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/raid1/www/Hosts/bankrupt/CAR_Public/181026.mbx C L A S S A C T I O N R E P O R T E R Friday, October 26, 2018, Vol. 20, No. 215 Headlines 3M CO: Class Action Seeks Funding for PFAS Studies 4218 REST GROUP: Rios Seeks to Recover Unpaid OT Wages Under FLSA ALLEN HOTEL: Nixon Files ADA Suit in New York ALLIANCE HEALTHCARE: Elwert TCPA Suit Deal Has Final Approval ALLTRAN FINANCIAL: Alderman Sues Over Collection Calls ALLTRAN FINANCIAL: Violates FDCPA, Teplitskaya Suit Says APARTMENT MANAGEMENT: Accused by Readus Suit of Violating RLTO APPLE INC: Customers File Class Action Over TV Bundles APPLIED OPTOELECTRONICS: Pomerantz Files Securities Fraud Suit BALTIMORE, MD: Police Chief Seeks Dismissal of Class Action BANK OF AMERICA: Court Denies Bid to Amend Jackson Suit BASIN ELECTRIC: Fails to Pay Minimum, Overtime Wages, Noggle Says BEIT ALMAQDIS: Violates FLSA, Sanchez Suit Says BODUM USA: Crosson Files ADA Class Action BOSTON EXECUTIVE: Rizzo Seeks Overtime Compensation BP: Asks Oregon Supreme Court to Review Suit Over Gas Charges BRADLEY PARK: Sierra Files ADA Suit in Florida BROOKLYN HOP: Faces Williamson Suit Over "No-Hire" Agreements BROOKS BROTHERS: 9th Circuit Appeal Filed in Ables Class Suit BURGER KING: Kessler Topaz Files Consumer Class Action CAPE FEAR: Faces Class Action Over System Development Charges CARLYLE LLC: Breeze Suit Asserts Civil Rights Breach CARNEGIE HOTEL: Faces Civil Rights Class Suit in New York CINEFLIX MEDIA: Workers File Class Action Over ESA Violations CLEAN & GREEN: Nixon Suit Asserts ADA Violation COAST PROFESSIONAL: Petrou Seeks Unpaid Wages under FLSA COMMONWEALTH BANK: Superannuation Savers File $100MM Class Action DAKOTA ACCESS: 8th Cir. Hears Oral Arguments in Pipeline Case DELAMOUNT INC: Sean Williams Seeks Unpaid Wages DENVER, CO: Judge Sets Parameters for Homeless Case Sweep Trial DR. SMOOD: Fischler Suit Asserts ADA Breach DUN & BRADSTREET: Faruqi & Faruqi Files Securities Class Action DUNKIN' BRANDS: Proskauer Rose Attorney Discuss Suit Dismissal EASTON DIAMOND: Must Face Bat Labeling Class Action EQUILON ENTERPRISES: $7.75MM Deal in Berlanga Has Prelim Approval ESA MANAGEMENT: Court Issues Show Cause Order in Arizmendi Suit FACEBOOK INC: 9th Cir. Has Yet to Rule on Patient Spying Case FAITH AND FREEDOM: Faces TCPA Class Action in Florida FIRST NATIONAL: Gutierrez Suit Remanded to Md. State Court FORD MOTOR: Settles Defective Airbag Class Action FORSTER & GARBUS: Faces Sykes' FDCPA Suit in New York FOSTER DAIRY: Fails to Pay Proper Wages, Willie Lee Dampier Claims GENERAL MOTORS: Faces Class Action Over Defective Brakes GENUINE PARTS: Fails to Pay Proper Wages, Hill Suit Alleges GOOGLE INC: Consumer Activist to Appeal Safari Class Suit Ruling GROUNDHOG ENTERPRISES: Summary Judgment Bid in Liberty Suit Denied GUEST SERVICES: West Files Suit Asserting ADA Violation HUNTINGTON MEMORIAL: 2 Law Firms File Sexual Assault Case INDUSTRIAL COMMERCIAL: Caro Sues Over Unpaid Minimum and OT Wages JACK RESNICK: Violates Disabilities Act, Fischler Says JERICHO RESTAURANT: Pollier Files FLSA Suit in E.D. New York JUST BORN: Dentons Attorneys Discuss Slack Fill Suit Ruling KANYE WEST: Challenges Class Action Over Life of Pablo Album KISS MY FACE: Court Narrows Claims in Gasser TAC Suit LEAF COMMERCIAL: Alves Sues Over Illegal Telemarketing Calls LOGITECH INC: Appeals Dist. Ct. Order in Porath Suit to 9th Cir. MARK HOTEL: Breeze Files Civil Rights Suit in New York Ct. MASTEC INC: Sued for Allegedly Docking Employee Wages MICHIGAN: State Supreme Court Hears UIA Fraud Class Action MILBERG LLP: Supreme Court Refuses to Review Class Action MORTON COUNTY, ND: Thunderhawk Files Civil Rights Class Action MPM ENTERPRISES: Violates ADA, Nixon Suit Claims NATIONAL FOOTBALL: Treviso Appeals Order in Herrick to 6th Cir. NISSAN NORTH: Court Extends Lohr Class Certification Deadlines NUDGE LLC: Class Certification Bid Filing Due Gets 90-Day Extension OFF LEASE: Florida Judge Closes TCPA Class Action OPKO HEALTH: Robins Geller Files Securities Class Action PCL CONSTRUCTION: $3.4MM Attys' Fees Awarded in Power Outage Suit PHILLIPS 66 COMPANY: Underpays Production Employees, Green Says PORTFOLIO RECOVERY: OBrien Files FDCPA Suit in New York POSTMATES INC: Court Grants Bid to Compel Arbitration in Lee PRIDESTAR STUDENT: Fails to Properly Pay for Overtime, Rosanos Say REVERSE MORTGAGE: Seeks 4th Cir. Review of Ruling in Lavis Suit SAMSUNG ELECTRONICS: Covington Atty Discusses Smart TV Suit Ruling SCG AMERICA: Fischler Files Suit Over ADA Breach SIMON BARON: Fischler Files Suit in New York for ADA Breach SIRTEX: Ordered to Notify Class Action Lawyers on Asset Move SOUTH CAROLINA: Stoudemire Files Prisoner Civil Rights Suit STRATEGIES TO EMPOWER: Blumenthal Nordrehaug Files Class Action SUNRUN INC: Dec. 14 Settlement Fairness Hearing Set SYMANTEC CORP: Claims in Defective Antivirus Suit Narrowed TEK-COLLECT INC: Ross Files FDCPA Class Action TELENAV INC: Womble Bond Atty Discuss Approval of $3.5MM Settlement TEMSA: Navaho Tour Brings Class Suit in California TG THERAPEUTICS: Robbins Arroyo Files Securities Fraud Suit TOOTSIE ROLL: 9th Circuit Appeal Filed in Gordon Class Suit TRANS UNION LLC: Faces Heath FCRA Suit in Virginia UBER TECH: Blank Rome Attorneys Discuss 9th Cir. Ruling UNITED SERVICES: Did Not Pay Proper Insurance Claims, Spears Says UNITED STATES: Asylum Interviews Ordered for Separated Families VAILS GATE CLEANERS: Aguilo Suit to Recover Unpaid Wages VILLA ITALIA: Honeywell Files ADA Suit in Florida WARNER CHILCOTT: 1st Cir. Flips Class Cert in Asacol Antitrust Suit WARNER MUSIC: Leonard Williams Files Royalties Class Action WEBASTO: Settles Class Action Over Parking Heaters for $15MM WESTSIDE SUPERMARKET: Nixon Suit Asserts ADA Violation WPX ENERGY: Appeal in Anderson Class Certification Denial Nixed XOOM ENERGY: Court Grants Bid to Dismiss Mirkin Suit YELLOWSTONE CLUB: H-2B Jamaican Workers File Class Action YOSSI'S FISH: Faces Milian Suit in Eastern District of New York Asbestos Litigation ASBESTOS UPDATE: $43.1MM Asbestos Death Verdict ASBESTOS UPDATE: $850K Deal From G-I Holdings Meets Resistance ASBESTOS UPDATE: Asbestos Case Remanded to District Court ASBESTOS UPDATE: Asbestos Report Not Covered by Legal Privilege ASBESTOS UPDATE: Asbestos Settlement Money Plan Pushed Back ASBESTOS UPDATE: Asbestos Trust Representative Beats Objection ASBESTOS UPDATE: Businessman Prosecuted for Asbestos in Building ASBESTOS UPDATE: Cleaver-Brooks Appeal of All NYCAL Cases Dismissed ASBESTOS UPDATE: Dismissal of O'Brien Claims vs. County Affirmed ASBESTOS UPDATE: Employer Had Duty to Protect Workers' Family ASBESTOS UPDATE: H.B. Fuller Settles 7 Suits, Claims for $334K ASBESTOS UPDATE: Hillshire Brands Appeals $13MM Asbestos Verdict ASBESTOS UPDATE: Hull Trawlerman Dies of Asbestos Cancer ASBESTOS UPDATE: Japan Responsible for Asbestos Health Damage ASBESTOS UPDATE: Livernois Voluntarily Dismissed Claims vs. NASSCO ASBESTOS UPDATE: Production of Dempster Settlement Document Allowed ASBESTOS UPDATE: RJ Reynolds Directed to Pay $3.5MM to Florida Man ASBESTOS UPDATE: Salesman Claims Exposure to Asbestos in Talc ASBESTOS UPDATE: SCOTUS Hears Arguments on Naval Asbestos ASBESTOS UPDATE: SEC Probes Honeywell's Asbestos Accounting ASBESTOS UPDATE: Sponsor to Present Revisions to SB 315 ********* 3M CO: Class Action Seeks Funding for PFAS Studies -------------------------------------------------- 5 EYEWITNESS NEWS reports that a class-action lawsuit filed in Ohio against 3M and other manufacturers of chemicals linked to adverse health conditions seeks to have the companies fund studies on the aforementioned chemicals. The lawsuit was filed on behalf of Ohio firefighter Kevin Hardwick, who came into contact with per- and polyfluoroalkyl substances, or PFAS, via firefighting foams and other equipment which contained the chemicals. The lawsuit alleges 3M and the other companies knowingly exposed people to these chemicals and have refused to fund studies on their effects or publicly acknowledge the adverse effects of PFAS. The companies claim a "lack of definitive evidence" of a link between PFAS and adverse health effects, according to the lawsuit. However, the lawsuit cites the work of a C8 Science Panel, whose research found PFAS found in drinking water had "probable links" with certain cancers and other diseases. The proposed class in the lawsuit is anyone in the United States with a "detectable level" of PFAS materials in their blood. According to the lawsuit, PFAS can be found in the blood of 99 percent of U.S. residents. In lieu of any compensatory damages, the lawsuit asks for the establishment of an independent panel of scientists to study and publish the health effects of PFAS. 3M gave 5 EYEWITNESS NEWS the following statement: "We are aware of the lawsuit, but have not yet had an opportunity to review the allegations. Nevertheless, 3M acted responsibly in connection with its manufacture and sale of PFAS and will vigorously defend its record of environmental stewardship." In February, 3M agreed to pay the state of Minnesota $850 million as part of a settlement agreement in a lawsuit over the company's disposal of perfluorinated chemicals, which include PFAS. [GN] 4218 REST GROUP: Rios Seeks to Recover Unpaid OT Wages Under FLSA ----------------------------------------------------------------- CONSTANTINO RIOS, on behalf of himself, FLSA Collective Plaintiffs and the Class v. 4218 REST GROUP LLC d/b/a SPYCE ASTORIA, SAPITOS RESTAURANT, INC., CAJUN NY, LLC d/b/a SAPITO'S, YAIRTON GARCIA, and VOJISLAVA TATIC, Case No. 1:18-cv-05633 (E.D.N.Y., October 9, 2018), alleges that pursuant to the Fair Labor Standards Act, the Plaintiff and the class are entitled to recover from the Defendants (1) unpaid overtime (2) liquidated damages and (3) attorneys' fees and costs. 4218 Rest Group LLC, doing business as Spyce Astoria, is a domestic limited liability company organized under the laws of the state of New York with a principal place of business in Astoria, New York. Sapito's Restaurant Inc. is a domestic corporation organized under the laws of the state of New York with a principal place of business in Bronx, New York. Cajun NY, LLC, is a domestic limited liability company organized under the laws of the state of New York with a principal place of business in New York City. The Individual Defendants are both principals and owners of each of the Corporate Defendants. The Defendants operate three New York restaurant and bar locations in Astoria, Bronx (closed 2018), and New York City (closed 2018).[BN] The Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. Taimur Alamgir, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, Second Floor New York, NY 10016 Telephone: (212) 465-1188 Facsimile: (212) 465-1181 E-mail: cklee@leelitigation.com anne@leelitigation.com taimur@leelitigation.com ALLEN HOTEL: Nixon Files ADA Suit in New York --------------------------------------------- The Allen Hotel, Inc. is facing a class action lawsuit under the Americans with Disabilities Act. The case is styled as Donald Nixon on behalf of himself and all others similarly situated, Plaintiff v. The Allen Hotel, Inc., Defendant, Case No. 1:18-cv-05863 (E.D. N.Y., Oct. 19, 2018). The oriental-inspired Allen Hotel is located in the lower east side of New York.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Phone: (516) 807-1748 Email: jonathan.shalom25@gmail.com ALLIANCE HEALTHCARE: Elwert TCPA Suit Deal Has Final Approval ------------------------------------------------------------- In the case, TODD S. ELWERT, INC., DC, an Ohio corporation, individually and as the representative of a class of similarly-situated persons, Plaintiffs, v. ALLIANCE HEALTHCARE SERVICES, INC., and JOHN DOES 1-10, Defendants. SANDUSKY WELLNESS CENTER, LLC, an Ohio limited liability company, individually and as the representative of a class of similarly-situated persons, Plaintiffs, v. WOODLAND DIAGNOSTIC IMAGINING, LLC; ALLIANCE HEALTHCARE SERIVES, INC.; ALLIANCE HEALTHCARE, INC.; ALLIANCE HEALTHCARE, LLC; AND JOHN DOES 1-10, Defendants, Consolidated Into Case No. 5:15-cv-2223, Case No. 3:15-cv-2673 (N.D. Ohio), Judge Sara Loi of the U.S. District Court for the Northern District of Ohio, Eastern Division, granted the Plaintiffs' unopposed (i) motion for final approval of the class action settlement agreement, and (ii) motion for attorneys' fees. In these consolidated class action cases brought pursuant to Fed. R. Civ. P. 23, the Plaintiffs allege that the Defendants violated the federal Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act, by sending unsolicited advertisement to their fax machines on Sept. 14, 2015, without an opt-out notice required by the Act. The fax advertisement received by the Plaintiffs is attached as Exhibit A to their respective complaints. Elwert's complaint alleges that the Defendants sent the Fax Ad and other unsolicited faxes to more than 40 other persons. Elwert describes the class as all persons who (1) on or after four years prior to the filing of the action (2) were sent material advertising the commercial availability or quality of any property, goods, or services (3) by or on behalf of Alliance HealthCare (4) via facsimile (5) that did not display a proper opt-out notice. Sandusky Wellness' complaint alleges that the Defendants sent the Fax Ad and other unsolicited faxes to more than 25 other persons, and describes the class as all persons who (1) on or after four years prior to the filing of the action, (2) were sent telephone facsimile messages of material advertising the commercial availability or quality of any property, goods, or services by or on behalf of the Defendants, and (3) which the Defendants did not have prior express permission or invitation, or (4) which did not display a proper opt-out notice. The parties notified the Court that they had reach a settlement agreement on Feb. 26, 2018. Thereafter, the Plaintiffs filed a motion for certification of the class and motion for preliminary approval of the class settlement agreement. The Court granted the certification of the class and preliminary approval of the class settlement agreement, subject to the fairness hearing. The Plaintiffs filed their motion for final approval of the class settlement agreement and motion for attorneys' fees. The fairness hearing was held on Aug. 30, 2018, and the class counsel submitted unreacted billing records. The Defendants filed a statement of non-objection to the class counsel's submitted attorneys' fees bills. Under the class settlement agreement, each class member who submitted a valid claim form will receive $500, for a total of $237,500 from the settlement fund. The class counsel has requested an attorneys' fee award of $288,833.33, which is equal to one-third of the settlement fund. Additionally, the class counsel requests $6,590.72 for reimbursement of expenses incurred in the pursuit of the action. Dahl Administration will receive $24,000 under the settlement agreement. Each of the named Plaintiffs will receive an "Incentive Award" of $8,250 from the settlement fund. The remaining amount in the settlement fund ($292,715.95) will be returned to Alliance Healthcare. Judge Loi granted the Plaintiffs' motion for final approval of the class settlement agreement and their motion for attorneys' fees. She approved settlement agreement in as much as it is a fair, reasonable, and adequate resolution of the litigation. All terms of the proposed settlement are approved. The Judge dismissed the case with prejudice. The Clerk is directed to close the file. A full-text copy of the Court's Sept. 21, 2018 Memorandum Opinion is available at https://is.gd/C3ugkW from Leagle.com. Todd S. Elwert, DC, Inc., individually and as the representative of a class of similarly-situated persons, Plaintiff, represented by George D. Jonson -- GJonson@mrjlaw.com -- Montgomery, Rennie & Jonson & Matthew Elton Stubbs -- MStubbs@mrjlaw.com -- Montgomery, Rennie & Jonson. Sandusky Wellness Center, LLC, Plaintiff, represented by Brian J. Wanca -- bwanca@andersonwanca.com -- Anderson & Wanca, Matthew Elton Stubbs , Montgomery, Rennie & Jonson, Ross M. Good -- rgood@andersonwanca.com -- Anderson & Wanca & Ryan M. Kelly -- rkelly@andersonwanca.com -- Anderson & Wanca. Alliance Healthcare Services, Inc. & Woodland Diangostic Imaging, LLC, Defendants, represented by Eileen R. Ridley -- eridley@foley.com -- Foley & Lardner. ALLTRAN FINANCIAL: Alderman Sues Over Collection Calls ------------------------------------------------------ James Alderman, individually and on behalf of all others similarly situated, Plaintiff, v. Alltran Financial Limited Partnership, Defendant, Case No. 18-cv-14396 (S.D. Fla., September 27, 2018), seeks damages and declaratory and injunctive relief pursuant to the Fair Debt Collections Practices Act. Alltran Financial, LP is a debt collection company. It violated provisions of the Fair Debt Collection Practices Act when it failed to provide meaningful disclosure of the debt collector's identity when it left a voice message on Alderman's phone, notes the complaint. [BN] Plaintiff is represented by: Leo W. Desmond, Esq. Sovathary K. Jacobson, Esq. DESMOND LAW FIRM, P.C. 5070 Highway A1A, Suite D Vero Beach, FL 32963 Telephone: (772) 231-9600 Facsimile: (772) 231-0300 Email: jacobson@desmondlawfirm.com lwd@desmondlawfirm.com ALLTRAN FINANCIAL: Violates FDCPA, Teplitskaya Suit Says -------------------------------------------------------- A class action lawsuit has been filed against Alltran Financial, LP. The case is styled as Natalya Teplitskaya on behalf of herself and all others similarly situated, Plaintiff v. Alltran Financial, LP, Defendant, Case No. 1:18-cv-05904 (E.D. N.Y., Oct. 22, 2018). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Alltran Financial, LP specializes in revenue cycle, accounts receivable, and contact center solutions within healthcare, financial services, higher education, and government industries in the Unites States.[BN] The Plaintiff appears pro se. APARTMENT MANAGEMENT: Accused by Readus Suit of Violating RLTO -------------------------------------------------------------- WAYNE READUS, Individually and on behalf all others similarly situated v. APARTMENT MANAGEMENT CONSULTANTS, LLC and 6807 N SHERIDAN PROPERTY OWNER, LLC, Case No. 2018CH12626 (Ill. Cir., Cook Cty., October 9, 2018), accuses the Defendants of violating the City of Chicago Residential Landlord and Tenant Ordinance, Municipal Code. According to the complaint, the Defendants failed to attach to the Plaintiff's and the class members' written rental agreements a copy of the then current RLTO summaries, including the version of the RLTO summary that was updated on March 17, 2016, and the then current separate summary describing the respective rights, obligations, and remedies of landlords and tenants with respect to security deposits required by the RLTO and made available by the City of Chicago for public inspection and copying (the "RLTO Summaries"). AMC is a Utah corporation registered with the Illinois Secretary of State to conduct business in Illinois. The apartment building of the tenants at issue in this lawsuit, Vivian (formerly, Sheridan Court), located at 6807 N. Sheridan Road, in Chicago, Illinois, is listed on AMC's Web site as one of the buildings for which it is the property manager. Property Owner is a Delaware corporation registered with the Illinois Secretary of State to conduct business in Illinois. Property Owner is listed as the "Landlord or Authorized Management Agent" on the Plaintiff's lease for Unit #518 at Vivian.[BN] The Plaintiff is represented by: Jeffrey Sobek, Esq. JS LAW 29 E. Madison Street, Suite 1000 Chicago, IL 60602 Telephone: (312) 756-1330 E-mail: jeffs@jsslawoffices.com APPLE INC: Customers File Class Action Over TV Bundles ------------------------------------------------------ Patently Apple reports that Joseph Coyle of New York and Gabriela Zaragoza of California have filed a new Class Action against Apple for tricking them and customers in general into buying season bundles of TV shows only to find out that Apple is making them pay for some promotional clips considered as TV episodes. Nature of the Action The following is directly from the class action lawsuit under the "Nature of the Action": "Plaintiffs bring this consumer protection and false advertising class action lawsuit against Apple, based on its false and misleading business practices with respect to the marketing and sale of television show ("TV show(s)") season bundles offered on Apple's iTunes store on the Apple TV 4 and 4k devices ("Apple TVs"). Through Apple's iTunes store, consumers can browse a variety of TV shows on their Apple TVs. Each TV show offered on Apple's iTunes store has its own home page, providing consumers with general information regarding their selected TV show. On the home page for each TV show on iTunes, Apple offers consumers three purchasing options at set prices. First, consumers may purchase episodes individually. Second, consumers can purchase completed seasons ("Buy Season"). Third, if the TV show's season has remaining episodes, a season pass can be purchased, offering all current and future episodes for the season ("Season Pass") (collectively, with "Buy Season", the "Season Features"). On each home page, Apple conspicuously represents the number of episodes available in the season. However, unbeknownst to consumers, many of the "episodes" offered by Apple are not standard, plot-based episodes of the TV show, but promotional clips. Consumers purchase the Season Features, reasonably believing that each episode is a standard, plot-based episode and that, by purchasing the Season Features, they are receiving a significant discount over purchasing each episode individually. However, because many of the episodes in the Season Features are promotional clips, consumers are not receiving the number of episodes and the discount they expected. Had Plaintiffs and other consumers known that the Season Features provided fewer standard, plot-based episodes than Apple represented, they would not have purchased the Season Features or would have paid significantly less for them. Therefore, Plaintiffs and consumers have suffered injury in fact as a result of Apple's deceptive practices. Plaintiffs bring this class action lawsuit on behalf of themselves and all others similarly situated. Plaintiffs seek to represent a California Subclass, a California Consumer Subclass, a New York Subclass, and a Nationwide Class (defined infra in paragraphs 44-48) (collectively referred to as "Classes"). Plaintiffs, on behalf of themselves and other consumers, are seeking damages, restitution, declaratory and injunctive relief, and all other remedies the court deems appropriate." Causes for Action Count 1: Violation of California Civil Code Count 2: Violation of California Business and Professions Code Sec. 17200 Count 3: Violation of California Business and Professions Code Sec. 17500 Count 4: Breach of Express Warranty Count 5: Breach of Implied Warranty Count 6: Common Law Fraud Count 7: Quasi-Contract/Restitution Count 8: Violation of New York General Business Law Sec. 349 Count 9: Violation of New York General Business Law Sec. 350 [GN] APPLIED OPTOELECTRONICS: Pomerantz Files Securities Fraud Suit -------------------------------------------------------------- Pomerantz LLP on Oct. 10 disclosed that a class action lawsuit has been filed against Applied Optoelectronics, Inc. ("Optoelectronics" or the "Company") (NASDAQ: AAOI) and certain of its officers. The class action, filed in United States District Court, Southern District of Texas, and index under 18-cv-03722, is on behalf of a class consisting of all persons and entities, other than Defendants and their affiliates, who purchased or otherwise acquired Optoelectronics securities between August 7, 2018 and September 27, 2018, both dates inclusive (the "Class Period"), seeking to recover damages caused by defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder, against the Company and certain of its top officials. If you are a shareholder who purchased Optoelectronics securities between August 7, 2018, and September 27, 2018, both dates inclusive, you have until November 30, 2018, to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 9980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and the number of shares purchased. Applied Optoelectronics, Inc. develops and manufactures advanced optical products which are the building blocks for broadband and fiber access networks primarily for Internet data center, cable television (CATV), and fiber-to-the-home (FTTH) networking end-market. Throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) certain of the Company's lasers were susceptible to fail prematurely; (ii) certain of the Company's transceivers utilizing these lasers would be materially affected; and (iii) as a result of the foregoing, Optoelectronics' public statements were materially false and misleading at all relevant times. On September 27, 2018, an analyst with Loop Capital Markets downgraded the Company's stock, reporting that the Company was experiencing product quality issues with certain transceivers in which its lasers fail after thousands of hours of operation. The analyst also lowered gross margin and revenue expectations because the product quality issues suggested that the Company would start procuring lasers externally through 2019. On this news, the Company's stock price fell $2.98 per share, or more than 9%, to close at $28.36 per share on September 27, 2018, on unusually heavy trading volume. With offices in New York, Chicago, Los Angeles, and Paris, The Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its practice in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 80 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. [GN] BALTIMORE, MD: Police Chief Seeks Dismissal of Class Action ----------------------------------------------------------- Catherine Rentz, writing for The Baltimore Sun, reports that the police chief at the University of Maryland, Baltimore County, is seeking dismissal of a claim against him in a class-action lawsuit that alleges Baltimore County law enforcement and prosecutors fostered a culture to dismiss and cover up complaints of sexual assault. According to the civil lawsuit, two women say they were sexually assaulted by UMBC students in separate incidents. The case alleges that authorities then humiliated, intimidated and deceived them as part of an intentional effort to "cover up justifiable complaints of sexual assault." The lawsuit alleges that Paul Dillon, then deputy chief of police at UMBC, "improperly persuaded" a UMBC student to not report her alleged assault to police. It also contends that UMBC failed to record the assault in federal reporting statistics or forward the assault to the Baltimore County Police Department, as required in a memorandum of understanding between the two institutions. In a memorandum in support of Mr. Dillon's motion to dismiss, Maryland Attorney General Brian Frosh stated that Mr. Dillon never tried to dissuade the plaintiff from reporting to police, and included an affidavit from a UMBC employee who was in a meeting between Dillon and the student. "At no time did Deputy Chief Dillon attempt to influence [the student] in her choice as to whether to file University Title IX charges, criminal charges or both," wrote Rina Rhyne, who was then the program coordinator for Voices Against Violence and whose job it was to provide support to sexual assault victims. In his own affidavit, Mr. Dillon stated that he explained the differences between filing a criminal complaint with the police and one under Title IX with UMBC. The criminal process involves a higher legal standard -- that a prosecutor must show the alleged perpetrator is guilty "beyond a reasonable doubt." UMBC's Title IX process, Mr. Dillon stated, has a lesser standard, whereby the complainant would need to prove that the alleged perpetrator violated UMBC's sexual misconduct policy by a "preponderance of the evidence." The memorandum in support of Mr. Dillon's motion to dismiss also includes an email from Mr. Dillon to a Michael Peterson, who was then a Baltimore County police lieutenant in charge of the sex crimes division, informing him of the report of alleged sexual assault, but leaving out the student's name as she had not yet decided to come forward. Defendants in the lawsuit also include Baltimore County State's Attorney Scott Shellenberger, the Baltimore County Police Department, UMBC and the Board of Regents for the University System of Maryland, among others. According to a 2015 Clery crime report included in the filing, the UMBC student's case was one of 10 cases of alleged forcible rape at the university. The Clery Act is a federal law requiring disclosure of crimes on or near campus. According to the court documents, two of the 10 were reported to Baltimore County police and both were classified as "unfounded." In response to the filing, the plaintiffs' lawyer Rignal W. Baldwin V said, "I'm reviewing the motion and look forward to responding." [GN] BANK OF AMERICA: Court Denies Bid to Amend Jackson Suit ------------------------------------------------------- In the case, BOBBI JACKSON and MATTHEW JACKSON, Plaintiffs, v. BANK OF AMERICA, N.A., Defendant, Case No. 16-CV-787-FPG-HBS (W.D. N.Y.), Judge Frank P. Geraci, Jr. of the U.S. District Court for the Westedn District of New York denied the Plaintiffs' Motion to Amend the Complaint to add Illinois residents McKinley and Angel Moses as Plaintiffs to the case. Plaintiffs Jacksons filed a putative class action complaint on Sept. 30, 2016 against the Defendant under the Real Estate Settlement Procedures Act, its implementing regulations, and Section 349 of New York's General Business Law. On Dec. 6, 2016, the Defendant moved to dismiss the Complaint. On Nov. 21, 2017, the Court granted in part and denied in part the Defendant's Motion to Dismiss and referred the case to Magistrate Judge Hugh B. Scott. On Feb. 28, 2018, the Plaintiffs moved for leave to amend the Complaint to add Illinois residents McKinley and Angel Moses as Plaintiffs to the case. The Defendant opposed the Motion to Amend chiefly on jurisdictional grounds. The parties conducted oral argument on the Motion to Amend before Magistrate Judge Scott on May 3, 2018. On May 25, 2018, Magistrate Judge Scott denied the Plaintiff's Motion to Amend, finding that the Court lacked personal jurisdiction over Bank of America with respect to the Moseses. On June 22, 2018, Plaintiffs filed objections to Magistrate Judge Scott's decision, arguing that he failed to correctly interpret U.S. Supreme Court precedent. The Defendant filed a memorandum in opposition to the Plaintiffs' objections on July 13, 2018.57. After reviewing Magistrate Judge Scott's order and the parties' positions, Judge Geraci upholds the order under the clearly erroneous standard. As Magistrate Judge Scott noted in his decision, amendment would be futile because the Court lacks both specific and general personal jurisdiction over the Moseses' proposed claims. The U.S. Supreme Court's decision in Daimler AG v. Bauman firmly supports Magistrate Judge Scott's decision regarding general jurisdiction, and his analysis of specific jurisdiction is also unassailably supported by law. Additionally, the Judge will not allow the Plaintiffs to conduct jurisdictional discovery because they have not made a sufficient start towards establishing personal jurisdiction. A full-text copy of the Court's Sept. 25, 2018 Decision and Order is available at https://is.gd/Ot3cvG from Leagle.com. Bobbi Jackson & Matthew Jackson, Plaintiffs, represented by Catherine Creighton -- ccreighton@cpjglaborlaw.com -- Creighton Johnsen & Giroux, Ian H. Hayes -- ihayes@cpjglaborlaw.com -- Creighton Johnsen & Giroux, Katherine Aizpuru -- kaizpuru@tzlegal.com -- Tycko & Zavareei LLP, pro hac vice, Annick Persinger -- apersinger@tzlegal.com -- Tycko & Zavareei LLP, pro hac vice, Geoffrey G. Bestor -- gbesq@bestorlaw.com -- The Bestor Law Firm & Jonathan K. Tycko -- jtycko@tzlegal.com -- Tycko & Zavareei LLP. Bank of America, N.A., Defendant, represented by Keith E. Levenberg -- klevenberg@goodwinlaw.com -- Goodwin Procter LLP, Courtney L. Hayden -- chayden@goodwinlaw.com -- Goodwin Procter LLP & James W. McGarry -- jmcgarry@goodwinlaw.com -- Goodwin Procter LLP. BASIN ELECTRIC: Fails to Pay Minimum, Overtime Wages, Noggle Says ----------------------------------------------------------------- GORDON NOGGLE, ANTHONY CURTIS MONTOYA, JOHN SHIELDS, and TIM L. WALKER on their own behalf and on behalf of all others similarly situated v. BASIN ELECTRIC POWER COOPERATIVE, Case No. 2:18-cv-00169-ABJ (D. Wyo., October 9, 2018), alleges that the Defendant failed to pay their operations personnel, including the Plaintiffs, required minimum and overtime wages for all hours worked, in violation of the Fair Labor Standards Act. Basin Electric Power Cooperative is a non-profit corporation organized under the laws of North Dakota, with a principal business address in Bismark, North Dakota. The Defendant operated at least nine power plants located in Wyoming, North Dakota, South Dakota, Montana and Iowa The Defendant generated and transmitted wholesale bulk electric power to customers located in at least nine states, including Colorado, Iowa, Minnesota, Montana, Nebraska, New Mexico, North Dakota, South Dakota and Wyoming.[BN] The Plaintiffs are represented by: Thomas B. Jubin, Esq. JUBIN & ZERGA, LLC 2614 Pioneer Ave. Cheyenne, WY 82001 Telephone: (307) 637-4965 Facsimile: (307) 637-4788 tom@jubinzerga.com - and - Andrew H. Turner, Esq. THE KELMAN BUESCHER FIRM 600 Grant Street - Suite 825 Denver, CO 80203 Telephone: (303) 333-7751 Facsimile: (303) 333-7758 E-mail: aturner@laborlawdenver.com BEIT ALMAQDIS: Violates FLSA, Sanchez Suit Says ----------------------------------------------- A class action lawsuit has been filed against Beit Almaqdis Live Poultry Mkt Inc. The case is styled as Daniel Salas Sanchez individually and on behalf of others similarly situated, Plaintiff v. Beit Almaqdis Live Poultry Mkt Inc. doing business as: Bay Ridge Live Poultry, Abdulsalam Mused Mohamed, Jeayb Muthana, Ahmed Muthana, Defendants, Case No. 1:18-cv-05857 (E.D. N.Y., Oct. 19, 2018). The Plaintiff filed the case under the Fair Labor Standards Act. Bay Ridge offers live poultry and meat, including chicken, duck, rabbit, fowl, turkey, beef, veal, lamb, and goat.[BN] The Plaintiff appears pro se. BODUM USA: Crosson Files ADA Class Action ----------------------------------------- A class action lawsuit has been filed against Bodum USA, Inc. The case is styled as Aretha Crosson individually and as the representative of a class of similarly situated persons, Plaintiff v. Bodum USA, Inc., Defendant, Case No. 1:18-cv-05891-ENV-ST (E.D. N.Y., Oct. 22, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Bodum, Inc. is engaged in the online retail of coffee and tea making, tabletop, kitchen, storage, textile, and home and office products worldwide. It offers coffee and tea brewers, travel presses and tumblers, espresso machines, milk frothers, mugs and cups, thermo jugs and carafes, accessories, storage jars, coffee beans and tea, and spare parts; and kettles, grinders, mixers and blenders, juicers, toasters, and electric grill products.[BN] The Plaintiff is represented by: Dan Shaked, Esq. Shaked Law Group, P.C. 44 Court Street, Suite 1217 Brooklyn, NY 11217 Phone: (917) 373-9128 Fax: (718) 504-7555 Email: shakedlawgroup@gmail.com BOSTON EXECUTIVE: Rizzo Seeks Overtime Compensation --------------------------------------------------- Roberto Rizzo, individually and on behalf of all others similarly situated, the Plaintiff, vs. Boston Executive Limousine Service, Inc. & Nuriya G. Eroshkina, the Defendants, Case No. 182838 (Mass.Super. Ct., Oct. 3, 2018), seeks to recover damages arising from Defendants' failure to pay overtime compensation for hours worked over 40 in a workweek, failure to pay all gratuities and service charges, and failure to pay all wages earned in a timely manner in violation of M.G.L. According to the complaint, all individuals who have worked as a driver for the Defendants within the three years preceding the filing of the complaint in this matter have been paid a set hourly rate for each hour they work. The Defendants never paid Rizzo or any individuals who have worked as a driver within the three years preceding the filing of the complaint in this matter, time and one half their hourly rate for hours worked over forty in a workweek, the lawsuit says. Boston Executive provides Boston Logan airport limo services.[BN] Adam J. Shiflan, Esq. Nicholas J. Schneider, Esq. RUDOLPH FRIEDMANN LLP 92 State Street Boston, MA 02109 Telephone: (617) 723-7700 Facsimile: (617) 227-0313 E-mail: ashafran@rflawyers.com nschneidercurflawvers.com BP: Asks Oregon Supreme Court to Review Suit Over Gas Charges ------------------------------------------------------------- Trish Glose, writing for News10, reports that a class action lawsuit involving Oregon gas stations heads to the state's highest court. The lead counsel in the case says consumers were illegally charged at the pump. The case started after a man noticed he was overcharged at an Arco gas station in southwest Portland. David Sugarman is the lead attorney on the case. He says it happened to two million customers who used a debit card at Arco stations in Oregon from 2011 to 2013. He says customers weren't made aware of the $0.35 surcharge from British Petroleum or BP. Mr. Sugarman says when the case went to trial, BP continued to illegally overcharge consumers, about 13,000 times a day. He says that went on until the trial ended in January of 2014. The jury decided under the Oregon Unlawful Trade Practices Act, that the customer was right in this case. BP was ordered to pay $400,000,000 to those customers, which comes out to $200 per person. "Once that was done and a judgement was entered, BP appealed to the Oregon Court of Appeals. And the Oregon Court of Appeals in May of this year fully confirmed that the trial and the result were correct under Oregon law," Mr. Sugarman says. "They confirmed the judgement is the legal language, but it basically just says, yeah, you followed all the rules, you did this right, the jury properly considered all the evidence and we give a lot of weight to their verdict." BP has now asked the Oregon Supreme Court to review the case. It's completely up to the state court whether it will even review it and there's no timeline or deadline on that decision. If the supreme court decides not to review it, the case could be closed at that point. Mr. Sugarman says BP could ask the U.S. Supreme Court to review the case. He says the odd thing about drawing out this case, however, is that judgments earn interest. Under Oregon state law, it's 9% a year. "This judgement is really, really big, right. $400 million is a lot of money. So if you do the math and you figure it out, it's actually costing $100,000 a day in interest. So if BP wins, of course, they don't pay anything and they don't pay the interest and so on. But, if they lose, the judgement has gotten a lot bigger over the time they've delayed," Mr. Sugarman says. Mr. Sugarman has been a consumer protection lawyer in Oregon for years and says it's hard to know BP's angle in this case. He says for now, they'll just keep fighting and moving forward. In the meantime, he's providing updates to the case via his Facebook page for those who are looking for more information. [GN] BRADLEY PARK: Sierra Files ADA Suit in Florida ---------------------------------------------- A class action lawsuit has been filed against Bradley Park Owner, LLC. The case is styled as Luis Sierra individually and on behalf of all others similarly situated, Plaintiff v. Bradley Park Owner, LLC, a Delaware limited liability company, Defendant, Case No. 0:18-cv-62528-BB (S.D. Fla., Oct. 22, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Bradley Park Owner, LLC offers premier commercial real estate services to clients.[BN] The Plaintiff is represented by: Jessica Lynn Kerr, Esq. Jessica L.Kerr, P.A. dba The Advocacy Group 200 S.E. 6th Street, Suite 504 Fort Lauderdale, FL 33301 Phone: (954) 282-1858 Fax: (844) 786-3694 Email: service@advocacypa.com BROOKLYN HOP: Faces Williamson Suit Over "No-Hire" Agreements ------------------------------------------------------------- CRYSTAL WILLIAMSON, individually and on behalf of all others similarly situated v. BROOKLYN HOP 2 LLC, DINEEQUITY, INC., INTERNATIONAL HOUSE OF PANCAKES, LLC, IHOP FRANCHISOR LLC, IHOP RESTAURANTS LLC, and DOES 1-10, inclusive, Case No. 1:18-cv-05615-AMD-SMG (E.D.N.Y., October 9, 2018), alleges that the Defendants engaged in per se violations of New York Antitrust laws and the Sherman Antitrust Act by entering into no-hire and non-solicitation agreements, for the express purpose of depressing and/or reducing market-based wages and benefit increases for class members that are typically associated with the active recruitment of employees and workers in a competitive industry. While protecting and enhancing their profits, the Defendants -- through their no-hire and non-solicitation agreements -- robbed the Class Members millions of dollars-worth of wages for which the Plaintiff and the Class now seek relief, according to the complaint. Brooklyn Hop 2 LLC is a New York limited liability company. Brooklyn Hop 2 does business in New York as IHOP, with its principal place of business located at 276 Livingston Street, in Brooklyn, New York. Brooklyn HOP 2 operates approximately three stores in New York doing business as IHOP. DineEquity, Inc., is a Delaware corporation in California with its principal place of business located at 450 North Brand Boulevard, in Glendale, California. DineEquity is the parent company of International House of Pancakes, LLC, IHOP Franchisor LLC, and IHOP Restaurants LLC. International House of Pancakes, LLC, is a Delaware corporation with its principal place of business located in Glendale. International House of Pancakes franchises and operates IHOP restaurants. IHOP Franchisor LLC is a Delaware corporation with its principal place of business located in Glendale. IHOP Franchisor franchises and operates IHOP restaurants. IHOP Restaurants LLC is a Delaware corporation with its principal place of business located in Glendale. IHOP Restaurants franchises and operates IHOP restaurants. The true names and capacities of the Doe Defendants are currently unknown to the Plaintiff. The Defendants are in the business of franchising or operating IHOP restaurants.[BN] The Plaintiff is represented by: Avi Mermelstein, Esq. MERMELSTEIN LAW 3625 Johnson Avenue, Suite 202 Bronx, NY 10463 Telephone: (646) 470-2105 E-mail: avi@mermelaw.com - and - Craig J. Ackermann, Esq. ACKERMANN & TILAJEF, P.C. 1180 S. Beverly Drive, Suite 610 Los Angeles, CA 90035 Telephone: (310) 277-0614 Facsimile: (310) 277-0635 E-mail: cja@ackermanntilajef.com BROOKS BROTHERS: 9th Circuit Appeal Filed in Ables Class Suit ------------------------------------------------------------- Plaintiffs Scott Ables, Steven J. Brett and America Munson filed an appeal from a court ruling in their lawsuit titled Steven Brett, et al. v. Brooks Brothers Group, Inc., Case No. 2:17-cv-04309-DMG-E, in the U.S. District Court for the Central District of California, Los Angeles. As previously reported in the Class Action Reporter, the lawsuit seeks damages, injunctive relief, attorneys' fees and any other available legal or equitable remedies resulting from alleged breach of implied contract, negligence and violation of California's Unfair Competition Law, California Business and Professions Code and constitutional invasion of privacy. Brooks Brothers sells high-end suits through 223 store locations nationwide. The Company experienced a security breach compromising its store customers' name, credit and debit card account numbers, card expiration dates, card verification codes, which included personal identifying information. The appellate case is captioned as Steven Brett, et al. v. Brooks Brothers Group, Inc., Case No. 18-56316, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appellants Scott Ables, Steven J. Brett and America Munson's opening brief is due on December 7, 2018; -- Appellee Brooks Brothers Group, Inc.'s answering brief is due on January 7, 2019; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellants STEVEN J. BRETT, AMERICA MUNSON and SCOTT ABLES, individually and on behalf of all others similarly situated, are represented by: Thomas Vincent Girardi, Esq. GIRARDI KEESE 1126 Wilshire Boulevard Los Angeles, CA 90017-1904 Telephone: (213) 262-6777 E-mail: tgirardi@girardikeese.com - and - Bobby Saadian, Esq. WILSHIRE LAW FIRM 3055 Wilshire Boulevard, 12th Floor Los Angeles, CA 90010 Telephone: (213) 381-9988 Facsimile: (213) 381-9989 E-mail: bobby@wilshirelawfirm.com Defendant-Appellee BROOKS BROTHERS GROUP, INC., a Delaware corporation, is represented by: Kenneth Chernof, Esq. ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Avenue, NW Washington, DC 20001 Telephone: (202) 942-5940 E-mail: kenneth.chernof@arnoldporter.com BURGER KING: Kessler Topaz Files Consumer Class Action ------------------------------------------------------ The law firm of Kessler Topaz Meltzer & Check, LLP on Oct. 10 disclosed that it has filed a class action lawsuit against Burger King Worldwide, Inc. and Burger King Corporation ("BKC") (together, "Burger King") for violating federal antitrust laws by, among other things, incorporating an employee no-solicitation and no-hiring clause in the standard form franchise agreement all Burger King franchisees are required to sign. The complaint, which was filed in the Southern District of Florida, asserts claims on behalf of the following Class: All persons in the United States who are current or former employees of a Burger King restaurant operated by Burger King or a franchisee from at least 2010 forward (the "Class"). Individuals who were employed at a Burger King restaurant at any time from 2010 through present, and who wish to discuss their legal rights or interests are encouraged to contact Kessler Topaz Meltzer & Check, LLP (James Maro, Esq. or Adrienne Bell, Esq.) at (888) 299-7706 or (610) 667-7706, or via e-mail at info@ktmc.com. For additional information please visit: www.ktmc.com/burger-king-worldwide-inc-burger-king-corporation Burger King is the world's fifth largest fast-food chain, with 7,226 Burger King restaurants within the United States. Pursuant to Burger King's standard franchise agreement, BKC and Burger King franchisees agreed not to solicit, poach, or hire workers employed at Burger King restaurants owned by BKC or other Burger King franchisees during their employment and for six months after the termination of their employment (the "No-Hire Clause). The No-Hire Clause was intended to restrict competition between and among BKC and franchisees and suppress employee wages. The complaint asserts that Burger King violated Section 1 of the Sherman Act, 15 U.S.C. Sec. 1, by entering into and engaging in unlawful contracts, combinations in the form of trust or otherwise, or conspiracies, in restraint of trade or commerce -- in the form of the no-poach agreements, including the No-Hire Clause. The complaint further asserts that Burger King's conduct caused members of the Class to suffer injuries by suppressing their wages below competitive levels, restricting their benefits, and limiting their ability to seek employment at competing Burger King Restaurants. Kessler Topaz Meltzer & Check, LLP -- http://www.ktmc.com-- prosecutes class actions in state and federal courts throughout the country. Kessler Topaz Meltzer & Check, LLP is a driving force behind corporate governance reform, and has recovered billions of dollars on behalf of institutional and individual investors from the United States and around the world. The firm represents investors, consumers and whistleblowers (private citizens who report fraudulent practices against the government and share in the recovery of government dollars). [GN] CAPE FEAR: Faces Class Action Over System Development Charges ------------------------------------------------------------- Benjamin Schachtman, writing for PortCityDaily, reports that a familiar name in the Wilmington development and construction industry is part of a class action lawsuit that alleges the Cape Fear Public Utility Authority has been illegally charging millions of dollars in "arbitrary" and "capricious" fees. The lawsuit was filed in August by Mecklenburg-based J.A.C.K. Development, LLC, and the Wilmington-based Coastal Cypress Building Company, founded by Steve Swain, who formerly worked with his uncle, Wilmington developer David Swain of Swain and Associates. The plaintiffs, who also seek to represent others potentially harmed by CFPUA's actions, seek "collection action to obtain redress arising from the unlawful collection of 'System Development Charges,'" according to the suit, filed by attorney Daniel Bryson -- dan@wbmllp.com -- of Whitfield, Bryson, and Mason, LLP, a Raleigh-based law firm. At the heart of the lawsuit are what CFPUA calls "system development charges," also known as impact fees. These fees aren't related to the direct cost of sewer or water service, nor are they related to the cost of physically connecting new properties to the utility network. Instead, they are charges issued to new customers, often as a prerequisite for a building permit, designed to help pay for future CFPUA projects. Under state law, impact fees must be calculated for specific capital improvement projects and charged proportionately to new customers. Plaintiffs cite state law requirements that impact fees be developed as part of a concrete plan, including a detailed breakdown of what the costs of future development will be. The aspect of the law prevents the fees from being speculative — that is, CFPUA cannot charge customers an arbitrary amount. The suit alleges that CFPUA's impact fees violate state law, specifically House Bill 426, passed last June, and taking effect October 1, 2017. Plaintiffs further allege that CFPUA is using impact fees as "'operating revenue' to pay for 'operating expenses,'" instead of capital projects (i.e. new pipelines, expanded facilities, new filtration plants, etc.). The lawsuit is similar to one filed against the town of Leland, which operates its own utilities, last month. According to CFPUA's Comprehensive Financial Annual Report for fiscal year 2017, the utility collected $6,277,464 in system development charges, income CFPUA listed under "operating revenue," separate from its capital fund. "The principal operating revenues of the Authority are charges to customers including those for water and wastewater service, system development charges, connection fees, penalties, and others," the report states. According to the report, these impact fees were the "most notable" of revenue from new customers, and "outperformed budgeted estimates by $2,677,464." Alleged violations of state law Plaintiff's cite state law requiring utilities like CFPUA to base impact fees on the detail calculation of what it will cost to deliver a specific set of projects and services in the future; they cannot be used as a general fund for day-to-day operations. Plaintiffs allege that CFPUA violated both of these aspects of state law. "CFPUA's action in collecting impact fees from Plaintiffs and Class Members shocks the conscience and/or has no rational relation to a valid state objective as the fees were charged without a pre-existing concrete plan, and/or not used pursuant to a concrete plan as provided by applicable law," the suit argues. Further, because CFPUA requires payment of impact fees before it will authorize a New Hanover County building permit, Plaintiffs claim their rights were violated, calling the move "arbitrary and capricious" and saying it "constitutes an abuse of discretion." State law sets a statute of limitations of three years for claims against public utilities for impact fees. J.A.C.K. Development seeks redress for $10,100 in water and sewer impact fees charged for three properties. Coastal Cyprus seeks $23,760 it paid for six properties. CFPUA Chief Communication Officer Peg Hall Williams issued a statement from the utility. "CFPUA believes the method of calculation of SDC's referenced in the lawsuit is compliant with the law. Since this is in litigation, we cannot further comment," Ms. Hall Williams wrote. [GN] CARLYLE LLC: Breeze Suit Asserts Civil Rights Breach ----------------------------------------------------- A class action lawsuit has been filed against The Carlyle, LLC. The case is styled as Byron Breeze, Jr. on behalf of himself, and all similarly situated individuals, Plaintiff v. The Carlyle, LLC a Delaware limited liability company, Defendant, Case No. 1:18-cv-09635 (S.D. N.Y., Oct. 19, 2018). The nature of suit is stated as Other Civil Rights. The Carlyle, LLC operates as a hotel in the New York. The company provides guest rooms, restaurant, dining and entertainment, gallery, Cafe Carlyle, bar, fitness center, and banquet rooms. It also offers a menu of massage therapy and other spa services; and assortment of treatments, including Swedish, shiatsu, deep-tissue, and stone massages.[BN] The Plaintiff is represented by: Erik Mathew Bashian, Esq. Bashian & Papantoniou, P.C 500 Old Country Road, Suite 302 Garden City, NY 11530 Phone: (516) 279-1555 Fax: (516) 213-0339 Email: eb@bashpaplaw.com CARNEGIE HOTEL: Faces Civil Rights Class Suit in New York --------------------------------------------------------- A class action lawsuit has been filed against Carnegie Hotel LLC. The case is styled as Byron Breeze, Jr., Jesus Gonzalez on behalf of themselves and all others similarly situated, Plaintiffs v. Carnegie Hotel LLC a New York limited liability company, Defendant, Case No. 1:18-cv-09676 (S.D. N.Y., Oct. 22, 2018). The nature of suit is stated as Other Civil Rights. The Carnegie Hotel LLC is a premier new hotel near Central Park. With sleek and modest boutique NYC hotel accommodations towering above 56th Street, the modern exterior of The Carnegie Hotel leads guests into an experience of classic New York hospitality.[BN] The Plaintiffs appear pro se. CINEFLIX MEDIA: Workers File Class Action Over ESA Violations ------------------------------------------------------------- Jordan Pinto, writing for RealScreen, reports that following a groundswell of activism in the factual space regarding worker rights, a $35-million class-action lawsuit has been filed against Montreal-headquartered production company Cineflix Media. The suit has been filed by Toronto law firm Cavalluzzo, and alleges improper hiring and loss of pay for workers on unscripted projects. According to Canadian Media Guild (CMG) and parent union CWA Canada, which released a statement of support, the suit represents "hundreds of factual and reality TV workers." The lawsuit is based on a statement of claim made by story editor Anna Bourque, and was filed with the Ontario Supreme Court on Friday, Oct. 5. It alleges, broadly, that Cineflix violated the rights of workers and the terms of the Ontario Employment Standards Act (ESA) by classifying non-managerial employees as independent contractors. The filing comes in the wake of a five-year campaign by the CMG and CWA Canada to organize workers in the factual and unscripted space in Canada, echoing a similar movement in the U.S. As recently as late last month, documents outlining pay and associated working conditions have been circling around the industry. Cineflix Media is one of the largest companies of its kind in Canada, and produces a slew of factual and unscripted properties, including Property Brothers and Mayday. As with labor disputes impacting the unscripted production industry in the U.S., the key issue is the classification of workers and the characterization of the employment relationship. Arguing that the duties performed by "class members" (which the suit defines as "All non-managerial persons who, since 2000, worked or continue to work for the Cineflix Defendants in Ontario in pre-production, and/or production, and/or post-production job classifications") and the "supervision and control imposed" on them by the production company creates an employment relationship with it, the lawsuit specifically alleges that Cineflix was negligent in classifying class members as independent contractors, and thereby violated the terms of the Ontario Employment Standards Act (ESA), resulting in financial loss for those class members. The lawsuit claims that, among other things, the company failed to: ensure that class members were "properly classified as employees"; advise class members of their entitlement to compensation equal to or above the minimum wage as set out in the ESA of 2000; advise class members of their entitlement to overtime pay if they had worked more than 44 hours in a week; ensure class members' hours of work were monitored or accurately recorded; and advise class members of their entitlement to public holiday pay and premium pay in accordance with the ESA. As a result, reads the claim, Cineflix has been "unjustly enriched" due to "receiving the benefit of the unpaid hours worked by the class members." The allegations have not been proven in court. Hours after news of the filing was made public, Cineflix issued the following statement to realscreen: "Cineflix was formally served with a statement of claim shortly before 2:00 p.m. EST today. Cineflix has demonstrated a solid history of ethical standards and respect for the creative community for over 20 years. Cineflix will be vigorously contesting this claim." Bourque, the claimant on whom the suit is based, worked on Property Brothers season six from September 2017 to February 2018 as a story editor. The claim is based on her work during that time. The lawsuit, however, alleges violations of the ESA date back to 2000. The CMG -- which has for the past five years been running the "Fairness in Factual TV" campaign alongside CWA Canada -- called the lawsuit a "big step forward" for factual and reality TV workers. "Since these workers aren't covered by union contracts, production companies often use them as a way to create less expensive but still lucrative programming," said CMG organizer Denise O'Connell. [GN] CLEAN & GREEN: Nixon Suit Asserts ADA Violation ----------------------------------------------- A class action lawsuit has been filed against Clean & Green Organic Market, Inc. The case is styled as Donald Nixon on behalf of himself and all others similarly situated, Plaintiff v. Clean & Green Organic Market, Inc., Defendant, Case No. 1:18-cv-05860 (E.D. N.Y., Oct. 19, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Clean & Green Organic Market is a Health Food Store founded in 2016 in New York.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Phone: (516) 807-1748 Email: jonathan.shalom25@gmail.com COAST PROFESSIONAL: Petrou Seeks Unpaid Wages under FLSA -------------------------------------------------------- ANDREAS PETROU, on behalf of himself, individually, and on behalf of all others similarly-situated, the Plaintiff, vs. COAST PROFESSIONAL INC., the Defendant, Case No.: 519865/2018 (N.Y. Sup. Ct., Oct. 3, 2018), seeks to recover damages and equitable relief based upon Defendant's violations of the New York Labor Law and the Fair Labor Standards Act. According to the complaint, the Plaintiff worked for Defendant as a debt collector at a call center from on or about April 18, 2016 to on or about December 12, 2016. The Defendant failed to pay Plaintiff the wages lawfully due to him under the NYLL. Specifically, for the entirety of his employment, the Defendant failed to pay Plaintiff for the time it took for him to clock-in, despite being ready, willing, and able to clock-in at an earlier time. Plaintiff and the Class Action Plaintiffs were not paid from anywhere from 2-12 minutes per day due to Defendant's delayed clock-in procedure, the lawsuit says. Coast Professional offers educational receivable collection services. The company provides loan consolidation, default account rehabilitation, contingency collection, borrower tracing, password assistance, and online account management services.[BN] Attorneys for Plaintiffs: J. R. Stevenson, Esq. STEVENSON MARINO LLP 75 Maiden Lane, Suite 402 New York, NY 10038 Telephone: (212) 939 7588 Facsimile: (212) 531 6129 E-mail: jrs@stevensonmarino.com COMMONWEALTH BANK: Superannuation Savers File $100MM Class Action ----------------------------------------------------------------- Stephen Johnson for Daily Mail Australia and Australian Associated Press report that Australia's biggest financial institution Commonwealth Bank is facing a $100million class action bill, with legal proceedings filed against it on behalf of angry superannuation savers. Commonwealth Bank's subsidiary Colonial First State is accused of badly investing the retirement savings of its members in its parent company, CBA, where they received very low returns. Class action law firm Slater and Gordon, which has launched Federal Court proceedings, said its 'Get Your Super Back' campaign could net $100million for hundreds of thousands of superannuation members. "We will allege that by dumping members' super with its parent bank, the CBA, Colonial First State failed to obtain the most competitive interest rate available for its members invested in cash-only investment options and balanced options where there is a cash component," Slater and Gordon head of class actions Ben Hardwick told reporters in Melbourne on Oct. 10. Up to five million Australians have some form of super in cash with retail funds owned by banks, with it being viewed as a safer option -- especially among older Australians. The banking royal commission has galvanised Slater and Gordon, which said Colonial First State members had been paid between 0.5 and one per cent less interest than they would normally receive. Mr Hardwick said Colonial First State investors were receiving interest of as little as 1.25 per cent a year, which is even lower than the Reserve Bank of Australia's record-low cash rate of 1.5 per cent. He flagged action too against AMP, with about 18 other cases to follow. As Mr Hardwick explained, some industry and retail super funds are paying members interest similar to that of standard term deposits -- between 2.0 and 2.5 per cent. It's estimated that about 55 per cent -- or 8.2million -- of Australians have at least one retail account with some form of cash component. While it's difficult to gauge the exact payout figure, the law firm estimates that for someone with $100,000 in cash at 0.5 per cent over six years the payout is $3000. The law firm has created the website getyoursuperback.com for anyone whose super is invested in cash. [GN] DAKOTA ACCESS: 8th Cir. Hears Oral Arguments in Pipeline Case ------------------------------------------------------------- Dionne Cordell-Whitney, writing Courthouse News Service, reported that the Eighth Circuit heard oral arguments on Oct. 18 over whether pipeline company Dakota Access pressured landowners into easement agreements and lied to them about how much money they could get for sections of their property. Twenty-one landowners in Morton County, North Dakota, and one partnership filed a lawsuit last year accusing Dakota Access LLC and Contract Land Staff LLC of coercing them into easement agreements when they were approached by the companies in 2014. Dakota Access needed the easements to run a pipeline carrying crude oil from oilfields in western North Dakota to a terminal in Illinois. According to the lawsuit, Dakota Access offered the landowners $180 per 16.5 feet (or one rod) per easement in addition to a 20 percent signing bonus, for a total of $216 per rod if the owners signed up within 30 days. "Dakota Access informed the Morton County landowners that $216 per rod was the best price that would ever be offered and the price would never be more for other landowners in Morton County," the complaint states. In reality, however, the landowners allege Dakota Access paid other landowners as high as $2,000 per rod. They also claim they were told that if they did not sign the easement agreement, their land would be condemned by eminent domain or the pipeline would simply be moved to different land. Chief U.S. District Judge Daniel L. Hovland dismissed the case in October 2017, finding that the landowners did not identify any specific misrepresentation of material fact. He also ruled that their claims were barred by the integration clause in the easement agreements. Representing the landowners, attorney Peter Zuger -- pzuger@serklandlaw.com -- with Serkland Law Firm tenaciously argued on Oct. 18 before an Eighth Circuit panel that while fraud requires proof of actual intent, North Dakota's unfair-tactics statute is not grounded in fraud. The majority of his argument relied on that statute, which was enacted in the 1970s to protect landowners from being treated unfairly by public utility companies trying to acquire easements from landowners. "The statue in this particular case says it prohibits a plethora of actions. One of those is fraud. But the statue says any unfair tactics, any intimidation, any harassment, cannot occur. It is not allowed in North Dakota," he said. However U.S. Circuit Judge David R. Stras said the lawsuit contains numerous allegations of fraud. "My understanding of the other allegations, unfair competition, harassment, etc. . . there is less specificity as to those allegations," Judge Stras said. "Am I wrong about that?" "Less specificity would be required to meet the standard," Mr. Zuger replied. "I guess what I am really getting at," Judge Stras continued, "is that when you get to the complaint itself, all it does from what I can see, is it repeats the language of the statute. In other words, I don't see any specific allegations other than the fraud allegations." "I don't see those allegations. I see a bunch of fraud allegations that are trying to pigeon hole into those other categories," like negligent misrepresentation, he added. Mr. Zuger responded sharply, saying he disagreed. "Landowners were deceptively told that their land could be condemned and were deceptively told $216 per rod was the best price that would ever be offered," he said. In addition to other allegations in the complaint, Mr. Zuger continued, "those acts were intimidating, harassing and unfair." Dakota Access' attorney, Amy Miller -- amy.miller@bipc.com -- with Buchanan & Ingersoll, said the district court did not find the North Dakota statute as a whole sounded in fraud, but that the specific allegations in this case sounded in fraud. "I think this is a very important distinction," she said. Ms. Miller continued, "In terms of the counsel's point, if you don't plead with particularity, certain claims that are fraud-like, then you basically eviscerate the policy reasons for having this requirement in the first place." She also said it is "very telling that in this case there are 21 plaintiffs and there are many, many right-of-way agents who act on behalf Dakota Access and not one single name is mentioned." The "who said what to whom is not addressed at all in this complaint," Ms. Miller said. U.S. Circuit Judges Bobby Shepherd and Jane Kelly rounded out the panel. It is unclear when a ruling will be issued. DELAMOUNT INC: Sean Williams Seeks Unpaid Wages ----------------------------------------------- SEAN WILLIAMS, an individual on behalf of himself and on behalf of others similarly situated, the Plaintiff, vs. DELAMOUNT, INC., a California Corporation; JAMES MOUNTAIN, an Individual; an Individual; and DOES 1 through 50, inclusive, the Defendants, Case No.: BC724239 (Cal. Super. Ct., Oct. 3, 2018), alleges that the Defendants violated the California Labor Code for failure to pay all wages due upon termination of employment relationship. According to the complaint, the Defendants were owner operators of O'Connell's Bar. The Plaintiff was paid $8.75 per hour, only for hours he was scheduled to work, irrespective of whether he worked after his scheduled shift. Throughout his period of employment, Mr. Williams and other similarly situated employees were paid under the table and misclassified as exempt, independent contractors. Additionally, throughout his period of employment. The Plaintiff and similarly situated employees were required to work off-the-clock and continued to work, past their eight-hour scheduled shift if patrons were still at the bar. When this occurred, Plaintiff and similarly situated employees would not get paid any hourly wage for the extra time spent working for Defendants, when Plaintiff was entitled to overtime compensation for anytime worked in excess of eight-hours for his shift, the lawsuit says.[BN] Attorneys for Plaintiff: C.E. Kimberly Lind, Esq. Ashleigh N. Stone, Esq. KO LEGAL, INC. 100 Oceangate, 12th Floor Long Beach, CA 90802 Telephone: (562) 628 5548 Facsimile: (714) 242 1590 E-mail: Kim@KO-Legal.com DENVER, CO: Judge Sets Parameters for Homeless Case Sweep Trial --------------------------------------------------------------- Chris Walker, writing for Westword, reports that a new order by the judge overseeing the federal homeless class action case in Denver, in which the entire homeless community is suing the city, has set some parameters for the upcoming trial, which is still slated to begin next March. At issue in this case, which was filed back in August 2016, is whether the City of Denver violated constitutional rights -- specifically the Fourth and Fourteenth amendments (protection against unlawful searches and seizures and the equal-protection clause, respectively) -- when it dismantled homeless encampments during a number of sweep operations. Confident in their respective positions, both the homeless plaintiffs and the city had asked for summary judgment in the case, but U.S. District Court Judge William Martinez denied those motions in spring of this year, setting the stage for next year's jury trial. Since then, occasional hearings and rulings have defined the scope and contours of next year's showdown in federal court. Here's the latest: On Friday, October 5, Judge Martinez defined some terms that will be used during the trial, and ruled on conflicting motions by the plaintiffs and the city about what historical incidents could be referenced in arguments in court. The plaintiffs' lawyer, Jason Flores-Williams. Brandon Marshall Most notably, the federal court defined a "sweep" -- a term Mayor Michael Hancock's administration has vigorously avoided using when speaking to the press, but is nevertheless used in internal Denver Police Department documents. "For purposes of this lawsuit, those sweeps are defined as 'the City and County of Denver's alleged custom or practice (written or unwritten) of sending ten or more employees or agents to clear away an encampment of multiple homeless persons by immediately seizing and discarding the property found there,'" Judge Martinez wrote in his latest order. The rest of the order concerns the range and number of alleged sweeps that can be explored at the trial, with the city trying to limit the number of incidents that can be discussed and the plaintiffs trying to bring in as much evidence as possible. Judge Martinez's order, included below, is technical, but it reveals constant counter-maneuvers between the plaintiffs, led by attorney Jason Flores-Williams and supported by the civil-rights firm Killmer, Lane & Newman, and the City of Denver when it comes to arguing whether certain witnesses and certain alleged sweeps can be discussed at trial. Judge Martinez appears to walk a fine line, granting the plaintiffs some added evidence, including a video that was taken this summer of Denver employees throwing out a homeless person's shopping cart, but denying other incidents from being explored in court, including a December 15, 2015, sweep (which Westword also wrote about). But Judge Martinez was firm that nothing after July 9, 2018 -- the date the shopping cart video was filmed -- could be included in the trial. Asked for his opinion about the court allowing some alleged sweeps to be discussed at trial but not others, Mr. Flores-Williams emailed Westword: "All you can do is adapt to the system's version of reality without losing sight of what you know is the truth." Denver is no longer the only city facing a class action lawsuit concerning homeless sweeps. On September 27, a federal judge in California allowed advocates to bring a similar class-action lawsuit against the City of Berkeley. [GN] DR. SMOOD: Fischler Suit Asserts ADA Breach ------------------------------------------- A class action lawsuit has been filed against Dr. Smood New York LLC. The case is styled as Brian Fischler individually and on behalf of all other persons similarly situated, Plaintiff v. Dr. Smood New York LLC, Defendant, Case No. 1:18-cv-05907 (E.D. N.Y., Oct. 22, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Dr Smood LLC owns and operates an organic food cafe. The company was founded in 2015 and is based in Miami, Florida.[BN] The Plaintiff is represented by: Douglas Brian Lipsky, Esq. Lipsky Lowe LLP 630 Third Avenue Fifth Floor New York, NY 10017 Phone: (212) 392-4772 Fax: (212) 444-1030 Email: doug@lipskylowe.com DUN & BRADSTREET: Faruqi & Faruqi Files Securities Class Action --------------------------------------------------------------- Faruqi & Faruqi, LLP, disclosed that it has filed a class action lawsuit in the United States District Court for the District of Delaware, case No. 1:18-cv-01455, on behalf of shareholders of The Dun & Bradstreet Corporation ("Dun & Bradstreet" or the "Company") (NYSE: DNB) who have been harmed by Dun & Bradstreet's and its board of directors' (the "Board") alleged violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") in connection with the proposed acquisition of the Company by an investor group (the "Investor Group") led by CC Capital, Cannae Holdings and funds affiliated with Thomas H. Lee Partners, L.P. ("THL"). On August 8, 2018, the Board caused the Company to enter into an agreement and plan of merger ("Proposed Transaction") under which Dun & Bradstreet stockholders will receive $145 in cash for each share of Dun & Bradstreet common stock they hold (the "Merger Consideration"). The shareholder vote on the Proposed Transaction is expected to occur on November 7, 2018. The complaint alleges that the Proxy Statement on Schedule 14A (the "Proxy") filed with the Securities and Exchange Commission ("SEC") on September 12, 2018, violates Sections 14(a) and 20(a) of the Exchange Act because it provides materially incomplete and misleading information about the Company and the Proposed Transaction, including information concerning the Company's financial projections and analysis, on which the Board relied to recommend the Proposed Transaction as fair to Dun & Bradstreet shareholders. If you wish to obtain information concerning this action, you can do so by clicking here: www.faruqilaw.com/DNBnotice. Take Action Plaintiff is represented by Faruqi & Faruqi, LLP, a law firm with extensive experience in prosecuting class actions, and significant expertise in actions involving corporate fraud. Faruqi & Faruqi, LLP, was founded in 1995 and the firm maintains its principal office in New York City, with offices in Delaware, California, Georgia, and Pennsylvania. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from October 9, 2018, the date of this notice. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. If you wish to discuss this action, or have any questions concerning this notice or your rights or interests, please contact: Nadeem Faruqi, Esq. James M. Wilson, Jr., Esq. FARUQI & FARUQI, LLP 685 3rd Avenue, 26th Floor New York, NY 10017 Telephone: (877) 247-4292 or (212) 983-9330 E-mail: nfaruqi@faruqilaw.com jwilson@faruqilaw.com Website: http://www.faruqilaw.com[GN] DUNKIN' BRANDS: Proskauer Rose Attorney Discuss Suit Dismissal -------------------------------------------------------------- Alexander Kaplan, Esq. -- akaplan@proskauer.com -- Daniel Werb, Esq. -- dwerb@proskauer.com -- and Carl Mazurek, Esq. -- cmazurek@proskauer.com -- of Proskauer Rose LLP, in an article for National Law Review, report that a federal court in the Eastern District of New York recently dismissed a putative class action filed against Dunkin' Brands alleging deceptive advertising with respect to its Angus Steak & Egg Breakfast Sandwich and Angus Steak & Egg Wake-Up Wrap. Judge Carolyn Amon dismissed the claims by out-of-state plaintiffs on jurisdictional grounds, and found the challenged product names were not misleading as a matter of law. The case clarified the standard that class-action plaintiffs must meet for the court to find specific personal jurisdiction, and demonstrated yet another court's willingness to rule as a matter of law on whether advertising is misleading to a reasonable consumer. The four named plaintiffs in this case were residents of New York, California, Massachusetts, and Florida, and sued on behalf of a purported nationwide class. They claimed that they had each purchased the products after viewing advertisements that featured actors repeating the word "steak," and on-screen text displaying the words "Angus" and "steak." The complaint alleged: 1) that the product names and advertisements represented that the products contained an intact, single piece of meat, when in fact the meat was ground; and 2) that the term "Angus Steak" indicated a pure beef patty, when the products in question contained preservatives and other ingredients. The plaintiffs claimed that as a result of the allegedly deceptive product names and advertisements, they were induced to pay a "premium" for the Angus products over other comparable sandwiches or wraps. Before reaching the merits, Judge Amon ruled that the court lacked jurisdiction over the non-New York plaintiffs' claims. Refusing to find general personal jurisdiction over Dunkin' Brands in a state in which it was neither incorporated nor had its principal place of business, the court analyzed whether the plaintiffs' claims were sufficient to merit a finding of specific personal jurisdiction. The court held that, under the Supreme Court's 2017 Bristol Myers Squibb decision, each named plaintiff in a class action must show in-state contacts specific to their claim that give rise to jurisdiction over an out-of-state defendant. The court found that the out-of-state plaintiffs had not done so, and that their claims should therefore be dismissed. The court also dismissed the New York plaintiff's claim on the grounds that the product names and advertising in question were not misleading as a matter of law. Judge Amon noted that the advertisements clearly showed the ground beef patties, and therefore fully disclosed to a reasonable consumer that the products did not contain intact, single pieces of meat. She also rejected plaintiffs' argument that the use of the term "Angus Steak" indicated that the beef patty contained no additives, preservatives, or other ingredients; rather, a reasonable consumer would understand the term to mean only that the product contained some Angus beef. [GN] EASTON DIAMOND: Must Face Bat Labeling Class Action --------------------------------------------------- Ryan Boysen, writing for Law360, reports that Easton Diamond Sports LLC has whiffed on its bid to exit a proposed class action alleging it mislabels the weights of its expensive youth baseball bats. [GN] EQUILON ENTERPRISES: $7.75MM Deal in Berlanga Has Prelim Approval ----------------------------------------------------------------- In the case, DAVID BERLANGA, BRANDON EHRESMAN, CHARLES GAETH, MICHAEL GONZALEZ, JOHN LANGLITZ, and CHRISTOPHER PALACIO, individually and on behalf of all similarly situated current and former employees, Plaintiffs, v. EQUILON ENTERPRISES LLC dba SHELL OIL PRODUCTS US, CRI U.S. LP, CRI CATALYST COMPANY LP, and SHELL PIPELINE COMPANY LP, and DOES 1 through 10, inclusive, Case No. 17-cv-00282-MMC (N.D. Cal.), Judge Maxine M. Chesney of the U.S. District Court for the Northern District of California granted the Parties' joint motion for preliminary approval of settlement agreement. On Jan. 19, 2017, the Plaintiffs filed their complaint in the Northern District of California, captioned as David Berlanga, et al., v. Equilon Enterprises LLC, Case No. 17cv-00282-MMC ("Lawsuit"). The Plaintiffs filed a First Amended Complaint on May 19, 2017. The Lawsuit alleges the following causes of action: (1) Failure to authorize and permit duty free rest periods; (2) Failure to furnish accurate wage statements; (3) penalties under the Private Attorneys General Act; and (4) violation of the Unfair Competition Law, Business & Professions Code Section 17200. The Plaintiffs seek unpaid wages, statutory and civil penalties, restitution, attorneys' fees and costs, interest, injunctive relief, and declaratory relief, and such other relief as the Court deems just and proper, for the time period from Jan. 19, 2013 to the present. Following an extensive investigation and arm's-length and good-faith negotiations, including a full-day mediation with Barry Winograd on April 19, 2018, the Parties reached a tentative settlement agreement, which was subsequently reduced to their Joint Stipulation of Settlement and has been filed with the Court. The Parties move for the Court to (i) preliminarily approve the class action Settlement for $7.75 million; (ii) preliminarily and conditionally certify the class for purposes of settlement; (iii) preliminarily appoint Plaintiffs David Berlanga, Brandon Ehresman, Charles Gaeth, Michael Gonzalez, John Langlitz, and Christopher Palacio as the class representatives for purposes of settlement; (iv) preliminarily appoint Hadsell Stormer & Renick, LLP and Gilbert & Sackman, A Law Corporation, as the class counsel for purposes of settlement; (v) preliminarily approve the application for payment to class counsel of reasonable attorneys' fees of up to $1,937,500 (25% of the common fund) and reasonable costs up to $25,000; (vi) preliminarily approve the payment of an "incentive award" in the amount of $7,500 to each of the six class representatives; (vii) approve as to form and content the Proposed Notice of Class Action Settlement; (viii) direct that the Notice of Class Action Settlement be mailed to the Settlement Class members; and (ix) schedule a fairness hearing on the question of whether the proposed Settlement should be finally approved as fair, reasonable, and adequate as to the members of the Settlement Class. That motion came on regularly for hearing before the Court on Sept. 14, 2018, at 9:00 a.m. Judge Chesney granted the Parties' joint motion for preliminary approval of settlement agreement. She certified the following class for purposes of settlement: Current and former employees of any Defendant or any affiliate of a Defendant who worked as Operators at one or more of the following facilities: (a) Shell Pipeline Company LP's terminal facility in Carson, California (the Carson Terminal facility); (b) Equilon Enterprises LLC, doing business as Shell Oil Products US's oil refinery in Martinez, California (the Martinez Refinery), and/or (c) CRI Catalyst Company LP's catalyst production facilities in Martinez and Pittsburg, California (Criterion Catalyst plants) during the period beginning Jan. 19,2013 and ending the date of Preliminary Approval. The Judge appointed Plaintiffs David Berlanga, Brandon Ehresman, Charles Gaeth, Michael Gonzalez, John Langlitz, and Christopher Palacio as the class representatives; Hadsell Stormer & Renick, LLP and Gilbert & Sackman, A Law Corporation, as the class counsel; and (iii) AC Services Group, LLC, to act as the Claims Administrator. In connection with her preliminary approval of the Settlement, the Judge preliminarily approved the application for payment to the Class Counsel of reasonable attorneys' fees of up to $1,937,500 (25% of the common fund) and reasonable costs up to $25,000. Judge Chesney granted the Parties' motion to set a settlement hearing for final approval of the Settlement. She ordered the following schedule of dates for further proceedings: a. Mailing of Settlement Documents to the class will be completed by Oct. 22, 2018; b. Filing of the Plaintiffs' motion for attorney's fees and costs and posting on the Claims Administrator's website will be completed by Nov. 21, 2018; c. The deadline for the class members to file and serve objections will be 45 calendar days from the mailing of the Settlement Documents; and d. The deadline for the class members to file and serve requests for exclusion will be 45 calendar days from the mailing of the Settlement Documents. The Fairness Hearing will be held on Jan. 18, 2019 at 9:00 a.m. The Plaintiffs will file a memorandum of points and authorities in support of final approval of the Settlement two weeks prior to the hearing. A full-text copy of the Court's Sept. 21, 2018 Order is available at https://is.gd/RrSgVo from Leagle.com. David Berlanga, Brandon Ehresman, Charles Gaeth, Michael Gonzalez, John Langlitz & Christopher Palacio, Plaintiffs, represented by Cornelia Dai -- cdai@hadsellstormer.com -- Hadsell Stormer & Renick, LLP, Jay Edward Smith -- jsmith@steptoe.com -- Gilbert & Sackman, A Law Corporation, Randy R. Renick, Hadsell Stormer & Renick, LLP & Joshua Finley Young -- jyoung@gslaw.org -- Gilbert & Sackman, A Law Corporation. Equilon Enterprises LLC, doing business as, CRI U.S. LP, Shell Pipeline Company LP & CRI Catalyst Company LP, Defendants, represented by Rebecca Kim Kimura -- lkimura@lkclaw.com -- Lafayette & Kumagai LLP & Gary T. Lafayette -- glafayette@lkclaw.com -- Lafayette & Kumagai LLP. ESA MANAGEMENT: Court Issues Show Cause Order in Arizmendi Suit --------------------------------------------------------------- In the case, SANDRA ARIZMENDI, Plaintiff, v. ESA MANAGEMENT, LLC, Defendants, Case No. 18-cv-05821 NC (N.D. Cal.), Magistrate Judge Nathanael M. Cousins of the U.S. District Court for the Northern District of California directed the Defendant ESA removed the putative class action case from Santa Clara County Superior Court, asserting that the Court has subject matter jurisdiction over the case under the Class Action Fairness Act ("CAFA"). ESA asserts that diversity of citizenship is established because Arizmendi is a California citizen and ESA has its principal place of business in North Carolina. Magistrate Judge Cousins finds that ESA is applying the wrong standard. ESA is a limited liability company. Like a partnership, an LLC is a citizen of every state of which its owners/members are citizens. ESA's removal notice does not show that its members are citizens of states other than California. Consequently, ESA must show cause in a writing filed by Oct. 5, 2018, as to why the case should not be remanded to state court for lack of subject matter jurisdiction. If Arizmendi wishes to respond, she may file a responding brief by Oct. 12. A full-text copy of the Court's Sept. 25, 2018 Order is available at https://is.gd/BfVcEl from Leagle.com. Sandra Arizmendi, Plaintiff, represented by Craig Justin Ackermann -- cja@ackermanntilajef.com -- Ackermann & Tilajef, P.C. & Jonathan Melmed -- jm@melmedlaw.com -- Melmed Law Group P.C. ESA Management, LLC, Defendant, represented by Kurt Bockes -- kbockes@littler.com -- Littler Mendelson, Deborah Olaleye -- dolaleye@littler.com -- Littler Mendelson P.C. & Lindbergh Porter, Jr. -- lporter@littler.com -- Littler Mendelson, PC. FACEBOOK INC: 9th Cir. Has Yet to Rule on Patient Spying Case ------------------------------------------------------------- Helen Christophi, writing for Courthouse News Service, reported that A Ninth Circuit panel gave little indication on Oct. 16 whether it will revive a proposed class action accusing Facebook of spying on cancer sufferers to target them with medical advertising. U.S. Circuit Court Chief Judge Sidney Thomas peppered Facebook's lawyer with questions hinting that he was undecided about whether user information -- such as searches for medical terms -- collected by Facebook from healthcare and nonprofit websites is protected from disclosure under the Health Insurance Portability and Accountability Act (HIPAA). But U.S. Circuit Judge Susan Graber appeared to side firmly with the social media company's contention that the information is generic and consequently not protected under the 1996 statute enacted to safeguard patient medical information. "If I were a journalist and I wanted to write an article about stomach transplants, heart transplants -- I would visit all those websites," Judge Graber told plaintiffs' counsel Jay Barnes, who is with Barnes & Associates in Jefferson City, Missouri. "It isn't necessarily private information in the way you're describing." Lead plaintiff Winston Smith sued Facebook, the American Cancer Society, the American Society of Clinical Oncology, and five other cancer care providers and organizations in March 2016, claiming Facebook collects private user information from their websites, including whether a user clicked on Facebook "like" or "share" buttons embedded on the sites. Mr. Smith claims the information lets Facebook identify individual users and track the specific website pages they visit. He says the company uses the data to sell targeted medical advertising to third parties, in violation of the federal Wiretap Act, the California Invasion of Privacy Act and other statutes. U.S. District Judge Edward Davila in San Jose dismissed the case in May 2017 because the plaintiffs consented to Facebook's privacy policy, which notifies users when setting up an account the company collects information from third-party websites. He also rejected Mr. Smith's argument the information in question is protected under HIPAA. On Oct. 16, Mr. Barnes argued that whether or not the information is legally protected, no "reasonable user" reading Facebook's privacy policy would assume Facebook tracks communications with healthcare providers "who expressly promised to keep them private." But Judge Graber said the plaintiffs' issue seemed to be with the healthcare defendants -- which weren't included in the appeal. "That's really your beef, it's with the medical providers that ought not be putting this stuff out on Facebook where it can be shared," Judge Graber said. "It strikes me that if there's a problem, it isn't with Facebook; it's with the healthcare providers." Goldman -- lrgoldman@mayerbrown.com -- Facebook's attorney, countered the company's data policy does in fact tell users it collects information about them "on and off Facebook." "Facebook is describing exactly what the plaintiffs are claiming it did in this case," said Goldman, who is with Mayer Brown in Los Angeles. "Facebook is saying we received this information and this is how we are using it." Echoing Mr. Barnes, however, Judge Thomas said if the information is protected under HIPAA, users have a "reasonable expectation" the information will be kept private, given Facebook's privacy policy. Judge Thomas also appeared concerned that Facebook allows users to restrict the information it collects about them but not to opt out of collection completely. "If this court rules in Facebook's favor, it is giving it a blank check to collect anything and everything it wants, regardless of any contrary privacy promises, regardless of any laws to the contrary," Mr. Barnes said. Facebook had no immediate comment on Oct. 16. U.S. District Judge Robert Lasnik of the Western District of Washington joined the panel, which did not indicate when it will rule. FAITH AND FREEDOM: Faces TCPA Class Action in Florida ----------------------------------------------------- Eric Troutman, Esq., of Womble Bond Dickinson (US) LLP, in an article for The National Law Review, reports that apparently the Faith and Freedom Coalition ("FFC") -- allegedly some sort of Conservative-leaning PAC -- blasted Florida residents with texts urging Senator Bill Nelson to support the Kavanaugh confirmation. The text (allegedly) read as follows: This is Ralph Reed. A good man is under attack & needs your help. Call Sen Bill Nelson TODAY & tell him to confirm Brett Kavanaugh. Subtle. Similar texts were allegedly blasted to a bunch of folks in the area, none of whom -- according to the lawsuit -- consented to receive those texts. The complaint -- filed on Oct. 8 in the Southern District of Florida by an agitated citizen named Shehan Wijesinha and found here Wijensinha v FFC -- alleges a class of all persons within the United States that were sent a text message by the Defendant without prior express consent. It is brought by noted TCPA class action attorney Manuel Hiraldo of Hiraldo, P.A. The TCPA prevents text messages -- including political texts -- to cellular phones without consent. If the Defendant is found liable for sending the texts under the TCPA it may face exposure as high as $1,500.00 per text. Given the number of texts allegedly at issue in the suit this may cost the FFC many millions of dollars to resolve, a fact that may prompt the FFC to need a Devil's Triangle this afternoon to unwind. (What? Its a drinking game!) A recent Wyoming lawsuit found a state corollary law similar to the TCPA unconstitutional as applied to political messages -- and you can bet your bottom dollar that the folks at FFC will assert a First Amendment challenge. [GN] FIRST NATIONAL: Gutierrez Suit Remanded to Md. State Court ---------------------------------------------------------- Judge George J. Hazel of the U.S. District Court for the District of Maryland, Southern Division, denied as moot the Defendants' Motion to Dismiss the case, JULIA GUTIERREZ et al., Plaintiffs, v. FIRST NATIONAL BANK OF AMERICA, et al., Defendants, Case No. GJH-18-479 (D. Md.). Gutierrez and Maria Gomez filed an amended class action complaint in the Circuit Court for Montgomery County, Maryland against First National Bank of America ("FNBA"), Cenlar FSB, and Equity Prime Mortgage LLC for violations of the Real Estate Settlement Procedures Act ("RESPA"), and the Federal Truth in Lending Act ("TILA"). They allege that the Defendants failed to comply with the notification requirements of these statutes as their mortgage was transferred between the entities, causing them uncertainty, fear, and worry. The Defendants filed separate motions to dismiss for lack of standing and failure to state a claim. FNBA contends that because the Plaintiffs do not allege an injury in fact, they do not have standing and the Court does not have jurisdiction over this claim. The Plaintiffs refinanced their personal residence with Defendant Equity Prime Mortgage in November 2015. In January 2016, the servicing rights to the loan were transferred to Defendant Cenlar. In February 2016, the Plaintiffs received correspondence from Freddie Mac stating that it had acquired their loan. They never received correspondence thereafter that Freddie Mac had sold the loan. Cenlar then "reversed" the Plaintiffs' November 2016 payment, and also wrongly sent a correspondence to them acknowledging that the loan had been "paid in full." The Plaintiffs were then informed by Defendant Equity Prime, both orally and in a Nov. 9, 2016 letter, that it was their new "temporary servicer," and they should make payments to Equity Prime. Cenlar never sent the Plaintiffs any correspondence notifying them that Cenlar was no longer going to service the loan. Nor did Equity Prime's Nov. 9, 2016 letter, or any other correspondence with the Plaintiffs, contain the information required by 12 U.S.C.A. 2605(b)(3). In December 2016, Cenlar once more sent the Plaintiffs correspondence stating that the mortgage loan had been paid in full. But in January 2017, Equity Prime sent a statement claiming the loan was in late. On Jan. 25, 2017, Defendant FNBA notified the Plaintiffs their loan was being transferred as of Feb. 2, 2017. On February 3, FNBA informed the Plaintiffs that it had purchased Equity Prime's interest in their loan on Dec. 1, 2016. The Plaintiffs filed their original complaint in the Circuit Court for Montgomery County, Maryland on Dec. 19, 2017. They filed an Amended Complaint in the same court on Jan. 30, 2018. The Defendants filed a notice of removal on Feb. 15, 2018. They Defendants timely filed separate motions to dismiss. Judge Hazel finds that while the Plaintiffs' claimed injury involves worry and confusion about who owned their loan, they continually made payments on the loan without interruption, or risk of added costs or fees, and have alleged no impact on their credit decisions. Thus, there was no risk of harm to an interest protected by RESPA or TILA. Because the Plaintiffs have not pled an injury in fact, they do not have standing pursuant to Article III. Because the case was removed from state court, 28 U.S.C. Section 1447 governs post-removal procedure. That statute reads in part that if at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case will be remanded. The Fourth Circuit makes no exception to the rule. Finding the Plaintiffs have no standing to sue in federal court, Judge Hazel remanded the case to the Circuit Court for Montgomery County, Maryland, and denied as moot the Defendants' Motion to Dismiss. A separate Order will issue. A full-text copy of the Court's Sept. 21, 2018 Memorandum Opinion is available at https://is.gd/yeGsYo from Leagle.com. Julia Gutierrez & Maria Gomez, Plaintiffs, represented by Phillip R. Robinson, Consumer Law Center LLC. First National Bank of America, Defendant, represented by James P. Ulwick -- julwick@kg-law.com -- Kramon and Graham PA & Thomas M. Schehr -- tschehr@dykema.com -- Dykema Gossett PLLC, pro hac vice. Cenlar FSB, Defendant, represented by Thomas Francis Lucchesi, III -- tlucchesi@stradley.com -- Stradley Ronon & Joe N. Nguyen -- jnguyen@stradley.com -- Stradley Ronon Stevens and Young LLP, pro hac vice. Equity Prime Mortgage LLC, formerly known as, Equity Loans LLC, Defendant, represented by Scott David Burke -- sburke@morrisonmahoney.com -- KREINER & KREINER LLC. FORD MOTOR: Settles Defective Airbag Class Action ------------------------------------------------- A settlement has been reached in a class action lawsuit alleging that consumers sustained economic losses because they purchased or leased vehicles from Ford Motor Company containing allegedly defective airbags manufactured by Takata Corporation and its affiliates. The Settlement includes certain vehicles made by Ford (the "Subject Vehicles"). Ford denies any and all allegations of wrongdoing and the Court has not decided who is right. Owners or lessees of Subject Vehicles who have already received a separate "Parts Available" recall notice for their Ford vehicle and have not yet had their Takata airbag repaired should do so as soon as possible. When recalled Takata airbags deploy, they may spray metal debris toward vehicle occupants and may cause serious injury. However, many Ford vehicles affected by this settlement have not been recalled. Please see www.AirBagRecall.com for further details about which vehicles have been recalled, and what owners or lessees of recalled vehicles should do. The Settlement includes the following persons and entities: -- Owners or lessees, as of September 5, 2018, of a Subject Vehicle that was distributed for sale or lease in the United States or any of its territories or possessions, and -- Former owners or lessees of a Subject Vehicle that was distributed for sale or lease in the United States or any of its territories or possessions, who, between June 19, 2014 and September 5, 2018, sold or returned pursuant to a lease, a Subject Vehicle that was recalled before September 5, 2018. A full list of the Subject Vehicles can be found at www.AutoAirbagSettlement.com. The Settlement does not involve claims of personal injury. Ford has agreed to a Settlement with a value of approximately $299.1 million, including a 20% credit for the Enhanced Rental Car/Loaner Program. The Settlement Funds will be used to pay for Settlement benefits and cover the costs of the Settlement over an approximately four-year period. The Settlement offers several benefits for Class Members, including (1) payments for certain out-of-pocket expenses incurred related to a Takata airbag recall of a Subject Vehicle, (2) a Rental Car/Loaner Program while certain Subject Vehicles are awaiting repair, (3) an Outreach Program to maximize completion of the recall remedy, (4) additional cash payments to Class Members from residual settlement funds, if any remain, and (5) a Customer Support Program to help with repairs associated with affected Takata airbag inflators and their replacements. The Settlement website explains each of these benefits in detail. Class Members must file a claim to receive a payment during the first four years of the Settlement. If a Class Member still owns or leases a Subject Vehicle, they must also bring it to an authorized dealership for the recall remedy, as directed by a recall notice, if they have not already done so. Class Members can visit www.AutoAirbagSettlement.com and file a claim online or download one and file by mail. The deadline to file a claim will be at least one year from the date the Settlement is finalized and will be posted on the website when it's known. Class Members who do not want to be legally bound by the Settlement must exclude themselves by November 26, 2018. If Class Members do not exclude themselves, they will release any claims they may have against Ford, in exchange for certain settlement benefits. The potential available benefits are more fully described in the Settlement, available at the settlement website. Class Members may object to the Settlement by November 26, 2018. Class Members cannot both exclude themselves from, and object to, the Settlement. The Long Form Notice for the Settlement available on www.AutoAirbagSettlement.com explains how Class Members can exclude themselves or object. The Court will hold a fairness hearing on December 11, 2018 to consider whether to finally approve the Settlement and a request for attorneys' fees of up to 25% of the total Settlement Amount and incentive awards of $5,000 for each of the Class Representatives. Class Members may appear at the fairness hearing, either by themselves or through an attorney they hire, but don't have to. For more information, including the relief, eligibility and release of claims, in English or Spanish, call 1-888-735-5596 or visit www.AutoAirbagSettlement.com. [GN] FORSTER & GARBUS: Faces Sykes' FDCPA Suit in New York ----------------------------------------------------- A class action lawsuit has been filed against Forster & Garbus, LLP, et al. The case is styled as Thelma Sykes on behalf of herself and all others similarly situated, Plaintiff v. Forster & Garbus, LLP, LVNV Funding LLC, Resurgent Capital Services L.P., Sherman Financial Group, LLC, Mark A. Garbus, Ronald Forster, Defendants, Case No. 2:18-cv-05855 (E.D. N.Y., Oct. 19, 2018). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Forster & Garbus LLP provides legal services. The Company specializes in collecting debts. LVNV Funding LLC, purchases portfolios of both domestic (U.S.) and international consumer debt owned by credit grantors including banks and finance companies, and by other debt buyers. Resurgent Capital Services, L.P. manages and services domestic and international consumer debt portfolios for credit grantors and debt buyers. It manages accounts across the credit spectrum, including performing accounts, sub- and non-performing accounts, secured accounts, and unsecured accounts. Sherman Financial Group LLC, through its subsidiaries, originates, purchases, and services consumer and commercial debt in the United States, Canada, Mexico, and the United Kingdom. The company specializes in the development of solutions that optimize long term value.[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 FOSTER DAIRY: Fails to Pay Proper Wages, Willie Lee Dampier Claims ------------------------------------------------------------------ WILLIE LEE DAMPIER SR., individually and on behalf of all others similarly situated, Plaintiff v. FOSTER DAIRY FARMS A/K/A CRYSTAL CREAMERY; BALANCE STAFFING WORKFORCE, LLC; and DOES 1 THROUGH 50, INCLUSIVE, Defendants, Case No. BC723625 (Cal. Super., Los Angeles Cty., Oct. 2, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. The Plaintiff Dampier Sr. was employed by the Defendants as an hourly, non-exempt employee. Foster Dairy Farms Inc., doing business as Crystal Creamery, produces and markets dairy products to consumers in California. The company was founded in 1901 and is based in Modesto, California. Foster Dairy Farms Inc. operates as a subsidiary of Foster Poultry Farms, Inc. [BN] The Plaintiff is represented by: James R. Hawkins, Esq. Isandra Fernandez, Esq. JAMES HAWKINS APLC 9880 Research Drive, Suite 200 Irvine, CA 92618 Telephone: (949) 387-7200 Facsimile: (949) 387-6676 GENERAL MOTORS: Faces Class Action Over Defective Brakes -------------------------------------------------------- Rick Archer, writing for Law360, reports that a California couple on Oct. 9 filed a putative class action in a California federal court alleging General Motors knowingly sold Cadillacs, Chevrolets and GMC SUVs and pickups with dangerously defective brakes. [GN] GENUINE PARTS: Fails to Pay Proper Wages, Hill Suit Alleges ----------------------------------------------------------- BRANDON HILL, individually and on behalf of all others similarly situated v. GENUINE PARTS COMPANY D/B/A NAPA AUTO PARTS; and DOES 1-100, Defendants, Case No. 18CECG03659 (Cal. Super., Fresno Cty., Oct. 2, 2018) is an action against the Defendants for failure to pay minimum wages, overtime compensation, authorize and permit meal and rest periods, and provide accurate wage statements. The Plaintiff Hill was employed by the Defendants as non-exempt employee in Fresno, California. Genuine Parts Company distributes automotive replacement and industrial parts, electrical and electronic materials, and business products in the United States, Canada, Mexico, Australasia, France, the United Kingdom, Germany, and Poland. The company was founded in 1928 and is headquartered in Atlanta, Georgia. [BN] The Plaintiff is represented by: Evan Selik, Esq. MCCATHERN LLP 423 West Sixth Street, Suite 830 Los Angeles, CA 90014 Telephone: (213) 225-6150 Facsimile: (213) 225-6151 E-mail: ESelik@mcccathernlaw.com GOOGLE INC: Consumer Activist to Appeal Safari Class Suit Ruling ---------------------------------------------------------------- Litigation Finance Journal reports that Richard Lloyd is a consumer activist representing 4.4 million claimants in a multi-billion pound claim against Google. The Tech giant is alleged to have bypassed privacy settings -- in what has since been termed the "Safari workaround" -- to unlawfully collect personal information on millions of iPhone users from 2011-2012. A UK High Court has ruled that the claim fails to pass muster, and will not be served. Lloyd is vowing to appeal the decision. [GN] GROUNDHOG ENTERPRISES: Summary Judgment Bid in Liberty Suit Denied ------------------------------------------------------------------ In the case, LIBERTY SALAD, INC., et al, v. GROUNDHOG ENTERPRISES, INC., Civil Action No. 17-CV-226 (E.D. Pa.), Judge J. William Ditter, Jr. of the U.S. District Court for the Eastern District of Pennsylvania (i) denied the Defendant's motion for summary judgment and granted the Plaintiffs' motion for summary judgment. The Defendant does business as Merchant Lynx Services. In the late summer of 2015, Joseph P. Cattie, the owner of Liberty and Eighth Street Salad, Inc., was approached by Mike Lisetski, a sales representative of Merchant Lynx. Lisetski proposed that Cattie use Lynx to process his credit card services. After receiving information about Cattie's current credit card costs, Lisetski prepared a written analysis that showed Cattie how a switch to Lynx would save Cattie money -- basically, there would be a flat rate fee of 1.99% on all Visa, Master Card, and Discover transactions and two small monthly fees, but Lisetski assured Cattie no additional fees would be charged throughout the life of the contract. Cattie agreed to make the switch and without reading it, on Aug. 10, 2015, signed a four-page application that included by reference a voluminous Program Guide and Cattie's acknowledgment that he had received a copy. Neither Lisetski nor Mitchell Reisbcrg, Lisetski's boss who was present for one of the meetings with Cattie, ever mentioned the Program Guide or gave a copy to Cattie. In fact, the Program Guide had never been mentioned during their training, nor had Lisetski or Reisberg ever seen a copy of it. The Program Guide's terms allowed Lynx to charge Cattie additional fees and Lynx did so despite Cattie's objections. The case comes before the Court on cross-motions for summary judgment. In essence the Defendant asks the Court to find that its contract of adhesion governed the business conduct of the parties. The Plaintiffs seek a ruling that the contract never became effective and that an implied contract should be found, together with its terms, from the parties' conduct. Judge Ditter denied the Defendant's motion for summary judgment and granted the Plaintiffs' motion for summary judgment. First, he reminded the parties that his findings and conclusions apply to both Liberty and Eighth Street. Second, he denied Lynx's motion for summary judgment on its claim that the parties entered into an express written contract. He found find that there was an implied contract with the terms set forth. Third, Liberty's claims for unjust enrichment (Count two), fraud (Count five), and a breach of an implied covenant (Count three) are denied. The Judge's explicit instruction to the parties was to conduct discovery and briefing on the narrow issue of whether there was a written contract or an implied contract, and if the latter, its terms. In short, Lynx's motion is premature. An appropriate order follows. A full-text copy of the Court's Sept. 21, 2018 Memorandum and Order is available at https://is.gd/jws0tW from Leagle.com. LIBERTY SALAD, INC. & 18TH STREET SALAD, INC., ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs, represented by KENNETH J. GRUNFELD -- kgrunfeld@golombhonik.com -- GOLOMB & HONIK PC., DAVID J. STANOCH -- dstanoch@golombhonik.com -- GOLOMB & HONIK, P.C. & RICHARD M. GOLOMB -- rgolomb@golombhonik.com -- GOLOMB & HONIK. GROUNDHOG ENTERPRISES, INC., doing business as MERCHANT LYNX SERVICES, Defendant, represented by ANDREW H. RALSTON, Jr. -- ralstona@whiteandwilliams.com -- White and Williams LLP, EDWARD M. KOCH -- kgrunfeld@golombhonik.com -- WHITE AND WILLIAMS LLP & NELSON E. CANTER -- ncanter@mclaughlinstern.com -- CANTER LAW FIRM PC. GUEST SERVICES: West Files Suit Asserting ADA Violation ------------------------------------------------------- A class action lawsuit has been filed against Guest Services, Inc. The case is styled as Mary West on behalf of herself and all others similarly situated, Plaintiff v. Guest Services, Inc. doing business as: Bear Mountain Inn, Defendant, Case No. 1:18-cv-09604 (S.D. N.Y., Oct. 19, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Guest Services, Inc. is a hospitality management company in the United States. It offers food, lodging, and leisure services across various client sites, including government and business dining facilities, museums, hotels, resorts, conference centers, luxury condominiums, senior living centers, health care systems, state and national parks, school and university dining facilities, specialty retail stores, and full-service restaurants.[BN] The Plaintiff is represented by: C.K. Lee, Esq. Lee Litigation Group, PLLC 30 East 39th Street 2nd Floor New York, NY 10016 Phone: (212) 465-1188 Fax: (212) 465-1181 Email: cklee@leelitigation.com HUNTINGTON MEMORIAL: 2 Law Firms File Sexual Assault Case --------------------------------------------------------- Lieff Cabraser Heimann & Bernstein, LLP and Sauder Schelkopf LLC have filed a class action lawsuit on behalf of women who were sexually assaulted and harassed during treatment by longtime Huntington Hospital ob/gyn Patrick Sutton. The complaint was filed by three women who allege assault and harassment by Sutton, and notes that the hospital had received numerous complaints about Sutton's behavior dating back 20 years, yet continues to allow him to practice there. Dr. Sutton has worked at Huntington Hospital since 1989. As detailed in the complaint, plaintiffs referred to as Jane Doe K.G. Jane Doe T.F., and Jane Doe B.S. allege that Sutton used his position of authority and trust to sexually abuse them and potentially thousands of other women who were patients of Dr. Sutton and Huntington Hospital. "When I started seeing recent news reports about the doctor's inappropriate treatment of other patients, I ultimately realized that standing up and speaking out is the only way to bring justice and give power to all the other women who were victimized, while at the same time forcing hospitals to put their patients first and stop harboring and even sheltering sexual predators," said Jane Doe T.F. The lawsuit further alleges that Huntington Hospital routinely disregarded complaints about Sutton's behavior, complaints that date back to the 1990s, actively and deliberately concealing Sutton's sexual abuse and continuing to grant him uncontrolled sexual access to female patients at the hospital, all to protect Huntington Hospital's reputation and income stream. "Medical institutions that recklessly place sexual predators in positions of trust and authority, empowering them with unfettered access and opportunity to molest patients, fully share the blame for the abuse and trauma that results," notes Annika K. Martin, one of the Lieff Cabraser partners who filed the class action lawsuit. "What's worse is when a trusted hospital follows up by burying complaints and covering up -- a hospital should be protecting its patients, not sexual predators." As noted in the lawsuit, the plaintiffs and other class members had no reason to suspect that Sutton was anything other than an ethical and competent physician. Sutton used his position of trust and authority to prey on his patients by conducting improper and intrusive sexual touching as well as to make inappropriate and sexually harassing comments during exams. "This is absolutely unacceptable conduct toward vulnerable, trusting patients in a medical setting," states attorney Joe Sauder of Sauder Schelkopf, who also represents the plaintiffs. "Our clients have been empowered to speak about this abuse and mistreatment, and we look forward to making sure their voices will finally be heard." As alleged in the complaint, Huntington Hospital began to receive complaints about Sutton's behavior in the late 1990s -- complaints that continued for the next several decades. But the Hospital failed to take any action in response to the complaints, continuing to employ and even promote Sutton. The complaint further alleges that instead of taking disciplinary or other action such as terminating Sutton's employment in response to the myriad complaints against him, Huntington continued to protect Sutton and continually provide him with full access to new and existing patients. "Dr. Sutton should never have been allowed to continue as an OB-GYN for decades in the face of all the complaints," stated Jane Doe K.G. "The hospital, some administrators, the state medical board, someone, should have stopped him from continuing to sexually harass and abuse his patients. I hope that my role in this case will provide me and other patients with some closure." About Sauder Schelkopf LLC Sauder Schelkopf LLC is a nationally recognized class action and personal injury law firm. The firm's partners have been selected by the National Trial Lawyers Association as some of the Top 100 Trial Lawyers in Pennsylvania since 2012. As former state prosecutors, the attorneys at Sauder Schelkopf have significant experience investigating and aggressively prosecuting hundreds of sexual assault cases on behalf of victims of all ages. About Lieff Cabraser Heimann & Bernstein, LLP Recognized as "one of the nation's premier plaintiffs' firms" by The American Lawyer, Lieff Cabraser Heimann & Bernstein, LLP is a seventy-plus attorney law firm with offices in San Francisco, New York, Nashville, and Seattle. Since our founding 46 years ago in 1972, Lieff Cabraser has litigated and resolved hundreds of class action lawsuits and thousands of individual cases, including the successful representation of thousands of women across America in class action lawsuits involving gender discrimination and in individual lawsuits due to the injuries they suffered from defective medical devices and defective prescription drugs. [GN] INDUSTRIAL COMMERCIAL: Caro Sues Over Unpaid Minimum and OT Wages ----------------------------------------------------------------- ANDREW CARO, as an individual and on behalf of all others similarly situated v. INDUSTRIAL COMMERCIAL SYSTEMS, INC., a California corporation; and DOES 1 through 100, inclusive, Case No. 37-2018-00051052-CU-OE-CTL (Cal. Super., San Diego Cty., October 9, 2018), arises from the Defendants' alleged failure to pay their employees all minimum and overtime wages, as well as meal and rest period premium wages. The Defendants did (and continue to do) business by specializing in industrial and commercial mechanical systems by delivering innovative design and construction services to some of California's leading companies. Specifically, among other things, the Defendants repair HVAC units and boilers. The Plaintiff does not know the true names or capacities of the Doe Defendants.[BN] The Plaintiff is represented by: Scott M. Lidman, Esq. Elizabeth Nguyen, Esq. Milan Moore, Esq. LIDMAN LAW, APC 222 N. Sepulveda Blvd., Suite 1550 El Segundo, CA 90245 Telephone: (424) 322-4772 Facsimile: (424) 322-4775 E-mail: slidman@lidmanlaw.com enguyen@lidmanlaw.com mmoore@lidmanlaw.com - and - Paul K. Haines, Esq. HAINES LAW GROUP, APC 222 N. Sepulveda Blvd., Suite 1550 El Segundo, CA 90245 Telephone: (424) 292-2350 Facsimile: (424) 292-2355 E-mail: phaines@haineslawgroup.com JACK RESNICK: Violates Disabilities Act, Fischler Says ------------------------------------------------------ A class action lawsuit has been filed against Jack Resnick & Sons, Inc. The case is styled as Brian Fischler individually and on behalf of all other persons similarly situated, Plaintiff v. Jack Resnick & Sons, Inc., Defendant, Case No. 1:18-cv-09713 (S.D. N.Y., Oct. 22, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Jack Resnick & Sons, Inc. owns, builds, leases, and manages residential, retail, and commercial office properties in New York.[BN] The Plaintiff is represented by: Douglas Brian Lipsky, Esq. Lipsky Lowe LLP 630 Third Avenue Fifth Floor New York, NY 10017 Phone: (212) 392-4772 Fax: (212) 444-1030 Email: doug@lipskylowe.com JERICHO RESTAURANT: Pollier Files FLSA Suit in E.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Jericho Restaurant Associates LLC, et al. The case is styled as Kristal Pollier, Joanna Castaldo on behalf of themselves and others similarly situated, Plaintiffs v. Jericho Restaurant Associates LLC, d/b/a RARE650, Smith Steakhouse LLC, d/b/a Insignia Steakhouse, One North 106 LLC, d/b/a One North Restaurant, Melville Steakhouse LLC, d/b/a Blackstone Steakhouse, Scotto, LLC, Arthur Viana, Anthony Scotto, Defendants, Case No. 9:18-cv-05856 (E.D. N.Y., Oct. 19, 2018). The Plaintiff filed the case under the Fair Labor Standards Act. Rare650 is a Long Island prime steakhouse & sushi restaurant Located in Syosset, featuring prime-aged steaks and an award-winning wine list. Insignia Steakhouse is the newest fine dining restaurant from Anthony Scotto. Following in the tradition of Blackstone and Rare650 – Insignia redefines the traditional steakhouse by offering a dining experience with a taste and flair all its own. One North is a casual dining/sports themed restaurant whose focus is quality food, personalized service and to create an exciting environment for customers. Blackstone Steakhouse is a Long Island Steakhouse located in Melville, New York.[BN] The Plaintiffs appear pro se. JUST BORN: Dentons Attorneys Discuss Slack Fill Suit Ruling ----------------------------------------------------------- Michael Duvall, Esq., Bety Javidzad, Esq., Anastasiya Menshikova, Esq., and Gregory Wolf, Esq., of Dentons, in an article for JDSupra, report that a Missouri federal judge recently denied certification of a proposed "slack fill" class action against the maker of "Mike and Ike" candy. The suit claimed that candy company Just Born, Inc. tricked consumers into thinking they were getting more product than they actually paid for by virtue of empty space ("slack fill") at the top of the boxes when they are opened. The court, however, held that because many putative class members knew and did not care about the extra space in the box and purchased the products anyway, individualized issues of knowledge, injury, and standing would predominate the action. In White v. Just Born, Inc., 2018 WL 3748405 (W.D. Mo. Aug. 7, 2018), the plaintiff asserted claims under the Missouri Merchandising Practices Act (MMPA) and for unjust enrichment based on the alleged slack fill in the defendant's candy packaging. According to the plaintiff, Mike and Ike box sizes lead purchasers to believe that they are getting more candy than they actually receive. The plaintiff moved to certify multistate and Missouri classes of candy purchasers. District Judge Nanette Laughrey refused to certify the classes for a number of reasons. Primarily, Judge Laughrey reasoned that because an MMPA violation must still cause an ascertainable loss (i.e., an injury), to be redressable, determining whether putative class members knew about the alleged slack fill and purchased the products anyway was a predominating, individualized issue. Likewise, purchasers who bought the candy with knowledge of the alleged slack fill did not confer an "unjust" benefit on the defendant, rendering the unjust enrichment class unfit for class certification as well. Judge Laughrey further held that the proposed classes' inclusion of persons who purchased the candy despite knowing how much space was in each box rendered the classes impermissibly overbroad and containing persons who lacked Article III standing to sue, given the absence of injury. Judge Laughrey further noted the difficulty of identifying putative class members as most, if not all, purchases were made from third-party retailers and thus, no "master list" existed. As a result, individualized evidence of whether a putative class member made a purchase would be required. Further, whether each class member bought the candy for personal or household purposes--a requirement of the MMPA--presented predominating individualized issues as well. Judge Laughrey noted that the absence of a master listed impacted the ascertainability element. The White decision adds to the growing line of cases refusing to certify putative "slack fill" classes. See, e.g., Spacone v. Sanford, L.P., 2018 WL 4139057 (C.D. Cal. Aug. 9, 2018) (refusing to certify a statewide class and holding that the plaintiff lacked standing because he failed to establish that he suffered an injury caused by alleged improper slack fill). Just Born also successfully moved to dismiss three putative slack-fill class action cases filed in 2017, and it currently is defending another slack-fill case filed in the Central District of California. The plaintiff in White has petitioned for immediate appeal under Rule 23(f) of the Federal Rules of Civil Procedure. [GN] KANYE WEST: Challenges Class Action Over Life of Pablo Album ------------------------------------------------------------ Chris Cooke, writing for Complete Music Update, reports that while Kanye West was busying doing all of those Kanye West-esque things that Kanye West does whenever there's a new Kanye West album to promote, he also found time to submit some legal papers in relation to an ongoing lawsuit over the way he promoted a previous record. This is the super fun litigation that stemmed from West's Twitter pledge in 2016 that his album 'The Life Of Pablo' "will never, never, never be on Apple" and that "you can only get it on Tidal". In the end Jay-Z's streaming service only had an exclusive on the LP for six weeks, it subsequently popping up everywhere else. Although the record had evolved a little during Tidal's exclusive period. Even though Tidal's exclusivity on 'The Life Of Pablo' was short lived, it provided quite a boost in sign-ups to its free trials. But one such new subscriber -- Justin Baker-Rhett -- was mightily pissed off when, despite West's "never, never" remark, it turned out he didn't in fact need to sign up to Tidal to hear the new record. He then sued claiming that the rapper and his streaming service partner had deliberately misled consumers with the "never, never" claim. When filing the lawsuit back in 2016, Baker-Rhett's lawyer told reporters that West and Jay-Z had "duped consumers into signing up for Tidal subscriptions -- which required handing over troves of valuable personal data including credit card information -- under the false pretence that doing so was the only way they would be able to hear 'The Life Of Pablo'. Consequently, Tidal unjustly benefitted in myriad ways from this collection of consumers' personal data and the accompanying increase in its subscriber and streaming numbers". The lawsuit, which has always seemed somewhat ambitious, got bounced from California to New York and was then trimmed down to size. However, earlier this year a judge ruled that Baker-Rhett's core allegation -- that he was misled into signing up for Tidal by West's "never, never" tweet -- could proceed to court. The latest developments in this case relate to efforts by the Baker-Rhett side to have the litigation declared a class action, so that anyone who signed up to Tidal to access 'The Life Of Pablo' after West's "never, never" tweet could benefit if the lawsuit is successful. In a legal filing, the West side argued that this case is too complicated to be granted class action status, because the motivations of each potential class member would have to be individually assessed. Which is to say, did each person who signed up to Tidal to access 'Pablo' actually do so because of West's "never, never" remark. Did they even see the tweet? And even if they did, maybe they were aware via other coverage at the time that Tidal's exclusive was temporary, meaning they signed up because they wanted to be among the first to hear the new music. With all that in mind, this particular lawsuit should only relate to Baker-Rhett's Tidal subscription, they reckon, so that the court can consider his specific motivations when signing up for the free trial after West's tweet. It remains to be see what the judge reckons. [GN] KISS MY FACE: Court Narrows Claims in Gasser TAC Suit ----------------------------------------------------- In the case, ANDREW GASSER, et al., Plaintiffs, v. KISS MY FACE, LLC, Defendant, Case No. 17-cv-01675-JSC (N.D. Cal.), Magistrate Judge Jacqueline Scott Corley of the U.S. District Court for the Northern District of California granted in part and denied in part the Defendant's motion to dismiss the Plaintiffs' third amended complaint ("TAC"). The Plaintiffs allege that the Defendant's representations on its products' labels are likely to deceive a reasonable consumer into thinking the products do not contain any synthetic ingredients. On April 24, 2018, the Plaintiff filed its TAC, bringing eight claims: (1) California's Consumer Legal Remedies Act, (2) California's Unfair Competition Law, (3) California's False Advertising Law, (4) New York's Deceptive Acts or Practices, (5) New York's False Advertising Law, (6) breach of express warranty, (7) unjust enrichment, and (8) fraud. On July 16, 2018, Defendant filed the instant motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6). Pursuant to Rule 12(b)(6), the Defendant moves to dismiss the Plaintiffs': (a) Body Wash claims; (b) Body Lotion claims; (c) Sunscreen claims; and (d) breach of express warranty, unjust enrichment, and fraud claims. Pursuant to Rule 12(b)(2), it moves to dismiss all claims as to the putative nationwide class of consumers for lack of personal jurisdiction. Magistrate Judge Corley (1) granted the Defendant's motion for judicial notice of the exhibit attached to the Paffrath Declaration; (2) denied the Defendant's motion for judicial notice of the exhibits attached to the Halpern Declaration; and (3) granted in part and denied in part the Defendant's Motion to Dismiss the TAC. The Magistrate Judge (1) denied the Defendant's motion to dismiss for lack of personal jurisdiction; (2) granted the Defendant's motion to dismiss the Plaintiffs' Body Wash claims without leave to amend; (3) denied Defendant's motion to dismiss the Plaintiffs' Body Lotion claims; (4) denied the Defendant's motion to dismiss the Plaintiffs' Sunscreen claims; and (5) denied the Defendant's motion to dismiss the Plaintiffs' nationwide unjust enrichment, breach of express warranty, and fraud claims. She finds that while the Court took judicial notice of the website attached to the Declaration of Stephen Paffrath, it cannot take judicial notice that the content of the website is true. Thus, on this motion to dismiss, the Magistrate must accept as true Plaintiffs' allegation that caprylic/capric triglyceride is a synthetic ingredient that "nourishes." Whether the evidence will support that allegation is an issue for summary judgment. Relying on the exhibits attached to the Declaration of Heather Halper, as well as her declaration testimony, the Defendant contends that its product labels contradict the Plaintiffs' claims. In particular, it argues that the only synthetic ingredient in its Body Wash products is phenoxyethanol—a preservative rather than an active or "nourishing" ingredient. The Plaintiffs respond that the Defendant appears to be correct when it states that butyloctyl salicylate and caprylic/capric triglyceride were not included in the Body Wash products. Rather, they respectfully stand by their position that the presence of phenoxyethanol and ethylhexylglcyerin supports their claims, and do not seek reconsideration of the Court's prior ruling on that issue, but instead reiterate their position here only to preserve the issue for appeal. Accordingly, the Magistrate Judge granted the Defendant's motion to dismiss the Body Wash Claims without leave to amend, but preserving the Plaintiffs' argument that the Court incorrectly ruled that the presence of the preservative alone would not deceive a reasonable consumer. A full-text copy of the Court's Sept. 21, 2018 Order is available at https://is.gd/aBrh7C from Leagle.com. Andrew Gasser, on behalf of himself and all others similarly situated, Plaintiff, represented by Joel Dashiell Smith -- jsmith@bursor.com -- Bursor & Fisher, P.A., Lawrence Timothy Fisher -- ltfisher@bursor.com -- Bursor & Fisher, P.A., Reuben D. Nathan -- rnathan@nathanlawpractice.com -- Nathan & Associates, APC & Yeremey O. Krivoshey -- ykrivoshey@bursor.com -- Bursor Fisher, P.A. Noriko Ikeda & Melinda Kelly, Plaintiffs, represented by Reuben D. Nathan, Nathan & Associates, APC & Joel Dashiell Smith, Bursor & Fisher, P.A. Kiss My Face, LLC, Defendant, represented by Angela Lee Diesch -- angela@dieschforrestlaw.com -- Diesch Forrest, APC, Emma Lynn Forrest -- emma@dieschforrestlaw.com -- Diesch Forrest, APC & Stephen Edward Paffrath -- stephen@dieschforrestlaw.com -- Diesch Forrest APC. LEAF COMMERCIAL: Alves Sues Over Illegal Telemarketing Calls ------------------------------------------------------------ Terri Alves, individually and on behalf of all others similarly situated, Plaintiff, v. Leaf Commercial Capital, Inc. and Does 1 through 10, inclusive, Defendant, Case No. 18-cv-08383 (C.D. Cal., September 28, 2018), seeks injunctive relief, statutory damages, treble damages and all other relief under the Telephone Consumer Protection Act. Leaf Commercial Capital, Inc. is realtor equipment financing company. Alves received calls from Leaf using an automatic telephone dialing system offering its services. [BN] Plaintiff is represented by: Todd M. Friedman, Esq. Meghan E. George, Esq. Adrian R. Bacon, Esq. Tom E. Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St. Suite 780, Woodland Hills, CA 91367 Phone: (877) 206-4741 Fax: (866) 633-0228 Email: tfriedman@toddflaw.com mgeorge@toddflaw.com abacon@toddflaw.com twheeler@toddflaw.com LOGITECH INC: Appeals Dist. Ct. Order in Porath Suit to 9th Cir. ---------------------------------------------------------------- Defendant Logitech, Inc., filed an appeal from a court ruling in the lawsuit styled JAMES PORATH, individually and on behalf of all others similarly situated v. LOGITECH, INC., Case No. 3:18-cv-03091-WHA, in the U.S. District Court for the Northern District of California. The Defendant filed a petition for a writ of mandamus to the District Court. The appellate case is captioned as IN RE LOGITECH INC., Petitioner v. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO, Respondent, JAMES PORATH, individually and on behalf of all others similarly situated, Real Party in Interest, Case No. 18-72732, in the United States Court of Appeals for the Ninth Circuit. According to the Petition, both parties to this false-advertising class action agree that it should be settled, and settled now. Petitioner Logitech Inc. says it has already begun the process of revising the advertisements that gave rise to the lawsuit, and has told Plaintiff James Porath that it is committed to finalizing a class settlement that will make all similarly affected purchasers whole. At present, however, the parties are required to continue litigating the case on an adversarial basis, even though they both want to end it, Logitech contends. The Hon. William H. Alsup of the District Court has entered a standing order -- as it apparently does in every putative class action -- prohibiting the parties from even discussing a class-wide settlement, let alone agreeing to one, until after the parties engage in discovery and brief class certification adversarially, and the District Court rules on the class certification motion, Logitech asserts. Logitech contends that the Order cannot stand because it infringes the parties' First Amendment rights to communicate with one another and to seek relief from the court. The Order runs contrary to well-established judicial policy favoring the settlement of disputes, particularly class actions, and the settlement ban is not necessary to serve the District Court's stated purpose of weeding out "collusive" class actions, Logitech argues. Hence, Logitech asserts, the Appeals Court should issue a writ of mandamus ordering the District Court to permit the parties to pursue settlement negotiations immediately.[BN] Defendant-Petitioner Logitech Inc. is represented by: Dale J. Giali, Esq. Keri Borders, Esq. MAYER BROWN LLP 350 South Grand Avenue, 25th Floor Los Angeles, CA 90071 Telephone: (213) 229-9500 Facsimile: (213) 625-0248 E-mail: dgiali@mayerbrown.com kborders@mayerbrown.com - and - Donald M. Falk, Esq. MAYER BROWN LLP 3000 El Camino Real #300 Palo Alto, CA 94306 Telephone: (650) 331-2000 Facsimile: (650) 331-2060 E-mail: dfalk@mayerbrown.com Plaintiff James Porath is represented by: Todd M. Logan, Esq. Rafey Sarkis Balabanian, Esq. EDELSON PC 123 Townsend Street, Suite 100 San Francisco, CA 94107 Telephone: (415) 212-9300 Facsimile: (415) 373-9435 E-mail: tlogan@edelson.com rbalabanian@edelson.com MARK HOTEL: Breeze Files Civil Rights Suit in New York Ct. ---------------------------------------------------------- A class action lawsuit has been filed against Mark Hotel LLC asserting civil rights violation. The case is styled as Byron Breeze, Jr. on behalf of himself, and all similarly situated individuals, Plaintiff v. Mark Hotel LLC a New York limited liability company, Defendant, Case No. 1:18-cv-09627 (S.D. N.Y., Oct. 19, 2018). The Mark Hotel is a luxury hotel, situated at 25 East 77th Street, at Madison Avenue, on the Upper East Side of Manhattan, New York City. Originally constructed in 1927 in the Renaissance Revival style, the building was purchased by Izak Senbahar of Alexico Group and Simon Elias in 2006 and the building's interiors were reimagined by French designer Jacques Grange in 2009.[BN] The Plaintiff appears pro se. MASTEC INC: Sued for Allegedly Docking Employee Wages ----------------------------------------------------- Alison Noon, writing for Law360, reports that DirecTV's largest installation partner, MasTec Inc., was hit with a class action on Oct. 9 claiming the Florida-based service provider docks employee wages when customers complain about technical glitches to DirecTV. [GN] MICHIGAN: State Supreme Court Hears UIA Fraud Class Action ---------------------------------------------------------- Carol Thompson, writing for Lansing State Journal, reports that neither party in the Michigan Supreme Court hearing room on Oct. 10 disagreed over whether a faulty computer system wrongfully accused thousands of state residents of defrauding the Unemployment Insurance Agency. At issue instead was whether a lawsuit filed over the fines that followed those accusations hit the courthouse on time. Roughly 40,000 Michigan residents were accused of insurance fraud by a defective computer program -- the Michigan Integrated Data Automated System, known as MiDAS -- which the UIA used from 2013 to 2015. The state has previously acknowledged MiDAS had a 93% error rate. Those errors led to lost benefits, fines, garnished wages and seized tax returns. Some residents declared bankruptcy, lost property and were denied jobs as a result of the broken computer system, attorneys said. Attorneys for the UIA and unemployment recipients appeared before the court on Oct. 10 to argue the timeliness of a lawsuit filed by three men -- Grant Bauserman, Karl Williams and Teddy Broe -- who contend they were denied their due process rights because their money was seized without an opportunity to plead their cases. Under Michigan law, the plaintiffs had six months to file such due process claims. Attorneys disagreed on when that six-month period started. If the clock started ticking when payments were seized, as the plaintiffs argue, the case was filed on time. If it started when the state sent notices about fraud and possible seizure, as the state contends, the case was late. The case's original plaintiff, Mr. Bauserman, "did everything the agency told him to do" to appeal the wrongful fraud claim and his tax returns were still seized, attorney Jennifer Lord said. Mr. Bauserman received unemployment benefits in late 2013 and early 2014, court records state. He was notified in late 2014 that the UIA's MiDAS system had accused him of fraud. He wrote a letter of appeal shortly after. A few months later, the UIA seized his state and federal income taxes, Lord said. She argued that was the moment the damage was done and the 6-month window to file a case started. Lord contended her clients couldn't have sued before the seizures because the court would have found their lawsuits premature. They had to lose property before they could have a case. "These tens of thousands of people are in a position where they're damned if they do and damned if they don't," she said. Michigan Solicitor General Aaron Lindstrom disagreed. He contended those thousands should have filed claims when they were told they would be penalized, not when the penalties were actually collected. They could have filed notices of intent to sue by the deadline and full-fledged complaints later on, he said. A strict timeline encourages people to act on their claims quickly, Lindstrom said. It also helps state officials keep find and fix problems with agencies or programs. Justice Bridget Mary McCormack questioned whether starting the clock with the notice would open up the state to more lawsuits. She gave an example -- since her identity was stolen five years ago, she gets annual letters at tax time accusing her of owing more than she really does. "Are you saying I can now file a lawsuit every time I get that letter?" she asked Lindstrom. Justice McCormack and her fellow justices are charged with determining whether the Michigan Court of Appeals was correct in its ruling last July, when it sided with the UIA and agreed the suit was filed too late. The appeals court reversed the Court of Claims' May, 2016 decision in favor of the plaintiffs that denied the state's motion to dismiss the case. The state case isn't the only ramification of the years-long MiDAS debacle. Former UIA director Sharon Moffett-Massey was re-assigned early last year, about a month before the state settled a federal lawsuit over the faulty program instituting changes aimed at safeguarding future fraud claims. The state has returned about $21 million to approximately 20,000 people, UIA spokesman Chris DeWitt said on Oct. 10. Lord argued the figure doled out so far is smaller and said "the vast majority" of claimants haven't received any reimbursements. If the case is remanded back to the Court of Claims, attorneys' first move will be to certify it as a class action suit, that could include between 20,000 and 30,000 people affected by the faulty MiDAS program, Lord said. In a press release sent on Oct. 9, Attorney General Bill Schuette described the hearing as a difficult one. He blamed the computer system for failing Michigan. "It is my responsibility to defend all of Michigan's laws, whether I personally agree or not, and regardless of whether the law is a good one," he said. [GN] MILBERG LLP: Supreme Court Refuses to Review Class Action --------------------------------------------------------- Cara Bayles, writing for Law360, reports that the U.S. Supreme Court on Oct. 9 declined to review a putative class action suing Milberg LLP over an allegedly botched securities suit, upholding a Ninth Circuit ruling. [GN] MORTON COUNTY, ND: Thunderhawk Files Civil Rights Class Action -------------------------------------------------------------- A civil rights class action has been filed against officials of the County of Morton, in North Dakota. The case is styled as Cissy Thunderhawk, Waste'Win Young, Reverend John Floberg on behalf of themselves and all similarly-situated persons, Plaintiffs v. Morton, County of, North Dakota, Sheriff Kyle Kirchmeier, Governor Doug Burgum, Former Governor Jack Dalrymple, Director Grant Levi, Superintendent Michael Gerhardt, Jr., Tigerswan LLC, Does 1 to 100, Defendants, Case No. 1:18-cv-00212-CSM (D. N.D., Oct. 19, 2018). Morton County is a county located in the U.S. state of North Dakota. As of the 2010 census, the population was 27,471, making it the seventh-most populous county in North Dakota. Its county seat is Mandan. The county was originally created in 1873 and later organized in 1878. TigerSwan LLC provides global instability, operational risk management, training, logistics, crisis management, business intelligence, and security consulting services for military, law enforcement, and corporate organizations in the United States.[BN] The Plaintiffs are represented by: Noah Smith-Drelich, Esq. 3431 A Pestalozzi Street St. Louis, MO 63118 Phone: (605) 863-0707 Email: noah.smith.drelich@gmail.com - and - Bernard E Harcourt, Esq. Columbia University 435 West 116th Street, Suite 603 New York, NY 10027 Phone: (212) 854-1997 Email: beh2139@columbia.edu Columbia Law School MPM ENTERPRISES: Violates ADA, Nixon Suit Claims ------------------------------------------------ A class action lawsuit has been filed against Mpm Enterprises, Inc. The case is styled as Donald Nixon on behalf of himself and all others similarly situated, Plaintiff v. Mpm Enterprises, Inc., Defendant, Case No. 1:18-cv-05862 (E.D. N.Y., Oct. 19, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. MPM Enterprises, Inc. is in the grocery Stores, independent business.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Phone: (516) 807-1748 Email: jonathan.shalom25@gmail.com NATIONAL FOOTBALL: Treviso Appeals Order in Herrick to 6th Cir. --------------------------------------------------------------- Plaintiff Carmelo Treviso filed an appeal from a court ruling in the lawsuit titled Greg Herrick v. National Football League, et al., Case No. 5:17-cv-00472, in the U.S. District Court for the Northern District of Ohio at Akron. As previously reported in the Class Action Reporter, the putative class action takes aim at an unsafe football field, a cancelled preseason game, and over a million dollars in alleged consumer class damages. The 2016 Pro Football Hall of Fame preseason game between the Green Bay Packers and Indianapolis Colts was scheduled to take place on August 7, 2016. But due to compromised painting of logos and other markings on the turf, the field was deemed unsafe and unplayable. That call, and the related call to scrap the game entirely, was made, according to filings in the case, at 5:00 p.m. on the day of the game. Fans attending the game, however, were allegedly intentionally kept in the dark and were not informed of the game's cancellation until three hours later. In the meantime, fans purportedly were ushered into the stadium and encouraged to buy food, drinks, and merchandise. The Plaintiff, on behalf of himself and "thousands" of putative class members, now seeks to recover not only the cost of the tickets, but also related out-of-pocket incidentals, such as travel and lodging expenses. The appellate case is captioned as In re: Carmelo Treviso, Case No. 18-316, in the United States Court of Appeals for the Sixth Circuit.[BN] Plaintiff-Petitioner CARMELO TREVISO, individually and on behalf of all other similarly situated, is represented by: Michael J. Avenatti, Esq. GREEN, BROILLET, PANISH & WHEELER LLP 100 Wilshire Boulevard, 21st Floor Santa Monica, CA 90401-1162 Telephone: (310) 576-1200 E-mail: mavenatti@eaganavenatti.com - and - Romney B. Cullers, Esq. THE BECKER LAW FIRM 1301 E. Ninth Street, Suite 1000 Cleveland, OH 44114-0000 Telephone: (216) 241-2466 E-mail: rcullers@beckerlawlpa.com Defendant-Respondent NATIONAL FOOTBALL LEAGUE is represented by: R. Thaddeus Behrens, Esq. HAYNES AND BOONE, LLP 2323 Victory Avenue, Suite 700 Dallas, TX 75219 Telephone: (214) 651-5000 E-mail: thad.behrens@haynesboone.com - and - Jonathan D. Pressment, Esq. HAYNES AND BOONE, LLP 30 Rockefeller Plaza, 26th Floor New York, NY Telephone: (212) 918-8961 E-mail: jonathan.pressment@haynesboone.com - and - Kerri L. Keller, Esq. Paul Anthony Rose, Esq. BROUSE MCDOWELL, A LEGAL PROFESSIONAL ASSOCIATION 388 S. Main Street, Suite 500 Akron, OH 44311 Telephone: (330) 535-5711 E-mail: kkeller@brouse.com prose@brouse.com - and - David Sporar, Esq. BROUSE MCDOWELL, A LEGAL PROFESSIONAL ASSOCIATION 600 Superior Avenue, E., Suite 1600 Cleveland, OH 44114 Telephone: (216) 830-6830 E-mail: dsporar@brouse.com - and - Joseph J. Pasquarella, Esq. KRUGLIAK, WILKINS, GRIFFITHS & DOUGHERTY CO., L.P.A. P.O. Box 36963 Canton, OH 44735 Telephone: (330) 497-0700 E-mail: jpasquarella@kwgd.com Defendant-Respondent NATIONAL FOOTBALL MUSEUM, INC., dba Pro Football Hall of Fame, is represented by: Aletha M. Carver, Esq. Amanda M. Connelly, Esq. Joseph J. Pasquarella, Esq. James Matthew Williams, Esq. KRUGLIAK, WILKINS, GRIFFITHS & DOUGHERTY CO., L.P.A. P.O. Box 36963 Canton, OH 44735 Telephone: (330) 497-0700 E-mail: acarver@kwgd.com aconnelly@kwgd.com jpasquarella@kwgd.com jwilliams@kwgd.com NISSAN NORTH: Court Extends Lohr Class Certification Deadlines -------------------------------------------------------------- In the case, TAMARA LOHR and RAVIKIRAN SINDOGI, on behalf of themselves and all others similarly situated, Plaintiffs, v. NISSAN NORTH AMERICA, INC., and NISSAN MOTOR CO., LTD., Defendants, Case No. 2:16-cv-01023-RSM (W.D. Wash.), Judge Ricardo S. Martinez of the U.S. District Court for the Western District of Washington, Seattle, has issued an order extending the class certification deadlines. The proposed class action involves allegations that panoramic sunroofs installed in seven models of Nissan vehicles suffer from a uniform defect. Nissan denies these allegations. On July 16, 2017, the Court adopted its first scheduling order based on dates the parties proposed in a Joint Status Report. That Order set class-related deadlines beginning with a May 25, 2018, deadline for the Plaintiffs' motion for class certification and expert disclosures. On March 28, 2018, the Court amended the scheduling order following a joint request from the parties premised on the status of document collection, review, and production. The amended schedule set class-related deadlines beginning with a Dec. 3, 2018, deadline for the Plaintiffs' motion for class certification and expert disclosures. The parties have engaged in written discovery, document production, and third-party discovery. They respectfully request an extension of the deadlines in the case. They've worked diligently and amicably to resolve issues regarding the scope of discovery, production of electronically stored information, the terms of the Stipulated Protective Order, and the coordination of the matter with a related case filed in the Northern District of California, Sherida Johnson et. al. v. Nissan N. Am., Inc., et al., Case No. 3:17-cv-00517 (N.D. Cal. Filed Feb. 1, 2017). One particular challenge has been the scheduling of the deposition of a witness from Japan-based Nissan Motor Company, Ltd. ("NML"), which is a named-but-unserved defendant in the Lohr case. The parties have agreed through a stipulation entered in the Johnson case (in which NML is also unserved) that certain discovery to NML may be served on counsel for NNA, and further that such discovery may be used by the Plaintiffs in both Lohr and Johnson. The NML deponent, however, is unavailable for deposition until Nov. 8, 2018. The current Lohr deadline of Dec. 3, 2018 for the Plaintiffs to file their class certification papers and expert reports is now highly compressed. The parties have coordinated with the counsel in Johnson, and the proposed extension of deadlines, if entered, would place both Lohr and Johnson on the same track for class briefing, class-related expert reports, and class-related expert depositions. For these reasons, they stipulated and agreed, and Judge Martinez approved that the scheduling order in the case is amended as follows: Event Current Deadline Proposed Deadline Deadline for Plaintiffs to file Dec. 3, 2018 Jan. 15, 2019 motion for classcertification and to serve expert disclosures and reports: Deadline for Plaintiffs to Jan. 11, 2019 Feb. 26, 2019 produce experts for deposition Deadline for NNA to file Feb. 13, 2019 April 2, 2019 opposition to motion for class certification and to serve expert disclosures and reports Deadline for NNA to produce March 6, 2019 April 23, 2019 experts for deposition Deadline to file reply March 18, 2019 May 14, 2019 regarding Motion for Class Certification A full-text copy of the Court's Sept. 25, 2018 Order is available at https://is.gd/osHsAC from Leagle.com. Tamara Lohr, on behalf of herself and all others similarly situated & Ravikiran Sindogi, Plaintiffs, represented by Beth E. Terrell -- bterrell@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC, Charles J. Crueger -- cjc@cruegerdickinson.com -- CRUEGER DICKINSON LLC, pro hac vice, Edward A. Wallace -- eaw@wexlerwallace.com -- WEXLER WALLACE LLP, pro hac vice, Erin Dickinson -- ekd@cruegerdickinson.com -- CRUEGER DICKINSON LLC, pro hac vice, Gregory F. Coleman -- greg@gregcolemanlaw.com -- GREG COLEMAN LAW PC, pro hac vice, Lisa A. White -- lisa@gregcolemanlaw.com -- GREG COLEMAN LAW PC, pro hac vice, Mark E. Silvey, GREG COLEMAN LAW PC, pro hac vice, Amanda M. Steiner -- ASteiner@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC & Benjamin Drachler -- bdrachler@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC. Nissan North America, Inc, Defendant, represented by Amir Nassihi -- anassihi@shb.com -- SHOOK, HARDY & BACON LLP, pro hac vice, Andrew L. Chang -- achang@shb.com -- SHOOK, HARDY, & BACON LLP, pro hac vice, Holly Pauling Smith -- hpsmith@shb.com -- SHOOK HARDY & BACON, pro hac vice, William R. Sampson -- wsampson@shb.com -- SHOOK HARDY & BACON LLP, pro hac vice & Heather A. Hedeen -- hhedeen@shb.com -- SHOOK HARDY & BACON. NUDGE LLC: Class Certification Bid Filing Due Gets 90-Day Extension ------------------------------------------------------------------- In the case, JUST US REALTORS, LLC, on Behalf of Itself and All Others Similarly Situated, Plaintiff, v. NUDGE, LLC, BUYPD, LLC, INCOME PROPRTY USA, LLC et al., Defendants, Case No. 2:18-cv-128 TC (D. Utah), Magistrate Judge Brooke C. Wells of the U.S. District Court for the District of Utah, Central Division, granted in part the Plaintiff's motion for an order amending the Memorandum Decision and Order Granting Motion for Extension of Time to File Motion for Certification. In that order, the Court weighed the need for determining whether to certify an action as a class action at an early practicable time, against the drawback of making that decision prematurely. It found that efficiencies will be gained in the instant case by postponing the class certification decision until after the motions to dismiss are decided. Based on the language in that order, the parties disagree as to the deadline for filing a motion for certification. The Plaintiff seeks a revised order expressly stating that the due date of filing for filing the class certification motion will be determined in connection with a pretrial scheduling process after this Court rules on the pending motions to dismiss and pursuant to DUCivR 16-1, whereby the appropriate timing for a motion for class certification may be best evaluated and determined in light of the posture of the case and scope of the class claims. The Defendants strongly oppose any open-ended undefined extension. The Court once again agrees that the extension should not be open-ended. Based upon the reasoning found in the Court's prior order, and in clarifying that order, Judge Wells intends that the deadline for a class certification motion is moved until 90 days after the pending motions to dismiss are decided. Therefore, he granted in part the Plaintiff's Motion for Extension of Time to File Motion for Class Certification. The deadline to file a motion for class certification is extended to 90 days after the pending motions to dismiss are decided. A full-text copy of the Court's Sept. 25, 2018 Memorandum Decision and Order is available at https://is.gd/01rBir from Leagle.com. Just Us Realtors, on Behalf of Itself and All Others Similarly Situated, Plaintiff, represented by Andrew W. Hutton, HUTTON LAW GROUP, Jon V. Harper -- jharper@jonharperlaw.com -- HARPER LAW PLC & M. Denise Dalton, HARPER LAW PLC. Nudge LLC, BuyPD, Income Property USA & Ryan Poelman, Defendants, represented by Graden P. Jackson -- gjackson@strongandhanni.com -- STRONG & HANNI & H. Scott Jacobson, Jr. -- sjacobson@strongandhanni.com -- STRONG & HANNI. Insiders Cash, Defendant, represented by Matthew C. Barneck -- matthew-barneck@rbmn.com -- RICHARDS BRANDT MILLER NELSON & John Edward Keiter, Jr. , RICHARDS BRANDT MILLER NELSON. Guardian Law, Defendant, represented by G. James Christiansen -- jchristiansen@goodwin.com -- GUARDIAN LAW. American Legal & Escrow, Invictus Law & Blair R. Jackson, Defendants, represented by Adam M. Pace -- amp@scmlaw.com -- SNOW CHRISTENSEN & MARTINEAU & Keith A. Call -- kcall@scmlaw.com -- SNOW CHRISTENSEN & MARTINEAU. OFF LEASE: Florida Judge Closes TCPA Class Action ------------------------------------------------- Nathan Hale, writing for Law360, reports that a Florida federal judge on Oct. 9 administratively closed a consumer class action accusing used car dealer Off Lease Only Inc. of sending unsolicited text messages in violation of the Telephone Consumer Protection Act. [GN] OPKO HEALTH: Robins Geller Files Securities Class Action -------------------------------------------------------- Robbins Geller Rudman & Dowd LLP on Oct. 8 disclosed that a class action has been commenced on behalf of purchasers of OPKO Health, Inc. ("Opko") (NASDAQ:OPK) common stock during the period between October 8, 2013 and September 7, 2018 (the "Class Period"). This action was filed in the Southern District of Florida and is captioned Camhi v. Opko Health, Inc., et al., No. 18-cv-24137. The Private Securities Litigation Reform Act of 1995 permits any investor who purchased Opko common stock during the Class Period to seek appointment as lead plaintiff. A lead plaintiff acts on behalf of all other class members in directing the litigation. The lead plaintiff can select a law firm of its choice. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from September 12, 2018. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Brian E. Cochran of Robbins Geller at 800/449-4900 or 619/231-1058, or via e-mail at djr@rgrdlaw.com. You can view a copy of the complaint as filed at http://www.rgrdlaw.com/cases/opko-health-inc/. The complaint charges Opko and its Chairman and CEO, Phillip Frost, with violations of the Securities Exchange Act of 1934. Opko is a healthcare company engaged in the diagnostics and pharmaceuticals businesses in the United States and internationally. For years, Opko has been closely associated with Frost, a prominent healthcare investor and entrepreneur, who has served as the Company's Chairman and CEO since March 2007. Frost's reputation as a successful healthcare entrepreneur was extremely valuable to Opko and of material importance to the Company's investors. The complaint alleges that throughout the Class Period, defendants made false and misleading statements and/or failed to disclose adverse information regarding Opko's business and prospects. Specifically, the complaint alleges that defendants failed to disclose that defendant Frost had participated as a central member in an illegal pump and dump scheme; that defendants Frost and Opko invested in two companies that were part of the scheme in order to enrich Frost and his associates and not to benefit Opko or the Company's shareholders; that Opko's investments in these companies were worth considerably less than represented because of defendants' involvement in the scheme; that defendant Frost had taken efforts to conceal his control over target companies in the scheme, including by falsely stating that he was acting as a passive investor in SEC filings and by concealing his concerted efforts to facilitate illegal stock manipulation with other members of the scheme; that defendant Frost had facilitated the publication of false and misleading promotional materials in order to artificially inflate the stock of target companies in the scheme; and that, as a result, Opko was subject to significant and undisclosed legal, regulatory, reputational and financial risks should defendant Frost's involvement in the scheme come to light. As a result of this information being concealed from the market, the price of Opko stock was artificially inflated to more than $19 per share during the Class Period. Then on September 7, 2018, the SEC issued a press release that named defendants Frost and Opko as key figures in the illegal pump and dump scheme. The press release stated that the SEC had "charged a group of 10 individuals and 10 associated entities for their participation in long-running fraudulent schemes that generated over $27 million from unlawful stock sales and caused significant harm to retail investors who were left holding virtually worthless stock." The press release further stated that, according to the SEC's complaint, from 2013 to 2018, "a group of prolific South Florida-based microcap fraudsters led by Barry Honig manipulated the share price of the stock of three companies in classic pump-and-dump schemes. Miami biotech billionaire Phillip Frost allegedly participated in two of these three schemes. Honig allegedly orchestrated the acquisition of large quantities of the issuer's stock at steep discounts, and after securing a substantial ownership interest in the companies, Honig and his associates engaged in illegal promotional activity and manipulative trading to artificially boost each issuer's stock price and to give the stock the appearance of active trading volume. According to the SEC's complaint, Honig and his associates then dumped their shares into the inflated market, reaping millions of dollars at the expense of unsuspecting investors." On this news, the price of Opko stock fell to $4.58 per share before trading was halted by the SEC, an 18% decline from the prior day's close. When trading resumed on September 14, 2018, the stock fell an additional 15% to close at $3.90 per share. Plaintiff seeks to recover damages on behalf of all purchasers of Opko common stock during the Class Period (the "Class"). The plaintiff is represented by Robbins Geller, which has extensive experience in prosecuting investor class actions including actions involving financial fraud. Robbins Geller -- http://www.rgrdlaw.com-- is one of the world's leading law firms representing investors in securities litigation. With 200 lawyers in 10 offices, Robbins Geller has obtained many of the largest securities class action recoveries in history. For five consecutive years, ISS Securities Class Action Services has ranked the Firm in its annual SCAS Top 50 Report as one of the top law firms in both amount recovered for shareholders and total number of class action settlements. Robbins Geller attorneys have helped shape the securities laws and recovered tens of billions of dollars on behalf of aggrieved victims. Beyond securing financial recoveries for defrauded investors, Robbins Geller also specializes in implementing corporate governance reforms, helping to improve the financial markets for investors worldwide. [GN] PCL CONSTRUCTION: $3.4MM Attys' Fees Awarded in Power Outage Suit ----------------------------------------------------------------- Judge James C. Dever, III of the U.S. District Court for the Eastern District of North Carolina, Eastern Division, granted the Plaintiffs' motion for attorneys' fees, costs, and service awards in the case, IN RE: OUTER BANKS POWER OUTAGE LITIGATION, This Document Relates To: All Actions, Master File No. 4:17-CV-141-D (E.D. N.C.). The Parties entered into their Settlement Agreement and General Release of Claims intended to resolve the action. In the action, the Plaintiffs contend that as a result of an incident in which a primary power line was cut and a power outage occurred affecting the Outer Banks Islands of Hatteras and Ocracoke, the defendants are liable for certain damages. The Defendants contest various allegations and raise various defenses. On May 2, 2018, the Curt granted preliminary approval of the Settlement Agreement, preliminarily certified a settlement class for settlement purposes only, and directed class counsel to submit their application for attorneys' fees, expenses, and incentive awards. On Aug. 27, 2018, the Plaintiffs filed a motion for final approval of the settlement. On the same day, the class counsel filed an unopposed motion for attorneys' fees, expenses, and incentive awards and a memorandum in support. The Class counsel also filed certain declarations and supporting exhibits and materials. On Sept. 21, 2018, the Court held a final approval hearing. After reviewing the record, Judge Dever granted the Plaintiffs' motion for final approval of the class action settlement and entered a final approval order. The Plaintiffs now seek attorneys' fees, costs, and service awards. The class counsel requests for an award of attorneys' fees, expenses, and incentive awards for the Named Plaintiffs in an amount not to exceed a total of $72,500 in incentive awards, and $3,415,500 in attorneys' fees, as well as no more than $100,000 in class counsel costs and expenses; to be paid from the $10.35 million settlement fund. Having considered the entire record, Judge Dever finds that the requested fee-and-expense award is reasonable and awards fees and expenses to the class counsel in the amount of $3,415,500. He also finds that an award of $100,000: in costs and expenses is reasonable. The Judge further finds that the requested incentive awards are reasonable and fit within the range of reasonable incentive awards. Absent incentive awards, the class representatives would not be rewarded for their participation or for the risk of pursuing the action with no promise of a successful outcome. It is fair, reasonable, and appropriate for the court to grant the requested service awards to reward the Named Plaintiffs for their participation in this action. For these reasons, Judge Dever granted the Plaintiffs' motion for attorney's fees, expenses, and incentive awards. He approved (i) an attorneys' fee award of $3,415,500 to the class counsel; (ii) the $100,000 in costs and expenses, payable pursuant to the terms of the Settlement Agreement; and (iii) an incentive awards in the amount of $2,500 each to the class representatives, payable pursuant to the terms of the Settlement Agreement. A full-text copy of the Court's Sept. 21, 2018 Order is available at https://is.gd/mmwEPD from Leagle.com. Island Vibe Cafe, Morning Star Stables, TBM Construction & Michael Janssen, Plaintiffs, represented by Jean S. Martin, Law Office of Jean Sutton Martin, PLLC, John A. Yanchunis, Morgan & Morgan Complex Litigation Group, Joseph G. Sauder -- jgs@mccunewright.com -- McCune Wright Arevalo LLP & Daniel K. Bryson -- dan@wbmllp.com -- Whitfield, Bryson & Mason, LLP. Rhonda Derring, Robert Case & Marissa Gross, d/b/a Down Creek Galleries, Plaintiffs, represented by Daniel K. Bryson, Whitfield, Bryson & Mason, LLP, Matthew E. Lee -- matt@wbmllp.com -- Whitfield, Bryson & Mason, LLP, Scott C. Harris -- scott@wbmllp.com -- Whitfield, Bryson & Mason, LLP & Joseph G. Sauder, McCune Wright Arevalo LLP. Miss Ocracoke, Inc., Stephen J Wilson, Hatteras Blue, Inc., Steven J. Harris, Steven Wright, Charles Edward Hofmann & Alex Daniel Garrish, Plaintiffs, represented by John R. Taylor, Zaytoun Law Firm, PLLC, Matthew David Ballew, Zaytoun Law Firm, PLLC, Robert E. Zaytoun, Zaytoun Law Firm, PLLC, Joseph G. Sauder, McCune Wright Arevalo LLP & Daniel K. Bryson, Whitfield, Bryson & Mason, LLP. Matthew Breveleri, Plaintiff, represented by Jean S. Martin, Law Office of Jean Sutton Martin, PLLC, Patrick Donovan -- donovan@whafh.com -- Wolf Haldenstein Alder Freeman & Herz LLP, Thomas H. Burt -- burt@whafh.com -- Wolf Haldenstein Alder Freeman & Herz LLP, Joseph G. Sauder, McCune Wright Arevalo LLP & Daniel K. Bryson, Whitfield, Bryson & Mason, LLP. Thomas Edgar, Nina Edgar, Edward Waas & Jack Lewis, Plaintiffs, represented by J. Michael Malone, Hendren, Redwine & Malone, PLLC, Joseph G. Sauder, McCune Wright Arevalo LLP & Daniel K. Bryson, Whitfield, Bryson & Mason, LLP. Briggs McEwan, Las Olas, Inc., Tri-V Conery, Inc., Tami Lynette Gray, d/b/a Family Water Adventures, Daniel Spaventa, Karen Fitzpatrick & Edwin Fitzpatrick, Plaintiffs, represented by Dennis C. Rose, Rose Harrison & Gilreath, P.C., John S. Hughes, Wallace and Graham, P.A., M. Peebles Harrison, Rose Harrison & Gilreath, P.C., Mona Lisa Wallace, Wallace and Graham, P.A., Joseph G. Sauder, McCune Wright Arevalo LLP & Daniel K. Bryson, Whitfield, Bryson & Mason, LLP. Mike Warren, William Bailey & Kerry Fitzgerald, Plaintiffs, represented by Daniel K. Bryson, Whitfield, Bryson & Mason, LLP. PCL Construction Enterprises, Inc., PCL Civil Constructors, Inc., PCL Construction Services, Inc. & PCL Construction Resources (U.S.A.), Inc., Defendants, represented by Alexandra L. Couch -- acouch@ymwlaw.com -- Yates, McLamb & Weyher, LLP, David Michael Fothergill -- dfothergill@ymwlaw.com -- Yates, McLamb & Weyher, LLP & Rodney E. Pettey -- rpettey@ymwlaw.com -- Yates, McLamb & Weyher, LLP. PHILLIPS 66 COMPANY: Underpays Production Employees, Green Says --------------------------------------------------------------- TIMOTHY GREEN, individually and on behalf of all others similarly situated, Plaintiff v. PHILLIPS 66 COMPANY; and DOES 1 THROUGH 50, inclusive, Case No. BC723615 (Cal. Super., Los Angeles Cty., Oct. 1, 2018) is an action against the Defendants for failure to pay minimum wages, overtime compensation, authorize and permit meal and rest periods, and provide accurate wage statements. The Plaintiff Green was employed by the Defendants as a production employee. Phillips 66 Company owns and operates gasoline stations that retails automotive fuel in Illinois. The company was incorporated in 1964 and is based in Houston, Texas. Phillips 66 Company operates as a subsidiary of Phillips 66. [BN] The Plaintiff is represented by: James R. Hawkins, Esq. Gregory Mauro, Esq. Michael Calvo, Esq. JAMES HAWKINS APLC 9880 Research Drive, Suite 200 Irvine, CA 92618 Telephone: (949) 387-7200 Facsimile: (949) 387-6676 E-mail: James@jameshawkinsaplc.com Greg@jameshawkinsaplc.com Michael@jameshawkinsaplc.com PORTFOLIO RECOVERY: OBrien Files FDCPA Suit in New York ------------------------------------------------------- A class action lawsuit has been filed against Portfolio Recovery Associates, LLC. The case is styled as Marlena Obrien on behalf of herself and all others similarly situated, Plaintiff v. Portfolio Recovery Associates, LLC, PRA Group, Inc., Defendants, Case No. 2:18-cv-05884 (E.D. N.Y., Oct. 22, 2018). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Portfolio Recovery Associates, LLC, also known as Anchor Receivables Management, manages past-due accounts. It serves customers through account representatives. The company was incorporated in 1996 and is based in Norfolk, Virginia. Portfolio Recovery Associates, LLC operates as a subsidiary of PRA Group, Inc. Portfolio Recovery Associates Inc. provides outsourced receivables management and related services in the U.S. It purchases, collects, and manages portfolios of defaulted consumer receivables—the unpaid obligations of individuals to banks, credit unions, consumer and auto finance companies, and retail merchants.[BN] The Plaintiff appears pro se. POSTMATES INC: Court Grants Bid to Compel Arbitration in Lee ------------------------------------------------------------ The United States District Court for the Northern District of California issued an Order granting Defendant's Motion to Compel Arbitration in the case captioned DORA LEE, Plaintiff, v. POSTMATES INC., Defendant. Case No. 18-cv-03421-JCS. (N.D. Cal.). Defendant Postmates Inc. seeks to compel arbitration of Plaintiff Dora Lee's claims under the Federal Arbitration Act (FAA). Lee alleges that she worked as a courier for Postmates delivering food and other merchandise to Postmates' customers at their homes and businesses. She claims that Postmates willfully misclassified her and other drivers as independent contractors rather than employees, failed to pay minimum wage and reimburse expenses as required by the California Labor Code, and in doing so, engaged in unlawful business practices in violation of California's Unfair Competition Law (UCL). Legal Standard Under the FAA, a written provision in a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. Lee Agreed to the Fleet Agreement and Arbitration Clause At the hearing, Lee's counsel raised for the first time arguments that Postmates acted improperly in presenting the 2018 Fleet Agreement to Lee directly when she was represented by counsel and had filed this action, that the 2017 Fleet Agreement was limited to a one-year term, and that Lee's attempt to opt out of arbitration should have been effective. None of those arguments are included in Lee's opposition brief. Counsel contended that the arguments were proper because Postmates presented for the first time with its reply brief evidence regarding the nature of the Fleet Agreement acceptance process and the fact that Lee attempted to opt out in 2018. That contention is unavailing. It is true that some of the evidence presented with Postmates' reply doubtless should have been included with its motion, and Postmates should not have incorrectly or perhaps misleadingly asserted that Lee never opted out, at least without acknowledging her attempt to opt out in 2018. Nevertheless, the text of both the 2017 and 2018 Fleet Agreements were presented with the motion, as was the assertion that Lee accepted the 2018 Fleet Agreement on May 15, 2018. Lee's attempt to opt out, while not addressed in Postmates' motion or accompanying declaration, is of course within Lee's own knowledge. Lee therefore waived the arguments raised for the first time at the hearing by failing to address them in her brief. Based on the evidence submitted by Postmates and the lack of evidence to the contrary from Lee, the Court concludes for the purpose of this order that, under California law, Lee validly consented to the Fleet Agreement and its arbitration provision, and did not effectively opt out of that provision. Lee May Not Avoid Arbitration Based on Other Putative Class Members Lee may not avoid arbitration on the basis that other putative class representatives opted out of the arbitration agreement, when Lee herself did not. In the decision on which Lee relies for that proposition, the Georgia Supreme Court held in Bickerstaff v. Suntrust Bank that the filing of a class action complaint tolled the deadline for putative class members to opt out of an arbitration requirement, analogizing to precedent tolling statutes of limitations. 299 Ga. 459 (2016). Notably, the Georgia court rested its decision on the fact that the lead plaintiff filed his complaint within the deadline for rejecting arbitration for existing depositors, the class he seeks to represent and the complaint could therefore be viewed as tolling the deadline from the date of filing. Here, the deadline for Lee to opt out of the Fleet Agreement's arbitration clause has passed, and under the logic of Bickerstaff the filing of a new complaint now by someone who opted out of arbitration could no more save Lee's claim than it could revive the claims of someone for whom the statute of limitations already expired. The Court finds no basis to decline to enforce the parties' arbitration agreement. Postmates' motion to compel arbitration of all of Plaintiff Dora Lee's claims is GRANTED. A full-text copy of the District Court's October 15, 2018 Opinion is available at https://tinyurl.com/ycduwww4 from Leagle.com. Dora Lee, on behalf of herself and all others similarly situated, Plaintiff, represented by Shannon Liss-Riordan -- sliss@llrlaw.com -- Lichten & Liss-Riordan, P.C. Postmates Inc., Defendant, represented by Theane Evangelis -- tevangelis@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, Dhananjay Saikrishna Manthripragada -- dmanthripragada@gibsondunn.com -- Gibson Dunn and Crutcher LLP, Michele Leigh Maryott -- mmaryott@gibsondunn.com -- Gibson Dunn & Crutcher LLP & Peter C. Squeri -- psqueri@gibsondunn.com -- Gibson, Dunn & Crutcher LLP. PRIDESTAR STUDENT: Fails to Properly Pay for Overtime, Rosanos Say ------------------------------------------------------------------ JILLIAN ROSANO; and CHRISTINE ROSANO, individually and on behalf of all others similarly situated, Plaintiffs, v. PRIDESTAR STUDENT TRANSPORT; and DAVID T. DALY, Defendants, Case No. 18-2811 (Mass. Super., Middlesex Cty., Oct. 1, 2018) is an action against the Defendants for failure to pay the Plaintiff and the class overtime compensation for hours worked in excess of 40 hours per week. The Defendants were employed by the Defendants who provide services in connection with student transportation in Lowell, Massachusetts. Pridestar Student Transport provides transportation services to students in Lowell, Massachusetts. [BN] The Plaintiffs are represented by: Anthony M. Metaxas, Esq. D. Scott Dullea, Esq. METAXAS BROWN PIDEON LLP 900 Cummings Center, Suite 207T Beverly, MA 01915 Telephone: (978) 927-8000 E-mail: ametaxas@metaxasbrown.com sdullea@metaxasbrown.com REVERSE MORTGAGE: Seeks 4th Cir. Review of Ruling in Lavis Suit --------------------------------------------------------------- Defendant Reverse Mortgage Solutions, Inc., filed an appeal from a court ruling in the lawsuit entitled Teresa Lavis v. Reverse Mortgage Solutions Inc., Case No. 5:17-cv-00209, in the U.S. District Court for the Southern District of West Virginia at Beckley. The appellate case is captioned as Teresa Lavis v. Reverse Mortgage Solutions Inc., Case No. 18-2180, in the United States Court of Appeals for the Fourth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Opening Brief and Appendix are due on November 19, 2018; and -- Response Brief is due on December 18, 2018.[BN] Plaintiff-Appellee TERESA LAVIS, On behalf of herself and others similarly situated, is represented by: Bren Joseph Pomponio, Esq. Gary Michael Smith, Esq. MOUNTAIN STATE JUSTICE 1031 Quarrier Street Charleston, WV 25301-0000 Telephone: (304) 344-3144 E-mail: bren@msjlaw.org gary@msjlaw.org Defendant-Appellant REVERSE MORTGAGE SOLUTIONS, INC., is represented by: Megan Burns, Esq. Jason E. Manning, Esq. TROUTMAN SANDERS, LLP 222 Central Park Avenue Virginia Beach, VA 23462-0000 Telephone: (757) 687-7778 E-mail: megan.burns@troutman.com jason.manning@troutmansanders.com SAMSUNG ELECTRONICS: Covington Atty Discusses Smart TV Suit Ruling ------------------------------------------------------------------ Jadzia Pierce, Esq. -- jpierce@cov.com -- of Covington & Burling LLP, in an article for The National Law Review, reports that on September 26, 2018, New Jersey federal district judge Madeline Cox Arleo dismissed an eight-count class action complaint in its entirety against three smart TV makers: Samsung, LG, and Sony. The plaintiffs alleged that defendants' smart TVs continuously monitored and tracked their viewing habits, recorded their voices, and then transmitted that information to defendants' servers, after which the information was shared with third-party advertisers and content providers. The judge dismissed all counts: Federal Law Claims: Plaintiffs made two federal law claims: one under the Video Privacy Protection Act ("VPPA") and one under the Wiretap Act (which is part of the Electronic Communications Privacy Act, or "ECPA"). VPPA: Under the VPPA, plaintiffs must allege that a Video Tape Service Provider ("VTSP") "knowingly disclosed" "personally identifiable information" ("PII") concerning a consumer of such provider. The statute defines "PII" as "information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider," and the Third Circuit construes the VPPA as prohibiting "disclosures of information that would, with little or no extra effort, permit an ordinary recipient to identify a particular person's video-watching habits." See In re Nickelodeon Consumer Privacy Litigation (3d Cir. 2016). Plaintiffs alleged that Defendants disclosed "extensive information about plaintiffs' and consumers' digital identities, namely, consumers' video-viewing history, consumers' computer addresses, and information about other devices connected to the same Wi-Fi network." The Court held that under In re Nickelodeon, the appropriate standard, plaintiffs failed to allege how an "ordinary recipient" of the data at issue could use it to "identify a particular person" "with little or no extra effort." Wiretap Act: The Wiretap Act prohibits "interceptions" of electronic communications, but also provides that it is not unlawful for a person to intercept an electronic communication where such a person is a party to that communication. As such, when plaintiffs alleged that defendants violated the Wiretap Act by intercepting electronic communications (specifically, electronic communications that the defendants' smart TVs transmitted to plaintiffs, and communications that plaintiffs sent to defendants' servers), defendants argued that they had not violated the Wiretap Act, among other reasons, because they were parties to the alleged communications. The court agreed with the defendants, finding that plaintiffs' focus on whether defendants took plaintiffs' and consumers "identifying information in real-time" could not overcome the fact that any communications to the smart TV manufacturers would not violate the Wiretap Act. Other Claims Plaintiffs also alleged four contract-based claims and two fraud-based claims: Contract-based claims: Plaintiffs' contract-based claims were for (1) breach of contract, (2) breach of duty of good faith and fair dealing, (3) breach of express warranty, and (4) unjust enrichment. Defendants argued that the first three claims failed because plaintiffs did not identify any actual contract or specific affirmation, promise, or guarantee made to them by the smart TV manufacturers. In addition, defendants argued that plaintiffs failed to identify a loss sustained by the plaintiffs or a benefit received by defendants, and therefore failed to state a claim for unjust enrichment. The court agreed and dismissed all four claims. Fraud-based claims: Plaintiffs' two fraud-based claims (unfair and deceptive tracking and transmission, and deceptive omissions) were brought under New Jersey's Consumer Fraud Act. However, with the plaintiffs being from New York and Florida respectively, the only connection that they alleged between their claims and New Jersey was the defendant smart TV manufacturers' allegedly "super-massive" presence in New Jersey. However, the Third Circuit has consistently maintained that a non-resident plaintiff cannot bring a Consumer Fraud Act claim where the sole connection to New Jersey is the defendants' location, and the court therefore dismissed both fraud claims. (White, et al. v. Samsung Electronics America, Inc., et al.). [GN] SCG AMERICA: Fischler Files Suit Over ADA Breach ------------------------------------------------ A class action lawsuit has been filed against SCG (America) Co., LTD. The case is styled as Brian Fischler individually and on behalf of all other persons similarly situated, Plaintiff v. SCG (America) Co., LTD doing business as: Manhattan View MiMA, Defendant, Case No. 1:18-cv-05877 (E.D. N.Y., Oct. 21, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. SCG America, a wholly owned subsidiary of Shanghai Construction Group and headquartered in New York City, has decades of experience in the United States. Their services range from general contracting, construction management, real estate development, and real estate fund management.[BN] The Plaintiff appears pro se. SIMON BARON: Fischler Files Suit in New York for ADA Breach ------------------------------------------------------------ A class action lawsuit has been filed against Simon Baron Construction LLC under the Americans with Disabilities Act. The case is styled as Brian Fischler individually and on behalf of all other persons similarly situated, Plaintiff v. Simon Baron Construction LLC doing business as: Alta LIC, Defendant, Case No. 1:18-cv-09648 (S.D. N.Y., Oct. 21, 2018). Simon Baron Construction LLC is in the Single-family Housing Construction business.[BN] The Plaintiff is represented by: Douglas Brian Lipsky, Esq. Lipsky Lowe LLP 630 Third Avenue Fifth Floor New York, NY 10017 Phone: (212) 392-4772 Fax: (212) 444-1030 Email: doug@lipskylowe.com SIRTEX: Ordered to Notify Class Action Lawyers on Asset Move ------------------------------------------------------------ Sarah Danckert, writing for The Sydney Morning Herald, reports that the new Chinese owner of Sirtex has been ordered to notify class action lawyers when it plans to remove the local biotech's assets from Australia after a Federal Court judge found the shareholder case had a real prospect of success. Justice Bernard Murphy issued orders earlier this month to ensure that Sirtex's new owners CDH Genetech and China Grand Pharmaceutical and Healthcare Holdings must give the lawyers running the class action at Maurice Blackburn three days notice before reducing the group's liquid assets to less than $80 million. "I consider there is a reasonable prospect that the applicants' case will succeed and Sirtex may be required to pay substantial damages, and I am persuaded there is a danger that Sirtex's assets will be removed from the jurisdiction," Justice Murphy said. Justice Murphy also took into account Sirtex's low level of corporate insurance in issuing the orders. "Sirtex has insufficient insurance to meet any substantial agreed settlement or damages award." He said Sirtex had only $10 million of insurance cover. The company had as at June 30 already spent $2 million on defence costs, Justice Murphy said. "I expect most or all of the insurance cover to be expended on defence costs if the class action proceeds to judgment," he said. The orders cover any dividend or return of capital by Sirtex that would reduce its $127.9 million war chest of liquid assets to below $80 million. Justice Murphy placed the $80 million limit on the orders after Sirtex's own expert accountants argued the loss could be as much as $283 million or lower at $82.7 million. Justice Murphy said the lower estimate was "more reasonable" assessment of shareholder loss in Sirtex as a result of the group's alleged breach of its continuous disclosure requirements. Sirtex had argued the request was tantamount to an injunction against the $1.9 billion deal that was sealed by the China-based group. Shareholders involved in the class action allege Sirtex breached its continuous disclosure obligations ahead of its December 2016 downgrade of the company's sale growth forecasts for its cancer treating microspheres. Sirtex's downgrade sparked a 37 per cent fall in Sirtex's shares. Last month former Sirtex chief executive Gilman Wong was charged with insider trading offences over trades he allegedly made ahead of the troubled biotechnology group's downgrade. Maurice Blackburn senior associate Jessica Naimo welcomed the court orders. "The court has suggested our case is strong and has accepted that we are rightly concerned about the possibility that under the new ownership structure, Sirtex could easily move its assets outside of the jurisdiction of the court," Ms Naimo said. "This is a prudent step to ensure our group members aren't further neglected or damaged by the actions of the company." [GN] SOUTH CAROLINA: Stoudemire Files Prisoner Civil Rights Suit ----------------------------------------------------------- A class action lawsuit has been filed in South Carolina asserting prisoner civil rights. The case is styled as Hazel Stoudemire, Jr. and all other similarly situated, Plaintiff v. James K Robertson, Cobourn & Saleeby LLP, Spartanburg County Clerk of Court, N Douglas Brannon, Defendants, Case No. 7:18-cv-02839-JFA-MGB (D. S.C., Oct. 19, 2018). James K. Robertson and N. Douglas Brannon are lawyers in Spartanburg, South Carolina focusing on various areas of law. Cobourn & Kyriakakis, L.L.P. is a personal injury firm serving clients in both North Carolina and South Carolina.[BN] The Plaintiff appears pro se. STRATEGIES TO EMPOWER: Blumenthal Nordrehaug Files Class Action --------------------------------------------------------------- The Sacramento employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP, filed a class action complaint alleging that Strategies to Empower People, Inc., failed to provide their California employees with meal and rest periods as required by California law. The Strategies to Empower People, Inc., class action lawsuit, Case No. 34-2018-00240703, is currently pending in the Sacramento County Superior Court for the State of California. According to the lawsuit filed in the Sacramento County Superior Court, Strategies to Empower People, Inc., allegedly failed to provide their employees with meal and rest breaks because allegedly, Strategies to Empower People, Inc., did not have a policy to provide their hourly employees thirty (30) minute uninterrupted meal breaks prior to their fifth (5th) hour of work. California labor laws require an employer to provide an employee required to perform work for more than five (5) hours during a shift with, a thirty (30) minute uninterrupted meal break prior to the end of the employee's fifth (5th) hour of work. Additionally, the complaint further alleges Strategies to Empower People, Inc., committed acts of unfair competition in violation of the California Unfair Competition Law, Cal. Bus. & Prof. Code Sec.Sec. 17200, et seq. (the "UCL"), by engaging in a company-wide policy and procedure which failed to accurately calculate and record all missed meal and rest periods by PLAINTIFF and other CALIFORNIA CLASS Members. As a result of DEFENDANT's intentional disregard of the obligation to meet this burden, DEFENDANT allegedly failed to properly calculate and/or pay all required compensation for work performed by the members of the CALIFORNIA CLASS and violated the California Labor Code. If you would like to know more about the Strategies to Empower People, Inc., lawsuit, please contact Attorney Nicholas J. De Blouw today by calling (858) 952-0354. Blumenthal Nordrehaug Bhowmik De Blouw LLP is an employment law firm with offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside and Chicago that dedicates its practice to helping employees, investors and consumers fight back against unfair business practices, including violations of the California Labor Code and Fair Labor Standards Act. [GN] SUNRUN INC: Dec. 14 Settlement Fairness Hearing Set --------------------------------------------------- The following statement is being issued by Robbins Geller Rudman & Dowd LLP and Cotchett, Pitre & McCarthy, LLP regarding the In re Sunrun Inc. Shareholder Litigation. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO In re SUNRUN INC. SHAREHOLDER LITIGATION This Document Relates To: ALL ACTIONS. Lead Case No. CIV538215 CLASS ACTION Assigned to: Hon. Marie S. Weiner SUMMARY NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION TO: ALL PERSONS THAT PURCHASED OR OTHERWISE ACQUIRED SUNRUN INC. ("SUNRUN" OR THE "COMPANY") COMMON STOCK BEFORE FEBRUARY 1, 2016 PURSUANT OR TRACEABLE TO THE COMPANY'S REGISTRATION STATEMENT AND PROSPECTUS ISSUED IN CONNECTION WITH SUNRUN'S AUGUST 5, 2015 INITIAL PUBLIC OFFERING ("IPO") ("CLASS" OR "CLASS MEMBERS") THIS NOTICE WAS AUTHORIZED BY THE COURT. IT IS NOT A LAWYER SOLICITATION. PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOU ARE HEREBY NOTIFIED that a hearing will be held on December 14, 2018, at 11:00 a.m., before the Honorable Marie S. Weiner at the Superior Court of California, County of San Mateo, Department 2, Courtroom 2E, 400 County Center, Redwood City, CA 94063, to determine whether: (1) the proposed settlement (the "Settlement") of the above-captioned action as set forth in the Stipulation of Settlement ("Stipulation")1 for $32,000,000 in cash should be approved by the Court as fair, reasonable and adequate; (2) the Final Judgment as provided under the Stipulation should be entered; (3) to award Plaintiffs' Counsel attorneys' fees and expenses out of the Settlement Fund (as defined in the Notice of Proposed Settlement of Class Action ("Notice"), which is discussed below); (4) to pay Plaintiffs for the time and expenses they incurred in representing the Class out of the Settlement Fund; and (5) the Plan of Allocation should be approved by the Court as fair, reasonable and adequate. This Action is a consolidated securities class action brought on behalf of those Persons who purchased or acquired the common stock of Sunrun pursuant or traceable to the Registration Statement and Prospectus for Sunrun's IPO, against Sunrun, certain of its key executives, directors and underwriters of Sunrun's IPO, and Sunrun's venture capital partners (collectively, "Defendants") for, among other things, allegedly misstating and omitting material facts from the Registration Statement filed with the U.S. Securities and Exchange Commission in connection with the IPO. Plaintiffs allege that these purportedly false and misleading statements inflated the price of the Company's stock, resulting in damage to Class Members when the truth was revealed. Defendants deny all of Plaintiffs' allegations. IF YOU PURCHASED OR ACQUIRED SUNRUN COMMON STOCK BETWEEN AUGUST 5, 2015 THROUGH AND INCLUDING JANUARY 31, 2016, YOUR RIGHTS MAY BE AFFECTED BY THE SETTLEMENT OF THIS ACTION. To share in the distribution of the Settlement Fund, you must establish your rights by submitting a Proof of Claim and Release form ("Proof of Claim") by mail (postmarked no later than January 3, 2019) or electronically (no later than January 3, 2019). Your failure to submit your Proof of Claim by January 3, 2019, will subject your claim to rejection and preclude your receiving any of the recovery in connection with the Settlement of this Action. If you are a member of the Class and do not request exclusion therefrom, you will be bound by the Settlement and any judgment and release entered in the Action, including, but not limited to, the Final Judgment, whether or not you submit a Proof of Claim. If you have not received a copy of the Notice, which more completely describes the Settlement and your rights thereunder (including your right to object to the Settlement), and a Proof of Claim form, you may obtain these documents, as well as a copy of the Stipulation (which, among other things, contains definitions for the defined terms used in this Summary Notice) and other settlement documents, online at www.SunrunSecuritiesLitigation.com, or by writing to: Sunrun Shareholder Litigation Settlement c/o GCG P.O. Box 10559 Dublin, OH 43017-4521 Inquiries should NOT be directed to Defendants, the Court, or the Clerk of the Court. Inquiries, other than requests for the Notice or for a Proof of Claim form, may be made to Plaintiffs' Counsel: ROBBINS GELLER RUDMAN & DOWD LLP Ellen Gusikoff Stewart 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 800-449-4900 COTCHETT, PITRE & McCARTHY, LLP Mark C. Molumphy 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Telephone: 650-697-6000 IF YOU DESIRE TO BE EXCLUDED FROM THE CLASS, YOU MUST SUBMIT A REQUEST FOR EXCLUSION SUCH THAT IT IS POSTMARKED BY DECEMBER 4, 2018, IN THE MANNER AND FORM EXPLAINED IN THE NOTICE. ALL MEMBERS OF THE CLASS WHO HAVE NOT REQUESTED EXCLUSION FROM THE CLASS WILL BE BOUND BY THE SETTLEMENT EVEN IF THEY DO NOT SUBMIT A TIMELY PROOF OF CLAIM. IF YOU PREVIOUSLY REQUESTED EXCLUSION FROM THE CLASS YOU DO NOT NEED TO DO SO AGAIN. IF YOU ARE A CLASS MEMBER, YOU HAVE THE RIGHT TO OBJECT TO THE SETTLEMENT, THE PLAN OF ALLOCATION, THE REQUEST BY PLAINTIFFS' COUNSEL FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES, AND/OR THE PAYMENT TO PLAINTIFFS FOR THEIR TIME AND EXPENSES. ANY OBJECTIONS MUST BE FILED WITH THE COURT AND SENT TO PLAINTIFFS' COUNSEL BY DECEMBER 4, 2018, IN THE MANNER AND FORM EXPLAINED IN THE NOTICE. DATED: September 14, 2018 BY ORDER OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO HONORABLE MARIE S. WEINER 1 The Stipulation can be viewed and/or obtained at www.SunrunSecuritiesLitigation.com. SYMANTEC CORP: Claims in Defective Antivirus Suit Narrowed ---------------------------------------------------------- In the case, MONTGOMERY BEYER, Plaintiff, v. SYMANTEC CORPORATION, Defendant, Case No. 18-cv-02006-EMC (N.D. Cal.), Judge Edward M. Chen of the U.S. District Court for the Northern District of California granted in part and denied in part Symantec's motion to dismiss. Beyer brings the instant action alleging that certain network security software products sold by Symantec, specifically network security software products sold or licensed to consumers under the Norton brand and to businesses under the Symantec brand, contained critical defects. Beyer's allegations arise out of a report by Google Inc.'s team of expert cybersecurity analysts, Project Zero, which detail alleged vulnerabilities in a component of Symantec's software, the AntiVirus Decomposer Engine. Beyer argues that Symantec advertises that the Affected Products protects against the latest online threats or protects against viruses, spyware, hackers, rootkits, identity theft, phishing scams, and fraudulent Web sites while knowing that its products suffered from a core decomposer engine defect that exposed entire computer operating systems to various security vulnerabilities. He further argues that Symantec failed to disclose that it did not implement patches for third-party source code that it used throughout its product line, and various Symantec misrepresentations and omissions form the basis for his causes of action. Beyer asserts five causes of action, namely (i) a California Consumer Legal Remedies Act ("CLRA") claim, (ii) a California Song-Beverly Consumer Warranty Act claim, (iii) a California False Advertising Law ("FAL") claim, (iv) a California Unfair Competition Law ("UCL") claim, and (v) a claim for "Quasi-Contract/Unjust Enrichment." Beyer purports to represent a nationwide class combining persons who purchased and/or licensed an Affected Product between Dec. 21, 2005 and Sept. 19, 2016. He further asserts a consumer subclass for purposes of the claims under the CLRA and the Song-Beverly Act. Symantec has moved to dismiss for (i) failure to plead the facts and circumstances of the alleged fraud with particularity under Fed. R. Civ. P. 9(b), (ii) failure to state a claim under Fed. R. Civ. P. 12(b)(6), and (iii) lack of Article III standing under Fed. R. Civ. P. 12(b)(1). Judge Chen granted in part and denied in part Symantec's motion to dismiss. He dismissed without prejudice the CLRA, FAL, UCL, and unjust enrichment claims as to the Third Software. He also dismissed without prejudice Beyer's Song-Beverly Act claim. He otherwise denied the motion to dismiss. The Judge also denied the motion to strike. The Judge finds that Symantec's only argument against the unjust enrichment claim is that it fails because Beyer's other claims fail. Because Beyer's other claims do survive as to the Second Software, the unjust enrichment claim also survives as to that software. The motion is denied to that extent. But because the claims as to the Third Software do not survive for lack of specificity under Rule 9(b), the unjust enrichment claim is dismissed without prejudice as to the Third Software. Beyer states in his brief that he bought the Second Software on Symantec's website, and that Symantec "shipped" the product to him from California by electronic delivery, so that titled passed -- and thus was "sold at retail" -- in California. However, the Judge finds, as Symantec correctly points out, these facts are missing from Beyer's complaint. Neither does he allege that the product was electronically delivered to him from California. The Song-Beverly claim is therefore dismissed with leave to amend. A full-text copy of the Court's Sept. 21, 2018 Order is available at https://is.gd/2WOk3J from Leagle.com. Montgomery Beyer, Individually and on behalf of All Others Similarly Situated, Plaintiff, represented by Cassidy Kim -- ckim@sjk.law -- SchubertJonckheerKolbeLLP, Noah M. Schubert -- nschubert@sjk.law -- Schubert Jonckheer & Kolbe LLP, Robert C. Schubert -- rschubert@sjk.law -- Schubert Jonckheer & Kolbe LLP & Willem F. Jonckheer -- wjonckheer@sjk.law -- Schubert Jonckheer & Kolbe LLP. Symantec Corporation, Defendant, represented by Laurence F. Pulgram -- lpulgram@fenwick.com -- Fenwick & West LLP, Ciara Nicole McHale -- cmchale@fenwick.com -- Fenwick and West LLP, Molly Roberta Melcher -- mmelcher@fenwick.com -- Fenwick and West LLP & Tyler Griffin Newby -- tnewby@fenwick.com -- Fenwick & West LLP. TEK-COLLECT INC: Ross Files FDCPA Class Action ---------------------------------------------- A class action lawsuit has been filed against Tek-Collect, Inc. The case is styled as Mary Ross individually and on behalf of all others similarly situated, Plaintiff v. Tek-Collect, Inc., Defendant, Case No. 3:18-cv-01248-TJC-JRK (M.D. Fla., Oct. 22, 2018). The Plaintiff filed the case under the Fair Debt Collection Practices Act. TekCollect is an innovative accounts receivable management company serving over 30,000 businesses across the nation. They partner with companies of all sizes to optimize accounting practices, limit and control delinquencies, and improve positive cash flow for the long-term.[BN] The Plaintiff is represented by: Jon Paul Dubbeld, Esq. Berkowitz & Myer 4900 Central Ave St Petersburg, FL 33707 Phone: (727) 344-0123 Fax: (727) 344-0185 Email: Jon@Berkmyer.com TELENAV INC: Womble Bond Atty Discuss Approval of $3.5MM Settlement ------------------------------------------------------------------- Tania Seanpanah, Esq. -- tania.seanpanah@wbd-us.com -- of Womble Bond Dickinson (US) LLP, in an article for The National Law Review, reports that the District Court for the Northern District of California recently granted Plaintiffs' Motion for Final Approval of a $3.5 Million class settlement in Gergetz v. Telenav, Inc., No. 16-CV-04261-BLF, 2018 WL 4691169 (N.D. Cal. Sept. 27, 2018). The $3.5M settlement provides for a whopping $800+ per claim recovery to the class, and an award of $1.05M in fees (after the Court took a teensy haircut). The parties in Gergetz had inked a deal back in April 2018 to settle this text message class action for $3.5M, and to certify two subclasses -- a "no consent" subclass, and a "stop" text message subclass. Per the court's ruling, the administrator estimated there were 200,000 potential class members, out of which 145,984 class members (72%) were sent notice. Claims by those class members -- about 2,000 of them -- would be valued based on an "award unit" system that would give "units" worth a specified dollar amount based on the number and type of text received by each claimant, with each "award unit" worth an estimated $810. The court found that these figures -- when compared to recoveries from other TCPA class actions -- to be "exceptionally good". So how does this stack up with the recently-rejected Snyder settlement we reported on last month? It's tough to draw comparisons since we're not exactly comparing apples to apples. Aside from the fact that the cases involved different scenarios (a debt collection class action versus a text message telemarketing class action), Snyder had 8.5 times more class members, 95% of which were sent notice, with an enormous 16% claims rate -- far higher than the usual TCPA settlement. By comparison, just over 70% of the relatively small 200,000 person class was sent notice in Gergetz, and a paltry 1% of those class members actually submitted a claim. So it's no wonder the per-claim award here -- starting at about $810 and going up from there depending on the number of texts claimed -- was so high. The only hiccup encountered here was in the court's approval of the $1,155,000 fee award requested by class counsel (33% of the fund). The court found that the "benchmark" for a reasonable award in common fund settlements is 25% of the funds, and the 33% that counsel was asking for was "slightly overreaching". However, the court recognized the 25% amount could be increased due to "special circumstances". And the court found that an increase from 25% to 30% was justified based on the "exceptional results achieved, the risk of litigation, the fine quality of Class Counsel's work, and the contingent nature of the fee." The court then performed a "lodestar cross-check" to ensure that the 5% increase was reasonable. According to class counsel, their total hourly fees on the case amounted to $383,102 based on an hourly rate that the court found was "below market", so the court rounded that figure up to $400,000 in performing its cross-check. To get to $1,050,000 from $400,000, the Court applied a 2.625 multiplier. The court found that multipliers between 1 to 4 are typical for common fund cases, and found a 2.625 multiplier was appropriate since class counsel was working on a contingent fee basis, had to decline other work to litigate this case, and got an "excellent result" for the class members. And the court's exercise here ultimately resulted in about a $100,000 haircut off the fees requested by counsel from $1,155,000 to $1,050,000. But in any event, I don't think we'll hear much complaining from class counsel since -- according to the court's ruling -- this case was settled while still at the pleading stage. There's no doubt the Gergetz settlement provided for an exceptionally high per-claim recovery, although much of that was driven by the small size of the class, and the miniscule claims rate. However, when examining the settlement on a per-class member basis, the settlement wasn't too far off from what was proposed in Snyder. Snyder involved $1.7M class members and a $17.5M fund, amounting to $10.29 per class member. Gergetz involved 200,000 class members, and a $3.5M fund, amounting to $17.50 per class member. Given the fact that Ocwen was trying to settle claims for a class that was 8.5 times larger than Gergetz -- and because "the potential for individual issues regarding consent loomed relatively large" in Snyder -- we'd even say that the deal reached in Snyder was in many respects better than the one reached in Gergetz. And yet, the settlement in Gergetz received final approval, while the court in Snyder rejected the class settlement, and wondered aloud whether class counsel "sold the class short." [GN] TEMSA: Navaho Tour Brings Class Suit in California -------------------------------------------------- A class action lawsuit has been filed against Temsa North America, Inc., et al. The case is styled as Navaho Tour, Inc. on behalf of itself and all others similarly situated, Plaintiff v. Temsa North America, Inc., Temsa Global Sanayi Ve Ticaret A.S., Temsa Ulasim Araclari Sanayi Ve Ticaret A.S., Temsa Europe NV, Haci Omer Sabanci Holding A.S., Defendants, Case No. 4:18-cv-06401-KAW (N.D. Cal., Oct. 19, 2018). TEMSA Global is a coach, bus and light truck manufacturer located in Adana, Turkey. The company is part of the Sabancı Group, a large Turkish industrial and commercial conglomerate. TEMSA is a member of the Turkish Automotive Manufacturers Association. Temsa's Adana plant has an annual production capacity of 11500 vehicles; 4000 buses and coaches and 7500 light trucks. TEMSA Global Sanayi ve Ticaret A.S. manufactures and distributes buses and coaches for automotive markets in Turkey and international markets. The company offers coaches, midi-coaches, and city buses for urban public transport systems; tourist coaches; and light trucks. It also provides after sales and spare parts. Temsa Europe NV provides buses and coaches to businesses. The Company produces touring buses, intercity buses, and city buses. Temsa Europe offers 24-hour road assistance, service, training, spare parts, and total quality management. Temsa Europe offers its buses and services throughout Europe. Haci Omer Sabanci Holding A.S. operates primarily in the finance, manufacturing, and trading sectors worldwide. It operates through Finance/Banking, Industry, Retail, Cement, and Other segments. The company offers corporate, investment and private, commercial, SME, retail, and international banking services, as well as payment systems, treasury transactions, and insurance brokerage services; and capital market and investment, asset management, and financial leasing services.[BN] The Plaintiff is represented by: Thomas V Girardi, Esq. Girardi Keese 1126 Wilshire Boulevard Los Angeles, CA 90017 Phone: (213) 977-0211 Email: tgirardi@girardikeese.com TG THERAPEUTICS: Robbins Arroyo Files Securities Fraud Suit ----------------------------------------------------------- Shareholder rights law firm Robbins Arroyo LLP disclosed that purchasers of TG Therapeutics, Inc. (Nasdaq: TGTX) have filed a class action complaint against the company's officers and directors for alleged violations of the Securities Exchange Act of 1934 between June 4, 2018 and September 25, 2018. TG is a biopharmaceutical company that develops treatments for cancer and autoimmune diseases in the U.S. The company is developing two therapies targeting hematologic malignancies TG-1101 and TGR-1202. View this information on the law firm's Shareholder Rights Blog: https://www.robbinsarroyo.com/tg-therapeutics-inc-oct-2018/ TG Accused of Misleading Investors Regarding Trial Results The actions concerns TG's UNITY-CLL Trial. The trial is a randomized controlled Phase 3 trial under Special Protocol Assessment that is evaluating TG-1101 in combination with TGR-1202, the company's development stage PI3K delta inhibitor, for patients with front line and previously treated Chronic Lymphocytic Leukemia. Enrollment in the trial began in May 2017, and by September 2017, TG announced its target enrollment had been met. TG also announced that it expected to report top-line overall response rate ("ORR") data from the study in 2018. According to the complaint, TG thereafter touted positive earnings and business outlook for the company, as well as a positive outcome of its UNITY-CLL Trial, "which is expected to support full approval and a very broad label for the treatment of CLL." Despite these prior assurances, on September 25, 2018, TG announced that it would not be releasing the data from the UNITY-CLL study and that the drugs had failed to meet the ORR stated goal. On this news, the price of TG stock declined from $9.25 per share to $5.15 per share on September 26, 2018, a fall of nearly 45%. TG Shareholders Have Legal Options Concerned shareholders who would like more information about their rights and potential remedies can contact attorney Leonid Kandinov at (800) 350-6003, LKandinov@robbinsarroyo.com, or via the shareholder information form on the firm's website. Robbins Arroyo LLP -- http://www.robbinsarroyo.com-- is a nationally recognized leader in shareholder rights law. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits, and has helped its clients realize more than $1 billion of value for themselves and the companies in which they have invested. [GN] TOOTSIE ROLL: 9th Circuit Appeal Filed in Gordon Class Suit ----------------------------------------------------------- Plaintiff Ketrina Gordon filed an appeal from a court ruling in the lawsuit entitled KETRINA GORDON, individually and on behalf of all other similarly situated v. TOOTSIE ROLL INDUSTRIES, INC.; DOES, 1 through 10, inclusive, Case No. 2:17-cv-02664-DSF-MRW, in the U.S. District Court for the Central District of California, Los Angeles. As previously reported in the Class Action Reporter, the Plaintiff sought certification of a class of consumers of: "all persons who purchased opaque boxes of 3.5-oz Junior Mints and 6-oz. box of Sugar Babies in the State of California for personal use and not for resale during the time period February 10, 2013, through the present. Excluded from the Class are Defendants' officers, directors, and employees, and any individual who received remuneration from Defendants in connection with that individual's use or endorsement of the Product." The appellate case is captioned as KETRINA GORDON, individually and on behalf of all other similarly situated v. TOOTSIE ROLL INDUSTRIES, INC.; DOES, 1 through 10, inclusive, Case No. 18-56315, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- January 16, 2019 -- Appellant's opening brief and excerpts of record shall be served and filed pursuant to FRAP 31 and 9th Cir. R. 31-2.1; -- February 19, 2019 -- Appellee's answering brief and excerpts of record shall be served and filed pursuant to FRAP 31 and 9th Cir. R. 31-2.1; -- November 7, 2019 -- Transcript shall be ordered; -- December 9, 2019 -- Transcript shall be filed by court reporter; and -- The optional appellant's reply brief shall be filed and served within 21 days of service of the appellee's brief, pursuant to FRAP 31 and 9th Cir. R. 31-2.1.[BN] TRANS UNION LLC: Faces Heath FCRA Suit in Virginia -------------------------------------------------- A class action lawsuit has been filed against Trans Union, LLC. The case is styled as Marsha Heath, Scott Rogers, Robert Kemery, Sean Lawrence on behalf of themselves and all other similarly situated, Plaintiffs v. Trans Union, LLC, Defendant, Case No. 3:18-cv-00720-JAG (E.D. Va., Oct. 19, 2018). The Plaintiff filed the case under the Fair Credit Reporting Act. TransUnion LLC operates as a credit reporting agency that provides data/insights and information to help consumers and businesses make informed decisions. The company provides customer credit reporting, portfolio management, marketing and audience segmentation, healthcare revenue cycle management, customer acquisition, investigations and collections, fraud detection and prevention, identity verification and authentication, customer analytics and consulting, data breach, and customer engagement solutions.[BN] The Plaintiffs are represented by: Kristi Cahoon Kelly, Esq. Kelly & Crandall PLC 3925 Chain Bridge Road, Suite 202 Fairfax, VA 22030 Phone: (703) 424-7570 Fax: (703) 591-9285 Email: kkelly@kellyandcrandall.com - and - Andrew Joseph Guzzo, Esq. Kelly & Crandall PLC 3925 Chain Bridge Road, Suite 202 Fairfax, VA 22030 Phone: (703) 424-7576 Fax: (703) 591-0167 Email: aguzzo@kellyandcrandall.com - and - Casey Shannon Nash, Esq. Kelly & Crandall PLC 3925 Chain Bridge Road, Suite 202 Fairfax, VA 22030 Phone: (703) 640-3334 Fax: (703) 591-9285 Email: casey@kellyandcrandall.com UBER TECH: Blank Rome Attorneys Discuss 9th Cir. Ruling ------------------------------------------------------- Natalie Alameddine, Esq. -- nalameddine@blankrome.com -- and Caroline Powell Donelan, Esq. -- cdonelan@blankrome.com -- of Blank Rome LLP, in an article for JDSupra, report that in a significant blow to claims that gig economy workers are entitled to pursue disputes on a class or collective basis, and possibly whether those workers will be able to establish that they are employees and not independent contractors, a three-judge panel of the Ninth Circuit Court of Appeals unanimously decertified a class of 240,000 Uber drivers. The decision in O'Conner v. Uber is a victory for the ride-share company, which will now be able to defend claims that it misclassified employees as independent contractors on an individual basis—one arbitration at a time. For the past five years, there has been an ongoing and contentious dispute over whether Uber drivers (and similarly, Lyft and other ride-share drivers) are independent contractors or employees. If the workers are deemed to be employees, Uber could face hundreds of millions of dollars in alleged California labor code violations and business expense claims. To combat the possibility of having to litigate this issue on a class-wide basis, Uber entered into arbitration agreements with each driver, requiring that any driver's claims be arbitrated and that each case had to be arbitrated individually (rather than as a class action). The court's validation of Uber's arbitration agreement, and reversal of the lower court's 2015 certification of the class of drivers, is consistent with the United States Supreme Court's May 2018 ruling in Epic Systems Corp. v. Lewis, in which the Court confirmed the validity of arbitration agreements that contain class action waivers. Key Takeaways While employee-side attorneys have regularly argued that arbitration agreements containing class or collective action waivers are unconscionable and/or violate the Section 7 rights of employees under the National Labor Relations Act, O'Conner is consistent with recent decisions at the federal level which demonstrate the judiciary's commitment to stand by the legislative intent of the Federal Arbitration Act and compel litigants to abide by their agreements to arbitrate. Indeed, amid a flurry of new legislation aimed at giving teeth to the #MeToo movement, California Governor Jerry Brown vetoed a controversial "arbitration bill" (Assembly Bill 3080) that would have effectively rendered such agreements unlawful by statute. Time will tell how workers will respond to this ruling. Plaintiffs' attorneys are nothing if not enterprising, so it is possible that hundreds, if not thousands, of individual arbitrations may be filed on behalf of gig economy workers claiming to be employees. While O'Conner v. Uber gives employers further comfort in implementing arbitration agreements containing class action waivers, we caution California employers to remain mindful of the California Supreme Court's decision with respect to "representative" claims brought under the state's Private Attorneys General Act ("PAGA"). PAGA authorizes private citizens to file lawsuits to recover civil penalties for labor code violations on behalf of themselves, other "aggrieved" employees, and the State of California. So long as representative employees have suffered at least one labor code violation, they are even permitted to bring claims on behalf of other aggrieved employees for labor code violations that they have not personally suffered. Currently, PAGA claims cannot be forced into arbitration in light of a prior case (Iskanian v. CLS Transportation Los Angeles, LLC (2014)), meaning employers in the Golden State continue to face an uptick in representative PAGA actions notwithstanding the existence of otherwise enforceable agreements requiring disputes be resolved by individual arbitration. [GN] UNITED SERVICES: Did Not Pay Proper Insurance Claims, Spears Says ----------------------------------------------------------------- ALICIA SPEARS, individually and on behalf of all those similarly situated, Plaintiff, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant, Case No. 78689724 (Fla. Cir., Hillsborough Cty., Oct. 1, 2018) is an action for breach of contract to recover the damages suffered by the Plaintiff and the Class as a result of the Defendant's use of the CCC ONE electronic system in adjusting and settling loss claims, and for refusal to pay dealer fees. According to the complaint, the CCC ONE electronic system used by the Defendant in adjusting and settling loss claims does not comply with Florida statute. It is not "a generally recognized used motor vehicle industry source" for the "retail cost" of used motor vehicles. No participants in the used motor vehicle industry use the CCC system—not dealers, not wholesalers, not buyers' agents, not banks, not vehicle lenders, and not consumer buyers. Indeed, the CCC system is not available to consumers, and it is not even marketed to the motor vehicle industry as whole. Rather, CCC only offers the CCC system as a subscription service to insurance companies, which are not part of the used motor vehicle industry. Second, its selective exclusion of the "comparable vehicles" with the highest advertised prices and its use of systematic downward "Uniform Condition Adjustments" does not result in retail costs. The Defendant also committed breach in automobile insurance policy and violates Florida law by failing to pay the "Dealer Preparation Fee and/or Document Fee" required to be disclosed by every used car dealer in Florida. Those fees constitute part of the "actual cost to purchase a comparable motor vehicle," just like sales tax. The Defendant's failure to pay these fees further damages each of its Florida policyholders who suffers a total loss by hundreds of dollars. United Services Automobile Association provides a range of financial products and services to the military community and their families primarily in the United States. United Services Automobile Association was founded in 1922 and is headquartered in San Antonio, Texas. [BN] The Plaintiff is represented by: Scott R. Jeeves, Esq. THE JEEVES LAW GROUP, P.A. 954 First Avenue North St. Petersburg, FL 33705 Telephone: (727) 894-2929 E-mail: sjeeves@jeeveslawgroup.com - and - Craig E. Rothburd, Esq. CRAIG E. ROTHBURD, P.A. 320 W. Kennedy Blvd., Suite 700 Tampa, FL 33606 E-mail: crothburd@e-rlaw.com Telephone: (813) 251-8800 - and - Casim Adam Neff, Esq. NEFF INSURANCE LAW, PLLC P.O. Box 15063 St. Petersburg, FL 33733-5063 Telephone: (727) 342-0617 E-mail: cneff@neffinsurancelaw.com UNITED STATES: Asylum Interviews Ordered for Separated Families --------------------------------------------------------------- Bianca Bruno, writing for Courthouse News Service, reported that a federal judge on Oct. 18 ordered the Justice Department to start conducting asylum interviews for families separated at the U.S.-Mexico border, noting it is required to do so per the terms of a settlement negotiated with the families' attorneys last month and by "statutory obligation." The schism over whether the government should be required to implement the terms of a deal reached in the consolidated family separation litigation in the Southern District of California started when attorneys for the families' filed an emergency request with U.S. District Judge Dana Sabraw. According to the families' attorneys, the Justice Department refuses to start the asylum process for at least 60 people who have signed the settlement waiver, binding them to the terms the parties reached last month. The government's refusal to conduct asylum interviews led more than 40 detained families to opt for deportation "because they simply could not wait in detention any longer," according to the families' attorneys. But Justice Department attorney Scott Stewart told Judge Sabraw at a hearing on Oct. 16 the government could not be ordered to start carrying out the asylum process until the settlement agreement is formally approved at a hearing scheduled for Nov. 15. Mr. Stewart claimed the government faces a "significant legal risk" in implementing the settlement prior to final approval, noting "the government needs to be careful" because some objections to the settlement could come in that would prevent approval. Judge Sabraw knocked down Stewart's contention in a five-page order on Oct. 18, noting the asylum process was triggered once election forms were signed by class members – not when the court grants final approval of the agreement. "The provision of notice and reviews and interviews under this paragraph are not dependent on the court's ‘approval' of the agreement. Rather, they are triggered by the class member's execution of the election form," Judge Sabraw found. "Those are the plain terms of the agreement, and they are consistent with defense counsel's repeated representations to the court and plaintiffs' counsel that defendants wanted to proceed expeditiously and ‘get moving on this,'" Judge Sabraw added. The agreement requires the government to provide notice of orientation for class members' credible fear interview process "no later than three days" from when a parent or child signs the waiver to pursue asylum. Those interviews must be conducted within 48 hours after the class member receives orientation about the process, according to the settlement. The judge also found Stewart's concern the settlement might not be approved "is a theoretical possibility" that "there is no indication will occur," noting the only objection filed so far was actually a request to be included in the settlement and "not an objection to the merits of the agreement." Judge Sabraw found no prejudice to the government in implementing the credible fear interviews under the asylum process for the 60 people who have opted into the settlement, noting: "Defendants have a statutory obligation to provide class members access to asylum procedures." He added: "Providing that access now as opposed to later does not prejudice defendants." A status conference in the family separation litigation is scheduled for Nov. 9. VAILS GATE CLEANERS: Aguilo Suit to Recover Unpaid Wages -------------------------------------------------------- Mireya Aguilo, individually and on behalf of all others similarly situated, Plaintiff, v. Vails Gate Cleaners Inc., Exit 9, LCC and Richard Massimi, jointly and severally, Defendants, Case No. 18-cv-08850, (S.D. N.Y., September 27, 2018) seeks to recover unpaid minimum wages and overtime premium pay owed pursuant to both the Fair Labor Standards Act and the New York Labor Law including claims for unpaid spread-of-hours premiums, unlawfully withheld gratuities and for failure to provide proper wage notices and wage statement violations. Defendants operate laundry and dry cleaning locations in Orange County, New York, where Aguilo is a former clothing folder and ironing employee. She typically worked well in excess of 40 hours each week and was paid an hourly rate that did not include overtime premiums for hours worked over 40 in a given workweek and was not paid the statutory minimum wage. Plaintiff also did not receive accurate wage notices or wage statements, says the complaint. [BN] The Plaintiff is represented by: Brent E. Pelton, Esq. Taylor B. Graham, Esq. PELTON GRAHAM LLC 111 Broadway, Suite 1503 New York, NY 10006 Telephone: (212) 385-9700 Email: pelton@peltongraham.com graham@peltongraham.com Website: www.PeltonGraham.com VILLA ITALIA: Honeywell Files ADA Suit in Florida ------------------------------------------------- A class action lawsuit has been filed against Villa Italia Management LLC. The case is styled as Cheri Honeywell individually and on behalf of all others similarly situated, Plaintiff v. Villa Italia Management LLC a Florida limited liability company, Defendant, Case No. 0:18-cv-62526-WPD (S.D. Fla., Oct. 22, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Villa Italia is located near South Beach. Their hotel and private villa are located in a listed building dating back to Miami's Art Deco period.[BN] The Plaintiff is represented by: Jessica Lynn Kerr, Esq. Jessica L.Kerr, P.A. dba The Advocacy Group 200 S.E. 6th Street, Suite 504 Fort Lauderdale, FL 33301 Phone: (954) 282-1858 Fax: (844) 786-3694 Email: service@advocacypa.com WARNER CHILCOTT: 1st Cir. Flips Class Cert in Asacol Antitrust Suit ------------------------------------------------------------------- The United States Court of Appeals, First Circuit, issued an Opinion reversing the District Court's judgment granting Plaintiffs' Motion for Class Certification in the case captioned IN RE: ASACOL ANTITRUST LITIGATION. UNITED FOOD & COMMERCIAL WORKERS UNIONS AND EMPLOYERS MIDWEST HEALTH BENEFITS FUND, on behalf of itself and all others similarly situated; MARK ADORNEY, Plaintiffs, TEAMSTERS UNION 25 HEALTH SERVICES & INSURANCE PLAN, on behalf of themselves and all others similarly situated; NECA-IBEW WELFARE TRUST FUND, on behalf of themselves and all others similarly situated; WISCONSIN MASONS' HEALTH CARE FUND, on behalf of itself and all others similarly situated; MINNESOTA LABORERS HEALTH AND WELFARE FUND, on behalf of itself and all others similarly situated; AFSCME HEALTH AND WELFARE FUND; PENNSYLVANIA EMPLOYEES BENEFIT TRUST FUND; AHOLD U.S.A., INC.; ROCHESTER DRUG CO-OPERATIVE, INC.; VALUE DRUG COMPANY; MEIJER, INC.; MEIJER DISTRIBUTION, INC., Plaintiffs, Appellees, v. WARNER CHILCOTT LIMITED; ALLERGAN, INC., f/k/a Actavis, PLC; ALLERGAN USA, INC.; ALLERGAN SALES, LLC; ALLERGAN, PLC, Formerly known as Actavis, PLC, Defendants, Appellants, ZYDUS PHARMACEUTICALS USA INC.; CADILA HEALTHCARE LIMITED; WARNER CHILCOTT (US), LLC; WARNER CHILCOTT SALES (US), LLC; WARNER CHILCOTT COMPANY, LLC, Defendants. No. 18-1065. (1st Cir.). Drug manufacturer Warner Chilcott Limited pulled one of its products, Asacol, from the market just months before the drug's patent protection expired. Warner simultaneously introduced a similar but not exactly identical substitute drug called Delzicol, the patent protection for which ran years longer. This coordinated withdrawal and entry of the two drugs allegedly precluded generic manufacturers from introducing a generic version of Asacol, which would have provided a lower-cost alternative to Warner's drugs Delzicol and Asacol HD, a version of Asacol that was also still under patent protection. Crying foul, the named plaintiffs in this case filed a class action alleging a violation of the consumer protection and antitrust laws of twenty-five states and the District of Columbia. The Plaintiffs moved for class certification on behalf of a class of all similarly situated indirect purchasers, including any individual consumers who purchased the relevant Warner products from drug retailers in the twenty-six jurisdictions. The district court granted the plaintiffs' motion for class certification. Rejecting Warner's argument to the contrary, the district court concluded that the named plaintiffs had standing to prosecute claims on behalf of class members under various state laws even if the named plaintiffs themselves had not made purchases in all those states. Warner presents two primary challenges. First, it argues that, because the named plaintiffs only made purchases in four states, they lack Article III standing to assert claims under the laws of states in which they did not make purchases. Second, Warner takes issue with the district court's decision to certify a class containing uninjured class members. The claims of the named plaintiffs parallel those of the putative class members in the sense that, assuming a proper class is certified, success on the claim under one state's law will more or less dictate success under another state's law. Even while arguing that there may be a few subtle differences in the attitudes of some state courts toward such claims, Warner concedes that the parties do agree that Plaintiffs' liability theories as to monopolization are limited to a construction of state antitrust laws that parallel the federal Sherman Act. Under those parallel laws, all plaintiffs who were forced to pay a higher price in the absence of generic competition have a substantial and shared interest in proving that the higher price was the result of unlawful monopolizing conduct that is redressable by an award of damages. And the fact that judgments for some class members will nevertheless enter under the laws of states other than the states under which any of the class representatives' judgments will enter, where those laws are materially the same, has no relevant bearing on the personal stake of the named plaintiffs in litigating the case to secure such judgments. It is true that, in order to prevail on their claims, the named plaintiffs need not prove where a class member resides, or where the class member made a purchase. But that same thing could be said of the named plaintiffs' need to prove that any class member made a purchase anywhere, even in the states under which the named plaintiffs' claims arise. As the Court have previously observed, in a properly certified class action, the named plaintiffs regularly litigate claims of other class members based on transactions in which the named plaintiffs played no part. In any event, having reviewed the parties' competing critiques, the Court finds no clear material error in the district court's factual approximation. So, the question thus becomes: Can a class be certified in this case even though injury-in-fact will be an individual issue, the resolution of which will vary among class members? Here, though, the record is clear that plaintiffs do not propose to rely on unrebutted testimony to eliminate the question of injury-in-fact before trial. And, unlike in Nexium, defendants have expressly stated their intention to challenge any affidavits that might be gathered. Nor do plaintiffs point to any basis in the record for deeming all such challenges to be so implausible as to warrant a finding that we can consider the issue to be uncontested. Warner has explained that some class members stopped taking and will therefore have no record of purchasing Asacol anywhere between 2009 and 2012, and some class members when asked will admit a preference for DBP-free medication such as Delzicol. "Our inability to fairly presume that these plaintiffs can rely on unrebutted testimony in affidavits to prove injury-in-fact is fatal to plaintiffs' motion to certify this case. Testimony that is genuinely challenged, certainly on an element of a party's affirmative case, cannot secure a favorable summary judgment ruling disposing of the issue. And the affidavits would be inadmissible hearsay at trial, leaving a fatal gap in the evidence for all but the few class members who testify in person. Nor have the plaintiffs provided any basis from which we could conclude that the number of affidavits to which the defendants will be able to mount a genuine challenge is so small that it will be administratively feasible to require those challenged affiants to testify at trial," the Court held. Relatedly, this is not a case in which a very small absolute number of class members might be picked off in a manageable, individualized process at or before trial. Rather, this is a case in which any class member may be uninjured, and there are apparently thousands who in fact suffered no injury. The need to identify those individuals will predominate and render an adjudication unmanageable absent evidence such as the unrebutted affidavits assumed in Nexium, or some other mechanism that can manageably remove uninjured persons from the class in a manner that protects the parties' rights. And, as the Court have already explained, the process on which the district court relied is not such a mechanism. The Plaintiffs' fallback argument, urged most prominently on appeal, is that, at trial, they will prove class-wide impact with the testimony of their expert, Dr. Conti, and with defendants' own documents and admissions. But plaintiffs point to no documents or admissions that would support a finding that all class members suffered injury. So this argument on appeal comes down to their claim that they will prove class-wide impact at trial with the testimony of their expert, Dr. Conti. The Plaintiffs argue that we should nevertheless approve of their proposed approach because it protects Warner from any practical harm that might otherwise be caused by removing questions of individual injury-in-fact from the jury. Warner would only be found liable and forced to pay damages if the jury found that Warner's actions unlawfully raised the price paid by consumers by a specified amount, and if the jury also determined the percentage of sales for which that price surcharge would not have been paid but for the illegal conduct. The total aggregate damages award would therefore in theory net out all purchases by brand loyal consumers as a group. The fact that some of that money might then be paid to uninjured people should be of no concern to Warner, say plaintiffs. This argument confuses different types of aggregate damages scenarios. In some cases, the total damage caused by the defendant is independent of the number and identity of people harmed. Newberg gives as an example a trustee's theft of money from a pension fund. Id. Such a case perhaps might be tried as a class action without causing any harm to the defendant no matter how the recovered funds are allocated among the beneficiaries (although there would still be the question whether Article III nevertheless precludes per se the knowing use of a civil suit to make an award to an uninjured person. In many other instances, as here, the aggregate damage amount is the sum of damages suffered by a number of individuals, such that proving that the defendant is not liable to a particular individual because that individual suffered no injury reduces the amount of the possible total damage. Furthermore, here the district court has reasonably presumed that determining whether any given individual was injured (and therefore has a claim) turns on an assessment of the individual facts concerning that person. In such a case, the defendant must be offered the opportunity to challenge each class member's proof that the defendant is liable to that class member. Whether that opportunity precludes class certification turns on whether such challenges are reasonably plausible in a given case and whether the plaintiff cannot demonstrate that allowing for such challenges in a manner that protects the defendant's rights will be manageable and superior to the alternatives. Accepting plaintiffs' proposed procedure for class litigation would also put us on a slippery slope, at risk of an escalating disregard of the difference between representative civil litigation and statistical observations of tendencies and distributions. Once one accepts plaintiffs' no harm, no foul position there would be no logical reason to prevent a named plaintiff from bringing suit on behalf of a large class of people, forty-nine percent or even ninety-nine percent of whom were not injured, so long as aggregate damages on behalf of the class were reduced proportionately. Such a result would fly in the face of the core principle that class actions are the aggregation of individual claims, and do not create a class entity or re-apportion substantive claims. Accordingly, the First Circuit reverses the decision of the district court granting class certification, and remands for further proceedings in accord with this opinion. A full-text copy of the First Circuit's October 15, 2018 Opinion is available at https://tinyurl.com/yd5orns3 from Leagle.com. J. Mark Gidley -- mgidley@whitecase.com -- with whom Peter J. Carney -- pcarney@whitecase.com -- Dana Foster -- defoster@whitecase.com -- Matthew S. Leddicotte -- mleddicotte@whitecase.com -- Jaclyn Phillips -- jaclyn.epstein@whitecase.com -- Maxwell J. Hyman -- maxwell.kalmann@whitecase.com -- Robert A. Milne -- rmilne@whitecase.com -- Jack E. Pace III -- jpace@whitecase.com -- Bryan D. Gant -- bgant@whitecase.com -- Kelly Newman -- kelly.newman@whitecase.com -- and White & Case LLP were on brief, for appellants. Richard A. Samp and Marc B. Robertson on brief for Washington Legal Foundation, amicus curiae. Justin N. Boley -- jnb@wexlerwallace.com -- jnb@wexlerwallace.com -with whom Kenneth A. Wexler -- kaw@wexlerwallace.com -- Tyler J. Story -- tjs@wexlerwallace.com -- Wexler Wallace LLP, Tyler W. Hudson -- THUDSON@WCLLP.COM -- Eric D. Barton -- EBARTON@WCLLP.COM -- David Barclay, Wagstaff & Cartmell, LLP, Nathaniel L. Orenstein, Todd A. Seaver, Berman Tabacco, Daniel E. Gustafson, Karla M. Gluek, Michelle J. Looby, Joshua J. Rissman, Gustafson Gluek PLLC, Jeffrey L. Kodroff -- jkodroff@srk-law.com -- William G. Caldes -- bcaldes@srkattorneys.com -- John A. Macoretta -- jmacoretta@srkattorneys.com -- Spector Roseman Kodroff & Willis, P.C., Peter J. Mougey -- pmougey@levinlaw.com -- Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A., Jonathan D. Karmel, and Karmel Law Firm, were on brief, for appellees. WARNER MUSIC: Leonard Williams Files Royalties Class Action ----------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that Leonard Williams (Tower of Power) filed a class action against Warner Music Group, claiming it uses Hollywood accounting to defraud musicians of royalties from international streaming, in L.A. Superior Court. WEBASTO: Settles Class Action Over Parking Heaters for $15MM ------------------------------------------------------------ Transport Topics reports that two settlements worth up to $15 million have been reached with Webasto and Espar in a class-action lawsuit, the U.S. District Court for the Eastern District of New York announced. Named as defendants were: Webasto Products North America Inc., Webasto Thermo & Comfort North America Inc. and Webasto Thermo & Comfort, Eberspaecher Climate Control Systems GmbH & Co. KG, Espar Inc. and Espar Products Inc. At issue was whether Webasto and Espar participated in an unlawful conspiracy to raise, fix, maintain and/or stabilize the price of aftermarket parking heaters -- heaters and accessories used to heat commercial vehicles -- at artificially high levels, according to the court. Webasto and Espar denied the allegations in the lawsuit but agreed to settle. The court will hold a fairness hearing Jan. 9 to consider whether to finally approve the settlements. The settlements include all persons or entities that purchased aftermarket parking heaters in the United States, its territories or possessions, directly from Webasto or Espar, or from any of their parents, predecessors, successors, subsidiaries or affiliates, from Oct. 1, 2007, through Dec. 31, 2012. The settlements offer automatic payments to class members. If a class member received a notice in the mail and the settlement is approved, a claim does not need to be filed to receive a payment. Estimated payments will be calculated based on available purchase data. Anyone who believes they are a class member and did not receive a notice in the mail should visit DirectParkingHeaterSettlement.com or call toll-free 1-888-396-9582. [GN] WESTSIDE SUPERMARKET: Nixon Suit Asserts ADA Violation ------------------------------------------------------ A class action lawsuit has been filed against Westside Supermarket, LLC. The case is styled as Donald Nixon on behalf of himself and all others similarly situated, Plaintiff v. Westside Supermarket, LLC, Defendant, Case No. 1:18-cv-05859 (E.D. N.Y., Oct. 19, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Westside Supermarket LLC was founded in 2004. The company's line of business includes the retail sale of a range of canned foods and dry goods.[BN] The Plaintiff appears pro se. WPX ENERGY: Appeal in Anderson Class Certification Denial Nixed --------------------------------------------------------------- In the case, THE ANDERSON LIVING TRUST, f/k/a The James H. Anderson Living Trust; ROBERT WESTFALL; MINNIE PATTON SCHOLARSHIP FOUNDATION TRUST, Plaintiffs-Appellants, and THE PRITCHETT LIVING TRUST; CYNTHIA W. SADLER; LEE WILEY MONCRIEF 1988 TRUST; KELLY COX TESTAMENTARY TRUST 7/1238401; SWMF PROPERTIES, INC., Plaintiffs, v. WPX ENERGY PRODUCTION, LLC, f/k/a WPX Energy San Juan, LLC and Williams Production Company, LLC; WPX ENERGY ROCKY MOUNTAIN, LLC, f/k/a Williams Production RMT Company, LLC, Defendants-Appellees, Case No. 17-2029 (10th Cir.), Judge Gregory A. Phillips of the U.S. Court of Appeals for the Tenth Circuit dismissed the appeal from the district court's denial of class certification. The Trusts and more than 1,000 putative class members (as lessors), and WPX (as lessee), are signatories to 507 separate gas leases covering 3,157 gas wells in the San Juan Basin -- 2,889 in New Mexico and 268 in Colorado. WPX holds the working interests in these leases, entitling it to develop and produce the hydrocarbons beneath the leased land. For their part, the Trusts and putative class members retain royalty interests, overriding royalty interests, or both, in the hydrocarbons produced. On Dec. 5, 2011, the Trusts filed a putative class action against WPX in New Mexico state court, alleging seven claims: (1) that WPX underpaid royalties and overriding royalties; (2) that WPX committed fraud, misstated the value of the hydrocarbons, and wrongly participated in affiliate sales;4 (3) that WPX breached its duty to market the hydrocarbons developed from the leases; (4) that WPX violated the New Mexico Oil and Gas Proceeds Payment Act; (5) that WPX breached the lease contracts by acting in bad faith; (6) that WPX unjustly enriched itself; and (7) that WPX converted the Trusts' and putative class members' royalties and overriding royalties. WPX removed the case to the United States District Court for the District of New Mexico. Two years into the litigation, the Trusts moved to certify their claims as a class action. WPX opposed the motion. On March 19, 2015, the district court declined to certify the class. The Trusts filed a Motion to Reconsider, which the court also denied. Four months later, the Trusts filed a Fifth Amended Complaint, alleging an additional class claim: that WPX had breached its duty to sell the Trusts' and putative class members' hydrocarbons at the highest obtainable price and to pay them royalties and overriding royalties based on that price. Citing Fed. R. Civ. P. 23(d)(1)(D), WPX moved to strike the Fifth Amended Complaint's class allegations bearing on the new claim -- the duty to sell the hydrocarbons at the highest obtainable price -- arguing that the court had already denied class certification. But, noting that the Trusts hadn't asserted this highest-obtainable-price claim in their first certification motion, the court refused to strike the class allegations based on this additional claim. The district court said the Trusts could move to certify the new claim. Instead of moving to certify the additional class claim, the Trusts settled with WPX. The parties jointly moved to enter a stipulated judgment dismissing the Trusts' individual claims, advising that all of the Plaintiffs' claims for relief alleged in the Action are dismissed with prejudice pursuant to the settlement between the parties. In the judgment, the Trusts reserved any rights they may have to appeal the Court's Order denying their motion for class certification, including the Court's denial of the Plaintiffs' motion for reconsideration thereof. A month later, the Trusts appealed the orders denying class certification and reconsideration. After oral argument in the Trusts' appeal, the Appellate Court ordered supplemental briefing on whether it has jurisdiction to decide the appeal. The parties timely submitted their briefs. The Trusts contend (1) that the parties settled for full and fair value; (2) that the Court has jurisdiction under 28 U.S.C. Section 1291 to review their appeal without transgressing Baker; and (3) that the Court has have Article III jurisdiction to review their appeal. WPX disputes the Trusts' claims, arguing (1) that whether the settlement figure constituted full and fair value for the Trusts' individual claims can't be determined; (2) that Baker establishes that we have no statutory appellate jurisdiction under Section 1291; and (3) that the Court lacks Article III jurisdiction over the Trusts' appeal. Judge Phillips finds that like the named plaintiffs in Microsoft Corp. v. Baker, the Trusts seek appellate review under Section 1291 of an order denying class certification. But unlike the named plaintiffs in Baker, the Trusts didn't act unilaterally -- they first settled their individual claims against WPX for consideration, and then voluntarily dismissed their claims with prejudice. Emphasizing this distinction, the Trusts contend that Baker doesn't control the case. The settlement, they claim, puts them in no different posture than had they litigated their claims to a positive, final judgment by jury trial. Guided by Baker's three-drawback framework, the Judge disagrees. First, as in Baker, the danger of protracted litigation and piecemeal appeals remains even when named plaintiffs have settled their individual claims. Second, like the Baker named plaintiffs' voluntary-dismissal tactic, the Trusts' settlement approach would disturb Rule 23(f)'s discretionary appellate-review regime. Third, the Trusts' settlement approach, like the voluntary-dismissal tactic, gives the Plaintiffs the advantage. Finding daylight between the Baker named plaintiffs' voluntary-dismissal tactic and the Trusts' settlement approach requires splitting hairs. Voluntary dismissal is functionally a settlement for nothing. That the Trusts managed to procure a price for the dismissal of their individual claims is simply a new take on the old voluntary-dismissal tactic. The Trusts can't turn the district court's class-certification denial, an inherently interlocutory order, into a final, appealable order within the compass of 28 U.S.C. Section 1291 by settling their individual claims. To hold otherwise would disrupt Rule 23(f)'s careful calibration. For the reasons stated, Judge Phillips dismissed the appeal for lack of jurisdiction. He denied the Trusts' motion to certify. He granted WPX's motion for leave to file the settlement agreement in support of their response to the Trusts' motion to certify; denied WPX's motion to file a sur-reply to the Trusts' reply brief; and denied the Trusts' motion for leave to file a reply to WPX's response to the Trusts' Rule 28(j) letter. A full-text copy of the Court's Sept. 21, 2018 Order is available at https://is.gd/h8dJHV from Leagle.com. Bradley Brickell, Brickell & Associates, P.C., Norman, Oklahoma, for Plaintiffs-Appellants. Mark F. Sheridan -- msheridan@hollandhart.com -- Holland & Hart LLP, Santa Fe, NM, (Stephen G. Masciocchi -- smasciocchi@hollandhart.com -- Denver, CO, and Robert J. Sutphin, Jr. -- rsutphin@hollandhart.com -- with him on the briefs), for Defendants-Appellees. XOOM ENERGY: Court Grants Bid to Dismiss Mirkin Suit ---------------------------------------------------- In the case, SUSANNA MIRKIN and BORIS MIRKIN, Individually and on behalf of all others similarly situated, Plaintiffs, v. XOOM ENERGY, LLC and XOOM ENERGY NEW YORK, LLC, Defendants, Case No. 18-cv-2949-ARR-RER (E.D. N.Y.), Judge Allyne R. Ross of the U.S. District Court for the Eastern District of New York granted the Defendants' motion to dismiss in its entirety. The Plaintiffs Susanna Mirkin and Boris Mirkin, a married couple residing together in Brooklyn, bring the putative class action against XOOM. They assert claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and unjust enrichment arising out of their March 2013 agreement to obtain residential electricity services from XOOM, an independent energy service company. In March 2013, Boris Mirkin created an application on XOOM's website to begin receiving residential electricity services through the company's SimpleFlex Variable Rate Plan. Shortly thereafter, XOOM sent the Plaintiffs an Electricity Sales Agreement which described the company's pricing policies and services. The Plaintiffs began receiving electricity supplied by XOOM two months later, in May 2013. For the first month of the agreement, XOOM charged the Plaintiffs a teaser rate of 8.99¢/kWh. During the months that followed, it increased its rates to "exorbitant" levels. The Plaintiffs do not object to the fact that their rates increased per se, but they allege that the extent of the increase and the subsequent rates they were charged did not comply with their reasonable expectations under the agreement. Pursuant to the agreement, XOOM stated that it would provide energy services to the Plaintiffs at a variable rate, per kWH, that may change on a monthly basis. Yet instead of reflecting the price of electricity on the wholesale market, XOOM's monthly variable rates were not commensurate with XOOM's supply costs. After growing increasingly dissatisfied with XOOM's rates, the Plaintiffs cancelled their service with the company in November 2013. In April 2018, they filed the complaint in New York State Supreme Court in Kings County. A month later, the Defendants removed the case to the Court pursuant to the Class Action Fairness Act. XOOM's motion to dismiss argues that the Plaintiffs have failed to state a claim upon which relief can be granted. Specifically, they argue that the agreement gave them the authority to set variable rates based on a non-exhaustive set of factors, and not, as the Plaintiffs have invented, an unknown yet somehow hyper-specific Market Supply Rate that is nowhere to be found in the four corners of the parties' contract. Judge Ross does not agree with XOOM that the Plaintiffs' failure to use the disputeresolution provisions compels dismissal of their claims. Read in the light most favorable to the Plaintiffs, he finds that the dispute-resolution clause of the agreement does not impose a mandatory exhaustion requirement upon XOOM's customers. Furthermore, it is not even entirely clear that the dispute resolution provision would apply to the Plaintiffs' complaints, which allege systemic violations rather than a discrete billing dispute. Analyzing each of the Plaintiffs' three causes of action separately to determine whether the complaint alleges sufficient facts to support each claim, he finds that the Plaintiffs fail to state a claim for (i) breach of contract, a breach of the implied covenant of good faith and fair dealing, and unjust enrichment. For these reasons, Judge Ross granted XOOM's motion to dismiss in its entirety. The clerk of Court is directed to enter judgment accordingly and close the case. A full-text copy of the Court's Sept. 21, 2018 Opinion and Order is available at https://is.gd/0Ch9rc from Leagle.com. Susanna Mirkin, individually and on behalf of all others similarly situated & Boris Mirkin, individually and on behalf of all others similarly situated, Plaintiffs, represented by Steven L. Wittels -- slw@wittelslaw.com -- Law Offices of Steven L. Wittels, Andrey Belenky -- abelenky@kheyfits.com -- Kheyfits Belenky LLP, Daniel Hymowitz -- daniel@hymowitzlaw.com -- Hymowitz Law Group, PLLC, Dmitry Kheyfits -- dkheyfits@kheyfits.com -- Kheyfits Belensky LLP, James Burkett McInturff, III -- jbm@wittelslaw.com -- Law Offices of Steven L. Wittels & Tiasha Palikovic -- tpalikovic@wittelslaw.com -- Wittels Law, P.C. XOOM Energy, LLC & XOOM Energy New York, LLC, Defendants, represented by Christopher Andrew Rojao, McCarter & English LLP, Jean Paige Patterson , McCarter & English LLP, Gateway Four & Zane Christian Riester -- zriester@mccarter.com -- McCarter & English. YELLOWSTONE CLUB: H-2B Jamaican Workers File Class Action --------------------------------------------------------- David Madison, writing for Lone Peak Lookout, reports that for many on "team Jamaica," last winter was the beginning of a mutually beneficial relationship. Around 84 Jamaicans relocated to Montana for the 2017-18 ski season in order to fill a variety of hospitality positions at the Yellowstone Club. In an email from the YC this past June, the private club begins with an enthusiastic "Hello team Jamaica!" before promising, "We will be in touch regarding next winter season soon." The club reports "a significant number" of Jamaican workers will return for the 2018-19 ski season. A handful who won't return are part of a recently filed lawsuit over tips allegedly owed to servers and bartenders. "We are constantly running short of Bartenders . . . this is a critical position we need to fill," states an employment document included in the lawsuit submitted to federal U.S. District Court in Montana on Sept. 20. The suit goes on to allege the YC recruited Jamaican workers using the H-2B program, but then denied these staffers the full compensation owed to them. The Yellowstone Club refutes the allegations raised in the lawsuit and it's unclear how many Jamaican staffers support the suit. "During their employment at the Yellowstone Club," asserts the class action complaint, "Plaintiffs and those similarly situated suffered from illegal pay practices." The suit only names five ex-employees -- Nicholas Douglas, Tasheka Bryan, Junior Harris, Marcus Richards and Stephanie Smith -- before alleging they were intentionally denied "$400-$600 a night at the nicest restaurants" where tips are automatically factored in as a service charge. At the end of last winter, the Jamaican YC staffers approached the Southern Poverty Law Center in Alabama, which referred the case to another legal nonprofit -- Towards Justice -- in Denver. The YC's Jamaican staff told their attorneys they complained all winter about the missing wages. These bartenders and servers reportedly watched as their non-Jamaican coworkers collected tips while they received only hourly wages in their paychecks. On Oct. 1, the Yellowstone Club responded to the suit in a statement, saying, "The H-2B visa workers were not employed by Yellowstone Club, and instead, were employed by a widely used hospitality staffing company with expertise in the H-2B visa programs for resorts, hotels, and private clubs throughout the United States." Hospitality Staffing Solutions based in Atlanta, Ga., according to court documents, "was hired by Yellowstone (Club) to assist in acquiring, supervising and administering Jamaican workers." Through spokesperson Chris Tofalli, HSS declined to comment "due to pending litigation." In its email to the Jamaican workers, the YC tried to clear up any confusion, stating some of the missing wages were covered in bonus payments the workers received. The YC then told the Jamaicans, "Unfortunately, HSS also took money out on some of you which we did not expect them to do… in cases where there was damage to your cabins, HSS took money out. We can't do anything about that." HSS housed their employees at the 320 Guest Ranch. After asking about the missing wages last winter, the court documents allege, "Those who complained were threatened with being sent back to Jamaica if the complaints continued." Meanwhile, the cycle repeated following each paycheck, according to the complaint, as the, "Defendants blamed the other, with Yellowstone claiming HSS was responsible for payroll and HSS claiming the decisions governing payroll were made by Yellowstone." Those Jamaican staff returning this winter will be employed directly by the YC. At some point in the middle of the 2017-18 ski season, alleges the complaint, "There was a meeting between HSS CEO Tim McPherson and the Jamaican servers, cooks, and bartenders… In that meeting, Mr. McPherson stated that black Jamaican H-2B would not receive tips because '[they] were not from here.'" The suit continues: "For example, black Jamaican H-2B workers were denied transportation on Yellowstone Club employee shuttles. One shuttle driver (identified only by a first name), an agent of Yellowstone, refused to allow black Jamaican H-2B workers to ride his hourly shuttle to and from the nearby town of Big Sky. (Shuttle driver) claimed that the Yellowstone Club policy was to refuse to take black Jamaican H-2B workers back to town on the shuttle because they were Jamaican." When challenged about how attorneys at Towards Justice vetted these incendiary charges, a spokesperson said the same claims were made by multiple witnesses. There's no specific evidence presented in the current court file showing the Jamaicans' alleged trouble with the shuttle driver was anything more than an unfortunate encounter with a difficult shuttle driver. The file does offer another anecdote about the shuttle driver: "On another occasion, Plaintiff Douglas was told by (shuttle driver) that black Jamaicans should 'speak English' when they rode the bus, or he would 'run this f*&^%g bus over the cliff.' He was angry because he could not understand the black Jamaicans' accented English." The Jamaicans' suit alleges it all adds up to "a fraudulent scheme to induce Jamaican workers to work at the Yellowstone Club by making false representations" to not only the workers but the Jamaican Ministry of Labor and U.S. Dept. of Labor. On the job, one plaintiff was allegedly "required to clean fryers while non-black, non-Jamaican, non-H-2B cooks were not required to do this dangerous and unpleasant job." There were other alleged unpleasantries, including the charge that Jamaicans were relegated to the "low-end Yellowstone Club restaurant" and not allowed to work high-paying special events. However, other than observations made by the plaintiffs, nothing in the complaint shows management decisions were based on a bias instead of the skills and seniority of available staff. David Seligman, attorney and director at Towards Justice, described his Jamaican clients as a courageous group of workers who came forward via the Southern Poverty Law Center to vindicate their rights. "This case illustrates how low-wage immigrant workers are constantly exploited, even under the noses of the very rich and the very powerful," said Seligman. "The black Jamaican workers we represent allege they were paid worse than the non-black, non-Jamaican workers they worked shoulder to shoulder with every day," added Mary Jo Lowrey, managing attorney at Lowrey Parady, a law firm in Denver working with Towards Justice on the case. "We believe this alleged uniform poor treatment of black Jamaicans warrants certification and trial as a class action so that every black Jamaican H-2B worker at the Yellowstone Club can be paid the same as their co-workers." So far, the class action only names five of the more than 80 Jamaican staff who worked at the YC last winter. In its initial statement responding to the suit, the Yellowstone Club doesn't address each charge specifically. That could come later in a formal legal refutation and filing of evidence countering the Jamaicans' claims. For now, the YC sums up the situation like this: "We find these allegations deeply disturbing. Yellowstone Club values all of our employees as well as those individuals providing services to Yellowstone Club as an employee of a third party contractor, and we continue to strive to be the work place of choice in Southwest Montana. We take any claims related to employment and work place issues very seriously and are currently investigating the allegations in the complaint."[GN] YOSSI'S FISH: Faces Milian Suit in Eastern District of New York --------------------------------------------------------------- An employment-related class action lawsuit has been filed against Yossi's Fish Market, Corp. d/b/a Yossi's Fish Market. The case is captioned as ISMAEL HERNANDEZ MILIAN, individually and on behalf of all others similarly situated, Plaintiff v. YOSSI'S FISH MARKET, CORP. D/B/A YOSSI'S FISH MARKET, Defendant, Case No. 1:18-cv-05485 (E.D.N.Y., Oct. 1, 2018). Yossi's Fish Market, Corp. d/b/a Yossi's Fish Market is a pet store in Brooklyn, New York. [BN] The Plaintiff is represented pro se. Asbestos Litigation ASBESTOS UPDATE: $43.1MM Asbestos Death Verdict ----------------------------------------------- Benzinga reported that a lawsuit brought against both asbestos and tobacco defendants resulted in a substantial verdict for the Plaintiff, Joanna Summerlin. After four days of deliberation, the eleven-member jury delivered a verdict in favor of the Summerlin family that totaled $43.1 million. The judgement, against cigarette maker R.J. Reynolds, encompassed $5.3 million for pain and suffering, $3.5 million for loss of consortium, $4.3 million for wrongful death, and $30 million in punitive damages. The jury found that the products of co-defendants Philip Morris and Hampden Automotive Sales Corporation were defective, but were not a cause of Mr. Summerlin's lung cancer. When Louis Summerlin was diagnosed with lung cancer in 2015, he and wife Joanna Summerlin filed suit against cigarette makers Philip Morris and R.J. Reynolds, and several asbestos-containing brake companies, including Hampden Automotive Sales Corporation. Louis had been a heavy smoker, having started smoking menthol cigarettes as a teenager in the 1950s. He had also worked for many years as an automobile brake mechanic, at one point doing 3-4 brake jobs a day, six days a week. He passed away 7 months after his diagnosis. Before he died, he gave videotaped trial testimony that was shown to the jury during trial. Summerlin's lawyers, Michael Shepard of Shepard Law, P.C. and Jerry Block of Levy Konigsberg, LLP, presented evidence to the jury over the course of five weeks showing Mr. Summerlin's addiction to menthol cigarettes and his exposure to asbestos dust from grinding brake linings. Neither the cigarettes nor the asbestos brake linings came with a warning about their health hazards. The jury heard evidence about what tobacco companies knew regarding cigarette smoking by the 1950s and were shown internal company documents revealing that the amount of nicotine was precisely calculated and manipulated to initiate and sustain addiction in smokers. Documents also revealed that tobacco companies knew that adding menthol to cigarettes made it more likely for teenagers to start smoking, easier to create addiction in smokers, and harder for smokers to quit. The jury also heard evidence that Hampden Automotive had ignored the dangerous nature of asbestos dust and had neglected to test their brake linings to see if they released toxic asbestos fibers. Michael Shepard presented evidence showing that the hazards of asbestos were well established in the medical and scientific literature by the late 1950s, and that Mr. Summerlin's work grinding Hampden Automotive's brake linings exposed him to billions of asbestos fibers each year. The jury was swayed by the evidence of the manipulation of nicotine and menthol and by evidence that the tobacco companies had created confusion and controversy for decades by publicly debating the health effects of smoking. Internal company documents showed that tobacco companies understood the true nature of those health effects and the jury found RJ Reynolds fraudulent in what they told their customers about the nature of their cigarettes. "This was the result of a tremendous team effort between the lawyers and support staff at Shepard Law and Levy Konigsberg," said Shepard. "The amount of work needed to try both a tobacco and an asbestos case at the same time was staggering." Shepard also commended the jury on staying focused during the five-week trial. "We appreciate the attention that the jury gave to the evidence. They saw through the defendants' attempts to blame our client for his cancer and clearly recognized the role of nicotine addiction and menthol additives in keeping him hooked on cigarettes." The case was tried in Suffolk Superior Court in Boston, in front of Judge Heidi Brieger. Jury selection began on September 5, 2018, and trial started on September 7. The Summerlin family was represented at trial by Michael Shepard, Michael McCann and Erika O'Donnell from Massachusetts-based Shepard Law, P.C. and Jerry Block, Bobby Ellis and Amber Long from New York City-based Levy Konigsberg LLP. Philip Morris was represented by Bill Geraghty and a team of attorneys from Shook Hardy & Bacon LLP, Mayer Brown LLP, and local counsel from Latham & Watkin's Boston office. RJ Reynolds was represented by Mark Belasic and Kaitlyn Kline from Jones Day's Cleveland office along with local counsel Conn Kavanaugh Rosenthal Peisch & Ford LLP. Hampden Automotive Sales Corporation was represented by David Governo and Vincent DePalo from Smith Duggan Buell & Rufo in Boston. Shepard Law is a Boston-based law firm and one of the top personal injury law firms in Massachusetts focusing on major asbestos claims involving mesothelioma or lung cancer, tobacco, dangerous drugs, and defective product liability. The firm has been litigating mesothelioma lawsuits in both state and federal courts for over 20 years and has represented victims of asbestos exposure throughout New England and across the United States. Michael Shepard is the founder of Shepard Law and was appointed this year as Plaintiff's Liaison Counsel in the Massachusetts Asbestos Litigation Docket. Michael McCann is an Associate at Shepard Law and specializes in representing victims of asbestos exposure throughout Massachusetts. ASBESTOS UPDATE: $850K Deal From G-I Holdings Meets Resistance -------------------------------------------------------------- Tena Starr of Barthon Chronicle reported that a plan to spend $850,000 in settlement money from G-I Holdings, a former owner of the big, long defunct asbestos mine in Lowell and Eden has met with resistance. The money, paid in full early this year, is supposed to offset environmental damage by improving natural resources similar to those that asbestos tailings from the mine might have contaminated. The money went to the Vermont Agency of Natural Resources (ANR) and the Department of the Interior. Representatives of the Vermont Department of Environmental Conservation and the U.S. Fish and Wildlife Service were designated trustees of the settlement and had to come up with a plan for how to spend the money. That plan largely consists of replacing culverts, with roughly half the settlement going to each town. Lauren Bennett of the Fish and Wildlife Service said in an e-mail that the projects primarily focus on replacing culverts "in order to improve in-stream habitat for aquatic organisms, improve fish passage, and improve flood resiliency for local communities." The settlement can't be used for cleanup at the mine site itself. ASBESTOS UPDATE: Asbestos Case Remanded to District Court --------------------------------------------------------- Charmaine Little of Legal News Line reported that on Sept. 27, the Supreme Court of Ohio reversed an appeals court judgment that denied Union Carbide's motion for dismissal of an asbestos lawsuit. The company is challenging whether a man's alleged smoking habit contributed to his lung cancer diagnosis. Justice Patrick Fischer authored the opinion. The major question of the case is whether the plaintiff, Bobby Turner, is a smoker. The Supreme Court pointed out plaintiffs that are labeled smokers and suffer from lung cancer after being exposed to asbestos have the burden of proving that it was the asbestos that contributed to the lung cancer. The proof can be fulfilled with a diagnosis from a medical expert. Those who don't smoke don't have to fulfill the requirement. While Turner didn't attempt to meet this burden of proof in his case, Union Carbide said medical records prove Turner has smoked. The company wanted him to be required to submit a written medical report to prove he's a nonsmoker. The Court of Appeals for Cuyahoga County denied this argument and the Supreme Court reversed. The Supreme Court remanded the case to the trial court for that court to decide if Union Carbide properly applied law that would call for a written report from a medical expert that specified Turner smoked what would equal to a pack a year for the last 15 years. The Supreme Court went on to point out the text in the statutory scheme says a defendant can oblige a plaintiff to satisfy certain requirements like the ones stated previously (proof that he smoked a pack a year for the last 15 years). Turner filed the lawsuit after he was diagnosed with lung cancer in 2013. He alleged the cancer diagnosis was because he was exposed to asbestos when he worked as a drywall finisher from 1962 to 1978. Union Carbide is the manufacturer of a product that allegedly included asbestos that Turner used during those years. ASBESTOS UPDATE: Asbestos Report Not Covered by Legal Privilege --------------------------------------------------------------- Jennie Curtin Blue Mountains Gazette reported that council's attempts to keep secret its asbestos reports have been dealt a blow after a freedom of information victory by a Mt Victoria resident. Mark Lipscombe, who applied to see the reports and was knocked back by council, appealed to the Information and Privacy Commission (IPC), which has ordered council to reconsider its decision. "This is a major victory for the community of the Blue Mountains who want to know what our council actually did and didn't do with regard to asbestos," said Mr Lipscombe. "The council declared in December 2017 that the reports would be made public and that this was a reason they should not be sacked by the minister. Then they changed their minds and have cloaked these reports in secrecy." Council had argued before the IPC that the reports, which were prepared by Michael Tooma of Clyde and Co, constituted "confidential communications between council and its legal representative" and so were protected under legal professional privilege. But the IPC review officer, Catherine Nguyen, said she was "not satisfied that Mr Tooma was engaged as a lawyer to provide legal advice and/or services. Rather, he was engaged to conduct an independent investigation. This does not constitute a client/lawyer relationship." She also noted that at an extraordinary meeting on December 15, 2017, council agreed to make the reports public. Council subsequently backed down from that undertaking. After much to-ing and fro-ing, councillors eventually resolved to release summaries of the reports, 31 days after the May 29 council meeting. Just days before that June deadline, the local government minister, Gabrielle Upton, announced the public inquiry into council. Council reacted again, saying: "The release of the summary could be seen to conflict with the conduct of the Inquiry." Its final position was that a summary of the reports would be prepared but that council would seek the views of the inquiry commissioner, Richard Beasley, SC, before deciding to release the information publicly. Council has been given until October 25 to respond. Cr Kerry Brown has called for an extraordinary meeting to consider the IPC findings. It will be held tonight. She said: "As the IPC has made clear, council cannot have its cake and eat it too. Either this was an investigation into matters of public interest and the ... community has the right to know or it was for legal advice on council liabilities and must therefore be kept secret. "I voted on the investigation for the first purpose and I am delighted that the IPC have upheld this as the primary intent." ASBESTOS UPDATE: Asbestos Settlement Money Plan Pushed Back ----------------------------------------------------------- Elizabeth Gribkoff of vtdigger.org reported that state and federal government representatives have unveiled a plan to direct asbestos mine settlement money toward replacing culverts in Eden and Lowell, but locals want to see the spending better align with the towns' roadwork priorities. "This is not fish versus Homo sapiens," wrote members of the Eden Selectboard in a letter commenting on the plan. "It is absolutely critical to balance economic and practical needs with the need to maintain conservation efforts." The closed asbestos mine on the flanks of Belvidere Mountain in Eden and Lowell remains a gray scar on an otherwise forested landscape. The state Agency of Natural Resources and the Department of the Interior jointly received $850,000 from the mine's prior owner, G-I holdings, as the result of a settlement reached in 2009. Representatives from the Vermont Department of Environmental Conservation and U.S. Fish and Wildlife Service, designated as trustees under the settlement, had to come up with a plan for how to spend the money. Per the terms of the settlement, the money — paid in full this year — must offset damage caused by the mine by improving natural resources similar to those that were contaminated, said Molly Sperduto, a biologist with U.S. FWS. As tailings from the mine had contaminated nearby streams, destroying habitat for fish and other wildlife, the trustees were looking for projects that would improve other nearby aquatic habitat, she said. Following a series of public meetings, the agencies unveiled a draft plan at the end of June to replace culverts in Eden and Lowell. John Schmeltzer, a hazardous waste project manager with the DEC, said that, in addition to addressing priorities for Eden and Lowell, "replacement of culverts can have a (positive) impact on habitat, especially for fish passage." "So what we were thinking is that culvert projects are pretty clear, defined projects that I think are beneficial to the town and also provide an ecological benefit." A common concern expressed in the 13 public comments to the plan was that the lion's share of Eden's portion of the settlement money would replace two culverts on Square Road — a class four, infrequently used road. Schmeltzer said the trustees had initially selected to replace culverts on Square Road based on assessments from fisheries biologists that this would reconnect "a long stretch" of blocked fish habitat. Leslie White, an Eden resident, was among the residents who requested that the trustees spend the money in a way more in line with town needs. "This is one-time money, which they have made it very clear . . . so to spend it on a road that's only a seasonal road" doesn't make sense, she said. Rep. Mark Higley, R-Lowell, and Sen. Bobby Starr, D-Essex-Orleans, sent a joint comment to the trustees requesting they spend the money on projects more line with the towns' priorities. The Eden Selectboard is content with the trustees' plan to put $60,000 toward replacing a double culvert on Knowles Flat Road, but want to see the rest of the money go toward replacing other culverts on that road, according to their letter. Higley described Knowles Flat Road as "a major thoroughfare" that "has been out of commission for a couple years" due to the failing culverts. This has created a safety problem for the town as emergency vehicles cannot get through, he said. Meanwhile, the Lowell Selectboard wrote that they would like the trustees to use the money for erosion control projects instead of replacing culverts on Irish Hill Road, noting that the town needed to reduce erosion to comply with roads permits. Schmeltzer said they would look into the possibility of spending more of the money on projects requested by the Selectboard that could mitigate runoff into streams. Members of the Eden Selectboard wrote in their letter that spending the settlement in a way that meets existing town needs is especially important given the more than 15,000 acres of conserved land in town that pay reduced taxes. "As long-time residents of Eden, the community is not oblivious to the importance of the natural world. That is why many of us live here." But, the board notes, "for a small town of 1400 residents, the vast amount of land that others can come and enjoy is made possible in part by the Eden taxpayer. This is yet another reason to fully maximize what the settlement funds can accomplish." When asked whether the lower tax base was a problem for the towns of Eden and Lowell, Higley said that "it is going to be a concern, of course, when property taxes continue to rise for everybody." "When these sorts of things get taken off the tax rolls, everybody else has to pick up the tab," he added. The $850,000 is not the only money going toward asbestos remediation efforts. In 2013, the Vermont Attorney's General Office, along with the EPA, reached a settlement with current mine owner Vermont Asbestos Group. VAG, which is owned Morrisville businessman Howard Manosh, was found to be financially unable to cover the full remediation costs. The settlement obligates VAG to pay $5,000 a year until 2023 and to try to obtain as much as possible in insurance claims. The state manages a a fund,with money from insurance claims and the mine's original owner that currently has $1.26 million, said Schmeltzer. He noted that this falls far short of even the low-end of estimates for cleaning up the mine. VAG also has to continue maintaining the temporary mitigation structures put in place by the EPA since 2007 — environmental features such as water bars, diversion trenches and berms to minimize runoff — for a decade after the settlement. The DEC had hoped to designate the site as a Superfund site, said Schmeltzer, to provide federal cleanup money. He noted that natural resources damages, which is the class of settlement that the $850,000 belongs to, "are typically done after a Superfund site has been remediated," meaning they are structured to go "above and beyond" a cleanup that, in this case, never happened. Residents of Lowell and Eden both voted against designating the Superfund designation, and Gov. Shumlin honored their request. White said she had been against the designation because of the stigma associated with it — and skepticism that the state would have been able to cough up its share of the costs. "I felt it was wrong to label us as a Superfund site and then never be able to complete it." In a comment letter from his lawyer, Manosh requested that the trustees set aside the $850,000 for any unforeseen future cleanup. Under CERCLA, the federal law that governs how the trustees can spend the settlement money, the money cannot go toward cleaning up the mine, said Sperduto. "I know it's kind of counterintuitive," said Schmeltzer. "I would love to be able to use that money to put it into a rainy day fund, if you will." He added that the state did not want to spend the money for projects in the "immediate watershed" of the mine. "Given the fact that we don't have a long-term remedy, I don't want to go in and do some type of restoration that is, in the future, going to get re-contaminated." Manosh's attorney, Adrian Otterman, says he agrees that "the cash that they are holding cannot be used for direct on-site remediation," but believes, based on researching similar settlements, that it could be "held for future contingencies." "There are dilapidated buildings and there's this mountain of asbestos tailings that, as hard as they may try, there are half a dozen scenarios that could cause future runoff and future contamination," he said. "It would be nice if there were a small fund available to clean this up." White and others had fought against a Vermont Department of Health report released in 2008, which originally concluded that living near the mine posed a health risk. "I'm not going to die because I'm sitting up at my picnic table looking up . . . at the waste pile," said White. "You don't want to be making it into powder and inhaling it, but that's not what's happening up there." The revised report now says that people who died from asbestosis in the surrounding towns had all worked in the mine. Schmeltzer said that nearby air quality monitoring found that fibers were not migrating off-site. The state and federal trustees are still in the process of reviewing the public comments and will draft a formal response, said Schmeltzer. "I understand where everybody is coming from on this, and we're going to try to look at what people are looking for, and going back and seeing where we could potentially accommodate some of the requests." "But again, our filter is, we have to go by what that criteria is for using that money which is . . . something that we believe has an ecological benefit for that area," he added. The trustees will meet again with members of the town selectboards to provide an update in November and solicit more feedback. The final plan for the money is slated to come out in January. ASBESTOS UPDATE: Asbestos Trust Representative Beats Objection -------------------------------------------------------------- Alex Wolf of Law360 reported that New Jersey bankruptcy judge firmly overruled objections to the appointment of a future claimants representative in the Chapter 11 case for Duro Dyne National Corp. On September 26, for the first time, the Justice Department's U.S. Trustee Program (USTP) filed an objection to a debtor company's proposed candidate for appointment as the Future Claimants' Representative (FCR) in a case involving an asbestos bankruptcy trust. An FCR is appointed to represent the possible future interests of individuals who are not yet, but may become, sick from exposure to asbestos from a company's operations. The interests of future claimants can be adverse to the interests of current claimants who are paid first and may deplete trust funds available to pay to future claimants. In the objection filed in the Duro Dyne case, the USTP asserts that the candidate's apparent conflicts of interest and close connections with lawyers representing current claimants may compromise his independence in serving as the FCR. The proposed FCR was selected by the plaintiffs' and debtors' lawyers under a pre-negotiated trust plan that lacks protections against fraudulent claims (allowing depletion of the trust funds), but that provides the FCR with a long-term position that will continue long after confirmation of a bankruptcy plan. The USTP seeks further discovery to determine if the apparent conflicts and connections are disqualifying. According to Acting Associate Attorney General Jesse Panuccio, “In recent years, evidence has emerged that asbestos trusts lack the transparency and rigorous auditing necessary to prevent fraud, waste, and abuse. To best protect all victims, those appointed in asbestos cases should be held to the same conflicts prohibitions and standards of independence that are required of other fiduciaries appointed under the Bankruptcy Code.” The U.S. Trustee Program is the component of the Justice Department that protects the integrity of the bankruptcy system by overseeing case administration and litigating to enforce the bankruptcy laws. The Program has 21 regions and 92 field office locations. Learn more on the Program at: https://www.justice.gov/ust. ASBESTOS UPDATE: Businessman Prosecuted for Asbestos in Building ---------------------------------------------------------------- The Business Desk reported that a Manchester-based businessman has been prosecuted after failing to check whether asbestos was present in a building he owned before starting major refurbishment works. Manchester Magistrates' Court heard how Mr Whaid Ahmed did not survey his property at 1-3 Stephenson Square, Manchester, for asbestos before carrying out renovations to the building between 1 April 2012 and 12 October 2017. Following a routine inspection from a Health and Safety Executive (HSE) inspector, a survey was subsequently carried out. Large amounts of asbestos, some of which was in very poor condition, was discovered on the premises, indicating that asbestos could have previously been removed without any controls in place from areas of the building already renovated. The HSE investigation found Mr Ahmed failed to identify the risks involved, and put appropriate measures in place to prevent exposure to asbestos. Mr Ahmed has had previous enforcement action from HSE over a similar issue, so was well aware of his duties under the law. Mr Whaid Ahmed of Hale Barns, Altrincham, pleaded guilty to breaching Regulations 5(a), 11(1)(a) and 16 of the Control of Asbestos Regulations 2012. Mr Ahmed was given a six months prison sentence, suspended for two years, sentenced to 250 community service hours and ordered to pay costs of GBP5,742.14. HSE inspector Matt Greenly said after the case: "This case highlights the importance of surveying a property for asbestos to prevent risk to anyone occupying or working in that building and to reduce the risk of exposure to asbestos and contracting incurable diseases as a result of that exposure." ASBESTOS UPDATE: Cleaver-Brooks Appeal of All NYCAL Cases Dismissed ------------------------------------------------------------------- The Court of Appeals of New York dismissed the appealed case In The Matter of New York City Asbestos Litigation. (All NYCAL Cases.) Cleaver-Brooks, Inc., et al., Appellants, (N.Y. App. Div.) on the ground that the order appealed from does not finally determine an action or proceeding within the meaning of the Constitution. A copy of the Decision is available at https://tinyurl.com/y8hp7kdy from Leagle.com. ASBESTOS UPDATE: Dismissal of O'Brien Claims vs. County Affirmed ---------------------------------------------------------------- In April 2012, the plaintiff filed a Workers' Compensation claim alleging that he had been exposed to asbestos while working at the Nassau Coliseum. On April 30, 2012, the plaintiff filed a notice of claim against the County of Nassau and the Nassau County Department of Public Works, alleging that he sustained severe and permanent injuries to both lungs and other internal organs, and that he suffered from extreme and severe distress due to his fear of developing cancer, arising from exposure to asbestos while working at the Nassau Coliseum. The notice of claim also asserted that the plaintiff discovered, on March 24, 2012, that asbestos contamination at Nassau Coliseum had been confirmed through laboratory reports, and that he had reason to believe that he had come into direct contact with and had ingested asbestos while working at the Nassau Coliseum. On September 18, 2012, the plaintiff learned that a breathing test and CT scan that he had undergone revealed that he had mild restriction of breathing, nodules on his lungs, and a cyst on his liver. The plaintiff commenced the instant action on November 12, 2015, against the County Defendants and the New York Islanders Hockey Club, L.P., and another entity, alleging asbestos-related injuries. The County Defendants and the Islanders separately moved, inter alia, to dismiss the first, third, fifth, and sixth causes of action, which alleged unsafe workplace, premises liability, negligent infliction of emotional distress, and general negligence, respectively, insofar as asserted against each of them. The County Defendants moved pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them as time-barred. The Islanders moved pursuant to CPLR 3211(a)(5) to dismiss all causes of action except the second cause of action, which alleged fraudulent concealment, insofar as asserted against it as time-barred. The Supreme Court granted both motions. The plaintiff appeals from so much of the order as granted those branches of the County Defendants' motion which were to dismiss the first, second, third, fifth, and sixth causes of action as time-barred, and those branches of the Islanders' motion which were to dismiss the first, third, fifth, and sixth causes of action as time-barred. The Second Department of the Appellate Division of the Supreme Court of New York affirmed the order of the Supreme Court granting those branches of the motion. The Court explains that generally, an action to recover damages for personal injuries caused by the latent effects of exposure to any substance or combination of substances must be commenced within three years of the date of discovery of the injury by the plaintiff or from the date when, through the exercise of reasonable diligence, such injury should have been discovered by the plaintiff, whichever is earlier. For purposes of CPLR 214-c, discovery occurs when, based upon an objective level of awareness of the dangers and consequences of the particular substance, the injured party discovers the primary condition on which the claim is based. The Court finds defendants demonstrated that, by September 18, 2012, the plaintiff had been made aware, through laboratory reports, that asbestos was present at the Nassau Coliseum and that he had come into direct contact with asbestos during his employment; that the plaintiff had filed a Workers' Compensation claim alleging injuries sustained from exposure to asbestos; that the plaintiff had filed a notice of claim alleging severe and permanent injuries, including injuries to both lungs and other organs, and emotional distress, as a result of exposure to asbestos; that a breathing test had shown that the plaintiff was suffering from mild restriction of breathing; and that a CT scan had revealed nodules on the plaintiff's lungs and a cyst on his liver. Thus, the defendants established that, more than three years prior to the commencement of the instant action on November 12, 2015, the plaintiff had an objective level of awareness of the dangers and consequences of asbestos exposure sufficient to place him on notice of the primary condition on which his claims were based. The Court has also addressed that branch of the County defendants' motion which was to dismiss the second cause of action, which alleged fraudulent concealment. Insofar as asserted against the County defendants, the Court sustains that the statute of limitations begins to run on a fraud claim when a plaintiff attains knowledge of facts from which the fraud could have been discovered with reasonable diligence. Here, the fraud alleged was the concealment of the presence of asbestos at the Nassau Coliseum, of which the plaintiff admitted he became aware on March 24, 2012. Since the plaintiff commenced this action more than 1 year and 90 days after his discovery of the alleged fraud, the County defendants demonstrated that the second cause of action was time-barred. In opposition to the defendants' separate motions, the Court finds that plaintiff failed to raise a question of fact as to the applicability of an exception to the statute of limitations, or as to whether the statute of limitations was tolled or whether the causes of action were interposed within the applicable limitations period. Accordingly, the record supports the Supreme Court's determination to grant those branches of the defendants' separate motions which were to dismiss the first, third, fifth, and sixth causes of action insofar as asserted against each of them, and its determination to grant that branch of the County defendants' motion which was to dismiss the second cause of action insofar as asserted against them. The appealed case is Frank O'brien, Appellant, v. County of Nassau, et al., Respondents, et al., Defendant, 2016-02295, Index No. 604993/14, (N.Y. App. Div.) A copy of the Decision and Order dated August 15, 2018, is available at https://tinyurl.com/ycj96cu3 from Leagle.com. Dell & Dean, PLLC (Mischel & Horn, P.C., New York, NY [ Scott T. Horn and Naomi M. Taub ], of counsel), for appellant. Spolzino, Smith, Buss & Jacobs, LLP, Yonkers, NY ( Robert A. Spolzino -- rspolzino@ssbjlaw.com -- of counsel), for respondents County of Nassau and Nassau County Department of Public Works. Farrell Fritz, P.C., Uniondale, NY ( John P. McEntee -- jmcentee@farrellfritz.com -- Kathryn C. Cole -- kcole@farrellfritz.com -- and Sarah M. Baird of counsel), for respondent New York Islanders Hockey Club, L.P. ASBESTOS UPDATE: Employer Had Duty to Protect Workers' Family ------------------------------------------------------------- WorkCompCentral reported that the Virginia Supreme Court ruled that an employer has a duty to protect its employees' family members from potential exposure to asbestos fibers that the employee may carry home on his work clothes. Courts in different states have split on the issue of "take-home" liability. Virginia joins courts in California, Washington, Louisiana and Delaware in recognizing a duty on the part of employers, but courts in Pennsylvania, Illinois, Maryland, Michigan and New York have rejected it. Holding: "In response to a certified question of Virginia law from the United States District Court for the Eastern District of Virginia requesting that this Court exercise jurisdiction pursuant to Article VI, Section 1 of the Constitution of Virginia and Rule 5:40, the question as restated being: Does an employer owe a duty of care to a family member who alleges exposure to asbestos from the work clothes of an employee, where the family member alleges the employer's negligence allowed asbestos fibers to be regularly transported away from the place of employment to the employee's home? The restated question is answered in the affirmative. Facts: "In December 2013, Wanda Quisenberry was diagnosed with malignant pleural mesothelioma, caused by exposure to asbestos dust and fibers. She died from the disease three years later. Her son, Wesley Quisenberry, administrator of her estate, brought this action in the Circuit Court of the City of Newport News. As is relevant to this certified question, the complaint alleges that in the years Wanda was exposed to asbestos, particularly between 1950 and 1969, the Shipyard knew or had reason to know of the dangers that asbestos posed to workers' family members and members of the public, including Wanda. The complaint alleges 3 the Shipyard was negligent in choosing not to exercise reasonable care to, among other things, sufficiently warn workers not to wear work clothes home; educate workers about safeguards such as coveralls; provide a locker room, showers, or laundry service; and adhere to various statutes, regulations, and guidelines. The complaint further alleges that this negligence proximately resulted in Wanda's death. A separate count alleges gross negligence and wanton and willful conduct on the part of the Shipyard. "As pled, workers accumulated asbestos dust on their clothes. As pled, in the absence of on-site laundry, lockers, or warning to the contrary, these individuals would regularly wear those clothes into their home environment and have them laundered there. As pled, the fibers traveled on the clothes of persons who worked with asbestos, and the fibers posed a danger to individuals who breathed in the asbestos dust in the home environment. The pleadings support a "recognizable risk of harm" to a class of persons "within a given area of danger" of defendant's conduct, including Wanda and the class of persons similarly situated. Analysis: "Nobody is permitted by the law to create with impunity a stumbling block, a trap, a snare or a pitfall for the feet of those rightfully proceeding on their way." RGR, 288 Va. at 279- 80, 764 S.E.2d at 19 (quoting Louisville & Nashville R.R. Co., 119 Va. at 627, 89 S.E. at 866). The innocent cohabitator represents the quintessential class of persons "rightfully proceeding on their way" yet placed in a "given area of danger." Id. "Because we find a duty does indeed lie to such persons in the recognizable and foreseeable area of risk, we answer the certified question, as restated, in the affirmative." Law.com reported that in a 4-3 ruling, the majority said that while there's little precedent from the courts or guidance from the state legislature on the issue, it was clear that if the employer knows or should have known that employees' clothing dusted with asbestos could be handled by others, there is a clear duty of care. "This duty is not abstract: a specific course of conduct gives rise to a specific duty extended to specific persons," wrote Senior Justice LeRoy Millett Jr. for the majority in Quisenberry v. Huntington Ingalls. Justices William Mims, Cleo Powell and Stephen McCullough joined in the ruling. Chief Justice Donald Lemons issued a dissent, which was joined by Justices Elizabeth McClanahan and Denham Kelsey. McClanahan also issued a separate dissent, which Lemons and Kelsey joined. The court agreed to hear the case at the request of U.S. District Judge Arenda Allen of the Eastern District of Virginia, sitting in Newport News. Allen asked the court to answer whether Virginia law mandates that employers owe a duty of care to nonemployees who become ill after coming into contact with employees’ asbestos-covered clothing. The lawsuit will now return to Allen. ASBESTOS UPDATE: H.B. Fuller Settles 7 Suits, Claims for $334K -------------------------------------------------------------- H.B. Fuller Company reported that for the nine months ended September 1, 2018, seven asbestos-related lawsuits and claims were settled for US$334,000, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 1, 2018. The Company states, "We have been named as a defendant in lawsuits in which plaintiffs have alleged injury due to products containing asbestos manufactured more than 30 years ago. The plaintiffs generally bring these lawsuits against multiple defendants and seek damages (both actual and punitive) in very large amounts. In many cases, plaintiffs are unable to demonstrate that they have suffered any compensable injuries or that the injuries suffered were the result of exposure to products manufactured by us. We are typically dismissed as a defendant in such cases without payment. If the plaintiff presents evidence indicating that compensable injury occurred as a result of exposure to our products, the case is generally settled for an amount that reflects the seriousness of the injury, the length, intensity and character of exposure to products containing asbestos, the number and solvency of other defendants in the case, and the jurisdiction in which the case has been brought. "A significant portion of the defense costs and settlements in asbestos-related litigation is paid by third parties, including indemnification pursuant to the provisions of a 1976 agreement under which we acquired a business from a third party. Currently, this third party is defending and paying settlement amounts, under a reservation of rights, in most of the asbestos cases tendered to the third party. "In addition to the indemnification arrangements with third parties, we have insurance policies that generally provide coverage for asbestos liabilities, including defense costs. Historically, insurers have paid a significant portion of our defense costs and settlements in asbestos-related litigation. However, certain of our insurers are insolvent. We have entered into cost-sharing agreements with our insurers that provide for the allocation of defense costs and settlements and judgments in asbestos-related lawsuits. These agreements require, among other things, that we fund a share of settlements and judgments allocable to years in which the responsible insurer is insolvent. "We do not believe that it would be meaningful to disclose the aggregate number of asbestos-related lawsuits filed against us because relatively few of these lawsuits are known to involve exposure to asbestos-containing products that we manufactured. Rather, we believe it is more meaningful to disclose the number of lawsuits that are settled and result in a payment to the plaintiff. To the extent we can reasonably estimate the amount of our probable liabilities for pending asbestos-related claims, we establish a financial provision and a corresponding receivable for insurance recoveries. "Based on currently available information, we have concluded that the resolution of any pending matter, including asbestos-related litigation, individually or in the aggregate, will not have a material adverse effect on our results of operations, financial condition or cash flow." A full-text copy of the Form 10-Q is available at https://is.gd/IZ8XEL ASBESTOS UPDATE: Hillshire Brands Appeals $13MM Asbestos Verdict ---------------------------------------------------------------- Gina Kim of Lompoc Record reported that Hillshire Brands, which was found liable in a mesothelioma negligence case in 2017, has filed an appeal to overturn the $13 million verdict, claiming the trial lacked sufficient evidence to hold the company accountable for the decedent’s longtime exposure to asbestos. Mark Lopez died July 2015 from mesothelioma at the age of 61, as a result of asbestos exposure growing in the small company town of Betteravia, six miles west of Santa Maria, which surrounded the Union Sugar Plant in the 1950s. Jeffrey Kaiser and Lawrence Gornick represented Lopez’s surviving family members, Lanette Lopez, Pilar Nabb and Seth Lopez and filed a lawsuit in Alameda County Superior Court against numerous companies, accusing them of negligence that resulted in Lopez’s exposure to asbestos. Orcutt family wins $13M wrongful death suit against Hillshire Brands Co. After a three-week trial, in August 2017 the jury found Hillshire acted negligently while operating the refinery in the 50s, but never laid any blame on manufacturers and suppliers of asbestos products. Despite never working at the Union Sugar plant, Lopez was reportedly exposed to asbestos in the pipes, gaskets, insulation and packing inside the plant, while he lived in a residential area just a few hundred yards from the plant, owned by Hillshire Brands which closed in 1993. The plant used vast amounts of asbestos insulation as it turned beets into sugar. Most of the year, the asbestos was contained in the piping and boiler room walls of the plant; twice a year the plant closed for maintenance during which workers removed the asbestos using claw hammers and other tools, or fed it through a grinder to be reused as stucco. According to trial testimony, workers often had to saw off asbestos from pipes, which were then dumped on site where children including Lopez, would frequently play. Lopez's father and grandfather worked at the plant, and often carried asbestos on their clothing, according to trial testimony. Mark lived in the town from 1954-1972. The appeal, filed in July 2018 by attorneys David Carpenter, Andrew Talai of Sidley Austin LLP, argues that the mere presence of asbestos at the plant was insufficient to hold Hillshire accountable, as there was limited knowledge about the effect of asbestos through 1964. Occupational Safety and Health Administration (OSHA) officials released regulatory standards in later years. "Plaintiffs lacked substantial evidence to show exposure itself or that Hillshire caused [Lopez or other workers, visitors, residents] to be foreseeably at risk of harm," the appeal argues, adding that Hillshire's operations were consistent with the custom and practice of others for insulation work. However, "even if [using a grinder was] dangerous for workers, there was no evidence that neighborhood asbestos levels" reached anywhere near what could be foreseen as harmful. Asbestos exposure risks for bystanders (people who are at a job site but don't work directly with asbestos containing products), weren't released until 1979, the appeal added. There was no data provided regarding how much contaminant was released in the air around Betteravia from the plant, the appeal noted. Lopez could have been exposed from other sources outside of Hillshire which were never ruled out, the appeal added. For example, "Mark worked for UPS in 1972, where brake jobs occurred at the warehouse in which he worked and where he saw visible dust," the appeal maintained. Furthermore, the appeal states, the jury was wrongly instructed on negligence and causation, when they were told that in order to hold Hillshire liable for negligence, the plaintiffs just had to prove "Mark had essentially any exposure to asbestos from the plant at any level," the appeal said, and that his exposure from the Hillshire plant or operations contributed to his cancer. At the very least, the appeal noted, Hillshire should be allowed a new trial, and apportionment of fault to asbestos-product manufacturers that were part of the refinery operation now known as Johns-Manville, Fibreboard/Pabco, Anchor Packing and Garlock, as they failed to provide adequate warnings to users. The asbestos-product manufacturers had greater knowledge of dangers associated with their own products, sold the products and made profit and could have controlled the asbestos content in those products, the appeal stated. "Even [Lopez] placed at least some blame on the manufacturers," the appeal noted, adding that nothing absolves any of their duties to warn. The plaintiffs attorneys Kaiser, Gornick and appellate lawyer Sharon Arkin have until mid-November to file a response to Hillshire's appeal. ASBESTOS UPDATE: Hull Trawlerman Dies of Asbestos Cancer -------------------------------------------------------- Hannah Robinson of Hull Daily Mail reported that the family of a Hull trawlerman are appealing for his former workmates to come forward after he died from asbestos-related cancer. Brian Commander was a staunch campaigner for the rights of Hull trawlermen, and was one of a number of members of the British Fishermen's Association to be praised by then Prime Minister Tony Blair for their efforts in winning GBP18m compensation from the government in relation to employment rights they had been denied. Sadly, Mr Commander died from mesothelioma, a form of cancer caused by inhaling asbestos fibres, at his Hull home in October 2017, aged 79. Now his widow, Maureen Commander, is appealing for his former workmates to help her find answers as to how her husband contracted the fatal illness. ASBESTOS UPDATE: Japan Responsible for Asbestos Health Damage ------------------------------------------------------------- The Japan Times reported that a recent series of court rulings have found the state responsible for the health damage caused to construction workers who were exposed to asbestos dust. In its ruling on one of the damages suits filed by former construction workers and their relatives, the Osaka High Court determined that the government was able -- by 1975 at the latest -- to recognize the concrete risk of construction workers contracting illnesses linked to asbestos and accused the state of failing to exercise its regulatory power to protect their health, such as requiring them to wear masks to prevent them from inhaling asbestos fibers. It appears the judiciary decision on the issue has been established -- given that the government has been held liable for the health damage in 10 rulings by district and high courts. Still, the government continues to dispute its responsibility. It rejected a high court recommendation for a settlement in one of the rulings earlier this year, and appealed the Osaka High Court ruling to the Supreme Court. The government needs to realize that time is running short for the plaintiffs, many of whom are aging and ailing, and explore ways for settling the cases out of court, such as by creating a joint fund with construction materials makers and other parties to provide relief for the victims. Asbestos was widely used as low-cost and fire-proof construction and heat-insulation material, particularly during Japan's postwar rapid economic growth period. However, inhaling its tiny fibers -- each roughly one-5,000th the breadth of a hair -- while cutting the materials at construction sites and spraying it on walls and ceilings exposed the workers to the risk of contracting such illnesses as lung cancer and mesothelioma. It takes decades for the symptoms to emerge after inhaling asbestos dust -- the reason why many of the plaintiffs in the damages suits filed in recent years across the country are aging. About 70 percent of the more than 700 former construction workers who sued the government and construction materials makers have already died. The plaintiffs are calling for relief while the workers are alive. The responsibility of the materials makers for the workers' illnesses, which was initially dismissed by the courts, has also come to be recognized in recent rulings since the 2016 decision by the Kyoto District Court. Since many of the construction workers move from one site to the other -- making it difficult to identify which maker's products harmed their health -- the courts determine the responsibility of each materials maker on the basis of its market share and the period when it was making the products. The government has already provided relief to victims of asbestos-linked health damage other than construction workers. Following the Supreme Court order in 2014 for the state to pay damages to people who worked at asbestos plants in Osaka from the 1950s to 1970s and their relatives for the illnesses they sustained after inhaling asbestos dust at the plants, the government created a program to settle the cases and provide them with relief. However, it has maintained that asbestos-related health damage to people who worked at outdoor construction sites is a "different issue" and disputed their calls for state compensation. In the series of rulings on the suits filed by former construction workers since 2012, the Yokohama District Court turned down their demands for damages from both the state and the materials makers. However, subsequent decisions by district courts in Tokyo, Fukuoka, Osaka and Sapporo found the state liable for damages to the former workers and their bereaved relatives. The Kyoto District Court in 2016 for the first time found the materials makers responsible for the health problems -- a decision also followed by the Yokohama District Court as well as Tokyo and Osaka high courts. The Osaka High Court ruling last month determined that the construction materials makers, along with the government, were able to foresee the risks of health impairment caused by their products. When the Osaka High Court recommended a court-mediated settlement of the suit, the government rejected the idea and the makers named in the case did not respond in time for the talks to go on. But given that the state's responsibility has been determined in so many court rulings, it seems unlikely that the Supreme Court would rule otherwise. It is time for the government to work with other parties in the lawsuits to explore out-of-court ways of providing relief to the plaintiffs. Even today, there are said to be about 2.8 million buildings using construction materials containing asbestos across the country -- and their demolition will reach a peak in the future. Measures must be taken to protect the health of workers involved in the demolishment of such buildings to ensure they’re not exposed to asbestos. ASBESTOS UPDATE: Livernois Voluntarily Dismissed Claims vs. NASSCO ------------------------------------------------------------------ The Hon. Jeffrey T. Miller of the United States District Court for the Southern District of California has entered an order granting Plaintiff William Livernois' motion to voluntarily dismiss the action styled William Livernois, Plaintiff, v. National Ship and Shipbuilding Company, Defendant, Case No. 18cv1326 JM(JMA), (S.D. Cal.). On May 4, 2018, Plaintiff brought an asbestos personal injury action in Alameda County Superior Court against 80 defendants, including National Ship and Shipbuilding Company ("NASSCO"), alleging the same claims as asserted in the instant case. On June 4, 2018, NASSCO informed Plaintiff that it intended to remove the action to the United States District Court for the Northern District based upon a federal contractor defense. On June 5, 2018, fearing that it [NASSCO] might remove the entire case to federal district court under 28 U.S.C. Section 1442(a)(1), Plaintiff voluntarily dismissed NASSCO. On June 19, 2018, Plaintiff commenced this diversity action by alleging four claims for relief: negligence, breach of express and implied warranties, strict liability, and premises owner/contractor liability. Plaintiff, diagnosed with mesothelioma, seeks compensation as a result of his exposure to asbestos during the course of his service in the United States Navy aboard multiple ships between 1957 and 1978. Plaintiff alleges that NASSCO, over the years, "manufactured, modified, failed to retrofit, serviced and/or repaired asbestos-containing ships and vessels." Plaintiff attributes his disease to exposure to asbestos fibers. On June 22, 2018, one of the defendants, Fryer-Knowles, Inc., removed the state court action to the Northern District of California. On July 17, 2018, Fryer-Knowles, Inc. filed a motion for a convenience transfer to the Court. In response, on July 20, 2018, Plaintiff filed two motions: (1) a motion to amend to remove the basis for federal subject matter jurisdiction, and (2) a motion to remand to state court. Plaintiff now moves for a court order to voluntarily dismiss the instant action without prejudice pursuant to Fed.R.Civ.P. 41(a)(2). NASSCO opposes the motion. In large part, NASSCO argues that Plaintiff is engaged in a futile and blatant effort of forum shopping. NASSCO posits that all work it performed on vessels of the United States gives rise to colorable federal defenses under government contractor immunity, thereby giving rise to federal subject matter jurisdiction under 28 U.S.C. Section 1442(a)(1). Plaintiff acknowledges that he intends to amend the complaint in the Northern District of California action to eliminate federal subject matter jurisdiction, and then seek to remand the action to state court. Fed.R.Civ.P. 41(a)(2) permits a plaintiff to voluntarily dismiss an action upon obtaining a court order to do so. The voluntary dismissal will be "on terms the court considers proper." The Court quoting Stevedoring Services of Am. v. Armilla Int'l B.V., 899 F.2d 919, 921 (9thy Cir. 1989) says that "the purpose of the rule is to permit a plaintiff to dismiss an action without prejudice so long as the defendant will not be prejudiced, or unfairly affected by dismissal." While NASSCO identifies Plaintiff's forum shopping activities, the Court finds that NASSCO fails to identify any cognizable prejudice should Plaintiff's motion be granted. As Plaintiff is master of his own complaint, and NASSCO fails to identify cognizable prejudice, the Court grants the motion to voluntarily dismiss this action without prejudice. William Livernois, an individual, Plaintiff, represented by Robert Allen Green , Weitz & Luxenberg, P.C. & Josiah William Parker , Weitz & Luxenberg PC. National Steel and Shipbuilding Company, Defendant, represented by Paul Morgan Bessette -- bes@darlaw.com -- Demler, Armstrong & Rowland, LLP. ASBESTOS UPDATE: Production of Dempster Settlement Document Allowed ------------------------------------------------------------------- The Hon. Janis Van Meerveld of the United States District Court for the Eastern District of Louisiana denied the Motion to Quash Subpoena filed by the plaintiff Callen L. Dempster because the settlement documents, with settlement amounts redacted, are discoverable. Plaintiff seeks to prevent defendants Albert Bossier, Jr. and J. Melton Garrett from obtaining a copy of documents reflecting Mr. Dempster's settlement of claims in connection with alleged asbestos-related illness or other occupational disease. Mr. Dempster alleges that from 1962 through 1994, he was employed by a company now known as Huntington Ingalls Inc. ("Avondale"). He alleges that during his employment, he was exposed to asbestos that resulted in his asbestos-related cancer and/or lung/cancer, which did not manifest until 2017. He alleges that prior to 1975, he was exposed to asbestos on a daily basis. In addition to alleging the liability of Avondale, Mr. Dempster alleges that the executive officers of Avondale from 1962 through 1994 are personally liable. Most of them have died, but Mr. Dempster has joined two of them, Mr. Bossier and Mr. Garrett, as defendants to this lawsuit. The other defendants in this action include manufacturers of asbestos related products, companies that provided contract work with Avondale where asbestos-containing products were allegedly used, and insurance companies. Mr. Dempster filed his petition for damages in state court on March 14, 2018. It appears the state court litigation began quickly. Mr. Dempster was deposed on April 23, 2018. A notice of records deposition was served by Mr. Bossier on non-party the Wilson Law Firm for the same settlement documents at issue here. A motion to quash the Notice of Records Deposition was filed and set for hearing on June 15, 2018, and the records deposition was stayed pending resolution of the motion. Before the state court motion to quash could be fully resolved, on June 21, 2018, defendants Avondale, Bossier, Garrett, and Lamorak Insurance Company removed the case, invoking the Court's jurisdiction over actions relating to conduct under color of federal office commenced in state court against persons acting under one or more federal officers. The Defendants assert that this provision applies because during his term of employment, Mr. Dempster worked on construction of United States Navy Destroyer Escorts under contracts between Avondale and the United States. On June 22, 2018, Mr. Dempster filed a motion to remand, which is pending before the District Judge. Meanwhile, on July 26, 2018, Mr. Bossier and Mr. Garrett served a subpoena for documents on the Wilson Law Firm requesting: "any and all documents concerning or reflecting settlements, compromises, and agreements to settle or compromise any claims asserted by Callen Dempster: SSN: XXX-XX-7703, YOB: 1932, in connection with Mr. Dempster's alleged asbestos related illness or any occupational diseases, whether or not the settlement or agreement to settle or compromise is related to the lawsuit filed by Mr. Callen Dempster entitled Callen L. Dempster v. Lamorak Insurance Company, et al., CDC No. 2018-02513. Please note that documents provided may have any amounts paid pursuant to any settlement or compromise deleted." On the other hand, Mr. Dempster filed the present Motion to Quash Subpoena, arguing that the sought after settlement agreements are not relevant because they do not concern Mr. Dempster's lung cancer. He insists that even if the settlement documents contained statements of exposure, they would not be discoverable. He adds that settlement agreements will not be admissible at trial. Mr. Bossier and Mr. Garrett oppose the Motion to Quash asserting that the sought after information is relevant. They say it may contain statements by Mr. Dempster regarding his exposure to asbestos at Avondale or inconsistent with the position he is taking here with regard to his exposure to asbestos at Avondale. They argue they must be allowed to know the specific identity of all released entities because non-settling defendants are entitled to a credit for a settling joint-tortfeasor's virile share of any damages awarded if the settling co-defendant is proven to be at fault at trial. They also say the documents may indicate whether Mr. Dempster reserved or waived his rights with respect to potential recoveries from the remaining parties. They argue that the Court should not address admissibility at this stage, noting that only discoverability is at issue now. In reply, Mr. Dempster points the Court to his pending Motion to Remand and argues that the Court lacks jurisdiction over his claim. The Court notes that, while it will lose jurisdiction if the Motion to Remand is granted, at this time, it is the state court that lacks jurisdiction over Mr. Dempster's claim. Further, at oral argument, Mr. Dempster's counsel made clear that if the Motion to Remand is granted, counsel will try to hold the November 2018 trial date that the state court had ordered. The Federal Rules of Civil Procedure provide that "parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case." In assessing proportionality of discovery, the following should be considered: "the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit." The Court explains that settlement agreements, although inadmissible in evidence for some purposes, are both discoverable and admissible for other purposes. While settlement documents will not be admissible to prove liability, they might be admissible for other purposes. For example, the fact of settlement of a joint tortfeasor might be admissible to show that the damages owed by the non-settling defendants should be reduced by the virile share of the settling joint tortfeasors. The subpoena at issue here seeks more than just settlement agreements where Mr. Dempster compromised claims for asbestos-related illness or other occupational diseases. The subpoena seeks all documents "concerning or reflecting" such settlements. At oral argument, counsel for Mr. Bossier and Mr. Garrett explained that the subpoena seeks any affidavits that Mr. Dempster might have executed in conjunction with settlement of earlier claims arising out of asbestos exposure. It does not appear that any confidential settlement negotiations (like a mediation position statement) are being sought. The Court finds it useful to divide the sought after documents into categories. The first category is the settlement agreements themselves, with any settlement amounts redacted as the defendants have requested. The Court finds these are relevant and discoverable. The identity of any parties that settled asbestos exposure claims with Mr. Dempster is relevant because these parties may bear some responsibility for the injuries alleged here. The terms of any settlement agreement are also relevant. If the settlement extends to the asbestos caused lung cancer that Mr. Dempster claims here and the defendants can prove those settling parties bear some responsibility for Mr. Dempster's lung cancer, then the defendants may be entitled to a reduction of any damages award against them. Indeed, the fact of settlement would likely be admissible at trial if the settlements concerned joint tortfeasors and the joint tortfeasors had settled the same claim at issue here. Plaintiffs argue, however, that Mr. Dempster has not settled any asbestos-related lung cancer claims like the one raised here, and therefore any settlement by Mr. Dempster related to his nonlung cancer claims would not be admissible. The settlement agreements themselves are relevant to a determination of the accuracy of Mr. Dempster's assertions about the extent of his previous settlements. Again, the question at this stage is not whether the agreements will be admissible at trial. Accordingly, the Court finds the settlement agreements, with any settlement amounts redacted, are relevant and discoverable. The other category to consider is settlement related documents. It does not appear that Mr. Bossier and Mr. Garret seek rejected settlement offers, settlement drafts, or mediation position statements. They are seeking affidavits or claim forms that might contain assertions by Mr. Dempster regarding his exposure to asbestos. The Court finds this information is also relevant to the present case. While Mr. Dempster's prior statements about his asbestos exposure claim might not be admissible at trial for purposes of disproving his claim here or impeaching him, prior statements by Mr. Dempster regarding his asbestos exposure are relevant to a full understanding of Mr. Dempster's asbestos exposure, which is the basis for the present lawsuit. Accordingly, since Mr. Dempster did not identify any particular prejudice he would suffer if the sought after documents were disclosed during discovery and counsel for Mr. Dempster did note at oral argument that the documents contained confidentiality provisions, the Court denies Plaintiff's Motion to Quash Subpoena. However, to the extent maintaining confidentiality is necessary to protect the parties to the settlement agreements, the Court allows the production of the requested documents subject to a protective order limiting disclosure and use of the documents to the litigation. The case is entitled Callen L. Dempster, v. Lamorak Insurance Co., et al. Section: "G"(1), Civil Action No. 18-6158, (E.D. La.). A copy of the Order and Reasons dated August 16, 2018, is available at https://tinyurl.com/y8fxdjbp from Leagle.com. Callen L. Dempster, also known as Callen L. Dempster, Sr., Plaintiff, represented by Gerolyn Petit Roussel , Roussel & Clement, Benjamin Peter Dinehart , Roussel & Clement, Jonathan Brett Clement , Roussel & Clement, Lauren Roussel Clement , Roussel & Clement & Perry Joseph Roussel, Jr. , Roussel & Clement. Lamorak Insurance Company, As Successor in Interest to the liability for policies of insurance issued by Commercial Union Insurance Company, Employers Commercial Union Insurance Company, and American Employers Insurance Company, Defendant, represented by Samuel Milton Rosamond, III , Taylor, Wellons, Politz & Duhe, APLC & Adam Devlin deMahy , Taylor, Wellons, Politz & Duhe, APLC. Huntington Ingalls Incorporated, formerly known as Avondale Marine Ways, Inc., Defendant, represented by Brian C. Bossier -- bbossier@bluewilliams.com -- Blue Williams, LLP, Christopher Thomas Grace, III -- cgrace@bluewilliams.com -- Blue Williams, LLP, Edwin A. Ellinghausen, III -- eellinghausen@bluewilliams.com -- Blue Williams, LLP, Erin Helen Boyd -- eboyd@bluewilliams.com -- Blue Williams, LLP, Jasmine Najee Brown -- jnbrown@bluewilliams.com -- Blue Williams, LLP, Laura M. Gillen -- lgillen@bluewilliams.com -- Blue Williams, LLP & Patrick Kevin Shockey -- pshockey@bluewilliams.com -- Blue Williams, LLP. Albert Bossier, Jr. & J. Melton Garrett, Defendants, represented by Gustave A. Fritchie, III -- gfritchie@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, Alex Tyler Robertson -- arobertson@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, Alexander R. Saunders -- asaunders@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, Christopher Thomas Whelen -- cwhelen@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, David Michael Melancon -- dmelancon@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, Edward Winter Trapolin -- etrapolin@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC & Timothy Farrow Daniels -- tdaniels@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC. Eagle Inc., formerly known as Eagle Asbestos & Packing Company, Inc., Defendant, represented by Susan Beth Kohn -- suek@spsr-law.com -- Simon, Peragine, Smith & Redfearn, LLP. Bayer Cropscience, Inc., Successor to Rhone Poulenc AG Company, formerly Amchem Products, Inc., formerly Benjamin Foster Company, Defendant, represented by McGready Lewis Richeson -- mricheson@pugh-law.com -- Pugh, Accardo, Haas, Radecker & Carey, Francis Xavier deBlanc, III -- fdeblanc@pugh-law.com -- Pugh, Accardo, Haas, Radecker & Carey, Milele Milele N. St. Julien -- mstjulien@pugh-law.com -- Pugh, Accardo, Haas, Radecker & Carey & Perrey S. Lee , Pugh, Accardo, LLC. Foster-Wheeler LLC, formerly known as Foster-Wheeler Corporation, Defendant, represented by John Joseph Hainkel, III -- jhainkel@frilot.com -- Frilot L.L.C., Angela M. Bowlin -- abowlin@frilot.com -- Frilot L.L.C., James H. Brown, Jr. -- jbrown@frilot.com -- Frilot L.L.C., Kelly L. Long -- klong@frilot.com -- Frilot L.L.C., Kelsey A. Eagan -- keagan@frilot.com -- Frilot L.L.C., Lacey Taylor McCoy -- LMcCoy@frilot.com -- Frilot L.L.C. & Magali Ann Puente-Martin -- mpuente@frilot.com -- Frilot L.L.C. General Electric Company & CBS Corporation, formerly known as Westinghouse Electric Corporatioin, Defendants, represented by John Joseph Hainkel, III -- jhainkel@frilot.com -- Frilot L.L.C., Angela M. Bowlin -- abowlin@frilot.com -- Frilot L.L.C., James H. Brown, Jr. -- jbrown@frilot.com -- Frilot L.L.C. & Magali Ann Puente-Martin -- mpuente@frilot.com -- Frilot L.L.C. Hopeman Brothers, Inc., Defendant, represented by Brittney Bullock Ankersen -- bankersen@courington-law.com -- Courington, Kiefer & Sommers, LLC, Kaye N. Courington -- kcourington@courington-law.com -- Courington, Kiefer & Sommers, LLC, Blaine Augusta Moore -- bmoore@courington-law.com -- Courington, Kiefer & Sommers, LLC, Mathilde Villere Semmes -- msemmes@courington-law.com -- Courington, Kiefer & Sommers, LLC & Troy Nathan Bell -- tbell@courington-law.com -- Courington, Kiefer & Sommers, LLC. McCarty Corporation, Successor to McCarty Branton, Inc., and Predecessor and Successor to McCarty Insulation Sales, Inc., Defendant, represented by Susan Beth Kohn -- suek@spsr-law.com -- Simon, Peragine, Smith & Redfearn, LLP, April Ann McQuillar -- aprilm@spsr-law.com -- Simon, Peragine, Smith & Redfearn, LLP, Douglas Kinler -- douglask@spsr-law.com -- Simon, Peragine, Smith & Redfearn, LLP, Douglas Watson Redfearn -- douglasr@spsr-law.com -- Simon, Peragine, Smith & Redfearn, LLP, Janice M. Culotta -- janicec@spsr-law.com -- Simon, Peragine, Smith and Redfearn, LLP, Louis Oliver Oubre -- louiso@spsr-law.com -- Simon, Peragine, Smith & Redfearn, LLP & Nicole M. Loup , Simon, Peragine, Smith & Redfearn, LLP. Taylor-Seidenbach, Inc., Defendant, represented by Christopher Kelly Lightfoot -- klightfoot@hmhlp.com -- Hailey, McNamara, Hall, Larmann & Papale, LLP, David C. Bach , Hailey, McNamara, Hall, Larmann & Papale LLP, Edward J. Lassus, Jr. , Hailey, McNamara, Hall, Larmann & Papale, LLP & Richard J. Garvey, Jr. -- jgarvey@hmhlp.com -- Hailey, McNamara, Hall, Larmann & Papale, LLP. Uniroyal, Inc., Defendant, represented by Mary Reeves Arthur -- mimi.arthur@formanwatkins.com -- Forman, Watkins, & Krutz, LLP & Amy Louise Maccherone -- amy.maccherone@formanwatkins.com -- Forman, Watkins & Krutz LLP. International Paper Company, As Successor to U.S. Plywood, Defendant, represented by Mary Reeves Arthur -- mimi.arthur@formanwatkins.com -- Forman, Watkins, & Krutz, LLP, Walter G. Watkins, III -- wg.watkins@formanwatkins.com -- Forman, Watkins & Krutz LLP, Elizabeth Riddell Penn -- elizabeth.penn@formanwatkins.com -- Forman Watkins & Krutz LLP, Jason K. Elam -- jason.elam@cs-law.com -- Cosmich Simmons & Brown, PLLC & Thomas Peyton Smith -- peyton.smith@formanwatkins.com -- Forman, Watkins, & Krutz, LLP. Houston General Insurance Company, Defendant, represented by James R. Sutterfield -- info@swslaw.com -- Sutterfield & Webb, LLC. Berkshire Hathaway Specialty Insurance Company, formerly known as Stonewall Insurance Company, Defendant, represented by Paula Marcello Wellons , Taylor, Wellons, Politz & Duhe, APLC, Jared A. Davidson , Taylor, Wellons, Politz & Duhe, APLC & Jonathan B. Womack , Taylor, Wellons, Politz & Duhe, APLC. United States Fidelity and Guaranty Company & Travelers Indemnity Company, Defendants, represented by Kristopher T. Wilson -- kwilson@lawla.com -- Lugenbuhl, Wheaton, Peck, Rankin & Hubbard & Katherine Osborne Hannan -- khannan@lawla.com -- Lugenbuhl, Wheaton, Peck, Rankin & Hubbard. First State Insurance Company, Defendant, represented by Lauren Ann McCulloch -- lauren.mcculloch@morganlewis.com -- Morgan, Lewis & Bockius & Mitchell F. Tedesco -- mitchell.tedesco@morganlewis.com -- Morgan, Lewis & Bockius. American Insurance Company, Defendant, represented by Julia Ann Dietz -- jdietz@degan.com -- Degan, Blanchard & Nash, Jill R. Menard -- jmenard@degan.com -- Degan, Blanchard & Nash, Keith A. Kornman -- kkornman@degan.com -- Degan, Blanchard & Nash & Renee F. Smith Auld -- rsmithauld@degan.com -- Degan, Blanchard & Nash. Louisiana Insurance Guaranty Association, Defendant, represented by Kaye N. Courington -- kcourington@courington-law.com -- Courington, Kiefer & Sommers, LLC, Dawn Danna Marullo , Courington, Kiefer & Sommers, LLC, Jeffrey Matthew Burg -- jburg@courington-law.com -- Courington, Kiefer & Sommers, LLC & Troy Nathan Bell -- tbell@courington-law.com -- Courington, Kiefer & Sommers, LLC. J. Melton Garrett & Albert Bossier, Jr., Third Party Plaintiffs, represented by Gustave A. Fritchie, III -- gfritchie@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, Alex Tyler Robertson -- arobertson@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, Alexander R. Saunders -- asaunders@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, Christopher Thomas Whelen -- cwhelen@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, David Michael Melancon -- dmelancon@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, Edward Winter Trapolin -- etrapolin@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC & Timothy Farrow Daniels -- tdaniels@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC. Liberty Mutual Insurance Company, Third Party Defendant, represented by Kaye N. Courington -- kcourington@courington-law.com -- Courington, Kiefer & Sommers, LLC, Blaine Augusta Moore -- bmoore@courington-law.com -- Courington, Kiefer & Sommers, LLC, Brittney Bullock Ankersen -- bankersen@courington-law.com -- Courington, Kiefer & Sommers, LLC, Jeffrey Matthew Burg -- jburg@courington-law.com -- Courington, Kiefer & Sommers, LLC, Mathilde Villere Semmes -- msemmes@courington-law.com -- Courington, Kiefer & Sommers, LLC & Troy Nathan Bell -- tbell@courington-law.com -- Courington, Kiefer & Sommers, LLC. J. Melton Garrett & Albert Bossier, Jr., Cross Claimants, represented by Gustave A. Fritchie, III -- gfritchie@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, Alex Tyler Robertson -- arobertson@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, Alexander R. Saunders -- asaunders@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, Christopher Thomas Whelen -- cwhelen@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, David Michael Melancon -- dmelancon@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, Edward Winter Trapolin -- etrapolin@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC & Timothy Farrow Daniels -- tdaniels@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC. Bayer Cropscience, Inc., Cross Defendant, represented by McGready Lewis Richeson -- mricheson@pugh-law.com -- Pugh, Accardo, Haas, Radecker & Carey, Francis Xavier deBlanc, III -- fdeblanc@pugh-law.com -- Pugh, Accardo, Haas, Radecker & Carey, Kathleen Erin Jordan -- kjordan@pugh-law.com -- Pugh, Accardo, Haas, Radecker & Carey & Milele N. St. Julien -- mstjulien@pugh-law.com -- Pugh, Accardo, Haas, Radecker & Carey. Foster-Wheeler LLC, Cross Defendant, represented by John Joseph Hainkel, III -- jhainkel@frilot.com -- Frilot L.L.C., Angela M. Bowlin -- abowlin@frilot.com -- Frilot L.L.C., James H. Brown, Jr. -- jbrown@frilot.com -- Frilot L.L.C., Kelly L. Long -- klong@frilot.com -- Frilot L.L.C., Kelsey A. Eagan -- keagan@frilot.com -- Frilot L.L.C., Lacey Taylor McCoy -- LMcCoy@frilot.com -- Frilot L.L.C. & Magali Ann Puente-Martin -- mpuente@frilot.com -- Frilot L.L.C. Hopeman Brothers, Inc., Cross Defendant, represented by Kaye N. Courington -- kcourington@courington-law.com -- Courington, Kiefer & Sommers, LLC, Blaine Augusta Moore -- bmoore@courington-law.com -- Courington, Kiefer & Sommers, LLC, Brittney Bullock Ankersen -- bankersen@courington-law.com -- Courington, Kiefer & Sommers, LLC, Jeffrey Matthew Burg -- jburg@courington-law.com -- Courington, Kiefer & Sommers, LLC, Mathilde Villere Semmes -- msemmes@courington-law.com -- Courington, Kiefer & Sommers, LLC & Troy Nathan Bell -- tbell@courington-law.com -- Courington, Kiefer & Sommers, LLC. International Paper Company, Cross Defendant, represented by Walter G. Watkins, III -- wg.watkins@formanwatkins.com -- Forman, Watkins & Krutz LLP, Elizabeth Riddell Penn -- elizabeth.penn@formanwatkins.com -- Forman Watkins & Krutz LLP, Mary Reeves Arthur -- mimi.arthur@formanwatkins.com -- Forman, Watkins, & Krutz, LLP & Thomas Peyton Smith -- peyton.smith@formanwatkins.com -- Forman, Watkins, & Krutz, LLP. Hopeman Brothers, Inc., Cross Claimant, represented by Kaye N. Courington -- kcourington@courington-law.com -- Courington, Kiefer & Sommers, LLC, Blaine Augusta Moore -- bmoore@courington-law.com -- Courington, Kiefer & Sommers, LLC, Brittney Bullock Ankersen -- bankersen@courington-law.com -- Courington, Kiefer & Sommers, LLC, Jeffrey Matthew Burg -- jburg@courington-law.com -- Courington, Kiefer & Sommers, LLC, Mathilde Villere Semmes -- msemmes@courington-law.com -- Courington, Kiefer & Sommers, LLC & Troy Nathan Bell -- tbell@courington-law.com -- Courington, Kiefer & Sommers, LLC. ASBESTOS UPDATE: RJ Reynolds Directed to Pay $3.5MM to Florida Man ------------------------------------------------------------------ Peter Hayes of Bloomberg BNA reported that R.J. Reynolds and a filter maker must pay $3.5 million to the estate of a Florida man, the state's top court held. It's a ruling that draws renewed attention to another, lesser known, deadly aspect of some cigarettes of the 1950s for which RJR is still being sued. Kents were once touted as the safest smokes on the market because of their "extraordinary Micronite" filters which made them pure enough for even the "sensitive smoker" who worried about potential adverse health effects. "The exclusive MICRONITE FILTER removes 7 times more nicotine and tars than any other leading cigarette filter" one ad in the now defunct New York Daily News touted. Don't just try it once, the ad went on, try it for one or two weeks, to give yourself "time enough to allow your taste to adjust to so much less irritants in the smoke." Nowhere does the ad mention that "micronite" is crocidolite asbestos and that, from 1952 through 1956, the Lorillard Tobacco Co., now owned by R.J. Reynolds, used it as a filter in Kents. That legacy showed itself again Oct. 15 when the Florida Supreme Court affirmed that the filters were one of several "causative factors" in Richard DeLisle's development of mesothelioma. The court upheld a jury's finding that Lorillard and filter maker Hollingsworth & Vose each had to pay $1.76 million to DeLisle's estate, which amounts to 44 percent of the total $8 million award in the case. The rest of the verdict is to be paid by industrial product makers who the jury found were other sources of his asbestos exposure. The suit is one of several that, more than 60 years after the cigarette maker stopped using asbestos filters, is still playing out in federal and state courts. As of the beginning of this year, a total of 29 cases involving micronite filters were scheduled for trial, according to financial statements of Reynolds American Inc., which acquired Lorillard in 2014. This compares to 34 filter cases set for trial a year earlier. The context of these numbers might become clearer soon. A Pennsylvania appeals court in August said Lorrilard must comply with a Philadelphia-area judge's order that the company produce a list of suits it compiled in 2011. That list is to include not only Kent smokers who used the micronite filters, but also another category of plaintiffs -- the workers at the plants that once produced the asbestos filters. The list was compiled during the cigarette maker's prior defense of a Kentucky plant worker's suit. Whatever that list reveals, it's unlikely the number of cases headed to trial will go up much in the years ahead because the number of people still alive who smoked with the filters, and worked with them, is dwindling, attorneys who have litigated the suits say. Other Verdicts But the trials will continue because Lorillard has been fighting the micronite-filter cases as hard as it has been fighting the many regular cancer-causing tobacco suits pending against it. Not only that, the company has won many cases, like this one in 2010, where it successfully argued the smokers' asbestos-related diseases came from any of a number of other potential sources. The Florida verdict, however, is far from the first in plaintiffs' favor. Back in 1997, a California appeals court upheld a $1.3 million compensatory verdict and a $700,000 punitive award against Lorillard and H&V. That award went to a clinical psychologist who a jury found switched to Kents because he thought the filters were safer than what he had smoked. He died in 1996 of mesothelioma. And, in2011, a San Francisco jury awarded nearly $1.4 million to Donat Lenney, another former Kent smoker. Lenney's attorney said something that helped his client with that award was the absence of anything else that could have contributed to his client's asbestos disease. "In the case we tried, we didn't have other defendants," said attorney William Levin with Levin Simes LLP in San Francisco. He said Lenney was a bit of an unusual plaintiff in that, unlike many other former military members and industrial workers who have sued, Lenney was a white-collar worker, an insurance agent whose only asbestos exposure during his life came from Kents. That helped sway the jurors, Levin said, to see past Lorrilard's arguments that the filters must not have been too bad. After all, it said, they were once even used in hospitals and, like the newsapaper ad from 1952 touted, even "to purify the air in atomic energy plants." A Lorillard spokesman declined Bloomberg Law's request for comment about this story Oct. 19. ASBESTOS UPDATE: Salesman Claims Exposure to Asbestos in Talc ------------------------------------------------------------- Lisa Martine Jenkins of Chemical Watch reported that just two weeks after a previous case in California ended in mistrial, a jury has failed to reach a verdict on whether Johnson & Johnson's baby powder caused a plaintiff's mesothelioma. In the case -- the sixth mesothelioma trial against the company -- Kirk Von Salzen, a retired computer salesman, claimed exposure to asbestos fibres in J&J's powder caused his cancer. He had been using the baby product for 30 years when he was diagnosed in 2017. He was seeking over $12m in damages. The Los Angeles jury was deadlocked 8-4 against J&J -- one juror short of victory for Mr Von Salzen. The state judge declared a mistrial. This comes hot on the heels of a similar case -- concerning a woman with mesothelioma in Pasadena -- that also ended in a mistrial. The last case that had a conclusive result came in St Louis, Missouri in July. Then the jury ordered J&J to pay nearly $4.7bn in damages to 22 women who claimed to have contracted ovarian cancer after using the product. The evidence on the presence of asbestos in J&J talcum powder is mixed, and the company continues to maintain that their products are free of the carcinogen. In a statement after the latest mistrial, J&J representative Kim Montagnino said: "We look forward to a new trial to present our defence -- which rests on decades of independent, non-litigation driven scientific evaluations, none of which have found that Johnson's Baby Powder contains asbestos." ASBESTOS UPDATE: SCOTUS Hears Arguments on Naval Asbestos --------------------------------------------------------- Emily Field of Law360 reported that the U.S. Supreme Court heard arguments in a suit over whether naval equipment manufacturers are liable for injuries caused by asbestos-containing parts added after their products are made. SCOTUSblog wrote that the justices got a rare opportunity to ponder basic principles of tort law, as they closed the October session with the argument in Air and Liquid Systems v. DeVries. The case involves equipment sold by various manufacturers (including petitioner Air and Liquid Systems) that was installed many years ago on Navy ships. The equipment depended on asbestos insulation, which was installed shortly after the equipment reached the ships, to regulate its temperature. There also were asbestos gaskets between the parts, which on some occasions came with the original equipment, but were frequently replaced during the use of the equipment. The plaintiffs are a group of sailors (including respondent John DeVries) injured by the asbestos used with the equipment. This particular dispute is limited to injuries that cannot be attributed to any asbestos that the manufacturers supplied; all the relevant asbestos was applied to the equipment by third parties after the Navy acquired it. Because the injuries in question occurred at sea, the liability of the manufacturers cannot be determined under the law of any particular state. Rather, it arises under the general "maritime" law, judge-made federal law for which the Supreme Court is the final authority. The case comes to the justices after the lower court found that the manufacturers could be liable because the injuries were foreseeable. Arguing on behalf of the manufacturers, Shay Dvoretsky contended that the justices should adopt a bright-line "bare-metal" rule, absolving the manufacturers from liability for any asbestos that they did not themselves make, sell or distribute. Dvoretsky's time was dominated by a group of justices pressing the idea that the manufacturers should be held responsible, at least if the sailors can prove that the manufacturers directed or required the use of asbestos with the equipment that they sold. Several justices seemed to think that the facts of the case made liability almost straightforward. For example, almost immediately after Dvoretsky began his presentation, Justice Ruth Bader Ginsburg interrupted him to ask whether it "make[s] a difference" that the manufacturers were "making a product that is useless unless the asbestos is added." In the same vein, Justice Sonia Sotomayor interjected her view that under "normal" principles of "tort law, if you create a car that has a spark in the tank, and the gasoline . . . . explodes, the consumer is not going to sue the gasoline company. It's going to sue you because you, the car manufacturer, produced a defective product that caused an injury that the gasoline would otherwise not cause. Why are you any different than the bare-metal car seller?" Chief Justice John Roberts seemed to share Sotomayor's perspective, saying: "Normally, you run a car with gasoline and it's normally perfectly safe. Here, you normally run your product with asbestos and it's not perfectly safe." Offering his own hypothetical, Justice Stephen Breyer commented that for him, the case is just "not that complicated." Explaining with his usual expansiveness, he continued: It's the case in the Restatement. Judy loans her car for the evening to Grant, whom she knows is a very dangerous driver. The least-cost avoider, of course, is Grant. But, nonetheless, Judy is negligent. And the negligence that they're claiming here is taking a thing, a physical thing which the manufacturer knows is dangerous and unreasonably putting it out into interstate commerce. And that's why if you tell the user he's got to use asbestos, knowing all the relevant things, that's a negligent act. Taking a somewhat different tack, Justices Elena Kagan and Neil Gorsuch spent a considerable portion of Dvoretsky's time debating the problem as a matter of basic tort theory. Kagan started the discussion by interrupting Dvoretsky to ask: "When you say that even when this manufacturer is . . . direct[ing the buyers] to use asbestos, you are not liable, are you making a fairness argument? Are you making an efficiency argument? What kind of argument is that?" She offered Dvoretsky an "opportunity to tell me what sense would it make to say, even though you direct the use of asbestos, you can't be liable for its harms." Dvoretsky repeatedly offered his position that a bright-line rule exempting the manufacturers was sensible, but Roberts seemed to share Kagan's concerns, as he evinced skepticism about the breadth of the rule necessary for Dvoretsky to prevail: What if you are the only one who knows about it? I mean, the asbestos manufacturer -- their scientists haven't discovered yet that it's going to kill you, but you have, and . . . you still don't have a duty to warn? . . . I know it's not this case. But your position is even if you . . . are telling people to use asbestos with your product, [and] they don't know that it's harmful but you do, you have no duty to warn? At that point, Gorsuch weighed in, explicitly aligning himself with the desire of "Justice Kagan [to address this] as a matter of doctrine and policy." For Gorsuch, the key problem seemed to be the difficulty of defining any reason why we should be worried about obligating the manufacturers to warn their customers: "Besides the costs of having an additional warning, do you see any other downsides to expanding the scope of the duty to warn in this way?" He acknowledged that "[w]e normally do, you're right, put the duty to warn with the lowest cost avoider." But he added that "sometimes it's expanded" and went on to agree with the sailors that "it has been expanded in this area," which prompted him to "wonde[r] what are the negatives associated with that? Why is that bad?" Justice Brett Kavanaugh joined in on that point as well, asking at the very close of Dvoretsky's presentation: "Why are too many warnings bad? . . . Explain that to me." The presentation of Thomas Goldstein on behalf of the sailors had quite a different texture, as the justices allowed him to talk without interruption for an extended period at the beginning of his presentation, which hinged on the contention that it was appropriate to hold the manufacturers responsible for the foreseeable consequences of the use of asbestos at their direction. As time went on, however, it became clear that several of the justices were concerned about defining the boundaries of a rule favoring the sailors. The discussion revolved around a series of hypotheticals, each of which involved the manufacturer of a product that foreseeably would be used in connection with another product that might be dangerous. The principal hypotheticals involved the manufacturers of ashtrays -- presumptively not responsible for the harms to tobacco users; flashlights -- presumptively not responsible for the harms from leaking batteries; and aircraft -- presumptively not responsible for the harms from exploding engines. Goldstein offered two principal responses. One was that the equipment here was necessarily integrated with the asbestos -- it could not be used without it. That seemed to work well as an answer for the ashtray hypothetical (at least in theory you could use an ashtray for something other than a tobacco receptacle). It did not go over nearly so well for the flashlight hypothetical -- as it led Gorsuch to quip "I haven't used a flashlight without a battery very often." Goldstein's second answer was that the equipment itself contributed to the injury from the asbestos, something less likely to be true in the listed hypotheticals. Sotomayor was particularly receptive to this idea, as she had asked early on in the argument "[h]ow is [the asbestos] not the cause of the injury? The asbestos as sold is perfectly safe. It's integrated. It's whole. It doesn't release molecules. What causes it to degrade is [the equipment, which] heats up to such an extreme degree that it degenerates the asbestos." It was less clear, though, that the other justices accepted that response from Goldstein. About the only thing that can be said to summarize is that the justices as a group seemed far from settled by the end of the morning. ASBESTOS UPDATE: SEC Probes Honeywell's Asbestos Accounting ----------------------------------------------------------- Emily Field of Law360 reported that the U.S. Securities and Exchange Commission is investigating Honeywell International Inc.'s accounting of liability for asbestos claims after the company raised its estimate earlier this year by $1.1 billion. Reuters reported that the industrial conglomerate's revised estimate for asbestos-related liabilities was $2.61 billion as of end-2017, some $1.09 billion higher than a prior estimate, a regulatory filing. The liabilities are related to Bendix Friction Materials, a business previously owned by Honeywell and sold in 2014, which made automotive brake linings containing asbestos. Thousands of individuals have alleged personal injury from exposure to asbestos from the brakes. The company has also revised its 2017 reported earnings per share lower by 14 cents to $2.00. Honeywell reported quarterly results and said trade tariffs would squeeze profit margins and potentially cost it "hundreds of millions" of dollars in 2019. ASBESTOS UPDATE: Sponsor to Present Revisions to SB 315 ------------------------------------------------------- John Blodgett of The Western News reported that revisions to Senate Bill 315, which in 2017 established the Libby Asbestos Superfund Advisory Team, will be presented by the Montana Environmental Quality Council during Montana's 2019 legislative session. "The [revised] bill was approved [Sept. 12] and will be submitted to the next legislative session in its current form," Sen. Chas Vincent (R-Libby), council chair and SB315's sponsor during the 2017 legislative session, said by email. The revisions resulted from the team's inability to fill a state-funded staff position that local team members have said should pay more than what the state offered. The five-person team, formed last May after Gov. Steve Bullock signed SB315 into law, provides oversight of the Libby Asbestos Superfund site as the Montana Department of Environmental Quality assumes management of the site by January 2020. The five team members are Montana DEQ Director Tom Livers, who serves as the team chair; Lincoln County Commissioner Mark Peck; Rep. Steve Gunderson (R-Libby); Vincent; and Lincoln County citizen George Jamison. The staff position, called a liaison, was intended to coordinate among county, state and federal agencies and to report to the advisory team. Though Lincoln County was tasked with recruiting, the person was to be an employee of the DEQ. Two rounds of applicants produced only one far-and-away preferred candidate, who sought $10,000 more than the maximum $64,850 the job's classification allows. The pay issue was raised at a quarterly meeting of the Advisory Team on June 28 in Libby. Peck asserted at the time that the job as described didn't exist within the state's classification system, and that it exceeded the expectations of the classification it was placed in. Livers responded that he was hesitant to reclassify the job, or to make an exception, due to concern about other state employees doing comparable work for less money. After subsequent discussions, the advisory team proposed changes to SB315 that included eliminating the liaison position, renaming the advisory team as oversight committee, and assigning the oversight committee new roles and responsibilities, including those that had been expected of the liaison. The revisions were drafted by Joe Kolman, the Environmental Quality Council's legislative environmental analyst, presented to the council on Sept. 12, and accepted as presented. Vincent, whose second term ends later this year, wrote that he assigned the bill to fellow council member Gunderson to carry. ********* 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. 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