR, Appellants, v. CARDON OUTREACH, LLC, IHC HEALTH SERVICES, INC., ST. MARK'S HOSPITAL, UNIVERSITY OF UTAH HEALTH CARE, and STATE OF UTAH, Appellees. No. 20160818. (Utah). The question before the state Supreme Court is not a particularly thorny one: what is the correct interpretation of Utah's Hospital Lien Statute? This proposed class action involves persons injured in car accidents who filed personal injury claims against the third parties at fault. All had hospital liens placed on any potential recovery from those claims, and all reached settlement agreements, paying their attorney fees by way of a contingent fee on the recovery. The patients contend that the hospitals failed to pay their fair share of the attorney fees including court costs and other necessary expenses the patients incurred in generating the settlement proceeds. The plaintiffs argued that the Hospital Lien Statute requires a hospital to pay its proportional share of an injured person's attorney fees and costs when a hospital lien is paid due to the efforts of the injured person or his or her attorney. The defendants countered that the statute contains no such language, and that the statute operates instead to establish a priority system as to entitlement to settlement funds to allow hospitals to get paid. The district court concluded that the hospitals' interpretation was correct, as it was the only reasonable interpretation that made sense given the context of the statute read as a whole. STANDARD OF REVIEW The Court affirms a grant of summary judgment when the record shows there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The parties disagree about the effect of the Hospital Lien Statute in allocating the attorney fees and costs of the personal injury litigation. In particular, the parties disagree about the meaning of subsections 1(a) and 1(b) of the statute. These subsections state. "(1) (a) Except as provided in Subsection (3), a hospital located within the state that furnishes emergency, medical, or other service to a patient injured by reason of an accident is entitled to assert a lien upon that portion of the judgment, settlement, or compromise going or belonging to the patient, or, in the case of death, to the patient's heirs or personal representatives, less the amount paid by the patient, or on behalf of the patient by heirs or personal representatives, for attorney fees, court costs, and other necessary expenses incidental to obtaining the judgment, settlement, or compromise. "(b) No reduction of the asserted lien amount is allowed other than the amount paid by the patient, or the patient's heirs, or personal representatives for attorney fees, court costs, and other necessary expenses incidental to litigation, unless otherwise agreed to in writing by the lien claimant." The Whole-Text Canon and the Grammatical Structure of Subsection (1) The whole-text canon calls on the judicial interpreter to consider the entire text, in view of its structure and of the physical and logical relation of its many parts. Read as a whole, Utah Code section 38-7-1(1) creates a priority for the distribution of the judgment, settlement, or compromise going or belonging to the patient. The judgment is first used to pay attorney fees, court costs, and other necessary expenses accrued in obtaining the judgment. Subsection 1(a) allows a hospital to assert a lien on the remaining amount of the judgment to obtain payment for medical expenses incurred in treating the patient as a result of the action being litigated provided that the amount is greater than $100. Subsection 1(b) establishes that the hospital has priority over any other creditor or the patient to the entirety of the net judgment (total judgment less attorney fees) up to its asserted lien unless expressly agreed to by the hospital. In other words, the total amount of the judgment going or belonging to the patient is first used to pay or reimburse attorney fees, with the net judgment becoming available to cover the entirety of the hospital lien. Any remaining funds go to other lien holders, if they exist, and then the patient receives the final amount. The Substantive Terms Canon Nothing in the language of the Hospital Lien Statute allows for assessing the hospitals with a proportional share of the attorney fees. The patients' reading of the statute to incorporate proportional sharing does not comport with the language in the statute; in fact, substantive terms must be added to read it as assessing hospitals for a portion of the attorney fees. This goes four square against our case law. The Court will not infer substantive terms into the text that are not already there. Rather the interpretation must be based on the language used, and the Court have no power to rewrite the statute to conform to an intention not expressed. In short, where the legislature has not indicated an intention to enact an unprecedented legal requirement, we will not alter the statutory terms to surmise one. The Court rejects the patients' notion of proportional fee sharing. Common Fund Doctrine The patients' argument that the doctrine would avoid unjust enrichment because the hospitals otherwise would bear none of the litigation costs is inapposite. The relationship between a hospital and a patient is generally a contractual oneeither expressed through signing the forms upon admission and consenting to treatment or implied through receiving emergency treatment even without signing the forms. The existence of a claim, or right to payment, is at the heart of the debtor-creditor relationship. When hospitals have provided medical services to patients in accordance with the law, they are entitled to payment from the patients. This establishes a debtor-creditor relationship between the patients and the hospitals. The Hospital Lien Statute is just one mechanism that hospitals may use to recover the debt owed for treatment-an amount that would be owed regardless of whether a lawsuit against a tortfeasor ensued. To expect a creditor to help pay attorney fees for a lawsuit when they are entitled to collect on the debt owed them-regardless of whether a suit is filed or the outcome-is unrealistic and illogical. The Court affirms the district court in its grant of summary judgment to the hospitals. A full-text copy of the state Supreme Court's September 24, 2018 Opinion is available at https://tinyurl.com/y9ysaos7 from Leagle.com. Robert B. Sykes, Alyson Carter McAllister, Daniel Oswald, for appellants Gregory John Wilder, Provo, for appellant Nenita R. Ezar Sean D. Reyes, Att'y Gen., Peggy Stone, Asst. Sol. Gen., Salt Lake City, for appellees University of Utah Health Care and State of Utah. Derek J. Williams , P. Matthew Cox , Nathaniel J. Mitchell , Salt Lake City, for appellee Cardon Outreach, LLC Alan C. Bradshaw , Steven C. Bednar , Salt Lake City, for appellee IHC Health Services, Inc. Andrew G. Deiss , Billie Jean Siddoway , Salt Lake City, Sean Gallagher, Denver, CO, for appellee St. Mark's Hospital. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***