/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/190208.mbx C L A S S A C T I O N R E P O R T E R Friday, February 8, 2019, Vol. 21, No. 29 Headlines 1611 FOOD MART: Barrera Seeks to Recover Minimum & Overtime Wages ABSOLUTE RESOLUTIONS: Alexander Brings Suit Under FDCPA in Ark. ACE HARDWARE: Haggar Sues Over Blind-inaccessible Website ACORD CORP: Court Awards $1.597MM Defendants Attorney's Fees ACRES GROUP: Fails to Pay Overtime Under FLSA, Escudero Suit Says ADVANCED MICRO: Court Certifies Dickey Class ADVANTECH MANUFACTURING: Court OKs FLSA Class Settlement ALLTRAN FINANCIAL: Connolly Moves for Certification of Class AMERICAN IN-HOME: Gonzalez Seeks Overtime Pay for Healthcare Aides APEX LIFE: Lofton Files Class Action in Calif. Super. Ct. ATH HOLDING: Court Allows Class Certification Modification in Bell BOB'S DISCOUNT: Guerrero Sues over Use of Biometric Identifiers CAPSTONE RESTAURANT: Waters Sues over Use of Biometric Identifiers CENTRAL CREDIT: Certification of Class Sought in Rozani Suit CERTIFIED FLOORING: Did Not Pay Carpet Installers' OT, Couch Says COCONINO, AZ: Montelongo-Morales Suit Moved to Arizona Court COLLECTO INC: Court Grants Class Certification in Weissman Suit CONCORDE INVESTMENT: 7th Cir. Affirms Dismissal of PSLRA Suit CONSTAR FINANCIAL: Cruz Files Suit under FDCPA in New York CREDIT BUREAU: Certification of Class Sought in Johnson Suit CREDITREPAIR.COM INC: Sued by Carranza Over Unsolicited Calls DIAMOND RESORTS: Sold Unregistered Securities, Dropp et al. Claim DUTY FREE: Refuses to Pay Overtime Wages Under FLSA, Arteaga Says ELECTRO SCIENTIFIC: Continues to Defend Merger-Related Suits EXTREME NETWORKS: April 25 Hearing to Approve Settlement Set FINANCIAL RECOVERY: Betner-Gray Files Class Action under FDCPA FIRSTPOINT INC: $1.2-Mil. Settlement in Barnhill Suit Okayed FRANKLIN RESOURCES: Agreement Inked in Fernandez-Cryer Suit HARRIS CORP: Class Suits Challenge L3 Technologies Merger IDAHO: Court Consolidates 4 Inmates Suits with Workman IMMUNOMEDICS INC: Misled Shareholders, Robbins Arroyo Suit Says INDIAN RIVER: $1.4MM Cooley Class Settlement Has Prelim Approval L'OREAL USA: CeraVe Products Don't Treat Eczema, Magill Says LOS ANGELES, CA: Cal. App. Affirms Demurrer to Evidence in Howard LOUISIANA: Court Denies Atakapa Indian's TRO Bid MAPLEBEAR INC: Lozano Files Class Suit in Calif. Super. Ct. MARY JANE ELLIOTT: Vanderkodde's Bid to Certify Class Declared Moot MASSACHUSETTS: L Civil Class Action Dismissed With Prejudice MDL 2672: Court Denies Administrative Bid to Seal Lytle Declaration MDL 2785: Court Denies Bid for Sanofi to Produce Docs MERCHANTS & MEDICAL: Faces Gambina FDCPA Suit in New Jersey MICROSOFT CORP: Continues to Defend Moussouris Class Action MONARCH RECOVERY: Betner-Gray Files FDCPA Class Suit in New Jersey NATIONAL COLLEGIATE: Avery Files Personal Injury Class Action NATIONAL COLLEGIATE: Crowe Files PI Suit in S.D. Indiana NATIONAL COLLEGIATE: Cuevas Suit Asserts Claim for Personal Injury NATIONAL COLLEGIATE: Faces Battle Personal Injury Suit in Ind. NATIONAL COLLEGIATE: Faces Brantley PI Class Action in Indiana NATIONAL COLLEGIATE: Faces Owens Personal Injury Suit in Indiana NATIONAL COLLEGIATE: Faces Pierce PI Suit in Indiana Ct. NATIONAL COLLEGIATE: Georg Suit Alleges Claim for Personal Injury NATIONAL COLLEGIATE: Hailey Brings Personal Injury Suit in Indiana NATIONAL COLLEGIATE: Hoffman Asserts Personal Injury Claim NATIONAL COLLEGIATE: Johnson Alleges Claim for Personal Injury NATIONAL COLLEGIATE: Keck Class Suit Asserts Personal Injury NATIONAL COLLEGIATE: Koronkiewicz Sues Over Personal Injury NATIONAL COLLEGIATE: Kunzelman Files Personal Injury Case in Ind. NATIONAL COLLEGIATE: Lott Files PI Class Suit in Indiana NATIONAL COLLEGIATE: Lucot Class Suit Asserts Personal Injury Claim NATIONAL COLLEGIATE: Martin Files PI Class Action in Indiana NATIONAL COLLEGIATE: McCall Files Class Action for Personal Injury NATIONAL COLLEGIATE: McKinney Files Personal Injury Lawsuit NATIONAL COLLEGIATE: Perry Files Personal Injury Class Suit in Ind. NATIONAL COLLEGIATE: Presley Files PI Suit in Indiana NATIONAL COLLEGIATE: Randall Suit Asserts Personal Injury Claim NATIONAL COLLEGIATE: Rhodes Files Personal Injury Suit in Indiana NATIONAL COLLEGIATE: Slack Suit Asserts Claim for Personal Injury NATIONAL COLLEGIATE: Stroud Files PI Suit in Indiana Ct. NATIONAL COLLEGIATE: Thorne Files PI Class Action in Indiana NATIONAL COLLEGIATE: Van Doren Files Personal Injury Class Action NATIONAL COLLEGIATE: Watson Files PI Suit in Indiana Court NATIONAL COLLEGIATE: Williams Asserts Claim for Personal Injury NATIONAL COLLEGIATE: Wilson Files Personal Injury Class Action NATIONAL ENTERPRISE: Certification of Class Sought in Fote Suit NCAA: Abe Mack Sues over Cameron Student-Athletes' Safety NCAA: Calvin Lacy Sues over WIU Student-Athletes' Safety NCAA: Disregards Knoxville Student-Athletes' Safety, Hearn Claims NCAA: Disregards NCCU Student-Athletes' Safety, Hillie Says NCAA: Disregards Newberry Student-Athletes' Safety, King Claims NCAA: Disregards UNA Student-Athletes' Safety, Green Claims NCAA: Disregards Wabash Student-Athletes' Safety, Rickenbach Says NCAA: Disregards WSSU Student-Athletes' Safety, Holloway Claims NCAA: Disregards Wyoming Student-Athletes' Safety, Geist Claims NCAA: Houghton Sues over UNC Pembroke Student-Athletes' Safety NCAA: Kives Sues over Northeastern Student-Athletes' Safety NCAA: Lumpkin Sues over Millsaps College Student-Athletes' Safety NCAA: McCann Sues over University of Akron Student-Athletes' Safety NCAA: Medley Sues over Hiram College Student-Athletes' Safety NCAA: Medley Sues over Hiram College Student-Athletes' Safety NCAA: Page Sues over Safety Issues of Elon Student-Athletes NCAA: Pfeifer Sues over Cornell College Student-Athletes' Safety NCAA: Pledger Sues over Virginia Union Student-Athletes' Safety NCAA: Shoenfelt Sues over Gettysburg Student-Athletes' Safety NCAA: Simons Sues over Safety of UIndy Student-Athletes NEW BALANCE: $535K Dashnaw Settlement Has Preliminary Approval NEW PROSPECT: Sued by Baker Over W-2 Workers' Unpaid Overtime NOVARTIS AG: Sandoz and Fougera Continue to Defend Class Suits OPTIMUM OUTCOMES: Ct. Stays Proceedings on Whalen's Bid to Certify PENDRAGON NORTH: Chiu Appeals C.D. Calif. Ruling to Ninth Circuit PENSKE LOGISTICS: Rodriguez Settlement Has Final Court Approval PORTER MCGUIRE: Court Denies Certification of FCDPA Class QUICKEN LOANS: Hyde Sues over Unsolicited Marketing Text Message RAPID TRANSIT: Court Issues Show Cause Order in Moreno RIO RANCHO, NM: Students Searches Suit vs Individuals Dismissed ROADRUNNER INTERMODAL: Court OKs $9.25MM Singh Class Settlement SHAW ACADEMY: Davidson Sues Over Illegal Telemarketing Texts SOLCO HEALTHCARE: Sued over Contaminated Generic Irbesartan SORTIS FINANCIAL: Eisen Files FDCPA Suit in E.D. New York SOVEREIGN INDUSTRIES: Arce Suit Seeks to Recover Wages Under FLSA STEEG LAW: 5th Cir. Affirms Decertification in FDCPA Suits TRACKIN CO: Meza Files Class Action in Calif. Super. Ct. UXIN LIMITED: Lei Liang Sues over Stock Price Drop WAGNER & WAGNER: Underpays Salespersons, Dela Cruz Suit Says WELBILT INC: Faces Borel-Donohue Securities Suit in Florida YANGTZE RIVER: Rosen Law Firm Files Class Action Lawsuit ZICAM LLC: Court Grants Final Approval of Melgar Class Settlement Asbestos Litigation ASBESTOS UPDATE: Asbestos Claims Continue to Climb, AM Best Says ASBESTOS UPDATE: Asbestos Discovered at Dormant Quarry ASBESTOS UPDATE: Asbestos Material Used in Kuwaiti Thermos ASBESTOS UPDATE: Asbestos Played Role in Shipyard Worker's Death ASBESTOS UPDATE: Automaker Wins Review on Asbestos Liability Ruling ASBESTOS UPDATE: Barrow Has Highest Asbestos Cancer Rate in UK ASBESTOS UPDATE: Burton Carpenter Dies of Asbestos Death ASBESTOS UPDATE: Chesham Woman Dies of Epithelioid Mesothelioma ASBESTOS UPDATE: Court Scolds County Over Judge's Asbestos Death ASBESTOS UPDATE: Court Won't Compel Cos. to Pay Deposition Costs ASBESTOS UPDATE: Crane Co. Had 29,089 Pending Claims at Dec. 31 ASBESTOS UPDATE: Crane Co. Pays $1.3MM Judgment in DeLisle Case ASBESTOS UPDATE: Fake Cigarettes Containing Asbestos Discovered ASBESTOS UPDATE: Family Seeks Answer Over Member's Asbestos Death ASBESTOS UPDATE: Fired Worker May Pursue Whistleblower Claims ASBESTOS UPDATE: Firm Denies Claims Rail Asbestos Removal Unsafe ASBESTOS UPDATE: Firm Settles Asbestos Row Before $81MM Jury Award ASBESTOS UPDATE: Former Laborer Blames Asbestos for Cancer ASBESTOS UPDATE: Former Painter Dies of Asbestos Exposure ASBESTOS UPDATE: Former Shipyard Workers Get EUR51,000 ASBESTOS UPDATE: H.B. Fuller Settles 7 Suits, Claims for $400K ASBESTOS UPDATE: Judge Mendez Recuses From Houston v. 3M Company ASBESTOS UPDATE: Juni Ruling Dose of Reality to Asbestos Litigation ASBESTOS UPDATE: Kaercher Couple Sues Over Asbestos Exposure ASBESTOS UPDATE: Man Arrested Over Asbestos Consulate Packages ASBESTOS UPDATE: March 18 Maremont Plan Confirmation Hearing ASBESTOS UPDATE: March 28 Oakfabco Plan Confirmation Hearing ASBESTOS UPDATE: Meritor Gains $31MM from Liability Reassessment ASBESTOS UPDATE: Meza Claims vs. BASF Catalysts Dismissed ASBESTOS UPDATE: Moroun Firm Cited for Asbestos Violations ASBESTOS UPDATE: New Law Gives EPA Power to Ban Asbestos ASBESTOS UPDATE: New Talc-Asbestos Lawsuit Goes to Trial ASBESTOS UPDATE: NY Court Hears Arguments in M. South Case ASBESTOS UPDATE: Orleans Man Facing Charges for Dumping Asbestos ASBESTOS UPDATE: Pa. Court Denies Bid to Dismiss Youse Suit ASBESTOS UPDATE: Pathologist Testifies in Asbestos Talc Trial ASBESTOS UPDATE: Pinjarra Refinery Exposure Probe Continues ASBESTOS UPDATE: Rector Couple Sues Over Asbestos Exposure ASBESTOS UPDATE: Renovation Firm Fined for Asbestos Violations ASBESTOS UPDATE: RFPC's Parent Company Defends Claims at Jan. 25 ASBESTOS UPDATE: Senators Ask Asbestos Info From Talc Firm CEO ASBESTOS UPDATE: Son Sues Ameron Over Father's Death ASBESTOS UPDATE: Wash. Landslide Eroding Natural Asbestos Deposit ASBESTOS UPDATE: Widow's Asbestos Suit Remains in Federal Court ASBESTOS UPDATE: Willful Asbestos Violations Results in $800K Fines ********* 1611 FOOD MART: Barrera Seeks to Recover Minimum & Overtime Wages ----------------------------------------------------------------- ISMAEL CHINO BARRERA, JUAN CHINO BARRERA, and APOLINAR TAVERAS PICHARDO, on behalf of themselves and others similarly situated v. 1611 FOOD MART INC. d/b/a DOLLAR DEAL, PADAM BAJAJ, and RAKHI BAJAJ, Case No. 1:19-cv-00606 (S.D.N.Y., January 22, 2019), alleges that pursuant to the Fair Labor Standards Act, the Plaintiffs are entitled to recover from the Defendants: (a) unpaid minimum wages; (b) unpaid overtime compensation; (c) liquidated damages; (d) prejudgment and post-judgment interest; and (e) attorneys' fees and costs. 1611 Food Mart Inc., doing business as Dollar Deal, is a domestic business corporation organized under the laws of the state of New York with a principal place of business in Bronx, New York. The Individual Defendants are joint owners, shareholders, officers, directors, supervisors, managing agents and proprietors of Dollar Deal. The Defendants operate a dollar store named Dollar Deal.[BN] The Plaintiffs are represented by: Justin Cilenti, Esq. Peter H. Cooper, Esq. CILENTI & COOPER, PLLC 708 Third Avenue - 6th Floor New York, NY 10017 Telephone: (212) 209-3933 Facsimile: (212) 209-7102 E-mail: jcilenti@jcpclaw.com pcooper@jcpclaw.com ABSOLUTE RESOLUTIONS: Alexander Brings Suit Under FDCPA in Ark. --------------------------------------------------------------- A class action lawsuit has been filed against Absolute Resolutions Corporation. The case is styled as Jason Alexander, on behalf of himself and others similarly situated, Plaintiff v. Absolute Resolutions Corporation, Mark Naiman, Lloyd & McDaniel, PLC and W. Anderson Woodford, Defendants, Case No. 3:19-cv-03007-TLB (W.D. Ark., January 25, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Practices Act. Absolute Resolutions Corporation provides accounts receivable solutions for the healthcare, bank card and finance, retail, and telecom sectors. The company focuses on the recovery, purchase, and sale of distressed accounts receivables. It offers custom services and reporting in the areas of collection, including custom reports, early out programs, standard collections, legal collections, and skip tracing.[BN] The Plaintiff is represented by: Corey D. McGaha, Esq. Crowder McGaha, LLP 5507 Ranch Drive, Suite 202 Little Rock, AR 72223 Tel: (501) 205-4026 Fax: (501) 367-8208 Email: cmcgaha@crowdermcgaha.com - and - William Thomas Crowder, Esq. CROWDER MCGAHA LLP 5507 RANCH DRIVE, SUITE 202 Little Rock, AR 72223 Tel: (501) 205-4026 Fax: (501) 367-8208 Email: wcrowder@crowdermcgaha.com ACE HARDWARE: Haggar Sues Over Blind-inaccessible Website --------------------------------------------------------- ELIA HAGGAR; KYO HAK CHU, individually and on behalf of themselves and all others similarly situated v. ACE HARDWARE CORPORATION; and DOES 1 to 10, inclusive, Case No. 2:19-cv-00478-SVW-E (C.D. Cal., January 22, 2019), arises from Ace Hardware's failure to design, construct, maintain, and operate its Web site -- https://www.acehardware.com/ -- to be fully and equally accessible to and independently usable by the Plaintiff and other blind or visually-impaired people. Ace Hardware Corporation is a Delaware corporation, with its headquarters in Illinois. The Defendant conducts a large amount of its business in California, and the United States as a whole. The Plaintiffs are unaware of the true names, identities, and capacities of the Doe Defendants. Ace Hardware operates as a wholesaler of hardware, paint, and other related products in the United States and internationally. The Company offers lawn and garden equipment, paints and sundries, and hand tools. The Company also provides value-added services, such as advertising, marketing, merchandising, and store location and design services to its retail members.[BN] The Plaintiffs are represented by: Bobby Saadian, Esq. Thiago Coelho, Esq. WILSHIRE LAW FIRM 3055 Wilshire Blvd., 12th Floor Los Angeles, CA 90010 Telephone: (213) 381-9988 Facsimile: (213) 381-9989 E-mail: bobby@wilshirelawfirm.com thiago@wilshirelawfirm.com ACORD CORP: Court Awards $1.597MM Defendants Attorney's Fees ------------------------------------------------------------ The United States District Court for the District of Colorado issued a Memorandum Opinion and Order grating Defendants Attorney’s Fees in the case captioned DALE SNYDER, et al., individually, and on behalf of all others similarly situated, Plaintiffs, v. ACORD CORPORATION, a Delaware non-profit corporation, et al., Defendants. Civil Action No. 1:14-cv-01736-JLK. (D. Colo.). This matter before this Court is whether Joint Defendants are entitled to an award against Plaintiffs' counsel personally under 28 U.S.C. Section 1927. After dismissing the Plaintiffs' claims in this case, the Court ruled that Joint Defendants are entitled to an award of attorney fees under Colorado Revised Statute Section 13-17-201. The Court of Appeals for the Tenth Circuit has since similarly concluded that Joint Defendants are entitled to an award of their appellate attorney fees under Section 13-17-201.The matters remaining for me to determine are the amount of the attorney fees that were reasonably and necessarily incurred by Joint Defendants in defending this action, both at the trial level and on appeal, and whether Joint Defendants are entitled to an award against Plaintiffs' counsel personally under 28 U.S.C. Section 1927. Amount of the Attorney Fee Award under Colorado Revised Statute Section 13-17-201 Left for the Court to determine is the amount of fees Joint Defendants reasonably and necessarily incurred in defending the action. To do so, the COurt must calculate the lodestar amount, which is the product of the number of attorney hours reasonably expended' and a reasonable hourly rate. Joint Defendants' Opening Brief on the amount of the attorney fee award calculated the total lodestar at $1,775,855.69. That amount has since been reduced. Thus, the final award sought by Joint Defendants is $1,597,602.66. Reasonableness of the Hours Expended The court has summarized them as: (1) whether the tasks being billed would normally be billed to a paying client (2) the number of hours spent on each task, (3) the complexity of the case (4) the number of reasonable strategies pursued (5) the responses necessitated by the maneuvering of the other side,' and (6) `potential duplication of services' by multiple lawyers. The Court finds the most significant factor for determining the proper amount of the present fee award is that Joint Defendants' request includes only hours for which they were actually billed by and paid their counsel. Mr. Shea gives great weight to this fact and notes that such consideration is especially warranted since Joint Defendants are sophisticated entities often with long-standing relationships with their counsel. These Defendants could select the counsel of their choice and many negotiated discounted rates. It is highly unlikely that counsel would jeopardize these relationships by overbilling their clients. Still, Joint Defendants do not seek total compensation for all of the hours expended by their counsel or at the full rate paid. The complexity of this case further supports the reasonableness of the hours expended. Plaintiffs asserted 23 claims against each of the 113 Defendants, alleging a broad, multi-decade conspiracy. The case was disposed of at the earliest stage on a motion to dismiss, yet there are still over 600 docket entries. It was fully foreseeable and is reasonable that such a case would require Defendants' counsel to expend thousands of hours defending it. The Court is unpersuaded by Plaintiffs' argument that the blame lies with Defendants for their rejection of Plaintiffs' qualified offers to decrease the number of parties involved. Plaintiffs initiated this litigation and were in control of its course. There is no indication Defendants' counsel acted unreasonably or stepped outside the bounds of competent representation of their clients. Plaintiffs cannot now complain that the fees incurred by Defendants are excessive because such an inordinate number were forced to take part. In any case, Joint Defendants have demonstrated that they worked together as much as possible. Since many are direct competitors, though, it was impossible for a single firm or even a handful of firms to represent all. Defendants' counsel reduced the overall number of hours expended by joining motions and coordinating responses. Each could have filed an independent motion to dismiss detailing every applicable defense. Instead, however, they collaborated and joined other Defendants' motions where possible. Of course, coordinating in such a way could not have occurred without incurring fees for sending emails, participating in conference calls, reviewing drafts, etc. Reasonableness of the Claimed Rates Finding the hours expended to be reasonable, the Court moves on to the reasonableness of the rates sought. Mr. Shea capped the rates on the invoices of Joint Defendants' counsel at $625 for experienced partners, $425 for associates, and $200 for paralegals. It is telling that some Joint Defendants valued the services of their attorneys to such a degree that they compensated them at substantially higher rates than $625 per hour. But the Court agrees that the rates put forward by Mr. Shea reflect those of lawyers of comparable skill and experience practicing in this District at present. The Plaintiffs challenge $625 as the maximum rate for fees in this case claiming that the purpose of fee reimbursement is to attract competent counsel, not any counsel Defendants wish. As the Court explained above, if Joint Defendants have sought the Cadillac of legal representation, it is because they reasonably viewed such representation as necessary under the circumstances and were willing to pay for it. Plaintiffs fail to identify a rate at which other counsel of comparable skill and experience would have represented Defendants and achieved the same outcome. Specifically, they do not reference any factually similar, contemporaneous cases in which courts in this region assigned a lower rate to such experienced counsel. Again, the Plaintiffs argue that the Defendants did not achieve complete success because all but one of their motions to dismiss were denied as moot. Defendants were forced to present various motions because Plaintiffs asserted their claims against such a diverse range of defendants, some of whom were not even involved in the sale of homeowners' insurance. The resultant mootness of certain motions has no bearing on the success achieved by Defendants in this case. What matters is the result, and in the instant case, the result' for Defendants was complete vindication. Taking into account the skill of counsel, the prevailing market rates in Denver, the complexity of the case, and the longstanding relationships between many of Joint Defendants and their counsel, the Court find the rates sought by Joint Defendants, as reduced by Mr. Shea, are reasonable. The Lodestar Amount Since Joint Defendants have carried their burden of establishing that the hours expended and the rates claimed are reasonable, the lodestar amount is presumed to be a reasonable fee. That amount may be modified, but no request for an enhancement or specific adjustment is made here. By suing a drove of diverse parties, Plaintiffs exposed themselves to liability for a multitude of fees. They have imposed costs on virtually the entire insurance industry, and under the law, they must shoulder the result. Joint Defendants are, therefore, entitled to their attorney fees against. Personal Liability under 28 U.S.C. Section 1927 The last matter the Court left unsettled in my order granting Joint Defendants their attorney fees against Plaintiffs is whether Plaintiffs' counsel should be held personally responsible for their fees as well. The Tenth Circuit has held that Section 1927 does not require a finding of bad faith and that any conduct, that viewed objectively, manifests either intentional or reckless disregard of the attorney's duties to the court, is sanctionable. This is an extreme standard and a court should make such an award only in instances evidencing a serious and standard disregard for the orderly process of justice. The purpose of Section 1927 is to incentivize attorneys to regularly re-evaluate the merits of their claims and avoid prolonging meritless claims. Recognizing that Section 1927 only authorizes sanctions in extreme cases, the Court finds Plaintiffs' counsel, Mr. Josue Hernandez, has without a doubt multiplied these proceedings unreasonably and vexatiously. Examples of this behavior are his refusal to acknowledge that the complaint was deficient under Federal Rule of Civil Procedure 8, his incessant filing of absurdly lengthy and legally incorrect briefs,15 and his insistence on pursuing the case even after my dismissal order. Mr. Hernandez did not officially enter his appearance in this case until October 17, 2014, but the record is clear that he had an active role in the case prior to that date. Section 1927 does not require that the attorney multiplying the proceedings be counsel of record to be sanctioned, and it would be improper to incentivize attorneys to delay entering an appearance in order to avoid liability for their unreasonable and vexatious conduct. The vexatiousness of the submissions generally was not in what they purported to be; it was in their substance and form. The Court have described them as prolix, meandering, full of unfounded supposition and speculation, repetitive and convoluted almost to the point of being maddening, etc. the Court needs not say more. The notices and errata alone have required Defendants to turn circles and backflips. Through his involvement in this case, Plaintiffs' counsel has evidenced a serious and standard disregard for the orderly process of justice. The Court cannot permit such an outcome. Consequently, the Court concludes Mr. Hernandez is liable for fees under 28 U.S.C. Section 1927 from August 19, 2014, forward. This finding is limited to fees incurred in defending the action at the district court level. Thus, if Joint Defendants continue to seek an award against Plaintiffs' counsel personally, they must submit on or before February 6, 2019, the attorney fees which I have found to be reasonable they incurred after August 19, 2014, and related to district court proceedings only. The Court is sensitive to the impact this Order will have both on Plaintiffs and Mr. Hernandez, and the Court do not issue it lightly. As Mr. Hernandez suggested at the March 2018 hearing, individuals' health, families, and even dogs have been affected by this litigation. The Court cannot ignore, however, the obstinate pattern of behavior exhibited by Mr. Hernandez nor his and the plaintiffs' complete disregard for the consequences of that behavior. This ship could have been abandoned at many points along the way, but it was not. Plaintiffs, with Mr. Hernandez at the helm, have forced Defendants, not just Joint Defendants, to expend enormous sums defending this action due to their senseless and ineffective pleadings and filings. The apparent aim of this litigation was to ensure fair business dealings by the insurance industry unquestionably an honorable goal, but it has instead unjustifiably cost the industry millions of dollars, a burden that is likely to be passed on to the insureds it ostensibly sought to protect. Accordingly, as set out in the table above, Joint Defendants are awarded their attorney fees to be paid by Plaintiffs under Colorado Revised Statute Section 13-17-201. If Joint Defendants seek to recover their fees from Plaintiffs' counsel pursuant to 28 U.S.C. Section 1927 as well, they are ORDERED to submit the amount of the attorney fees each incurred after August 19, 2014, and related to district court proceedings only. Since the Court have already determined the fees that were reasonably and necessarily incurred, upon receipt of Joint Defendants' submission, each will be awarded the calculated amount against Plaintiffs' counsel, Josue Hernandez, and will be entitled to recover that portion of its total fee award from him or Plaintiffs. A full-text copy of the District Court's January 24, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/y9w4ehot from Leagle.com. Dale Snyder, Marilyn Snyder, Mary Ann Geldreich, Mary Harrow, DO, Kenneth Dale Yoder, also known as Ken Yoder, Catherine Taylor, also known as Ken Yoder, Martha Lemert, Gary Lemert, Jeffrey Ray, also known as Jeff Ray, Jennifer Ray, Louise Creager, Janet Koch, Ian Siemplenski, Tommy Meyer, Nicole Wright-Meyer, Sueham (I) Kay Hoffman, individually, Sueham Kay Hoffman, as representative for the, Laila (I) Saeda Urban, individually, Laila Saeda Urban, as representative for the & Dorothy Wood Hammer, individually and on behalf of all others similarly situated, Plaintiffs, represented by Josue David Hernandez, Josue David Hernandez, Attorney at Law. Acord Corporation, a Delaware non-profit corporation, Defendant, represented by Charles Edmond Fuller -- CFuller@SennLaw.com -- Senn Visciano Canges, P.C., Frank W. Visciano -- FVisciano@SennLaw.com -- Senn Visciano Canges, P.C., Jeffrey Michael Theodore, Steptoe & Johnson, LLP & Mark Frederick Horning, Steptoe & Johnson, LLP Acuity, A Mutual Insurance Company, a Wisconsin corporation & American Strategic Insurance Corp., a Florida corporation, Defendants, represented by Jamey William Jamison, Harris Karstaedt Jamison & Powers, PC & Thomas Howard Falivene, Thomas H. Falivene, Attorney at Law ACRES GROUP: Fails to Pay Overtime Under FLSA, Escudero Suit Says ----------------------------------------------------------------- JOSE BALDEMAR ESCUDERO, on behalf of himself and other similarly situated individuals v. ACRES GROUP, and JAMES SCHWANTZ Individually, Case No. 1:19-cv-00454 (N.D. Ill., January 22, 2019), arises under the Fair Labor Standards Act, the Illinois Minimum Wage Law and the Illinois Wage Payment and Collection Act for the Defendants' alleged failure to pay the Plaintiff and other similarly situated employees overtime wages for all time worked in excess of 40 hours in a workweek. Acres Group is a corporation organized under the laws of the state of Illinois and has its office and place of business in Barrington, Illinois. James Schwantz is the owner or president of Acres Group. Acres Group is a corporation specializing in landscape maintenance, landscape installation, custom design build projects, and snow removal.[BN] The Plaintiff is represented by: Michael P. Persoon, Esq. DESPRES, SCHWARTZ & GEOGHEGAN LTD. 77 W. Washington St., Suite 711 Chicago, IL 60602 Telephone: (312) 372-2511 E-mail: mschorsch@dsgchicago.com - and - Alexandria Santistevan, Esq. FARMWORKER & LANDSCAPER ADVOCACY PROJECT 33 N. LaSalle Street, Suite 900 Chicago, IL 60602 Telephone: (312) 784-3541 E-mail: litigation@flapillinois.org ADVANCED MICRO: Court Certifies Dickey Class -------------------------------------------- The United States District Court for the Northern District of California issued an Order granting Plaintiffs' Motion for Class Certification in the case captioned TONY DICKEY, et al., Plaintiffs, v. ADVANCED MICRO DEVICES, INC., Defendant. Case No. 15-cv-04922-HSG. (D. Cal.). Plaintiffs Tony Dickey and Paul Parmer filed the operative second amended class action complaint alleging that Defendant Advanced Micro Devices, Inc. (AMD) misrepresented the number of core processors in its Bulldozer line of central processing units (CPUs). Plaintiffs bring six causes of action, alleging violations of California's (1) Consumer Legal Remedies Act (CLRA) (2) Unfair Competition Law (UCL) (3) False Advertising Law (FAL) as well as (4) fraud in the inducement (5) breach of express warranty and (6) negligent misrepresentation. The Plaintiff seeks to certify the following class: All individuals who purchased one or more of the following AMD computer chips either (1) while residing in California or (2) after visiting the AMD.com website: FX-8120, FX-8150, FX-8320, FX-8350, FX-8370, FX-9370, and FX-9590. The Defendant contends that certification of these classes is inappropriate because the Plaintiff and the classes fail to satisfy the commonality, predominance, and superiority requirements for a Rule 23(b)(3) class. The Court addresses each in turn and finds that the requirements of Rule 23(a) and Rule 23(b)(3) have been met in this case. Rule 23(a) Numerosity The Plaintiffs contend that a conservative estimate places the class size in the hundreds of thousands. The Defendant does not contest that numerosity is satisfied in this proposed class. Rule 23(a)(1) requires that the putative class be so numerous that joinder of all members is impracticable. The Court finds that numerosity is satisfied here because joinder of the estimated hundreds of thousands of class members would be impracticable. Commonality Rule 23(a)(2) requires that there are questions of law or fact common to the class. A contention is sufficiently common where it is capable of classwide resolution which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. The Defendant disputes that the Plaintiffs have met their burden of showing commonality of claims. The Defendant contends that individual class members' understanding of the term core could differ substantially the Defendant notes that the Plaintiffs have not identified the reasonable consumer's interpretation of the term core here at the class certification stage, providing only evidence of how Named Plaintiffs understood the term. The Defendant contends that no common understanding of the term core can be established that supports the Plaintiffs' arguments because a significant majority interpret core in ways that are fully consistent with AMD's chips. The Defendant's challenges are not persuasive. The central question raised is whether a reasonable consumer would have been deceived by the term core as used in the Defendant's advertising. Whether or not the Plaintiffs' prevail on the merits of their challenge, the answer to that question is common to all class members. To the extent the Defendant contends that the evidence provided thus far does not support the Plaintiffs' theory of liability, the Defendant's arguments are premature and not appropriate for resolution at the class certification stage. Accordingly, the Court finds that the commonality requirement is met in this case. Typicality Rule 23(a)(3) requires that the claims or defenses of the representative parties are typical of the claims or defenses of the class. The test of typicality is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct. The Defendant does not contest the typicality of the Plaintiffs' claims. The Plaintiffs' claims are both factually and legally similar to those of the putative class because the 8-core representation at issue is the same for all class members. Plaintiff has not alleged any individual claims. This is sufficient to satisfy the typicality requirement. Adequacy of Representation Rule 23(a)(4) requires that the representative parties will fairly and adequately represent the interests of the class. The Court must address two legal questions: (1) whether the named plaintiffs and their counsel have any conflicts of interest with other putative class members, and (2) whether the named plaintiffs and their counsel will prosecute the action vigorously on behalf of the proposed class. This inquiry tends to merge with the commonality and typicality criteria. In part, these requirements determine whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. The Court is unaware of any actual conflicts of interest in this matter and no evidence in the record suggests that either Plaintiffs or proposed class counsel have a conflict with other class members. The Court finds that proposed class counsel and Plaintiff have prosecuted this action vigorously on behalf of the class to date and will continue to do so. The adequacy of representation requirement, therefore, is satisfied. Rule 23(b)(3) To certify a class, Plaintiff must also satisfy the two requirements of Rule 23(b)(3). First, questions of law or fact common to class members must predominate over any questions affecting only individual members. And second, a class action [must be] superior to other available methods for fairly and efficiently adjudicating the controversy.The Court finds that both are met in this case. Predominance The predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. This inquiry asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues. Materiality and Reliance The Defendant contends that issues of falsity, materiality, injury or reliance for each individual class member would predominate in this case. With respect to the commonality prong, the consumer protection laws at issue here evaluate materiality under a reasonable person standard, and materiality is generally a question of fact. Defendant's arguments, whether addressed to the commonality prong or the predominance prong, are not persuasive at the class certification stage. Because the issues of materiality and falsity are not evaluated on an individualized basis, these questions do not weigh against a finding of predominance. Exposure In cases alleging misrepresentation, common issues predominate when plaintiffs are exposed to a common set of representations about a product. The present case involves a single message, which appeared across all of the relevant advertising. Defendant does not dispute that all class members were exposed to the same allegedly misleading message; rather, Defendant argues that some class members may have also been exposed to other information that would explain AMD's definition of the term core. The Defendant cites a number of cases in support of its proposition that causation, materiality, and/or injury cannot be measured on a class-wide basis where the evidence shows that materiality varies across the putative class. These cases are inapposite because, unlike the present case, they address the prospect of class members being exposed to entirely different statements or to none at all. The Defendant has, in essence, repurposed its argument that different class members may hold different understandings of the term core as a challenge to class-wide exposure. Because exposure to the alleged misleading statements is uniform across the class, and for the same reasons as discussed in Sections III(A)(ii) and III(B)(i)(a) above, these individualized issues of each class member's understanding are not at issue when materiality is assessed on a class-wide basis under a reasonable consumer standard. Damages With respect to the monetary relief sought by a putative class, the predominance inquiry requires that damages are capable of measurement on a classwide basis, in the sense that the whole class suffered damages traceable to the same injurious course of conduct underlying the plaintiffs' legal theory. As such, a model purporting to serve as evidence of damages in a class action must measure only those damages attributable to the relevant theory of liability. While a proffered model need not be exact at the class certification stage, it must be consistent with the plaintiff's liability case. The Defendant contends that Plaintiff has not provided a damages model applicable on a class-wide basis. Plaintiffs' proposed model measures the difference between the price paid for an AMD processor marketed as 8-core and an AMD processor marketed as 4-core. Plaintiffs have also provided an attorney declaration that summarizes pricing evidence to provide an estimate of their damages amount. Defendant, noting that Plaintiffs have provided no expert testimony in support of their damages model, challenge the admissibility of the supporting declaration and contend that Plaintiffs were required to provide expert testimony to explain why their methodology is a valid measure of economic harm. The Court disagrees. So long as Plaintiffs demonstrate damages to be measurable on a class-wide basis, expert testimony is not required to support a damages model. Plaintiffs' model measures the difference between the price paid for a product advertised as 8-core and the price paid for a product advertised as 4-core. Because Plaintiffs have demonstrated common exposure to the alleged misrepresentations and Plaintiffs' damages model is sufficient at this stage to show that damages traceable to the allegedly misleading claims can be measured on a class-wide basis, the Court finds that common questions of law predominate. Superiority The superiority requirement tests whether a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The Defendant only contests superiority by positing the difficulty of ascertaining the members of the purported class.4 Plaintiffs exclusively bring California state law claims. Because California law applies to out-of-state class members only based on the terms of use on AMD's website, individuals must have visited the website prior to purchase in order to qualify as class members. The Defendant contends that the Plaintiffs offer no method to assess which class members visited the AMD website before purchase. Defendant cites two cases, the first rejecting a class based on the complexity of determining residency, and therefore choice of law, of class members during the relevant time period, and the second denying class certification where identification of class members required a detailed review of each potential class member's personnel file. To the extent that Defendant argues that self-identified class members may not have visited AMD's website prior to their purchase, the Court can rely on claim administrators, various auditing processes, sampling for fraud detection, follow-up notices to explain the claims process, and other techniques tailored by the parties and the court to avoid or minimize fraudulent claims. Therefore, given that the expected recovery for each class member is relatively low, the Court finds that a class action is the superior method to adjudicate this matter. Accordingly, the Court grants the Plaintiffs' motion for class certification and certifies the following class: All individuals who purchased one or more of the following AMD computer chips either (1) while residing in California or (2) after visiting the AMD.com website: FX-8120, FX-8150, FX-8320, FX-8350, FX-8370, FX-9370, and FX-9590. A full-text copy of the District Court's January 17, 2018 Order is available at https://tinyurl.com/y72356ll from Leagle.com. Tony Dickey, Plaintiff, represented by Lily E. Hough -- lhough@edelson.com -- Edelson PC, Benjamin Scott Thomassen -- bthomassen@edelson.com -- Edelson P.C. & Rafey Sarkis Balabanian -- rbalabanian@edelson.com -- Edelson PC. Paul Parmer, Plaintiff, represented by Lily E. Hough, Edelson PC, Rafey Sarkis Balabanian, Edelson PC, Todd M. Logan -- tlogan@edelson.com -- Edelson PC & Benjamin Scott Thomassen, Edelson P.C. Advanced Micro Devices, Inc., Defendant, represented by Matthew David Powers -- mpoweers@omm.com -- O'Melveny & Myers LLP, Edmundo Clay Marquez -- cmarquez@omm.com -- O'MELVENY & MYERS LLP & Kelsey M. Larson -- klarson@omm.com ADVANTECH MANUFACTURING: Court OKs FLSA Class Settlement -------------------------------------------------------- The United States District Court for the Eastern District of Wisconsin issued an Order granting Joint Motion for Preliminary Approval of Their Class Action Settlement in the case captioned MARYBETH MEYER-VAN ZEELAND, Plaintiff, v. ADVANTECH MANUFACTURING INC., Defendant. Case No. 18-cv-490-pp. (E.D. Wis.). The parties have filed a joint motion for preliminary approval of their class action settlement, and a joint motion asking the court to stay case deadlines pending settlement approval. The court finds that the settlement agreement is fair, reasonable and adequate, resolving a bona fide dispute between the parties. The court grants the joint motion for preliminary approval of class action settlement and approves the joint stipulation to conditionally certify a collective action pursuant to section 216(b) of the FLSA, the authorization of notice to the putative collective action members and for class certification pursuant to Fed. R. Civ. P. 23. For purposes of the proposed settlement, the court conditionally certifies the following opt-in settlement class under 29 U.S.C. Section 216(b): The FLSA Class. All persons who are or have been employed by Advantech Manufacturing, Inc. as an hourly employee between March 28, 2016 and March 28, 2018 who claim they have not been compensated for all hours worked as a result of Advantech Manufacturing, Inc.'s policy and practice. For purposes of the proposed settlement, the court certifies the following settlement class under Rule 23 of the Federal Rules of Civil Procedure: The Wisconsin Class. All persons who are or have been employed by Advantech Manufacturing, Inc. at its Wisconsin location as an hourly employee between March 28, 2016 and March 28, 2018 who claim they have not been compensated for all hours worked as a result of Advantech Manufacturing, Inc.'s policy and practice. A full-text copy of the District Court's January 17, 2018 Order is available at https://tinyurl.com/yc3lp4hf from Leagle.com. Marybeth Meyer-Van Zeeland, Plaintiff, represented by David M. Potteiger -- dpotteiger@walcheskeluzi.com -- Walcheske & Luzi LLC, James A. Walcheske -- jwalcheske@walcheskeluzi.com -- Walcheske & Luzi LLC & Scott S. Luzi -- sluzi@walcheskeluzi.com -- Walcheske & Luzi LLC. Advantech Manufacturing Inc, Defendant, represented by Ann Barry Hanneman -- ahanneman@vonbriesen.com -- von Briesen & Roper SC. ALLTRAN FINANCIAL: Connolly Moves for Certification of Class ------------------------------------------------------------ Kevin Connolly moves the Court to certify the class described in the complaint of the lawsuit entitled KEVIN CONNOLLY, Individually and on Behalf of All Others Similarly Situated v. ALLTRAN FINANCIAL, LP, Case No. 2:19-cv-00129-WED (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiff asserts, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class, the Plaintiff tells the Court, citing Fulton Dental, LLC v. Bisco, Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June 20, 2017). The Plaintiff asserts that one defendant has attempted a similar tactic by sending a certified check to the proposed class representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D. Wis.); see also Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). The Plaintiff is obligated to move for class certification to protect the interests of the putative class, the Plaintiff contends. As the Motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when short motion to certify and stay should suffice until an amended motion is filed, the Plaintiff contends. The Plaintiff also asks to be appointed as class representative, and for the appointment of Ademi & O'Reilly, LLP, as class counsel.[CC] The Plaintiff is represented by: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com AMERICAN IN-HOME: Gonzalez Seeks Overtime Pay for Healthcare Aides ------------------------------------------------------------------ ELIZABETH GONZALEZ, and all others similarly situated under 29 U.S.C. 216(b), the Plaintiff(s), vs. AMERICAN IN-HOME CARE, LLC, d/b/a ADVOCATE HOME CARE SERVICES, a foreign limited liability company, the Defendant, Case No. 1:19-cv-20360-FAM (S.D. Fla., Jan. 25, 2019), seeks to recover all wages under the Fair Labor Standards Act. The Plaintiff alleges that Defendant has engaged in an intentional and unlawful scheme to misclassify Plaintiff, and all others similarly situated, as independent contractors and deprived them federal overtime compensation during the course of their employment. According to the complaint, the Defendant employs and has employed within the past three years non-exempt employees to provide home healthcare assistance to patients. The Plaintiff seeks each class members' rightful and proper overtime wages, which would be half-time that was not paid for all hours over 40 actually worked in each work week within the past three years, an equal amount in liquidated damages, judgment, attorney's fees, and costs. The Defendant uniformly treats its home healthcare aides as employees in the entire State of Florida, as it relates to payment of wages. The Plaintiff and the class members performed the same or similar job duties as one another in that they worked as home healthcare aides for the Defendant within the past three years without receiving proper overtime wage pay for hours worked in each work week during employment. The Plaintiff and the class members were subjected to the same unlawful pay provisions in that they suffered or were permitted to work hours but not properly paid at the correct rate for all hours worked, the lawsuit says. American In-Home Care, LLC provides elder care and in-home care services for seniors.[BN] Counsel for Plaintiff: Jordan Richards, Esq. USA EMPLOYMENT LAWYERS - JORDAN RICHARDS, PLLC 805 E. Broward Blvd. Suite 301 Fort Lauderdale, FL 33301 E-mail: jordan@jordanrichardspllc.com melissa@jordanrichardspllc.com jake@jordanrichardspllc.com livia@jordanrichardspllc.com APEX LIFE: Lofton Files Class Action in Calif. Super. Ct. --------------------------------------------------------- A class action lawsuit has been filed against Apex Life Sciences LLC. The case is styled as Brittnee Lofton, individually and on behalf of other members of the general public similarly situated, and on behalf of aggrieved employee, pursuant to the Private Attorneys General Act (PAGA), Plaintiff v. Apex Life Sciences LLC A Delaware Company and Does 1-100, Defendants, Case No. CGC19573175 (Cal. Super. Ct., San Francisco Cty., January 25, 2019). Apex Systems is an IT staffing and workforce solutions firm.[BN] The Plaintiff is represented by: Douglas Han, Esq. Justice Law Corporation 411 N Central Ave, Ste 500 Glendale, CA 91203-2095 Tel: (818) 230-7502 Fax: (818) 230-7259 Email: dhan@justicelawcorp.com ATH HOLDING: Court Allows Class Certification Modification in Bell ------------------------------------------------------------------ The United States District Court for the Southern District of Indiana, Indianapolis Division issued an Entry granting Plaintiffs' Motion to Modify Class Certification in the case captioned MARY BELL, JANICE GRIDER, CINDY PROKISH, individually and as representatives of a class of similarly situated persons of the Anthem 401(k) Plan (formerly the WellPoint 401(k) Retirement Savings Plan), JOHN HOFFMAN, and PAMELA LEINONEN, Plaintiffs, v. PENSION COMMITTEE OF ATH HOLDING COMPANY, LLC, ATH HOLDING COMPANY, LLC, and BOARD OF DIRECTORS OF ATH HOLDING COMPANY, LLC, Defendants, VANGUARD GROUP, INC., Interested Party. Case No. 1:15-cv-02062-TWP-MPB. (S.D. Ind.). In the operative Second Amended Complaint, the Plaintiffs allege that the Defendants breached their fiduciary duties by causing the Plaintiffs' retirement plan to pay excessive investment and management fees to Vanguard, and also invested in an imprudent money market fund, resulting in tens of millions of dollars of Plan losses. Plaintiffs summarize their allegations against Defendants as follows: (1) Defendants provided investment options charging unreasonable management fees compared to available superior institutional investment products (2) Defendants failed to monitor and control the excessive administrative expenses paid to Vanguard (3) Defendants provided the Money Market Fund as the Plan's sole capital preservation option even though it did not provide any meaningful retirement benefits and (4) Defendants failed to prudently and regularly monitor the Money Market Fund. The Plaintiffs initially sought certification of the following classes: Administrative Fee and Investment Management Fee Class: All participants and beneficiaries of the Anthem 401(k) Plan (formerly the WellPoint 401(k) Retirement Savings Plan) from December 29, 2009 through the date of judgment, excluding the Defendants. Money Market Fund Class: All participants and beneficiaries of the Anthem 401(k) Plan (formerly the WellPoint 401(k) Retirement Savings Plan) who, from December 29, 2009 through the date of judgment, excluding the Defendants, invested in the Vanguard Money Market Fund. The Plaintiffs now seek certification of the following subclasses to the Administrative Fee and Investment Management Fee Class: Flat Fee Subclass: All participants and beneficiaries of the Anthem 401(k) Plan (formerly the WellPoint 401(k) Retirement Savings Plan) who had an account balance greater than $1,000.00 at any time from July 22, 2013 through the date of judgment, excluding the Defendants.Revenue Sharing SubclassAll participants and beneficiaries of the Anthem 401(k) Plan (formerly the WellPoint 401(k) Retirement Savings Plan) whose accounts held one or more investments that made revenue sharing payments to The Vanguard Group at any time from December 29, 2009 through July 21, 2013, excluding the Defendants. Or, alternatively: All participants and beneficiaries of the Anthem 401(k) Plan (formerly the WellPoint 401(k) Retirement Savings Plan) who had a reduction in the value of their account balance at a rate of more than $30.00 per year due to revenue sharing payments to The Vanguard Group at any time from December 29, 2009 through July 21, 2013, excluding the Defendants. LEGAL STANDARD A Rule 54(b) motion is to be used where the Court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension. A manifest error is not demonstrated by the disappointment of the losing party. It is the wholesale disregard, misapplication or failure to recognize controlling precedent. Under Rule 23(c)(1)(C), the court retains authority to modify or vacate a class certification at any time prior to final judgment. The district court has the power at any time before final judgment to revoke or alter class certification if it appears that the suit cannot proceed consistent with Rule 23's requirements. The Plaintiffs seek to cure these deficiencies by narrowing their proposed class. The the Plaintiffs seek to certify subclasses, dividing their initial proposed class temporally one class would cover the revenue sharing fee structure (Revenue Sharing Fee Subclass), from December 29, 2009 to July 22, 2013, and the other would cover the flat fee structure (Flat Fee Subclass), from July 22, 2013 to the date of judgment. The Plaintiffs have narrowed the proposed Flat Fee Subclass to only those participants and beneficiaries who had an account balance greater than $1,000.00, since everyone else did not pay fees at all. And for the Revenue Sharing Fee Subclass, Plaintiffs suggest that if the Court still does not find it satisfies the typicality requirement because some participants paid lower than the market rate of $30.00 under that scheme, the Court could narrow the class to include only those participants and beneficiaries who had a reduction in the value of their account balance at a rate of more than $30.00 per year due to revenue sharing payments. However, the Plaintiffs do not believe the Court must mandate the last limitation because under the Plaintiffs' theory of the case, participants were injured—even if they paid less than the $30 benchmark due to Defendants' failure to obtain rebates of the excessive revenue sharing payments to Vanguard. The Defendants argue the Plaintiffs are not entitled to a modification of the September 14th Order because they could have proposed these same subclasses in their initial Motion for Class Certification. They contend some of the Plaintiffs' arguments, such as the proposal that participants who paid less than $30.00 in fees under the revenue sharing structure were injured because they did not receive a rebate for excessive fees, were already raised and did not move the Court. Defendants also argue that the new proposed subclasses still do not satisfy the typicality requirement. The Plaintiffs' motion clearly attempts to respond to the September 14th Order by curing some of the problems the Court pointed out with its proposed Administrative Fee and Investment Management Fees Class. Although Plaintiffs have not identified new evidence or overlooked precedent that cast doubt on the September 14th Order, Rule 23(c)(1)(C) allows the Court to amend or alter an order that grants or denies class certification. The Court previously found that the proposed class satisfied three of the four Rule 23(a) prerequisites, but found the proposed definition was overbroad concerning typicality. Allowing Plaintiffs the opportunity to cure an intra-class conflict is permissible. Moreover, the Court retains authority to modify or vacate a class certification at any time prior to final judgment. Accordingly, the Court will determine whether the new proposed subclasses satisfy the typicality requirement. To certify a class, Federal Rule of Civil Procedure 23(a)(3) requires that the claims or defenses of the representative parties are typical of the claims or defenses of the class. A claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and [is] based on the same legal theory. Proposed Flat Fee Subclass The Defendants argue the proposed Flat Fee Subclass does not satisfy Rule 23(a)(3)'s typicality requirement because there are many participants in the proposed Flat Fee subclass (approximately 56%) who prefer keeping the bundled fee structure because they would have paid less had the Plan done so. According to defendants, those participants would not have preferred the Plan's flat fee structure of $42.00 per participant because they would have paid less under the Plan's revenue sharing structure. But, as Plaintiffs point out, regardless of whether an individual would prefer a different fee structure altogether, once the structure was changed, all participants who paid the flat fee would prefer to be charged $30 (or less) per year rather than $42 per year. The Plaintiffs' claim is not doomed because there is another fee structure that a majority of putative class members might have preferred. Plaintiffs argue that under the fee structure the Plan actually imposed, every member of the putative class, including the representative plaintiffs, would have been better off paying $30.00, a fee they view as reasonable, instead of $42.00, a fee they view as unreasonable. Hypothetical fee arrangements that the Plan could have, but chose not to use starting in 2013, are irrelevant to the Plaintiffs' claims. Every participant with an account balance over $1,000.00 paid a flat recordkeeping fee of $42.00 regardless of which funds they invested in. This group of participants includes the representative plaintiffs and all members of the proposed subclass, which is now limited to those participants with an account balance of over $1,000.00. Because the representative plaintiffs' alleged injuries arise out of the same conduct as the class at large, and because their claims are based on the same legal theories, their claims are typical of the class. Plaintiffs Bell, Hoffman, and Leinonen are representative plaintiffs with claims typical of the proposed Flat Fee Subclass. Proposed Revenue Sharing Subclass The Plaintiffs assert those participants are nevertheless appropriate members of the class because they suffered harm when the Plan failed to demand rebates from Vanguard, which would have been distributed pro rata to participants. Plaintiffs allege the Plan's failure to demand these rebates was a breach of Defendants' fiduciary duty, and all participants were injured by this breach because all of them would have received a rebate in proportion to the recordkeeping fee they had paid. The Defendants argue that because Vanguard funds did not provide rebates as a matter of policy, the Court should not accept the Plaintiffs' argument as a basis for modifying the September 14th Order. Plaintiffs argue that whether rebates were available to participants is a merits issue inappropriate for consideration on certification. They also argue that whatever Vanguard's official policy, the Plan's $5 billion asset size places it among the very largest defined contribution plans in the United States, and afforded Defendants tremendous leverage to demand an exception to Vanguard's supposed policy, lest Anthem decide to take its business elsewhere. The Plaintiffs may be correct that Anthem's size would be sufficient leverage to convince a finder of fact that rebates were available to participants. But that does not solve their typicality problem. Plaintiffs' proposed Revenue Sharing Subclass divides into two groups: participants whose claims arise because the Plan paid unreasonable fees to Vanguard, and participants whose claims arise because the Plan failed to obtain rebates for the excessive fees it paid to Vanguard. The named plaintiffs are typical of only one group the participants whose claims arise because the Plan paid unreasonable fees to Vanguard. Bell, Hoffman, and Leinonen each paid more than $30 in recordkeeping fees while the revenue sharing structure was in place and thus are not typical of participants whose claims arise solely because the Plan failed to obtain rebates from Vanguard. Plaintiffs' Motion to Partially Reconsider or Modify Class Certification Order is granted. The Court certifies the Administrative Fee and Investment Management Fee Class with the following subclasses: Flat Fee Subclass: All participants and beneficiaries of the Anthem 401(k) Plan (formerly the WellPoint 401(k) Retirement Savings Plan) who had an account balance greater than $1,000.00 at any time from July 22, 2013 through the date of judgment, excluding the Defendants.Revenue Sharing SubclassAll participants and beneficiaries of the Anthem 401(k) Plan (formerly the WellPoint 401(k) Retirement Savings Plan) who had a reduction in the value of their account balance at a rate of more than $35.00 per year due to revenue sharing payments to The Vanguard Group at any time from December 29, 2009 through July 21, 2013, excluding the Defendants. A full-text copy of the District Court's January 24, 2018 Order is available at https://tinyurl.com/y8wx3qtv from Leagle.com. MARY BELL, Plaintiff, represented by Alexander L. Braitberg -- abraitberg@uselaws.com -- SCHLICTHER BOGARD DENTON LLP, pro hac vice, Andrew D. Schlichter -- aschlichter@uselaws.com -- SCHLICHTER BOGARD & DENTON, LLP, pro hac vice, Heather Lea -- hlea@uselaws.com -- SCHLICHTER, BOGARD & DENTON, LLP, pro hac vice, Jerome J. Schlichter -- jschlichter@uselaws.com -- SCHLICHTER, BOGARD & DENTON, LLP, pro hac vice, Kurt C. Struckhoff -- kstruckhoff@uselaws.com -- SCHLICHTER, BOGARD & DENTON, LLP, pro hac vice, Michael A. Wolff -- mwolff@uselaws.com -- SCHLICHTER, BOGARD & DENTON, LLP, pro hac vice, Sean Soyars -- ssoyars@uselaws.com -- SCHLICHTER BOGARD & DENTON LLP, pro hac vice & Troy A. Doles -- tdoles@uselaws.com -- SCHLICHTER, BOGARD & DENTON, LLP, pro hac vice. JANICE GRIDER & CINDY PROKISH, individually and as representatives of a class of similarly situated persons of the Anthem 401(k) Plan (formerly the WellPoint 401(k) Retirement Savings Plan), Plaintiffs, represented by Alexander L. Braitberg , SCHLICTHER BOGARD DENTON LLP, pro hac vice, Andrew D. Schlichter , SCHLICHTER BOGARD & DENTON, LLP, pro hac vice,Heather Lea , SCHLICHTER, BOGARD & DENTON, LLP, pro hac vice, Jerome J. Schlichter , SCHLICHTER, BOGARD & DENTON, LLP, pro hac vice, Kurt C. Struckhoff , SCHLICHTER, BOGARD & DENTON, LLP, pro hac vice, Michael A. Wolff , SCHLICHTER, BOGARD & DENTON, LLP, pro hac vice & Troy A. Doles , SCHLICHTER, BOGARD & DENTON, LLP, pro hac vice. PENSION COMMITTEE OF ATH HOLDING COMPANY, LLC, ATH HOLDING COMPANY, LLC & BOARD OF DIRECTORS OF ATH HOLDING COMPANY, LLC, Defendants, represented by Ada W. Dolph -- adolph@seyfarth.com -- SEYFARTH SHAW LLP, pro hac vice, Ian Hugh Morrison -- imorrison@seyfarth.com -- SEYFARTH SHAW LLP, Jason Priebe, SEYFARTH SHAW LLP, pro hac vice & Megan E. Troy -- mtroy@seyfarth.com -- SEYFARTH SHAW LLP. VANGUARD GROUP, INC., Interested Party, represented by Laura Hughes McNally -- laura.mcnally@morganlewis.com -- MORGAN, LEWIS & BOCKIUS LLP. BOB'S DISCOUNT: Guerrero Sues over Use of Biometric Identifiers --------------------------------------------------------------- RICARDO GUERRERO JR. on behalf of himself and all other persons similarly situated, known and unknown, the Plaintiff, vs. BOB'S DISCOUNT FURNITURE, LLC, the Defendant, Case No. 2019CH01046 (Ill. Cir. Ct., Cook Cty.), alleges that Defendant violated the Biometric Information Privacy Act by disclosing or otherwise disseminating Plaintiff's and the Class's fingerprints to Defendant's time-keeping vendor without first obtaining their consent for that disclosure or dissemination. According to the complaint, the Plaintiff was an hourly employee at Defendant's warehouse in Shorewood, Illinois from approximately April 18, 2017 to July 24, 2018. Throughout his employment, Defendant required him and other hourly paid employees to use a biometric time clock system to record their time worked. The Defendant required Plaintiff and other hourly employees to scan their fingerprints in Defendant's biometric time clock when they started working a shift, stopped for lunch, returned from lunch, and finished working a shift. Unlike an employee identification number or employee identification card, fingerprints are unique and permanent identifiers. By requiring employees to use their fingerprints to record their time, instead of identification numbers or badges only, Defendant ensured that one employee could not clock in for another. Thus, there's no question that Defendant benefited from using a biometric time. But there's equally no question that Defendant placed employees at risk by using their biometric identifiers to "punch the clock." The Defendant collected, stored, used, and transferred the unique biometric fingerprint identifiers of Plain iff and others similarly situated without following the detailed requirements of the Biometric Information Privacy Act. As a result, the Defendant violated the Biometric Information Privacy Act and compromised the privacy and security of the biometric identifiers and information of Plaintiff and others similarly situated, the lawsuit says. Bob's Discount Furniture is an American furniture store headquartered in Manchester, Connecticut. Bob's Discount Furniture was founded in 1991 with its first store in Newington, Connecticut and is ranked 12th in sales among United States furniture stores according to Furniture Today's list of Top 100 Furniture Stores.[BN] Attorneys for Plaintiff: Douglas M. Werman, Esq. Zachary C. Flowerree, Esq. WERMAN SALAS, P.C. 77 West Washington, Suite 1402 Chicago, IL 60602 Telephone: (312) 419-1008 E-mail: dwerman@flsalaw.com zflowerree@flsalaw.com CAPSTONE RESTAURANT: Waters Sues over Use of Biometric Identifiers ------------------------------------------------------------------ MICHEAL WATERS on behalf of himself and all other persons similarly situated, known and unknown, the Plaintiff, vs. CAPSTONE RESTAURANT GROUP, LLC, the Defendant, Case No. 2019CH01082 (Ill. Cir. Ct., Cook Cty., Jan. 25, 2019), alleges that Defendant violated Biometric Information Privacy Act and compromised privacy and security of the biometric identifiers and information of Plaintiff and others similarly situated. According to the complaint, the Plaintiff was an hourly employee at Defendant's Hardee's restaurant in Rushville, Illinois from approximately July to August 2017. Throughout his employment, Defendant required him and other hourly paid employees to use a biometric time clock system to record their time worked. The Defendant required the Plaintiff and other hourly employees to scan their fingerprints in Defendant's biometric time clock when they started working a shift, stopped for a break, returned from break, and finished working a shift. Unlike an employee identification number or employee identification card, fingerprints are unique and permanent identifiers. By requiring employees to use their fingerprints to record their time, instead of identification numbers or badges only, the Defendant ensured that one employee could not clock in for another. Thus, there's no question that Defendant benefited from using a biometric time. But there's equally no question that Defendant placed employees at risk by using their biometric identifiers to "punch the clock." In enacting the Biometric Information Privacy Act, the Illinois legislature recognized that biologically unique identifiers, like fingerprints, can never be changed when compromised, and thus subject a victim of identity theft to heightened risk of loss. As a result, Illinois restricted private entities, like Defendant, from collecting, storing, using, or transferring a person's biometric identifiers and information without adhering to strict informed-consent procedures established by the Biometric Information Privacy Act. The Defendant collected, stored, used, and transferred the unique biometric fingerprint identifiers of Plaintiff and others similarly situated without following the detailed requirements of the Biometric Information Privacy Act, the lawsuit says. Capstone Restaurant Group is a collection of affiliated companies that operates and franchise over 300+ restaurants in 16 states through a variety of brands.[BN] Attorneys for Plaintiff: Douglas M. Werman, Esq. Zachary C. Flowerree, Esq. WERMAN SALAS, P.C. 77 West Washington, Suite 1402 Chicago, IL 60602 Telephone: (312) 419-1008 E-mail: dwerman@flsalaw.com zflowerree@flsalaw.com CENTRAL CREDIT: Certification of Class Sought in Rozani Suit ------------------------------------------------------------ Julain Rozani moves the Court to certify the class described in the complaint of the lawsuit styled JULIAN ROZANI, Individually and on Behalf of All Others Similarly Situated v. CENTRAL CREDIT SERVICES LLC, Case No. 2:19-cv-00130-DEJ (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiff asserts, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class, the Plaintiff tells the Court, citing Fulton Dental, LLC v. Bisco, Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June 20, 2017). The Plaintiff asserts that one defendant has attempted a similar tactic by sending a certified check to the proposed class representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D. Wis.); see also Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). The Plaintiff is obligated to move for class certification to protect the interests of the putative class, the Plaintiff contends. As the Motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when short motion to certify and stay should suffice until an amended motion is filed, the Plaintiff contends. The Plaintiff also asks to be appointed as class representative, and for the appointment of Ademi & O'Reilly, LLP, as class counsel.[CC] The Plaintiff is represented by: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com CERTIFIED FLOORING: Did Not Pay Carpet Installers' OT, Couch Says ----------------------------------------------------------------- ANTHONY COUCH, Plaintiff, for himself, and all others similarly situated v. CERTIFIED FLOORING INSTALLATION, INC., Case No. 1:19-cv-00059-TSB (S.D. Ohio, January 24, 2019), is brought pursuant to the Fair Labor Standards Act, Ohio Minimum Fair Wage Standards Act, and Kentucky Revised Statute on behalf of carpet installers arising from the Defendant's alleged failure to compensate them at time and one-half times their regular rates for all hours worked over 40 hours in a workweek. Certified Flooring is a Kentucky corporation doing business in the Southern District of Ohio. Certified Flooring is a carpet installation company that installs carpets on behalf of Home Depot. Customers purchase the carpets from Home Depot and are given the option of having Carpet Installers from the Defendant come to their home and install the carpet.[BN] The Plaintiff is represented by: Bradley L. Gibson, Esq. Brian G. Greivenkamp, Esq. GIBSON LAW, LLC 9200 Montgomery, Rd., Suite 11A Cincinnati, OH 45242 Telephone: (513) 834-8254 E-mail: brad@gibsonemploymentlaw.com brian@gibsonemploymentlaw.com COCONINO, AZ: Montelongo-Morales Suit Moved to Arizona Court ------------------------------------------------------------ A case, Jose Montelongo-Morales as an individual, an on behalf of all others similarly situated, the Plaintiff, vs. James Driscoll, Coconino County Sheriff, in their official capacities and Matt Figueroa, Jail Commander of the Coconino County Jail; in their official capacities, the Defendants, Case No. S0300CV201900012, was removed from the Coconino County Superior Court, to the U.S. District Court for the District of Arizona (Prescott Division) on Jan. 25, 2019. The District of Arizona Court Clerk assigned Case No. 3:19-cv-08025-ROS-DMF. The case is assigned to the Hon. Senior Judge Roslyn O. Silver. Coconino County is located in the north central part of the U.S. state of Arizona. The population was 134,421 at the 2010 census. The county seat is Flagstaff. The county takes its name from Cohonino, a name applied to the Havasupa.[BN] Attorneys for Jose Montelongo-Morales: Lee Brooke Phillips, Esq. LAW OFFICES OF LEE PHILLIPS PC 209 Elden St. Flagstaff, AZ 86001 Telephone: (928) 779-1560 Facsimile: (928) 779-2909 E-mail: leephillips@leephillipslaw.com - and - Robert Sherrod Malone , Jr., Esq. LAW OFFICE OF ROBERT S MALONE 209 N Elden St. Flagstaff, AZ 86001 Telephone: (928) 779-1560 E-mail: bobsmalone@gmail.com Attorneys for Defendants: Derek Ryan Graffious, Esq. John T. Masterson, Esq. Justin Michael Ackerman, Esq. Michele Molinario, Esq. JONES SKELTON & HOCHULI PLC 40 N Central Ave., Ste. 2700 Phoenix, AZ 85004 Telephone: (602) 263-1748 E-mail: dgraffious@jshfirm.com jmasterson@jshfirm.com jackerman@jshfirm.com mmolinario@jshfirm.com COLLECTO INC: Court Grants Class Certification in Weissman Suit --------------------------------------------------------------- The United States District Court for the Eastern District of New York issued a Memorandum and Order granting Plaintiffs' Motion for Class Certification in the case captioned NOSSON WEISSMAN, on behalf of plaintiff and a class, Plaintiff, v. COLLECTO, INC. d/b/a EOS CCA, Defendant. No. 17-CV-4402 (PKC) (LB). (E.D.N.Y.). Nosson Weissman commenced this action, on behalf of himself and a class, alleging unlawful debt collection by Collecto, Inc. d/b/a EOS CCA in violation of the Fair Debt Collection Practices Act (FDCPA). T-Mobile USA placed with Defendant a debt account in Plaintiff's name bearing an account number with the last four digits 1202 for collection. A few days later, Defendant mailed and Plaintiff thereafter received a letter from Defendant regarding the debt Plaintiff owed to T-Mobile USA (Debt Collection Notice). Rule 23(a) Requirements In determining whether class certification is appropriate, a district court must first ascertain whether the claims meet the preconditions of Fed. R. Civ. P. 23(a) of numerosity, commonality, typicality, and adequacy of representation. Numerosity Fed. R. Civ. P. 23(a)(1) requires a class to be so numerous that joinder of all members is impracticable. Numerosity is presumed for classes larger than forty members. In discovery, Defendant disclosed that the class consists of 35,630 persons. The numerosity requirement is therefore satisfied. Commonality The commonality requirement is met if there is a common question of law or fact shared by the class. Here, the common question on which all class members' claims rest is whether the Debt Collection Notice that each class member received complies with the FDCPA. The Court therefore concludes that the commonality requirement is satisfied. Typicality The typicality requirement requires that the claims or defenses of the representative parties be typical of the claims or defenses of the class, Fed. R. Civ. P. 23(a)(3), and is satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability. The question underlying Plaintiff's claim whether the Debt Collection Notice violates the FDCPA—is typical of the questions that underlie the claims of the other class members. Typicality is therefore satisfied. Adequacy Fed. R. Civ. P. 23(a)(4) requires the representative parties to fairly and adequately protect the interests of the class. Generally, adequacy of representation entails inquiry as to whether: 1) plaintiff's interests are antagonistic to the interest of other members of the class and 2) plaintiff's attorneys are qualified, experienced and able to conduct the litigation. In this case, both Plaintiff and the other class members seek damages as a result of alleged FDCPA violations stemming from receipt of the Debt Collection Notice. Plaintiff has testified to his familiarity with and commitment to his obligations as a class representative and there do not appear to be any conflicts of interest between Plaintiff and the class he seeks to represent. Furthermore, the Court observes that there is no evidence in the record that Plaintiff's counsel has ever been accused of misconduct and that Plaintiff's counsel has participated in FDCPA class actions before. The adequacy requirement is satisfied. Rule 23(b) Requirements Predominance The predominance requirement of Fed. R. Civ. P. 23(b)(3) tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. Its purpose is to ensure that the class will be certified only when it would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results. Here, the salient questions that predominate over any other questions affecting individual class members are whether the Debt Collection Notice failed to notify each class member of her FDCPA rights and whether the notice was materially misleading. Superiority Fed. R. Civ. P. 23(b)(3) requires that a class action be superior to other available methods for fairly and efficiently adjudicating the controversy, and requires consideration of the class members' interests in individually controlling the prosecution or defense of separate actions, the extent and nature of any litigation concerning the controversy already begun by or against class members, the desirability or undesirability of concentrating the litigation of the claims in the particular forum and the likely difficulties of managing a class action. Given the economies of scale at issue and the benefit of avoiding conflicting outcomes with respect to the claims of Plaintiff vis-a-vis those of the other class members, the Court finds that the superiority requirement is satisfied. A full-text copy of the District Court's January 17, 2018 Memorandum and Order is available at https://tinyurl.com/yctkfvpt from Leagle.com. Nosson Weissman, Plaintiff, represented by Lawrence Katz & Tiffany N. Hardy, Edelman Combs Latturner & Goodwin LLC. Collecto, Inc., doing business as EOS CCA, Defendant, represented by Lori Jean Quinn -- ljquinn@mdwcg.com -- Marshall, Dennehey, Warner, Coleman & Goggin. CONCORDE INVESTMENT: 7th Cir. Affirms Dismissal of PSLRA Suit ------------------------------------------------------------- The United States Court of Appeals, Seventh Circuit, issued an Opinion affirming the District Court's judgment granting Defendant's Motion to Dismiss in the case captioned SUSAN NIELEN-THOMAS, Plaintiff-Appellant, v. CONCORDE INVESTMENT SERVICES, LLC, et al., Defendants-Appellees. No. 18-2875. (7th Cir.). Susan Nielen-Thomas, on behalf of herself and others similarly situated, filed a complaint in Wisconsin state court alleging she and other class members were defrauded by their investment advisor. Defendants Fortune, TD Ameritrade, and Concorde moved to dismiss Nielen-Thomas's nine state-law claims as barred by the Private Securities Litigation Reform Act of 1995 (PSLRA) and SLUSA. Specifically, defendants argued this suit qualified as a covered class action that was both removable and precluded by SLUSA. Nielen-Thomas opposed these motions and sought to remand the case because, she argued, her case did not fall within SLUSA's ambit; she claimed that because her proposed class contained fewer than fifty members, it could not be a covered class action as defined by the statute. The district court granted defendants' motion to dismiss. The court noted that SLUSA's language was confusing, but concluded its legislative history clears things up the lawsuit was not a covered class action under 15 U.S.C. Section 78bb(f)(5)(B)(i)(I) because her proposed class had fewer than fifty members, but her lawsuit met SLUSA's definition of a covered class action in 15 U.S.C. Section 78bb(f)(5)(B)(i)(II) because she brought her action on behalf of unnamed parties in a representative capacity. SLUSA thus precluded her state-law claims, and the district court dismissed them with prejudice. Nielen-Thomas appeals. SLUSA amends the Securities Act of 1933 and the Securities Exchange Act of 1934, both of which regulate federal securities to promote honest practices in the securities market. Congress had previously amended these two laws when it passed the PSLRA in 1995, principally to stem perceived abuses of the class-action vehicle in litigation involving nationally traded securities. Specifically, nuisance filings, targeting of deep-pocket defendants, vexatious discovery requests, and manipulation by class action lawyers of the clients whom they purportedly represent had become rampant, such that abusive class-action litigation was injuring the entire U.S. economy. SLUSA precludes specified securities class actions from proceeding under state law. Specifically, no covered class action based upon the statutory or common law of any State or subdivision thereof may be maintained in any State or Federal court by any private party if that party alleges either a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security or that the defendant used or employed any manipulative or deceptive device or contrivance in connection with the purchase or sale of a covered security. Nielen-Thomas does not dispute that her class action claims are based on state law, involve a covered security, and allege misrepresentations in connection with the purchase or sale of that covered security. Instead, she maintains her lawsuit is not precluded by SLUSA because it is not a covered class action as that term is defined. Under SLUSA, a single lawsuit qualifies as a covered class action when subject to certain exceptions not applicable here: (I) damages are sought on behalf of more than 50 persons or prospective class members, and questions of law or fact common to those persons or members of the prospective class, without reference to issues of individualized reliance on an alleged misstatement or omission, predominate over any questions affecting only individual persons or members or(II) one or more named parties seek to recover damages on a representative basis on behalf of themselves and other unnamed parties similarly situated, and questions of law or fact common to those persons or members of the prospective class predominate over any questions affecting only individual persons or members. Nielen-Thomas also proposes two alternative interpretations of SLUSA's covered class action definition. Under either one, her case would not be included in SLUSA's preclusive scope because her proposed class is alleged to contain fewer than fifty members. However, both of these proposed interpretations run contrary to the statutory text. First, Nielen-Thomas says Subparagraphs (I) and (II) are separate, independent bases for excluding securities class actions from SLUSA's proscriptions. By this reading, if a proposed putative class contains fewer than fifty people, it is exempted under Subparagraph (I) without the need to go further and consider whether Subparagraph (II) might also apply. This interpretation completely reads Subparagraph (II) out of the statute, though, and we do not read statutes in ways that make entire provisions superfluous. As previously discussed, the definition of covered class action for single lawsuits includes two subparagraphs separated by a disjunctive or. A single lawsuit can therefore be a covered class action under either section, and our analysis cannot stop after determining that a lawsuit does not meet the criteria set out in Subparagraph (I). Alternatively, Nielen-Thomas claims the fifty-person threshold identified in Subparagraph (I) must also apply to Subparagraph (II) to avoid making the former superfluous. This interpretation is similarly untenable; it attempts to read words from one part of the statute into another part where they do not appear, contravening the plain text. By including the fifty-person threshold in Subparagraph (I) but omitting it from (II), Congress must have intended that it would only apply to (I). Indeed, Congress also included the fifty-person threshold in the group lawsuit covered class action definition in Section 78bb(f)(5)(B)(ii), directly below Section 78bb(f)(5)(B)(i), while excluding it from Subparagraph (II). We cannot rewrite the statute that Congress has written to impute the fifty-person threshold where it does not appear. Nielen-Thomas argues these interpretations find support in statements by both the Supreme Court and Seventh Circuit indicating that class actions brought on behalf of fewer than fifty persons are not covered by SLUSA. These statements appear, in isolation, to support Nielen-Thomas; they reference only the fifty-person threshold from Subparagraph (I) and suggest that only sizable class actions pursued on a representative basis are within SLUSA's scope. But in context, it is clear neither the Supreme Court nor this Circuit is making any interpretive statement regarding the scope of the covered class action definition because that was not the issue these cases addressed. The Supreme Court and the Seventh Circuit in these cases did not have the opportunity or need to opine on the contexts in which Subparagraphs (I) or (II) could apply. Thus, all of these statements defining covered class action solely in relation to the fifty-person requirement in Subparagraph (I) are merely dicta rather than an interpretation of SLUSA that we are bound to follow. In sum, SLUSA's definition of covered class action unambiguously precludes Nielen-Thomas's suit. She is a named plaintiff seeking to bring claims on a representative basis and alleges that common questions of law or fact predominate. Thus, Section 78bb(f)(5)(B)(i)(II) applies, the suit is a covered class action, and SLUSA precludes it from proceeding in both state and federal court. To the extent the identities of any of the other putative class members are known, and these individuals wish to pursue claims on their own behalf in state court under state law, nothing in SLUSA prevents them from doing so provided there are fewer than fifty such plaintiffs for which common questions of law or fact predominate. What SLUSA does preclude these individuals from doing is continuing to pursue their claims in the form of a class action. A full-text copy of the Seventh Circuit's January 24, 2018 Opinion is available at https://tinyurl.com/yauvyp7p from Leagle.com. Ted Waskowski -- twaskowski@staffordlaw.com -- for Defendant-Appellee. Donald Albert Daugherty, Jr. -- ddaugherty@gklaw.com -- for Defendant-Appellee. Michael H. Schaalman -- mhs@hallingcayo.com -- for Plaintiff-Appellant. Sarah A. Zylstra -- szylstra@boarmanclark.com -- for Defendant-Appellee. Andrew W. Erlandson -- aerlandson@hurleyburish.com -- for Defendant-Appellee. Peyton Barkley Engel -- pengel@hurleyburish.com -- for Defendant-Appellee. Ami Annette Regele, for Plaintiff-Appellant. CONSTAR FINANCIAL: Cruz Files Suit under FDCPA in New York ---------------------------------------------------------- A class action lawsuit has been filed against Constar Financial Services, LLC. The case is styled as John Cruz, on behalf of himself and all others similarly situated, Plaintiff v. Constar Financial Services, LLC, Empereon-Constar, Empereon International Member, LLC, Navient Solutions, LLC and John Doe, Defendants, Case No. 1:19-cv-00609 (E.D. N.Y., January 30, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Practices Act. Constar Financial Services, LLC provides debt collection services. It offers accounts receivable management services to Fortune 100 and 500 companies. It caters to consumer auto finance, telecommunication, and direct lending industries. The company is based in Phoenix, Arizona.[BN] The Plaintiff is represented by: Mitchell L. Pashkin, Esq. 775 Park Avenue, Ste. 255 Huntington, NY 11743 Tel: (631) 335-1107 Email: mpash@verizon.net CREDIT BUREAU: Certification of Class Sought in Johnson Suit ------------------------------------------------------------ Jumoka Johnson moves the Court to certify the class described in the complaint of the lawsuit captioned JUMOKA JOHNSON, Individually and on Behalf of All Others Similarly Situated v. CREDIT BUREAU COLLECTION SERVICES, INC., d/b/a CBCS, Case No. 2:19-cv-00133-LA (E.D. Wisc.), and further asks that th Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiff asserts, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class, the Plaintiff tells the Court, citing Fulton Dental, LLC v. Bisco, Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June 20, 2017). The Plaintiff asserts that one defendant has attempted a similar tactic by sending a certified check to the proposed class representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D. Wis.); see also Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). The Plaintiff is obligated to move for class certification to protect the interests of the putative class, the Plaintiff contends. As the Motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when short motion to certify and stay should suffice until an amended motion is filed, the Plaintiff contends. The Plaintiff also asks to be appointed as class representative, and for the appointment of Ademi & O'Reilly, LLP, as class counsel.[CC] The Plaintiff is represented by: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com CREDITREPAIR.COM INC: Sued by Carranza Over Unsolicited Calls ------------------------------------------------------------- ERIKA CARRANZA, an individual, on behalf of herself and all others similarly situated v. CREDITREPAIR.COM, INC., a Florida Limited Liability Company; and DOE INDIVIDUALS, inclusive, and each of them, Case No. 3:19-cv-00164-GPC-WVG (S.D. Cal., January 24, 2019), alleges that the Defendants conducted (and continue to conduct) wide scale telemarketing campaigns and repeatedly made unsolicited calls to consumers' telephones -- whose numbers appear on the National Do Not Call Registry -- without consent, all in violation of the Telephone Consumer Protection Act. CreditRepair.com, Inc., is organized under the laws of the state of Florida. The Company maintains its principal place of business in Salt Lake City, Utah. The true names and capacities of the Doe Defendants are currently unknown to the Plaintiff. Credit Repair is a company that sells solutions to improve personal credit scores. In an effort to solicit potential customers, CreditRepair.com, Inc. recruited, or employed call centers, to place telephone calls, en masse, to consumers across the country.[BN] The Plaintiff is represented by: John P. Kristensen, Esq. David L. Weisberg, Esq. KRISTENSEN WEISBERG, LLP 12540 Beatrice Street, Suite 200 Los Angeles, CA 90066 Telephone: (310) 507-7924 Facsimile: (310) 507-7906 E-mail: john@kristensenlaw.com david@kristensenlaw.com - and - Jarrett L. Ellzey, Esq. W. Craft Hughes, Esq. HUGHES ELLZEY, LLP 2700 Post Oak Boulevard, Suite 1120 Houston, TX 77056 Telephone: (713) 554-2377 Facsimile: (888) 995-3335 E-mail: jarrett@hughesellzey.com craft@hughesellzey.com DIAMOND RESORTS: Sold Unregistered Securities, Dropp et al. Claim ----------------------------------------------------------------- JOSEPH M. DROPP, MARYE. DROPP, ROBERT LEVINE, SUSAN LEVINE, and KAARINA PAK.KA, lndividually and on Behalf of All Others Similarly Situated, the Plaintiffs, vs. DIAMOND RESORTS INTERNATlONAL, INC.; DIAMOND RESORTS HOLDINGS, LLC; DIAMOND RESORTS CORPORATION; DIAMOND RESORTS INTERNATIONAL CLUB, INC., a/k/a THE CLUB OPERATING COMPANY; DIAMOND RESORTS U.S. COLLECTION DEVELOPMENT, LLC; DIAMOND RESORTS U.S. COLLECTION MEMBERS ASSOCIATION; APOLLO MANAGEMENT VITI, L.P., APOLLO GLOBAL MANAGEMENT, LLC, MICHAEL FLASKEY; and KENNETH SIEGEL, the Defendants, Case No. CV 19-00050 SOM-KJM (D. Nev., Jan. 25, 2019), Case No. 1:19-cv-00050-SOM-KJM, alleges that Defendants violated the Securities Act of 1933 by selling unregistered securities. According to the complaint, Diamond Resorts is in the business of selling "points," which are marketed to prospective purchasers as an investment which will appreciate in value and can be easily resold. These "points" are aggregated in exchange pools. Every purchaser of points simultaneously becomes a member of one or more vacation Associations or Clubs, which enables the owner of the points to reserve rooms in one of Diamond's resort or hotel properties. Diamond sells points to new point purchasers, as well as existing owners, in person, at sales centers in several Diamond resorts throughout the United States. The common practice utilized by the Diamond sales operation throughout the United States is as follows: Prospective purchasers (including new purchasers as well as existing owners to whom Diamond seeks to sell additional points) are typically provided with some kind of conditional benefit or incentive, such as a gift certificate, free vacations, free tickets to shows or a reduced room rate at a condominium or hotel. In order to realize such a benefit, the prospective purchaser is required to attend a 60 to 90 minute sales presentation. No contract or other official DRI document describing the terms of the point investment is provided to the prospective purchasers until the time of closing. Prospective purchasers are organized by DRI depending upon their characteristics and the perceived likelihood that they will agree to purchase points. DRI then assigns these prospective purchasers to work with DRI salespeople who are also called vacation counselors. The sales presentations exceed 90 minutes and often last five to six hours in length or longer. Moreover, DRI tells prospective purchasers that they will forfeit their benefits if they leave the sales presentation before the respective salespeople agree that the presentation is over. Prospective purchasers are not permitted to take any contract, information sheets, Purchase and Security Agreements ("PSAs" or "Agreements"), Credit Sales Contracts, notes, or other written materials with them off premises prior to closing, nor are prospective purchasers given time to consult with their own advisors, attorneys or any other person during the sales presentation. DRI salespeople's common practice is to pitch the points to prospective purchasers (including Plaintiffs and the other members of the Class) as more than just a way to vacation. Rather, DRI pitches its points as an investment that will appreciate in value due to continuing improvements made by Diamond in the quality and number of its resort and hotel properties, the general appreciation of real estate in the future and the managerial skill that DRI provides in operating the properties it holds in its Collections. DRI salespeople tell their unwitting targets -- over the course of hours-long, high pressure sales pitches -- that, by purchasing points "now," the purchasers will receive a discounted purchase price that is only available on the day of the sales presentation; they are investing in their future; their points will increase in value; they can use their points to pay annual maintenance fees; they can bequeath the points to their heirs as an inheritance; and they can sell their points -- at a profit -- at any time. Thus, these "points" are actually investment contracts, and therefore securities, under the United States securities laws. Once the prospective purchasers succumb to the sales pitches and agree to purchase points, they are individually shepherded to a sales center "quality control" person (or otherwise labeled individual), whose job it is to obtain the purchaser's signature on a lengthy, densely-worded sales contract (the PSA) and to instruct the purchaser to initial numerous items on a lengthy information sheet (often the initials are generated electronically by the sales people for the purchasers' "convenience"). In reality, purchasers are not given sufficient time to read the documents, nor are they permitted to take the documents with them off premises before the closing, nor may purchasers discuss the terms and conditions of the PSAs, and/or any other contracts or documents given to them by DRI with any other person prior to signing and initialing these documents. Moreover, by the time that the typical purchaser goes through the closing process, he or she is too exhausted to read or understand the provisions of these documents and is not capable, by training, to understand the substance or legal ramifications of executing them. The closing documents contradict parts of what the prospective purchasers are told and/or shown during the sales presentations, the lawsuit says. Unfortunately for Plaintiffs and other Class members, Defendants' sales pitches regarding the investment value of the points are false. DRI points do not increase in value, there is no viable secondary market for them, and DRI severely restricts the resale of points. Rather than receiving a return on their investment, Plaintiffs and other Class members are on the hook for massive annual maintenance fees that keep going up and up each year. This is in addition to the exorbitant cost of the points themselves. Moreover, these DRI contracts or PSAs last in perpetuity. There is no way for the DRI member to sell their membership. In fact, DRI memberships are liabilities not assets. The Securities Act of 1933 requires all sellers of securities to register those securities with the Securities and Exchange Commission ("SEC") to prevent precisely the types of abuses perpetrated by Defendants in connection with the sale of their "points", the lawsuit says.[BN] Attorneys for Plaintiffs: G. Mark Albright, Esq. D. Chris Albright, Esq. ALBRIGHT, STODDARD, WARNICK & ALBRJGHT 801 South Rancho Drive, Suite D-4 Las Vegas, NV 89106 Telephone: 702 384.7111 Facsimile: 702 384.0605 E-mail: gma@albrightstoddard.com dca@albrightstoddard.com DUTY FREE: Refuses to Pay Overtime Wages Under FLSA, Arteaga Says ----------------------------------------------------------------- JENNIFER ARTEAGA, and other similarly situated individuals v. DUTY FREE RETAIL GROUP LLC, SANFREE OF MIAMI, LLC d/b/a ONI ESSENCE; MARCOS BORDONI, FERNANDO LUPICA-TONDO, Case No. 1:19-cv-20290-UU (S.D. Fla., January 21, 2019), alleges that the Defendants willfully and intentionally refused to pay the Plaintiff overtime wages as required by the Fair Labor Standards Act. The Corporate Defendants are Florida companies, having their main place of business in Miami-Dade County, Florida. The Corporate Defendants have their main business office in Hialeah, Florida. The Corporate Defendants share common ownership, common management, centralized control of labor relations, and common offices and interrelated operations. The Individual Defendants are and were, at all times relevant, persons in control of the Corporate Defendants' financial affairs.[BN] The Plaintiff is represented by: R. Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 NE 30th Avenue, Suite 800 Aventura, FL 33180 Telephone: (305) 503-5131 Facsimile: (888) 270-5549 E-mail: msaenz@saenzanderson.com ELECTRO SCIENTIFIC: Continues to Defend Merger-Related Suits ------------------------------------------------------------ Electro Scientific Industries, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on January 30, 2019, for the quarterly period ended December 29, 2018, that the company continues to defend multiple class action suits related to its merger agreement with MKS Instruments, Inc. and EAS Equipment, Inc. On October 29, 2018, the Company entered into an Agreement and Plan of Merger with MKS Instruments, Inc., a Massachusetts corporation (MKS) and EAS Equipment, Inc., a Delaware corporation and a wholly owned subsidiary of MKS (Merger Sub). The Merger Agreement provides for, subject to the terms and conditions of the Merger Agreement, the acquisition of the Company by MKS at a price of $30.00 per share in cash, without interest and subject to deduction for any required withholding tax, through the merger of Merger Sub into the Company, with the Company surviving the Merger as a wholly owned subsidiary of MKS. On November 29, 2018, the Company and members of the Board of Directors were named as defendants in a complaint filed in the U.S. District Court for the District of Oregon by alleged stockholders of the Company in connection with the proposed Merger. The complaint was dated November 29, 2018 and was captioned Brian Morris et. al. v. Electro Scientific Industries, Inc. et al. Five additional complaints were subsequently filed, two in the U.S. District Court for the District of Oregon and three in the Multnomah County Circuit Court in the State of Oregon. The cases filed in the U.S. District Court were dated December 6, 2018 and December 12, 2018 and captioned Melvyn Klein et al. v. Electro Scientific Industries, Inc. et al. and Donald Mager et al. v. Electro Scientific Industries, Inc. et al., respectively. The complaints filed in Multnomah County Circuit Court were dated December 5, 2018, December 5, 2018 and December 13, 2018 and captioned Michael Kent et al. v. Electro Scientific Industries, Inc. et al., Christopher Stanley et al. v. Electro Scientific Industries, Inc. et al. and Eduardo Colmenares et al. v. Electro Scientific Industries, Inc. et al. These lawsuits are purported class actions brought on behalf of Company stockholders, asserting various claims against members of the Board of Directors, MKS, and Merger Sub, including breach of fiduciary duty and aiding and abetting breach of fiduciary duty. The lawsuits allege that the Merger does not appropriately value the Company, and that the Company's Merger related disclosures fail to disclose certain material information regarding the Merger. These complaints purport to seek unspecified damages and may seek injunctive relief preventing the consummation of the Merger. The Company believes that the claims in these complaints are without merit and intends to vigorously defend this litigation. The Company provided supplemental Merger related disclosures to eliminate the burden and expense of litigation and to avoid any possible disruption to the Merger that could result from further litigation. An adverse judgment for monetary damages could have an adverse effect on the operations of the Company. A preliminary injunction could delay or jeopardize the completion of the Merger, and an adverse judgment granting permanent injunctive relief could indefinitely enjoin completion of the Merger. Electro Scientific Industries, Inc., together with its subsidiaries, supplies laser-based microfabrication solutions for the microtechnology industry worldwide. Electro Scientific Industries was founded in 1944 and is headquartered in Portland, Oregon. EXTREME NETWORKS: April 25 Hearing to Approve Settlement Set ------------------------------------------------------------ Extreme Networks, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on January 30, 2019, for the quarterly period ended December 31, 2018, that the hearing on the motion for preliminary approval of the settlement in the case, In re Extreme Networks, Inc. Securities Litigation, No. 3:15-CY-04883-BLF, is set for April 25, 2019. On October 23 and 29, 2015, punitive class action complaints alleging violations of securities laws were filed in the U.S. District Court for the Northern District of California against the Company and three of its former officers (Charles W. Berger, Kenneth B. Arola, and John T. Kurtzweil). Subsequently, the cases were consolidated (In re Extreme Networks, Inc. Securities Litigation, No. 3:15-CY-04883-BLF). Plaintiffs allege that defendants violated the securities laws by disseminating materially false and misleading statements and concealing material adverse facts regarding the Company's financial condition, business operations and growth prospects. Plaintiffs seek unspecified damages on behalf of a purported class of investors who purchased the Company's common stock from September 12, 2013 through April 9, 2015. On June 28, 2016, the Court appointed a lead plaintiff. On September 26, 2016, the lead plaintiff filed a consolidated complaint. On November 10, 2016, the defendants filed a motion to dismiss, which the Court granted with leave to amend on April 27, 2017. On June 2, 2017, the lead plaintiff filed an amended complaint, which, on July 10, 2017, defendants again moved to dismiss. In a March 21, 2018 Order, the Court granted in part and denied in part the defendants' motion. The March 2018 Order narrowed the scope of the case, but allowed certain claims to proceed. The parties have agreed to settle the litigation. On November 30, 2018, plaintiffs filed an unopposed motion for preliminary approval of the settlement, and on December 6, 2018, Extreme filed a statement of non-opposition. The motion presently is set for hearing on April 25, 2019. Extreme Networks, Inc. provides software-driven networking solutions for enterprise customers worldwide. Extreme Networks, Inc. was founded in 1996 and is headquartered in San Jose, California. FINANCIAL RECOVERY: Betner-Gray Files Class Action under FDCPA -------------------------------------------------------------- A class action lawsuit has been filed against Financial Recovery Services, Inc. The case is styled as Chandra Betner-Gray, individually and all others similarly situated, Plaintiff v. Financial Recovery Services, Inc., LVNV Funding LLC and John Does 1-25, Defendants, Case No. 1:19-cv-02488 (D. N.J., January 30, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Practices Act. Financial Recovery Services, Inc. provides debt collection services to consumer creditors, finance companies, and debt buyers. It serves bank and retail credit card, installment loan and DDA, payday loans, purchased debt service contracts, and utility markets. The company was founded in 1996 and is based in Edina, Minnesota.[BN] The Plaintiff is represented by: YAAKOV SAKS, Esq. Stein Saks, PLLC 285 Passaic Street Hackensack, NJ 07601 Tel: (201) 282-6500 ext 101 Fax: (201) 282-6501 Email: ysaks@steinsakslegal.com FIRSTPOINT INC: $1.2-Mil. Settlement in Barnhill Suit Okayed ------------------------------------------------------------ The Hon. Loretta C. Biggs grants the Plaintiff's Unopposed Motion for Certification of Class and Preliminary Approval of Settlement Agreement in the lawsuit captioned LARA BARNHILL, on behalf of herself and all other similarly situated individuals v. FIRSTPOINT, INC. d/b/a FIRSTPOINT INFORMATION RESOURCES and FIRSTPOINT COLLECTION RESOURCES, INC., Case No. 1:15-cv-00892-LCB-LPA (M.D.N.C.). Lara Barnhill initiated this putative class action, on her own behalf and others similarly situated, against the Defendants alleging violations of the Federal Debt Collection Practices Act and the North Carolina Collection Agency Act. The parties participated in a mediated settlement conference during which Plaintiff, on behalf of the putative class, "reached agreement as to all material terms of settlement with all Defendants." The Defendants shall deposit or cause to be deposited the aggregate amount of $1,200,000 into the Settlement Fund with the Financial Institution within 20 days following the Effective Date. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, for settlement purposes only, the action is certified as a class action, and the Settlement Class is certified as: All natural persons residing in the United States (including all territories and other political subdivisions of the United States) who (a) within the three-year period preceding the filing of this action and during its pendency, i.e. between October 21, 2012 and the date of the entry of this Order (b) were contacted by any Defendant through facsimile, telephone, and/or written communications (c) for purposes of collecting upon a consumer debt (d) that had previously been discharged in Chapter 7 bankruptcy pursuant to 11 U.S.C. Section 727. Gary W. Jackson, Esq., and Christopher R. Bagley, Esq., of Law Offices of James Scott Farrin, PC, and Edward H. Maginnis, Esq., and Karl S. Gwaltney, Esq., of Maginnis Law, PLLC, are appointed as Class Counsel for the Settlement Class. Lara Barnhill is appointed as Class Representative for the Settlement Class. The Settlement Agreement and Release, executed August 13–14, 2018, is preliminarily approved. The proposed notice to be sent to all members of the proposed Settlement Class, as amended pursuant to the Court's Order, is approved and shall be distributed to the members of the certified Settlement Class in accordance with the schedule. The Final Fairness Hearing shall be held on May 28, 2019, at 11:00 a.m.[CC] FRANKLIN RESOURCES: Agreement Inked in Fernandez-Cryer Suit ----------------------------------------------------------- Franklin Resources, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on January 30, 2019, for the quarterly period ended November 30, 2018, that on December 3, 2018, Franklin elected to enter into an agreement-in-principle to resolve the Fernandez-Cryer consolidated lawsuit. In July 2016, a former employee filed a class action lawsuit captioned Cryer v. Franklin Resources, Inc., et al. in the United States District Court for the Northern District of California against Franklin, the Franklin Templeton 401(k) Retirement Plan ("Plan") Investment Committee ("Investment Committee"), and unnamed Investment Committee members. The plaintiff asserts a claim for breach of fiduciary duty under the Employee Retirement Income Security Act ("ERISA"), alleging that the defendants selected mutual funds sponsored and managed by the Company (the "Funds") as investment options for the Plan when allegedly lower-cost and better performing non-proprietary investment vehicles were available. The plaintiff also claims that the total Plan costs, inclusive of investment management and administrative fees, are excessive. The plaintiff alleges that Plan losses exceed $79.0 million and seeks, among other things, damages, disgorgement, rescission of the Plan's investments in the Funds, attorneys' fees and costs, and pre- and post-judgment interest. In November 2017, a second former employee, represented by the same law firm, filed another class action lawsuit relating to the Plan in the same court, captioned Fernandez v. Franklin Resources, Inc., et al. The plaintiff filed an amended complaint in February 2018, naming the same defendants as those named in the Cryer action, as well as the Franklin Board of Directors, the Plan Administrative Committee, individual current and former Franklin directors, and individual current and former Investment Committee members. The plaintiff in this second lawsuit asserts the same ERISA breach of fiduciary duty claim asserted in the Cryer action, as well as claims for alleged prohibited transactions by virtue of the Plan’s investments in the Funds and for an alleged failure to monitor the performance of the Investment Committee. The plaintiff alleges that Plan losses exceed $60.0 million and seeks the same relief sought in the Cryer action. In April 2018, the court consolidated the Fernandez action with the existing Cryer action. Franklin Resources said, "While management strongly believes that the claims asserted in the consolidated litigation are without merit, in order to avoid protracted litigation, on December 3, 2018, Franklin elected to enter into an agreement-in-principle to resolve the matter for a cash payment of $13.9 million, which the Company accrued as of December 31, 2018. In addition, Franklin agreed, among other Plan changes, to increase its existing matching contributions from 75% to 85% for eligible participant salary deferrals for a period of three years. The agreement is subject to court approval." Franklin Resources, Inc. is a publicly owned asset management holding company. Through its subsidiaries, the firm provides its services to individuals, institutions, pension plans, trusts, and partnerships. Franklin Resources, Inc. was founded in 1947 and is based in San Mateo, California with an additional office in Hyderabad, India. HARRIS CORP: Class Suits Challenge L3 Technologies Merger --------------------------------------------------------- Harris Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on January 30, 2019, for the quarterly period ended December 28,, 2018, that the company is facing multiple class action suits related to its merger agreement with L3 Technologies, Inc. On October 14, 2018, the company announced that on October 12, 2018, the company entered into an Agreement and Plan of Merger (the "Merger Agreement"), with L3 Technologies, Inc. (L3) and Leopard Merger Sub Inc., the company's wholly owned subsidiary ("Merger Sub"), pursuant to which the company and L3 have agreed to combine in an all-stock merger of equals. In connection with the company's pending merger with L3, two putative class action lawsuits and one individual lawsuit were filed against L3 and its directors (together, the "L3 Parties") in the U.S. District Court for the Southern District of New York between December 19, 2018 and January 15, 2019, and a third putative class action lawsuit, Kent v. L3 Technologies, Inc., et al., was filed against the L3 Parties and Harris Corporation and its wholly owned subsidiary, Leopard Merger Sub Inc. (Harris Corporation and Leopard Merger Sub Inc., the "Harris Parties"), in the U.S. District Court for the District of Delaware on January 4, 2019. The complaints in the lawsuits contain substantially similar allegations contending, among other things, that the registration statement on Form S-4 in support of the pending merger misstates or fails to disclose certain allegedly material information in violation of federal securities laws. The complaint in the Kent lawsuit further alleges that the Harris Parties are liable for these violations as "controlling persons" of L3 within the meaning of federal securities laws. The complaints in all four lawsuits generally seek injunctive relief enjoining the merger, damages and costs, among other remedies. Additional lawsuits in connection with the merger may be filed in the future. Harris said, "Although the ultimate resolution of these lawsuits cannot be predicted with certainty, and an adverse ruling in any such lawsuit may cause the merger to be delayed or not to be completed, which could cause us not to realize some or all of the anticipated benefits of the merger, we believe that these lawsuits are without merit and intend to defend vigorously against them and any other lawsuits challenging the pending merger. Therefore, at this time, we do not believe the ultimate resolution of these lawsuits will have a material adverse effect on us or the merger." Harris Corporation provides technology-based solutions that solve government and commercial customers’ mission-critical challenges in the United States and internationally. The company operates in three segments: Communication Systems, Electronic Systems, and Space and Intelligence Systems. Harris Corporation was founded in 1895 and is headquartered in Melbourne, Florida. IDAHO: Court Consolidates 4 Inmates Suits with Workman ------------------------------------------------------ The United States District Court for the District of Idaho issued a Memorandum Decision and Order granting Plaintiffs' Motion to Consolidate the cases captioned PHILIP A. TURNEY, an individual; BILLY RAY BARTLETT, an individual; MICHAEL A. McCALL, an individual; and REUBEN J. CORTES, an individual, Plaintiffs, v. HENRY ATENCIO; RONA SEIGERT; JOHN G. MIGLIORI; MURRAY F. YOUNG; APRIL C. DAWSON; JOHN and JANE DOES A-Z; CORIZON, INC.; and IDAHO DEPARTMENT OF CORRECTION, Defendants. Case Nos. 1:18-cv-00001-BLW, 1:18-cv-00097-BLW, 1:18-cv-00099-BLW, 1:18-cv-00100-BLW (D. Idaho). Five pro se prisoners in custody of the Idaho Department of Correction (IDOC), Philip A. Turney, Billy Ray Bartlett, James S. Hendrickson,1 Michael A. Hall, and Reuben J. Cortes (Plaintiffs) filed a joint Complaint about inadequate prison medical treatment for their Hepatitis C conditions, seeking monetary and injunctive relief. The case that the Plaintiffs seek to consolidate with this case is Workman, et al. v. Atencio, et al., No. 1:16-CV-00309-BLW, which was filed on July 8, 2016, about two years before the Turney plaintiffs filed their pro se lawsuit. In Workman, prisoners Kenneth Workman and Ray Nichols sought Hepatitis C treatment. They alleged that, even though Hepatitis C can now be cured with a costly new drug, a non-interferon direct-action antiviral medication (DAA), IDOC/Corizon withholds that treatment from all but the prisoners with the most severe symptoms because of the financial cost. Workman and Nichols asserted that prison officials instead should treat all prisoners infected with Hepatitis C to cure them before their symptoms become severe. In their complaint, Workman and Nichols sought only injunctive and declaratory relief. The parties in Workman agree that Workman recently has been treated and essentially cured of Hepatitis C. Workman asserts that the lack of past treatment caused permanent liver damage. Nichols has not been treated because his symptoms are not severe, but he would like to be cured before his symptoms worsen. Standard of Law Federal Rule of Civil Procedure 42(a) permits consolidation of actions that share a common question of law or fact. Consolidation may take the form of a court order to (1) join for hearing or trial any or all matters at issue in the actions (2) consolidate the actions or (3) issue any other orders to avoid unnecessary cost or delay. In addition, for convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues or claims. The Workman case is two years older than the Turney case, but the Workman case took an irregular course. Plaintiffs, rather than Defendants, first filed a pro se motion seeking summary judgment, but did so without adequate supporting evidence. Disclosure and discovery disputes existed at the time of the summary judgment filing, and disputes remain outstanding today even though the Court previously ordered Defendants to supplement their disclosures. Defendants have now filed for summary judgment on some claims, but the motion will not dispose of all claims in that case. Thus, Workman is not procedurally much farther ahead than the Turney case. The Turney case needs a new comprehensive case management plan, given the parties' outstanding requests, which range from amendment to class action status to preliminary injunctive relief. Consolidation of these similar cases will serve judicial efficiency. An overarching case management plan regarding disclosure, discovery, and all other outstanding requests will reduce duplicative attorney time spent on tasks on both sides. In addition, the same expert witnesses and other evidence likely can be used in all the cases, reducing the attendant costs of litigation for the parties. No party has shown that prejudice will occur because of consolidation. Nor has any party shown that inconveniences associated with consolidation will be greater than the benefits. The only difficulty is that one plaintiff remains pro se; however, the Rules of Civil Procedure provide the Court with authority to issue orders catering to the particular needs of the claims and cases within a consolidated action. Accordingly, the Court has concluded that consolidation of these cases is appropriate. Hereinafter, the Workman and Turney cases will be referred to as the Turney case. A full-text copy of the District Court's January 17, 2018 Memorandum Decision and Order is available at https://tinyurl.com/y8cs4qjx from Leagle.com. Reuben J Cortes, Plaintiff, represented by Richard A. Hearn, HEARN LAW, PLC. Henry Atencio, Director, Idaho Department of Correction, in his official capacity & Rona Siegert, RN, CCHP-RN, in her individual and her official capacities for actions under color of law as Health Services Director, IDOC, Defendants, represented by Brady James Hall -- brady@melawfirm.net -- Moore Elia Kraft & Hall, LLP. John Migliori, Dr, MD, in his individual and his official capacities for actions under color of law as treating physician at ISCC, Murray Young, Dr, MD, in his individual and his official capacities for actions under color of law as treating physician at SICI, April Dawson, Dr, MD, in her individual and her official capacities for actions under color of law as treating physician at SBWCC & Corizon Incorporated, Defendants, represented by Dylan Alexander Eaton -- deaton@parsonsbehle.com -- Parson Behle & Latimer & J. Kevin West -- kwest@parsonsbehle.com -- PARSONS BEHLE & LATIMER. IMMUNOMEDICS INC: Misled Shareholders, Robbins Arroyo Suit Says --------------------------------------------------------------- Shareholder rights law firm Robbins Arroyo LLP disclosed that purchasers of Immunomedics, Inc. (NASDAQGM: IMMU) filed a class action complaint against the company for alleged violations of the Securities and Exchange Act of 1934 between August 23, 2018 and December 20, 2018. Immunomedics, a clinical-stage biopharmaceutical company, focuses on the development of monoclonal antibody-based products for the targeted treatment of cancer. View this information on the law firm's Shareholder Rights Blog: https://www.robbinsarroyo.com/immunomedics-inc-jan-2019/ Immunomedics Accused of Data Integrity Breach According to the complaint, on December 17, 2018, FDAnews.com published an article, stating that "[t]he FDA cited Immunomedics for a host of violations -- including its handling of a data integrity breach -- observed at its Morris Plains, New Jersey, drug substance manufacturing facility between August 6 and 14." The breach purportedly included "manipulated bioburden samples, misrepresentations of in integrity test procedure in the batch record, and backdating of batch records, such as dates of analytical results." On December 20, 2018, Favus Institutional Research issued its own report discussing the data integrity breach. On this news, Immunomedics's stock fell 20% to close at $14.17 on December 20, 2018. Immunomedics Shareholders Have Legal Options Contact: Leonid Kandinov, Esq. Robbins Arroyo LLP 600 B Street, Suite 1900 San Diego, CA 92101 Telephone: (619) 525-3990 Email: LKandinov@robbinsarroyo.com [GN] INDIAN RIVER: $1.4MM Cooley Class Settlement Has Prelim Approval ---------------------------------------------------------------- The United States District Court for the Eastern District of California issued an Order granting Plaintiffs' Unopposed Motion for Preliminary Approval of the Proposed Class and Proposed Class Settlement in the case captioned CHARLES W. COOLEY, GRADY ANDERSON, and NICHOLAS MARONE on behalf of themselves and all others similarly situated, Plaintiffs. v. INDIAN RIVER TRANSPORT CO., a Florida Corporation, and DOES 1-10, inclusive, Defendant. No. 1:18-cv-00491. (E.D/ Cal.). Presently before the court is plaintiffs' unopposed motion for preliminary approval of the proposed class and proposed class settlement. Plaintiffs Charles W. Cooley, Grady Anderson, and Nicholas Marone were formerly employed by Indian River Transport Co., as truck drivers. They brought this putative class action on behalf of themselves and similarly aggrieved employees. They allege that Indian River committed various violations of California law1 by failing to inform its drivers they were entitled to paid meal or rest breaks, not compensating them for rest breaks and other time they were working but not driving, and by providing them with wage statements that did not include all the information required by the Labor Code. Here, the court performs only the preliminary step of class settlement approval. Before turning to the propriety of the proposed settlement, however, the court must first determine whether certification of the settlement class is proper. Class Certification Rule 23(a) Requirements Rule 23(a) restricts class actions to cases where: (1) the class is so numerous that joinder of all members is impracticable (2) there are questions of law or fact common to the class (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class and (4) the representative parties will fairly and adequately protect the interests of the class. Numerosity A proposed class must be so numerous that joinder of all members is impracticable. Though there is no definite threshold for determining numerosity, the requirement is presumptively satisfied by a proposed class of at least forty members. Here, plaintiffs seek to represent a class of approximately 2,303 Indian River employees and former employees. The numerosity requirement is easily satisfied by the proposed settlement class. Commonality Commonality hinges on whether the class members' claims depend upon a common contention that is capable of classwide resolution which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Here, the settlement classes are comprised of all California and non-California resident drivers employed by Indian River who performed work in California for at least one full day from 4 years prior to the filing of this complaint to the present. The members of the putative class, like the named plaintiffs, would be alleging that defendant failed to notify them of their right to meal and rest breaks, failed to separately pay them for rest periods, failed to compensate them for time spent in the sleeper berth, and failed to provide them with accurate pay stubs as required by law. These contentions arise out of a common core of salient facts and constitute a shared set of allegations regarding the legality of defendant's conduct vis-à-vis California's wage and hours laws. Since the class's claims implicate common issues of law, the putative class satisfies the commonality requirement. Typicality Rule 23(a) also requires that the claims or defenses of the representative parties be typical of the claims or defenses of the class. The Ninth Circuit has held that to meet the typicality requirement, the named plaintiffs' claims must be reasonably coextensive with those of absent class members. In evaluating the named plaintiffs' typicality, courts must look to whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct. The putative class members allege a set of facts that is essentially identical to those alleged by the named plaintiffs. Both the class members and the named plaintiffs were employed by the Indian River as truck drivers and allege that they were injured by defendant's wage and wage statement policies. The mere fact that class members may have worked for varying lengths of time and may therefore have suffered to varying degrees does not mean that the injuries of the named plaintiffs are atypical of the class. The proposed class therefore meets the typicality requirement. Adequacy of Representation Rule 23(a) requires that the representative parties will fairly and adequately protect the interests of the class. Resolution of two questions determines legal adequacy: (1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class? The Plaintiffs' counsel are experienced attorneys with significant knowledge of class actions, specifically wage and hour class actions. Class counsel also indicate that the decision to settle this case was reached after considerable deliberation, review of hundreds of documents, and an all-day mediation session on September 8, 2018. As such, the court can safely assume that plaintiff's counsel has vigorously sought to maximize the return on its labor and to vindicate the injuries of the entire class. Accordingly, the court finds that plaintiffs and plaintiffs' counsel are adequate representatives of the class, and therefore that plaintiffs have satisfied all of the requirements for certification set forth in Rule 23(a). Rule 23(b) The Plaintiffs seek certification under Rule 23(b)(3), which provides that a class action may be maintained only if (1) the court finds that questions of law or fact common to class members predominate over questions affecting only individual members and (2) that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Predominance Because Rule 23(a)(3) already considers commonality, the focus of the Rule 23(b)(3) predominance inquiry is on the balance between individual and common issues. Here, the plaintiffs' allegations concern Indian Rivers' alleged failure to inform drivers about their right to paid breaks, as well as its practices regarding driver compensation for rest breaks, meal breaks, and time spent in the sleeper berths. The evidence therefore demonstrates that a common nucleus of facts and potential legal remedies dominates this litigation. Insofar as individualized issues remain in the litigation, those issues largely relate to the amounts that individual drivers were allegedly underpaid. Discrepancies in the amount of underpayment are damages questions that do not undermine a finding of predominance. To the extent that any further individual issues may exist, there is no indication that those issues would be anything more than local variants of a generally homogenous collection of causes, related to the named plaintiff's allegations. These divergences, therefore, are not sufficiently substantive to predominate over the shared claims. Accordingly, the court finds the predominance requirement is satisfied. Superiority In addition to the predominance requirement, Rule 23(b)(3) permits class certification only upon a showing that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. It sets forth four non-exhaustive factors that courts should consider in making this determination. They are: (A) the class members' interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. Since the parties settled this action prior to certification, factors (C) and (D) are inapplicable. The court is unaware of any concurrent litigation regarding the issues presented here against Indian River. Given the lack of ongoing competing lawsuits, it is unlikely that other individuals have an interest in controlling the prosecution of this action or other actions against Indian River for related claims, although objectors at the fairness hearing may reveal otherwise. At this stage, and in light of the above considerations, the class action appears to be the superior method for adjudicating this controversy. Preliminary Settlement Approval Having determined that the proposed class preliminarily satisfies the requirements of Rule 23, the court will now examine whether the terms of the parties' settlement appear fair, adequate, and reasonable. This process requires the court to balance a number of factors, including: the strength of the plaintiff's case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the amount offered in settlement; the extent of discovery completed and the stage of the proceedings; the experience and views of counsel; the presence of a governmental participant; and the reaction of the class members to the proposed settlement. Since many of these factors cannot be considered until the final fairness hearing, the court need only conduct a preliminary review so as to resolve any glaring deficiencies' in the settlement agreement before authorizing notice to class members. Amount Recovered and Distribution The proposed gross settlement amount of $1.4 million is just over 11% of the estimated potential recovery in this case. Class counsel represents that the $12 million pretrial recovery does not account for the delay of litigation; the risk that the class may not be certified; or the possibility that some claims may not proceed on the merits. Though this settlement represents far less than plaintiffs could have potentially secured had the case gone to trial, it is not plainly deficient. The amount of the attorney's fee award and the amount of plaintiff's incentive award do give the court pause. Nonetheless, the court cannot conclude at this stage that either award is excessive, let alone so grossly excessive that it imperils the fairness or adequacy of this settlement. Accordingly, because the settlement appears fair, reasonable, and adequate, Fed. R. Civ. P. 23(e)(2), the court will preliminarily approve the settlement agreement pending a final fairness hearing. Accordingly, the plaintiff's motion for preliminary certification of a conditional settlement class and preliminary approval of the class action settlement be, and the same is, granted. A full-text copy of the District Court's January 24, 2018 Order is available at https://tinyurl.com/ycvshzxn from Leagle.com. Charles W. Cooley, Grady Anderson & Nicholas Marone, Plaintiffs, represented by Aashish Y. Desai -- aashish@desai-law.com -- Desai Law Firm, P.C. & Maria Adrianne De Castro -- adrianne@desai-law.com -- Desai Law Firm PC. Indian River Transport Co., a Florida Corporation, Respondent, represented by Alexandra Hemenway -- ahemenway@littler.com -- Littler Mendelson, P.C., Britney Noelle Torres -- btorres@littler.com -- Littler Mendelson, P.C. & Richard H. Rahm -- btorres@littler.com -- Littler Mendelson, P.C.. L'OREAL USA: CeraVe Products Don't Treat Eczema, Magill Says ------------------------------------------------------------ DUSTIN MAGILL, on behalf of himself and all others similarly situated, the Plaintiff, vs. L'OREAL USA, INC.; BAUSCH HEALTH COMPANIES INC.; and DOES 1-20, the Defendants, Case No. 3:19-cv-00450-JCS (N.D. Cal., Jan. 25, 2019), contends that L'Oreal, USA, Inc., Bausch Health Companies Inc. (formerly known as Valeant Pharmaceuticals), and others unknown to Plaintiff at this time, advertise, market, label, sell, and represent their skin care products as drugs that treat or mitigate eczema and its symptoms. In particular, Defendants sell products under the brand name "CeraVe (TM)." These products all prominently feature on the front label the word "Eczema" and other representations that indicate that the products are drugs that will treat or mitigate eczema and its symptoms. Unfortunately for consumers, the Products do not meet any of the requirements for being sold as eczema drugs under California law. The Products have not been subject to a New Drug Application process. Nor do they comply with the monograph for eczema drugs as none of the Products contain colloidal oatmeal as an ingredient. Thus, the Products are unlawfully sold as drugs in California, and are misbranded and falsely advertised in violation of the Sherman Law. The case concerns four CeraVe (TM) products: Eczema Soothing Body Wash, Eczema Body Wash, Eczema Soothing Creamy Oil, and Eczema Creamy Oil. L'Oreal USA manufactures and markets cosmetics for consumer and professional markets. It provides skincare, haircare, and makeup.[BN] Attorneys for Plaintiff: Mark N. Todzo, Esq. Lucas Williams, Esq. LEXINGTON LAW GROUP 503 Divisadero Street San Francisco, CA 94117 Telephone: (415) 913-7800 Facsimile: (415) 759-4112 E-mail: mtodzo@lexlawgroup.com lwilliams@lexlawgroup.com LOS ANGELES, CA: Cal. App. Affirms Demurrer to Evidence in Howard ----------------------------------------------------------------- The Court of Appeals of California, Second District, Division Five, issued an Opinion affirming the District Court’s Order sustaining the Defendant's Demurrer to Evidence in the case captioned RICHARD HOWARD, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Respondent. No. B282538. (Cal. App.). Plaintiff Richard Howard appeals from a judgment following the entry of an order sustaining the demurrer of defendant the County of Los Angeles (the County) to the second amended complaint without leave to amend. The County contracts with red-light camera operators to implement, and collection agencies and courts to enforce, red-light camera traffic tickets. The County contracted with, among others, GC Services to perform on its behalf such collection services. A notice to appear on citation number C144793, on Judicial Council Form TR-115, was sent to plaintiff at an address on Avalon Boulevard, in Los Angeles, California.The notice advised, You have been issued a citation that charges you with a traffic infraction. It listed the date of violation and ordered plaintiff to appear on January 10, 2008, at the Santa Monica courthouse. Plaintiff never received the notice. The Plaintiff challenges each of the alternative grounds upon which the trial court based its order, including the trial court's conclusion that his complaint was barred by the litigation privilege set forth in Civil Code section 47, subdivision (b) (section 47(b)). He also contends the trial court abused its discretion by denying his motion for leave to amend to state a cause of action under 42 U.S.C. section 1983 (section 1983). Standard of Review When a demurrer is sustained, the Court determine whether the complaint states facts sufficient to constitute a cause of action. And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion, Here, the gravamen of each of plaintiff's claims is the communicative act by the County's agent, GC Services, of sending the collection letter in an effort to collect on a red-light camera traffic citation that had issued, but had not yet been reduced to a judgment or otherwise levied upon. The collection letter was sent in furtherance of an ongoing judicial proceeding, namely, the traffic citation proceeding that commenced with the mailing of the notice to appear. That GC Services sent the collection letter prior to the filing of a judgment does not change the analysis. And, the fact that the collection letter was allegedly sent in violation of County policy does not alter this conclusion, as the privilege extends to communications in furtherance of litigation that may be false or misleading, such as, for example, the allegedly false declarations of service at issue. Similarly, the fact that plaintiff was not the traffic violator, but a victim of identity theft, does not alter the privilege analysis. Regardless of whether the collection letter was sent to plaintiff in error, it forms the basis for his individual and class claims against the County and was sent as part of a collection process directly connected to the County's red-light camera citation procedure. Therefore, erroneous or not, it was a communicative act in furtherance of litigation that was presumptively protected by the privilege. Contrary to plaintiff's assertion, the contract between GC Services and the County, whereby GC Services agreed to collect debt for the County and which allegedly imposed upon the County a duty to review and approve collection letters prior to mailing, is not the type of contract that California courts have held to be outside the scope of the litigation privilege, e.g., releases or waivers of claims and confidentiality agreements. Under the applicable authorities, the privilege does not extend to those types of contracts because to do so would not further the policies underlying the privilege, i.e., it would not advance or promote the right of litigants and witnesses to have free access to the courts without fear of being harassed subsequently by derivative actions. Unlike a release or confidentiality agreement, each of which operates as an implied waiver of the privilege, the purpose of the provision at issue in this case to ensure compliance with the County's policies and procedures regarding the processing of red-light traffic tickets would not be frustrated by applying the privilege to bar plaintiff's breach of contract claim. To the contrary, permitting plaintiff to sue for receipt of a letter sent in connection with a traffic citation proceeding would undermine the purpose of the litigation privilege, that is, the ability of the County to cite and fine traffic violators. The Court finds no compelling reason to exclude the County's contract with GC Services from the bar of the privilege. The Court rejects plaintiff's assertion that the gravamen of his claims is noncommunicative conduct the County's alleged failure to review and approve collection letters which is not subject to the litigation privilege. As explained above, each of plaintiff's claims is based upon the collection letter plaintiff received from GC Services which allegedly breached the County's underlying duty to review and approve such letters. Because the County's alleged wrongful conduct in failing to preapprove the letter is necessarily related to the communicative act of sending it out unapproved, the litigation privilege extends to that alleged conduct as well. The judgment is affirmed. In the interests of justice, each party is to bear its own costs on appeal. A full-text copy of the Cal. App.'s January 24, 2018 Opinion is available at https://tinyurl.com/y9xaezxe from Leagle.com. Law Offices of Ron Bochner, Ron Bochner -- robolaw@justice.com -- for Plaintiff and Appellant. Hurrell Cantrall, Thomas C. Hurrell -- thurrell@hurrellcantrall.com -- and Melinda Cantrall -- mcantrall@hurrellcantrall.com -- for Defendant and Respondent. LOUISIANA: Court Denies Atakapa Indian's TRO Bid ------------------------------------------------ The United States District Court for the Middle District of Louisiana issued a Ruling denying Plaintiffs' Application for Emergency Temporary Restraining Order and Injunction in the case captioned ATAKAPA INDIAN de CREOLE NATION, ET AL., v. GOVERNOR JOHN BEL EDWARDS, ET AL. Civil Action No. 19-28-SDD-EWD. (M.D. La.). This matter is before the Court on the Application for Emergency Temporary Restraining Order and Injunction1 filed by Plaintiff "the CHRISTIAN EMPEROR, Edward Moses Jr., Trust Protector of the American-l'iberian Indian Tribe of Moses also known as the Atakapa Indian de Creole Nation." The Plaintiff seeks relief from, inter alia, the Government shutdown which has allegedly injured an entire nation of American Aboriginal Indigenous people falsely labeled African Americans and Bozal, Latino, Ladinos, Latinos women and children together with roughly 800,000 Federal Employees by unlawfully withholding their income for work performed when many of these people are his Majesty's citizen's, subjects or assigns; protection from a wrongful injury and restraint upon his liberty to be free from prosecution for failure to obtain an Alarm User Permit; both known and unknown erosion of his Majesty's right to be free from injury and relief from the defendants named in the verified complaint engaging in anti-trust monopolistic commercial activity that further injures the Royal Crown. STANDARD FOR A TEMPORARY RESTRAINING ORDER In order to obtain a TRO, Plaintiff must demonstrate: (1) a substantial likelihood of success on the merits, (2) a substantial threat that plaintiff will suffer irreparable injury if the injunction is not granted, (3) that the threatened injury outweighs the threatened harm to the defendant, and (4) that granting the preliminary injunction will not deserve the public interest. Because a temporary restraining order is an extraordinary remedy, it should be granted only if Plaintiff clearly carries his burden of persuasion as to all four factors. Rule 65(b)(1) of the Federal Rules of Civil Procedure states that a court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if: (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition and (B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required. The Plaintiff has failed to satisfy both requirements set forth in Rule 65(b)(1). The Plaintiff submits to the Court a purported Verified Complaint with a preceding Affidavit wherein Edward Moses attests that he personally appeared before a Notary and, after being duly sworn, did depose and state: That he is petitioner in the above and foregoing petition and that all of the allegations of fact contained therein are verified, true, and correct to the best of his information, knowledge and belief. The Notary's signature is illegible, there is no notary stamp or seal, no notary number, and no identification of what state and parish/county under which the Notary is commissioned. The Court cannot determine the identity of the Notary. Thus, the purported Affidavit is invalid. Further, the purported Affidavit is substantively deficient. Following Fifth Circuit precedent, this Court has held that verified pleadings must be based on personal knowledge alone not verified only on knowledge, information, and belief. The Plaintiff does not attest that the facts alleged are based on his personal knowledge. Also lacking is the certification required by counsel regarding attempted notice efforts or a reason why notice should not be provided. Indeed, the issue of notice is simply ignored by Plaintiff altogether. There is nothing before the Court to indicate that Plaintiff had made good faith efforts to comply with his obligation to act equitably when seeking such an extraordinary equitable remedy. The Plaintiff's conclusory, unsubstantiated, and often outlandish allegations also fail to demonstrate a likelihood of success on the merits. First, the Court has serious doubts that it has subject matter jurisdiction and/or personal jurisdiction over many of the named Defendants. Plaintiff states that this Court has personal jurisdiction over each of the Defendants by virtue of their business activities in this District. This statement is woefully insufficient to demonstrate jurisdiction, particularly in a case involving Defendants who are foreign sovereign nations/leaders and local and federal sovereign who enjoy sovereign immunity in many instances. This has not been demonstrated to the Court's satisfaction to entertain the drastic remedy of a TRO. Having failed to satisfy the requirements of Rule 65, Plaintiff's Motion shall be denied. A full-text copy of the District Court's January 17, 2018 Ruling is available at https://tinyurl.com/ya7vw764 from Leagle.com. Atakapa Indian de Creole Nation, Plaintiff, represented by Edward Moses, Jr. -- edward@moses-lawfirm.com -- Moses Law Firm. MAPLEBEAR INC: Lozano Files Class Suit in Calif. Super. Ct. ----------------------------------------------------------- A class action lawsuit has been filed against Maplebear Inc. The case is styled as Sarah Lozano, individually and on behalf of all similarly situated individually, Plaintiff v. Maplebear Inc. d/b/a Instacart and Does 1-100, Defendants, Case No. CGC19573177 (Cal. Super. Ct., San Francisco Cty., January 25, 2019). Maplebear Inc., doing business as Instacart, provides online grocery delivery services primarily in the San Francisco Bay area, New York, Chicago, Boston, Philadelphia, Dallas, Los Angeles, Knoxville, Aldenwood Park, Knox County, Woodland Acres, Farragut, Concord, Amherst, Wooded Acres, Solway, Karns, Wood Creek West, Contra Costa, Alameda, Solano, Napa, Sonoma, and Washington, D.C. The company facilitates users to connect with personal shoppers in their area who pick up and deliver groceries from local stores. It allows users to order groceries on mobile or web and get them delivered to their door steps. The company was incorporated in 2012 and is based in San Francisco, California.[BN] The Plaintiff is represented by: Robert Stephen Arns, Esq. The Arns Law Firm 515 Folsom St 3FL San Francisco, CA 94105 Tel: (415) 495-7800 Fax: (415) 495-7888 Email: rsa@arnslaw.com MARY JANE ELLIOTT: Vanderkodde's Bid to Certify Class Declared Moot ------------------------------------------------------------------- The Honorable Paul L. Maloney rules that these remaining motions filed in the lawsuit captioned DANIEL VANDERKODDE, et al. v. MARY JANE ELLIOTT, P.C., et al., Case No. 1:17-cv-00203-PLM-RSK (W.D. Mich.), are moot: (1) Plaintiffs' motion for class certification; (2) Defendant Mary Jane Elliott P.C.'s motion for partial dismissal of state-law claims; and (3) Plaintiffs' motion for leave to file a second amended complaint. In this lawsuit, Plaintiffs allege injuries arising from allegedly erroneous interest rates contained in writs of garnishment issued following adverse state-court judgments. The Plaintiffs alleged claims under the Fair Debt Collection Practices Act and two Michigan statutes. The Court first resolved motions to dismiss filed by Defendant Mary Jane Elliott, P.C. and Defendant Berndt and Associates. The Court concluded that the Rooker-Feldman doctrine precluded jurisdiction over the Plaintiffs' FDCPA claim. Concurrent with this Order, the Court has issued an order granting the remaining Defendants' motion to dismiss, which raises the same argument. The Court finds that all of the Plaintiffs' claims are barred by Rooker-Feldman, not just the FDPCA claims. All of Plaintiffs' claims are premised on the same conduct, allegedly inaccurate, misleading or untrue statements made as part of an attempt to collect a debt, Judge Maloney notes.[CC] MASSACHUSETTS: L Civil Class Action Dismissed With Prejudice ------------------------------------------------------------ The Hon. Leo T. Sorokin issued an order in the lawsuit titled L, et al. v. CHARLIE BAKER, et al., Case No. 1:18-cv-11674-LTS (D. Mass.): -- allowing the Defendants' motions to dismiss, Doc. Nos. 39, 41, 45, 52; -- dismissing in its entirety the amended complaint against all the Defendants; -- denying as moot the pending motions by the Plaintiffs, such as the motions for a preliminary injunction and to certify a class; and -- denying Attorney Ilya Liviz's motion for sanctions against counsel for the Defendants, filed as part of his opposition to the motions to dismiss. The civil class action is dismissed with prejudice. Judge Sorokin also rules that insofar as Attorney Liviz' January 16 filing, Doc. No. 57, constitutes a motion to transfer the case, that motion is also denied as moot. The Court (1) directs the Clerk to provide the Board of Bar Overseers ("BBO") of the Commonwealth of Massachusetts a copy of this decision and a transcript of the January 22, 2019 hearing for its consideration and (2) refers this matter of potential attorney misconduct to the presiding judge of this Court, as defined in Local Rule 83.6.5(c)(2), for review and possible further action. Charlie Baker is the Governor of Massachusetts. Judge Sorokin opines that Attorney Liviz has, again, failed to comply with the Court's Orders. Attorney Liviz has not identified any plaintiff as Parent A, B, C, D, or E, he has not provided the full name and mailing address of each of the five named plaintiffs, and he has not provided a retainer agreement from any named plaintiff. "Providing the names and addresses of the plaintiffs in this case is not a mere technicality. Without actual plaintiffs, there is no case or controversy, no subject matter jurisdiction, and no lawsuit," Judge Sorokin says, among other things. Judge Sorokin adds that the conduct of Attorney Liviz raises serious concerns.[CC] The Plaintiffs are represented by: Ilya Liviz, Esq. LIVIZ LAW OFFICE 200 Street No. 1 Lowell, MA 01852 Telephone: (978) 221-6385 E-mail: ilya.liviz@gmail.com MDL 2672: Court Denies Administrative Bid to Seal Lytle Declaration ------------------------------------------------------------------- The United States District Court for the Northern District of California issued an Order denying the Administrative Motion to Seal in the case captioned IN RE: VOLKSWAGEN "CLEAN DIESEL" MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION. MDL No. 2672 CRB (JSC). (N.D. Cal.) Volkswagen has moved to file under seal certain exhibits to the declaration of Jay R. Lytle, a declaration that was submitted in support of Defendants' omnibus opposition to Plaintiffs' motions to remand. In support of its request, Volkswagen states that Exhibits A-D to the Lytle declaration contain information about various Plaintiffs that they may consider sensitive and private, including Vehicle Identification Numbers and other vehicle transaction data associated with the vehicles plaintiffs purchased or leased. Volkswagen did not file a proposed redacted version of the Exhibits with its motion. It instead requested authority to file under seal unredacted versions of Exhibits A-D, and to file publicly a version that redacts the information reflected therein that was obtained from non-public sources. The proposed approach, whereby Volkswagen would file a redacted version of Exhibits A-D only after the motion to seal is resolved, prevents the Court from meaningfully evaluating whether the information sought to be sealed justifies sealing. Although the Court has some sense of what information Volkswagen seeks to seal (e.g., it is clear that Volkswagen seeks to seal Vehicle Identification Numbers the request to seal all information that was obtained from non-public sources" is too opaque to be evaluated. The Court therefore denies the motion without prejudice and instructs Volkswagen to renew its motion, within seven days of this order, and to include with its renewed motion a proposed redacted version of Exhibits A-D. A full-text copy of the District Court's January 17, 2018 Order is available at https://tinyurl.com/ycvj88ns from Leagle.com. Nicholas Benipayo, Plaintiff, represented by Robert B. Carey -- rob@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice, Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice & Thomas Eric Loeser -- toml@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice. Nadine Bonda, Plaintiff, represented by Adam M. Stewart -- astewart@shulaw.com -- Shapiro Haber & Urmy LLP & Thomas G. Shapiro -- tshapiro@shulaw.com -- Shapiro Haber and Urmy, LLP. Brian Connelly, Plaintiff, represented by Thomas G. Shapiro, Shapiro Haber and Urmy, LLP. Volkswagen Group of America, Inc., a New Jersey Corporation, Defendant, represented by Amie Adelia Vague -- avague@lightfootlaw.com -- Lightfoot Franklin & White, Casey Erin Lucier -- clucier@mcguirewoods.com -- McGuireWoods LLP, Charles J. Baker, III -- chuck.baker@wbd-us.com -- Womble Carlyle Sandridge and Rice, Colin Hampton Tucker -- ctucker@rhodesokla.com -- Rhodes Hieronymus Jones Tucker & Gable, Dana Woodrum Lang -- dana.lang@wbd-us.com -- Womble Carlyle Sandridge and Rice, David M. Eisenberg -- eisenberg@bscr-law.com -- Sterchi, Cowden & Rice, LLC, Henry Buist Smythe, Jr. -- henry.smythe@wbd-us.com -- Womble Carlyle Sandridge and Rice, Howard Feller -- hfeller@mcguirewoods.com -- McGuireWoods LLP, William R. Scherer -- wscherer@conradscherer.com -- Conrad and Scherer, LLP, J. Randolph Bibb, Jr. -- rbibb@lewisthomason.com -- Lewis, Thomason, King, Krieg & Waldrop, P.C., James K. Toohey -- tooheyj@jbltd.com -- Johns & Bell LTD, Jeffrey Lance Chase -- JChase@herzfeld-rubin.com -- Chase Kurshan Herzfeld & Rufin LLC, Jeffrey S. Rugg -- jrugg@bhfs.com -- Brownstein Hyatt Farber Schreck, LLP, Jennifer Marino Thibodaux -- jthibodaux@gibbonslaw.com -- Gibbons PC. MDL 2785: Court Denies Bid for Sanofi to Produce Docs ----------------------------------------------------- The United States District Court for the District of Kansas issued an Memorandum Opinion denying The Mylan Defendants' Motion to Compel Sanofi to Produce Documents and Amended Request for Admission Responses in the case captioned IN RE: EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices and Antitrust Litigation, This Document Applies to the Sanofi Case. MDL No. 2785, Case No. 17-md-2785-DDC-TJJ (D. Kan.). Mylan issued 145 Requests for Admission to Sanofi, along with both its Seventh Set of Document Requests and its Third Set of Interrogatories. Three days later, Mylan served its Eighth Set of Document Requests on Sanofi. Sanofi timely responded to the discovery, and on November 14, 2018, Mylan sent a letter to Sanofi describing deficiencies it perceived in Sanofi's responses and modifying certain of its requests. The parties continued to engage in written and oral communication in an attempt to resolve their differences. Based on the parties' efforts, the Court finds they have complied with the requirements of D. Kan. R. 37.2. Sanofi has refused to produce documents responsive to RFP No. 7 of Mylan's Seventh Set of Document Requests, which seeks documents related to the Lovenox litigation. Sanofi bases its refusal on the grounds that the request violates an earlier discovery order and belatedly seeks reconsideration of that order, the request is not a genuine discovery demand and Mylan would not be prejudiced without the discovery, and responding to the request would be unduly burdensome to Sanofi and disproportionate. Mylan argues the documents are highly relevant, whereas Sanofi's objections are boilerplate and unsupported by evidence demonstrating that producing responsive documents would be unduly burdensome. Mylan contends Sanofi's responses to 88 of its Requests for Admission are evasive, fail to answer the request, or contain extraneous statements that should be stricken. Sanofi argues that Mylan's generalized criticism of the majority of the RFAs it addresses does not warrant relief under Federal Rule of Civil Procedure 36, that its responses comply with Rule 36, and that Mylan's RFAs are improper attempts to have the court prematurely adjudicate merits disputes. Legal Standards Federal Rule of Civil Procedure 26(b)(1) sets out the general scope of discovery and provides as follows: 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, considering 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. Information within this scope of discovery need not be admissible in evidence to be discoverable. Federal Rule of Civil Procedure 36 governs requests for admission. It allows a party to serve on any other party a written request to admit "the truth of any matters within the scope of Rule 26(b)(1) relating to: (A) facts, the application of law to fact, or opinions about either; and (B) the genuineness of any described documents. RFP No. 7 of Seventh Set of Document Requests RFP No. 7 seeks the following: All documents filed under seal, all transcripts from court proceedings, and all transcripts and exhibits from depositions taken in Eisai, Inc. v. SanofiAventis U.S., LLC, No. 3:08-cv-4168 (D.N.J.) and No. 14-2017 (3d Cir.). In Eisai, Sanofi was accused of antitrust violations in connection with its anticoagulant drug Lovenox. In response, Sanofi objected (1) on the basis of relevancy, proportionality, and that the request falls outside the scope of the Court's earlier other products ruling (2) the request is untimely and seeks information available from other sources and (3) the request is unduly burdensome to the extent it would require Sanofi to review and redact documents that contain other parties' confidential information that may be subject to a protective order in Eisai. Mylan contends the requested materials are highly relevant to its defense because in Eisai,Sanofi was alleged to have engaged in conduct analogous to the conduct it challenges in its complaint against Mylan here and have engaged in such conduct with respect to a Sanofi product Lovenox that had a dominant market share. Mylan asserts it is entitled to conduct discovery on what position Sanofi took in defending its conduct, given that Sanofi now alleges Mylan's similar conduct is illegal. In its Memorandum and Order ruling on Mylan's motion to compel, the Court found that in general, information pertaining to rebates Sanofi paid is relevant on its face, at least with respect to the exclusive dealing claim Sanofi asserts against Mylan. Although the Court found Mylan's original request overbroad, the Court went on to assess the narrowed version of RFP 24 Mylan had proposed. Mylan asserted its proposal would provide relevant information concerning the structure and circumstances of the industry, as well as discovery of the rebate agreements Sanofi itself has claimed constitute lawful, procompetitive price competition. With respect to four of the twelve Sanofi products included in Mylan's proposal, the Court was able to discern from other submissions the likely reason Mylan included them was that each was the subject of one or more government investigations relating to pricing and trade practices. However, Mylan did not explain why it included the other eight products or how they may have been relevant to the rebate issue in the motion to compel, and the Court denied Mylan's motion to compel insofar as it sought information related to Lovenox and seven other products. Now that Mylan is once again seeking discovery related to Lovenox, it addresses the Court's other products ruling, describing it as neither compelling nor prohibiting such discovery, but simply holding that Mylan had not explained how Lovenox might be relevant. Mylan contrasts its current briefing in which it provides an explanation of the Lovenox litigation. The Court has quoted that explanation in part, but now sets it forth in full: The requested materials are highly relevant to Mylan's defense. In Eisai, Inc. v. Sanofi-Aventis U.S., LLC, Sanofi was alleged to have engaged in conduct analogous to the conduct it challenges in its complaint against Mylan here and to have engaged in such conduct with respect to a Sanofi product, Lovenox, that had a dominant market share. Indeed, there, a Sanofi competitor alleged Sanofi provided increased discounts to purchasers when Sanofi had an overall market share in the drug class of 81% to 92%. Eisai, Inc. v. Sanofi-Aventis U.S., LLC, 821 F.3d 394, 399-400 (3d Cir. 2016). Mylan is entitled to discovery into what position Sanofi took in defending its conduct, given that Sanofi now alleges Mylan engaged in similar conduct and that that conduct is illegal. Mylan's explanation contains nothing new. Sanofi's allegations are the same now as they were when Mylan filed its earlier motion to compel. Accordingly, the Court is not persuaded that discovery into Lovenox has become relevant. The Court denies Mylan's motion insofar as it seeks to compel Sanofi to produce all documents in its possession responsive to Request No. 7 of Mylan's Seventh Requests for Production. Requests for Admission Mylan asks the Court to review and find insufficient dozens of Sanofi's responses to Mylan's Requests for Admission. Mylan claims some of Sanofi's responses are evasive and fail to answer the request, while others contain extraneous, non-responsive statements. Although Mylan seeks to challenge 88 of Sanofi's responses, its briefing discusses only sixteen RFAs, ten of which share a common response. Whether certain responses are evasive and fail to answer Mylan complains that in response to RFA Nos. 110 and 138 respectively, Sanofi did not state whether it had performed a study to establish Auvi-Q as therapeutically equivalent to EpiPen, nor did Sanofi confirm it had conducted no study to support the claim that Auvi-Q can withstand higher temperatures than EpiPen. Instead, Mylan alleges, Sanofi responded with a discussion of whether the devices are bioequivalent and with its recommended temperature for storing Auvi-Q device. Mylan contends these responses fail to directly answer the RFAs presented. And with respect to RFA No. 103, Mylan describes Sanofi's response as evasive because Sanofi objects that the phrase Sanofi sales representative is vague and ambiguous, but then adds a number of other statements including a claim that Sanofi has hundreds of sales representatives. Requests are not appropriate for argument. They should not put forward the requester's legal or factual contentions on the premise that, in the requester's view, they ought to be admitted. Requests for admissions should be made only if the requesting party has a reasonable expectation that the opponent should in good faith admit them. With respect to factual matters, a request is appropriate when the evidence at hand indicates that the matter is not reasonably disputable and that proof at trial may thereby be limited or facilitated. Considering RFA Nos. 110, 138, and 103 as written, the Court finds Sanofi has complied with Rule 36 in responding to each request. In asking Sanofi to admit to comparisons between Auvi-Q and EpiPen in the manner stated in RFA Nos. 110 and 138, it seems unlikely Mylan had a reasonable expectation that Sanofi would admit them. For its part, Sanofi had a duty to make a reasonable inquiry to determine its ability to admit or deny and upon determining neither was possible, to provide a detailed explanation to describe its inability with a response that fairly meets the substance of the requested admission. The Court finds Sanofi's responses to RFA Nos. 110 and 138 fairly meet the substance of each request. Similarly, asking Sanofi to admit in RFA No. 103 that a sales representative paid money to incentivize a physician may seem to Mylan like a request that ought to be admitted. But the statement is an overly broad minefield of undefined terms that a party should expect would draw a qualified response that explains why it cannot admit or deny. A request for admission is meant to be answered with a simple admission or denial. RFA No. 103 does not call for a simple admission or denial, and Sanofi's response complies with Rule 36. The Court denies Mylan's motion insofar as it challenges the sufficiency of Sanofi's responses to RFA Nos. 110, 138, and 103. The Mylan Defendants' Motion to Compel Sanofi to Produce Documents and Amended Request for Admission Responses is denied. A full-text copy of the District Court's January 24, 2018 Memorandum and Order is available at https://tinyurl.com/ycd2dkbq from Leagle.com. All Plaintiffs, Plaintiffs, represented by Amanda Klevorn -- aklevorn@burnscharest.com -- Burns Charest, LLP, pro hac vice, Korey Nelson -- knelson@burnscharest.com -- Burns Charest, LLP, pro hac vice, Lynn Lincoln Sarko -- lsarko@kellerrohrback.com -- Keller Rohrback, LLC, pro hac vice, Paul J. Geller -- pgeller@rgrdlaw.com -- Robbins Geller Rudman & Dowd, LLP, pro hac vice, Rex A. Sharp -- rsharp@midwest-law.com -- Rex A. Sharp, PA, Ryan C. Hudson -- rhudson@midwest-law.com -- Rex A. Sharp, PA & Warren T. Burns -- wburns@burnscharest.com -- Burns Charest, LLP, pro hac vice. Mylan N.V., Defendant, represented by Adam K. Levin -- adam.levin@hoganlovells.com -- Hogan Lovells US, LLP, pro hac vice, Benjamin Frederick Holt -- benjamin.holt@hoganlovells.com -- Hogan Lovells US LLP, Brian C. Fries -- bfries@lathropgage.com -- Lathrop Gage LLP, Brian R. Richichi -- brian.richichi@hoganlovells.com -- Hogan Lovells US, LLP, pro hac vice, Carolyn Anne DeLone -- carrie.delone@hoganlovells.com -- Hogan Lovells US, LLP, pro hac vice, Chad E. Blomberg -- cblomberg@lathropgage.com -- Lathrop Gage, LLP, Christopher D. Edelman, Hogan Lovells US, LLP, pro hac vice, Daniel Thomas Graham -- graham@clarkhill.com -- Clark Hill, PLC, pro hac vice, David M. Foster -- david.foster@hoganlovells.com -- Hogan Lovells US LLP, pro hac vice, James Moloney -- jmoloney@lathropgage.com -- Lathrop Gage LLP. MERCHANTS & MEDICAL: Faces Gambina FDCPA Suit in New Jersey ----------------------------------------------------------- A class action lawsuit has been filed against Merchants & Medical Corporation, Inc. The case is styled as Carmen Gambina, individually and all others similarly situated, Plaintiff v. Merchants & Medical Corporation, Inc. and John Does 1-25, Defendants, Case No. 2:19-cv-02436 (D. N.J., January 30, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Practices Act. Merchants & Medical Corporation, Inc. is a Medical billing service in Michigan.[BN] The Plaintiff is represented by: YAAKOV SAKS, Esq. Stein Saks, PLLC 285 Passaic Street Hackensack, NJ 07601 Tel: (201) 282-6500 ext 101 Fax: (201) 282-6501 Email: ysaks@steinsakslegal.com MICROSOFT CORP: Continues to Defend Moussouris Class Action ----------------------------------------------------------- Microsoft Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on January 30, 2019, for the quarterly period ended December 31, 2018, that the company continues to defend a class action suit entitled, Moussouris v. Microsoft. Current and former female Microsoft employees in certain engineering and information technology roles brought this class action in federal court in Seattle in 2015, alleging systemic gender discrimination in pay and promotions. The plaintiffs moved to certify the class in October 2017. Microsoft filed an opposition in January 2018, attaching an expert report showing no statistically significant disparity in pay and promotions between similarly situated men and women. In June 2018, the court denied the plaintiffs' motion for class certification. Plaintiffs sought an interlocutory appeal to the U.S. Court of Appeals for the Ninth Circuit, which was granted in September 2018. No further updates were provided in the Company's SEC report. Microsoft Corporation develops, licenses, and supports software, services, devices, and solutions worldwide. The company was founded in 1975 and is headquartered in Redmond, Washington. MONARCH RECOVERY: Betner-Gray Files FDCPA Class Suit in New Jersey ------------------------------------------------------------------ A class action lawsuit has been filed against Monarch Recovery Management, Inc. The case is styled as Chandra Betner-Gray, individually and all others similarly situated, Plaintiff v. Monarch Recovery Management, Inc. and John Does 1-25, Defendants, Case No. 1:19-cv-02473 (D. N.J., January 30, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Practices Act. Monarch Recovery Management, Inc., an accounts receivable management company, provides financial recovery solutions. It offers collection and payment processing services in various asset classes and industry sectors, including auto deficiencies, commercial paper, credit union accounts, government receivables, student loan receivables, bank credit card receivables, retail credit card receivables, sub-prime credit card receivables, debt buyer paper, lines of credit, skip to collect, mortgage delinquencies, direct merchant accounts, dismissed bankruptcy, and department of defense.[BN] The Plaintiff is represented by: YAAKOV SAKS, Esq. Stein Saks, PLLC 285 Passaic Street Hackensack, NJ 07601 Tel: (201) 282-6500 ext 101 Fax: (201) 282-6501 Email: ysaks@steinsakslegal.com NATIONAL COLLEGIATE: Avery Files Personal Injury Class Action ------------------------------------------------------------- A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Jarryn Avery, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association, Defendant, Case No. 1:19-cv-00444-JRS-TAB (S.D. Ind., January 28, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: Crowe Files PI Suit in S.D. Indiana -------------------------------------------------------- A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Wesley Crowe, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association and Thomas More University, Inc., Defendants, Case No. 1:19-cv-00439-TWP-MJD (S.D. Ind., January 28, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: Cuevas Suit Asserts Claim for Personal Injury ------------------------------------------------------------------ A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Eric Cuevas, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association and Texas Lutheran University, Defendants, Case No. 1:19-cv-00321-JMS-TAB (S.D. Ind., January 26, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: Faces Battle Personal Injury Suit in Ind. -------------------------------------------------------------- A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Khiry Battle, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association, Defendant, Case No. 1:19-cv-00453-JMS-MPB (S.D. Ind., January 28, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: Faces Brantley PI Class Action in Indiana -------------------------------------------------------------- A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Johnathan Brantley, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association, Defendant, Case No. 1:19-cv-00408-RLY-DML (S.D. Ind., January 27, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: Faces Owens Personal Injury Suit in Indiana ---------------------------------------------------------------- A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Andre Owens, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association and Howard University, Defendants, Case No. 1:19-cv-00364-RLY-DML (S.D. Ind., January 27, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: Faces Pierce PI Suit in Indiana Ct. -------------------------------------------------------- A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Sean Pierce, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association and Marist College, Defendants, Case No. 1:19-cv-00437-JPH-TAB (S.D. Ind., January 28, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: Georg Suit Alleges Claim for Personal Injury ----------------------------------------------------------------- A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Kyle Georg, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association and Mount St. Joseph University, Defendants, Case No. 1:19-cv-00389-TWP-TAB (S.D. Ind., January 27, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: Hailey Brings Personal Injury Suit in Indiana ------------------------------------------------------------------ A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Kenneth Hailey, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association, Defendant, Case No. 1:19-cv-00449-JRS-DML (S.D. Ind., January 28, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: Hoffman Asserts Personal Injury Claim ---------------------------------------------------------- A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Jeffrey Hoffman, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association, Defendant, Case No. 1:19-cv-00446-JMS-DML (S.D. Ind., January 28, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: Johnson Alleges Claim for Personal Injury -------------------------------------------------------------- A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Brian Johnson, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association and Millikin University, Defendant, Case No. 1:19-cv-00359-TWP-DLP (S.D. Ind., January 26, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: Keck Class Suit Asserts Personal Injury ------------------------------------------------------------ A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Gary Keck, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association, Defendant, Case No. 1:19-cv-00440-TWP-TAB (S.D. Ind., January 28, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: Koronkiewicz Sues Over Personal Injury ----------------------------------------------------------- A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as David Koronkiewicz, Jr., individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association, Defendant, Case No. 1:19-cv-00363-JMS-MJD (S.D. Ind., January 27, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: Kunzelman Files Personal Injury Case in Ind. ----------------------------------------------------------------- A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Ryan Kunzelman, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association and The University of Findlay, Defendants, Case No. 1:19-cv-00434-JRS-DLP (S.D. Ind., January 28, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: Lott Files PI Class Suit in Indiana -------------------------------------------------------- A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Adam Lott, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association and Millikin University, Defendant, Case No. 1:19-cv-00356-SEB-MPB (S.D. Ind., January 26, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: Lucot Class Suit Asserts Personal Injury Claim ------------------------------------------------------------------- A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as James Lucot, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association, Defendant, Case No. 1:19-cv-00442-JPH-TAB (S.D. Ind., January 28, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: Martin Files PI Class Action in Indiana ------------------------------------------------------------ A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as David Martin, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association and Northwood University, Defendants, Case No. 1:19-cv-00318-JRS-MPB (S.D. Ind., January 26, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: McCall Files Class Action for Personal Injury ------------------------------------------------------------------ A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Shedrick McCall, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association and Maryville College, Defendants, Case No. 1:19-cv-00438-RLY-DML (S.D. Ind., January 28, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: McKinney Files Personal Injury Lawsuit ----------------------------------------------------------- A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Matthew McKinney, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association and Thiel College, Defendants, Case No. 1:19-cv-00360-SEB-MJD (S.D. Ind., January 27, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: Perry Files Personal Injury Class Suit in Ind. ------------------------------------------------------------------- A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Leon Perry, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association and Baldwin Wallace University, Defendants, Case No. 1:19-cv-00361-JPH-TAB (S.D. Ind., January 27, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: Presley Files PI Suit in Indiana ----------------------------------------------------- A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Jonathan Presley, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association, Defendant, Case No. 1:19-cv-00447-TWP-TAB (S.D. Ind., January 28, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: Randall Suit Asserts Personal Injury Claim --------------------------------------------------------------- A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Kyshawn Randall, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association and Chowan University, Defendants, Case No. 1:19-cv-00391-SEB-DML (S.D. Ind., January 27, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: Rhodes Files Personal Injury Suit in Indiana ----------------------------------------------------------------- A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Nicholas Rhodes, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association, Defendant, Case No. 1:19-cv-00394-SEB-MJD (S.D. Ind., January 27, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: Slack Suit Asserts Claim for Personal Injury ----------------------------------------------------------------- A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Kevin Slack, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association, Defendant, Case No. 1:19-cv-00451-SEB-MJD (S.D. Ind., January 28, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: Stroud Files PI Suit in Indiana Ct. -------------------------------------------------------- A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Larry Stroud, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association and Charleston Southern University, Defendants, Case No. 1:19-cv-00362-SEB-DLP (S.D. Ind., January 27, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: Thorne Files PI Class Action in Indiana ------------------------------------------------------------ A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Kyle Thorne, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association and Hofstra University, Defendants, Case No. 1:19-cv-00390-JRS-DLP (S.D. Ind., January 26, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: Van Doren Files Personal Injury Class Action ----------------------------------------------------------------- A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Matthew Van Doren, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association and Lafayette College, Defendants, Case No. 1:19-cv-00355-JPH-DLP (S.D. Ind., January 26, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: Watson Files PI Suit in Indiana Court ---------------------------------------------------------- A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Bryan Watson, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association, Defendant, Case No. 1:19-cv-00366-TWP-DLP (S.D. Ind., January 27, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: Williams Asserts Claim for Personal Injury --------------------------------------------------------------- A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Lorenzo Williams, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association, Defendant, Case No. 1:19-cv-00454-JRS-DML (S.D. Ind., January 28, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: Wilson Files Personal Injury Class Action -------------------------------------------------------------- A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Ryan Wilson, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association and Guilford College, Defendants, Case No. 1:19-cv-00435-JRS-MPB (S.D. Ind., January 28, 2019). The docket of the case states the nature of suit as personal injury. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL ENTERPRISE: Certification of Class Sought in Fote Suit --------------------------------------------------------------- Joseph Fote moves the Court to certify the class described in the complaint of the lawsuit titled JOSEPH FOTE, Individually and on Behalf of All Others Similarly Situated v. NATIONAL ENTERPRISE SYSTEMS INC., Case No. 2:19-cv-00131-JPS (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiff asserts, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class, the Plaintiff tells the Court, citing Fulton Dental, LLC v. Bisco, Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June 20, 2017). The Plaintiff asserts that one defendant has attempted a similar tactic by sending a certified check to the proposed class representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D. Wis.); see also Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). The Plaintiff is obligated to move for class certification to protect the interests of the putative class, the Plaintiff contends. As the Motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when short motion to certify and stay should suffice until an amended motion is filed, the Plaintiff contends. The Plaintiff also asks to be appointed as class representative, and for the appointment of Ademi & O'Reilly, LLP, as class counsel.[CC] The Plaintiff is represented by: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com NCAA: Abe Mack Sues over Cameron Student-Athletes' Safety --------------------------------------------------------- ABE MACK IV, individually and on behalf of all others similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION the Defendant, Case No. 1:19-cv-00249-SEB-DLP (S.D. Ind. Jan. 25, 2019), seeks redress for injuries sustained a result of Defendant's reckless disregard for the health and safety of generations of Cameron University ("CU") student-athletes. According to the complaint, nearly 100,000 student-athletes sign up to compete in college football each year, and it's no surprise why. Football is America's sport and Plaintiff and a Class of football players were raised to live and breathe the game. During football season, there are entire days of the week that millions of Americans dedicate to watching the game. On game days, hundreds of thousands of fans fill stadium seats and even more watch around the world. Before each game, these players -- often mere teenagers -- are riled up and told to do whatever it takes to win and, when playing, are motivated to do whatever it takes to keep going. But up until 2010, NCAA kept players and the public in the dark about an epidemic that was slowly killing college athletes. During the course of a college football season, athletes absorb more than 1,000 impacts greater than 10 Gs (gravitational force) and, worse yet, the majority of football-related hits to the head exceed 20 Gs, with some approaching 100 Gs. To put this in perspective, if you drove your car into a wall at 25 miles per hour and weren't wearing a seatbelt, the force of you hitting the windshield would be around 100 Gs. Thus, each season these 18, 19, 20, and 21-year-old student-athletes are subjected to repeated car accidents. Over time, the repetitive and violent impacts to players' heads led to repeated concussions that severely increased their risks of long-term brain injuries, including memory loss, dementia, depression, Chronic Traumatic Encephalopathy ("CTE"), Parkinson's disease, and other related symptoms. Meaning, long after they played their last game, they are left with a series of neurological events that could slowly strangle their brains. For decades, NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries, and sub-concussive injuries (referred to as "traumatic brain injuries" or "TBIs") that resulted from playing college football, but recklessly disregarded this information to protect the very profitable business of "amateur" college football. While in school, CU football players were under Defendant's care. Unfortunately, Defendant did not care about the off-field consequences that would haunt students, like Plaintiff Geist, for the rest of their lives. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other CU football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former CU football players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, the lawsuit says. NCAA is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] Counsel for Plaintiff and the Putative Class: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Telephone: (713) 554 9099 Facsimile: (713) 554 9098 E-mail: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Rafey S. Balabanian, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589 6370 Facsimile: (312) 589 6378 E-mail: rbalabanian@edelson.com jedelson@edelson.com brichman@edelson.com NCAA: Calvin Lacy Sues over WIU Student-Athletes' Safety -------------------------------------------------------- CALVIN LACY, individually and on behalf of all others similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION the Defendant, Case No.: 1:19-cv-00263-RLY-DML (S.D. Ind. Jan. 25, 2019), seeks redress for injuries sustained a result of Defendant's reckless disregard for the health and safety of generations of Western Illinois University ("WIU") student-athletes. According to the complaint, nearly 100,000 student-athletes sign up to compete in college football each year, and it's no surprise why. Football is America's sport and Plaintiff and a Class of football players were raised to live and breathe the game. During football season, there are entire days of the week that millions of Americans dedicate to watching the game. On game days, hundreds of thousands of fans fill stadium seats and even more watch around the world. Before each game, these players -- often mere teenagers -- are riled up and told to do whatever it takes to win and, when playing, are motivated to do whatever it takes to keep going. But up until 2010, NCAA kept players and the public in the dark about an epidemic that was slowly killing college athletes. During the course of a college football season, athletes absorb more than 1,000 impacts greater than 10 Gs (gravitational force) and, worse yet, the majority of football-related hits to the head exceed 20 Gs, with some approaching 100 Gs. To put this in perspective, if you drove your car into a wall at 25 miles per hour and weren't wearing a seatbelt, the force of you hitting the windshield would be around 100 Gs. Thus, each season these 18, 19, 20, and 21-year-old student-athletes are subjected to repeated car accidents. Over time, the repetitive and violent impacts to players' heads led to repeated concussions that severely increased their risks of long-term brain injuries, including memory loss, dementia, depression, Chronic Traumatic Encephalopathy ("CTE"), Parkinson's disease, and other related symptoms. Meaning, long after they played their last game, they are left with a series of neurological events that could slowly strangle their brains. For decades, NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries, and sub-concussive injuries (referred to as "traumatic brain injuries" or "TBIs") that resulted from playing college football, but recklessly disregarded this information to protect the very profitable business of "amateur" college football. While in school, WIU football players were under Defendant's care. Unfortunately, Defendant did not care about the off-field consequences that would haunt students, like Plaintiff Geist, for the rest of their lives. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other WIU football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former WIU football players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, the lawsuit says. NCAA is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] Counsel for Plaintiff and the Putative Class: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Telephone: (713) 554 9099 Facsimile: (713) 554 9098 E-mail: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Rafey S. Balabanian, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589 6370 Facsimile: (312) 589 6378 E-mail: rbalabanian@edelson.com jedelson@edelson.com brichman@edelson.com NCAA: Disregards Knoxville Student-Athletes' Safety, Hearn Claims ----------------------------------------------------------------- QUENTIS HEARN, individually and on behalf of all others similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION and KNOXVILLE COLLEGE, the Defendants, Case No.: 1:19-cv-00334-JRS-DLP (S.D. Ind. Jan. 26, 2019), seeks redress for injuries sustained a result of Defendant's reckless disregard for the health and safety of generations of Knoxville College ("Knoxville") student-athletes. According to the complaint, nearly 100,000 student-athletes sign up to compete in college football each year, and it's no surprise why. Football is America's sport and Plaintiff and a Class of football players were raised to live and breathe the game. During football season, there are entire days of the week that millions of Americans dedicate to watching the game. On game days, hundreds of thousands of fans fill stadium seats and even more watch around the world. Before each game, these players -- often mere teenagers -- are riled up and told to do whatever it takes to win and, when playing, are motivated to do whatever it takes to keep going. But up until 2010, NCAA kept players and the public in the dark about an epidemic that was slowly killing college athletes. During the course of a college football season, athletes absorb more than 1,000 impacts greater than 10 Gs (gravitational force) and, worse yet, the majority of football-related hits to the head exceed 20 Gs, with some approaching 100 Gs. To put this in perspective, if you drove your car into a wall at 25 miles per hour and weren't wearing a seatbelt, the force of you hitting the windshield would be around 100 Gs. Thus, each season these 18, 19, 20, and 21-year-old student-athletes are subjected to repeated car accidents. Over time, the repetitive and violent impacts to players' heads led to repeated concussions that severely increased their risks of long-term brain injuries, including memory loss, dementia, depression, Chronic Traumatic Encephalopathy ("CTE"), Parkinson's disease, and other related symptoms. Meaning, long after they played their last game, they are left with a series of neurological events that could slowly strangle their brains. For decades, NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries, and sub-concussive injuries (referred to as "traumatic brain injuries" or "TBIs") that resulted from playing college football, but recklessly disregarded this information to protect the very profitable business of "amateur" college football. While in school, Knoxville football players were under Defendant's care. Unfortunately, Defendant did not care about the off-field consequences that would haunt students, like Plaintiff Geist, for the rest of their lives. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other Knoxville football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former Knoxville football players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, the lawsuit says. NCAA is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] Counsel for Plaintiff and the Putative Class: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Telephone: (713) 554 9099 Facsimile: (713) 554 9098 E-mail: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Rafey S. Balabanian, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589 6370 Facsimile: (312) 589 6378 E-mail: rbalabanian@edelson.com jedelson@edelson.com brichman@edelson.com NCAA: Disregards NCCU Student-Athletes' Safety, Hillie Says ------------------------------------------------------------ CALVIN HILLIE, individually and on behalf of all others similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION the Defendant, Case No.: 1:19-cv-00262-TWP-TAB (S.D. Ind. Jan. 25, 2019), seeks redress for injuries sustained a result of Defendant's reckless disregard for the health and safety of generations of North Carolina Central University ("NCCU") student-athletes. According to the complaint, nearly 100,000 student-athletes sign up to compete in college football each year, and it's no surprise why. Football is America's sport and Plaintiff and a Class of football players were raised to live and breathe the game. During football season, there are entire days of the week that millions of Americans dedicate to watching the game. On game days, hundreds of thousands of fans fill stadium seats and even more watch around the world. Before each game, these players -- often mere teenagers -- are riled up and told to do whatever it takes to win and, when playing, are motivated to do whatever it takes to keep going. But up until 2010, NCAA kept players and the public in the dark about an epidemic that was slowly killing college athletes. During the course of a college football season, athletes absorb more than 1,000 impacts greater than 10 Gs (gravitational force) and, worse yet, the majority of football-related hits to the head exceed 20 Gs, with some approaching 100 Gs. To put this in perspective, if you drove your car into a wall at 25 miles per hour and weren't wearing a seatbelt, the force of you hitting the windshield would be around 100 Gs. Thus, each season these 18, 19, 20, and 21-year-old student-athletes are subjected to repeated car accidents. Over time, the repetitive and violent impacts to players' heads led to repeated concussions that severely increased their risks of long-term brain injuries, including memory loss, dementia, depression, Chronic Traumatic Encephalopathy ("CTE"), Parkinson's disease, and other related symptoms. Meaning, long after they played their last game, they are left with a series of neurological events that could slowly strangle their brains. For decades, NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries, and sub-concussive injuries (referred to as "traumatic brain injuries" or "TBIs") that resulted from playing college football, but recklessly disregarded this information to protect the very profitable business of "amateur" college football. While in school, NCCU football players were under Defendant's care. Unfortunately, Defendant did not care about the off-field consequences that would haunt students, like Plaintiff Geist, for the rest of their lives. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other NCCU football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former NCCU football players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, the lawsuit says. NCAA is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] Counsel for Plaintiff and the Putative Class: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Telephone: (713) 554 9099 Facsimile: (713) 554 9098 E-mail: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Rafey S. Balabanian, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589 6370 Facsimile: (312) 589 6378 E-mail: rbalabanian@edelson.com jedelson@edelson.com brichman@edelson.com NCAA: Disregards Newberry Student-Athletes' Safety, King Claims --------------------------------------------------------------- JON KING, individually and on behalf of all others similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION the Defendant, Case No. 1:19-cv-00328-SEB-DLP (S.D. Ind. Jan. 26, 2019), seeks redress for injuries sustained a result of Defendant's reckless disregard for the health and safety of generations of Newberry College student-athletes. According to the complaint, nearly 100,000 student-athletes sign up to compete in college football each year, and it's no surprise why. Football is America's sport and Plaintiff and a Class of football players were raised to live and breathe the game. During football season, there are entire days of the week that millions of Americans dedicate to watching the game. On game days, hundreds of thousands of fans fill stadium seats and even more watch around the world. Before each game, these players -- often mere teenagers -- are riled up and told to do whatever it takes to win and, when playing, are motivated to do whatever it takes to keep going. But up until 2010, NCAA kept players and the public in the dark about an epidemic that was slowly killing college athletes. During the course of a college football season, athletes absorb more than 1,000 impacts greater than 10 Gs (gravitational force) and, worse yet, the majority of football-related hits to the head exceed 20 Gs, with some approaching 100 Gs. To put this in perspective, if you drove your car into a wall at 25 miles per hour and weren't wearing a seatbelt, the force of you hitting the windshield would be around 100 Gs. Thus, each season these 18, 19, 20, and 21-year-old student-athletes are subjected to repeated car accidents. Over time, the repetitive and violent impacts to players' heads led to repeated concussions that severely increased their risks of long-term brain injuries, including memory loss, dementia, depression, Chronic Traumatic Encephalopathy ("CTE"), Parkinson's disease, and other related symptoms. Meaning, long after they played their last game, they are left with a series of neurological events that could slowly strangle their brains. For decades, NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries, and sub-concussive injuries (referred to as "traumatic brain injuries" or "TBIs") that resulted from playing college football, but recklessly disregarded this information to protect the very profitable business of "amateur" college football. While in school, Newberry football players were under Defendant's care. Unfortunately, Defendant did not care about the off-field consequences that would haunt students, like Plaintiff Geist, for the rest of their lives. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other Newberry football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former Newberry football players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, the lawsuit says. NCAA is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] Counsel for Plaintiff and the Putative Class: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Telephone: (713) 554 9099 Facsimile: (713) 554 9098 E-mail: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Rafey S. Balabanian, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589 6370 Facsimile: (312) 589 6378 E-mail: rbalabanian@edelson.com jedelson@edelson.com brichman@edelson.com NCAA: Disregards UNA Student-Athletes' Safety, Green Claims ----------------------------------------------------------- ADRIAN GREEN, individually and on behalf of all others similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, the Defendant, Case No. 1:19-cv-00252-JPH-MJD (S.D. Ind. Jan. 25, 2019), seeks redress for injuries sustained a result of Defendant's reckless disregard for the health and safety of generations of University of North Alabama ("UNA") student-athletes. According to the complaint, nearly 100,000 student-athletes sign up to compete in college football each year, and it's no surprise why. Football is America's sport and Plaintiff and a Class of football players were raised to live and breathe the game. During football season, there are entire days of the week that millions of Americans dedicate to watching the game. On game days, hundreds of thousands of fans fill stadium seats and even more watch around the world. Before each game, these players -- often mere teenagers -- are riled up and told to do whatever it takes to win and, when playing, are motivated to do whatever it takes to keep going. But up until 2010, NCAA kept players and the public in the dark about an epidemic that was slowly killing college athletes. During the course of a college football season, athletes absorb more than 1,000 impacts greater than 10 Gs (gravitational force) and, worse yet, the majority of football-related hits to the head exceed 20 Gs, with some approaching 100 Gs. To put this in perspective, if you drove your car into a wall at twenty-five miles per hour and weren't wearing a seatbelt, the force of you hitting the windshield would be around 100 Gs. Thus, each season these 18, 19, 20, and 21-year-old student-athletes are subjected to repeated car accidents. Over time, the repetitive and violent impacts to players' heads led to repeated concussions that severely increased their risks of long-term brain injuries, including memory loss, dementia, depression, Chronic Traumatic Encephalopathy ("CTE"), Parkinson's disease, and other related symptoms. Meaning, long after they played their last game, they are left with a series of neurological events that could slowly strangle their brains. For decades, NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries, and sub-concussive injuries (referred to as "traumatic brain injuries" or "TBIs") that resulted from playing college football, but recklessly disregarded this information to protect the very profitable business of "amateur" college football. While in school, UNA football players were under Defendant's care. Unfortunately, Defendant did not care about the off-field consequences that would haunt students, like Plaintiff Geist, for the rest of their lives. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other UNA football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former UNA football players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, the lawsuit says. NCAA is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] Counsel for Plaintiff and the Putative Class: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Telephone: (713) 554 9099 Facsimile: (713) 554 9098 E-mail: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Rafey S. Balabanian, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589 6370 Facsimile: (312) 589 6378 123 Townsend Street, Suite 100 San Francisco, CA 94107 Telephone: 415.212.9300 Facsimile: 415 373 9435 E-mail: rbalabanian@edelson.com jedelson@edelson.com brichman@edelson.com NCAA: Disregards Wabash Student-Athletes' Safety, Rickenbach Says ----------------------------------------------------------------- EDWARD RICKENBACH, individually and on behalf of all others similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION and WABASH COLLEGE, the Defendants, Case No. 1:19-cv-00323-RLY-TAB (S.D. Ind. Jan. 26, 2019), seeks redress for injuries sustained a result of Defendant's reckless disregard for the health and safety of generations of Wabash College student-athletes. According to the complaint, nearly 100,000 student-athletes sign up to compete in college football each year, and it's no surprise why. Football is America's sport and Plaintiff and a Class of football players were raised to live and breathe the game. During football season, there are entire days of the week that millions of Americans dedicate to watching the game. On game days, hundreds of thousands of fans fill stadium seats and even more watch around the world. Before each game, these players -- often mere teenagers -- are riled up and told to do whatever it takes to win and, when playing, are motivated to do whatever it takes to keep going. But up until 2010, NCAA kept players and the public in the dark about an epidemic that was slowly killing college athletes. During the course of a college football season, athletes absorb more than 1,000 impacts greater than 10 Gs (gravitational force) and, worse yet, the majority of football-related hits to the head exceed 20 Gs, with some approaching 100 Gs. To put this in perspective, if you drove your car into a wall at 25 miles per hour and weren't wearing a seatbelt, the force of you hitting the windshield would be around 100 Gs. Thus, each season these 18, 19, 20, and 21-year-old student-athletes are subjected to repeated car accidents. Over time, the repetitive and violent impacts to players' heads led to repeated concussions that severely increased their risks of long-term brain injuries, including memory loss, dementia, depression, Chronic Traumatic Encephalopathy ("CTE"), Parkinson's disease, and other related symptoms. Meaning, long after they played their last game, they are left with a series of neurological events that could slowly strangle their brains. For decades, NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries, and sub-concussive injuries (referred to as "traumatic brain injuries" or "TBIs") that resulted from playing college football, but recklessly disregarded this information to protect the very profitable business of "amateur" college football. While in school, Wabash football players were under Defendant's care. Unfortunately, Defendant did not care about the off-field consequences that would haunt students for the rest of their lives. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other Wabash football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former Wabash football players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, the lawsuit says. NCAA is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] Counsel for Plaintiff and the Putative Class: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Telephone: (713) 554 9099 Facsimile: (713) 554 9098 E-mail: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Rafey S. Balabanian, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589 6370 Facsimile: (312) 589 6378 E-mail: rbalabanian@edelson.com jedelson@edelson.com brichman@edelson.com NCAA: Disregards WSSU Student-Athletes' Safety, Holloway Claims --------------------------------------------------------------- TERRILL HOLLOWAY, individually and on behalf of all others similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION the Defendant, Case No.: 1:19-cv-00341-JMS-MPB (S.D. Ind. Jan. 26, 2019), seeks redress for injuries sustained a result of Defendant's reckless disregard for the health and safety of generations of Winston-Salem State University ("WSSU") student-athletes. According to the complaint, nearly 100,000 student-athletes sign up to compete in college football each year, and it's no surprise why. Football is America's sport and Plaintiff and a Class of football players were raised to live and breathe the game. During football season, there are entire days of the week that millions of Americans dedicate to watching the game. On game days, hundreds of thousands of fans fill stadium seats and even more watch around the world. Before each game, these players -- often mere teenagers -- are riled up and told to do whatever it takes to win and, when playing, are motivated to do whatever it takes to keep going. But up until 2010, NCAA kept players and the public in the dark about an epidemic that was slowly killing college athletes. During the course of a college football season, athletes absorb more than 1,000 impacts greater than 10 Gs (gravitational force) and, worse yet, the majority of football-related hits to the head exceed 20 Gs, with some approaching 100 Gs. To put this in perspective, if you drove your car into a wall at 25 miles per hour and weren't wearing a seatbelt, the force of you hitting the windshield would be around 100 Gs. Thus, each season these 18, 19, 20, and 21-year-old student-athletes are subjected to repeated car accidents. Over time, the repetitive and violent impacts to players' heads led to repeated concussions that severely increased their risks of long-term brain injuries, including memory loss, dementia, depression, Chronic Traumatic Encephalopathy ("CTE"), Parkinson's disease, and other related symptoms. Meaning, long after they played their last game, they are left with a series of neurological events that could slowly strangle their brains. For decades, NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries, and sub-concussive injuries (referred to as "traumatic brain injuries" or "TBIs") that resulted from playing college football, but recklessly disregarded this information to protect the very profitable business of "amateur" college football. While in school, WSSU football players were under Defendant's care. Unfortunately, Defendant did not care about the off-field consequences that would haunt students, like Plaintiff Geist, for the rest of their lives. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other WSSU football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former WSSU football players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, the lawsuit says. NCAA is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] Counsel for Plaintiff and the Putative Class: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Telephone: (713) 554 9099 Facsimile: (713) 554 9098 E-mail: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Rafey S. Balabanian, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589 6370 Facsimile: (312) 589 6378 E-mail: rbalabanian@edelson.com jedelson@edelson.com brichman@edelson.com NCAA: Disregards Wyoming Student-Athletes' Safety, Geist Claims --------------------------------------------------------------- ROBERT GEIST, individually and on behalf of all others similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, the Defendant, Case No. 1:19-cv-00308-JMS-TAB (S.D. Ind. Jan. 25, 2019), seeks redress for injuries sustained a result of Defendant's reckless disregard for the health and safety of generations of University of Wyoming ("UW") student-athletes. According to the complaint, nearly 100,000 student-athletes sign up to compete in college football each year, and it's no surprise why. Football is America's sport and Plaintiff and a Class of football players were raised to live and breathe the game. During football season, there are entire days of the week that millions of Americans dedicate to watching the game. On game days, hundreds of thousands of fans fill stadium seats and even more watch around the world. Before each game, these players -- often mere teenagers -- are riled up and told to do whatever it takes to win and, when playing, are motivated to do whatever it takes to keep going. But up until 2010, NCAA kept players and the public in the dark about an epidemic that was slowly killing college athletes. During the course of a college football season, athletes absorb more than 1,000 impacts greater than 10 Gs (gravitational force) and, worse yet, the majority of football-related hits to the head exceed 20 Gs, with some approaching 100 Gs. To put this in perspective, if you drove your car into a wall at 25 miles per hour and weren't wearing a seatbelt, the force of you hitting the windshield would be around 100 Gs. Thus, each season these 18, 19, 20, and 21-year-old student-athletes are subjected to repeated car accidents. Over time, the repetitive and violent impacts to players' heads led to repeated concussions that severely increased their risks of long-term brain injuries, including memory loss, dementia, depression, Chronic Traumatic Encephalopathy ("CTE"), Parkinson's disease, and other related symptoms. Meaning, long after they played their last game, they are left with a series of neurological events that could slowly strangle their brains. For decades, NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries, and sub-concussive injuries (referred to as "traumatic brain injuries" or "TBIs") that resulted from playing college football, but recklessly disregarded this information to protect the very profitable business of "amateur" college football. While in school, UW football players were under Defendant's care. Unfortunately, Defendant did not care about the off-field consequences that would haunt students, like Plaintiff Geist, for the rest of their lives. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other UW football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former UW football players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, the lawsuit says. NCAA is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] Counsel for Plaintiff and the Putative Class: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Telephone: (713) 554 9099 Facsimile: (713) 554 9098 E-mail: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Rafey S. Balabanian, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589 6370 Facsimile: (312) 589 6378 123 Townsend Street, Suite 100 San Francisco, CA 94107 Telephone: 415.212.9300 Facsimile: 415 373 9435 E-mail: rbalabanian@edelson.com jedelson@edelson.com brichman@edelson.com NCAA: Houghton Sues over UNC Pembroke Student-Athletes' Safety -------------------------------------------------------------- CHRISTOPHER HOUGHTON, individually and on behalf of all others similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION the Defendant, Case No. 1:19-cv-00265-JRS-MJD (S.D. Ind. Jan. 25, 2019), seeks redress for injuries sustained a result of Defendant's reckless disregard for the health and safety of generations of University of North Carolina, Pembroke ("UNC Pembroke") student-athletes. According to the complaint, nearly 100,000 student-athletes sign up to compete in college football each year, and it's no surprise why. Football is America's sport and Plaintiff and a Class of football players were raised to live and breathe the game. During football season, there are entire days of the week that millions of Americans dedicate to watching the game. On game days, hundreds of thousands of fans fill stadium seats and even more watch around the world. Before each game, these players -- often mere teenagers -- are riled up and told to do whatever it takes to win and, when playing, are motivated to do whatever it takes to keep going. But up until 2010, NCAA kept players and the public in the dark about an epidemic that was slowly killing college athletes. During the course of a college football season, athletes absorb more than 1,000 impacts greater than 10 Gs (gravitational force) and, worse yet, the majority of football-related hits to the head exceed 20 Gs, with some approaching 100 Gs. To put this in perspective, if you drove your car into a wall at 25 miles per hour and weren't wearing a seatbelt, the force of you hitting the windshield would be around 100 Gs. Thus, each season these 18, 19, 20, and 21-year-old student-athletes are subjected to repeated car accidents. Over time, the repetitive and violent impacts to players' heads led to repeated concussions that severely increased their risks of long-term brain injuries, including memory loss, dementia, depression, Chronic Traumatic Encephalopathy ("CTE"), Parkinson's disease, and other related symptoms. Meaning, long after they played their last game, they are left with a series of neurological events that could slowly strangle their brains. For decades, NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries, and sub-concussive injuries (referred to as "traumatic brain injuries" or "TBIs") that resulted from playing college football, but recklessly disregarded this information to protect the very profitable business of "amateur" college football. While in school, UNC Pembroke football players were under Defendant's care. Unfortunately, Defendant did not care about the off-field consequences that would haunt students, like Plaintiff Geist, for the rest of their lives. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other UNC Pembroke football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former UNC Pembroke football players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, the lawsuit says. NCAA is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] Counsel for Plaintiff and the Putative Class: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Telephone: (713) 554 9099 Facsimile: (713) 554 9098 E-mail: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Rafey S. Balabanian, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589 6370 Facsimile: (312) 589 6378 E-mail: rbalabanian@edelson.com jedelson@edelson.com brichman@edelson.com NCAA: Kives Sues over Northeastern Student-Athletes' Safety ----------------------------------------------------------- STEPHEN KIVES, individually and on behalf of all others similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION and NORTHEASTERN UNIVERSITY, the Defendant, Case No. 1:19-cv-00339-JPH-DLP (S.D. Ind. Jan. 26, 2019), seeks redress for injuries sustained a result of Defendant's reckless disregard for the health and safety of generations of Northeastern University student-athletes. According to the complaint, nearly 100,000 student-athletes sign up to compete in college football each year, and it's no surprise why. Football is America's sport and Plaintiff and a Class of football players were raised to live and breathe the game. During football season, there are entire days of the week that millions of Americans dedicate to watching the game. On game days, hundreds of thousands of fans fill stadium seats and even more watch around the world. Before each game, these players -- often mere teenagers -- are riled up and told to do whatever it takes to win and, when playing, are motivated to do whatever it takes to keep going. But up until 2010, NCAA kept players and the public in the dark about an epidemic that was slowly killing college athletes. During the course of a college football season, athletes absorb more than 1,000 impacts greater than 10 Gs (gravitational force) and, worse yet, the majority of football-related hits to the head exceed 20 Gs, with some approaching 100 Gs. To put this in perspective, if you drove your car into a wall at twenty-five miles per hour and weren't wearing a seatbelt, the force of you hitting the windshield would be around 100 Gs. Thus, each season these 18, 19, 20, and 21-year-old student-athletes are subjected to repeated car accidents. Over time, the repetitive and violent impacts to players' heads led to repeated concussions that severely increased their risks of long-term brain injuries, including memory loss, dementia, depression, Chronic Traumatic Encephalopathy ("CTE"), Parkinson's disease, and other related symptoms. Meaning, long after they played their last game, they are left with a series of neurological events that could slowly strangle their brains. For decades, NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries, and sub-concussive injuries (referred to as "traumatic brain injuries" or "TBIs") that resulted from playing college football, but recklessly disregarded this information to protect the very profitable business of "amateur" college football. While in school, Northeastern football players were under Defendant's care. Unfortunately, Defendant did not care about the off-field consequences that would haunt students, like Plaintiff Geist, for the rest of their lives. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other Northeastern football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former Northeastern football players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, the lawsuit says. NCAA is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] Counsel for Plaintiff and the Putative Class: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Telephone: (713) 554 9099 Facsimile: (713) 554 9098 E-mail: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Rafey S. Balabanian, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589 6370 Facsimile: (312) 589 6378 E-mail: rbalabanian@edelson.com jedelson@edelson.com brichman@edelson.com NCAA: Lumpkin Sues over Millsaps College Student-Athletes' Safety ----------------------------------------------------------------- JED LUMPKIN, individually and on behalf of all others similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION the Defendant, Case No. 1:19-cv-00326-SEB-MJD (S.D. Ind. Jan. 26, 2019), seeks redress for injuries sustained a result of Defendant's reckless disregard for the health and safety of generations of Millsaps College student-athletes. According to the complaint, nearly 100,000 student-athletes sign up to compete in college football each year, and it's no surprise why. Football is America's sport and Plaintiff and a Class of football players were raised to live and breathe the game. During football season, there are entire days of the week that millions of Americans dedicate to watching the game. On game days, hundreds of thousands of fans fill stadium seats and even more watch around the world. Before each game, these players -- often mere teenagers -- are riled up and told to do whatever it takes to win and, when playing, are motivated to do whatever it takes to keep going. But up until 2010, NCAA kept players and the public in the dark about an epidemic that was slowly killing college athletes. During the course of a college football season, athletes absorb more than 1,000 impacts greater than 10 Gs (gravitational force) and, worse yet, the majority of football-related hits to the head exceed 20 Gs, with some approaching 100 Gs. To put this in perspective, if you drove your car into a wall at 25 miles per hour and weren't wearing a seatbelt, the force of you hitting the windshield would be around 100 Gs. Thus, each season these 18, 19, 20, and 21-year-old student-athletes are subjected to repeated car accidents. Over time, the repetitive and violent impacts to players' heads led to repeated concussions that severely increased their risks of long-term brain injuries, including memory loss, dementia, depression, Chronic Traumatic Encephalopathy ("CTE"), Parkinson's disease, and other related symptoms. Meaning, long after they played their last game, they are left with a series of neurological events that could slowly strangle their brains. For decades, NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries, and sub-concussive injuries (referred to as "traumatic brain injuries" or "TBIs") that resulted from playing college football, but recklessly disregarded this information to protect the very profitable business of "amateur" college football. While in school, Millsaps football players were under Defendant's care. Unfortunately, Defendant did not care about the off-field consequences that would haunt students, like Plaintiff Geist, for the rest of their lives. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other Millsaps football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former Millsaps football players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, the lawsuit says. NCAA is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] Counsel for Plaintiff and the Putative Class: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Telephone: (713) 554 9099 Facsimile: (713) 554 9098 E-mail: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Rafey S. Balabanian, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589 6370 Facsimile: (312) 589 6378 E-mail: rbalabanian@edelson.com jedelson@edelson.com brichman@edelson.com NCAA: McCann Sues over University of Akron Student-Athletes' Safety ------------------------------------------------------------------- ALONZO MCCANN, individually and on behalf of all others similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION the Defendant, Case No.: 1:19-cv-00254-JPH-MJD (S.D. Ind. Jan. 25, 2019), seeks redress for injuries sustained a result of Defendant's reckless disregard for the health and safety of generations of University of Akron student-athletes. According to the complaint, nearly 100,000 student-athletes sign up to compete in college football each year, and it's no surprise why. Football is America's sport and Plaintiff and a Class of football players were raised to live and breathe the game. During football season, there are entire days of the week that millions of Americans dedicate to watching the game. On game days, hundreds of thousands of fans fill stadium seats and even more watch around the world. Before each game, these players -- often mere teenagers -- are riled up and told to do whatever it takes to win and, when playing, are motivated to do whatever it takes to keep going. But up until 2010, NCAA kept players and the public in the dark about an epidemic that was slowly killing college athletes. During the course of a college football season, athletes absorb more than 1,000 impacts greater than 10 Gs (gravitational force) and, worse yet, the majority of football-related hits to the head exceed 20 Gs, with some approaching 100 Gs. To put this in perspective, if you drove your car into a wall at 25 miles per hour and weren't wearing a seatbelt, the force of you hitting the windshield would be around 100 Gs. Thus, each season these 18, 19, 20, and 21-year-old student-athletes are subjected to repeated car accidents. Over time, the repetitive and violent impacts to players' heads led to repeated concussions that severely increased their risks of long-term brain injuries, including memory loss, dementia, depression, Chronic Traumatic Encephalopathy ("CTE"), Parkinson's disease, and other related symptoms. Meaning, long after they played their last game, they are left with a series of neurological events that could slowly strangle their brains. For decades, NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries, and sub-concussive injuries (referred to as "traumatic brain injuries" or "TBIs") that resulted from playing college football, but recklessly disregarded this information to protect the very profitable business of "amateur" college football. While in school, Akron football players were under Defendant's care. Unfortunately, Defendant did not care about the off-field consequences that would haunt students, like Plaintiff Geist, for the rest of their lives. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other Akron football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former Akron football players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, the lawsuit says. NCAA is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] Counsel for Plaintiff and the Putative Class: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Telephone: (713) 554 9099 Facsimile: (713) 554 9098 E-mail: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Rafey S. Balabanian, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589 6370 Facsimile: (312) 589 6378 E-mail: rbalabanian@edelson.com jedelson@edelson.com brichman@edelson.com NCAA: Medley Sues over Hiram College Student-Athletes' Safety ------------------------------------------------------------- JASON RASMUSSEN, individually and on behalf of all others similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION and and TRUSTEES OF THE HAMLINE UNIVERSITY OF MINNESOTA, the Defendants, Case No.: 1:19-cv-00325-JRS-TAB (S.D. Ind. Jan. 26, 2019), seeks redress for injuries sustained a result of Defendant's reckless disregard for the health and safety of generations of Hamline University student-athletes. According to the complaint, nearly 100,000 student-athletes sign up to compete in college football each year, and it's no surprise why. Football is America's sport and Plaintiff and a Class of football players were raised to live and breathe the game. During football season, there are entire days of the week that millions of Americans dedicate to watching the game. On game days, hundreds of thousands of fans fill stadium seats and even more watch around the world. Before each game, these players -- often mere teenagers -- are riled up and told to do whatever it takes to win and, when playing, are motivated to do whatever it takes to keep going. But up until 2010, NCAA kept players and the public in the dark about an epidemic that was slowly killing college athletes. During the course of a college football season, athletes absorb more than 1,000 impacts greater than 10 Gs (gravitational force) and, worse yet, the majority of football-related hits to the head exceed 20 Gs, with some approaching 100 Gs. To put this in perspective, if you drove your car into a wall at 25 miles per hour and weren't wearing a seatbelt, the force of you hitting the windshield would be around 100 Gs. Thus, each season these 18, 19, 20, and 21-year-old student-athletes are subjected to repeated car accidents. Over time, the repetitive and violent impacts to players' heads led to repeated concussions that severely increased their risks of long-term brain injuries, including memory loss, dementia, depression, Chronic Traumatic Encephalopathy ("CTE"), Parkinson's disease, and other related symptoms. Meaning, long after they played their last game, they are left with a series of neurological events that could slowly strangle their brains. For decades, NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries, and sub-concussive injuries (referred to as "traumatic brain injuries" or "TBIs") that resulted from playing college football, but recklessly disregarded this information to protect the very profitable business of "amateur" college football. While in school, Hamline football players were under Defendant's care. Unfortunately, Defendant did not care about the off-field consequences that would haunt students, like Plaintiff Geist, for the rest of their lives. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other Hamline football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former Hamline football players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, the lawsuit says. NCAA is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] Counsel for Plaintiff and the Putative Class: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Telephone: (713) 554 9099 Facsimile: (713) 554 9098 E-mail: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Rafey S. Balabanian, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589 6370 Facsimile: (312) 589 6378 E-mail: rbalabanian@edelson.com jedelson@edelson.com brichman@edelson.com NCAA: Medley Sues over Hiram College Student-Athletes' Safety ------------------------------------------------------------- JACK MEDLEY, individually and on behalf of all others similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION and HIRAM COLLEGE, the Defendants, Case No.: 1:19-cv-00254-JPH-MJD (S.D. Ind. Jan. 25, 2019), seeks redress for injuries sustained a result of Defendant's reckless disregard for the health and safety of generations of Hiram College student-athletes. According to the complaint, nearly 100,000 student-athletes sign up to compete in college football each year, and it's no surprise why. Football is America's sport and Plaintiff and a Class of football players were raised to live and breathe the game. During football season, there are entire days of the week that millions of Americans dedicate to watching the game. On game days, hundreds of thousands of fans fill stadium seats and even more watch around the world. Before each game, these players -- often mere teenagers -- are riled up and told to do whatever it takes to win and, when playing, are motivated to do whatever it takes to keep going. But up until 2010, NCAA kept players and the public in the dark about an epidemic that was slowly killing college athletes. During the course of a college football season, athletes absorb more than 1,000 impacts greater than 10 Gs (gravitational force) and, worse yet, the majority of football-related hits to the head exceed 20 Gs, with some approaching 100 Gs. To put this in perspective, if you drove your car into a wall at 25 miles per hour and weren't wearing a seatbelt, the force of you hitting the windshield would be around 100 Gs. Thus, each season these 18, 19, 20, and 21-year-old student-athletes are subjected to repeated car accidents. Over time, the repetitive and violent impacts to players' heads led to repeated concussions that severely increased their risks of long-term brain injuries, including memory loss, dementia, depression, Chronic Traumatic Encephalopathy ("CTE"), Parkinson's disease, and other related symptoms. Meaning, long after they played their last game, they are left with a series of neurological events that could slowly strangle their brains. For decades, NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries, and sub-concussive injuries (referred to as "traumatic brain injuries" or "TBIs") that resulted from playing college football, but recklessly disregarded this information to protect the very profitable business of "amateur" college football. While in school, Hiram football players were under Defendant's care. Unfortunately, Defendant did not care about the off-field consequences that would haunt students, like Plaintiff Geist, for the rest of their lives. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other Hiram football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former Hiram football players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, the lawsuit says. NCAA is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] Counsel for Plaintiff and the Putative Class: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Telephone: (713) 554 9099 Facsimile: (713) 554 9098 E-mail: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Rafey S. Balabanian, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589 6370 Facsimile: (312) 589 6378 E-mail: rbalabanian@edelson.com jedelson@edelson.com brichman@edelson.com NCAA: Page Sues over Safety Issues of Elon Student-Athletes ----------------------------------------------------------- JOVON PAGE, individually and on behalf of all others similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION and ELON UNIVERSITY, the Defendant, Case No.: 1:19-cv-00332-JPH-TAB (S.D. Ind. Jan. 26, 2019), seeks redress for injuries sustained a result of Defendant's reckless disregard for the health and safety of generations of Elon University ("Elon") student-athletes. According to the complaint, nearly 100,000 student-athletes sign up to compete in college football each year, and it's no surprise why. Football is America's sport and Plaintiff and a Class of football players were raised to live and breathe the game. During football season, there are entire days of the week that millions of Americans dedicate to watching the game. On game days, hundreds of thousands of fans fill stadium seats and even more watch around the world. Before each game, these players -- often mere teenagers -- are riled up and told to do whatever it takes to win and, when playing, are motivated to do whatever it takes to keep going. But up until 2010, NCAA kept players and the public in the dark about an epidemic that was slowly killing college athletes. During the course of a college football season, athletes absorb more than 1,000 impacts greater than 10 Gs (gravitational force) and, worse yet, the majority of football-related hits to the head exceed 20 Gs, with some approaching 100 Gs. To put this in perspective, if you drove your car into a wall at 25 miles per hour and weren't wearing a seatbelt, the force of you hitting the windshield would be around 100 Gs. Thus, each season these 18, 19, 20, and 21-year-old student-athletes are subjected to repeated car accidents. Over time, the repetitive and violent impacts to players' heads led to repeated concussions that severely increased their risks of long-term brain injuries, including memory loss, dementia, depression, Chronic Traumatic Encephalopathy ("CTE"), Parkinson's disease, and other related symptoms. Meaning, long after they played their last game, they are left with a series of neurological events that could slowly strangle their brains. For decades, NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries, and sub-concussive injuries (referred to as "traumatic brain injuries" or "TBIs") that resulted from playing college football, but recklessly disregarded this information to protect the very profitable business of "amateur" college football. While in school, Elon football players were under Defendant's care. Unfortunately, Defendant did not care about the off-field consequences that would haunt students, like Plaintiff Geist, for the rest of their lives. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other Elon football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former Elon football players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, the lawsuit says. NCAA is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] Counsel for Plaintiff and the Putative Class: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Telephone: (713) 554 9099 Facsimile: (713) 554 9098 E-mail: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Rafey S. Balabanian, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589 6370 Facsimile: (312) 589 6378 E-mail: rbalabanian@edelson.com jedelson@edelson.com brichman@edelson.com NCAA: Pfeifer Sues over Cornell College Student-Athletes' Safety ---------------------------------------------------------------- PHIL PFEIFER, individually and on behalf of all others similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION and CORNELL COLLEGE, the Defendants, Case No. 1:19-cv-00333-TWP-MPB (S.D. Ind. Jan. 26, 2019), seeks redress for injuries sustained a result of Defendant's reckless disregard for the health and safety of generations of Cornell College student-athletes. According to the complaint, nearly 100,000 student-athletes sign up to compete in college football each year, and it's no surprise why. Football is America's sport and Plaintiff and a Class of football players were raised to live and breathe the game. During football season, there are entire days of the week that millions of Americans dedicate to watching the game. On game days, hundreds of thousands of fans fill stadium seats and even more watch around the world. Before each game, these players -- often mere teenagers -- are riled up and told to do whatever it takes to win and, when playing, are motivated to do whatever it takes to keep going. But up until 2010, NCAA kept players and the public in the dark about an epidemic that was slowly killing college athletes. During the course of a college football season, athletes absorb more than 1,000 impacts greater than 10 Gs (gravitational force) and, worse yet, the majority of football-related hits to the head exceed 20 Gs, with some approaching 100 Gs. To put this in perspective, if you drove your car into a wall at 25 miles per hour and weren't wearing a seatbelt, the force of you hitting the windshield would be around 100 Gs. Thus, each season these 18, 19, 20, and 21-year-old student-athletes are subjected to repeated car accidents. Over time, the repetitive and violent impacts to players' heads led to repeated concussions that severely increased their risks of long-term brain injuries, including memory loss, dementia, depression, Chronic Traumatic Encephalopathy ("CTE"), Parkinson's disease, and other related symptoms. Meaning, long after they played their last game, they are left with a series of neurological events that could slowly strangle their brains. For decades, NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries, and sub-concussive injuries (referred to as "traumatic brain injuries" or "TBIs") that resulted from playing college football, but recklessly disregarded this information to protect the very profitable business of "amateur" college football. While in school, Cornell football players were under Defendant's care. Unfortunately, Defendant did not care about the off-field consequences that would haunt students for the rest of their lives. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other Cornell football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former Cornell football players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, the lawsuit says. NCAA is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] Counsel for Plaintiff and the Putative Class: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Telephone: (713) 554 9099 Facsimile: (713) 554 9098 E-mail: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Rafey S. Balabanian, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589 6370 Facsimile: (312) 589 6378 E-mail: rbalabanian@edelson.com jedelson@edelson.com brichman@edelson.com NCAA: Pledger Sues over Virginia Union Student-Athletes' Safety --------------------------------------------------------------- JOSHUA PLEDGER, individually and on behalf of all others similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION and VIRGINIA UNION UNIVERSITY, the Defendants, Case No.: 1:19-cv-00331-JMS-MPB (S.D. Ind. Jan. 26, 2019), seeks redress for injuries sustained a result of Defendant's reckless disregard for the health and safety of generations of Virginia Union University student-athletes. According to the complaint, nearly 100,000 student-athletes sign up to compete in college football each year, and it's no surprise why. Football is America's sport and Plaintiff and a Class of football players were raised to live and breathe the game. During football season, there are entire days of the week that millions of Americans dedicate to watching the game. On game days, hundreds of thousands of fans fill stadium seats and even more watch around the world. Before each game, these players -- often mere teenagers -- are riled up and told to do whatever it takes to win and, when playing, are motivated to do whatever it takes to keep going. But up until 2010, NCAA kept players and the public in the dark about an epidemic that was slowly killing college athletes. During the course of a college football season, athletes absorb more than 1,000 impacts greater than 10 Gs (gravitational force) and, worse yet, the majority of football-related hits to the head exceed 20 Gs, with some approaching 100 Gs. To put this in perspective, if you drove your car into a wall at 25 miles per hour and weren't wearing a seatbelt, the force of you hitting the windshield would be around 100 Gs. Thus, each season these 18, 19, 20, and 21-year-old student-athletes are subjected to repeated car accidents. Over time, the repetitive and violent impacts to players' heads led to repeated concussions that severely increased their risks of long-term brain injuries, including memory loss, dementia, depression, Chronic Traumatic Encephalopathy ("CTE"), Parkinson's disease, and other related symptoms. Meaning, long after they played their last game, they are left with a series of neurological events that could slowly strangle their brains. For decades, NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries, and sub-concussive injuries (referred to as "traumatic brain injuries" or "TBIs") that resulted from playing college football, but recklessly disregarded this information to protect the very profitable business of "amateur" college football. While in school, VUU football players were under Defendant's care. Unfortunately, Defendant did not care about the off-field consequences that would haunt students for the rest of their lives. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other VUU football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former VUU football players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, the lawsuit says. NCAA is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] Counsel for Plaintiff and the Putative Class: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Telephone: (713) 554 9099 Facsimile: (713) 554 9098 E-mail: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Rafey S. Balabanian, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589 6370 Facsimile: (312) 589 6378 E-mail: rbalabanian@edelson.com jedelson@edelson.com brichman@edelson.com NCAA: Shoenfelt Sues over Gettysburg Student-Athletes' Safety ------------------------------------------------------------- JAMES SHOENFELT, individually and on behalf of all others similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION and GETTYSBURG COLLEGE, the Defendants, Case No. 1:19-cv-00324-JMS-MJD (S.D. Ind. Jan. 26, 2019), seeks redress for injuries sustained a result of Defendant's reckless disregard for the health and safety of generations of Gettysburg College ("GC") student-athletes. According to the complaint, nearly 100,000 student-athletes sign up to compete in college football each year, and it's no surprise why. Football is America's sport and Plaintiff and a Class of football players were raised to live and breathe the game. During football season, there are entire days of the week that millions of Americans dedicate to watching the game. On game days, hundreds of thousands of fans fill stadium seats and even more watch around the world. Before each game, these players -- often mere teenagers -- are riled up and told to do whatever it takes to win and, when playing, are motivated to do whatever it takes to keep going. But up until 2010, NCAA kept players and the public in the dark about an epidemic that was slowly killing college athletes. During the course of a college football season, athletes absorb more than 1,000 impacts greater than 10 Gs (gravitational force) and, worse yet, the majority of football-related hits to the head exceed 20 Gs, with some approaching 100 Gs. To put this in perspective, if you drove your car into a wall at 25 miles per hour and weren't wearing a seatbelt, the force of you hitting the windshield would be around 100 Gs. Thus, each season these 18, 19, 20, and 21-year-old student-athletes are subjected to repeated car accidents. Over time, the repetitive and violent impacts to players' heads led to repeated concussions that severely increased their risks of long-term brain injuries, including memory loss, dementia, depression, Chronic Traumatic Encephalopathy ("CTE"), Parkinson's disease, and other related symptoms. Meaning, long after they played their last game, they are left with a series of neurological events that could slowly strangle their brains. For decades, NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries, and sub-concussive injuries (referred to as "traumatic brain injuries" or "TBIs") that resulted from playing college football, but recklessly disregarded this information to protect the very profitable business of "amateur" college football. While in school, GC football players were under Defendant's care. Unfortunately, Defendant did not care about the off-field consequences that would haunt students for the rest of their lives. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other GC football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former GC football players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, the lawsuit says. NCAA is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] Counsel for Plaintiff and the Putative Class: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Telephone: (713) 554 9099 Facsimile: (713) 554 9098 E-mail: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Rafey S. Balabanian, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589 6370 Facsimile: (312) 589 6378 E-mail: rbalabanian@edelson.com jedelson@edelson.com brichman@edelson.com NCAA: Simons Sues over Safety of UIndy Student-Athletes ------------------------------------------------------- RENALDO SIMONS, individually and on behalf of all others similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION and UNIVERSITY OF INDIANAPOLIS, the Defendants, Case No. 1:19-cv-00335-JPH-TAB (S.D. Ind. Jan. 26, 2019), seeks redress for injuries sustained a result of Defendant's reckless disregard for the health and safety of generations of University of Indianapolis ("UIndy") student-athletes. According to the complaint, nearly 100,000 student-athletes sign up to compete in college football each year, and it's no surprise why. Football is America's sport and Plaintiff and a Class of football players were raised to live and breathe the game. During football season, there are entire days of the week that millions of Americans dedicate to watching the game. On game days, hundreds of thousands of fans fill stadium seats and even more watch around the world. Before each game, these players -- often mere teenagers -- are riled up and told to do whatever it takes to win and, when playing, are motivated to do whatever it takes to keep going. But up until 2010, NCAA kept players and the public in the dark about an epidemic that was slowly killing college athletes. During the course of a college football season, athletes absorb more than 1,000 impacts greater than 10 Gs (gravitational force) and, worse yet, the majority of football-related hits to the head exceed 20 Gs, with some approaching 100 Gs. To put this in perspective, if you drove your car into a wall at 25 miles per hour and weren't wearing a seatbelt, the force of you hitting the windshield would be around 100 Gs. Thus, each season these 18, 19, 20, and 21-year-old student-athletes are subjected to repeated car accidents. Over time, the repetitive and violent impacts to players' heads led to repeated concussions that severely increased their risks of long-term brain injuries, including memory loss, dementia, depression, Chronic Traumatic Encephalopathy ("CTE"), Parkinson's disease, and other related symptoms. Meaning, long after they played their last game, they are left with a series of neurological events that could slowly strangle their brains. For decades, NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries, and sub-concussive injuries (referred to as "traumatic brain injuries" or "TBIs") that resulted from playing college football, but recklessly disregarded this information to protect the very profitable business of "amateur" college football. While in school, UIndy football players were under Defendant's care. Unfortunately, Defendant did not care about the off-field consequences that would haunt students for the rest of their lives. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other UIndy football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former UIndy football players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, the lawsuit says. NCAA is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] Counsel for Plaintiff and the Putative Class: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Telephone: (713) 554 9099 Facsimile: (713) 554 9098 E-mail: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Rafey S. Balabanian, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589 6370 Facsimile: (312) 589 6378 E-mail: rbalabanian@edelson.com jedelson@edelson.com brichman@edelson.com NEW BALANCE: $535K Dashnaw Settlement Has Preliminary Approval -------------------------------------------------------------- The United States District Court for the Southern District of California issued an Order granting Plaintiffs' Second Amended Motion Seeking Preliminary Approval of the Amended Settlement Agreement in the case captioned SHEILA DASHNAW et al., Plaintiff, v. NEW BALANCE ATHLETICS, INC., Defendant. Case No. 17cv159-L(JLB). (S.D. Cal.). In this putative class action, the Plaintiffs allege consumer fraud relating to made in USA representations on certain New Balance athletic shoes in violation of California False Advertising Law, including violation of Section 17533.7 relating to the sale of goods produced abroad; Consumer Legal Remedies Act; California Unfair Competition Law; breach of express warranty; negligent misrepresentation; and unjust enrichment. The Court certifies for settlement purposes a Class comprised of: All persons who purchased any and all Made in USA Shoes from New Balance and/or its Authorized Retailers in California from December 27, 2012 up to and including January __, 2019 (Class Period). `Made in USA' Shoes means the New Balance's Made in USA labeled shoes purchased as new by Class Members during the Class Period. Excluded from the Class are: (a) New Balance's board members and employees, including its attorneys (b) any persons who purchased the Made in USA Shoes for the purposes of resale (c) distributors or re-sellers of Made in USA Shoes (d) the judge and magistrate judge and their immediate families presiding over this action (e) governmental entities; and (f) persons or entities who or which exclude themselves from the Class as provided in the notice. The Settlement provides for injunctive and monetary relief. The injunctive relief requires Defendant to more accurately disclose the domestic content of its shoes. The monetary relief portion of the Settlement provides for a fund of approximately $535,000 for payment of claims. Each Class member can recover a maximum of $10 per qualifying pair of shoes, up to $50 for 5 or more pairs or $100 per household. In the event funds remain after all valid claims are paid, or any claim payment checks remain encashed, the remainder will be distributed in equal parts to the Public Justice Foundation and Consumer Federation of California as cy pres recipients. On the other hand, if valid claims exceed the fund, the claim payments will be reduced pro rata. The $10 per pair of shoes represents Plaintiffs' maximum recovery based on their experts' opinion, if they prevail on their theory that Defendant charged a $10 premium based on the allegedly inaccurate Made in USA representation. In addition to disputing liability altogether, Defendant countered with its own expert opinions to dispute the $10 premium. In order to receive $10 per pair of shoes, approximately 5% of the Class members would have to submit valid claims. A more common, albeit very low, claim rate is between 10 and 15%. If 10 to 15% of Class members submit valid claims, they will recover between $3.62 and $5.43 per pair. When balanced against the cost and uncertainty associated with further litigation, the Court finds that the terms of the Settlement are within the range of possible approval as fair, reasonable and adequate under Federal Rule of Civil Procedure 23(e), and that there is a sufficient basis for notifying the Class of the Settlement. Accordingly, the Court grants preliminary approval of the Settlement. If the Settlement is ultimately approved, any Class members who did not choose to be excluded shall be bound by the Settlement, as well as all subsequent orders and judgment in this action. As provided in Paragraph 16 of the long form notice, they will release certain claims as fully stated in the Release and Waiver of Claims (Released Claims). In addition, they shall be preliminarily enjoined pending final approval of the Settlement from filing, commencing, prosecuting, maintaining, intervening in, participating in, conducting, or continuing litigation as class members, putative class members, or otherwise against New Balance or against any of its related parties or affiliates, and/or from receiving any benefits from, any lawsuit, administrative, or regulatory proceeding or order in any jurisdiction asserting any Released Claims. No later than May 13, 2019, Plaintiffs shall file their motion for final approval of the Settlement. In addition to the required and customary filings, the motion papers shall include (1) any communications received from any government official in response to notice under 28 U.S.C. Section 1715 and (2) the Claim Administrator's affidavit regarding compliance with its duties under the Settlement and this Order. The Claim Administrator's affidavit must include a report as outlined in the Finegan Declaration at Paragraphs 16 through 26, as well as copies of the long form and summary notice, press release, and internet ads used in the Notice dissemination process, the number of putative Class members submitting claims, objections or requests for exclusion including any untimely or disputed claims, objections and exclusion requests; the number of Class members to whom a payment will be made; calculation on the estimated payment per pair of Made in USA Shoes; and the estimated amount of the cy pres award, if any. The final approval hearing is set for June 10, 2019 at 10:30 a.m. in Courtroom 5B of the United States District Court for the Southern District of California, located at 221 West Broadway, San Diego, California 92101 (Hearing), to determine all necessary matters concerning the Settlement, including whether to grant final certification to this action as a class action for settlement purposes, whether to approve the proposed Settlement as fair, adequate, and reasonable and whether to grant the motion for attorney's fees and costs of Class Counsel and for enhancement payments to Plaintiffs. Any member of the Class may object to the Settlement (Objectors). Objectors may present evidence and/or file briefs, if any, relevant to the issues to be determined by the Court. Objectors are encouraged no later than May 6, 2019 to comply with the instructions in the long form notice. Any interested party may file and serve a reply to objections, which shall not exceed ten (10) pages in length, no later than May 30, 2019. If a member of the Class intends to speak at the Hearing, he or she is encouraged no later than June 3, 2019 to submit to the Settlement Administrator and file with the Court a Notice of Intent to Appear. Any motions for discovery filed by Class members pending final approval of the Settlement shall be directed to Magistrate Judge Jill L. Burkhardt, including any request by the parties to condition their response to a Confidentiality Agreement attached as Exhibit 10 the Settlement. A full-text copy of the District Court's January 24, 2018 Order is available at https://tinyurl.com/y8cf7tk6 from Leagle.com. Sheila Dashnaw, individually, and on behalf of all others similarly situated, William Meier, individually, and on behalf of all others similarly situated & Sherryl Jones, individually, and on behalf of all others similarly situated, Plaintiffs, represented by Jason Hoon Kim, O'Melveny and Myers, Todd M. Schneider -- tschneider@schneiderwallace.com -- Schneider Wallace Cottrell Brayton Konecky LLP & Aubry Wand -- awand@wandlawfirm.com -- The Wand Law Firm. New Balance Athletics, Inc., a corporation, Defendant, represented by Elizabeth E. Brenckman -- brenckman@fr.com -- Fish & Richardson P.C., pro hac vice, Garrett K. Sakimae -- sakimae@fr.com -- Fish & Richardson P.C., Laura B. Najemy -- najemy@fr.com -- Fish & Richardson P.C., pro hac vice, Mark Puzella, Fish & Richardson P.C., pro hac vice, Richard David Hosp -- hosp@fr.com -- Fish & Richardson P.C., pro hac vice & Sheryl K. Garko -- garko@fr.com -- Fish & Richardson P.C., pro hac vice. The Attorney General of the State of California, Miscellaneous Party, represented by Timothy Dean Lundgren NEW PROSPECT: Sued by Baker Over W-2 Workers' Unpaid Overtime ------------------------------------------------------------- TOMMY BAKER, individually and on behalf of all others similarly situated v. NEW PROSPECT COMPANY, Case No. 2:19-cv-00063-NBF (W.D. Pa., January 22, 2019), is brought on behalf of the Plaintiff and all other similarly situated workers, who NPC classified as W-2 employees and paid a day-rate with no overtime compensation, in violation of the Fair Labor Standards Act, the Ohio Minimum Fair Wage Standards Act, the Ohio Prompt Pay Act and the Pennsylvania Minimum Wage Act. NPC is an oil and natural gas staffing company operating throughout the United States, including in Pennsylvania and Ohio. To provide services to many of its customers, NPC contracts with certain companies to provide them with personnel to perform their necessary work.[BN] The Plaintiff is represented by: Andrew W. Dunlap, Esq. William R. Liles, Esq. JOSEPHSON DUNLAP LAW FIRM 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: (713) 352-1100 Facsimile: (713) 352-3300 E-mail: adunlap@mybackwages.com wliles@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH, P.L.L.C. 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: (713) 877-8788 Facsimile: (713) 877-8065 E-mail: rburch@brucknerburch.com - and - Joshua P. Geist, Esq. GOODRICH & GEIST, P.C. 3634 California Ave. Pittsburgh, PA 15212 Telephone: (412) 766-1455 Facsimile: (412) 766-0300 E-mail: josh@goodrichandgeist.com NOVARTIS AG: Sandoz and Fougera Continue to Defend Class Suits -------------------------------------------------------------- Novartis AG said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on January 29, 2019, for the fiscal year ended December 31, 2018, that Sandoz Inc. and Fougera Pharmaceuticals Inc. continue to defend multiple class action suits related to the price fixing of generic drugs. Since the third quarter of 2016, Sandoz Inc. and Fougera Pharmaceuticals Inc. (Fougera) have been sued alongside other generic pharmaceutical companies in more than 20 individual and putative class action complaints by direct and indirect purchasers and Attorneys General for 45 states, the District of Columbia and Puerto Rico. Plaintiffs claim that defendants, including Sandoz, engaged in price fixing and market allocation of generic drugs in the US market and seek damages and injunctive relief. The actions contain product-specific complaints as well as complaints alleging the existence of an over-arching industry conspiracy, and assert violations of federal and state antitrust laws as well as consumer protection laws. The cases have been consolidated for pretrial purposes in the U.S. District Court for the Eastern District of Pennsylvania (E.D. Pa.) and the claims are being vigorously contested. Novartis AG researches, develops, manufactures, and markets a range of healthcare products worldwide. The company's Innovative Medicines segment offers patented prescription medicines to enhance health outcomes for patients and health-care providers. Novartis AG has collaboration agreements with Xencor; QIAGEN N.V.; Surface Oncology; Intellia Therapeutics; Caribou Biosciences; Bristol-Myers Squibb; IBM Watson Health; Amgen; Allergan plc; Science 37, Inc.; Bill & Melinda Gates Foundation; PEAR Therapeutics; Pfizer; and Conatus Pharmaceuticals Inc. Novartis AG was founded in 1895 and is headquartered in Basel, Switzerland. OPTIMUM OUTCOMES: Ct. Stays Proceedings on Whalen's Bid to Certify ------------------------------------------------------------------- The Hon. William E. Duffin grants the Plaintiff's motion to stay further proceedings on the motion for class certification in the lawsuit captioned THOMAS WHALEN, Individually and on Behalf of All Others Similarly Situated v. OPTIMUM OUTCOMES INC., Case No. 2:19-cv-00132-WED (E.D. Wisc.). On January 24, 2019, the Plaintiff filed a class action complaint. At the same time, the Plaintiff filed what the Court commonly refers to as a "protective" motion for class certification. In this motion, the Plaintiff moved to certify the class described in the complaint but also moved the Court to stay further proceedings on that Motion. Judge Duffin notes that in Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), the court suggested that class‐action plaintiffs "move to certify the class at the same time that they file their complaint." "The pendency of that motion protects a putative class from attempts to buy off the named plaintiffs." However, because parties are generally unprepared to proceed with a motion for class certification at the beginning of a case, the Damasco court suggested that the parties "ask the district court to delay its ruling to provide time for additional discovery or investigation." The Plaintiff's motion to stay further proceedings on the motion for class certification is granted. The parties are relieved from the automatic briefing schedule set forth in Civil Local Rule 7(b) and (c). "Moreover, for administrative purposes, it is necessary that the Clerk terminate the plaintiff's motion for class certification. However, this motion will be regarded as pending to serve its protective purpose under Damasco," Judge Duffin rules. Plaintiff Thomas Whalen previously moved the Court to certify the class described in the complaint, and further asked that the Court both stay the motion for class certification and to grant him (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion.[CC] The Plaintiff is represented by: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com PENDRAGON NORTH: Chiu Appeals C.D. Calif. Ruling to Ninth Circuit ----------------------------------------------------------------- Plaintiff Paul Chiu filed an appeal from a court ruling in the lawsuit entitled Paul Chiu v. Pendragon North America, Inc., et al., Case No. 8:18-cv-01568-AG-DFM, in the U.S. District Court for the Central District of California, Santa Ana. The appellate case is captioned as Paul Chiu v. Pendragon North America, Inc., et al., Case No. 19-80009, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiff-Petitioner PAUL CHIU, an Individual; and all other members of the general public similarly situated, is represented by: Ronald Zambrano, Esq. CARLIN & BUCHSBAUM, LLP 555 E. Ocean Blvd. Long Beach, CA 90802 Telephone: (562) 432-8933 E-mail: ronald@CarlinBuchsbaum.com Defendant-Respondent PENDRAGON NORTH AMERICA, INC., a California Corporation, DBA Hornburg Jaguar Land Rover Santa Monica, AKA Hornburg Land Rover Hollywood, DBA Hornburg Los Angeles, DBA Jaguar Land Rover Mission Viejo, DBA Jaguar Land Rover Newport Beach, is represented by: Nathan Vern Okelberry, Esq. Todd Scherwin, Esq. FISHER & PHILLIPS, LLP 444 South Flower Street, Suite 1500 Los Angeles, CA 90071 Telephone: (213) 330-4500 E-mail: nokelberry@fisherphillips.com tscherwin@fisherphillips.com Defendant-Respondent INDIGO AUTO GROUP CALIFORNIA LLC, a Delaware limited liability company, DBA Land Rover Rancho Mirage, is represented by: Danielle Hultenius Moore, Esq. FISHER & PHILLIPS, LLP 4747 Executive Drive San Diego, CA 92121 Telephone: (858) 597-9600 E-mail: dmoore@fisherphillips.com Defendant-Respondent BRITISH MOTOR CARS DISTRIBUTORS, LTD., a California corporation, DBA Land Rover San Francisco, is represented by: Christian Scali, Esq. THE SCALI LAW FIRM 800 Wilshire Boulevard, Suite 400 Los Angeles, CA 90017 Telephone: (213) 239-5622 E-mail: cscali@scalilaw.com Defendants-Respondent AUTONATION, INC., a Delaware corporation, DBA Land Rover Encino, DBA Land Rover South Bay; ANAHEIM HILLS JAGUAR LAND ROVER, INC., a California corporation, DBA Jaguar Land Rover Anaheim Hills; RP AUTOMOTIVE, INC., a California corporation, DBA Penske Jaguar Land Rover Cerritos; TERRY YORK MOTOR CARS, LTD., a California Corporation, DBA Land Rover Encino; HOEHN MOTORS, INC., a California corporation, DBA Jaguar Land Rover Carlsbad; HOLMAN AUTOMOTIVE GROUP, INC., a New Jersey corporation, DBA Land Rover San Diego; LAND ROVER SAN JOSE, an unknown business entity; LAND ROVER SANTA BARBARA, an unknown business entity; LIVERMORE LAND ROVER JAGUAR, an unknown business entity; LAND ROVER JAGUAR VENTURA, INC., an unknown business entity; LAND ROVER REDWOOD CITY; and GILLIAN PENITENTI, an Individual, are represented by: Jade F. Jurdi, Esq. THE SCALI LAW FIRM 800 Wilshire Boulevard, Suite 400 Los Angeles, CA 90017 Telephone: (213) 892-9200 E-mail: jjurdi@scalilaw.com Defendants-Respondents SYMES MOTORS, INC., a California Corporation, DBA Range Rover Land Rover Pasadena; LAND ROVER MARIN, an unknown business entity; LAND ROVER ROCKLIN, an unknown business entity; HARON MOTOR SALES, INC., a California corporation, DBA Haron Jaguar Land Rover; LAND ROVER SACRAMENTO, an unknown business entity; NIELLO IMPORTS OF ROCKLIN, INC.; and NIELLO IMPORTS II, INC., are represented by: Robert Walter Thompson, Esq. Charles Scott Russell, Esq. CALLAHAN, THOMPSON, SHERMAN & CAUDILL, LLP 2601 Main Street, Suite 800 Irvine, CA 92614 Telephone: (949) 261-2872 E-mail: rthompson@ctsclaw.com crussell@ctsclaw.com PENSKE LOGISTICS: Rodriguez Settlement Has Final Court Approval --------------------------------------------------------------- The United States District Court for the Eastern District of California issued an Order granting Plaintiff's Unopposed Motion for Final Approval of Class Action Settlement in the case captioned CHARLES RODRIGUEZ, individually and on behalf of all similarly situated current and former employees, Plaintiff, v. PENSKE LOGISTICS, LLC, a Delaware Limited Liability company, and DOES 1 through 10, inclusive, Defendants. No. 2:14-cv-02061-KJM-CKD. (E.D. Cal.). Named plaintiff Charles Rodriguez worked for defendant Penske as a driver for nearly fifteen years, during which he worked as a non-exempt employee, paid on a by-the-mile or piece rate basis. Rodriguez asserts eight claims on behalf of the putative class: (1) failure to pay minimum wages, Cal. Lab. Code Section 510, 1194 (2) failure to provide paid ten-minute rest periods (3) failure to provide duty-free rest periods or compensation in lieu thereof (4) failure to provide duty-free meal periods or compensation in lieu thereof (5) knowing and intentional failure to provide itemized wage statements (6) failure to pay wages at termination (7) violations of the Unfair Competition Law and (8) violations of the Private Attorneys General Act (PAGA). Under Rule 23(a), before finally certifying a class, the court must be satisfied that: (1) the class is so numerous that joinder of all members is impracticable (numerosity) (2) there are questions of law or fact common to the class (commonality) (3) the claims or defenses of representative parties are typical of the claims or defenses of the class (typicality) and (4) the representative parties will fairly and adequately protect the interests of the class (adequacy of representation). Here, Rodriguez seeks final certification of the same class identified preliminarily: All California-based non-exempt truck driver employees who worked under a `piece rate' or `pay-by-the-mile' compensation policy from September 5, 2010 through to the earlier of (a) Preliminary Approval of the Court or (b) November 1, 2016. Numerosity In its order granting preliminary approval, the court found the numerosity requirement satisfied because the parties agreed the putative class had 723 potential plaintiffs. Although there is no absolute numerical threshold for numerosity, courts have approved classes as small as, for example, thirty-nine, sixty-four, and seventy-one plaintiffs. The class here is now 796, larger than initially estimated, and is large enough to satisfy the numerosity requirement. Commonality In preliminarily approving the class, the court found the commonality requirement satisfied because there were common class issues and questions. To satisfy the commonality requirement, plaintiff must do more than show that the class members have all suffered a violation of the same provision of law. Class claims must depend upon a common contention and must be of such a nature that it is capable of classwide resolution which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Here, the parties agree the class is subject to common compensation policies, and the court granted preliminary approval in this respect. The issues raised continue to be based on common facts, the assessment of which will resolve the class's California Labor Code and unfair competition claims. The court finds these common issues satisfy the commonality requirement. Adequacy of Representation To determine whether the named plaintiff does in fact protect the interests of the class, the court must explore two factors: (1) whether the named plaintiff and counsel have any conflicts of interest with the class as a whole, and (2) whether the named plaintiff and counsel vigorously pursued the action on behalf of the class. With respect to the first factor, nothing in the record now before the court suggests the representative plaintiff or counsel have any conflicts of interest with the other class members. Because plaintiff's class-wide claims appear to be completely aligned with those of the class, the court concludes there is no basis for finding a conflict. With respect to the second factor, although there are no fixed standards by which vigor can be assayed, considerations include competency of counsel and, in the context of a settlement-only class, an assessment of the rationale for not pursuing further litigation. In addition, a named plaintiff will be deemed adequate as long as the plaintiff has some basic knowledge of the lawsuit and is capable of making intelligent decisions based upon the plaintiff's lawyers' advice. Accordingly, the court finds the adequacy of representation requirement satisfied. Predominance The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. Although predominance is similar to Rule 23(a)'s commonality requirement, it is more demanding. To determine whether common questions predominate, the court must consider the relationship between the common and individual issues by looking at the questions that pre-exist any settlement. In the preliminary order, the court identified several aspects of the impact of AB 1513 that could potentially destroy the predominance of common issues. Its primary concern was the difference in the class period and the safe harbor period and whether those outside the safe harbor period should be compensated differently. Prelim. After hearing further explanation from plaintiff's counsel on the effect of AB 1513 on the class, the court was persuaded for preliminary approval purposes that the differences did not undermine the predominance of common issues. Thus, the calculation of individual damages was the only individualized inquiry that may arise, and the amount of damages is invariably an individual question and does not defeat class action treatment. Here, notwithstanding AB 1513, resolving the issues on a class basis promotes judicial economy. The predominance requirement is satisfied. Superiority In ultimately resolving Rule 23(b)(3)'s superiority inquiry, the court should consider class members' interests in pursuing separate actions individually, any litigation already in progress involving the same controversy, the desirability of concentrating the litigation in one forum, and potential difficulties in managing the class action, although the last two considerations are not relevant in the settlement context. As in the preliminary approval order, the court concludes here that if all 796 class members each brought suit, they would bring essentially the same claims for relatively small sums and likely would have to expend substantial resources to cover litigation costs. If defendant took advantage of the AB 1513 safe harbor provision for all California drivers, it would pay $775,272, which means each putative class member would receive an average payment of just over $1,000, an amount too small to incentivize individual litigation. Because, as explained below, the average claim value under the terms of the proposed settlement is $715.03, class members could have a chance at a greater recovery under AB 1513. Nevertheless, the court is persuaded that class treatment for this action is superior. Class members stand to receive more in this action than under the safe harbor, and the proposed settlement agreement offers an economic adjudication of the class members' claims that avoids duplication of efforts and resources. The proposed settlement agreement also offers guaranteed recovery to class members without additional complication or the uncertainty of further litigation.- In sum, the court finds plaintiff satisfies Rules 23(a) and 23(b), and final approval of the class is appropriate. THE SETTLEMENT AND FAIRNESS Legal Framework A court must balance a number of factors in determining whether a proposed settlement is in fact fair, adequate, and reasonable: (1) the strength of the plaintiffs' case; (2) the risk, expense, complexity, and likely duration of further litigation; (3) the risk of maintaining class action status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed and the stage of the proceedings; (6) the experience and views of counsel; (7) the presence of a governmental participant; and (8) the reaction of the class members to the proposed settlement. The Strength of Plaintiff's Case While defendant denies committing any illegal or wrongful acts, all parties agree further litigation would be protracted and expensive. This agreement that the litigation is not capable of speedy disposition suggests the strength of plaintiff's claims. That the parties reached the proposed settlement after exchanging information through discovery and several months of arm's-length negotiation further supports the strength of plaintiff's case on the issues of liability and class certification. Because the settlement achieves full and immediate compensation to class members who have a substantial likelihood of prevailing on the merits, this factor favors approving the settlement. The Risk of Further Litigation and Maintaining Class Status Here, the parties have reached a reasonable voluntary agreement that will provide class members with immediate substantial relief while avoiding delays in continued litigation, which could be prolonged and expensive. While this wage and hour class action is not particularly complex, the certain amount offered in settlement likely renders an equally or more favorable result than at trial, especially considering the newness and uncertainty surrounding AB 1513. This factor favors approval. The Amount Offered in Settlement Based on the parties' settlement agreement, the class administrator calculated the average claim value to be $715.03. The range of payments is estimated to be $1.11 to $2,556.25. The class members will be given their back wages, which plaintiff describes as the gold standard' for wage and hour class action settlements because it imposes almost no burden on the employee while distributing virtually all of the settlement fund. On balance, without blessing the gold standard characterization, the court finds this factor favors approval. The Extent of Discovery and the Stage of Proceedings Plaintiff's counsel represents that the parties engaged in extensive investigation and made repeated efforts to resolve the case. As explained above, while the record on this case is sparse and Rodriguez did not file any discovery-related motions, his counsel has explained that is due to the pendency and then passage of AB 1513. The court is satisfied the formal and informal discovery that was conducted was sufficient to inform plaintiff's assessment of the case, and that it enabled the parties to reach a meaningful settlement agreement. This factor favors approval. The Experience and Views of Counsel In considering the adequacy of the terms of settlement, the court is entitled to, and should, rely upon the judgment of experienced counsel for the parties. This reliance is warranted because parties represented by competent counsel are better positioned than courts to produce a settlement that fairly reflects each party's expected outcome in the litigation. Here, class counsel Aashish Desai is an experienced practitioner who has successfully litigated many similar cases. In addition to the numerous class actions counsel has litigated, he has also written extensively on California overtime class actions and has been awarded multiple honors for his work in class action litigation. Based on this experience, class counsel believe the settlement is fair and should be approved. The Reaction of the Class Members to Proposed Settlement The absence of a large number of objections to a proposed class action settlement raises a strong presumption that the terms of a proposed class settlement action are favorable to the class members. Where there are no objections, as here, the presumption is particularly strong. Here, while five class members out of 796, or just over 0.6%, opted out of the settlement, there were no objections to the proposed settlement agreement. This factor weighs in favor of approving the settlement. All of the relevant factors reviewed above weigh in favor of approval of settlement. The court proceeds to determine whether collusion has occurred. The Possibility of Collusion Where the parties negotiate a settlement agreement before formal class certification, as in the instant case, the court must evaluate the settlement for evidence of collusion with a higher level of scrutiny. A few such signs may include: (1) a disproportionate distribution of the settlement to counsel (2) a clear-sailing provision, under which the defendant agrees not to oppose an attorney's fee award up to a certain amount and (3) when the parties arrange for fees not paid to revert to defendant rather than to be added to the class fund. Here, class counsel seeks $265,000.00, or 31.2% of the GSA. In the preliminary order, the court noted because the proposed fee award is above the percentage-of-recovery benchmark rate of 25%, plaintiff would need to show why this upward adjustment is appropriate at this final approval stage. Prelim. Order at 18. As explained below, the record now before the court bolsters counsel's claim for a 31.2% share. Class counsel took the case on a contingency-fee basis without compensation and risked losing on the merits if the case proceeded to trial. Despite this, and as explained in more detail below, class counsel obtained a favorable settlement relatively early, all things considered, in the face of the uncertainty raised by AB 1513 and the safe harbor it provides for trucking companies . This factor favors finding no collusion. A full-text copy of the District Court's January 17, 2018 Order is available at https://tinyurl.com/yat8bkor from Leagle.com. Charles Rodriguez, Plaintiff, represented by Aashish Y. Desai -- aashish@desai-law.com -- Desai Law Firm, P.C. Penske Logistics, LLC, Defendant, represented by Adam C. Smedstad -- asmedstad@scopelitis.com -- Scopelitis Garvin Light Hanson & Feary, P.C., pro hac vice, Andrew J. Butcher -- abutcher@scopelitis.com -- Scopelitis, Garvin, Light, Hanson and Feary, PC, pro hac vice, Christopher Chad McNatt, Jr. -- cmcnatt@scopelitis.com -- Scopelitis Garvin Light Hanson & Feary, LLP, James H. Hanson -- jhanson@scopelitis.com -- Scopelitis Garvin Light Hanson & Feary, P.C., pro hac vice & Megan E. Ross -- mross@scopelitis.com -- Scopelitis Garvin Light Hanson & Feary. PORTER MCGUIRE: Court Denies Certification of FCDPA Class --------------------------------------------------------- The United States District Court for the District of Hawaii issued an Order granting Defendant's Motion to Deny Class Certification in the case captioned BENITA J. BROWN, ET AL., Plaintiffs, v. PORTER McGUIRE KIAKONA & CHOW, LLP, a Hawaii limited liability partnership, as an individual entity; THE ASSOCIATION OF APARTMENT OWNERS OF TERRAZZA/CORTBELLA/LAS/BRIAS/TIBURON, as an individual entity and on behalf of all others similarly situated; DOE DEFENDANTS 1-100, Defendants. Civil 17-00554 LEK-KSC. (D. Haw.). Before the Court is Defendant the Association of Apartment Owners of Terrazza/Cortebella/Las Brisas/Tiburon's (Terrazza AOAO) Motion to Deny Class Certification. The Third Amended Complaint asserts the following claims: a claim against all defendants (PMKC, the Terrazza AOAO, and the proposed defendant class) for a declaratory judgment that, during the relevant period, a homeowner association without a mortgage containing a power of sale could not use Chapter 667, Part I (Count I); a wrongful foreclosure claim against the Terrazza AOAO and the proposed defendant class, based on the improper use of Chapter 667, Part I (Count II); a Fair Debt Collections Practices Act (FDCPA),claim against all defendants (Count III); a Haw. Rev. Stat. Chapter 480 unfair or deceptive acts or practices (UDAP) claim against the Terrazza AOAO and the proposed defendant class (Count IV); and an improper foreclosure claim against the Terrazza AOAO and the proposed defendant class, based on the failure to obtain adequate prices for the properties in foreclosure (Count V). Fed. R. Civ. P. 23 states, in pertinent part: "(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:(1) the class is so numerous that joinder of all members is impracticable (2) there are questions of law or fact common to the class (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class and(4) the representative parties will fairly and adequately protect the interests of the class." Numerosity Brown argues numerosity is met as to both proposed classes because the members of the proposed Plaintiff Class were subject to 107 foreclosures and there are 38 members of the proposed AOAO Class. The proposed Plaintiff Class satisfies the numerosity requirement. The number of proposed AOAO Class members is very close to forty and, in light of the fact that there are no absolute limits for the numerosity requirement, this Court also finds that the proposed AOAO Class satisfies the numerosity requirement. Commonality and Typicality This district court has stated: "Commonality exists where class members' situations share a common issue of law or fact, and are sufficiently parallel to insure a vigorous and full presentation of all claims for relief." All of the claims against the proposed AOAO Class involve the issue of whether condominium associations could use the Chapter 667, Part I nonjudicial foreclosure process. However, that issue alone is not to satisfy the commonality and typicality analysis. The analysis of the claims against the proposed AOAO Class will require examination of the homeowners deeds and each AOAO's governing documents, such as the by-laws and the declaration of condominium property regime. Further, consideration of the claims by the proposed Plaintiff Class would involve the unique factual circumstances of each foreclosure, including the amount of the purchase price in the foreclosure sale and other circumstances relevant to the reasonableness of the sale process. For these reasons, Brown's claims do not have sufficient commonality with the claims of the other members of the proposed Plaintiff Class to satisfy Rule 23(a)(2), nor are Brown's claims typical of the claims of the other members of the proposed Plaintiff Class. Similarly, commonality and typicality are not present as to Brown's claims against the Terrazza AOAO and the claims against the other members of the proposed AOAO Class. Adequacy The Ninth Circuit has stated: "The adequacy [of representation] inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent." Depending on various aspects of each foreclosure, including, inter alia, the amount of the lien for unpaid condominium assessments, the foreclosure sale price, and the existence and amount of other encumbrances on the unit, the interests of the individual members of the proposed Plaintiff Class may vary greatly. Further, it appears that Brown and her husband used the Unit as their primary residence at one point. However, other members of the proposed Plaintiff Class may never have used their condominium unit as their primary residence. These differing interests have the potential to create serious conflicts of interest between Brown and the other members of the proposed Plaintiff Class. The same factors, as well as others, including unique provisions of the governing documents, create different levels of liability exposure for the individual members of the proposed AOAO Class, which have the potential to create serious conflicts of interest between the Terrazza AOAO and the other members of the proposed AOAO Class. This Court therefore concludes that Brown would not be an adequate representative of the proposed Plaintiff Class and the Terrazza AOAO would not be an adequate representative of the proposed AOAO Class. On the basis of the foregoing, the Terrazza AOAO's Motion to Deny Class Certification is granted. A full-text copy of the District Court's January 17, 2018 Order is available at https://tinyurl.com/y9zvv9jc from Leagle.com. Benita J. Brown, as an individual and on behalf of all others similarly situated, Plaintiff, represented by Chanelle M.C. Fujimoto, Imanaka Asato, LLC, Isam C. Khoury -- Ikhoury@ckslaw.com -- Cohelan Khoury & Singer, pro hac vice, James J. Hill -- jhill@ckslaw.com -- Cohelan Khoury & Singer, pro hac vice, Michael L. Iosua, Imanaka Asato, LLLC, Steven K.S. Chung, Imanaka Asato, LLLC, Timothy G. Blood -- tblood@bholaw.com -- Blood Hurst & O'Reardon, LLP, pro hac vice, Timothy D. Cohelan -- tcohelan@ckslaw.com -- Cohelan Khoury & Singer, pro hac vice & Margaret LeAnn Webster, Imanaka Asato LLLC. Porter McGuire Kiakona & Chow, LLP, a Hawai'i limited liability partnership, as an individual entity, Defendant, represented by Duane R. Miyashiro -- Dmiyashiro@cwlfirm.com -- Cox, Wootton, Lerner, Griffin & Hansen LLP & Jamie Christine S. Madriaga -- Jmadriaga@cwlfirm.com -- Cox, Wootton, Lerner, Griffin & Hansen LLP. The Association of Apartment Owners of Terrazza/Cortebella/Las Brisas/Tiburon, as an individual entity and on behalf of all others similarly situated, Defendant, represented by David R. Major -- DMajor@LegalHawaii.com -- Bays Lung Rose & Holma, Harvey J. Lung -- mHLung@LegalHawaii.com -- Bays Lung Rose & Holma & James G. Diehl -- JDiehl@LegalHawaii.com -- Bays Lung Rose and Holma. QUICKEN LOANS: Hyde Sues over Unsolicited Marketing Text Message ---------------------------------------------------------------- GAYLE HYDE, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, vs. QUICKEN LOANS INC., the Defendant, Case No. 0:19-cv-00196 (D. Minn., Jan. 27, 2019), seeks to recover damages, injunctive relief, and any other available legal or equitable remedies, resulting from the illegal actions of Defendant in negligently and/or intentionally contacting Plaintiff on her cellular telephone, in violation of the Telephone Consumer Protection Act, thereby invading Plaintiff's privacy. According to Quicken Loan's website, an individual can sign up for Quicken Loans Text Alerts by texting AMAZE to the short code 262-93. Sometime prior to November 2018, Ms. Hyde went onto QuickenLoans.com to compare rates using Quick Loans' Mortgage Calculator, a free service. At no time did Ms. Hyde text AMAZE to the short code 262-93, or consent to receive text messages in any other way. On or about November 26, 2018, at approximately 4:34 p.m., Quicken Loans sent Ms. Hyde a marketing text message to her cellular telephone ending in "3058", from the short code 262-93. Ms. Hyde had received several marketing text messages identical to the one above for the past two months. Each time that Plaintiff received this text in the past, she responded with "Stop." However, such requests went unheeded, as Ms. Hyde received another text message on November 26, 2018. Having no other option, on November 26, 2018, Ms. Hyde yet again responded to the text message with "Stop". Despite this clear revocation of consent -- if consent had existed in the first instance -- and Quicken Loans acknowledgment of the revocation, on December 4, 2018, at approximately 12:34 p.m., Quicken Loans sent Ms. Hyde another text message from its SMS short code soliciting their business, the lawsuit says. Quicken Loans is a mortgage lending company headquartered in the One Campus Martius building in the heart of the financial district of downtown Detroit, Michigan.[BN] Attorney for Plaintiff: Adam R. Strauss, Esq. TARSHISH CODY, PLC 6337 Penn Avenue South Minneapolis, MN 55423 Telephone: (952) 361-5556 Facsimile: (952) 361-5559 E-mail: ARS@ATTORNEYSINMN.COM - and - Abbas Kazerounian, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Avenue, Suite D1 Costs Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 E-mail: ak@kazlg.com RAPID TRANSIT: Court Issues Show Cause Order in Moreno ------------------------------------------------------ The United States District Court for the Northern District of California issued a Show Cause Order in the case captioned PAMELA MORENO, Plaintiff, v. SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT, Defendant. Case No. 17-cv-02911-JSC. (N.D. Cal.). Plaintiff's motion for final approval of the parties' class action settlement and motion for attorneys' fees came before the Court. The Court cannot grant the motion for final approval until Defendant verifies that it has provided the notice required by 28 U.S.C. Section 1715(b). The Court has issued multiple orders to this effect and Defendant agreed to provide the requisite notice to the California Attorney General's Office and United States Attorney's Office. Defendant, however, has not filed a statement indicating that it provided such notice and failed to appear at the hearing to respond to questions regarding the same. The Defendant is ordered to show cause as to (1) whether it in fact served the requisite entities with notice as ordered and the date it did so, and (2) why Defendant should not be ordered to pay Plaintiff's costs for appearing at the hearing. A full-text copy of the District Court's January 17, 2018 Order is available at https://tinyurl.com/yaoqksto from Leagle.com. Pamela Moreno, individually and on behalf of all others similarly situated, Plaintiff, represented by Rafey Sarkis Balabanian -- rbalabanian@edelson.com -- Edelson PC, Eve-Lynn J. Rapp -- erapp@edelson.com -- Edelson LLC, pro hac vice, John Aaron Lawson -- alawson@edelson.com -- Edelson PC, pro hac vice & Todd M. Logan -- tlogan@edelson.com -- Edelson PC. San Francisco Bay Area Rapid Transit District, a public entity, Defendant, represented by Gordon James Calhoun -- Gordon.Calhoun@lewisbrisbois.com -- Lewis Brisbois Bisgaard Smith LLP & Rene I. Gamboa -- Rene.Gamboa@lewisbrisbois.com -- Lewis Brisbois Bisgaard & Smith. RIO RANCHO, NM: Students Searches Suit vs Individuals Dismissed --------------------------------------------------------------- The United States District Court for the District of New Mexico issued an Order granting Individual Defendants' Motion to Dismiss Count II of Plaintiffs' Second Amended Class Action Complaint on the Basis of Qualified Immunity in the case captioned DENNIS WOODS, as guardian and next friend of T.W. and D.W. and on behalf of all others similarly situated, Plaintiffs, v. RIO RANCHO PUBLIC SCHOOLS, THE RIO RANCHO PUBLIC SCHOOLS BOARD OF EDUCATION, RICHARD BRUCE, MIKE BAKER, LINDA KITTS, B.J. HARTFORD, MIKE LAWTON, CHRIS BECK, and KIM FULTON Defendants. Case No. 17-CV-492-WJ-JHR. (D.N.M.) This matter comes before the Court on Individual Defendants' Motion to Dismiss Count II of Plaintiffs' Second Amended Class Action Complaint on the Basis of Qualified Immunity, which seeks to dismiss all Fourth Amendment claims brought in Count II against Defendants Linda Kitts, B.J. Hartford, Mike Lawton, and Kim Fulton. The salient facts are as follows: Dennis Woods, as the guardian and next friend of minor Plaintiffs T.W. and D.W., and on behalf of all others similarly situated, seeks to represent a class of no fewer than 23 middle school students alleging that they were all subjected to unreasonable searches under the Fourth Amendment. The Plaintiffs also challenge the constitutionality of an official policy of the Rio Rancho Public Schools alleging that the policy, which allows for searches and seizures in school under certain circumstances, is unconstitutional on its face and as applied, and the Plaintiffs seek to bring a cause of action under the New Mexico Tort Claims Act. The Plaintiffs allege that on April 16, 2015, approximately twenty-three Rio Rancho Middle School students were subjected to three separate searches: a search (1) in the cafeteria (2) in the girls' restroom and (3) in the principal's office. Search in the Cafeteria The Plaintiffs state that the students were in a classroom at Rio Rancho Middle School located in Rio Rancho, New Mexico. At one point a student reported to the teacher that someone allegedly stole $210 from her in the form of ten (10) twenty-dollar bills and one (1) ten-dollar bill. As a response, the teacher requested that a security guard come to the classroom. Defendant Mike Lawton, one of the school's security guards, responded to the request and discussed the situation with the student that reported the money stolen. Defendant Linda Kitts, the school's principal, and Defendant Chris Beck, an officer for the Sandoval County Sheriff's Department and the school resource officer for the school, arrived at the classroom shortly after Defendant Lawton responded. Defendant Kitts instructed the students to place their head on their desks, and stated that the person responsible could confess by raising her hand and return the money without consequence. No student raised their hand. Shortly after, Defendant Kitts instructed the students to walk to the cafeteria to be searched. From that point on, a search occurred on the students. Plaintiffs state that either Defendant Lawton, Defendant Kim Fulton, a security guard at the school, or Defendant B.J. Hartford, an assistant principal at the school, conducted the searches on the students. The searches included forcing the students to turn out their pockets, remove their shoes, show the bottoms of their feet, and subject themselves to a pat down search. in an attempt to find the money. Furthermore, Plaintiffs state that each student, including T.W. and D.W., had their backpacks searched and the contents of their backpacks removed. At this point, the money was not found on any of the students or inside of their backpacks. Search in the Restroom The Plaintiffs allege that shortly after the cafeteria search, Defendant Kitts decided to conduct additional, more invasive searches on certain members of the class. Defendant Fulton then confronted female students in the girls' restroom. Fulton then conducted additional searches of female students by ordering the female students to pull their shirts and bras away from their chests and shake their bras. The complaint states that the named plaintiffs refused to comply with Defendant Fulton's request. Search in the Principal's Office After searching the restroom, Defendant Fulton took two of the students, not T.W. or D.W., found at the restroom to Defendant Kitts' office. Defendant Kitts instructed Defendant Fulton to search the students' entire persons for the money. This search included Defendant Kitts asking at least some [students] to pull their bras and shirts away from their chests, in an apparent attempt to see if anything would fall out.The complaint does not identify the students found in the restroom. The Plaintiffs again state that this search did not reveal the money. STANDARD The Defendants have asserted the defense of qualified immunity, which shields government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Under 42 U.S.C. Section 1983, a person acting under color of state law who subjects, or causes to be subjected, any citizen of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. To state a claim under 42 U.S.C. Section 1983, Plaintiffs must allege sufficient facts to show the deprivation of a right secured by the Constitution and laws of the United States and must show that the deprivation was committed by a person acting under color of law. There is no respondeat superior liability under Section 1983 and a plaintiff must plead sufficient facts to show that each defendant, through his or her own individual actions, has violated the Constitution. Motion to Dismiss Based on Qualified Immunity The Fourth Amendment to the United States Constitution provides that, the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. In a public-school setting, what is reasonable depends on the context within which a search takes place and requires some modification of the level of suspicion of illicit activity needed to justify a search. Accordingly, the constitutionality of a student search depends on the reasonableness, under all the circumstances, of the search and involves a two-fold inquiry: (1) whether the school search was justified at its inception and (2) whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place. Under ordinary circumstances, a search of a student by a teacher or other school official will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Searches on students are reasonable in scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. The Court will address the search (1) in the cafeteria, (2) in the 7th grade girls' restroom, and (3) in the principal's office and their constitutionality in that order. First, as alleged in the second amended complaint, twenty-three students were in a classroom when one informed the teacher that money was stolen from her. When the money was not returned upon Defendant Kitts' request, the students were ordered to walk to the cafeteria where all the students were subjected to a search at which point all students were asked to turn out their pockets, remove their shoes, and show the bottoms of their feet. The students' backpacks were also searched, and the students were subjected to full-body pat downs. Nothing more is alleged in the complaint. These allegations, taken as true and in the light most favorable to Plaintiffs, do not sufficiently state a claim for an unreasonable search under the Fourth Amendment. The search was justified at its inception because Defendants possessed reasonable suspicion that one of the twenty-three students potentially possessed the alleged stolen money. Furthermore, Plaintiffs' conclusory statement that the students were subjected to a full-body pat down is insufficient to state a claim for a Fourth Amendment violation. Plaintiffs fail to specify which defendant allegedly patted-down which student, what the pat down consisted of and if any of the named defendants touched T.W. or D.W. Second, T.W. and D.W. were present in the restroom, however, at no point do Plaintiffs point to facts particular to T.W. or D.W that indicate a constitutional violation. In fact, T.W. and D.W. refused to consent to the search and the complaint does not state whether they were subjected to any search. As a result, Plaintiffs have failed to state a claim as to the search inside the restroom, as well. Accordingly, the Defendants' Motion and Memorandum to Dismiss Count II of the Plaintiffs' Second Amended Class Action Complaint on the Basis of Qualified Immunity is granted. A full-text copy of the District Court's January 17, 2018 Order is available at https://tinyurl.com/ybscck59 from Leagle.com. Dennis Woods, as guardian and next friend of T.W. and D.W. and on behalf of all others similarly situated, Plaintiff, represented by Mark Walsh Allen, Law Office of Mark W. Allen. Rio Rancho Public Schools, Rio Rancho Public Schools Board of Education, V. Sue Cleveland, Richard Bruce, Mike Baker, Linda Kitts, B.J. Hartford, Mike Lawton & Kim Fulton, Defendants, represented by Jerry A. Walz -- jerryawalz@walzandassociates.com -- Walz and Associates. ROADRUNNER INTERMODAL: Court OKs $9.25MM Singh Class Settlement --------------------------------------------------------------- The United States District Court for the Eastern District of California issued an Order granting Plaintiffs' Motion for Final Approval of a Class Action Settlement in the case captioned JABIR SINGH, et al., Plaintiffs, v. ROADRUNNER INTERMODAL SERVICES, LLC; CENTRAL CAL TRANSPORTATION, LLC; and MORGAN SOUTHERN, INC., Defendants. No. 1:15-cv-01497-DAD-BAM. (E.D. Cal.). FINAL CERTIFICATION OF CLASS ACTION The court conducted an examination of the class action factors in considering preliminary approval of the settlement and found certification warranted. Since no additional issues concerning whether certification is warranted have been raised, the court will not repeat its prior analysis here, but instead reaffirms it and finds final certification appropriate. The following class is therefore certified: all current and former California residents who worked for the defendants in the position of owner-operator and/or independent contractor truck driver at any time from February 9, 2011 through April 15, 2018. FINAL APPROVAL OF CLASS ACTION SETTLEMENT Class actions require the approval of the district court prior to settlement. This requires that: (i) notice be sent to all class members; (ii) the court hold a hearing and make a finding that the settlement is fair, reasonable, and adequate; (iii) the parties seeking approval file a statement identifying the settlement agreement; and (iv) class members be given an opportunity to object. The settlement agreement was previously filed on the court docket and class members have been given an opportunity to object thereto. The court now turns to the adequacy of notice and its review of the settlement following the final fairness hearing. Notice Adequate notice is critical to court approval of a class settlement under Rule 23(e). Any notice of the settlement sent to the class should alert class members of the opportunity to opt-out and individually pursue any state law remedies that might provide a better opportunity for recovery. It is important for class notice to include information concerning the attorneys' fees to be awarded from the settlement, because it serves as adequate notice of class counsel's interest in the settlement. The court previously reviewed the notice of class certification at the preliminary approval stage and found it to be satisfactory. No material changes were made to the notice of class certification when the court granted a modification to the order granting preliminary approval. Following the grant of preliminary approval, the settlement administrator mailed the notice of settlement to 896 class members on the class list. Seventy-nine notices, which were less than one percent of all the notices sent, were initially returned to the settlement administrator. After resending the notices to forwarding addresses and performing skip trace searches, only eighteen of the class notices remained undeliverable. The court concludes adequate notice was provided to the class here. The court accepts the reports of the settlement administrator and finds sufficient notice has been provided satisfying Federal Rule of Civil Procedure 23(e)(1). Final Fairness Hearing In assessing the fairness of a class action settlement, courts balance the following factors: (1) the strength of the plaintiffs' case (2) the risk, expense, complexity, and likely duration of further litigation (3) the risk of maintaining class action status throughout the trial (4) the amount offered in settlement (5) the extent of discovery completed and the stage of the proceedings (6) the experience and views of counsel (7) the presence of a governmental participant and (8) the reaction of the class members to the proposed settlement. Strength of Plaintiffs' Case When assessing the strength of plaintiffs' case in this context, the court does not reach any ultimate conclusions regarding the contested issues of fact and law that underlie the merits of this litigation. The court cannot reach such a conclusion, because evidence has not been fully presented. Instead, the court is to evaluate objectively the strengths and weaknesses inherent in the litigation and the impact of those considerations on the parties' decisions to reach these agreements. Here, class counsel acknowledges that recovery on the merits in this case is uncertain due to several issues of unsettled law. First, defendants may be able to assert various affirmative defenses to plaintiffs' claims, which may detract from plaintiffs' recovery. Second, plaintiffs state that it is unsettled whether the California Labor Code may be applied to work performed outside of the state, which could subject drivers to less favorable out-of-state laws. Third, plaintiffs note that defendants would likely argue that their piece-rate formula was nearly identical to a pay formula found to be lawful in another federal case involving a truck driver compensation system. Therefore, while plaintiffs potentially have meritorious claims, it is far from certain that they would have prevailed on those claims, given the unsettled nature of relevant case law. Risk, Expense, Complexity, and Likely Duration of Further Litigation, and Risk of Maintaining Class Action Status Through Trial There is a strong judicial policy that favors settlements, particularly where complex class action litigation is concerned. As a result, approval of settlement is preferable to lengthy and expensive litigation with uncertain results. Here, plaintiffs continue to voice their serious concerns regarding the impact of prolonged class action litigation on defendants' financial condition and, in turn, upon defendant's ability to pay the settlement. Moreover, class certification remains highly contested between the parties, and absent a settlement, would likely result in continued litigation, delays, and potential appeals. By contrast, the proposed settlement in this action provides compensation that is available now, without the additional time and risk of a decision that would likely be subject to a lengthy appeals process. The Amount Offered in Settlement To determine whether a settlement falls within the range of possible approval a court must focus on substantive fairness and adequacy, and consider plaintiffs' expected recovery balanced against the value of the settlement offer. Here, the proposed settlement is for a common fund of $9.25 million dollars. The common fund provides for: (1) $7,500 enhancement awards to each of the representative plaintiffs (2) payment of attorneys' fees to class counsel in the amount of one-third (1/3) of the common fund ($3,083,333.33) (3) class counsel's costs and expenses of approximately $76,149.55 (4) settlement administration fees to CPT Group, Inc. of $12,000; and (5) a PAGA payment to the California Labor and Work Force Development Agency not to exceed $75,000.00. After these deductions from the gross common fund, plaintiffs report that the net settlement amount will be an estimated amount of $5,868,517.01, which will be allocated to class members on a pro-rata basis. Because there are now 896 members in the class, the court calculates that, on average, each class member would receive an individual settlement payment of approximately $6,550. The court has previously assessed the risks faced by plaintiffs here, and has found the amount offered in settlement of these actions to weigh in favor of final approval. Extent of Discovery Completed The court must consider whether the process by which the parties arrived at their settlement is truly the product of arm's length bargaining, rather than collusion or fraud. A settlement is presumed fair if it follows sufficient discovery and genuine arms-length negotiation. Here, the parties engaged in significant and comprehensive written discovery and took nearly thirty depositions, including those of the plaintiffs, witnesses, defendants' current and former employees, and persons most knowledgeable in California and Georgia. Class counsel represents that this discovery took considerable time and effort to obtain and was critical to informing the settlement discussions. Based on these representations by counsel, the court is satisfied that the parties' negotiation constituted genuine, informed, arm's length bargaining. Experience and Views of Counsel Co-class counsel Daniel M. Kopfman and Brian S. Kabateck have filed declarations in support of the motion for preliminary approval, detailing extensive experiences in litigating wage and hour class actions, especially in the transportation context. Based on their experience and qualifications, investigation of the disputed factual and legal issues involved in this case, and evaluation of the risks of continued litigation, both attorneys Kopfman and Kabateck conclude that the settlement is fair and reasonable. Consideration of class counsel's experience and expressed opinions in this regard also weigh in favor of final approval of the settlement. Reaction of the Class to Proposed Settlement The absence of objections to a proposed class action settlement supports the conclusion that the settlement is fair, reasonable, and adequate. According to the declaration of Emilio Cofinco, case manager at CPT Group, Inc., no member of the class has filed an objection to the settlement pending before the court for final approval. Similarly, no class members appeared at the final fairness hearing to raise any objections to the settlement. Accordingly, consideration of this factor weighs significantly in favor of granting final approval. Subtle Signs of Collusion The court now turns to a review of whether any of the more subtle signs of collusion noted by the Ninth Circuit are present here. The award of attorneys' fees sought here one-third of the settlement fund is on the high end of amounts typically awarded in the Ninth Circuit. That said, the proposed attorneys' fees award is not disproportionate to the monetary distribution that the class will receive, and there is no reversionary clause in the settlement agreement. However, the settlement agreement does include a clear sailing provision, in which defendant has agreed not to object to, oppose, or otherwise contest class counsel's award of attorneys' fees or costs. Although the very existence of a clear sailing provision increases the likelihood that class counsel will have bargained away something of value to the class, the existence of a clear sailing provision is not necessarily fatal to final approval. Rather, when confronted with a clear sailing provision, the district court has a heightened duty to peer into the provision and scrutinize closely the relationship between attorneys' fees and benefit to the class. In the analysis of attorneys' fees undertaken below, the court finds that the requested fees are justified and do not betray the class's interests. On balance, the court is satisfied that the settlement is not the product of collusion, and therefore concludes that the settlement is fair, reasonable, and adequate. A full-text copy of the District Court's January 24, 2018 Order is available at https://tinyurl.com/y7yl8l7x from Leagle.com. Jabir Singh, Bany Lopez, Julio Vidrio, James Sliger, Derrick Lewis, Jerry Leininger, Kristopher Spring & Jerry Wood, Plaintiffs, represented by Andrew Butler Jones -- ajones@wagnerjones.com -- Wagner and Jones, Brian S. Kabateck -- bsk@kbklawyers.com -- Kabateck LLP, Cheryl Ann Kenner -- ck@kbklawyers.com -- Kabateck Brown Kellner LLP, Daniel M. Kopfman, Wagner and Jones, Shant Arthur Karnikian -- sk@kbklawyers.com -- Kabateck Brown Kellner LLP, Angela Elizabeth Martinez, Wagner, Jones, Kopfman & Artenian LLP, Lawrence Mark Artenian, Wagner, Jones, Kopfman & Artenian LLP & Nicholas John Paul Wagner, Wagner, Jones, Kopfman, & Artenia LLP. Roadrunner Intermodal Services, LLC, Central Cal Transportation, LLC & Morgan Southern, Inc., Defendants, represented by A. Jack Finklea -- JFINKLEA@SCOPELITIS.COM -- Scopelitis Garvin Light Hanson & Feary, P.C., pro hac vice, Adam C. Smedstad -- asmedstad@scopelitis.com -- Scopelitis, Garvin, Light, Hanson & Feary, Christopher Chad McNatt, Jr. -- CMCNATT@SCOPELITIS.COM -- Scopelitis Garvin Light Hanson & Feary, LLP, James H. Hanson -- JHANSON@SCOPELITIS.COM -- Scopelitis Garvin Light Hanson & Feary, P.C., pro hac vice, Megan E. Ross -- mross@scopelitis.com -- Scopelitis Garvin Light Hanson & Feary & Alaina Cathrine Hawley -- AHAWLEY@SCOPELITIS.COM -- Scopelitis, Garvin, Light, Hanson & Feary, P.C. SHAW ACADEMY: Davidson Sues Over Illegal Telemarketing Texts ------------------------------------------------------------ Deric Davidson, on behalf of himself and all others similarly situated v. Shaw Academy Limited, Case No. 5:19-cv-00146 (C.D. Cal., January 24, 2019), accuses the Defendant of sending unauthorized automated telemarketing text messages to the Plaintiff's cellular phone in violation of the Telephone Consumer Protection Act. Shaw Academy Limited is an Irish company headquartered in Dublin, Ireland. Shaw Academy is a business that provides a wide array of online courses. Shaw Academy regularly sends out automated, template-based telemarketing text messages to consumers advertising promotions and sales regarding Shaw Academy classes.[BN] The Plaintiff is represented by: Trinette G. Kent, Esq. LEMBERG LAW, LLC 1333 Stradella Road Los Angeles, CA 90077 Telephone: (480) 247-9644 Facsimile: (480) 717-4781 E-mail: tkent@lemberglaw.com SOLCO HEALTHCARE: Sued over Contaminated Generic Irbesartan ----------------------------------------------------------- BRIAN WINEINGER, on behalf of himself and all others similarly situated, the Plaintiff, vs. SOLCO HEALTHCARE U.S., LLC, PRINSTON PHARMACEUTICAL, INC., and WAL-MART STORES, INC., the Defendants, Case No. 3:19-cv-01070 (D. N.J. Jan. 24, 2019), contends that Solco and Prinston manufactured and distributed irbesartan and irbesartan-containing generic prescription medications contaminated with N-nitrosodiethylamine ("NDEA"), a carcinogenic and liver-damaging impurity. In turn, Defendant Walmart sold this contaminated generic medication to Plaintiff and other similarly-situated consumers. According to the complaint, originally marketed under the brand name Avapro, irbesartan is primarily used to control high blood pressure and to treat heart failure. Additionally, a combination of irbesartan and hydrochlorothiazide, originally marketed under the brand name Avalide, is primarily used to control high blood pressure. However, due to manufacturing defects originating from overseas laboratories in China, certain generic formulations have become contaminated with NDEA. The contaminated irbesartan medication was introduced into the United States market and sold to consumers, including Plaintiff, nationwide. NDEA is an organic chemical. The U.S. Food and Drug Administration ("FDA") reports that NDEA is found in "air pollution, and industrial processes, and has been classified as a probable human carcinogen as per international Agency for Research on Cancer (IARC) classification." NDEA is also classified as a Group 2A carcinogen (probable human carcinogen) by the World Health Organization. NDEA is acutely toxic when consumed orally. Solco and Prinston recall their irbesartan-containing medications due to the presence of an impurity, NDEA, resulting from manufacturing defects from an overseas supplier in China. On January 18, 2019, FDA announced a voluntary recall of "one (1) lot of Irbesartan and seven (7) lots of Irbesartan HCTZ Tablets to the consumer level due to the detection of trace amount of an unexpected impurity found in an active pharmaceutical ingredient (API) manufactured by Zhejiang Huahai Pharmaceuticals." The medications were found to "contain NDEA above the acceptable daily intake levels released by the FDA." The FDA's announcement notes that NDEA "has been classified as a probable human carcinogen as per International Agency for Research on Cancer (IARC) classification. To date, the following products are subject to the recall: -- IRBESARTAN 300MG 90CT TABLETS -- IRBESARTAN/HCTZ 300MG/12.5MG 30CT TABLETS -- IRBESARTAN/HCTZ 300MG/12.5MG 30 CT TABLETS -- IRBESARTAN/HCTZ 300MG/12.5MG 90CT TABLETS -- IRBESARTAN/HCTZ 300MG/12.5MG 90CT TABLETS -- IRBESARTAN/HCTZ 150MG/12.5MG 30CT TABLETS -- IRBESARTAN/HCTZ 150MG/12.5MG 90CT TABLETS -- IRBESARTAN/HCTZ 150MG/12.5MG 30CT TABLETS The Patients affected by the recall (i.e., Plaintiff and Class members) were instructed to "contact their pharmacist or physician who can advise them about an alternative treatment." The Defendants' irbesartan generic medications are not of equal quality and safety to brand-name drugs. Generic drugs reach the market when the brand-name version of the drug comes off patent, and other competitors are able to seek approval for, market, and sell bioequivalent versions of the brand-name drug. These generic equivalents are supposed to be of equal quality and equal safety. According to the FDA, "all generic drugs approved by the FDA have the same high quality, strength, purity, and stability as brand-name drugs." The Irbesartan-containing drugs manufactured and distributed by Defendants Solco and Prinston are supposed to be equivalent to the brand-name drugs. However, they are not because they suffer from a manufacturing defect which caused their generic irbesartan to become contaminated with NDEA, the lawsuit says.[BN] Attorneys for Plaintiff: Andrew J. Obergfell, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (212) 837-7150 Facsimile: (212) 989-9163 E-mail: aobergfell@bursor.com SORTIS FINANCIAL: Eisen Files FDCPA Suit in E.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Sortis Financial, Inc. The case is styled as Shaya Eisen, on behalf of himself and others similarly situated, Plaintiff v. Sortis Financial, Inc formerly known as: Clearspring Loan Services, Inc., Defendant, Case No. 1:19-cv-00507 (E.D. N.Y., January 25, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Practices Act. Sortis Financial, Inc. provides financial services. The Company offers mortgage loan, business lending, banking, and debt collection services. Sortis Financial serves customers in the United States.[BN] The Plaintiff is presented by: Adam Jon Fishbein, Esq. Adam J. Fishbein, P.C. 735 Central Avenue Woodmere, NY 11598 Tel: (516) 668-6945 Email: fishbeinadamj@gmail.com SOVEREIGN INDUSTRIES: Arce Suit Seeks to Recover Wages Under FLSA ----------------------------------------------------------------- Carlos Arce, Jorge Luis Acuna, Cristian Jarquin, Miguel Acaro, Rafael Ramirez, and Cosme Terrero Santana, on behalf of themselves and all other persons similarly situated v. Sovereign Industries Group Inc. and John Does #1-10, Case No. 1:19-cv-00489 (E.D.N.Y., January 24, 2019), alleges that pursuant to the Fair Labor Standards Act, the Plaintiffs are entitled to: (i) unpaid wages from the Defendants for overtime work for which they did not receive overtime premium pay as required by law; and (ii) liquidated damages because the Defendants' violations lacked a good faith basis. Sovereign Industries Group Inc. is a New York corporation with a principal place of business in Flushing, New York. The Doe Defendants represent the owners, officers, directors, members, and/or managing agents of Sovereign, whose identities are unknown at this time. The Defendants owned and operated a construction company in Queens. The Plaintiffs worked on construction projects in Manhattan and Queens for the Defendants.[BN] The Plaintiffs are represented by: David Stein, Esq. SAMUEL & STEIN 38 West 32nd Street, Suite 1110 New York, NY 10001 Telephone: (212) 563-9884 E-mail: dstein@samuelandstein.com STEEG LAW: 5th Cir. Affirms Decertification in FDCPA Suits ---------------------------------------------------------- The United States Court of Appeals, Fifth Circuit, issued an Opinion affirming the District Court’s judgment granting Defendant's Motion for Summary Judgment in the appeals cases captioned NICOLE REYES, individually and as Representative of two classes, the Fair Debt Collection Practices Act class and the Louisiana usurious class, Plaintiff-Appellant, v. STEEG LAW, L.L.C.; MARGARET V. GLASS, Defendants-Appellees. No. 17-30849. (5th Cir.). The plaintiff appeals from the district court's grant of summary judgment to the defendant law firm and decertifying a class of plaintiffs under the Fair Debt Collection Practices Act. Nicole Reyes filed a class action lawsuit against Steeg Law and one of its associates, Margaret Glass. She alleged repeated violations of the Fair Debt Collection Practices Act (FDCPA). Reyes alleges that the letters Steeg Law sent to her and others who belong to condominium associations represented by Steeg Law constitute facial violations of the FDCPA. That is because Steeg Law's standard form letter demands payment within seven days, rather than the thirty days the Act provides. Her primary argument is that the defendant is a debt collector for the purposes of the Fair Debt Collection Practices Act. Summary judgment is appropriate if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. A material fact is one that might affect the outcome of the suit under the governing law. A dispute regarding a material fact is genuine when the evidence is such that a reasonable jury could return a verdict for the nonmoving party. The FDCPA imposes civil liability on debt collectors for certain prohibited debt collection practices. It regulates interactions between a debtor and a debt collector, the latter being defined as any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Attorneys qualify as debt collectors for purposes of the FDCPA when they regularly engage in consumer debt collection, including but not limited to litigation on behalf of a creditor client. During the three years before Reyes filed her complaint, less than 1.3% of Steeg Law's overall revenue was attributable to fees accrued through the representation of condominium associations in perfecting and enforcing liens and recovering delinquent balances. During that same period, all of the work that Steeg Law attorneys undertook for its condominium association clients constituted less than 1.5% of the firm's total billable hours. Even adopting an expansive definition of debt collection activity, that activity constituted less than 3.5% of that 1.5%. Neither this court's precedent nor common sense compel a determination that these circumstances constitute regularly engaging in debt collection activity. The district court did not err in holding that Steeg Law is not a debt collector as defined by the Act. A full-text copy of the Fifth Circuit's January 17, 2018 Opinion is available at https://tinyurl.com/ybj88keh from Leagle.com. Judy Lynn Burnthorn -- jburnthorn@deutschkerrigan.com -- for Defendant-Appellee. William Everard Wright, Jr. -- wwright@wrightlaw.net -- for Defendant-Appellee. Todd Gregory Crawford, for Plaintiff-Appellant. John Steven Garner, for Plaintiff-Appellant. Matthew Taylor Biggers, for Defendant-Appellee. Andrew J. Baer -- abaer@deutschkerrigan.com -- for Defendant-Appellee. TRACKIN CO: Meza Files Class Action in Calif. Super. Ct. -------------------------------------------------------- A class action lawsuit has been filed against Trackin, Co. The case is styled as Adina Meza, an individual, on behalf of herself and others similarly situated, Plaintiff v. Trackin, Co. and Does 1 thru 50, Defendants, Case No. CGC19573185 (Cal. Super. Ct., San Francisco Cty., January 25, 2019). Trackin, Co. offers a range of vehicle tracking devices for personal and business use.[BN] The Plaintiff is represented by: Eric B. Kingsley, Esq. 16133 Ventura Boulevard, Suite 1200 Encino, CA 91436 UXIN LIMITED: Lei Liang Sues over Stock Price Drop -------------------------------------------------- LEI LIANG, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, vs. UXIN LIMITED, KUN DAI, ZHEN ZENG, RONG LU, JULIAN CHENG, DOU SHEN, HAINAN TAN, MORGAN STANLEY & CO. INTERNATIONAL PLC, GOLDMAN SACHS (ASIA) L.L.C., J.P. MORGAN SECURITIES LLC, CHINA INTERNATIONAL CAPITAL CORPORATION HONG KONG SECURITIES LIMITED, and CHINA RENAISSANCE SECURITIES (HONG KONG) LIMITED, the Defendants, Index No. 650509/2019 (N.Y. Sup. Ct., Jan. 25, 2019), is a federal securities class action on behalf of persons and/or entities that purchased or otherwise acquired Uxin American depositary shares pursuant or traceable to the Company's false and/or misleading Registration Statement and Prospectus issued in connection with the Company's June 27, 2018 initial public offering, who were damaged thereby. According to the complaint, on June 28, 2018, the Company filed its prospectus for its IPO with the SEC, which forms part of the Registration Statement. The Company sold 25,000,000 ADSs at a price of $9.00 per share in its IPO. Each ADS represents three shares of Class A common stock. The Company received proceeds of approximately $205.1 million from the IPO, net of underwriting discounts and commissions. The proceeds from the IPO were purportedly to be used to improve the Company's transaction service capabilities, research and development, and general corporate purposes. On November 20, 2018, Uxin reported that the transaction volume of its 2B business had declined 8.5% year-over-year and the gross merchandise value ("GMV") had declined 14.8% year-over-year due to the Company's decision to stop providing services such as inspections for its customers. Following this news, Uxin's share price fell $4.50 per share, or approximately 50%, to close at $4.50 on November 20, 2018. This constituted a decline of 50% from the IPO price of $9.00 per share. The Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, the Registration Statement was materially false and misleading and omitted to state that the Company was likely to stop providing complementary services such as inspections to its customers; that, instead, the Company would connect consumers to dealers who would provide such complementary services; that, as a result, the Company's 2B business would be materially impacted; and that, as a result of the foregoing, Defendants' statements in the Registration Statement regarding Uxin's business, operations, and prospects, were materially false and/or misleading, the lawsuit says. Uxin is a used car e-commerce platform in China. The Company has two segments: Uxin Auction (or 2B business) sells used cars to dealers, and Uxin Used Car (or 2C business) sells used cars to consumers.[BN] Counsel for Plaintiff: Matthew M. Guiney, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 270 Madison Avenue New York, NY 10016 Telephone: 212 545-4600 Facsimile: 212 686-0114 E-mail: guiney@whafh.com WAGNER & WAGNER: Underpays Salespersons, Dela Cruz Suit Says ------------------------------------------------------------ JEAN DELA CRUZ, individually and on behalf of all others similarly situated, Plaintiff v. WAGNER & WAGNER AUTO SALES, INC.; MCGOVERN AUTO GROUP CORP SERVICES, INC.; MARK W. WAGNER; RONALD W. WAGNER; and MATT MCGOVERN, Defendants, Case No. 19-0130E (Mass. Cmmw., Suffolk Cty., Jan. 14, 2019) is an action against the Defendants' failure to pay the Plaintiff and the class overtime compensation for hours worked in excess of 40 hours per week. The Plaintiff Dela Cruz was employed by the Defendants as salesperson. Wagner & Wagner Auto Sales, Inc., doing business as Wagner Motor Sales, operates as an automobile dealer. The Company engages in the retail sale of new and used automobiles, as well as provides automobile financing, auto parts, repair, and maintenance services. Wagner Motor Sales serves clients in the United States. [BN] The Plaintiff is represented by: Stephanie C. Ozahowski, Esq. Raven Moeslinger, Esq. Nicholas F. Ortiz, Esq. LAW OFFICE OF NICHOLAS F. ORTIZ, P.C. 99 High Street, Suite 304 Boston, MA 02110 Telephone: (617) 338-9400 E-mail: sco@mass-legal.com rm@mass-legal.com nfo@mass-legal.com WELBILT INC: Faces Borel-Donohue Securities Suit in Florida ----------------------------------------------------------- CHRISTOPH BOREL-DONOHUE, Individually and on Behalf of All Others Similarly Situated v. WELBILT, INC., HUBERTUS M. MUEHLHAEUSER, JOHN O. STEWART and HARESH SHAH, Case No. 8:19-cv-00191 (M.D. Fla., January 24, 2019), alleges that throughout the Class Period, the Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies, in violation of securities laws. Specifically, the Defendants made false and misleading statements and/or failed to disclose that: (i) Welbilt's internal financial reporting controls were lacking and ineffective; (ii) Welbilt was incorrectly recording the tax basis, as well as amortization of intangible assets, of foreign subsidiaries; (iii) as a result of the conduct, Welbilt's previous financial statements could not be relied upon; and (iv) as a result, the Company's public statements were materially false and misleading at all relevant times. Founded in 1902, Welbilt is a Delaware corporation with its principal executive offices located in New Port Richey, Florida. The Individual Defendants are directors and officers of the Company. Welbilt designs, manufactures, and supplies foodservice equipment for the global foodservice industry. Welbilt was formerly known as "Manitowoc Foodservice, Inc." and changed its name to "Welbilt, Inc." in February 2017. Welbilt operates in 38 locations in 12 countries serving customers in 100 countries around the globe.[BN] The Plaintiff is represented by: James L. Davidson, Esq. Alexander D. Kruzyk, Esq. GREENWALD DAVIDSON RADBIL PLLC 5550 Glades Road, Suite 500 Boca Raton, FL 33486 Telephone: (561) 826-5477 Facsimile: (561) 961-5684 E-mail: jdavidson@gdrlawfirm.com akruzyk@gdrlawfirm.com - and - Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. Jonathan Lindenfeld, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com jlindenfeld@pomlaw.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP 10 South La Salle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 E-mail: pdahlstrom@pomlaw.com - and - Peretz Bronstein, Esq. BRONSTEIN, GEWIRTZ & GROSSMAN, LLC 60 East 42nd Street, Suite 4600 New York, NY 10165 Telephone: (212) 697-6484 E-mail: peretz@bgandg.com YANGTZE RIVER: Rosen Law Firm Files Class Action Lawsuit -------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, disclosed it has filed a class action lawsuit on behalf of purchasers of the securities of Yangtze River Port and Logistics Limited (NASDAQ: YRIV) from February 2, 2016 through December 5, 2018, inclusive (the "Class Period"). The lawsuit seeks to recover damages for Yangtze River investors under the federal securities laws. To join the Yangtze River class action, go to https://www.rosenlegal.com/cases-1476.html or call Phillip Kim, Esq. or Zachary Halper, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or zhalper@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF. According to the lawsuit, defendants made false and/or misleading statements and/or failed to disclose that: (1) Yangtze's purported lease of the Wuhan Yangtze River Newport Logistics Center, the company's main asset, was a fabrication; (2) Yangtze's only operating subsidiary, Wuhan Yangtze River Newport Logistics Co., Ltd., was declared insolvent in China due to a number of default judgments against it; and (3) as a result, defendants' statements about its business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than March 4, 2019. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to https://www.rosenlegal.com/cases-1476.html or to discuss your rights or interests regarding this class action, please contact Phillip Kim or Zachary Halper of Rosen Law Firm toll free at 866-767-3653 or via email at pkim@rosenlegal.com or zhalper@rosenlegal.com. Laurence Rosen, Esq. Phillip Kim, Esq. Zachary Halper, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 34thFloor New York, NY 10016 Telephone: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 Email: lrosen@rosenlegal.com pkim@rosenlegal.com zhalper@rosenlegal.com [GN] ZICAM LLC: Court Grants Final Approval of Melgar Class Settlement ----------------------------------------------------------------- The United States District Court for the Eastern District of California issued an Order granting Final Approval on Class Settlement in the case captioned YESENIA MELGAR, on Behalf of Herself and all Others Similarly Situated, Plaintiff, v. ZICAM LLC and MATRIXX INITIATIVES, INC. Defendants. Case No. 2:14-cv-00160-MCE-AC. (E.D. Cal.). This Court granted preliminary approval of the proposed class action settlement between the parties (Stipulation of Settlement). The Court also provisionally certified a nationwide Settlement Class for settlement purposes, approved the procedure for giving notice and forms of Notice, and set a final approval hearing to take place on November 15, 2018. The Settlement Class is defined as: all residents of the United States of America who, from February 15, 2011 through June 5, 2018, purchased any of the Zicam Products (Zicam RapidMelts Original, RapidMelts Ultra, Oral Mist, Ultra Crystals, Liqui-Lozenges, Lozenges Ultra, Soft Chews, Medicated Fruit Drops, and Chewables). The Court held a duly noticed final approval hearing to consider: (1) whether the terms and conditions of the Stipulation of Settlement are fair, reasonable and adequate (2) whether a judgment should be entered dismissing the complaint on the merits and with prejudice in favor of Defendants and against all persons or entities who are Settlement Class members herein who have not requested exclusion from the Settlement Class and (3) whether and in what amount to award attorneys' fees, costs and expenses to Class Counsel and whether and in what amount to make an incentive award to Plaintiff Yesenia Melgar. The Court finds that the prerequisites for a settlement class under Federal Rules of Civil Procedure (Fed. R. Civ. P.) 23(a) and (b)(3) have been satisfied, for purposes of settlement only, in that: (a) the number of Settlement Class Members is so numerous that joinder of all members thereof is impracticable (b) there are questions of law and fact common to the Settlement Class (c) the claims of the Representative Plaintiff are typical of the claims of the Settlement Class she seeks to represent (d) the Representative Plaintiff has and will fairly and adequately represent the interests of the Settlement Class (e) the questions of law and fact common to the Settlement Class Members predominate over any questions affecting any individual Settlement Class Member and (f) a class action is superior to the other available methods for the fair and efficient adjudication of the controversy. Pursuant to Fed. R. Civ. P. 23(h), the Court hereby awards Class Counsel attorneys' fees and expenses in the amount of $5,619,859.97. The Court also orders payment of an incentive award(s) in the amount(s) of $10,000.00 to Plaintiff Yesenia Melgar. These amounts are to be paid in the time and manner described in the Stipulation of Settlement. This Settlement Approval Order and Final Judgment constitutes a judgment within the meaning and for purposes of Rule 54 of the Federal Rules of Civil Procedure. Without affecting the finality of the Settlement Approval Order and Final Judgment in any way, this Court hereby retains continuing jurisdiction over: (a) the disposition of the settlement benefits; (b) the settling parties for purposes of construing, enforcing and administering the Stipulation of Settlement and (c) enforcement of the Stipulation and Order Regarding Undertaking Re: Attorneys' Fees and Costs. A full-text copy of the District Court's January 17, 2018 Order is available at https://tinyurl.com/ybxbfdql from Leagle.com. Yesenia Melgar, Plaintiff, represented by Joseph I. Marchese -- jmarchese@bursor.com -- Bursor & Fisher, P.A., pro hac vice, Lawrence Timothy Fisher -- ltfisher@bursor.com -- Bursor and Fisher, PA, Scott A. Bursor -- ltfisher@bursor.com -- Bursor & Fisher PA & Thomas Andrew Reyda -- treyda@bursor.com -- Bursor & Fisher, P.A. Zicam LLC & Matrixx Initiatives, Inc., Defendants, represented by Alan J. Lazarus -- Alan.Lazarus@dbr.com -- Drinker Biddle & Reath LLP, Ashley Neglia -- ashley.neglia@kirkland.com -- Kirkland & Ellis LLP, Kathryn Michelle Jackson -- katie.jackson@dbr.com -- Drinker Biddle & Reath, LLP, Leslie M. Smith -- leslie.smith@kirkland.com -- Kirkland & Ellis LLP, pro hac vice, Robyn E. Bladow -- rbladow@kirkland.com -- Kirkland & Ellis LLP & William A. Hanssen -- william.hanssen@dbr.com -- Drinker Biddle and Reath LLP. Patrick S. Sweeney, Claimant, pro se. Asbestos Litigation ASBESTOS UPDATE: Asbestos Claims Continue to Climb, AM Best Says ---------------------------------------------------------------- PropertyCasualty360 reported that it’s been more than four decades since asbestos consumption piqued in the United States as well as worldwide, and three decades since the Environmental Protection Agency banned asbestos manufacturing in the U.S. Nonetheless, A.M. Best recently reported that asbestos and environmental contamination claims continue to rise. ASBESTOS UPDATE: Asbestos Discovered at Dormant Quarry ------------------------------------------------------ WFMZ Allentown reported that Bucks County residents turned out in force to talk about the Rockhill Quarry in Perkasie Township. Pennsylvania Representatives Steve Santarsiero, Craig Staats and Congressman Brian Fitzpatrick hosted the town hall at Bucks Community College after asbestos was discovered at the quarry. Hanson Aggregates owns the quarry which was dormant for 40 years until R.E. Pierson got a $224 million contract to expand the Pennsylvania Turnpike in 2017. Hanson leased the quarry and re-opened it. Since then, residents say they've had to deal with noise, heavy truck traffic and concerns about water and air quality due to dust. After the asbestos was discovered the DEP shut down operations pending testing. At the time, Hanson released a statement saying: "Naturally occurring asbestos in the rock does not indicate unsafe levels in the air and there are no indications that the employees or surrounding community were at risk." Karen Drum has lived next to the quarry since 2008. She says she hopes it doesn't re-open. "There goes our peace and tranquility as well as so many other things. Environmental issues and infrastructure issues and the value of our home," said Drum. Residents say they are also concerned about whether the quarry met regulatory requirements to operate. It's something lawmakers say they will be looking at closely. "I will be working daily to make sure that the DEP does in fact do what it should do and enforce the law in Pennsylvania as it exists right now," said Rep. Santasiero. Congressman Fitzpatrick has asked Governor Tom Wolf to suspend further development at the Rockhill Quarry until a more thorough environmental review is conducted. ASBESTOS UPDATE: Asbestos Material Used in Kuwaiti Thermos ---------------------------------------------------------- Arab Times Kuwait English Daily reported that the Ministry of Commerce and Industry recently circulated the names of 5 types of thermos to all relevant authorities to prevent their sale or import, after discovering that they did not comply with the specifications, because they contain the asbestos material that causes the cancer, reports Al-Qabas daily. The sources pointed out the ministry just before receiving the warning issued by the Ministry of Foreign Affairs about the discovery of a number of types of thermos harmful to health, to comb the markets through its inspection and emergency teams, in cooperation with the Public Authority for Industry, to ensure the safety of consumers. The same sources said the ministry has taken many procedures to hold the agents and distributors of those products responsible and summoned them to the ministry headquarters to take appropriate legal action which would prevent the recurrence of such problems in future. The Ministry has also addressed the Union of Cooperative Societies and sent a list of the five products with the aim of circulating the list to all cooperative societies to withdraw these products from their shelves which it called an urgent matter. The sources summarized the ministry's procedures to deal with this matter as follows: Issuing a decision prohibiting the import of any products containing asbestos; Coordinating with the Public Authority for Industry to introduce thermos in the national conformity system; combing the markets and commercial centers to ensure that the products are free of prohibited material; Calling the agents and distributors and holding them legally accountable. ASBESTOS UPDATE: Asbestos Played Role in Shipyard Worker's Death ---------------------------------------------------------------- NW Evening Mail reported that a coroner said exposure to asbestos played a "significant "role in the death of a former shipyard worker. Gordon Gibson died aged 86 on August 17 last year. At an inquest held into his death at Barrow Town Hall, assistant coroner Paul O'Donnell ruled Mr Gibson died as a result of industrial disease. The inquest heard the Dalton man worked in the testing area at the shipyard between 1959 and 1992, originally joining as a plumber. His son Steve said he had heard stories of how his dad and his colleagues played with the toxic material at work. He said: "They made snowballs out of asbestos and threw them at each other. "They would also make asbestos pillows and sleep on them during night shifts." The inquest was told Mr Gibson died from heart failure, but asbestos was a major contributing factor in his death, the ruling by the coroner noted. Barrow has the highest rate of asbestos-related cancer in the country. And the inquest followed the forming of a new support group, the Cumbria & Lancashire Asbestos Support Advice Group. Graham Ding, chairman of the Asbestos Victims Support Groups Forum said the kind of behaviour Mr Gibson's son described was a familiar story. He said: "I the work I have done it has become a common story of people playing with asbestos in this way. "These people have been mostly the young apprentices who would not have been aware how dangerous it was." Speaking after the hearing, Steve said Gordon was "very good" dad and a keen sportsman who played football and cricket. "He was very active until about the last two years of his life and then he became ill," Steve added. ASBESTOS UPDATE: Automaker Wins Review on Asbestos Liability Ruling ------------------------------------------------------------------- Law360 reported that Ford Motor Co. and other businesses have convinced the New Jersey Supreme Court to review a ruling that manufacturers may be held liable for failure to warn about the risks of asbestos. ASBESTOS UPDATE: Barrow Has Highest Asbestos Cancer Rate in UK -------------------------------------------------------------- NW Evening Mail reported that Barrow has the highest rate of an asbestos related cancer in the UK, statistics show. At the official launch of the Cumbria & Lancashire Asbestos Support Advice Group (CLASAG) at Barrow and District Disability Association, it was highlighted the town has the highest rates of mesothelioma in the UK, which is nearly always caused by asbestos exposure. Latest statistics from the National Mesothelioma audit run by the Royal College of Physicians show that from 2014-2016 there was a minimum of 75 cases of mesothelioma recorded within the Morecambe Bay NHS Trust, which includes Furness General Hospital. Further to this, statistics from the Health and Safety Executive show that in 2015 such cases were three times the national average. Although these occurrences have dropped slightly from when it was 4.3 times the national average between the years 1981-2015, it still makes Barrow the highest in the UK. Speaking at the event Albert Brennan, 78 from Walney, who worked for 18 years as a BAE contractor said: "I've seen a lot of our lads that I've worked with taken ill with it and within 12 months they were gone. "We know how big a killer it is and it's not finished yet -- people are still suffering. "I thought I got away with it then bang I was diagnosed. It's like having a concrete overcoat around your lung, your breathing just gets worse and worse and there is no long term survivors of it." The formation of the group will however provide critical support for people with asbestos conditions. Formally known as Cumbria Asbestos Related Disease Support (CARDS) chaired by Bob Pointer, the new group run by Disability First will hold meetings on the third Monday of each month at the Barrow & District Disability Association. They will also be able to provide independent advice about welfare benefits and compensation through the home visiting service. Alan Reid, CEO of Disability First, said: "We are thrilled and very proud to be asked by Bob and the group to continue all the hard work that has been achieved." Graham Dring, chair of the Asbestos Victims Support Groups Forum UK, said: "It is crucial that local people have access to independent, expert advice on benefits and compensation and ongoing support so the establishment of CLASAG is welcome news for victims of asbestos diseases." ASBESTOS UPDATE: Burton Carpenter Dies of Asbestos Death -------------------------------------------------------- Derbyshire Live reported that An elderly Burton ex-carpenter did not develop signs of a "horrible" asbestos-related disease until half a century after he was exposed to it, an inquest heard. Timothy Swift died at his home address of Shelley Avenue, Horninglow, on November 9, 2018. The 81-year-old former carpenter joiner was diagnosed with malignant mesothelioma, a type of cancer which develops in the lining of the body's organs. Typically, this is linked with exposure to asbestos. An inquest into Mr Shelley's death held at Burton Town Hall heard that his only known exposure to asbestos came between 1967 and 1969. Despite this he did not show any symptoms of mesothelioma until 50 years later, in March or April 2018. Details from his family, read out at the inquest, said: "He worked all his life as a carpenter joiner for a company in Burton. "He worked from around 1967 to 1969 at a carpenters, where he was exposed to others cutting asbestos sheets." They added that Mr Swift was not known to have been exposed to asbestos outside the workplace. Concluding, South Staffordshire coroner Andrew Haigh said: "In the early part of last year as a result of Mr Swift becoming unwell he was diagnosed with the horrible condition of mesothelioma. "There is no effective treatment, that condition is almost always associated with exposure to asbestos dust and commonly with a long latency period between exposure and symptoms. "Overall on balance I am satisfied that this death was from mesothelioma, this has been caused by exposure to asbestos dust. "The exposure to asbestos dust is likely to have occurred at the workplace so this should be considered an occupational linked death." Mr Haigh ruled Mr Swift's death was caused by mesothelioma , with type two diabetes a contributing factor. The Coroner concluded death was due to industrial disease. ASBESTOS UPDATE: Chesham Woman Dies of Epithelioid Mesothelioma --------------------------------------------------------------- Bucks Free Press reported that a 60-year-old woman died of cancer just before Christmas after being exposed to asbestos while she was working at a factory, an inquest found this week. Pauline McGowan, from Chesham, was diagnosed with epithelioid mesothelioma in August 2016 and sadly died on December 10, 2018. It came after she worked in a factory making parts for airplane seats in Chesham, which had asbestos in the roofs of all its buildings. She worked for Flying Service Engineering and Equipment, based in Springfield Road for a number of years, saying in a statement read out to the court by the coroner's officer that the roofs of all six factory buildings were corrugated asbestos. In the statement, which she gave in January 2017, she said she also worked closely with plastic sheets for parts, making sure not even a speck of dust was left on them to avoid them being rejected under quality control. According to the British Lung Foundation's website, the main cause of mesothelioma is breathing in asbestos dust. The use of products containing asbestos was banned in the UK in 1999 but Mrs McGowan worked for the factory prior to this, and for a number of years starting in 2000, when she said the roofs of the buildings had hugely deteriorated. The BLF says it is normal for people to get the first symptoms of mesothelioma 30 to 40 years after they were first exposed to asbestos. Mrs McGowan is believed to have undergone treatment for the condition. The medical cause of death was found to be epithelioid mesothelioma and senior coroner Crispin Butler said Mrs McGowan died as a result of the condition. The cause of death was recorded as an industrial disease. ASBESTOS UPDATE: Court Scolds County Over Judge's Asbestos Death ---------------------------------------------------------------- Mesothelioma.net Blog reported that James Farris died of malignant peritoneal mesothelioma suddenly and without warning. He had been feeling ill for some time but had not pursued a diagnosis. Then, in 2004 he gave a speech to a gathered group, went home and told his wife he couldn't continue with his work, went to the hospital and died nine days later. His illness was only identified upon his death. A few months after, his widow filed suit against 39 defendants that provided asbestos to his workplace, as well as against Jefferson County, Texas, where Farris had served as an elected judge for nearly 30 years. The courthouse was renovated and restored through a variety of projects between the late 1970s and early 1980s, and Mrs. Farris' claim argued that the county was partially responsible for his exposure and subsequent death. She won her case against the county, but the county appealed on a variety of grounds. In ruling against them, the court took pointed issue with the county's argument. Judge Calls Defendant's Argument "Irrational" Though the judges of the Court of Appeals of Texas, First District, Houston were unified in their position affirming the trial court's order in the mesothelioma case, Justice Terry Jennings took the opportunity to take special issue with the county's argument. He wrote separately to "note the irrationality of the argument of appellant, Jefferson County, Texas" that the widow had not provided them of "timely notice." In the county's argument, they had indicated that the late judge's claim should have been provided within months of the last date of exposure. The justice noted that Judge Farris died almost eight years after his last exposure and a mere nine days after he first began to exhibit symptoms of his illness. Widow Faces Same Challenge As Other Mesothelioma Victims The justice wrote, "Based on Jefferson County's logic, Judge Farris would have been required to provide it with notice of a premature and speculative claim." This is frequently an issue for mesothelioma patients who have been victims of asbestos exposure, but the situation became even more apparent to the justices when it was one of their own who was affected. When a person is exposed to asbestos, they are at risk for malignant mesothelioma, but there is no way of telling whether they will actually develop the disease until years and sometimes decades later. If you or someone you love has been affected by this difficult illness, contact the Patient Advocates at Mesothelioma.net at 1-800-692-8608. ASBESTOS UPDATE: Court Won't Compel Cos. to Pay Deposition Costs ---------------------------------------------------------------- HarrisMartin Publishing reported that a California state court has refused to issue an order compelling defendants to pay costs related to the depositions of plaintiffs in several asbestos cases, concluding that the plaintiffs had failed to persuade the court that good cause exists for it to compel the defendant to pay the court reporter fees and costs sought by the plaintiff. In the Dec. 20 order, the California Superior Court for San Francisco County denied the plaintiffs' argument that "trial preservation deposition" was separate from the discovery portion of the same deposition of the same individual. ASBESTOS UPDATE: Crane Co. Had 29,089 Pending Claims at Dec. 31 --------------------------------------------------------------- Crane Co. has 29,089 pending asbestos-related claims as of December 31, 2018, according to the Company's Form 8-K filed with the U.S. Securities and Exchange Commission for January 28, 2019. The Company states, "Of the 29,089 pending claims as of December 31, 2018, approximately 18,000 claims were pending in New York, approximately 100 claims were pending in Texas, approximately 400 claims were pending in Mississippi, and approximately 200 claims were pending in Ohio, all jurisdictions in which legislation or judicial orders restrict the types of claims that can proceed to trial on the merits. "The Company has tried several cases resulting in defense verdicts by the jury or directed verdicts for the defense by the court. The Company further has pursued appeals of certain adverse jury verdicts that have resulted in reversals in favor of the defense." A full-text copy of the Form 8-K is available at https://is.gd/i6Aa39 ASBESTOS UPDATE: Crane Co. Pays $1.3MM Judgment in DeLisle Case --------------------------------------------------------------- Crane Co. disclosed in its Form 8-K filed with the U.S. Securities and Exchange Commission for January 28, 2019, that it has paid the judgment in the Richard DeLisle case on December 28, 2018. The Company states, "On September 17, 2013, a Fort Lauderdale, Florida state court jury in the Richard DeLisle claim found the Company responsible for 16% of an US$8 million verdict. The trial court denied all parties' post-trial motions, and entered judgment against the Company in the amount of US$1.3 million. The Company appealed and oral argument on the appeal took place on February 16, 2016. On September 14, 2016 a panel of the Florida Court of Appeals reversed and entered judgment in favor of the Company. Plaintiff filed with the Court of Appeals a motion for rehearing and/or certification of an appeal to the Florida Supreme Court, which the Court denied on November 9, 2016. Plaintiffs subsequently requested review by the Supreme Court of Florida. Plaintiffs' motion was granted on July 11, 2017. Oral argument took place on March 6, 2018. On October 15, 2018, the Supreme Court of Florida reversed and remanded with instructions to reinstate the trial court's judgment. The Company paid the judgment on December 28, 2018. That payment is reflected in the fourth quarter 2018 indemnity amount." A full-text copy of the Form 8-K is available at https://is.gd/i6Aa39 ASBESTOS UPDATE: Fake Cigarettes Containing Asbestos Discovered --------------------------------------------------------------- LADbible reported that officials have warned consumers about a large number of fake cigarettes found in the UK that contain dangerous substances like arsenic, rat droppings, asbestos and human faeces. The illegal cigarette trade is thought to cost the UK more than GBP2 billion ($2.6bn) each year in unpaid duty. That's before we get to the fact that it isn't exactly useful for people who are trying to give up smoking for good. The Local Government Association (LGA), the organisation responsible for 370 local councils in England and Wales, wants courts to impose larger fines on those found guilty of selling dodgy fags. In recent times, officials have used sniffer dogs to hunt down hauls of hooky cigs. They've been found stashed away in all sorts of places, including inside walls and underneath the floors of shops, stuck inside boxes of other products, and even inside the cistern of a toilet. Yum. Toilet fags that might already contain human poo. How much? Durham Council has released pictures of some fake cigs. Credit: PA Simon Blackburn, a representative of the LGA, said: "The sale of cheap, illegal tobacco is funding organised criminal gangs and damaging legitimate traders. "It is also making it easier for young people to get hooked, which undermines efforts to help people quit. "Fake cigarettes contain even higher levels of cancer-causing toxins than standard cigarettes. "Bigger fines need to be imposed by the courts to deter the sale of illegal tobacco." Cigarettes aren't the only fake product causing a bit of trouble at the minute. In the past few weeks, police have discovered a load of fake vodka in the Yorkshire city of Hull. Radanoff vodka is thought to have been made with industrial strength alcohol that can cause blindness or death if consumed. The local authority for the city tweeted: "Warning: If you spot 'Radanoff' vodka for sale, do not buy or drink it. Radanoff is a fake brand seized recently in Hull. "It could contain industrial alcohol which can cause blindness or death. If you see Radanoff, contact Trading Standards on 01482 300 300." The statement continued: "Tests are still to be carried out on the bottles seized - until those are complete there's no way of knowing what's in the bottles. "However, we do know this product has no customs duty stamp and the barcode doesn't link to a real product." Fake alcohol is not only dangerous -- in some cases car screenwash and anti-freeze have been used as ingredients -- it's also costly. It's thought that alcohol fraud costs the UK GBP1bn ($1.3bn) each year. Make sure whatever you're getting is the real deal, guys. ASBESTOS UPDATE: Family Seeks Answer Over Member's Asbestos Death ----------------------------------------------------------------- The Northern Echo reported that the family of a woman who died of asbestos-related cancer is appealing to her former workmates to help them get answers on how she was exposed to the material. Tina Handley, who was from Durham but moved to Northallerton in 2004, died last August a year after she was diagnosed with mesothelioma– a lung cancer commonly associated with exposure to asbestos. The 64-year-old's family has instructed specialist asbestos-related disease lawyers at Irwin Mitchell’s Newcastle office to investigate her illness and whether it was related to her work history. Solicitors want to know if she was exposed to asbestos during her time as an office worker for Durham County Council in the late 1990s and early 2000s or as a nurse at Dryburn hospital in the early 1990s and want to hear from anyone who worked alongside her. Emma Dumbleton, who is representing Mrs Handley's family, said: "Just a few months on from Tina's death, her loved ones remain understandably devastated by their loss. "The family have a number of questions regarding how she developed mesothelioma and are keen to get more information on the issues." Mrs Handley worked as a clerk, typist and personal assistant within the social services department at Durham County Council between 1998 and 2004, based at County Hall in the city. She was an auxiliary nurse at Dryburn Hospital in the gynaecology and ENT departments, between 1992 and 1995. Her son Toby, 42, said: "It was devastating to see how mesothelioma affected mum and ultimately led to a major decline in her health. She was clearly in a lot of pain and it was very hard to see. "We all loved her so much and are just desperate to get the answers we feel she deserved regarding her illness. We would be hugely grateful to anyone who may be able to help us." Helen Lynch, Durham County Council's head of legal and democratic services, said: "We are saddened to hear of the passing of Tina Handley and offer our condolences to Tina’s family. "Durham County Council is currently engaged in legal proceedings with regards to this matter and is unable to comment any further at this stage." Anyone with information can contact Emma Dumbleton at Irwin Mitchell's Newcastle office on 0191-2790105 or email Emma.Dumbleton@IrwinMitchell.com ASBESTOS UPDATE: Fired Worker May Pursue Whistleblower Claims ------------------------------------------------------------- Bloomberg Environment reported that a public employee fired after he told a supervisor he would report the presence of asbestos in his workspace may pursue whistleblower claims, a Kentucky appeals court ruled. The claims under Kentucky's Whistleblower Act aren't preempted by the state Occupational Safety and Health Act, which allows only for reinstatement and back pay, the court said. Wesley Stover may proceed with claims against the city of Louisville, Ky., and Jefferson County, Ky., the court said. ASBESTOS UPDATE: Firm Denies Claims Rail Asbestos Removal Unsafe ---------------------------------------------------------------- WAtoday reported that FMG has denied claims by the Australian Manufacturing Workers' Union that workers are being put at risk by a major project to remove asbestos from thousands of its China-imported rail carriages. The mining giant in 2017 discovered the deadly fibre in its rail carriage friction wear plates and reported the find to Worksafe. The safety watchdog responded by issuing FMG with an improvement notice, requiring it remove the asbestos within two years, or by November 2019. The Union claims FMG is not doing enough to protect workers from asbestos found in some of its rail carriages. It also issued a warning for other businesses that owned or operated rail carriages purchased between 2007 and 2014 to have their wear plates tested for asbestos. "They were thought to be asbestos-free and the wear plates have not needed replacing since the carriages were acquired," the warning read. "Testing by a National Association of Testing Authorities accredited laboratory in Australia has found that the wear plates contain chrysotile (white) asbestos." WA's North West has nearly 80,000 rail carriages, although it is not clear how many have been impacted by the asbestos discovery. AMWU assistant state secretary Glenn McLaren inspected FMG's rail maintenance facility in Thomas Yard, where he claimed asbestos removal of the rail carriages was taking place. He said the deadly fibres were not being removed quick enough and in an unsafe manner, putting workers at risk. "FMG has disgracefully allowed an untold number of workers over years to be exposed to asbestos," Mr McLaren said. “The Union and workers have been raising this issue time and time again, only for FMG to completely disregard the safety of its workforce. “These railcars are still in circulation and are still exposing workers to asbestos." However, FMG chief executive Elizabeth Gaines said the safe removal of the asbestos had become the mining giant's number one priority since the fibres were first discovered. "The first wear plate was replaced on 3 October 2018 following an extensive period of consultation with regulators, our workforce and the engagement of an expert contractor to complete the work," she said. "Since October, 958 of the 3384 cars impacted have had their parts safely changed. "We are well on track to meet the WorkSafe improvement notice which runs until September 2019." Ms Gaines said the company had engaged an asbestos-certified contractor to complete the work and had also hired an expert consultant to independently oversee the project. “Independent monitoring from the outset identified an extremely low risk of exposure for employees and periodic monitoring has continued to reinforce this," she said. "We will continue this periodic monitoring for at least 12 months following the completion of the replacement of all parts later this year.” Worksafe recommends companies have products independently tested for asbestos before being shipped to Australia. Asbestos was banned from use in Australia in 2003. ASBESTOS UPDATE: Firm Settles Asbestos Row Before $81MM Jury Award ------------------------------------------------------------------ Law360 reported that Honeywell International said it had agreed to settle claims that its automotive brakes caused a mechanic's fatal mesothelioma, reaching the deal before an Arkansas federal jury held the company guilty. ASBESTOS UPDATE: Former Laborer Blames Asbestos for Cancer ---------------------------------------------------------- St. Louis Record reported that a former laborer alleges exposure to asbestos in Connecticut caused him to develop cancer. James Coe filed a complaint on Dec. 21 in the St. Louis 22nd Judicial Circuit Court against CBS Corp., et al. alleging strict liability, negligence and other counts According to the complaint, the plaintiff alleges that at various times during his career beginning in 1959 at locations in Connecticut, he was exposed to and inhaled or ingested asbestos fibers emanating from certain products manufactured, sold, distributed or installed by defendants. The suit states that on or about Nov. 9, 2017, he first became aware that he developed lung cancer, an asbestos-induced disease, and that the disease was wrongfully caused. The plaintiff holds CBS Corp., et al. responsible because the defendants allegedly negligently included asbestos fibers in their products when adequate substitutes were available and failed to provide adequate warnings and instructions concerning the dangers of working with or around products containing asbestos fibers. The plaintiff requests a trial by jury and seeks actual and compensatory damages of more than $50,000, plus costs, interest and all further relief that the court deems just and equitable. He is represented by Benjamin R. Schmickle and Matthew C. Morris of SWMW Law LLC in St. Louis. St. Louis 22nd Judicial Circuit Court case number 1822cc11909 ASBESTOS UPDATE: Former Painter Dies of Asbestos Exposure --------------------------------------------------------- Lancashire Telegraph reported that a former painter and decorator died on holiday from a heart attack, with asbestos being a contributing factor, an inquest heard. William Frederick Logan, from Loveclough, was taken to the Queen Elizabeth Hospital in King's Lynn, Norfolk, on August 12, after suffering with pneumonia. The inquest heard tests were taken at the hospital and results showed the 73-year-old had asbestos in his blood. Mr Logan died the following day. East Lancashire coroner Richard Taylor said when reading through Mr Logan's GP statement, there was no mention of heart problems or knowledge of asbestosis -- the long-term lung condition caused by prolonged exposure to asbestos. He said the only mention of asbestos was made the day before he died. Mr Logan's wife, Glenice Logan, did not know he was suffering from the effects of being exposed to asbestos. She said: "After 11-12pm I never spoke to him again, he was just confused, this was caused by pneumonia. "I knew he hadn't had a stroke." When discussing asbestos, Mrs Logan said: "No one had told us about the lung disease, I never knew." Histologist Ray Lonsdale, said Mr Logan had died from an acute myocardial infarction, commonly known as a heart attack, with asbestos being a contributing factor. The inquest heard Mr Logan's job as a painter and decorator involved working on buildings which contained asbestos, and would have sanded down door frames and other items that would have contained the mineral. Mrs Logan said her husband, who lived on Burnley Road, Loveclough, was a life-long non smoker. In his conclusion, Mr Taylor said: "I repeat Dr Lonsdale's statement, the asbestos is a contributing factor in Mr Logan's death. "His exposure to asbestos was during his work life. "The cause of death was in his heart, but asbestos was a contributing factor to it. "William Logan died at the Queen Elizabeth Hospital in King's Lynn on August 13, 2018, from heart problems having been exposed to asbestos during his working life. "I offer all my sincere condolences to the family and I thank you for coming here." ASBESTOS UPDATE: Former Shipyard Workers Get EUR51,000 ------------------------------------------------------ MaltaToday reported that the court has awarded 17 former shipyard workers and their heirs compensation after they were exposed to the carcinogenic asbestos at their place of work. The workers, some of whom are now deceased, had sued the Director General of Public Health, the CEO of the Occupational Health and Safety Authority and the Attorney General in 2015. They claimed to have been exposed to the carcinogenic material without adequate safety precautions being taken, despite it being a known fact that inhaling asbestos fibres caused cancer. The First Hall of the Civil Court in its Constitutional jurisdiction, presided by Madam Justice Anna Felice was asked to declare that by failing to provide a safe system of work or a safe working environment, the defendants had committed a breach of their right to life and private family life and liquidate damages accordingly. The defendants had argued that there was no evidence that the exposure was the sole reason for their health problems. The court noted that none of the applicants were diagnosed with cancer, but with other less serious conditions caused by asbestos. The first law protecting workers was introduced in 2003 although asbestos had been banned from importation in the 1980s. The court said that it was convinced on the basis of probability that the applicants had been exposed to asbestos dust during their time at the shipyards on the basis of expert testimony and other court decisions on the matter. Quoting case law on the subject, the court said the Maltese government knew or ought to have known of the dangers arising from exposure to asbestos at least as from the early 1970s. Although many of the plaintiffs had complained of shortness of breath they were also advanced in years and none of them had testified as to how the condition had affected their life, observed the court. These factors led the court to arrive at a figure of €3,000 each as compensation for the suffering caused. ASBESTOS UPDATE: H.B. Fuller Settles 7 Suits, Claims for $400K -------------------------------------------------------------- H.B. Fuller Company reported that for the year ended December 1, 2018, seven asbestos-related lawsuits and claims were settled for US$400,000, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 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. However, adverse developments and/or periodic settlements could negatively impact the results of operations or cash flows in one or more future periods." A full-text copy of the Form 10-K is available at https://is.gd/FnvSL0 ASBESTOS UPDATE: Judge Mendez Recuses From Houston v. 3M Company ---------------------------------------------------------------- Judge John A. Mendez of the U.S. District Court for the Eastern District of California recuses himself as the judge for the case captioned Sherrie Houston, Plaintiff, v. 3M Company, et al., Defendants, No. 2:19-cv-157 JAM-DB, (E.D. Cal.). The Clerk of the Court will reassign the case to another judge for all further proceedings and will make appropriate adjustment in the assignment of civil cases to compensate for this reassignment. A copy of the Recusal Order, is available at https://tinyurl.com/ycp98x38 from Leagle.com. Sherrie Houston, individually and as successor-in-interest to the Estate of George Houston, Plaintiff, represented by Ronald J. Shingler -- info@shinglerlaw.com -- Shingler Law. The Boeing Company, improperly denominated as The Boeing Company, individually and as successor in interest to McDonnell Douglas Corporation, individually and as successor in interest to McDonnell Aircraft Co., the Douglas Aircraft Company and McDonnell Douglas Helicopter Sy, Defendant, represented by Brent Marshall Karren -- bkarren@mgmlaw.com -- Manning Gross + Massenburg LLP. Goodrich Corporation, Defendant, represented by David Michael Glaspy -- dglaspy@mgmlaw.com -- Manning Gross & Massenburg LLP. ASBESTOS UPDATE: Juni Ruling Dose of Reality to Asbestos Litigation ------------------------------------------------------------------- Joseph A. D'Avanzo and Zachary Levy, writing for Law.com, reported that In 1965, Ralph Nader's "Unsafe at Any Speed: The Designed-In Dangers of the American Automobile" was published, raising the public's conscientiousness of the auto industry's disregard for safety in favor of profits. The book's title was purposefully provocative, and its hyperbole was effective in grabbing the public's attention. But in the world of toxic torts, "unsafe at any level" is insufficient to establish a prima facie case of liability in most jurisdictions in the United States. See, e.g., Lawrence G. Cetrulo, Toxic Tort Litigation Guide Appendix 33-A, Court Decisions re: "Single Fiber Theory" (November 2018). While New York also requires some proof of "dose" to bottom an expert's opinion on causation in toxic tort cases (Parker v. Mobile Oil, 7 N.Y.3d 434 (2006); Cornell v. 360 W. 51st St. Realty, 22 N.Y.3d 762 (2014)), until recently, asbestos cases seemed to have been the exception to this requirement. Lustenring v. AC&S, 13 A.D.3d 69 (1st Dep't 2004), lv. den. 4 N.Y.3d 708 (2005). But this past November, the New York Court Appeals affirmed the setting aside of an $11 million verdict in an asbestos case against Ford Motor Company for, what they said, was insufficient proof of causation. Matter of NY City Asbestos Litig. (Juni v. A.O. Smith Water Products), __ N.Y.3d __, 2018 Slip Op 08059 (Nov. 27, 2018). The court affirmed the First Department's holding that a plaintiff who seeks damages for contracting mesothelioma based on exposure to a defendant's asbestos-containing products must satisfy the standards expressed in Parker v. Mobil Oil and Cornell v. 360 W. 51st St. Realty, by offering evidence that, if it does not provide an exact mathematical quantification of that exposure, it at least provides some "scientific expression" (Parker, 7 N.Y.3d at 449) of the level of exposure to toxins in defendant's products that was sufficient to have caused the disease. In re New York City Asbestos Litig., 148 A.D.3d 233, 48 N.Y.S.3d 365 (1st Dep't 2017), aff'd sub nom. Matter of New York City Asbestos Litig., ____ N.Y.3d ___, 2018 Slip Op 08059 (Nov. 27, 2018). Rejected by the trial court and the First Department was the plaintiff's attempt to rely upon the notion that asbestos is "unsafe at any level." NY's Evolving Position on Requiring Proof of Dose In what would become a significant precedent in the development of New York's toxic tort case law, the U.S. District Court for the District of Massachusetts held in a benzene exposure case called Sutera v. The Perrier Group of America, Inc., 986 F. Supp. 655 (D. Mass. 1997) that the plaintiff had failed as a matter of law to establish that his exposure (from trace amounts revealed by testing and prompting an FDA recall) caused his Acute Myeloid Leukemia (AML). Sutera offered the expert opinion of an oncologist: that Sutera's AML was more likely than not caused by benzene exposure based on the then popular methodology known as the "unsafe at any level" or the "non-linear threshold" models. As would be summed up by the Second Department's decision in Parker v. Mobil Oil Corp. several years later: "In layman's terms, this approach, referred to as a linear non-threshold model, assumes that if a lot of something is bad for you, a little of the same thing, while perhaps not equally bad, must be so in some degree. The model rejects the idea that there might be a threshold at which the neutral or benign effects of a substance become toxic." Parker v. Mobil Oil, 16 A.D.3d 648, 652 (2d Dept. 2005), aff'd on other grounds, 7 N.Y.3d 434 (2006) (internal quotes and citations omitted). The District Court Judge in Massachusetts held that the oncologist's opinion was (following an analysis under Daubert) inadmissible, concluding that it was not based on reliable scientific evidence, and generally rejecting the overall reliability of the "unsafe at any level" model. Sutera, 986 F. Supp. at 662. The Sutera court noted that the plaintiff's expert's methodology (i.e., unsafe at any level) fails Daubert's requirement that it be "generally accepted" by the scientific community and the opinion was based on studies where the victims or subjects had a significantly higher level of exposure, both in the dosage level and the duration of exposure, than Sutera did from drinking Perrier. Id. at 662-63. Therefore, the court found that there was no support for the notion that the low dose of benzene in Perrier's water was itself a substantial factor in causing Sutera's illness. Id. at 662. The rejection of the "unsafe at any level" model first started to gain traction in New York courts in the Second Department's decision in Parker v. Mobil Oil, where the plaintiff alleged he had contracted AML from exposure (via inhalation and skin contact) to benzene in gasoline while working as a gas station attendant for nearly two-decades. Parker, 16 A.D.3d at 648. Relying in part on Sutera, the Second Department reversed the trial court's denial of the defendants' motion for summary judgment and held that the plaintiff had failed to establish causation because his causation expert's opinion was based on the "unsafe at any level" model. Notably, Parker's expert never even quantified Parker's level of exposure to benzene, thus making it impossible to establish that his level of exposure was a significant cause in developing AML. Id. at 652. The Court of Appeals affirmed the Appellate Division's reversal and the exclusion of Parker's expert's opinion, agreeing that Parker's expert had failed to demonstrate how Parker's specific exposure caused him to develop AML. It is here where New York's "scientific expression" standard for toxic tort cases was born; a plaintiff's expert is not required to pinpoint the plaintiff's exposure to the toxin with exact precision, "an opinion on causation should set forth a plaintiff's exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)." Parker, 7 N.Y.3d at 448. Assertions, for example, that the plaintiff was "frequently exposed to excessive amounts" of the toxin without more specificity are insufficient to meet this standard. Id. The Parker "scientific expression" standard played a key role in the Court of Appeal's decision in Cornell v. 360 West 51st Street Realty, where the plaintiff sued her landlord alleging that she suffered personal injuries from mold exposure in her apartment, and held that plaintiff's expert's failure to make any effort to quantify the level of exposure and identify the disease-causing agent rendered the opinion insufficient on the issue of causation. Cornell, 22 N.Y.3d at 784-86. Presenting Exposure in NY Asbestos Cases Largely due to the fact that mesothelioma is a "signature" injury of asbestos exposure, asbestos plaintiffs in New York, historically, had a relatively low burden to establish causation, and could almost always establish liability, in essence, by presenting the following: (1) the plaintiff worked on a site where there were products containing asbestos; (2) the asbestos products released a cloud of dust when they were manipulated or handled by the plaintiff or others working close by on the site; and (3) the plaintiff inhaled the dust. As illustrated by the First Department's 2004 decision in Lustenring v. AC&S, 13 A.D.3d 69 (1st Dep't 2004), lv. den., 4 N.Y.3d 708 (2005), affirming a multi-million dollar jury verdict for two dockworkers who developed mesothelioma, the court summed up the necessary proof to establish liability: "both plaintiffs worked all day for long periods in clouds of dust raised specifically by manipulation and crushing of defendant's packing and gaskets, which were made with asbestos, and valid expert testimony indicated that such dust, raised from asbestos products and not just from industrial air in general, necessarily contains enough asbestos to cause mesothelioma." Id. at 69. Typically, plaintiff will present the testimony of a qualified expert who will opine that the presence of visible dust is a scientifically recognized way of identifying the presence of air-borne asbestos in amounts generally recognized with the scientific community as toxic to humans, and that it is the "cumulative exposure" to asbestos that increases the risk of contracting mesothelioma. Further demonstrating just how embedded this formulaic, and very generalized, approach to proving causation was in New York jurisprudence, the court even denied the defendants' request for an evidentiary hearing to challenge the conclusions of the plaintiffs' expert, finding that the defendants' presentation of alternative ways for the plaintiffs to have contracted mesothelioma to be of no moment. Id. at 70. Bringing NY Asbestos Cases in Line With Other Toxic Torts Judge Jaffe's decision In the Matter of New York City Asbestos Litigation (Juni), 48 Misc.3d 460 (Sur. Ct., NY County 2015), may signify a massive shift in what New York courts will require for an asbestos plaintiff to establish causation. In Juni, the plaintiff developed, and later died from, mesothelioma as a result from his exposure to asbestos while working with various brakes, clutches and gaskets (collectively, brakes or brake products) manufactured by Ford, over the course of his long career as an auto mechanic. Id. at 461-62. In support of their case, the plaintiffs (the decedent's estate and widow) offered two experts. One expert was charged to establish general causation (i.e., that the dust from Ford's brake products contained harmful asbestos), and the other to prove specific causation (i.e., that the asbestos dust that the plaintiff inhaled caused him to develop mesothelioma). Id. at 464-68. The trial court held that both expert opinions, which both generally employed a variant of the "unsafe at any level" model, were inadmissible, set aside an $11 million jury verdict in the plaintiffs' favor, and ultimately ordered that judgment be entered in favor of Ford. Id. at 491. Before ruling that the plaintiffs' experts' opinions were inadmissible, the trial court set forth a detailed history of New York's case law on toxic tort causation, focusing particularly on Parker, Cornell, and Lustenring (and its progeny). Judge Jaffe was quite critical of Lustenring and it progeny, noting that in none of these cases did the court actually explain its finding that the plaintiff, through his or her expert, had established causation. In re: New York City Asbestos Litig., 48 Misc.3d at 478. Ultimately, the court held that Parker and Cornell, and not Lustenring, are controlling precedent in deciding whether the opinion of plaintiffs' experts are sufficient to prove causation as a matter of law in all toxic tort matters, including asbestos cases. Judge Jaffe would go on to hold that both plaintiffs' experts failed to meet this "new" standard. Starting with the plaintiffs' general causation expert, the court noted that the studies he relied on merely showed an "association" between garage mechanics and mesothelioma, and under New York law, "association" does not equate to "causation." Id. at 482-83. Likewise, the general causation expert failed to identify a single study that established that asbestos contained in brake products can cause mesothelioma. Id. at 484. To the contrary, the expert's report referenced, and (unsuccessfully) tried to refute, 21 studies that found that there was no increased risk of developing mesothelioma from occupational exposure to break products. Id. This could perhaps be because, as conceded by the expert, "during the brake manufacturing process, when asbestos fibers are mixed with certain resins, they become ‘nonrespirable', and the ‘vast majority' of studies assessing the composition of debris formed from work on brakes reflects that 99 percent of the asbestos is converted to a non-toxic substance during the process." Id. at 486. Due to these deficiencies and others, the trial court held that the plaintiffs had failed to establish general causation. Id. at 485. The plaintiffs' specific causation expert fared no better. Particularly, the expert failed the "scientific expression" of dose requirement in Parker. Id. The trial court was also critical of the fact that the expert did not even analyze the dust that the plaintiff was said to have inhaled, and therefore was unaware if it actually contained asbestos or not, and if so, what level. Id. As a result, not only did the expert fail to quantify the plaintiff's level of exposure but could not compare the plaintiff's level of exposure to asbestos to other case studies finding a particular level of exposure necessary to significantly contribute to the development of mesothelioma. Id. at 485-86. Significant to asbestos practitioners is that aspect of Judge Jaffe's decision that rejects the "cumulative exposure" theory, which is based on the notion that every single exposure to asbestos (an established dangerous substance) constitutes a significant contributing factor to developing disease. Id. at 487-91. Notably, the court found that such an approach is irreconcilable with the well-recognized scientific requirement that causation be established based on consideration of the amount, duration and frequency of the plaintiff's exposure (i.e., a "dose-response" relationship). Id. at 487. The Appellate Division affirmed Judge Jaffe's decision, and further confirmed that Parker and Cornell are controlling in asbestos cases. In re New York City Asbestos Litig. (Juni), 148 A.D.3d at 235-36. Likewise, the Appellate Division agreed with the rejection of cumulative exposure theory. Id. at 239. On Nov. 27, 2018, the New York Court of Appeals, in a 4-1 memorandum opinion, affirmed the Appellate Division's application of Parker and Cornell to this asbestos case and agreed that the plaintiffs had failed to meet their burden of proof for causation. Matter of New York City Asbestos Litig. (Juni), 2018 Slip Op. 08059 at *1. Chief Judge DiFiore and Judges Stein, Fahey and Wilson joined the majority's opinion. Judge Rivera dissented. Judges Garcia and Feinman took no part. In a separate concurring opinion, Judge Wilson commented that although the proof was "more than sufficient to establish that [Juni's] exposure to asbestos caused his [mesothelioma] and death," plaintiffs did not produce an expert to rebut Ford's argument "that the physical properties of the asbestos in Ford's friction products had been so radically altered as to render conventional asbestos toxicology irrelevant." Id. (Wilson, J., concurring). As such, Judge Wilson saw this as "simply a gap in proof as to the toxicity of the products at issue." Id., citing Parker, 7 N.Y.3d at 449-50. The dissent, by Judge Rivera, stated that it was error for the trial court to set aside a jury verdict in which it was clear that the jury did not credit Ford's proof of the inert nature of its friction products and that Ford failed to meet its burden of showing that the verdict was "utterly irrational." Id. (Rivera, J., dissenting), citing Killon v. Parrotta, 28 N.Y.3d 101, 108 (2016), quoting Campbell v. City of Elmira, 84 N.Y.2d 505, 510 (1994). Judge Rivera noted with significance that internal Ford documents revealed that its friction products "overexposed" mechanics to carcinogenic asbestos fibers and that Ford took steps to protect its own employees from exposure to dust from these products. Id. The solo dissent, however, did not carry the day and the trial court's vacatur of the jury's verdict was left undisturbed. Conclusion The opinions in Juni present a sea change in the presentation of evidence on the issue of causation in New York asbestos cases. Plaintiffs will need to evaluate their proof on this issue to ensure that it meets the requirements of Parker and Cornell. Defendants would do well to learn from Ford's defense team's presentation of evidence calling into question the actual contents of the dust allegedly inhaled by the plaintiff or the decedent. Both sides will need to factor this development into their evaluation of the defendant's liability exposure and the pros and cons of resolving the action by settlement or trial. ASBESTOS UPDATE: Kaercher Couple Sues Over Asbestos Exposure ------------------------------------------------------------ St. Louis Record reported that a Texas couple alleges the husband developed lung cancer as a result of exposure to asbestos in the 1960s and 1970s. Rickey Kaercher and Lillie Kaercher filed a complaint on Jan. 8 in the St. Louis 22nd Judicial Circuit Court against Borg-Warner Morse TEC LLC, et al. alleging negligence and other counts. According to the complaint, the plaintiffs allege that at various times during Rickey Kaercher's career at various locations in Missouri, Texas and Arkansas, he was exposed to and inhaled or ingested asbestos fibers emanating from certain products manufactured, sold, distributed or installed by defendants. The suit states that on or about Aug. 27, 2017, he first became aware that he developed lung cancer, an asbestos-induced disease, and that the disease was wrongfully caused. The plaintiffs hold Borg-Warner Morse TEC LLC, et al. responsible because the defendant allegedly negligently included asbestos fibers in their products when adequate substitutes were available and failed to provide adequate warnings and instructions concerning the dangers of working with or around products containing asbestos fibers. The plaintiffs request a trial by jury and seek compensatory and punitive damages of no less than $25,000 and all further relief as the court may deem just and equitable. They are represented by Wilson D. Sikes of Napoli Shkolnik PLLC in Edwardsville, Illinois. St. Louis 22nd Judicial Circuit Court case number 1922cc00070 ASBESTOS UPDATE: Man Arrested Over Asbestos Consulate Packages -------------------------------------------------------------- U.S. News & World Report reported that Australian police arrested a man after 38 packages allegedly containing asbestos were sent to foreign consulates in the cities of Melbourne, Canberra and Sydney. Savas Avan, 48, was arrested at his home in Shepparton, Victoria state, and charged with sending dangerous articles to be carried by a postal service. He appeared in Melbourne Magistrates Court to face the charge, which carries a maximum penalty of 10 years in prison. Commonwealth prosecutor Matthew Simpson told the court the deliveries contained asbestos. Avan, who was not required to enter a plea, did not apply for bail. He will appear again on March 4. Around 10 diplomatic missions, mostly in Melbourne, reported the delivery of suspicious packages, some of them labelled "asbestos." The missions included those from the United States, Britain, India, South Korea, Pakistan, Israel, Switzerland and Greece. This followed the discovery and removal of a suspicious package at the Argentinian Consulate in Sydney. Australian Federal Police and Victoria Police said in a joint statement they will allege the substance in the packages was sourced from the man's home. ASBESTOS UPDATE: March 18 Maremont Plan Confirmation Hearing ------------------------------------------------------------ The Hon. Kevin J. Carey of the U.S. Bankruptcy Court for the District of Delaware will hold a hearing on March 18, 2019, at 1:00 p.m. (Prevailing Eastern Time) 5th Floor, Courtroom #5 at 824 North Market Street in Wilmington, Delaware, to approve the adequacy of the disclosure statement explaining the pre-packaged Chapter 11 plan of reorganization of Maremont Corporation and its debtor-affiliates, and confirm the Debtors' pre-package Chapter 11 plan. Objections, if any, must be filed no later than 4:00 p.m. (Prevailing Eastern Time) on March 4, 2019. The centerpiece of the Plan is the creation of the Asbestos Personal Injury Trust under Section 524(g) of the Bankruptcy Code and the Asbestos Personal Injury Channeling Injunction that will channel all Asbestos Personal Injury Claims to the Asbestos Personal Injury Trust. The Asbestos Personal Injury Trust will be funded with up to $50 million in cash (consisting of cash held by the Debtors and a settlement payment). It is also currently anticipated that Reorganized Maremont will own a commercial property worth approximately $1.4 million. Additional consideration will be contributed under the Plan by the Debtors and by Meritor on behalf of itself and certain other "protected parties" pursuant to the "restructuring transactions", and the Asbestos Personal Injury Trust will receive 100% of the new common stock of Reorganized Maremont. The assets of the Asbestos Personal Injury Trust will be used to resolve all Asbestos Personal Injury Claims in accordance with the terms of the Asbestos Personal Injury Trust Distribution Procedures. Assuming an Initial funding of not less than $58 million, holders of Asbestos Personal Injury Claims are estimated to have a 29.1 percent recovery under the Plan. Should the initial funding be between $58 million and $65 million, the initial payment percentage will increase proportionately. To the extent the Asbestos Personal Injury Trust is funded with less than $58 million or more than $65 million the initial payment percentage may be adjusted. ASBESTOS UPDATE: March 28 Oakfabco Plan Confirmation Hearing ------------------------------------------------------------ The Bankruptcy Court has approved the amended disclosure statement explaining the Second Amended Plan of Liquidation proposed by Oakfabco, Inc. Ballots/Acceptance or Rejection to Plan are due by March 11. Objections to Confirmation are due by March 13. The confirmation hearing will be held on March 28, 2019 at 10:30 AM. Class 4: Asbestos PI Claims are impaired. Class 4 includes Oakfabco Asbestos PI Claims, most of which have not been liquidated, as well as Indirect Asbestos PI Claims, Derivative Liability Asbestos PI Claims and Direct Action Claims. All Asbestos PI Claims will be liquidated according to the Plan and Trust Distribution Procedures. Holders of Allowed Asbestos PI Claims shall receive a distribution on their Claims in the amounts to be determined by the Liquidating Trust through the application of Trust Distribution Procedures. Funding of the Liquidating Trust. On the Effective Date, the Debtor will transfer the Trust Assets to the Liquidating Trust. The Trust Assets shall include, without limitation: Excess Cash; all rights under Approved Asbestos Insurance Settlement Agreements; the Asbestos Insurance Rights; and the Qualified Settlement Fund. The assets in the Liquidating Trust shall be administered for the benefit of the Holders of Asbestos PI Claims. The United States Trustee formed an official Committee of Asbestos Claimants (the "Asbestos Claimants Committee"). The Asbestos Claimants Committee hired the law firm of Frank Gecker LLP as its counsel. It also engaged R.M. Fields as its insurance archeologist, Colin Gray as its insurance erosion specialist, and Dennis Connolly as a testifying expert on insurance issues. Section 11.5 of the Plan provides that the Asbestos Claimants Committee shall continue in existence after the Confirmation Date and until the Effective Date, with the Debtor to pay the fees and expenses of the Asbestos Claimants Committee and its counsel through the Effective Date in such amounts as approved by the Bankruptcy Court. Upon the Effective Date, the Asbestos Claimants Committee shall be dissolved, and the members, attorneys, and other Professionals of that committee shall be released and discharged of and from all further authority, duties, responsibilities, liabilities and obligations related to, or arising from, their service on or to the Asbestos Claimants Committee in the Chapter 11 Case. ASBESTOS UPDATE: Meritor Gains $31MM from Liability Reassessment ---------------------------------------------------------------- Meritor, Inc. (NYSE: MTOR) said on Jan. 29, 2019, that it has recognized US$31 million of income related to re-measuring of the Maremont asbestos liability to the Maremont prepackaged plan of reorganization in the first fiscal quarter ended Dec. 31, 2018. A full-text copy of the Company's press release on its First-Quarter Fiscal Year 2019 Results is available for free at https://is.gd/yynbIT ASBESTOS UPDATE: Meza Claims vs. BASF Catalysts Dismissed --------------------------------------------------------- The Hon. Michael W. Fitzgerald of the U.S. District Court for the Central District of California, having considered the stipulation between plaintiffs Harold Meza and Barbara Meza and defendant BASF Catalysts LLC, approves the stipulation and orders that all claims against defendant BASF Catalysts LLC, are dismissed from the case styled Harold Meza and Barbara Meza, Plaintiffs, v. 3M Company, et al., Defendants, Case No. 2:19-cv-00334-MWF-SK, (C.D. Cal.). A copy of the Order, is available at https://tinyurl.com/yaabv36q from Leagle.com. Harold Meza & Barbara Meza, Plaintiffs, represented by Crystal Gayle Foley -- cfoley@simmonsfirm.com -- Simmons Hanly Conroy LLC, Brent J. Zadorozny , Simmons Hanly Conroy & Melissa C. Schopfer -- mschopfer@simmonsfirm.com -- Simmons Hanly Conroy. BASF Corporation, Defendant, represented by Michael Laurence Mandell -- mmandell@reedsmith.com -- Reed Smith LLP. The Boeing Company, Defendant, represented by Kristi Leigh Kasey Young -- kyoung@mgmlaw.com -- Manning Gross and Massenburg LLP & Brent Marshall Karren -- bkarren@mgmlaw.com -- Manion Gaynor and Manning LLP. Cytec Industries Inc. & Wyeth Holdings Corporation, Defendants, represented by John R. Lawless, Jr. -- jlawless@kslaw.com -- King and Spalding LLP, Peter A. Strotz -- pstrotz@kslaw.com -- King and Spalding LLP & Vincent Frank Tremonti, II -- vtremonti@kslaw.com -- King and Spalding LLP. The Goodyear Tire and Rubber Company, Defendant, represented by David M. Uchida -- David.Uchida@lewisbrisbois.com -- Lewis Brisbois Bisgaard and Smith LLP & Patrick James Foley -- Patrick.Foley@lewisbrisbois.com -- Lewis Brisbois Bisgaard and Smith LLP. Rohr Inc., doing business as Goodrich Aerospace, Defendant, represented by David M. Glaspy -- dglaspy@mgmlaw.com -- Manning Gross and Massenburg LLP. United Technologies Corporation, Defendant, represented by Justin E. Garratt -- justin.garratt@tuckerellis.com -- Tucker Ellis LLP & Lance D. Wilson -- lance.wilson@tuckerellis.com -- Tucker Ellis LLP. ASBESTOS UPDATE: Moroun Firm Cited for Asbestos Violations ---------------------------------------------------------- Detroit Free Press reported that a company owned by the family of shipping magnate Manuel "Matty" Moroun is alleged to have violated state law and federal standards in how its contractors handled asbestos-containing materials during ongoing demolition at the former McLouth Steel site in Trenton, according to the Michigan Department of Environmental Quality. The DEQ issued a Notice of Violation to Crown Enterprises Inc., a Warren-based development firm run by Matthew Moroun, son of Matty Moroun, and to 21st Century Salvage/Next Generation Environmental Inc., an Ypsilanti-based contractor doing demolition work at the now Crown-owned McLouth Steel site off West Jefferson Avenue. The long-standing, chronically problematic brownfield site in Trenton is being eyed by the Morouns for a new transportation facility that would fit into the family’s vast shipping and trucking empire. Among the family's most prominent holdings are the Ambassador Bridge and, until its sale in June 2018 to Ford Motor Co. for a new headquarters, the Michigan Central Station. The DEQ's Air Quality Division, in a Jan. 11 inspection, found multiple locations at the demolition site where asbestos-containing products were "friable," or in a dry, crumbling condition, in violation of both the federal National Emission Standard for Asbestos and the state Natural Resources and Environmental Protection Act, according to the agency's violation notice. DEQ Air Quality Division analyst Jeremiah Brown, in the violation notice, notes that when he arrived at the site, he saw contractors removing galvanized metal siding from a mill building on the property, covered in an asbestos product, without wetting the material as required during abatement, causing it to flake and crumble. A dumpster was also full of friable asbestos, he stated. Similar problems were found at a former maintenance and spare parts warehouse on the property. Breathing asbestos particles, particularly over a long term, can lead to lung cancer and other lung disorders, according to the federal Agency for Toxic Substances and Disease Registry. The DEQ is requiring the companies to respond by Feb. 12 with: An explanation of the causes and duration of the violations Whether the violations are ongoing A summary of the actions that have been taken and are proposed to correct the violations The date by which the actions will take place What steps are being taken to prevent a recurrence Michael Samhat, president of Crown Enterprises, told the Free Press that it is not doing the work on-site at McLouth itself, but through contractors including 21st Century/Next Generation. "We're very confident in the vendors we picked -- and that was done with a lot of consultation with the EPA and the DEQ," he said. "We've worked with this company quite a bit. But this is a large, very complicated site, with many different conditions." The contractor, working with Crown's on-site consultants, will craft a response to the DEQ, Samhat said. "If it's accurate, it's going to get resolved," he said. "If it's not accurate, we're going to try to get the differences (between the companies and regulators) resolved." A message left with 21st Century/Next Generation's offices was not returned Thursday. Wendy Pate lives about a block from the McLouth site. She said residents had put their trust in 21st Century/Next Generation and she was "very disappointed that they have already been cited for a violation within a few weeks of working at the site." She said the contractor should "stop immediately, reassess how they are handling materials at the site, if it's being done properly, and if it's not, what they can do to fix this." Lawmakers also responded to the news. "As the McLouth Steel project proceeds, ensuring Downriver residents are safe will always be our No. 1 priority," said U.S. Rep. Debbie Dingell, D-Dearborn, "Although these reports of increased asbestos levels are deeply disturbing, the system worked -- MDEQ was on-site even though the EPA is shut down. As soon as asbestos was found, immediate steps were taken to correct the problem and a violation notice was issued." State Rep. Darrin Camilleri, D-Brownstown Township, said a proper cleanup of the McLouth site "is critical to the public health of our community." “While it’s deeply frustrating that problems are arising so quickly in this demolition process, I’m glad the MDEQ inspected the site and sounded the alarm," he said. "I will continue to monitor the situation closely to ensure that these companies are held liable for any damages to our community." Michigan asbestos laws are clear, said state Sen. Stephanie Chang, D-Detroit. "There’s no excuse to expose employees and Downriver residents to this toxic substance, not to mention potentially contaminating the Detroit River,” she said. ASBESTOS UPDATE: New Law Gives EPA Power to Ban Asbestos -------------------------------------------------------- Environmental Working Group reported that concern among members of Congress over the Trump administration's implementation of the updated federal chemicals law burst across the aisle this week, with both the top Republican and Democrat on a key House environment subcommittee calling for oversight hearings. Rep. Paul Tonko, D-N.Y., chairman of the House Energy and Commerce Committee's Subcommittee on the Environment and Climate Change, and Rep. John Shimkus, R-Ill., the ranking Republican on the panel, plan to hold an oversight hearing to get answers from the Environmental Protection Agency about how it's executing the agency's beefed-up authority to protect the public from toxic chemicals. Anthony Adragna of Politico Pro reported this week that Tonko and Shimkus are eager to get answers from the EPA about how it is protecting public health from dangerous chemicals. "The spirit and letter of those reforms should be implemented to the nth degree," Tonko said. "I agree with former Chairman Shimkus that we need to do oversight and we need to revisit how it's being implemented." "I think now it's time to have an oversight hearing to see where they're at and get some real numbers," Shimkus said. "How many new chemicals do we have and how many do we have a decision on." "We applaud this bipartisan call for oversight," said EWG Senior Vice President for Government Affairs Scott Faber. "There is ample evidence showing that the Trump EPA is cooking the books to allow some of the most hazardous chemicals in existence to remain in use, putting millions of people at further risk of exposure." In 2016, Congress passed and President Obama signed into law the Frank R. Lautenberg Chemical Safety Act, which amended the woefully weak Toxic Substances Control Act. The new law gives the EPA power to finally ban asbestos and other dangerous chemicals. Since the Trump administration came to power, a number of troubling decisions by former EPA Administrator Scott Pruitt and current Acting Administrator Andrew Wheeler show an agency bending both the spirit and letter of the new chemicals law to benefit the chemical industry. Among the most egregious actions is the EPA's decision to ignore the many ways that people are exposed to chemicals that put vulnerable populations, such as young children and communities near factories, at even greater risk. The new law requires the EPA to consider all uses of a chemical when evaluating it for safety. Despite this clear directive, Wheeler is ignoring key exposures to asbestos in the agency's safety assessment, likely in violation of the law. Wheeler appears to be laying the groundwork for the agency to find that asbestos is safe and should remain legal. Other chemicals the EPA is dragging its feet to restrict or ban include the lethal paint-stripping chemical methylene chloride and the notorious industrial solvent trichloroethylene, or TCE. Under the Trump administration, the EPA is retreating from an earlier proposal to ban key uses of TCE, and it is excluding water, air and soil pollution from a safety assessment under the new chemicals law. "The mission of the EPA is to protect human health and the environment, not the profits of the chemical industry," Faber added. "There are a lot of questions about how the EPA is implementing the chemicals law, and Chairman Tonko and Ranking Member Shimkus deserve answers on behalf of all Americans." The Environmental Working Group is a nonprofit, non-partisan organization that empowers people to live healthier lives in a healthier environment. Through research, advocacy and unique education tools, EWG drives consumer choice and civic action. ASBESTOS UPDATE: New Talc-Asbestos Lawsuit Goes to Trial -------------------------------------------------------- Citizen Truth reported that the first of dozens of lawsuits last scheduled for 2019 over the presence of talc in Johnson & Johnson baby powder began. Opening statements began in a lawsuit claiming that Johnson & Johnson's (J&J) talc baby powder causes cancer. The jury heard in opening statements arguments over whether J&J's talc products contain asbestos and the company knew it could cause cancer in users. About 11,700 lawsuits have been filed against the company over allegations that its baby powder causes cancer. The lawsuits link J&J's baby powder to ovarian cancer, lung cancer and mesothelioma. The latest lawsuit was filed Terry Leavitt, who is represented by Joseph Satterley, who alongside other lawyers won a $117 million compensation verdict in April 2018 for a man who claimed his mesothelioma was caused by J&J's talc products. That ruling is under appeal. Leavitt's lawsuit was filed at the Alameda Superior Court in Oakland, where Satterley argued in his opening statements that J&J intentionally marketed contaminated baby powder knowing fully well it caused cancer. J&J Admits Talc Mined In Its Korean Mine Contained Asbestos That Were Harmless Diagnosed with mesothelioma in 2017, Leavitt claimed her parents applied J&J talc powders on her during her early years in the Philippines where she was born. She claims the product they used was manufactured with talc mined from South Korea. Leavitt's parents moved back to the United States in 1968. Satterley argued in court that independent investigations showed that Korean talc mined in the 1960s and 1970s tested positive for asbestos, just like talc mined in the U.S. within the same period. But J&J countered in court filings that fibers found in the Korean talc mined at this period were not asbestos and cannot be classified as such since their experts ruled they were harmless. Geologists agree that it is possible for cancer-causing asbestos and harmless asbestos known as “non-asbestiform” rock to occur together within the same talc deposits. J&J's Shares Fell Following a Damning Report of Concealing Asbestos Information Joined as a co-defendant in the lawsuit is Imerys Talc America, an affiliate of French Imerys SA. Representatives for Imerys denied that their talc contained asbestos, caused cancers, or was responsible for Leavitt's ailment. J&J claims that over several decades rigorous tests had been carried out on their talc and no asbestos contamination had ever been caused. Both J&J and Imerys maintained that numerous studies vindicate their products as safe and uncapable of causing cancer. However, Leavitt's lawsuit is the first to come after a Reuters special report published in December 2018 revealed numerous J&J internal documents from the 1970s to early 2000s which seemed to show that the company was aware its talc contained asbestos but deliberately hid this fact from the public. Following the December report, J&J's stocks dropped significantly. The prospect of courts awarding several millions of dollars against the company in future talc cases worried investors, so many sold off their stakes. Last Monday, the company's shares closed at $127 -- 14% lower than what its value on December 13. Of the 11 cases so far against J&J alleging their products contained asbestos, three have resulted in wins for the plaintiffs and three have been ruled in J&J's favor. The other five cases resulted in hung juries. Of the three cases ruled against J&J damages were awarded as high as $4.69 billion, which came in a July 2018 ovarian cancer verdict brought by multiple plaintiffs. J&J has appealed all of the rulings against them. ASBESTOS UPDATE: NY Court Hears Arguments in M. South Case ----------------------------------------------------------- Law.com reported that the New York Court of Appeals heard arguments about whether a decades-old settlement release signed by an individual can be enforced to prohibit that person from bringing a second lawsuit against the company after he developed mesothelioma. The court will be tasked with deciding whether a section of the Federal Employers' Liability Act nullifies a settlement release signed by the plaintiff nearly 20 years ago, which would allow him to sue the company a second time over claims of injury resulting from asbestos exposure. The employee, Mason South, sued Texaco in 2014 after he developed mesothelioma that was allegedly caused by his exposure to asbestos while he served as a seaman in the Merchant Marine for nearly four decades. South died of his mesothelioma in 2015 and his wife was substituted as the plaintiff in the case. It's the second time South had been involved in litigation against the company. He was first part of a group of more than 100 defendants who sued Texaco in federal court in the 1990s for damages that allegedly resulted from their exposure to asbestos and second-hand smoke on merchant ships. South was suing over a pulmonary injury at the time. Texaco settled that case with South and the other defendants, who also signed a release as part of the settlement. According to Texaco, part of the release included an acknowledgement from South that he "understands that the long term effects of exposure to asbestos . . . may result in obtaining a new and different diagnosis from the diagnosis as of the date of this release." The release also said South was "giving up the right to bring an action against [Texaco] in the future for any new or different diagnosis" related to asbestos exposure, according to the company. Texaco was represented before the Court of Appeals by Meir Feder, a partner at Jones Day in Manhattan. "The decision below should be reversed because the release here was a straightforward settlement of Mr. South's asbestos claims that he'd asserted in a lawsuit," Feder said. But even though the release appeared to prohibit South from bringing litigation based on a future diagnosis, his attorneys argue that the agreement is unenforceable under federal law. Louis Bograd, a member at Motley Rice in Washington, D.C., said a section of FELA prohibits contracts that would exempt a company from liability before an injury is known. South was not diagnosed with mesothelioma until more than a decade after the first settlement. Bograd also argued that, outside of FELA, the release itself shouldn't preclude South from suing over the newly diagnosed mesothelioma. "There's also the facts of this release, which never mentions cancer and never mentions mesothelioma," Bograd said. "This is a boilerplate release that Texaco put forward in the case. Texaco said, 'Well, as long as we're settling that case, why don't we also exempt ourselves from any potential future liability?'" Feder, meanwhile, argued that the release was valid regardless of FELA. He said the language of the agreement was clear that Texaco intended to exclude itself from future liability claims brought by South based on the same alleged conduct. "When you have a less serious injury based on tortious conduct, you can still settle anything arising out of that conduct, including future, more serious injury," Feder said. The lower courts have sided with South in the case. Manhattan Supreme Court Justice Peter Moulton said FELA barred Texaco from enforcing the settlement release and that federal court precedent prevented such an agreement from exempting liability for future, unknown risks. Moulton, in his decision said Texaco "offered no proof . . . that Mason South intended to release a future claim for mesothelioma." The Appellate Division, First Department affirmed that decision last year, saying that at the time of the settlement, there was no way to know whether South would develop mesothelioma and that, as a result, the release wasn't enforceable under FELA. "Rather, the lack of an actual diagnosis reveals the language in the release as mere boilerplate, and not the result of an agreement the parameters of which had been specifically negotiated and understood by South," the panel wrote. A decision in the case is expected to be handed down in February. ASBESTOS UPDATE: Orleans Man Facing Charges for Dumping Asbestos ---------------------------------------------------------------- 13WHAM-TV reported that an Orleans County man is facing charges after allegedly dumping asbestos-laden materials in a wildlife management area. Carl Rivers, 49, of Albion, faces up to four years in prison if convicted. He’s facing charges of endangering public health, safety or the environment and a violation charge of unlawfully disposing of waste. Rivers allegedly dumped the materials in the Tonawanda Wildlife Management Area on Alabama. The charges come after a months-long investigation by DEC officials. In addition to prison time, Rivers could face a fine of up to $150,000 if convicted of the endangering charge. He is due back in court in March. A contractor was hired by DEC Spills Unit to clean up the materials. ASBESTOS UPDATE: Pa. Court Denies Bid to Dismiss Youse Suit ----------------------------------------------------------- HarrisMartin Publishing reported that a Pennsylvania federal court has retained jurisdiction over an asbestos cosmetic talcum powder lawsuit, rejecting the plaintiff's position that Wal-Mart is a Pennsylvania corporation for complete diversity purposes. In the same Jan. 16 opinion, the U.S. District Court for the Eastern District of Pennsylvania denied Imerys Talc America's motion to dismiss on jurisdiction grounds, concluding that registration to do business in the state is sufficient to create general personal jurisdiction. Plaintiff Carrie Youse contended that she was diagnosed with papillary mesothelioma as a result of exposure to asbestos-containing products, including cosmetic talcum powder products. ASBESTOS UPDATE: Pathologist Testifies in Asbestos Talc Trial ------------------------------------------------------------- Law360 reported that a pathologist fielded questions in a California courtroom from jurors considering whether Johnson & Johnson baby powder contained asbestos that caused a dying woman's cancer. ASBESTOS UPDATE: Pinjarra Refinery Exposure Probe Continues ----------------------------------------------------------- Mandurah Mail reported that nearly nine months on, workers allegedly exposed to asbestos at Alcoa's Pinjarra refinery still don’t have answers from a Department of Mines, Industry Regulation and Safety investigation. On Monday, the department told the Mandurah Mail officers still had not finalised their probe into the incident that occurred on the evening of May 3, 2018. At the time, it is understood several workers were in the refinery's powerhouse to remove lagging. The lagging, which contained asbestos, was removed within an area that allegedly provided no protection from the potentially lethal fibres. Alcoa closed the powerhouse and notified the department of the incident that night. According to the department, the alleged exposure was isolated to one building, which meant the rest of the refinery could continue to operate as normal. Department investigation officers attended the site the following day. After a preliminary technical analysis was undertaken by the officers, the powerhouse was released for work to continue. There have been seven instances of potential contamination reported to the [DMIRS] in the past 12 months from the Peel region. Department of Mines, Industry Regulation and Safety mines safety director Andrew Chaplyn An Alcoa spokeswoman said the results of all air monitoring undertaken shortly after the incident were within the Safe Work Australia workplace exposure standards. She also told the Mail the company had not received any follow-up investigation reports issued by the department. The department’s mines safety director Andrew Chaplyn told the Mail the specific details from the investigation couldn't be publicly released. He did reveal, however, that the incident wasn't an isolated case in the region. "There have been seven instances of potential contamination reported to the Department of Mines, Industry Regulation and Safety (DMIRS) in the past 12 months from the Peel region," he told the Mail. "Following these reports, the department has conducted inspections and taken appropriate enforcement measures to address safety concerns and protect workers." ASBESTOS UPDATE: Rector Couple Sues Over Asbestos Exposure ---------------------------------------------------------- Inside INdiana Business reported that a husband and wife are suing dozens of companies, alleging failure to warn and negligence in the use of asbestos products caused the husband's lung cancer. Ronald Rector and Christine Rector filed a complaint Dec. 18 in St. Clair County Circuit Court against the multiple defendants, alleging failure to exercise reasonable care and caution for the safety of others. According to the complaint, at various times during Ronald Rector's work, beginning in 1965, he was exposed to and inhaled or ingested asbestos fibers emanating from certain products manufactured, sold, distributed or installed by defendants. On July 23, 2016, the suit says, Rector first became aware that he had developed lung cancer, an asbestos-induced disease, and that the disease was wrongfully caused. Christine Rector says she has been deprived of her husband's consortium, society and services. The plaintiffs allege the defendants negligently included asbestos fibers in their products when adequate substitutes were available and that they failed to provide adequate warnings and instructions concerning the dangers of working with or around products containing asbestos fibers. The Rectors seek trial by jury, actual compensatory damages of not less than $50,000 and all further just and equitable relief. They are represented by attorney Randy L. Gori of Gori, Julian & Associates PC in Edwardsville. St. Clair County Circuit Court Case number 18-L-812 ASBESTOS UPDATE: Renovation Firm Fined for Asbestos Violations -------------------------------------------------------------- Business Insurance reported that charges of improper and unsafe handling of asbestos at a home being renovated in Seattle have resulted in $789,200 fines for two business owners and their companies, the Washington Department of Labor & Industries announced Wednesday. The businesses and owners -- James Thorpe, of Seattle-based 3917 Densmore LLC, registered by Northlake Capital & Development LLC, and Chris Walters -- have each been cited for 11 willful and serious violations in four separate investigations, according to a statement. L&I opened the inspection following a complaint from a neighbor living near the residential renovation project on Densmore Road in Lynnwood, Washington, according to the statement. Several workers were improperly removing exterior asbestos tiles from the home over a weekend. When a neighbor confronted him, Mr. Walters said he was the homeowner and promised to remove the asbestos correctly. However, two neighbors took videos that showed the workers committing several violations, according to the statement. An investigation by L&I revealed that Mr. Walters was part of a complex corporate partnership created to renovate and flip the residence, according to the statement. The home was initially purchased by Seattle company Northlake Capital & Development, owned by Mr. Thorpe. Northlake is a real estate property company that primarily focuses on buying old homes, renovating them and selling for a profit. After the purchase, Mr. Thorpe created 3917 Densmore LLC and established Mr. Walters, a Northlake employee, as the sole member of the new corporation, claiming that Mr. Walters was the homeowner, and that he intended to live in the home, according to the statement. During parts of the investigation, Mr. Walters and Mr. Thorpe shifted responsibility from LLC to LLC and from person to person. Eventually, L&I cited both men and the companies they oversee for the same violations. The fines vary, primarily due to the number of workers each entity was responsible for. Mr. Thorpe and Northlake each received $214,100 in fines, and Mr. Walters and 3917 Densmore each received $180,500 in fines, according to the statement. The violations included using uncertified workers to remove asbestos, not using a certified asbestos supervisor and not obtaining an asbestos good faith survey prior to beginning work. They were also cited for not using water and not keeping the shingles intact during removal (the workers were breaking the tiles with hammers), for lacking proper personal protective equipment for workers, for not monitoring the air during removal and for not having a written accident prevention program, according to the statement. "These two men endangered their workers and people who live nearby this project, including children," Anne Soiza, L&I’s assistant director for the Division of Occupational Safety and Health, said in the statement. "On top of that, they tried to avoid responsibility by creating a legal web of confusion over who was responsible. I hope this sends a strong message that we take worker safety and public health very seriously." ASBESTOS UPDATE: RFPC's Parent Company Defends Claims at Jan. 25 ---------------------------------------------------------------- Transportation Systems Holdings Inc. disclosed in its Form S-1 filed with the U.S. Securities and Exchange Commission on Jan. 25, 2019, that it defends itself against asbestos-related claims in the U.S. The Company states, "Claims have been filed against the Company and certain of its affiliates in various jurisdictions across the United States by persons alleging bodily injury as a result of exposure to asbestos-containing products. Most of these claims have been made against our wholly owned subsidiary, Railroad Friction Products Corporation (RFPC), and are based on a product sold by RFPC prior to the time that the Company acquired any interest in RFPC. "Most of these claims, including all of the RFPC claims, are submitted to insurance carriers for defense and indemnity or to non-affiliated companies that retain the liabilities for the asbestos-containing products at issue. We cannot, however, assure that all these claims will be fully covered by insurance or that the indemnitors or insurers will remain financially viable. Our ultimate legal and financial liability with respect to these claims, as is the case with most other pending litigation, cannot be estimated." A full-text copy of the Form S-1 is available at https://is.gd/3X7Gcs ASBESTOS UPDATE: Senators Ask Asbestos Info From Talc Firm CEO -------------------------------------------------------------- FiercePharma reported that Johnson & Johnson has been battling lawsuits and damaging headlines linking its talc powder to cancer -- and claiming it hid evidence of asbestos in the product -- and now it'll have to answer a prominent senator's questions, too. In a letter to J&J CEO Alex Gorsky, Sen. Patty Murray, ranking member of the Senate Committee on Health, Education, Labor and Pensions, said she's "troubled" by recent developments, including a report in Reuters that J&J covered up asbestos in its talc for decades. In the letter (PDF), Sen. Murray requested documentation from J&J about past asbestos testing and for decades of communication with the FDA about the product and its safety. The iconic baby powder has come under fire in recent years as thousands of plaintiffs have claimed the product causes cancer, but J&J has denied any link. Biopharma is a fast-growing world where big ideas come along daily. Our subscribers rely on FiercePharma as their must-read source for the latest news, analysis and data on drugs and the companies that make them. Sign up today to get pharma news and updates delivered to your inbox and read on the go. In December, Reuters reported that J&J hid details about asbestos in its talc for decades. After the report, J&J’s share prices fell more than 10%, and the stock hasn’t fully recovered. But J&J has denied that its product is unsafe, and after the Reuters report, Gorsky went on video to reassure consumers about the product. RELATED: J&J stock tumbles after Reuters reports it hid asbestos in talc "For over 100 years, Johnson & Johnson has known that the talc in our baby powder is the purest, safest pharmaceutical-grade talc on earth," the CEO said. "Very importantly, if we believed our products were unsafe, they would be off the shelves and out of the market immediately," Gorsky added. "Thousands of tests by global authorities, universities and independent experts repeatedly confirm our talc is safe." Murray apparently isn't fully convinced. She asked Gorsky to hand over certain documents to "understand more about efforts by Johnson & Johnson to determine whether there were possible carcinogens in its baby power and how it presented that information to regulators and consumers." Documents have shown that J&J debated internally about talc purity, and some talc tests turned up with asbestos in years past, Murray wrote. Still, it's "unclear whether the company disclosed to the FDA that some of its tested samples contained contaminants." The senator pointed out that J&J has edited some materials to indicate that its talc may not have always been asbestos-free. Murray wants J&J to respond by Feb. 11 to show how it can say its talc is now asbestos-free and why it can’t say that was always the case. She also has demanded all of the company's communications with the FDA on the subject -- dating back to 1966 -- plus promotional materials for the product and documentation to back up the safety claims in promo materials. A J&J spokeswoman said the company stands behind talc safety and looks forward to responding to the letter. Sen. Murray's interest is just another challenge for J&J as it fends off thousands of lawsuits claiming talc caused cancer. Already, J&J has suffered losses in court worth hundreds of millions of dollars, but it's been able to have verdicts reversed in many cases. In the costliest loss to date, a jury in July ordered the drugmaker to pay $4.7 billion after a trial that combined the claims of 22 plaintiffs. The company said it would appeal and that it was confident it could get the verdict overturned. ASBESTOS UPDATE: Son Sues Ameron Over Father's Death ---------------------------------------------------- Madison County Record reported that a deceased man's son is suing Ameron International Corporation and other asbestos products manufacturers, citing alleged failure to warn and negligence. Michael Farrell, individually and as special representative of the estate of David Farrell, deceased, filed a complaint on Jan. 9 in the St. Clair County Circuit Court against the defendants alleging that they failed to exercise reasonable care and caution for the safety of others. According to the complaint, the plaintiff alleges that at various times during David Farrell's work between 1958 and 2000, he was exposed to and inhaled or ingested asbestos fibers emanating from certain products manufactured, sold, distributed or installed by the defendants. On or about Sept. 9, 2016, he first became aware that he developed lung cancer, an asbestos-induced disease, and that the disease was wrongfully caused. He died on Jan. 10, 2017. The plaintiff holds Ameron International Corporation and other defendants responsible because they allegedly negligently included asbestos fibers in their products when adequate substitutes were available and failed to provide adequate warnings and instructions concerning the dangers of working with or around products containing asbestos fibers. The plaintiff requests a trial by jury and seeks compensatory and economic damages of more than $50,000 and all further relief as the court deems just and equitable. He is represented by Randy L. Gori of Gori, Julian & Associates PC in Edwardsville. St. Clair County Circuit Court case number 19-L-0027 ASBESTOS UPDATE: Wash. Landslide Eroding Natural Asbestos Deposit ----------------------------------------------------------------- Asbestos.com reported that Swift Creek flows down Sumas Mountain and feeds the Sumas River in Whatcom County, Washington, near the Canadian border. An active landslide is eroding a natural asbestos deposit in the mountain, sending the toxic mineral through Swift Creek and far downstream. The creek carries the most common type of asbestos -- chrysotile. Also known as white asbestos, chrysotile was once a common ingredient in construction materials and machine parts. Its cancer-causing effects became public knowledge in the late 1960s. Though it is used much less in manufacturing now, asbestos can still be found abundantly in natural land formations. Asbestos fibers are lighter than most of the other minerals that make up Swift Creek's sediment. While sand and gravel settle along the creek bed quickly, chrysotile stays suspended in the water for a long time. This allows it to travel for miles along the Sumas and eventually across the border into Canada. For more than a decade, local residents have grappled with the risks that come with the white mud of their river. Naturally Occurring Asbestos in Swift Creek The landslide on Sumas Mountain has been active since the 1930s, but it wasn't until 2006 that health officials realized there was asbestos in the creek sediment. Every year, local governments dredge the creek to prevent flooding during the wet season. The dredge spoils -- made of crumbled rocks and sediment from the creek bed -- used to be left in piles beside the creek. The banks of Swift Creek are a popular area for horseback riding and dirt biking, and locals often hauled the dredge spoils away to fill in their yards and driveways. But since officials discovered the dredge spoils contain up to 4 percent asbestos, they have been buried at a local landfill. Dredging workers must wear proper safety gear in accordance with asbestos-disposal regulations. 2009 Sumas River Flood Contamination At first, most locals shrugged off the traces of naturally occurring asbestos in Swift Creek. But then unusually wet weather in January 2009 brought the risks of asbestos exposure right to their doorsteps. Flood water flowed into the yards and basements of people living all along the Sumas River. When the water receded, residents found their land caked with white-colored mud. Unfortunately, officials from the Environmental Protection Agency did not come to analyze the sediment until months later. By that time, residents had already cleaned up their properties as best they could. Laboratory tests revealed many of the locals had been handling soil that was up to 27 percent asbestos. Working with loose asbestos fibers at that concentration is like working with the asbestos insulation products that were popular in the 1950s. Asbestos is most dangerous when it gets into the air as dust. Microscopic asbestos fibers have no scent and cause no immediate symptoms when you inhale them. But when they accumulate in your lungs, it increases your risk of developing deadly diseases much later in life. Asbestos is the primary cause in about 6,000 American cases of lung cancer each year. Mesothelioma, a rare cancer caused almost exclusively from asbestos exposure, kills about 2,500 Americans each year. People living near the Sumas River took the news of the asbestos contamination in a variety of ways. Some residents brushed it off, insisting asbestos is not dangerous once it is buried beneath a layer of clean soil. Others left the area completely, even when it meant surrendering their homes to foreclosure. Local officials have had to walk a fine line: They want residents to take the risks seriously, but they do not want land values to fall any more than they already have. The asbestos contamination has diminished economic development in the region. Exposure Risks in Both Wet and Dry Weather While flood waters can bring asbestos onto people's properties, periods of drought can help that asbestos go airborne by drying the land out. Whatcom County officials post advisories about asbestos when there is low water flow in Swift Creek and the Sumas River. Dusty conditions raise the risk of asbestos exposure for farm workers in areas that have been flooded. Some locals have also been known to take off-road vehicles into the Swift Creek bed when it dries out, kicking up asbestos-laden dirt in the process. So far, health officials have not noted an elevated rate of lung diseases in Whatcom County. In 2016, however, the U.S. Geological Survey released a study confirming that sediment carried by the Sumas River can be up to 37 percent asbestos. Since asbestos-related diseases can take between 20 and 50 years to develop, time will tell just how dangerous the river of chrysotile is for residents of Whatcom County. ASBESTOS UPDATE: Widow's Asbestos Suit Remains in Federal Court --------------------------------------------------------------- Law360 reported that a Rhode Island woman's decadelong fight against CBS, among other companies, over her husband's death from an asbestos-related illness belongs in federal court, a district judge ruled, denying her request to remand her lawsuit to the state court. ASBESTOS UPDATE: Willful Asbestos Violations Results in $800K Fines ------------------------------------------------------------------- WorkersCompensation.com reported that improper and unsafe handling of asbestos at a Seattle area home-flipping site put workers and neighbors at risk, and has left two business owners and their companies facing numerous citations and hundreds of thousands of dollars in fines from the Department of Labor & Industries (L&I). James Thorpe, Northlake Capital & Development, 3917 Densmore LLC, and Chris Walters have each been cited for 11 willful and serious violations. In total, the fines for the four separate investigations add up to $789,200. "These two men endangered their workers and people who live nearby this project, including children" said Anne Soiza, L&I's assistant director for the Division of Occupational Safety and Health. "On top of that, they tried to avoid responsibility by creating a legal web of confusion over who was responsible. I hope this sends a strong message that we take worker safety and public health very seriously." L&I opened the inspection following a complaint from an alert neighbor living near the residential renovation project on Densmore Road in Lynnwood. Several workers were improperly removing exterior asbestos tiles from the home over a weekend. When two neighbors confronted Chris Walters, the man who said he was the homeowner, Walters promised to remove the asbestos correctly. However, the neighbors took videos that showed the workers committing several violations. An extensive investigation by L&I revealed that Walters was actually part of a complex corporate partnership created to renovate and flip the residence. The home was initially purchased by Seattle company Northlake Capital & Development, owned by James Thorpe. Northlake is a real property company that primarily focuses on house flipping. After the purchase, Thorpe created 3917 Densmore LLC and established Walters, a Northlake employee, as the sole member of the new corporation, claiming that Walters was the homeowner, and that he intended to live in the home. During the investigation neither Walters nor Thorpe accepted responsibility for the violations as they shifted responsibility from LLC to LLC and from person to person. Eventually, L&I cited both men and the companies they oversee for the same violations. The fines vary, primarily due to the number of workers each entity was responsible for. Thorpe and Northlake each received $214,100 in fines and Walters and 3917 Densmore each receive $180,500. The violations included using uncertified workers to remove asbestos; not using a certified asbestos supervisor; and not obtaining an asbestos good faith survey prior to beginning work. They were also cited for not using water and not keeping the shingles intact during removal (the workers were breaking the tiles with hammers); for the lack of proper personal protective equipment for workers; not monitoring the air during removal; and for not having a written accident prevention program. Asbestos is extremely hazardous and can cause potentially fatal diseases like asbestosis, mesothelioma and lung cancer. Only a certified abatement contractor that follows the specific asbestos related safety and health rules may remove and dispose of asbestos-containing building materials. An employer has 15 business days from the time a citation is received to appeal, and each of these citations is currently under appeal. Penalty money paid as a result of a citation is placed in the workers' compensation supplemental pension fund, helping injured workers and families of those who have died on the job. ********* 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 2019. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***