/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/141010.mbx C L A S S A C T I O N R E P O R T E R Friday, October 10, 2014, Vol. 16, No. 202 Headlines 1-800-FLOWERS.COM: Court Not Yet Ruled on Bid for Leave to Appeal ACELRX PHARMACEUTICALS: Sued Over Misleading Financial Reports ACME REFINING: Faces "Barragan" Suit Over Failure to Pay Overtime AMAG PHARMACEUTICALS: Entered Into Stipulation of Settlement AMEDISYS INC: 5th Cir. Reinstates PERSM Class Suit ANTENNA STAR: Sued in M.D. Pa. Over Violation of FLSA & PWPCL ANZ BANKING: Faces Class Suit Over Bad Financial Planning Advice APPLE INC: iPhone Users Get Class Action Settlement Checks ARCHDIOCESE OF PHILADELPHIA: Loses Bid to Nix Discrimination Suit ARCOUB & ARCOUB: Suit Seeks to Recover Unpaid OT Wages & Damages AT&T MOBILITY: Settles TCPA Class Action for $45 Million ATLAS ROOFING: "Seaberg" Suit Transferred From Florida to Georgia AURORA LOAN: Court Okays Amended Class Settlement Notice AVAGO TECHNOLOGIES: Court Stays California Class Action AVAGO TECHNOLOGIES: Delaware Class Litigation On-Going AVAGO TECHNOLOGIES: Del. Class Member Appeals Final Judgment AVID TECHNOLOGY: Class Action Scheduled for Trial in March 2015 AVON PRODUCTS: Judge Tosses FCPA China Bribe Class Action AWAKENED ALTERNATIVES: Sued in N.D. Ill. Over Violation of FLSA BEVERAGE WORKS: N.Y. Suit Seeks to Recover Unpaid Overtime Wages BOLT TECHNOLOGY: Faces Class Action Over Teledyne Merger Deal BUDDY ALBIN: Fails to Pay Overtime Hours, "Roberts" Suit Claims CHICAGO-KENT: Appeals Court Dismisses Consumer Fraud Class Action CHINA COMMERCIAL: Faces "Dennison" Class Action in New Jersey CHINA GREEN: Nevada Court Gave Final Approval to Settlement CHRYSLER GROUP: Faces "Samuel" Suit Over Faulty Steering System CLASSIC RESIDENCE: Removes "Victoriano" Suit to S.D. California DELAWARE STATE UNIV: Atty. Fees and Costs Awarded in "Foltz" Case DIRECTV LLC: Sued Over Violation of Fair Credit Reporting Act DIREXION SHARES: Faces Stoopler, Pfeiffer and Longman Actions DIREXION SHARES: Settlement Accepted in Schwack and William Cases DLP ENTERPRISES: Suit Seeks to Recover Unpaid Wages & Penalties DS SERVICES: Paid $2MM in Connection With Class Action DS SERVICES: Expects to Pay $2MM to Settle Wage and Hour Suits EQUIFAX INC: Faces Suit in Virginia Alleging Violations of FCRA FAMILY DOLLAR: Removes "Randall" Suit to Florida District Court FONCIA: Faces Class Action in France Over "Illegal" Rent Fees FRANKLIN FINANCIAL: Sued in Virginia Over Sale to TowneBank GENERAL MOTORS: "Williams" Suit Included in Ignition Switch MDL GENERAL MOTORS: Recalls 57,000+ Cars Over Wiring Problem GRANITE FACTORY: Faces "Hernandez" Suit Over Failure to Pay OT HEWLETT-PACKARD: Inkjet Class Counsel Awarded $1.9MM Fees HYPERDYNAMICS CORP: Lead Plaintiff Responds to Dismissal Bid HYPERDYNAMICS CORP: Shareholder Wants Lead Plaintiff Named INNOVIS HEALTH: Fails to Pay Proper Overtime Wages, Workers Claim INTUITIVE SURGICAL: Faces "Rausch" Liability Suit in N.D. Florida ISRAEL CHEMICALS: Hearing to Dismiss Class Action Reset to Nov. ISRAEL CHEMICALS: Says Class Suit Exposure Won't Exceed $20MM JP MORGAN: Court Narrows Claims in "Loeza" Class Action KINGSUN USA: Sent Unsolicited Fax, Morgan & Curtis Suit Says KOREAN AIRLINES: January 16 Settlement Approval Hearing Set LANNETT COMPANY: Plaintiff Voluntary Dismisses Class Action LILY MANAGEMENT: Accused of Violating TCPA in South Carolina LLOYDS: Investors File US-Style Class Action Over 2008 HBOS Deal LULULEMON ATHLETICA: Says Appeal in "Alkhoury" Case Has No Merit MEDTRONIC INC: Removes "Fultz" Suit to Tennessee District Court MEN'S WEARHOUSE: Appeals Court Affirmed "Camasta" Case Dismissal MEN'S WEARHOUSE: Court Dismisses Class Claims in "Johnson" Suit MEN'S WEARHOUSE: Faces "Salerno" Class Action in California METROPOLITAN PROPERTIES: Sued in Ohio Over Breach of Labor Laws MORGAN STANLEY: Seeks Dismissal of Force-Placed Insurance Suit MULTIMEDIA GAMES: Faces Suit Over Proposed Sale to Global Cash NEW ARCHVIEW: Sued in Illinois Over Failure to Pay Overtime Wages OCEAN POWER: Securities Class Actions in Preliminary Stages PELLA CORP: "Saltzman" Suit Moved From Illinois to South Carolina PEPCO HOLDINGS: Entered Into MOU in Merger Class Suit PERRY ELLIS: Mediation Scheduled for Fiscal 2015 3rd Quarter PHARMACEUTICAL INNOVATIONS: FDA Seeks Permanent Injunction PHILADELPHIA, PA: Faces Class Action Over Forfeiture Machine PHOENIX COMPANIES: Court Denied Fleisher's Summary Judgment Bid PHOENIX COMPANIES: Court Denied Tiger's Summary Judgment Motion PIXAR ANIMATION: Faces Class Action Over Sherman Act Violations PROCTER & GAMBLE: Faces "Tjokronolo" Deodorant Packaging Suit QUINTAIROS PRIETO: Sued for Violating Fair Debt Collection Act RADIOSHACK CORP: Appeal in "Brookler" Case Fully Briefed RADIOSHACK CORP: Class Cert. Denied in "Ordonez" Case RADIOSHACK CORP: Awaits Further Action by Appeals Court RADIOSHACK CORP: "Fluctuating Worksheet" Method Violates Pa. Law RADIOSHACK CORP: 7th Circuit Vetoes Class Action Settlement RESTORATION HARDWARE: $9.2MM in Fees Awarded to Plaintiffs' Atty RICH PRODUCTS: Recalls Gelato Fino Tartufo Products RITE WAY: Fails to Pay Employees Overtime, "Demorris" Suit Says SANSOO NORTH: Faces "Jaimes" Suit Over Failure to Pay Overtime SELECT FOOD: Recalls Newman's Parmesan & Roasted Garlic Dressing STARLINE TOURS: Removes "Harp" Suit to California District Court STATE FARM: Removes "Silcox" Insurance Suit to S.D. California SUPER ASIA: Recalls EBM Click Cumin Biscuit Due to Undeclared Milk SWEET ART: Recalls Chocolate Chip Macaroon Due to Undeclared Milk SYNGENTA CORP: Sued Over Loss of China's Corn Export Markets TEMPLETON RYE: Class Action Over Misleading Ad Can Proceed TIRE DON: Faces "Camilo" Suit Over Failure to Pay Overtime Wages TOTAL WEALTH: Faces Class Action Over Investment Losses TOYOTA MOTOR: Sued in C.D. California Over Defective Dashboards TOYOTA MOTOR: Faces "Burns" Suit Over Defect in Tacoma Vehicles TOYS R US: Recalls Children's Sandals Due to Choking Hazard TRANS UNION: Violates Fair Credit Reporting Act, Class Suit Says TRIMFOOT CO: Recalls Children's Soft-Soled Sneakers TWIN PINES: District Court Dismisses "Stinson" Class Action ULTA SALON: Defending Against Employment Class Action Lawsuit UNILEVER US: Faces "Bimont" Suit Over Deodorant Packaging UNITED STATES: Immigration Case Obtains Class Certification VERIS GOLD: Reached $3.6MM Deal in Former Employees' Class Action VIOLIN MEMORY: Dismissal Motion in IPO Suit Briefed and Argued WAL-MART: Faces Class Actions Over PCBs in Processing Center WELLS FARGO: Violates Fair Debt Collection Act, Class Suit Claims WHOLE FOODS: Removes "Clemente" Class Suit to E.D. Pennsylvania ZAZOU SCARVES: Recalls Women's Scarves Due to Burn Hazard * FDA's Device Approval System Needs Reform, Studies Say * K&L, Littler Mendelson & Morgan Lewis Named Top Defendant Firms * William Holder Joins Cornerstone Research as Senior Advisor Asbestos Litigation ASBESTOS UPDATE: Travelers Awaits Decision in Fibro Suits Appeal ASBESTOS UPDATE: Insurers Lose Pittsburg Corning Plan Appeal ASBESTOS UPDATE: WR Grace Terminates Obligations Under PI Trust ASBESTOS UPDATE: H.B. Fuller Records $190,000 Settlement Cost ASBESTOS UPDATE: Ameren Corp. Reports 73 Pending Suits at June 30 ASBESTOS UPDATE: Ameren Corp. Reports $24-Mil. Fibro Liabilities ASBESTOS UPDATE: CERC Continues to Defend Fibro-related Suits ASBESTOS UPDATE: Everest Re Has $360.3-Mil. Fibro Loss Reserves ASBESTOS UPDATE: Park-Ohio Holdings Had 269 PI Cases at June 30 ASBESTOS UPDATE: Magnetek Inc. Continues to Defend Fibro Suits ASBESTOS UPDATE: Metropolitan Life Had 2,569 New Fibro Claims ASBESTOS UPDATE: RPM PI Deal Ends if Plan Not Filed by Oct. 31 ASBESTOS UPDATE: "Hallum" Suit v. Andrea Electronics Dismissed ASBESTOS UPDATE: Summary Judgment Awarded to Andrea Electronics ASBESTOS UPDATE: "Edwards" Suit v. Andrea Electronics Is Pending ASBESTOS UPDATE: American Locker Group Had 16 Cases as of June 30 ASBESTOS UPDATE: IntriCon Corp. Continues to Defend PI Suits ASBESTOS UPDATE: EPA Awarded Summary Judgment in FOIA Suit ASBESTOS UPDATE: Partial Summary Ruling Issued in Metso-ITT Suit ASBESTOS UPDATE: 7 Cos. Obtain Summary Judgment in "Starnes" Suit ASBESTOS UPDATE: 2 Cos. Obtain Summary Judgment in "Walkup" Suit ASBESTOS UPDATE: Md. Court Affirms Ruling in "May" Suit ASBESTOS UPDATE: Pa. Court Affirms Ruling in "Haldaman" Suit ASBESTOS UPDATE: La. Court Recommends Remand of "Day" Suit ASBESTOS UPDATE: La. Court Recommends Remand of "Marvin" Suit ASBESTOS UPDATE: Honeywell Wins Summary Judgment in "Shimko" Suit ASBESTOS UPDATE: Crane Denied Summary Judgment in "Ruppel" Suit ASBESTOS UPDATE: Navistar Wins Dismissal of "New" Suit ASBESTOS UPDATE: Summary Judgment Awarded Following Settlement ASBESTOS UPDATE: Madison County Landfill Facing Fibro Concerns ASBESTOS UPDATE: Arctic College Students Concerned About Fibro ASBESTOS UPDATE: Fibro Complicates Roofing Work at McKean County ASBESTOS UPDATE: Fibro in Gary Demolition Halts Bank Project ASBESTOS UPDATE: St. Louis Becoming Destination for Fibro Claims ASBESTOS UPDATE: Judge Critical of Summary Judgment Arguments ASBESTOS UPDATE: Fibro Removal Clears Way for Use of Fire Hall ASBESTOS UPDATE: Work Violations Released Fibro Into Apartment ASBESTOS UPDATE: Fibro Compensation Crisis Facing Town Halls ASBESTOS UPDATE: Watchdog Faults EPA on Failed Fibro Tests ASBESTOS UPDATE: VA Director Responds to Fibro Investigation ASBESTOS UPDATE: VFW Building Contains Toxic Dust ASBESTOS UPDATE: UO Moves to Correct Fibro Floor Tile Problems ASBESTOS UPDATE: Toxic Dust Found in Longwood University ASBESTOS UPDATE: Welding Program Homeless During Fibro Testing ASBESTOS UPDATE: More Work Needed in Litigating Fibro Cases ASBESTOS UPDATE: Fibro Hikes Prices to Demolish Downtown Icon ASBESTOS UPDATE: Calif. Schools Suspend Fibro Removal Effort ASBESTOS UPDATE: Fibro Contributed to Newquay Man's Death ASBESTOS UPDATE: Stonington Woman Survives Fibro Cancer ASBESTOS UPDATE: Toxic Dust Leads to Abingdon Man's Death ASBESTOS UPDATE: Ohio Lawsuits Booted for Lack of Jurisdiction ASBESTOS UPDATE: Fibro Delays Dracut Old Town Hall Razing ASBESTOS UPDATE: Tex. Ruling Not Gaining Traction in Other Courts ASBESTOS UPDATE: Carmakers, Insurers Want Garlock Docs Unsealed ASBESTOS UPDATE: Deadly Dust Delays Strip Mall Demolition ASBESTOS UPDATE: MDL Judge to Junk Cases With No Medical Reports ASBESTOS UPDATE: Toxic Dust Found in Autauga County Courthouse ASBESTOS UPDATE: Quake Damage, Fibro Trap Mail at Post Office ASBESTOS UPDATE: 75% of English, Welsh Schools Contaminated ASBESTOS UPDATE: Winchester Engineer's Cancer Linked to Fibro ASBESTOS UPDATE: Ex-Shipwright Dies Due to Contact With Fibro ********* 1-800-FLOWERS.COM: Court Not Yet Ruled on Bid for Leave to Appeal ----------------------------------------------------------------- 1-800-FLOWERS.COM, Inc. said in its Form 10-K filed with the Securities and Exchange Commission on September 12, 2014, for the fiscal year ended June 29, 2014, the Plaintiffs in a class action moved for leave to appeal the various rulings against them to the United States Court of Appeals for the Second Circuit and to have a partial final judgment entered dismissing those claims that the Court had ordered dismissed. The Court has not yet ruled on this new motion. On November 10, 2010, a purported class action complaint was filed in the United States District Court for the Eastern District of New York naming the Company (along with Trilegiant Corporation, Inc., Affinion, Inc. and Chase Bank USA, N.A.) as defendants in an action purporting to assert claims against the Company alleging violations arising under the Connecticut Unfair Trade Practices Act ("CUTPA") among other statutes, and for breach of contract and unjust enrichment in connection with certain post-transaction marketing practices in which certain of the Company's subsidiaries previously engaged in with certain third-party vendors. On December 23, 2011, plaintiff filed a notice of voluntary dismissal seeking to dismiss the entire action without prejudice. The court entered an Order on November 28, 2012, dismissing the case in its entirety. This case was subsequently refiled in the United States District Court for the District of Connecticut. On March 6, 2012 and March 15, 2012, two additional purported class action complaints were filed in the United States District Court for the District of Connecticut naming the Company and numerous other parties as defendants in actions purporting to assert claims substantially similar to those asserted in the lawsuit filed on November 10, 2010. In each case, plaintiffs seek to have the respective case certified as a class action and seek restitution and other damages, each in an amount in excess of $5.0 million. On April 26, 2012, the two Connecticut cases were consolidated with a third case previously pending in the United States District Court for the District of Connecticut in which the Company is not a party (the "Consolidated Action"). A consolidated amended complaint was filed by plaintiffs on September 7, 2012, purporting to assert claims substantially similar to those originally asserted. The Company moved to dismiss the consolidated amended complaint on December 7, 2012, which was subsequently refiled at the direction of the Court on January 16, 2013. On December 5, 2012, the same plaintiff from the action voluntarily dismissed in the United States District Court for the Eastern District of New York filed a purported class action complaint in the United States District Court for the District of Connecticut naming the Company and numerous other parties as defendants, purporting to assert claims substantially similar to those asserted in the consolidated amended complaint (the "Frank Action"). On January 23, 2013, plaintiffs in the Consolidated Action filed a motion to transfer and consolidate the action filed on December 5, 2012 with the Consolidated Action. The Company intends to defend each of these actions vigorously. On January 31, 2013, the court issued an order to show cause directing plaintiffs' counsel in the Frank Action, also counsel for plaintiffs in the Consolidated Action, to show cause why the Frank Action is distinguishable from the Consolidated Action such that it may be maintained despite the prior-pending action doctrine. On June 13, 2013, the court issued an order in the Frank Action suspending deadlines to answer or to otherwise respond to the complaint until 21 days after the court decides whether the Frank Action should be consolidated with the Consolidated Action. On July 24, 2013 the Frank Action was reassigned to Judge Vanessa Bryant, before whom the Consolidated Action is currently pending, for all further proceedings. On August 14, 2013, other defendants filed a motion for clarification in the Frank Action requesting that Judge Bryant clarify the order suspending deadlines. On March 28, 2014, the Court issued a series of rulings disposing of all the pending motions in both the Consolidated Action and the Frank Action. Among other things, the Court dismissed several causes of action, leaving pending a claim for CUTPA violations stemming from Trilegiant's refund mitigation strategy and a claim for unjust enrichment. Thereafter, the Court consolidated the Frank case into the Consolidated Action. On April 28, 2014 Plaintiffs moved for leave to appeal the various rulings against them to the United States Court of Appeals for the Second Circuit and to have a partial final judgment entered dismissing those claims that the Court had ordered dismissed. The Court has not yet ruled on this new motion. The Company has filed its answer to the complaint on May 12, 2014. 1-800-FLOWERS.COM, Inc. is a florist and gift shop. ACELRX PHARMACEUTICALS: Sued Over Misleading Financial Reports -------------------------------------------------------------- Adam Zhamukhanov, individually and on behalf of all others similarly situated v. Acelrx Pharmaceuticals, Inc., Richard A. King, Timothy E. Morris, and James H. Welch, Case No. 5:14-cv- 04416 (N.D. Cal., October 1, 2014), alleges that the Defendants made false and misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Acelrx Pharmaceuticals, Inc., is a specialty pharmaceutical company focused on the development and commercialization of innovative therapies for the treatment of acute and breakthrough pain. The Individual Defendants are directors and officers of Acelrx Pharmaceuticals, Inc. The Plaintiff is represented by: Lionel Z. Glancy, Esq. Michael Goldberg, Esq. Robert V. Prongay, Esq. Casey E. Sadler, Esq. GLANCY BINKOW & GOLDBERG LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 Email: lglancy@glancylaw.com mmgoldberg@glancylaw.com rprongay@glancylaw.com csadler@glancylaw.com ACME REFINING: Faces "Barragan" Suit Over Failure to Pay Overtime ----------------------------------------------------------------- Roberto Borrego Barragan, individually and on behalf of other employees similarly situated v. Acme Refining Company and Laurence C. Baron, Case No. 1:14-cv-07666 (N.D. Ill., October 1, 2014), is brought against the Defendants for failure to pay overtime wages for hours worked in excess of 40 hours in a week. Acme Refining Company is a recycling company owned by Laurence C. Baron. The Plaintiff is represented by: Valentin Tito Narvaez , Esq. CONSUMER LAW GROUP, LLC 6232 N. Pulaski, Suite 200 Chicago, IL 60646 Telephone: (877) 509-6422 Facsimile: (888) 270-8983 E-mail: consumerlawgroupllc@gmail.com AMAG PHARMACEUTICALS: Entered Into Stipulation of Settlement ------------------------------------------------------------ AMAG Pharmaceuticals, Inc. said in its Form 8-K Report filed with the Securities and Exchange Commission, that on September 12, 2014, AMAG Pharmaceuticals, Inc. entered into a stipulation of settlement that will resolve the class action securities lawsuit, Silverstrand Investments et al v. AMAG Pharmaceuticals, Inc. et al, Civil Action No. 10-CV-10470-NMG (the "Lawsuit"), pending in the United States District Court for the District of Massachusetts (the "U.S. District Court"). The complaint for the Lawsuit was originally filed on March 18, 2010 in the U.S. District Court. The current and former officers, directors and underwriters named as defendants in the Lawsuit have also entered into the stipulation of settlement. By entering into the stipulation of settlement, the defendants do not in any way admit fault or liability, and continue to deny all allegations of wrongdoing arising out of the Lawsuit. The stipulation of settlement, a copy of which is filed as Exhibit 99.1 hereto, remains subject to preliminary and final approval by the U.S. District Court. The Company said, "Pursuant to the stipulation of settlement, and in exchange for a release of all claims by the class members, among others, and dismissal of the Lawsuit with prejudice, we have agreed to cause our insurer to pay eligible class members and their attorneys a total of $3.75 million. If the U.S. District Court preliminarily approves the settlement, potential class members will be notified of the proposed settlement and the procedures by which they can seek to recover from the settlement fund, object to the settlement or request to be excluded from the settlement class. The settlement will then be subject to final approval by the U.S. District Court." AMEDISYS INC: 5th Cir. Reinstates PERSM Class Suit -------------------------------------------------- Public Employees' Retirement System of Mississippi and Puerto Rico Teachers' Retirement System (PERSM or Plaintiffs) are the Lead Plaintiffs and, on behalf of the Class, filed suit under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 against Amedisys, Inc. and seven current or former board members of Amedisys including the company's chairman and CEO William Borne, and officers Dale E. Redman, Larry Graham, Gregory Browne, John F. Giblin, Alice Ann Schwartz, and Jeffrey Jeter claiming that Amedisys defrauded investors by concealing a Medicare fraud scheme. PERSM alleges that despite knowledge or reckless disregard of Amedisys's unlawful billing practices, Defendants issued materially false and misleading public statements to cause Amedisys securities to be traded at materially inflated prices from August 2, 2005 through September 28, 2010 (the Class Period). As information concerning fraudulent practices became known, the value of Amedisys securities dropped precipitously, which caused PERSM and the Class to suffer significant financial loss. The district court granted a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and dismissed the lawsuit with prejudice. The Plaintiffs then filed a motion for reconsideration of the order granting dismissal and a request for leave to file an amended complaint, which the district court summarily denied. The United States Court of Appeals, Fifth Circuit, on October 2, 2014, reversed and vacated the district court's grant of the motion to dismiss and remanded the matter for further proceedings consistent with its opinion. A copy of the Appeals Court's ruling is available at http://is.gd/SQDMZjfrom Leagle.com. The case is PUBLIC EMPLOYEES' RETIREMENT SYSTEM OF MISSISSIPPI, PUERTO RICO TEACHERS' RETIREMENT SYSTEM, Plaintiffs-Appellants, v. AMEDISYS, INCORPORATED; WILLIAM F. BORNE; DALE E. REDMAN; ALICE SCHWARTZ; LARRY GRAHAM; GREGORY H. BROWNE; JOHN F. GIBLIN; JEFFREY D. JETER, Defendants-Appellees DAVID ISMAN, Plaintiff, v. AMEDISYS, INCORPORATED; WILLIAM F. BORNE; DALE E. REDMAN, Defendants-Appellees ARIK DVINSKY, etc., Plaintiff, v. AMEDISYS, INCORPORATED; WILLIAM. F. BORNE; DALE E. REDMAN; JOHN F. GIBLIN; GREGORY H. BROWNE, Defendants-Appellees MELVIN W. BRINKLEY, Plaintiff, v. AMEDISYS, INCORPORATED; WILLIAM F. BORNE; DALE E. REDMAN, Defendants-Appellees, NO. 13-30580. ANTENNA STAR: Sued in M.D. Pa. Over Violation of FLSA & PWPCL ------------------------------------------------------------- Michael Krzywicki, on behalf of himself and similarly situated employees v. Antenna Star Satellites, Inc., Case No. 3:14-cv-01908 (M.D. Pa., October 1, 2014), is brought against the Defendant for violations of the Fair Labor Standards Act and the Pennsylvania Wage Payment and Collection Law. Antenna Star Satellites, Inc. is engaged in the business of installing Dish Network satellite television equipment and systems at residential and business locations in Pennsylvania. The Plaintiff is represented by: Peter D. Winebrake, Esq. WINEBRAKE & SANTILLO, LLC Twining Office Center, Suite 211 715 Twining Rd Dresher, PA 19025 Telephone: (215) 884-2491 Facsimile: (215) 884-2492 E-mail: pwinebrake@winebrakelaw.com ANZ BANKING: Faces Class Suit Over Bad Financial Planning Advice ---------------------------------------------------------------- Jessica Aquilina, writing for St Marys-Mt Druitt Star, reports that ANZ Banking Group and the Royal Bank of Scotland could face a class action brought by hundreds of disgruntled investors who lost millions following bad financial planning advice. If an action goes ahead, the banks could face a damages claim of up to NZ$200 million following an investigation by plaintiff law firm Shine Lawyers. Shine was approached by a number of investors, including Penrith residents, who had bought financial "products" through the Navra Financial Services as a consequence of "inappropriate financial advice", according to Shine's NSW class actions practice leader Sasha Ivantsoff. "We have seen many instances of people being given NZ$200,000 and NZ$300,000 margin loans when they had a single income of around NZ$60,000 per annum, which is an affordability question," Mr. Ivantsoff. "But the bank doesn't seem to have done any proper credit assessment or repayment assessment and instead lent against underlying assets of security without really considering the repayment prospects. The Dillon family in Glenmore Park say they have lost more than a million dollars and are set to lose their family home as a result of bad investments and bad advice. Rebecca Dillon and her husband Glen first approached Navra Financial Services for investment advice on property in 2007. "My parents had bought investment properties through Navra and so we decided to go there because it was our first investment property," she said. "We were told that we couldn't afford an investment property and they suggested that we invest our money in shares. "We trusted their advice." The Dillon's were advised to re-mortgage their home and use an ANZ margin loan to invest in the share fund. When the market collapsed, the Dillons had to sell their shares and refinance with warrants from the Royal Bank of Scotland. "We were told the warrants would be safer than a margin loan because we were told there would be no margin clause and there was a put insurance that covered against any future margin clause," Mrs. Dillon said. "That changed a couple of months later and we were told that we were exposed to stock losses instead of the margin clause." APPLE INC: iPhone Users Get Class Action Settlement Checks ---------------------------------------------------------- Sasha Jones, writing for WMCActionNews5.com, reports that Apple users will get a check years after they shoved over cash to replace water damaged iPhones and iPod touches before 2011. Millions of iPhone owners ruined their brand new devices with liquid, but when they went to get them replaced, Apple told them the damages were not covered. Apple settled a $53 million class action suit. The suit claims Apple wrongfully denied warranty coverage to consumers with liquid damage to the devices. The lawsuit was settled years ago, and last week people were finding checks in their mailboxes. Many worth as much as $250. ARCHDIOCESE OF PHILADELPHIA: Loses Bid to Nix Discrimination Suit ----------------------------------------------------------------- P.J. D'Annunzio, writing for The Legal Intelligencer, reports that a federal judge has denied the Archdiocese of Philadelphia's request to toss a discrimination case brought against it by Catholic school teachers who claim they were dismissed because of their age. U.S. District Judge Mitchell S. Goldberg of the Eastern District of Pennsylvania rejected the archdiocese's claims that the teachers were unable to file Age Discrimination in Employment Act claims under the "ministerial exception" to the employment discrimination statutes. The plaintiffs -- Patricia Carothers, Patricia Green, Linda Murphy and Kathleen Tangradi -- claimed they are classified as "lay" teachers as opposed to "religious personnel," Judge Goldberg wrote in his order. "Plaintiffs sufficiently allege that their primary duties were not ministerial in nature," Judge Goldberg said. "They claim that at any given time, they were teaching at least three more secular classes than religion classes, and occasionally were not teaching any religion classes at all." The plaintiffs received termination notices in January 2012 alerting them that their employment with St. Martha Parish would end at the conclusion of the school year, according to Judge Goldberg. The plaintiffs allege that their terminations were based on predetermined "matrices" that were not shared with them. Judge Goldberg said the plaintiffs, whose age range was 59 to 63 years old, alleged they were the four oldest teachers at the school, where the average teacher's age was 43. Ms. Carothers alleged she was told by the administration she had "everything," but did not fit into the matrix, and that she did not do enough outside of the classroom, according to Judge Goldberg. Ms. Green alleged the defendants told her she was being terminated because she did not have a bachelor's degree and because she had trouble climbing the stairs. Judge Goldberg said when Ms. Green informed the defendants that she climbed the stairs without difficulty and that she had passed the archdiocese's certification program, the defendants told her that her certification was outdated. Ms. Tangradi was similarly told she was being terminated for not having a bachelor's degree, and when she notified the administration that she was certified, she was told her certification was outdated, according to Judge Goldberg. Ms. Murphy contended that she was let go because she didn't have any religious credits. After she informed the administration that she had "more credits than was required," Judge Goldberg said, the administration told Ms. Murphy that she was "not certified." All of the plaintiffs claimed age was the motivating factor in their dismissals, Judge Goldberg said, and they filed suit in March. The plaintiffs further claimed that they were designated lay personnel by the school, as evidenced by their employee handbooks and their benefits, allegedly "tailored for 'lay' teachers." They also said the archdiocese's staff reduction policies excluded religious personnel, according to Judge Goldberg. The plaintiffs asserted that they taught secular subjects and when they did teach religious subjects, they had no decision-making power as to what to include or exclude in their teaching. The archdiocese and St. Martha Parish claimed they were protected from the plaintiffs' suit under the ministerial exception, which "'precludes application of [the ADEA] to claims concerning the employment relationship between a religious institution and its ministers,'" Judge Goldberg said. In order to determine whether any of the plaintiffs qualified as a "ministerial employee," Judge Goldberg said the court had to examine whether any of them "'played a substantial role in conveying the church's message and carrying out its mission.'" The defendants pointed to the U.S. Court of Appeals for the Third Circuit decision in Petruska v. Gannon University, in which the court looked to see if the plaintiff in that case had duties that constituted "teaching, spreading the faith, church governance, supervision of a religious order, or supervision of participation in religious ritual and worship," according to Judge Goldberg. The archdiocese argued the plaintiffs' duty of "teaching" as it related to Petruska brought them under the exception. However, Goldberg said, "In Petruska, the plaintiff was a university chaplain at a Catholic university. She was appointed by the president of the university who was a monsignor and admitted in her complaint that she was engaged in 'ministerial functions.' The plaintiff was clearly involved in 'church governance,' and was also a very vocal member of the university. Plaintiffs in the case before me have sufficiently alleged that their duties had significantly less entanglement with the religious mission of the school than those in Petruska." Laura Mattiacci of Console Law Offices represented the plaintiffs and said, "Just because you're a church or religious organization, it doesn't mean that you have free rein to ignore the civil rights laws that protect employees in this country." The archdiocese's attorney, Jacquelyn J. Ager -- jager@conradobrien.com -- of Conrad O'Brien, did not return a call seeking comment. ARCOUB & ARCOUB: Suit Seeks to Recover Unpaid OT Wages & Damages ---------------------------------------------------------------- Mijail Hernandez, on behalf of himself and all similarly situated individuals v. Arcoub & Arcoub, Inc. d/b/a Pizzafiore a Florida corporation, Case No. 1:14-cv-23636 (S.D. Fla., October 1, 2014), seeks to recover unpaid overtime wages an additional equal amount as liquidated damages, declaratory relief and reasonable attorney's fees and costs pursuant to the Fair Labor Standards Act. Arcoub & Arcoub, Inc. owns and operates a restaurant known as Pizzafiore. The Plaintiff is represented by: Michael N. Hanna, Esq. MORGAN AND MORGAN 600 N. Pine Island Road, Suite 400 Plantation, FL 33324 Telephone: (954) 318-0268 Facsimile: (954) 333-3515 E-mail: Mhanna@forthepeople.com AT&T MOBILITY: Settles TCPA Class Action for $45 Million -------------------------------------------------------- David Siegel and Kira Lerner, writing for Law360, report that AT&T Mobility LLC asked a Montana federal judge on Sept. 30 to approve a $45 million settlement that would resolve a proposed class action alleging the company violated the Telephone Consumer Protection Act by making unsolicited calls to individuals who purported not to be AT&T subscribers. In a joint motion filed with lead plaintiff Joel Hageman, the parties ask U.S. District Judge Dana L. Christensen to approve the proposed settlement, arguing that it presents guaranteed benefits to the 16,000-member settlement class without the risks and costs associated with a trial, while also absolving AT&T of all liability. The joint motion asks for the law firms Bishop and Heenan, Keogh Law Ltd., and Bingham and Lea PC to be appointed as settlement class counsel, and AT&T says it will not object to a fee award of up to $15 million. Joel Hageman also will receive an individual incentive award of $20,000, and all fees and awards will be paid from the $45 million settlement fund. The proposed settlement would allow members of a settlement class to receive up to $500 per call, with the actual size of the per- call payment being determined on a pro rata basis, according to the motion. The parties say they reached the agreement after a mediation session with former U.S. Magistrate Judge Morton Denlow of JAMS Resolution Centers. "The parties' agreement to settle this litigation reflects well- informed and engaged arm's-length bargaining with the assistance of a highly experienced mediator," the joint motion states. "Plaintiff's counsel have litigated numerous class actions, including cases involving the legality of calls made to cellular telephone numbers under the TCPA. For its part, ATTM is represented by experienced counsel who have thoroughly investigated plaintiff's claims and assessed their potential value." According to the complaint, Hagemen received multiple recorded calls from AT&T that began with the message, "This is an important message from AT&T to discuss your wireless service." AT&T claims customers contacted had consented to receiving the calls by providing their cellular telephone number as a can-be-reached number for AT&T's customer accounts. The $45 million agreement is one of the largest proposed settlements to resolve a TCPA suit in recent memory. A California federal judge on Sept. 2 approved a $32 million settlement resolving a class action alleging Bank of America Corp. violated the Telephone Consumer Protection Act, an amount the parties claim is the largest recovery ever obtained in a finalized TCPA settlement. Capital One Financial Corp. and three collections agencies agreed in August to pay almost $75.5 million to settle a consolidated class action TCPA suit, but that agreement has yet to receive final approval. The plaintiffs are represented by Bishop & Heenan and by Bingham & Lea PC. AT&T is represented by Mayer Brown LLP and by Crowley Fleck PLLP. The case is Joel Hageman v. AT&T Mobility LLC, case number 1:13- cv-00050, in the U.S. District Court for the District of Montana. ATLAS ROOFING: "Seaberg" Suit Transferred From Florida to Georgia ----------------------------------------------------------------- The class action lawsuit styled Seaberg v. Atlas Roofing Corporation, Case No. 1:14-cv-22436, was transferred from the U.S. District Court for the Southern District of Florida to the U.S. District Court for the Northern District of Georgia (Atlanta). The Georgia District Court Clerk assigned Case No. 1:14-cv-03179- TWT to the proceeding. The class action is brought in connection with the alleged defective Stratford Shingles designed, manufactured, marketed, advertised and sold by Atlas. The Plaintiff is represented by: Jordan L. Chaikin, Esq. PARKER WAICHMAN LLP 3301 Bonita Beach Road, Suite 101 Bonita Springs, FL 34134 Telephone: (239) 390-1000 Facsimile: (239) 390-0055 E-mail: jchaikin@yourlawyer.com AURORA LOAN: Court Okays Amended Class Settlement Notice -------------------------------------------------------- District Judge Thomas E. Loeser signed on September 30, 2014, a stipulation amending a notice of class action settlement in the case captioned MAUDER and ALICE CHAO; DEOGENESO and GLORINA PALUGOD, and MARITZA PINEL, individually and on behalf of all others similarly situated, Plaintiffs, v. AURORA LOAN SERVICES, LLC, Defendant, NO. 10-CV-03118-SBA, (N.D. Cal.). The parties in the case have stipulated that the Notice of Class Action Settlement be amended to include the property address and Aurora loan number for which notice is sent. By amending the Notice of Class Action Settlement to include the property address and Aurora loan number, potential class members will be able to determine which particular property and/or loan is addressed in each Notice of Class Action Settlement received, which will minimize the possibility of confusion for potential class members with more than one loan or more than one property at issue. A copy of the court-approved stipulation is available at http://is.gd/FigjzIfrom Leagle.com. David B. Bergman, Attorneys for Defendant AURORA LOAN SERVICES LLC. AVAGO TECHNOLOGIES: Court Stays California Class Action ------------------------------------------------------- Avago Technologies Limited said in its Form 10-Q filed with the Securities and Exchange Commission on September 12, 2014, for the quarterly period ended August 3, 2014, that in June and July 2014, four lawsuits were filed in the Superior Court for the State of California, County of Santa Clara challenging the Company's acquisition of PLX Technology Inc. On July 22, 2014, the court consolidated these California actions under the caption In re PLX Technology, Inc. S'holder Litig., Lead Case No. 1-14-CV-267079 (Cal. Super. Ct., Santa Clara) and appointed lead counsel. That same day, the court also stayed the consolidated action, pending resolution of related actions filed in the Delaware Court of Chancery. Avago Technologies is a designer, developer and global supplier of a broad range of semiconductor devices with a focus on III-V based products and complex digital and mixed signal CMOS based devices. AVAGO TECHNOLOGIES: Delaware Class Litigation On-Going ------------------------------------------------------ Avago Technologies Limited said in its Form 10-Q filed with the Securities and Exchange Commission on September 12, 2014, for the quarterly period ended August 3, 2014, that in June and July 2014, five lawsuits were filed in the Delaware Court of Chancery. On July 21, 2014, the court consolidated these Delaware actions under the caption In re PLX Technology, Inc. Stockholders Litigation, Consol. C.A. 9880-VCL (Del. Ch.), appointed lead plaintiffs and lead counsel, and designated an operative complaint for the consolidated action. The operative complaint alleges, among other things, that PLX's directors breached their fiduciary duties to PLX's stockholders by seeking to sell PLX for an inadequate price, pursuant to an unfair process, and by agreeing to preclusive deal protections in the merger agreement. Plaintiffs also allege that PLX, Potomac Capital Partners II, L.P., Avago Technologies Wireless (U.S.A.) Manufacturing, Inc. and the acquisition subsidiary aided and abetted the alleged fiduciary breaches. Plaintiffs also allege that PLX's 14D-9 recommendation statement contains false and misleading statements and/or omits material information necessary to inform the shareholder vote. The complaint seeks, among other things, equitable relief to enjoin and/or rescind the consummation of the acquisition, and attorneys' fees and costs. On July 31, 2014, counsel for lead plaintiffs in Delaware informed the court that they would not seek a preliminary injunction, but intend to seek damages and pursue monetary remedies through post- closing litigation. The acquisition of PLX closed on August 12, 2014. The Delaware class litigation is on-going. Avago Technologies is a designer, developer and global supplier of a broad range of semiconductor devices with a focus on III-V based products and complex digital and mixed signal CMOS based devices. AVAGO TECHNOLOGIES: Del. Class Member Appeals Final Judgment ------------------------------------------------------------ Avago Technologies Limited said in its Form 10-Q filed with the Securities and Exchange Commission on September 12, 2014, for the quarterly period ended August 3, 2014, that fifteen purported class action complaints have been filed by alleged former stockholders of LSI Corporation against the Company. Eight of those lawsuits were filed in the Delaware Court of Chancery, and the other seven lawsuits were filed in the Superior Court of the State of California, County of Santa Clara on behalf of the same putative class as the Delaware actions (the "California Actions"). On January 17, 2014, the Delaware Court of Chancery entered an order consolidating the Delaware actions into a single action (the "Delaware Action"). The Company said, "These actions generally alleged that we aided and abetted breaches of fiduciary duty by the members of LSI's board of directors in connection with the merger because the merger was not in the best interest of LSI, the merger consideration is unfair and certain other terms of the merger agreement were unfair. Among other remedies, the lawsuits sought to rescind the merger or obtain unspecified money damages, costs and attorneys' fees." "On March 7, 2014, the parties to the Delaware Action reached an agreement in principle to settle the Delaware Action on a class wide basis, and negotiated a stipulation of settlement that was presented to the Delaware Court of Chancery on March 10, 2014. On March 12, 2014, the parties to the California Actions entered into a stipulation staying the California Actions pending resolution of the Delaware Action. On May 16, 2014, the plaintiffs in the Delaware Action filed a motion for final approval of the proposed settlement and award of attorneys' fees and expenses with the Delaware Court of Chancery. On June 10, 2014, the Delaware court approved the settlement, including the payment of $2 million to counsel for the stockholders, entered final judgment and dismissed the case (the "Order and Final Judgment"). On July 10, 2014, a class member of the Delaware Action filed a notice of appeal from the Order and Final Judgment. "We and our Board believe the appeal and underlying claims are entirely without merit and, in the event the settlement is not approved, we intend to vigorously defend these actions." Avago Technologies is a designer, developer and global supplier of a broad range of semiconductor devices with a focus on III-V based products and complex digital and mixed signal CMOS based devices. AVID TECHNOLOGY: Class Action Scheduled for Trial in March 2015 --------------------------------------------------------------- Avid Technology, Inc. said in its Form 10-K filed with the Securities and Exchange Commission on September 12, 2014, for the fiscal year ended December 31, 2013, that in March 2013 and May 2013, two purported securities class action lawsuits were filed against the Company and certain of its former executive officers seeking unspecified damages in the U.S. District Court for the District of Massachusetts. In July 2013, the two cases were consolidated and the original plaintiffs agreed to act as co-plaintiffs in the consolidated case. In September 2013, the co-plaintiffs filed a consolidated amended complaint on behalf of those who purchased the Company's common stock between October 23, 2008 and March 20, 2013. The Company said, "The consolidated amended complaint, which named us, certain of our current and former executive officers and our former independent accounting firm as defendants, purported to state a claim for violation of federal securities laws as a result of alleged violations of the federal securities laws pursuant to Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder. In October 2013, we filed a motion to dismiss the consolidated amended complaint, resulting in the dismissal of some of the claims, and the dismissal of Mr. Hernandez and one of the two plaintiffs from the case. The matter is scheduled for trial in March 2015." Avid Technology provides technology products, solutions and services that enable the creation and monetization of audio and video content. AVON PRODUCTS: Judge Tosses FCPA China Bribe Class Action --------------------------------------------------------- Khadijah M. Britton, writing for Law360, reports that a New York federal judge on Sept. 29 tossed a putative class action by Avon Products Inc. shareholders that accused the company and its senior executives of falsely inflating stock prices by hiding violations of the Foreign Corrupt Practices Act. U.S. District Judge Paul G. Gardephe of the Southern District of New York said despite adding 100 pages of new evidence to their complaint in July, investors failed to show Avon made or intended to make false or misleading statements regarding its use of bribes to enter the Chinese direct selling market. He therefore granted Avon's motion to dismiss, and also granted its shareholders leave to amend, saying they can file a second amended complaint by Oct. 24. The shareholders brought the suit on behalf of themselves and others who bought Avon stock at an alleged artificially inflated price between July 31, 2006, and October 26, 2011, when an SEC investigation was launched against the company. Although the investors called a number of statements in Avon's ethics codes and corporate responsibility reports materially false and misleading in regard to its compliance and oversight programs, the court called most of the statements puffery or mere generalizations, and not factual enough to be actionable as securities fraud, because reasonable investors "do not rely on generalizations regarding integrity, fiscal discipline and risk management." The court said reasonable investors could be expected to rely on Avon's statements in its corporate responsibility report that it had taken steps to ensure the integrity of its financial reporting, but those statements were not actionable because the shareholders had failed to plead sufficient facts demonstrating Avon made those statements with "an intent to deceive, manipulate or defraud." Although they did not need to prove Avon's intent, the plaintiffs needed to allege facts that either showed Avon had motive and opportunity to commit fraud, or provided strong circumstantial evidence of conscious misbehavior or recklessness. In June 2008, Avon's executives received a whistleblower letter telling them that the company was violating the FCPA, but the court addressed shareholders' claims that they had the requisite knowledge before that date. Judge Gardephe found shareholders had failed to show that Avon's once-CEO Andrea Jung had such knowledge, despite meetings with top Chinese officials and her high position in the company. "While Avon may have been striving to involve its senior management more in the day-to-day business operations in China," Judge Gardephe said, "plaintiffs have not pled facts demonstrating the level of involvement senior management actually had . . . and how this involvement made defendants aware that Avon employees were paying bribes to senior Chinese officials." Shareholders also accused former CFO Charles Cramb of knowing about another fraud report that had circulated within the company, but the court found its reliance on the idea that Cramb signed off on a senior executive's severance package in order to silence him about the report conclusory. Mr. Cramb's January 2012 firing was also deemed insufficient circumstantial evidence that he intended to defraud or mislead. Regarding then-CEO Jung's receipt of a whistleblower letter in June 2008, the court agreed with shareholders that put Jung on notice that the company's Chinese operations might involve FCPA violations, but refused to find she should have mentioned it in Avon's Form 10-Q, SOX certification or quarterly earnings call a month later. "The mere fact that Jung received the whistleblower letter," the court said, "does not demonstrate that Avon knew the allegations in the letter were true or consciously disregarded proof of the alleged bribery scheme in making Avon's financial disclosures." The court found Avon's later disclosures sufficient, from when it disclosed its internal fraud investigation in October 2008 onward. The proposed class is represented by Bryan A. Wood and Justin Saif -- jsaif@bermandevalerio.com -- of Berman Devalerio LLP, Motley Rice LLC, Wolf Popper LLP. Avon is represented by Peter C Hein -- PCHein@wlrk.com -- and William Joseph Martin -- WJMartin@wlrk.com -- of Wachtell Lipton Rosen & Katz. The case is City of Brockton Retirement System et al. v. Avon Products Inc. et al., case number 1:11-cv-4665, in the U.S. District Court for the Southern District of New York. AWAKENED ALTERNATIVES: Sued in N.D. Ill. Over Violation of FLSA --------------------------------------------------------------- Valerie Davis, Earnesto Williams, on behalf of themselves, and all other plaintiffs similarly situated known and unknown v. Awakened Alternatives, Inc., Case No. 1:14-cv-07657 (N.D. Ill., October 1, 2014), is brought against the Defendant for violation of the Fair Labor Standards Act. Awakened Alternatives, Inc. is a community healthcare management company located in Flossmoor, Illinois, that provides a variety of healthcare related services. The Plaintiff is represented by: Justin L. Leinenweber, Esq. LEINENWEBER BARONI & DAFFADA LLC 203 N. LaSalle St., Suite 1620 Chicago, IL 60601 Telephone: (866) 786-3705 E-mail: justin@ilesq.com BEVERAGE WORKS: N.Y. Suit Seeks to Recover Unpaid Overtime Wages ---------------------------------------------------------------- Edwin Pacheco and Nicolas Jones, on behalf of themselves and all others similarly situated v. The Beverage Works, Inc. and Ricardo Valentine, in his individual and professional capacities, Case No. 1:14-cv-05763 (E.D.N.Y., October 1, 2014), seeks to recover unpaid overtime compensation pursuant to the Fair Labor Standards Act. The Beverage Works, Inc. is a beverage company that manufactures energy drinks. The Plaintiff is represented by: Alexander T. Coleman, Esq. Michael J. Borrelli, Esq. Jeffrey Robert Maguire, Esq. BORRELLI & ASSOCIATES PLLC 1010 Northern Blvd, Suite 328 Great Neck, NY 11201 Telephone: (516) 248-5550 Facsimile: (516) 248-6027 E-mail: atc@employmentlawyernewyork.com mjb@employmentlawyernewyork.com jrm@employmentlawyernewyork.com BOLT TECHNOLOGY: Faces Class Action Over Teledyne Merger Deal ------------------------------------------------------------- Bolt Technology Corporation said in its Form 10-Q filed with the Securities and Exchange Commission on September 12, 2014, for the quarterly period ended August 2, 2014, the Company on September 10, 2014, was served with a petition naming the Company, the members of the Company's Board of Directors, Teledyne Technologies Incorporated and Lightning Merger Sub, Inc. as defendants in a complaint filed in the Superior Court of the State of Connecticut, Judicial District of Stamford-Norwalk. The case is captioned Andrew Post, on behalf of himself and all others similarly situated, as Plaintiff, v. Bolt Technology Corporation, Joseph Espeso, Michael C. Hedger, Stephen F. Ryan, Kevin M. Conlisk, Peter J. Siciliano, Gerald A. Smith, Michael H. Flynn, George R. Kabureck, Raymond M. Soto, Teledyne Technologies Inc., and Lightning Merger Sub, Inc., as Defendants. This is a purported shareholder class action lawsuit brought by one of the Company's shareholders, on behalf of himself and others similarly situated, alleging that in entering into the proposed transaction with Teledyne, the Defendants have breached their fiduciary duties of good faith, loyalty and due care, and/or have aided and abetted such breaches. The Plaintiff seeks, among other things, to enjoin the transactions contemplated by the merger agreement and attorney's fees. An unfavorable outcome in this lawsuit could prevent or delay the consummation of the merger, result in substantial costs to the Company, or both. It is also possible that other lawsuits may yet be filed and the Company cannot estimate any possible loss from this or future litigation at this time. The Company consists of four operating units: Bolt Technology Corporation ("Bolt"), A-G Geophysical Products, Inc. ("A-G"), Real Time Systems Inc. ("RTS") and SeaBotix Inc. ("SBX"). Bolt, A-G and RTS products are used in marine seismic exploration surveys to acquire seismic data. Bolt develops, manufactures and sells marine seismic energy sources (air guns) and replacement parts and is referred to as the "seismic energy sources" segment. A-G develops, manufactures and sells underwater cables, connectors, hydrophones, depth and pressure transducers and seismic source monitoring systems and is referred to as the "underwater cables and connectors" segment. RTS develops, manufactures and sells air gun analog and digital controllers/synchronizers, data loggers and auxiliary equipment and is referred to as the "seismic energy source controllers" segment. SBX develops, manufactures and sells underwater remotely operated robotic vehicles and is referred to as the "underwater robotic vehicles" segment. BUDDY ALBIN: Fails to Pay Overtime Hours, "Roberts" Suit Claims --------------------------------------------------------------- Edward Roberts and Rickey Mosley, on behalf of themselves and all others similarly situated v. Buddy Albin Construction & Electric, Inc., Case No. 3:14-cv-01933 (M.D. Tenn., October 1, 2014), is brought against the Defendant for failure to pay overtime wages for hours worked in excess of 40 hours in a week. Buddy Albin Construction & Electric, Inc. offers construction and electrical services for residential and commercial buildings. The Plaintiff is represented by: Jonathan A. Street, Esq. THE HIGGINS FIRM, PLLC 525 4th Avenue South Nashville, TN 37210 Telephone: (615) 353-0930 E-mail: street@higginsfirm.com CHICAGO-KENT: Appeals Court Dismisses Consumer Fraud Class Action ----------------------------------------------------------------- JD Journal, citing The National Law Journal, reports that consumer fraud class actions filed against Chicago-Kent College of Law, DePaul University College of Law and the John Marshall Law School has been dismissed by the Illinois Appellate Court's First District. The class actions were filed by graduates of these law schools who claimed that they had been duped by the schools and their exaggerated job-placement statistics. The decision was made by a panel of three judges. These law schools were three of 14 sued back in 2012 by alumni. On September 11, 2012, a Circuit Court judge in Cook County, Illinois dismissed the class action filed against DePaul. The judge ruled that the fraud claims were too broad and that the plaintiffs named in the case did not have specific evidence the school lied about the job-placement data. The cases against Chicago-Kent and John Marshall were thrown out by a different judge from the same court two months later. Three separate opinions were issued on Sept. 26 by the panel of judges, but all of them were similar. The three judges included Judge Mary Rochford, Judge Shelvin Louise Marie Hall and Judge Mary Anne Mason. In the lawsuits, the plaintiffs claimed that the schools violated the Consumer Fraud and Deceptive Business Practices Act of Illinois; negligent misrepresentation and common-law fraud. "Plaintiffs failed to adequately allege any misrepresentations by DePaul in its employment information for the 2005, 2007 and 2009 classes, i.e., plaintiffs received exactly what they paid for (the J.D. degrees) and, thus, have failed to show any actual damages," Rochford wrote in the DePaul case. CHINA COMMERCIAL: Faces "Dennison" Class Action in New Jersey ------------------------------------------------------------- China Commercial Credit, Inc. said in its Form 8-K Report filed with the Securities and Exchange Commission on September 11, 2014, that a purported shareholder Andrew Dennison filed on August 6, 2014, a putative class action complaint in the United States District Court District of New Jersey relating to a July 25, 2014 press release about the Company's progress in recovering a significant portion of the $5.4 million the Company paid in the first quarter of 2014 on behalf of loan guarantee customers. The action is captioned Andrew Dennison v. China Commercial Credit, Inc., Huichun Qin, Long Yi, Jianming Yin, Jinggen Ling, Xiangdong Xiao, and John F. Levy, Case No. 2:2014-cv-04956. The action alleges that the Company and its current and former officers and directors violated the federal securities laws by misrepresenting in prior public filings certain material facts about the risks associated with its loan guarantee business. The Company believes that this lawsuit is without merit and intends to vigorously defend against it. CHINA GREEN: Nevada Court Gave Final Approval to Settlement ----------------------------------------------------------- China Green Agriculture, Inc. said in its Fiscal Year 2014 Financial Results filed with the Securities and Exchange Commission on September 12, 2014, that on August 12, 2014, the United States District Court for the State of Nevada gave its final approval to the settlement of the securities class action pending against the Company and certain of its current and former officers and directors since October 15, 2010. As a result, all securities law claims that had been filed against the Company have now been resolved and dismissed. The Company mainly produces and distributes humic acid-based compound fertilizers, varieties of compound fertilizers and agricultural products through its subsidiaries in China. CHRYSLER GROUP: Faces "Samuel" Suit Over Faulty Steering System --------------------------------------------------------------- Richard Samuel, on behalf of himself and all others similarly situated v. Chrysler Group LLC, Case No. 8:14-cv-01609-CJC-DFM (C.D. Cal., October 3, 2014) is brought on behalf of a proposed nationwide class of owners of certain 2004-2012 Dodge Ram trucks. According to the complaint, the trucks in question came factory equipped with a defective steering system, which causes the trucks to begin shaking uncontrollably when driven at high speeds -- commonly known as the "death wobble" -- and which can lead to the abrupt failure of the steering system, making it impossible to maintain control of the vehicles. Chrysler Group LLC is a Delaware limited liability company headquartered in Auburn Hills, Michigan. Chrysler is one of the largest automakers in the United States, producing Chrysler, Jeep, Dodge, Ram, Fiat, and Mopar vehicles and products. Chrysler develops, manufactures, distributes, and sells a wide range of automotive products, including passenger cars, light trucks, and heavy trucks. The Plaintiff is represented by: Eric H. Gibbs, Esq. Dylan Hughes, Esq. GIRARD GIBBS LLP 601 California Street, 14th Floor San Francisco, CA 94108 Telephone: (415) 981-4800 Facsimile: (415) 981-4846 E-mail: ehg@girardgibbs.com dsh@girardgibbs.com - and - Gregory F. Coleman, Esq. GREG COLEMAN LAW PC Bank of America Center 550 Main Avenue, Suite 600 Knoxville, TN 37902 Telephone: (865) 247-0080 Facsimile: (865) 522-0049 E-mail: greg@gregcolemanlaw.com CLASSIC RESIDENCE: Removes "Victoriano" Suit to S.D. California --------------------------------------------------------------- The class action lawsuit styled Victoriano v. Classic Residence Management, LP, et al., Case No. 37-2014-00028031-CU-OE-CTL, was removed from the Superior Court of the State of California for the County of San Diego to the United States District Court for the Southern District of California. The District Court Clerk assigned Case No. 3:14-cv-02346-LAB-JLB to the proceeding. The action seeks recovery of unpaid wages and waiting time penalties under the California Labor Code. The Plaintiff is represented by: Joseph Antonelli, Esq. Janelle Carney, Esq. Jason Hatcher, Esq. LAW OFFICE OF JOSEPH ANTONELLI 14758 Pipeline Ave., Suite E, 2nd Floor Chino Hills, CA 91709 Telephone: (909) 393-0223 Facsimile: (909) 393-0471 E-mail: jantonelli@antonellilaw.com jcarney@antonellilaw.com jhatcher@antonellilaw.com The Defendants are represented by: Jennifer N. Lutz, Esq. Jenna Leyton-Jones, Esq. PETTIT KOHN INGRASSIA & LUTZ PC 11622 El Camino Real, Suite 300 San Diego, CA 92130 Telephone: (858) 755-8500 Facsimile: (858) 755-8504 E-mail: jlutz@pettitkohn.com jleyton@pettitkohn.com DELAWARE STATE UNIV: Atty. Fees and Costs Awarded in "Foltz" Case ----------------------------------------------------------------- District Judge Leonard P. Stark approved an application for attorneys fees and costs filed by plaintiffs in CAROLINE FOLTZ, SHELBY BONNEVILLE, BRITTNI COLLINS, ERIN ENGARD, AMANDA HOTZ, BREANN HUYETT, VICTORIA KEEN, DIANA SAVOSH, on behalf of themselves and all similarly situated individuals, Plaintiffs, v. DELAWARE STATE UNIVERSITY, Defendant, C.A. NO. 10-149-LPS, (D. Del.). Judge Stark, in his September 30, 2014 memorandum order, a copy of which is available at http://is.gd/kIU5X2from Leagle.com, held that these professionals' reasonable attorney's fees are approved: The Women's Law Project $45,003.55 Plaster Greenberg PC $31,735.09 Pinckney, Harris & Weidinger, LLC $555.00 Flaster Greenberg PC $147.84.2 Delaware State University, Defendant, represented by Kathleen Furey McDonough -- kmcdonough@potteranderson.com -- Potter Anderson & Corroon, LLP & Sarah Elizabeth DiLuzio -- sdiluzio@potteranderson.com -- Potter Anderson & Corroon, LLP. DIRECTV LLC: Sued Over Violation of Fair Credit Reporting Act ------------------------------------------------------------- James Hollifield, on behalf of himself and all others similarly situated v. DirecTV, LLC, and Sterling Infosystems, Inc., Case No. 2:14-cv-07622 (C.D. Cal., October 1, 2014), is brought against the Defendants for violation of the Fair Credit Reporting Act. DirecTV, LLC is a direct broadcast satellite service provider and broadcaster. Sterling Infosystems, Inc. provides of Pre-Employment screening and HR outsourcing services, information and solutions. The Plaintiff is represented by: Matthew J. Erausquin, Esq. CONSUMER LITIGATION ASSOCIATES, P.C. 1800 Diagonal Road, Suite 600 Alexandria, VA 22314 Telephone: (703) 273-7770 Facsimile: (888)892-3512 E-mail: matt@clalegal.com - and - Leonard A. Bennett, Esq. CONSUMER LITIGATION ASSOCIATES, P.C. 763 J. Clyde Morris Blvd., Suite 1-A Newport News, VA 23601 Telephone: (757) 930-3660 Facsimile: (757) 930-3662 E-mail: lenbennett@clalegal.com DIREXION SHARES: Faces Stoopler, Pfeiffer and Longman Actions ------------------------------------------------------------- Direxion Shares ETF Trust II said in its Form 10-K filed with the Securities and Exchange Commission on September 12, 2014, for the fiscal year ended June 30, 2014, that Daniel D. O'Neill, a principal of Direxion Asset Management, LLC (the "Sponsor"), was named as a defendant in a purported class action lawsuit filed on September 17, 2009. The plaintiff, Evan Stoopler, filed a putative class action against several defendants, including Direxion Shares ETF Trust ("ETF Trust") and Rafferty Asset Management, LLC ("Rafferty") -- both affiliates of the Sponsor -- and the Sponsor's Managing Director, Daniel D. O'Neill. The action was filed in the United States District Court for the Southern District of New York. Stoopler, on Behalf of Himself and All Other Similarly Situated v. Direxion Shares ETC Trust et al., 09-CV- 8011-RJH. Two other largely identical lawsuits have since been filed by other plaintiffs, Milton Pfeiffer, on Behalf of Himself and All Other Similarly Situated v. Direxion Shares ETF Trust, et al., S.D.N.Y. 09-CV-8375 (RJH), and Thomas C. Longman on Behalf of Himself and All Other Similarly Situated v. Direxion Shares ETF Trust, et al., S.D.N.Y. 09-CV-8459 (RJH). The lawsuits are purportedly brought on behalf of persons or entities who purchased or otherwise acquired shares in the Direxion Daily Financial Bear 3X Shares, a series of the ETF Trust. The complaints allege that the defendants violated Sections 11 and 15 of the Securities Act of 1933, 15 U.S.C. Sec. 77k and 15 U.S.C. Sec. 77o, respectively. More particularly, the complaints allege that the ETF Trust's registration statement contained incomplete and/or misleading information in that it failed to clearly disclose that, while the fund is designed to generate returns that approximate three times the inverse of the performance of its target benchmark on a daily basis, for longer time horizons, the fund's performance differs substantially and unpredictably from three times the inverse of the performance of the target benchmark. The complaints additionally appear to suggest that the fund's registration statement failed adequately to disclose that the fund may be unsuitable for most retail investors. The complaints allege that, as a result of these alleged disclosure deficiencies, investors suffered considerable damages. DIREXION SHARES: Settlement Accepted in Schwack and William Cases ----------------------------------------------------------------- Direxion Shares ETF Trust II said in its Form 10-K filed with the Securities and Exchange Commission on September 12, 2014, for the fiscal year ended June 30, 2014, that on January 13, 2010, and February 17, 2010, respectively, plaintiffs Howard Schwack and William Lee filed putative class actions against the ETF Trust, Rafferty and Mr. O'Neill in the United States District Court for the Southern District of New York. Schwack v. Direxion Shares ETF Trust et al., 10-cv-00271-RJH; Lee v. Direxion Shares ETF Trust et al., 10-cv-01273-UA. Each of these complaints raises allegations generally similar to those that were made in the earlier lawsuits except that they concern the Direxion Daily Energy Bear 3X Shares, a different series of the ETF Trust than the Direxion Daily Financial Bear 3X Shares that was the subject of earlier lawsuits. On behalf of the putative class, the lawsuits sought various forms of relief against all defendants, including joint and several liability for compensatory damages, interest, punitive damages, costs and expenses plaintiffs incur in the action, including counsel fees and expert fees, recissory relief, and such equitable/injunctive or other relief as deemed appropriate by the Court. On January 31, 2013, a settlement was filed with the Court. The settlement was between the ETF Trust, Rafferty, Mr. O'Neill and the other defendants and the plaintiffs including all those that qualified for the class definition defined in the settlement. The Court accepted the settlement on May 11, 2013. DLP ENTERPRISES: Suit Seeks to Recover Unpaid Wages & Penalties --------------------------------------------------------------- Earl Stephenson, Curtis Dinkins, Steven Wilson, and Charles Feagin, on behalf of themselves and all others similarly situated v. DLP Enterprises, Inc., d/b/a Paige Decking, Scott Paige, and Denise Paige, Case No. 2:14-cv-00485 (E.D. Va., October 1, 2014), seeks to recover unpaid wages and liquidated damages, attorney fees, and other relief for violations of the Fair Labor Standards Act. The Defendants are engaged in the business of ship maintenance and rehabilitation. The Plaintiff is represented by: Andrea Ruege, Esq. Lisa Ann Bertini, Esq. BERTINI & HAMMER, PC 999 Waterside Dr., Suite 1010 Norfolk, VA 23510 Telephone: (757) 670-3868 Facsimile: (757) 670-3865 E-mail: aruege@bhlegalteam.com lbertini@bhlegalteam.com - and - James Richard Theuer, Esq. JAMES R. THEUER, PLLC 555 E. Main St., Suite 801 Norfolk, VA 23510 Telephone: (757) 446-8047 Facsimile: (757) 446-8048 E-mail: jim@theuerlaw.com DS SERVICES: Paid $2MM in Connection With Class Action ------------------------------------------------------ DS Services Holdings, Inc. said in its Form 10-Q/A filed with the Securities and Exchange Commission on September 12, 2014, for the quarterly period ended June 27, 2014, that the Company is party to a putative class action lawsuit in California alleging that it violated certain privacy obligations by recording calls made through its call centers. During Year to Date Predecessor 2013, the Company recorded a $2,000,000 liability in its Unaudited Condensed Consolidated Balance Sheet in connection with this lawsuit. During Quarter Successor 2014, the court gave final approval on an agreement to settle this lawsuit for $2,000,000. The Company paid $2,000,000 in connection with this lawsuit during Quarter Successor 2014. The Company settled a separate coverage action with its insurance carriers with respect to coverage for the lawsuit for $1,000,000. Under the Merger Agreement, any insurance proceeds received by the Company related to this lawsuit are required to be paid to DSW Group Holdings, LLC, a Delaware limited liability company ("Seller"). The Company received the $1,000,000 in insurance proceeds in the first quarter ending March 28, 2014 and paid such proceeds to the Seller. DS SERVICES: Expects to Pay $2MM to Settle Wage and Hour Suits -------------------------------------------------------------- DS Services Holdings, Inc. said in its Form 10-Q/A filed with the Securities and Exchange Commission on September 12, 2014, for the quarterly period ended June 27, 2014, that during the first quarter of 2014, the Company reached a binding agreement to settle two putative class action lawsuits in California alleging that it violated certain obligations under California and federal wage and hour laws for $2,000,000 which agreement was subject to court approval. The Company subsequently recorded a $2,000,000 liability in its Unaudited Condensed Consolidated Balance Sheet during the first quarter of 2014 in connection with this lawsuit. The court preliminarily approved the agreement to settle both lawsuits for $2,000,000 during Quarter Successor 2014. The Company expects to pay $2,000,000 to settle both lawsuits during the three-month period ending September 26, 2014. EQUIFAX INC: Faces Suit in Virginia Alleging Violations of FCRA --------------------------------------------------------------- Chauna Jones fka Chauna Crawley and Tyrone Henderson, on behalf of themselves and all other similarly situated individuals v. Equifax, Inc. t/a Equifax Workforce Solutions a/k/a Talx Corporation, and Equifax Information Services, LLC, Case No. 3:14- cv-00678-MHL (E.D. Va., October 3, 2014) alleges violations of the Fair Credit Reporting Act. The Plaintiffs are represented by: Casey Shannon Nash, Esq. Matthew James Erausquin, Esq. CONSUMER LITIGATION ASSOCIATES PC 1800 Diagonal Rd., Suite 600 Alexandria, VA 22314 Telephone: (703) 273-7770 Facsimile: (888) 892-3512 E-mail: casey@clalegal.com matt@clalegal.com - and - Leonard Anthony Bennett, Esq. CONSUMER LITIGATION ASSOCIATES 763 J Clyde Morris Boulevard, Suite 1A Newport News, VA 23601 Telephone: (757) 930-3660 Facsimile: (757) 930-3662 E-mail: lenbennett@clalegal.com FAMILY DOLLAR: Removes "Randall" Suit to Florida District Court --------------------------------------------------------------- The lawsuit titled Marvin Randall v. Family Dollar Stores of Florida, Inc., Case No. 14-017626(21), was removed from the Seventeenth Judicial Circuit in and for Broward County, Florida, to the U.S. District Court for the Southern District of Florida (Ft. Lauderdale). The District Court Clerk assigned Case No. 0:14-cv-62285-JIC to the proceeding. The lawsuit alleges violations of the Fair Labor Standards Act. According to the complaint, the Defendant intentionally misclassified the Plaintiff as being exempt from overtime. The Plaintiff is represented by: Chris Kleppin, Esq. GLASSER & KLEPPIN, P.A. 8751 W. Broward Blvd., Suite 105 Plantation, FL 33324 Telephone: (954) 424-1933 Facsimile: (954) 474-7405 E-mail: ckleppin@gkemploymentlaw.com The Defendant is represented by: Jessica T. Travers, Esq. LITTLER MENDELSON, P.C. Wells Fargo Center 333 SE 2nd Avenue, Suite 2700 Miami, FL 33131 Telephone: (305) 400-7500 Facsimile: (305) 603-2552 E-mail: jtravers@littler.com FONCIA: Faces Class Action in France Over "Illegal" Rent Fees ------------------------------------------------------------- Joshua Melvin, writing for TheLocal.fr, reports that on the same day class action lawsuits became legal in France, a consumer watchdog group filed one of the collective proceedings against the country's biggest landlord over the "illegal" fees it charges renters. French consumer protection group UFC-Que Choisir has filed the country's first class action lawsuit against property giant Foncia alleging the firm has collected EUR44 million in illicit charges from renters in the past five years alone. The action came on Oct. 1 the very day class action suits became legal in France. The lawsuits allow groups of individuals to collectively sue a defendant or group of defendants, without separately having to file a case and hire a lawyer. This kind of suit is already common in the United States in cases against tobacco companies and car manufacturers for its ability to prompt changes in laws and practices. At stake here is the allegation Foncia, considered the largest property manager in France, charged renters for sending them monthly rent bills. According to UFC-Que Choisir this practice has been illegal in France since 1989. The fee is EUR2.30 per month, which comes out to EUR27.60 per year, when multiplied by the estimated 318,000 renters the agency handles per annum it adds up to EUR44 million in "fraudulent profits," UFC-Que Choisir wrote in a statement. At the time he proposed legalizing class actions suits, then Minister of Consumer Affairs Benoit Hamon labelled them a "weapon of mass deterrence" against fraud, price-fixing and other consumer violations, in an interview with French daily L'Express. "For 20 years, employers' organizations have been blocking this democratic progress, and for 20 years the French consumer has been under-protected," Mr. Hamon told L'Express when announcing the proposal in 2013. During their tenures, former presidents Jacques Chirac and Nicolas Sarkozy both unsuccessfully attempted to establish class action lawsuits. Mr. Hamon's proposal, which offered a more limited version of class action litigation than is found in the United States, only allows 16 consumer groups in France to pursue these types of cases. FRANKLIN FINANCIAL: Sued in Virginia Over Sale to TowneBank ----------------------------------------------------------- Andrew Malon, individually and on behalf of all others similarly situated v. Franklin Financial Corporation, Richard T. Wheeler, Jr., Hugh T. Harrison II, Warren A. Mackey, Elizabeth W. Robertson, George L. Scott, Richard W. Wiltshire, Jr., Percy Wootton, Franklin Federal Savings Bank, and TowneBank, Case No. 3:14-cv-00671 (E.D. Va., October 1, 2014) arises out of the Defendants' attempt to sell the Company to TowneBank by means of an unfair process and for an unfair price. Franklin Financial Corporation operates as the holding company for Franklin Federal Savings Bank, which provides retail deposit, investment brokerage, and commercial real estate finance services in Richmond and Central Virginia. TowneBank acts as a holding company for various banking and non- banking subsidiaries that provides retail and commercial banking services for individuals, and small and medium-sized businesses in southeastern Virginia and North Carolina. The Individual Defendants are directors and officers of Franklin Financial Corporation. The Plaintiff is represented by: Elizabeth Tripodi, Esq. LEVI & KORSINSKY LLP 1101 30th St. NW, Suite 115 Washington, D.C. 20007 Telephone: (202) 524-4290 Facsimile: (202)333-2121 E-mail: etripodi@zlk.com - and - Joseph E. Levi, Esq. Julia J. Sun, Esq. LEVI & KORSINSKY LLP 30 Broad Street, 24th Floor New York, NY 10004 Telephone: (212) 363-7500 Facsimile: (866)367-6510 GENERAL MOTORS: "Williams" Suit Included in Ignition Switch MDL --------------------------------------------------------------- The class action lawsuit titled Williams v. General Motors LLC, et al., Case No. 2:14-cv-02069, was transferred from U.S. District Court for the Eastern District of Louisiana to the U.S. District Court of the Southern District of New York (Foley Square). The New York District Court Clerk assigned Case No. 1:14-cv-07979-JMF to the proceeding. The lawsuit is transferred for coordinated or consolidated pretrial proceedings in the multidistrict litigation captioned In Re: General Motors LLC Ignition Switch Litigation, MDL No. 1:14- md-02543-JMF. The claims in the litigation involve an alleged unprecedented failure to disclose, indeed, affirmatively to conceal, known dangerous defects in GM vehicles. Since 2002, the Plaintiffs say, GM has sold millions of vehicles throughout the United States and worldwide that have a safety defect in which the vehicle's ignition switch can unintentionally move from the "run" position to the "accessory" or "off" position, resulting in a loss of power, vehicle speed control, and braking, as well as a failure of the vehicle's airbags to deploy. The Plaintiff is represented by: Daniel E. Becnel, Jr., Esq. Matthew B. Moreland, Esq. Salvadore Christina, Jr., Esq. BECNEL LAW FIRM, LLC 106 W. Seventh St. P.O. Drawer H Reserve, LA 70084 Telephone: (504) 756-4840 Facsimile: (985) 536-1186 E-mail: mmoreland@becnellaw.com mattmoreland@cox.net schristina@cox.net GENERAL MOTORS: Recalls 57,000+ Cars Over Wiring Problem -------------------------------------------------------- Bill Trott, writing for Reuters, reports that General Motors Co. said on Oct. 4 it was recalling more than 57,000 vehicles in the United States for potential problems ranging from a wiring problem in the steering column to inadvertent shutdown of the engine. The recall of 57,182 vehicles in three categories came a day after GM recalled 524,384 cars and sport utility vehicles globally for different problems. The No. 1 U.S. automaker now has issued 74 recalls this year, affecting some 30 million vehicles. The Oct. 4 recalls included 46,873 Pontiac G8s from 2008 and 2009, and Chevrolet Caprices marketed as police vehicles between 2011 and 2013. GM said the cars' ignition keys could be accidentally knocked out of the "run" position by the driver's knee, shutting off the engine and air bags. GM, which has a reconfigured key to solve the problem, said it was aware of one crash but no injuries or fatalities in the recalled vehicles. A total of 10,005 Cadillac CTS-Vs from the model years 2004 through 2007 and STS-Vs manufactured from 2005 to 2007 also were recalled because of potential overheating in their fuel pump modules, which the automaker will replace. A loose electrical connection in the steering column led GM to recall 304 Chevrolet Sonics. GM will repair the bad connection, which could restrict full deployment of air bags in a crash. A GM statement said it was unaware of any crashes, injuries or fatalities related to the recalled Cadillacs and Sonics. GM's most serious recall involved 2.6 million cars with defective ignition switches linked to at least 23 deaths. On Oct. 3, the company said it was recalling 430,550 Cadillac SRX and Saab 9-4X SUVs for possible loose joint and worn threads in the rear toe link assembly that could cause the vehicle to wander at highway speed and could possibly even separate, with the risk of causing a crash. The Detroit company also recalled 93,834 newer South Korean-built Chevrolet Spark cars because of a risk of the hood opening unexpectedly during driving. GM said it was not aware of any crashes, injuries or deaths from this problem, but in documents filed with the U.S. National Highway Traffic Safety Administration it cited two cases in the United Kingdom and one in Denmark where the vehicle hood opened while the customer was driving. GM also said it had told U.S. dealers on Oct. 2 to stop selling the newly introduced 2015 Chevy Colorado and GMC Canyon mid-sized pickup trucks in advance of a recall to fix a potential air bag defect. GRANITE FACTORY: Faces "Hernandez" Suit Over Failure to Pay OT -------------------------------------------------------------- Fily Alberto Aguirre Hernandez, individually and on behalf of other employees similarly situated v. Granite Factory, Inc. and Sven E. Overland, individually, Case No. 1:14-cv-07682 (N.D. Ill., October 1, 2014), is brought against the Defendant for failure to pay overtime wages for hours worked in excess of 40 hours in a week. Granite Factory, Inc. is a full service stone fabrication company. The Plaintiff is represented by: Valentin Tito Narvaez, Esq. CONSUMER LAW GROUP, LLC 6232 N. Pulaski, Suite 200 Chicago, IL 60646 Telephone: (877) 509-6422 Facsimile: (888) 270-8983 E-mail: consumerlawgroupllc@gmail.com HEWLETT-PACKARD: Inkjet Class Counsel Awarded $1.9MM Fees --------------------------------------------------------- In IN RE HP INKJET PRINTER LITIGATION, CASE NO. 5:05-CV-03580-JF, (N.D. Cal.), pending before the court were: (1) Plaintiffs' renewed motion for final approval of class action settlement; (2) Plaintiffs' renewed motion for attorneys' fees and costs; and (3) a motion by objectors Theodore H. Frank and Kimberly Schratwieser to decertify the class or, in the alternative, disqualify class counsel. In this consolidated putative class action against Hewlett-Packard Company (HP), the plaintiffs asserted that HP failed to disclose and/or had misrepresented facts about its ink cartridges and printers. District Judge Jeremy Fogel, in an order dated September 30, 2014, a copy of which is available at http://is.gd/hMAAa5from Leagle.com, granted the renewed motion for final approval of class action settlement. Judge Fogel also granted in part the renewed motion for award of attorneys' fees and costs, awarding the Class counsel $1.35 million in attorneys' fees in compensation for their work on the non-coupon portion of the settlement, and $596,990.70 in costs and expenses. Additionally, each named class representative was awarded a stipend in the amount of $1,000. The motion to decertify the class or disqualify class counsel was denied. The proposed settlement, among other things, provided for the issuance of coupons (referred to in the settlement agreement as "e-credits") and injunctive relief. HP also agreed to discontinue the use of certain pop-up messages showing an image of an ink gauge, ruler, or container of ink, and to disclose additional information through the cartridge packaging, user manuals, interfaces, and HP website. Law Finance Group, Interested Party, represented by Geoffrey Cochrane Moore -- gmoore@lawfinance.com -- Law Fiance Group. HYPERDYNAMICS CORP: Lead Plaintiff Responds to Dismissal Bid ------------------------------------------------------------ The lead plaintiff in a class action filed a response to Hyperdynamics Corporation's motion to dismiss, the Company said in its Form 10-K filed with the Securities and Exchange Commission on September 12, 2014, for the fiscal year ended June 30, 2014. The Company said, "On April 2, 2012, a lawsuit styled as a class action was filed in the U.S. District Court for the Southern District of Texas against us and our chief executive officer alleging that we made false and misleading statements that artificially inflated our stock prices. The lawsuit alleges, among other things, that we misrepresented the prospects and progress of our drilling operations, including our drilling of the Sabu-1 well and plans to drill the Baraka-1 well off the coast of the Republic of Guinea. The lawsuit seeks damages based on Sections 10(b) and 20 of the Securities Exchange Act of 1934, although the specific amount of damages is not specified. Although several lead plaintiffs were appointed by the Court and then withdrew from the matter, a lead plaintiff has now been appointed and a scheduling order governing briefing on a motion to dismiss has been entered by the Court." "On May 12, 2014, lead plaintiff filed his amended complaint, and defendants filed their motion to dismiss on July 11, 2014. On August 20, 2014, the lead plaintiff filed a response to our motion to dismiss." Hyperdynamics is an independent oil and gas exploration company with large prospects in offshore Republic of Guinea ("Guinea") in Northwest Africa pursuant to rights granted to us by Guinea (the "Concession") under a Hydrocarbon Production Sharing Contract, as amended ("PSC"). HYPERDYNAMICS CORP: Shareholder Wants Lead Plaintiff Named ---------------------------------------------------------- A shareholder filed a motion for appointment as lead plaintiff, which remains pending, Hyperdynamics Corporation said in its Form 10-K filed with the Securities and Exchange Commission on September 12, 2014, for the fiscal year ended June 30, 2014. The Company said, "Beginning on March 13, 2014, several lawsuits styled as class actions were filed in the U.S. District Court for the Southern District of Texas against us and several officers of the Company alleging that we made false and misleading statements that artificially inflated our stock prices. The lawsuits allege, among other things, that we misrepresented our compliance with the Foreign Corrupt Practices Act and anti-money laundering statutes and that we lacked adequate internal controls. The lawsuits seek damages based on Sections 10(b) and 20 of the Securities Exchange Act of 1934, although the specific amount of damages is not specified. On May 12, 2014, a shareholder filed a motion for appointment as lead plaintiff, which remains pending. Also, on May 12, 2014, lead plaintiff in the April 2012 lawsuit filed a motion to consolidate the March 2014 cases with the earlier case. The parties await a ruling on the motion to consolidate." Hyperdynamics is an independent oil and gas exploration company with large prospects in offshore Republic of Guinea ("Guinea") in Northwest Africa pursuant to rights granted to us by Guinea (the "Concession") under a Hydrocarbon Production Sharing Contract, as amended ("PSC"). INNOVIS HEALTH: Fails to Pay Proper Overtime Wages, Workers Claim ----------------------------------------------------------------- Susan Ivankovich, Janell Kjos, Vonda Eidenschink, Karin Halverson v. Innovis Health, LLC dba Essentia Health West, Case No. 0:14-cv- 04137 (D. Minn., October 3, 2014) alleges that the Plaintiffs have consistently worked in excess of 40 hours per week, but Essentia has failed to pay them time-and-one-half overtime pay. Innovis Health, LLC, doing business as Essentia Health West, is a Minnesota nonprofit company headquartered in Duluth, Saint Louis County, Minnesota. Essentia provides health care services in Detroit Lakes, including a wide range of services that include women's health, surgery, physical therapy, and occupational therapy. One element of Essentia's services is its Urgent Care department, which treats patients, who require immediate medical attention, providing them with prompt and personal treatment. The Plaintiffs are represented by: Stacey Slaughter, Esq. Damien A. Riehl, Esq. ROBINS, KAPLAN, MILLER & CIRESI L.L.P. 2800 LaSalle Plaza 800 LaSalle Avenue Minneapolis, MN 55402-2015 Telephone: (612) 349-8500 Facsimile: (612) 339-4181 E-mail: spslaughter@rkmc.com dariehl@rkmc.com INTUITIVE SURGICAL: Faces "Rausch" Liability Suit in N.D. Florida ----------------------------------------------------------------- Wilfred Rausch, Rebecca Hart, Nayda Nazario and Pauline Schaab, personal representatives of the estate of Joseph Schaab, each individually and on behalf of all persons similarly situated v. Intuitive Surgical, Inc., Case No. 4:14-cv-00505-MW-CAS (N.D. Fla., October 3, 2014) asserts product liability claims. The Plaintiffs are represented by: Phillip Timothy Howard, Esq. HOWARD & ASSOCIATES PA 2120 Killarney Way, Suite 125 Tallahassee, FL 32309 Telephone: (850) 298-4455 Facsimile: (850) 216-2537 E-mail: tim@howardjustice.com ISRAEL CHEMICALS: Hearing to Dismiss Class Action Reset to Nov. --------------------------------------------------------------- Israel Chemicals Ltd. said in its Form F-1 filed with the Securities and Exchange Commission on September 12, 2014, that on August 29, 2013, a petition for certification of a claim as a class action against the Company, Israel Corporation, Potashcorp Cooperative Agricultural Society Ltd., the members of the Company's Board of Directors and its CEO, was filed in the District Court in Tel Aviv, on the grounds of misleading information, deception and non-disclosure of material information in the Company's reports, allegedly in violation of the provisions of the Israeli Securities Law and the general laws. The aggregate amount of the damage claimed is $0.79 billion (NIS 2.75 billion) or $0.95 billion (NIS 3.28 billion). In February 2014, a response to the petition was submitted and a hearing was set for July 2014 to determine whether to dismiss the case at the initial stages. This hearing was subsequently rescheduled for November 2014. "In our opinion, based on the position of our legal advisors, even if the motion to dismiss is denied, the chances of our winning the case exceed the chances that we will lose. Accordingly, no provision was included in the financial statements," the Company said. ISRAEL CHEMICALS: Says Class Suit Exposure Won't Exceed $20MM ------------------------------------------------------------- Israel Chemicals Ltd. said in its Form F-1 filed with the Securities and Exchange Commission on September 12, 2014, that during the 1990s, several claims were made against some of the Company's subsidiaries by plaintiffs from various countries who worked mostly as banana plantation workers, who allegedly have been injured by exposure to Di-Bromo-Chloropropane ("DBCP") produced many years ago by a number of manufacturers, including large chemical companies and, according to the plaintiffs, some of the Company's subsidiaries. "As of December 31, 2013, our subsidiaries are parties to one legal proceeding by nine plaintiffs who are requesting certification of their claim as a class action. The claim is for bodily injury and therefore the amount of claimed damages has not been stated. We believe the quantities of materials supplied by us to the relevant countries in the relevant periods was, if at all, small compared to the quantities of material sold by other chemical manufacturers," the Company said. "In the opinion of management and our legal advisors, it is not possible to estimate the results of the above claims. Nonetheless, it is estimated that our overall exposure would not exceed $20 million." JP MORGAN: Court Narrows Claims in "Loeza" Class Action ------------------------------------------------------- District Judge M. James Lorenz granted in part and denied in part a motion for summary judgment filed in MARY LOEZA and ANGIE REVELES, et al., an individual, on behalf of themselves and all others similarly situated, Plaintiffs, v. JP MORGAN CHASE BANK NA, Defendant, CIVIL NO. 13-CV-95-L(BGS), (S.D. Cal.). The Complaint alleges alleging ten causes of action: (1) failure to pay overtime under FLSA 29 U.S.C. Sections 206, 207, (2) failure to pay overtime compensation, (3) failure to provide meal periods, (4) failure to provide rest periods, (5) failure to provide itemized statements, (6) failure to pay wages twice monthly, (7) failure to reimburse business expenses, (8) failure to pay wages upon termination of employment, (9) unlawful competition and unlawful business practices, and (10) violation of the Private Attorneys General Act (PAGA). The Defendant filed a motion for summary judgment. Judge Lorenz granted JP Morgan's motion with respect to Plaintiffs' seventh cause of action and Loeza's waiting time penalty claim, and these claims are dismissed with prejudice. The motion is otherwise denied. A copy of Judge Lorenz's September 30, 2014 order is available at http://is.gd/F4rfEdfrom Leagle.com. JP Morgan Chase Bank NA, an unknown business entity, Defendant, represented by John Spivey Battenfeld -- jbattenfeld@morganlewis.com -- Morgan Lewis and Bockius & John David Hayashi -- jhayashi@morganlewis.com -- Morgan Lewis & Bockius LLP. KINGSUN USA: Sent Unsolicited Fax, Morgan & Curtis Suit Says ------------------------------------------------------------ Morgan & Curtis Associates, Inc., on behalf of itself and all others similarly situated v. Kingsun USA Inc., Kingsun Distribution Corp. and Fuyun Ji, Case No. 1:14-cv-05764 (E.D.N.Y., October 1, 2014), is brought against the Defendants for sending out thousands of fax advertisements for goods and services that were unsolicited and lacked proper opt-out notices to persons throughout New York. The Defendants own and operate a home furnishings company in New York. The Plaintiff is represented by: Aytan Yehoshua Bellin, Esq. BELLIN & ASSOCIATES LLC 85 Miles Avenue White Plains, NY 10606 Telephone: (914) 358-5345 Facsimile: (212) 571-0284 E-mail: aytan.bellin@bellinlaw.com KOREAN AIRLINES: January 16 Settlement Approval Hearing Set ----------------------------------------------------------- If you directly purchased Air Cargo Shipping Services to, from, or within the United States from January 1, 2000 to September 11, 2006, your rights could be affected by Proposed Settlements What are the Settlements about? Plaintiffs claim that numerous air cargo carrier and certain of their employees conspired to fix the prices of air cargo shipping services in violation of U.S. antitrust laws. The settling defendants deny liability but have settled to avoid the cost and risk of further litigation and/or a trial. Korean Air Lines Co., Ltd., Singapore Airlines Limited, Singapore Airlines Cargo Pte, Ltd., Cathay Pacific Airways Ltd., and China Airlines, Ltd. have settled these claims and have agreed to pay approximately $362.5 million to direct purchasers of air cargo shipping services to, from, or within the United States. The Korean Air Lines settlement provides $92.492 million, the Cathay Pacific Airways settlement provides $65 million, and the China Airlines settlement provides $90 million. These are in addition to prior settlements with other air cargo carriers in the case of approximately $485.8 million. The case is continuing against non-settling defendants. Who is a Class Member? You are a class member if you purchased air cargo shipping services, directly from one or more defendants, for shipments to, from, or within the United States during the period from January 1, 2000 to September 11, 2006. All you need to know is in the full Notice, including information on who is or is not a class member. Will I get a payment? If you are a class member and do not opt out of these settlements, you are eligible to submit a claim and receive a payment. The amount of your payment will be determined by the Plan of Allocation, which is described in the full Notice. You may request a claim form online at www.AirCargo4Settlement.com or by calling toll-free at 1-855-382-6460. Outside the U.S. and Canada, call 1-513-795-0998 (toll charges apply). You may also request a claim form by writing to AirCargo4Settlement, c/o The Garden City Group, Inc., P.O. Box 10083, Dublin, OH 43017-6683, USA. Completed claim forms must be postmarked no later than January 6, 2015. What are my rights? If you do not want to take part in one or more of the settlements, you have the right to opt out. To opt out of one or more of the settlements, you must do so by November 7, 2014. Class members have the right to object to the settlements, the Plan of Allocation, and the request for up to 22 percent of the settlement funds in attorney's fees, and incentive awards of $90,000 for each of the six class representatives. If you object, you must do so by December 26, 2014. If you do not opt out of a particular settlement, you will be bound by the terms of that settlement and give up your rights to sue regarding the settled claims. You may speak to your own attorney at your own expense for help. For more information, visit www.AirCargo4Settlement.com or call toll-free 1-855-382-6460. Outside the U.S. and Canada, call 1-513-795-0998 (toll charges apply). A Final Approval Hearing to consider approval of the settlements, the Plan of Allocation, the request for attorney fees, reimbursement of expenses and incentive awards will be held at the United States District Court for the Eastern District of New York on January 16, 2015, at 10:00 a.m. You may ask to appear at the hearing, but you don't have to attend. For more information, visit www.AirCargo4Settlement.com or call toll-free 1-855-382- 6460. Outside the U.S. and Canada call 1-513-795-0998 (toll charges apply). This is a Summary, where can I get more information? You can get complete Settlement information, including a copy of the full Notice, by registering at www.AirCargo4Settlement.com calling the number below, or writing to AirCargo4Settlement, c/o The Garden City Group, Inc., P.O. Box 10083, Dublin, OH 43017-6683, USA. LANNETT COMPANY: Plaintiff Voluntary Dismisses Class Action ----------------------------------------------------------- Lannett Company, Inc. on Sept. 30 disclosed that the class action lawsuit filed against the company and certain officers in the United States District Court for the Eastern District of Pennsylvania, entitled Schaefer v. Lannett Company, Inc., et al., has been voluntarily dismissed without prejudice by the plaintiff. The complaint alleged that the defendants made a number of false and misleading statements involving pricing of the company's Digoxin product. The dismissal follows the company informing the plaintiff that it had reviewed the complaint and concluded that the claims asserted were without merit, frivolous and subject to sanctions pursuant to the Private Securities Litigation Reform Act and Rule 11 of the Federal Rules of Civil Litigation. The company is reviewing its options to determine whether there is a basis to seek reimbursement of the legal fees and costs incurred defending what it believes was a meritless case. About Lannett Company, Inc. Founded in 1942, Lannett Company -- http://www.lannett.com-- develops, manufactures, packages, markets and distributes generic pharmaceutical products for a wide range of medical indications. LILY MANAGEMENT: Accused of Violating TCPA in South Carolina ------------------------------------------------------------ Mark Fitzhenry, individually and on behalf of a class of all persons and entities similarly situated v. Lily Management and Marketing Company LLC d/b/a USA Vacation Station, and Westgate Resorts Ltd., Case No. 2:14-cv-03866-DCN (D.S.C., October 3, 2014) alleges violation of the Telephone Consumer Protection Act. The Plaintiff is represented by: Edward A. Broderick, Esq. BRODERICK LAW 125 Summer Street, Suite 1030 Boston, MA 02110 E-mail: ted@broderick-law.com - and - Lance Shealy Boozer, Esq. BOOZER LAW FIRM 1331 Park Street Columbia, SC 29201 Telephone: (803) 608-5543 E-mail: lsb@boozerlawfirm.com - and - Matthew P. McCue, Esq. MATTHEW P. MCCUE LAW OFFICE 1 South Avenue, Third Floor Natick, MA 01760 Telephone: (508) 655-1415 Facsimile: (508) 319-3077 E-mail: mmccue@massattorneys.net LLOYDS: Investors File US-Style Class Action Over 2008 HBOS Deal ---------------------------------------------------------------- Herald Scotland reports that investors are joining forces to sue Britain's biggest retail bank Lloyds and five former executives, alleging they were misled over an ill-fated deal in 2008 they say wiped GBP6 billion off the total value of shares. Their claim names Lloyds' former chairman Victor Blank, former chief executive Eric Daniels, ex-finance boss Timothy Tookey, ex- retail banking head Helen Weir and former wholesale banking boss George Truett Tate. It is the second US-style class action alleging bank misdeeds during the credit crisis. Thousands of investors are also suing Royal Bank of Scotland, claiming damages of around GBP4 billion and alleging they were misled about the financial position of the former banking heavyweight during an emergency cash call at the height of the 2008 credit crisis. London's High Court on September 30 made a Group Litigation Order -- designed to manage a large group of claimants -- and lawyers representing the Lloyds shareholders past and present urged others to register claims by November 10 to avoid losing their right to compensation. Under English law, such claims have to be launched six years from the date at which the alleged wrongdoing took place or was spotted. A campaign to draw attention to the cause, which would include newspaper advertisements, was due to begin on Oct. 1. The Lloyds Shareholder Action Group, led by law firm Harcus Sinclair's litigation head Damon Parker, alleges Lloyds' former bosses breached fiduciary and other duties to win the backing of investors for a government-arranged purchase of HBOS and misled shareholders about its true financial position. Lloyds, which subsequently had to be bailed out with GBP20.5 billion of taxpayer money and remains 25 per cent state owned, dismissed the allegations and vowed to defend itself. "The group's position remains that we do not consider there to be any legal basis to these claims and we will robustly contest this legal action," it said in a statement. When recommending the HBOS purchase to shareholders, Lloyds bosses valued Britain's biggest mortgage lender at around GBP5.9 billion. However, the business was "effectively worthless", the Lloyds Shareholder Action Group alleges. "Many Lloyds TSB shareholders understandably feel they were made to pay to save HBOS for the good of the country as a whole. To them, HBOS was an impulse buy on the part of Lloyds' directors that wiped out the benefit of years of prudent management," Mr. Parker said. Investors allege they were not told HBOS was receiving emergency support from the Bank of England and US Federal Reserve, peaking at around GBP25.4 billion and $18 billion respectively. LULULEMON ATHLETICA: Says Appeal in "Alkhoury" Case Has No Merit ---------------------------------------------------------------- Plaintiff Houssam Alkhoury filed on July 2, 2013, a putative shareholder class action entitled Alkhoury v. lululemon athletica inc., et al., No. 13-CV-4596 (S.D.N.Y.) against lululemon, a certain director and a certain officer of the Company (collectively, "Defendants"). On October 1, 2013, the Court appointed Louisiana Sheriffs' Pension & Relief Fund as Lead Plaintiff and on November 1, 2013, Lead Plaintiff filed a consolidated class action complaint on behalf of a proposed class of purchasers of lululemon stock between September 7, 2012 through June 11, 2013 (the "Complaint"). In its Complaint, Lead Plaintiff asserted causes of action under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 against Defendants based on certain public disclosures made by the Company relating to lululemon's product quality and the March 2013 sheer Luon issue. On January 15, 2014, Lead Plaintiff filed a consolidated amended class action complaint (the "Amended Complaint") on behalf of a proposed class of purchasers of lululemon stock between September 7, 2012 through January 10, 2014. In its Amended Complaint, Lead Plaintiff added new claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 based on certain of lululemon's public disclosures related to the Company's ongoing quality control improvements and the impact of those improvements on the Company's financial results. On April 18, 2014, the Court dismissed all of Lead Plaintiff's claims for failure to state a claim. On May 16, 2014, Lead Plaintiff filed a notice of appeal to the United States Court of Appeals for the Second Circuit. The Company believes there is no merit to the appeal, lululemon athletica inc. said in its Form 10-Q filed with the Securities and Exchange Commission on September 11, 2014, for the quarterly period ended August 3, 2014. lululemon athletica inc., is engaged in the design, manufacture and distribution of healthy lifestyle inspired athletic apparel, which is sold through a chain of corporate-owned and operated retail stores, direct to consumer through e-commerce, showrooms, a network of wholesale accounts, outlets and warehouse sales. MEDTRONIC INC: Removes "Fultz" Suit to Tennessee District Court --------------------------------------------------------------- The lawsuit entitled Fultz, et al. v. Medtronic, Inc., et al., Case No. CT-004201-14, was removed from the Circuit Court of Shelby County, Tennessee for the Thirtieth Judicial District at Memphis, to the United States District Court for the Western District of Tennessee. The District Court Clerk assigned Case No. 2:14-cv-02776-JTF-cgc to the proceeding. The Plaintiffs allege that they were injured by Plaintiff Anne L. Fultz's physician's off-label use of Medtronic and Medtronic Sofamor Danek USA, Inc.'s Infuse(R) Bone Graft device. Infuse is a Class III medical device whose design, manufacturing method, and labeling were specifically approved by the Food and Drug Administration pursuant to the agency's Premarket Approval process. The Plaintiffs are represented by: Gregory J. Bubalo, Esq. Leslie M. Cronen, Esq. BUBALO GOODE SALES & BLISS PLC 9300 Shelbyville Road, Suite 215 Louisville, KY 40222 Telephone: (502) 753-1600 Facsimile: (502) 753-1601 E-mail: gbubalo@bubalolaw.com - and - Catherine T. Heacox, Esq. THE LANIER LAW FIRM, PLLC Tower 56 126 E. 56th Street, Floor 6 New York, NY 10022 Telephone: (212) 421-2800 Facsimile: (212) 421-2878 The Defendants are represented by: Leo M. Bearman, Esq. Robert F. Tom, Esq. BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC First Tennessee Building 165 Madison Avenue, Suite 2000 Memphis, TN 38103 Telephone: (901) 526-2000 Facsimile: (901) 577-0818 E-mail: lbearman@bakerdonelson.com rtom@bakerdonelson.com - and - Andrew E. Tauber, Esq. MAYER BROWN, LLP 1999 K Street, NW Washington, DC 20006 Telephone: (202) 263-3324 Facsimile: (202) 263-5324 E-mail: atauber@mayerbrown.com - and - Daniel L. Ring, Esq. MAYER BROWN, LLP 71 S. Wacker Drive Chicago, IL 60606 Telephone: (312) 701-8520 Facsimile: (312) 706-8675 E-mail: dring@mayerbrown.com - and - Sean P. Fahey, Esq. PEPPER HAMILTON, LLP 3000 Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 19103-2799 Telephone: (215) 981-4000 Facsimile: (215) 981-4750 E-mail: faheys@pepperlaw.com MEN'S WEARHOUSE: Appeals Court Affirmed "Camasta" Case Dismissal ---------------------------------------------------------------- The Court of Appeals for the Seventh Circuit affirmed the dismissal of the class action filed by Patrick Edward Camasta, The Men's Wearhouse, Inc. said in its Form 10-Q filed with the Securities and Exchange Commission on September 11, 2014, for the quarterly period ended August 2, 2014. Patrick Edward Camasta, individually and as the representative of a class of similarly situated persons, filed on August 29, 2012, a putative class action Complaint against Jos. A. Bank in the Circuit Court of the Nineteenth Judicial Circuit, Lake County, Illinois (Case No. 12CH4405) alleging, among other things, that Jos. A. Bank's pattern and practice of advertising its normal retail prices as temporary price reductions violate the Illinois Consumer Fraud and Deceptive Business Practices Act and the Illinois Uniform Deceptive Trade Practices Act. The Complaint seeks, among other relief, certification of the case as a class action, actual and punitive damages, attorney fees and costs and injunctive relief. After removal to the United States District Court for the Northern District of Illinois, Eastern Division (Case No. 12 CV 7782), upon the motion of Jos. A. Bank, the U.S. District Court dismissed the Complaint, without prejudice, and Camasta filed a First Amended Class Action Complaint in the same U.S. District Court making substantially the same allegations as in the original Complaint, which the Court dismissed, with prejudice. Camasta appealed the dismissal to the U.S. Court of Appeals for the Seventh Circuit and, on August 1, 2014, the Court of Appeals affirmed the dismissal. MEN'S WEARHOUSE: Court Dismisses Class Claims in "Johnson" Suit --------------------------------------------------------------- The Court dismissed the class claims and certain other breach of contract claims in the class action filed by Matthew B. Johnson, The Men's Wearhouse, Inc. said in its Form 10-Q filed with the Securities and Exchange Commission on September 11, 2014, for the quarterly period ended August 2, 2014. On July 30, 2013, Matthew B. Johnson, et al., on behalf of themselves and all Ohio residents similarly situated (the "Johnson Plaintiffs"), filed a putative class action Complaint against Jos. A. Bank in the U.S. District Court for the Southern District of Ohio, Eastern District (Case No. 2:13-cv-756). The Complaint alleges, among other things, deceptive sales and marketing practices by Jos. A. Bank relating to its use of the words "free" and "regular price." The Complaint seeks, among other relief, class certification, compensatory damages, declaratory relief, injunctive relief and costs and disbursements (including attorneys' fees). Upon the motion of Jos. A. Bank, the U.S. District Court dismissed the Complaint, without prejudice, and the Johnson Plaintiffs filed a First Amended Class Action Complaint in the same U.S. District Court making substantially the same allegations as in the original Complaint. On February 21, 2014, Jos. A. Bank filed a motion to dismiss and, on August 19, 2014, the Court dismissed the class claims and certain other breach of contract claims. "We intend to vigorously defend against the remaining claims," the Company said. MEN'S WEARHOUSE: Faces "Salerno" Class Action in California ----------------------------------------------------------- The Men's Wearhouse, Inc. said in its Form 10-Q filed with the Securities and Exchange Commission on September 11, 2014, for the quarterly period ended August 2, 2014, that David Lucas and Eric Salerno, on behalf of themselves and all California residents similarly situated, filed on July 9, 2014, a putative class action Complaint against Jos. A. Bank in the U.S. District Court for Southern California (Case No. '14CV1631LAB JLB). The Complaint alleges, among other things, that Jos. A. Bank violated the California Unfair Competition Law and the California Consumers Legal Remedies Act with its comparative price advertising, price discounts and free apparel promotions. The Complaint seeks, among other relief, certification of the case as a class action, permanent injunction, actual and compensatory damages, restitution including disgorgement of profits and unjust enrichment, costs and attorney fees. "We intend to vigorously defend the case," the Company said. METROPOLITAN PROPERTIES: Sued in Ohio Over Breach of Labor Laws --------------------------------------------------------------- Monica Hamilton, on behalf of herself and all others similarly situated v. Metropolitan Properties of America, Inc., Case No. 1:14-cv-02175 (N.D. Ohio, October 1, 2014), is brought against the Defendant for failure to pay overtime wages in violation of the Fair Labor Standards Act. Metropolitan Properties of America, Inc. owns and operates a business which provides property management services for apartment buildings throughout the United States. The Plaintiff is represented by: Jason R. Bristol, Esq. Joshua B. Fuchs, Esq. COHEN, ROSENTHAL & KRAMER 400 Hoyt Block Bldg. 700 St. Clair Avenue Cleveland, OH 44113 Telephone: (216) 781-7956 Facsimile: (216) 781-8061 E-mail: jbristol@crklaw.com jfuchs@crklaw.com MORGAN STANLEY: Seeks Dismissal of Force-Placed Insurance Suit -------------------------------------------------------------- Daniel Siegal, writing for Law360, reports that Morgan Stanley, Deutsche Bank National Trust Company, other lenders and Assurant Inc. urged a California federal judge on Sept. 29 to toss a putative class action alleging they ripped off thousands of homeowners with overpriced force-placed insurance, saying the plaintiff never paid for the insurance and thus wasn't harmed. Named plaintiff Shane Valdez's suit alleges insurer Assurant paid kickbacks to several banks to secure their business for force- placed insurance, insurance which a bank "forces" on a borrower if there's inadequate or no insurance coverage on a mortgaged property. At a hearing in Los Angeles, Fredrick S. Levin -- flevin@buckleysandler.com -- of BuckleySandler LLP, representing Deutsche Bank and Ocwen Loan Servicing LLC, urged U.S. District Judge Christina A. Snyder to dismiss Mr. Valdez's suit because Mr. Valdez didn't suffer an injury and thus lacks standing. Mr. Levin said that Mr. Valdez's complaint alleges he was injured by the cost of the force-placed, or lender-placed, insurance on his property, but that due to a loan modification, Mr. Valdez never paid for the insurance. "Plaintiff has admitted their loan was modified, its balance reduced . . . those LPI charges were forgiven," Mr. Levin said. "This plaintiff is before this court complaining of LPI premiums he has not paid and will never pay." Mr. Valdez filed suit on May 9, alleging loan servicers Deutsche Bank, Ocwen and former Morgan Stanley unit Saxon Mortgage Services Inc., as well as insurer Assurant and subsidiary American Security Insurance Company, were engaged in an illegal kickback scheme in which Assurant paid the servicers to secure exclusive purchasing agreements. Mr. Valdez contended Ocwen force-placed hazard insurance on his property in January 2012 at an annual premium of $3,402, with a coverage of $506,250, and that although this premium was "substantially" higher than a traditional insurance policy, the policy provided less coverage than was typical as well. Mr. Valdez's suit alleged all defendants violated the anti- racketeering Hobbs Act, the Racketeer Influenced and Corrupt Organizations Act, and California's Unfair Competition Law, and that Deutsche Bank also violated the Truth In Lending Act. On Aug. 4, the defendants each filed motions to dismiss the suit, with Deutsche Bank arguing that it only became Mr. Valdez's lender in 2008, well after the underlying loan transaction had been consummated, and thus cannot be held liable for insurance placed at that time. Morgan Stanley argued Mr. Valdez's complaint only alleges a generalized attack on the force-placed insurance industry, rather than specific allegations against Saxon. On Sept. 29, Judge Snyder told the defendants that as persuasive as their arguments may yet prove to be, they appear to be premature, and took the matter under submission. "You may well be correct, but it's better to decide it on summary judgment," she said. Mr. Valdez is represented by Rose F. Luzon and Valerie Chang of Shepherd Finkelman Miller & Shah LLP and Stephen J. Fearon Jr. -- stephen@sfclasslaw.com -- of Squitieri & Fearon LLP. Deutsche Bank and Ocwen are represented by Frederick S. Levin and Jennifer A. Slagle Peck -- jslaglepeck@buckleysandler.com -- of BuckleySandler LLP. Assurant and American Security are represented by Mark A. Neubauer -- mneubauer@cfjblaw.com -- Frank G. Burt -- fburt@cfjblaw.com -- W. Glenn Merten -- gmerten@cfjblaw.com -- and Dawn B. Williams -- dwilliams@cfjblaw.com -- of Carlton Fields Jorden Burt PA. Morgan Stanley is represented by Mary Gail Gearns -- marygail.gearns@bingham.com -- Matthew Minerva -- matthew.minerva@bingham.com -- and Neema Ghannadi -- neema.ghannadi@bingham.com -- of Bingham McCutchen LLP. The case is Shane Valdez v. Saxon Mortgage Services et al., case number 2:14-cv-03595, in the U.S. District Court for the Central District of California. MULTIMEDIA GAMES: Faces Suit Over Proposed Sale to Global Cash -------------------------------------------------------------- Thomas Baird, Individually and on Behalf of All Others Similarly Situated v. Multimedia Games Holding Company, Inc., Stephen J. Greathouse, Stephen P. Ives, Neil E. Jenkins, Michael J. Maples, Sr., Justin A. Orlando, Patrick J. Ramsey, Robert D. Repass, Global Cash Access Holdings, Inc., and Movie Merger Sub, Inc., Case No. 1:14-cv-00922 (W.D. Tex., October 3, 2014) is brought against the Defendants for allegedly breaching (or aiding and abetting thereof) their fiduciary duties in connection with GCA's proposed acquisition of all the outstanding stock of Multimedia Games. Multimedia Games is a Texas corporation headquartered in Austin, Texas. The Company designs, manufactures, and distributes advanced gaming technology for the Native American and commercial casino markets with product offerings in video slots, reel- spinning slot machines, video lottery terminals, electronic scratch ticket systems, electronic instant lottery systems, back- office systems, and bingo systems. The Individual Defendants are directors and officers of the Company. Global Cash is a Delaware corporation with its corporate headquarters in Las Vegas, Nevada. Global Cash provides cash, credit, and payment technology to casinos. Merger Sub is a Texas corporation and a wholly-owned subsidiary of Global Cash, and was created for purposes of effectuating the Proposed Transaction. The Plaintiff is represented by: Thomas E. Bilek, Esq. THE BILEK LAW FIRM, L.L.P. 700 Louisiana, Suite 3950 Houston, TX 77002 Telephone: (713) 227-7720 E-mail: tbilek@bileklaw.com - and - Juan E. Monteverde, Esq. James M. Wilson, Jr., Esq. Miles D. Schreiner, Esq. FARUQI & FARUQI, LLP 369 Lexington Ave., Tenth Floor New York, NY 10017 Telephone: (212) 983-9330 Facsimile: (212) 983-9331 E-mail: jmonteverde@faruqilaw.com jwilson@faruqilaw.com mschreiner@faruqilaw.com - and - Evan J. Smith, Esq. BRODSKY & SMITH, LLC Two Bala Plaza, Suite 510 Bala Cynwyd, PA 19004 Telephone: (610) 667-6200 Facsimile: (610) 667-9029 E-mail: esmith@brodsky-smith.com NEW ARCHVIEW: Sued in Illinois Over Failure to Pay Overtime Wages ----------------------------------------------------------------- Remigio Garcia-Rodriguez, Felipe Hernandez-Garza, individually and on behalf of other employees similarly situated v. New Archview Restaurant, Inc. and Nick Xenos, individually, Case No. 1:14-cv- 07669 (N.D. Ill., October 1, 2014), is brought against the Defendants for failure to pay overtime wages for hours worked in excess of 40 hours in a week. The Defendants own and operate a restaurant doing business within the State of Illinois. The Plaintiff is represented by: Valentin Tito Narvaez , Esq. CONSUMER LAW GROUP, LLC 6232 N. Pulaski, Suite 200 Chicago, IL 60646 Telephone: (877) 509-6422 Facsimile: (888) 270-8983 E-mail: consumerlawgroupllc@gmail.com OCEAN POWER: Securities Class Actions in Preliminary Stages ----------------------------------------------------------- Ocean Power Technologies, Inc. said in its Form 10-Q filed with the Securities and Exchange Commission on September 12, 2014, for the quarterly period ended July 31, 2014, the Company is a defendant in four putative securities class actions pending in the United States District Court for the District of New Jersey. See Roby v. Ocean Power Technologies, Inc., et al., Case No. 3:14-cv- 03799-FLW-LHG; Chew, et al. v. Ocean Power Technologies, Inc. et. al., Case No 3:14-cv-03815-MAS-DEA; Konstantinidis v. Ocean Power Technologies, Inc., et al., Case No. 3:14-cv-04015-FLW-DEA; Turner v. Ocean Power Technologies, Inc., et al., Case No. 3:14-cv-04592. The Company's former Chief Executive Officer is named as a defendant in each of the lawsuits and the Company's Chief Financial Officer is named as a defendant in two of the lawsuits. The complaints allege claims for violations of Sec. 10(b) and Sec. 20(a) of the Securities Exchange Act of 1934 arising out of public statements relating to a now terminated agreement between Victorian Wave Partners Pty. Ltd. and the Australian Renewable Energy Agency for the development of a wave power station (the "VWP Project"). All four complaints seek unspecified monetary damages and other relief. On August 12, 2014, five motions for appointment of lead plaintiff were filed. The motions also seek to consolidate the actions. The Court has not ruled on the motions. The cases are still in their preliminary stages and defendants have not yet responded to the complaints. Ocean Power Technologies develops and is seeking to commercialize proprietary systems that generate electricity by harnessing the renewable energy of ocean waves. PELLA CORP: "Saltzman" Suit Moved From Illinois to South Carolina ----------------------------------------------------------------- The class action lawsuit captioned Saltzman, et al. v. Pella Corporation, et al., Case No. 1:06-cv-04481, was transferred from the U.S. District Court for the Northern District of Illinois to the U.S. District Court for the District of South Carolina (Charleston). The South Carolina District Court Clerk assigned Case No. 2:14-cv-03885-DCN to the proceeding. The lawsuit arose from insurance-related dispute. Plaintiff Dr. Leonard E. Saltzman is represented by: Paul M. Weiss, Esq. COMPLEX LITIGATION GROUP LLC 513 Central Avenue, Suite 300 Highland Park, IL 60035 Telephone: (847) 433-4500 Facsimile: (847) 433-2500 E-mail: paul@complexlitgroup.com - and - Benjamin A. Schwartzman, Esq. ANDERSEN BANDUCCI PLLC 101 S. Capitol Blvd., Suite 1600 Boise, ID 83702 Telephone: (208) 342-4411 Facsimile: (208) 342-4455 E-mail: bas@andersenbanducci.com - and - Eric C. Brunick, Esq. BRUNICK LLC 22 W. Washington Street, Suite 1500 Chicago, IL 60602 Telephone: (312) 262-5908 E-mail: ebrunick@brunickllc.com - and - John A. Yanchunis, Esq. MORGAN & MORGAN, PA 201 N. Franklin Street, 7th Floor Tampa, FL 33602 Telephone: (813) 223-5505 Facsimile: (813) 223-5402 E-mail: jyanchunis@forthepeople.com - and - Jonathan Shub, Esq. Scott A. George, Esq. SEEGER, WEISS LAW FIRM 1515 Market Street, Suite 1380 Philadelphia, PA 19102 Telephone: (215) 564-2300 Facsimile: (215) 851-8029 E-mail: jshub@seegerweiss.com sgeorge@seegerweiss.com - and - Mark S. Fistos, Esq. Steven R. Jaffe, Esq. FARMER, JAFFE, WEISSING, EDWARDS, FISTOS AND LEHRMAN 425 North Andrews Avenue, Suite 2 Fort Lauderdale, FL 33301 Telephone: (954) 524-2820 Facsimile: (954) 527-8663 E-mail: mark@pathtojustice.com steve@pathtojustice.com - and - Richard J. Burke, Esq. QUANTUM LEGAL 1010 Market Street, Suite 1310 Saint Louis, MO 63101 Telephone: (847) 433-4500 Facsimile: (847) 433-2500 E-mail: richard@Qulegal.com - and - Tod N. Aronovitz, Esq. ARONOVITZ TRIAL LAWYERS 150 W. Flagler Street, Suite 2700 Miami, FL 33130 Telephone: (305) 372-2772 E-mail: ta@aronovitzlaw.com - and - William M. Sweetnam, Esq. SWEETNAM LLC 100 N La Salle St., Suite 1010 Chicago, IL 60602 Telephone: (312) 757-1888 Facsimile: (312) 754-8090 E-mail: wms@sweetnamllc.com Plaintiffs Thomas Riva, Nancy Ehorn, William Ehorn and Kent Eubank are represented by: Hillard M. Sterling, Esq. WINGET, SPADAFORA & SCHWARTZBERG, LLP 55 West Wacker, 14th Floor Chicago, IL 60601 Telephone: (312) 456-7769 Facsimile: (312) 345-1778 E-mail: sterling.h@wssllp.com - and - David Max Oppenheim, Esq. Glenn L. Hara, Esq. ANDERSON AND WANCA 3701 Algonquin Road, Suite 760 Rolling Meadows, IL 60008 Telephone: (847) 368-1500 E-mail: doppenheim@andersonwanca.com ghara@andersonwanca.com Plaintiff Lyle Schulte is represented by: Hall Adams, III, Esq. LAW OFFICES OF HALL ADAMS 33 N. Dearborn Street, Suite 2350 Chicago, IL 60602 Telephone: (312) 445-4900 Facsimile: (312) 445-4901 E-mail: Hall@adamslegal.net - and - John Jacob Pentz, Esq. CLASS ACTION FAIRNESS GROUP 736 Boston Post Road/3 Sudbury, MA 01776 Plaintiffs Tim Bastiaanse, Joseph Palmiotto, Brad Zurn and Judith McClosky are represented by: Richard J. Burke, Esq. QUANTUM LEGAL 1010 Market Street, Suite 1310 Saint Louis, MO 63101 Telephone: (847) 433-4500 Facsimile: (847) 433-2500 E-mail: richard@Qulegal.com Intervenor Plaintiff Richard Crampton is represented by: Robert A. Clifford, Esq. Shannon Marie McNulty, Esq. CLIFFORD LAW OFFICES, P.C. 120 North LaSalle Street, 31st Floor Chicago, IL 60602 Telephone: (312) 899-9090 E-mail: rac@cliffordlaw.com smm@cliffordlaw.com Intervenor Plaintiff Katherine Howes is represented by: Edward Anthony Wallace, Esq. Justin Nicholas Boley, Esq. Kenneth A. Wexler, Esq. Thomas Arthur Doyle, Esq. WEXLER WALLACE LLP 55 West Monroe, Suite 3300 Chicago, IL 60603 Telephone: (312) 346-2222 Facsimile: (312) 227-1992 E-mail: eaw@wexlerwallace.com jnb@wexlerwallace.com kaw@wexlerwallace.com tadoyle@thomasadoyle.com - and - Daniel E. Gustafson, Esq. Jason S. Kilene, Esq. Sara Payne, Esq. GUSTAFSON GLUEK PLLC Canadian Pacific Plaza 120 South 6th Street, Suite 2600 Minneapolis, MN 55402 Telephone: (612) 333-8844 E-mail: dgustafson@gustafsongluek.com jkilene@gustafsongluek.com spayne@gustafsongluek.com The Defendants are represented by: Douglas L. Prochnow, Esq. John A. Roberts, Esq. EDWARDS WILDMAN PALMER LLP 225 West Wacker Drive, Suite 3000 Chicago, IL 60606-1229 Telephone: (312) 201-2000 E-mail: dprochnow@edwardswildman.com jroberts@edwardswildman.com - and - Amy Rae Fiterman, Esq. James A. O'Neal, Esq. John P. Mandler, Esq. Shane A. Anderson, Esq. FAEGRE & BENSON LLP 2200 Wells Fargo Center 90 South 7th Street Minneapolis, MN 55402 Telephone: (612) 766-7768 Facsimile: (612) 766-1600 E-mail: amy.fiterman@FaegreBD.com james.oneal@faegrebd.com john.mandler@faegrebd.com shane.anderson@faegrebd.com Objector Michael J. Schulz is represented by: Christopher Bandas, Esq. BANDAS LAW FIRM, P.C. 500 N. Shoreline, Suite 1020 Corpus Christi, TX 78401 Telephone: (361) 698-5200 E-mail: cbandas@bandaslawfirm.com - and - Peter F. Higgins, Esq. LIPKIN & HIGGINS 222 North LaSalle Street, Suite 2100 Chicago, IL 60601 Telephone: (312) 857-1710 E-mail: phiggins@lipkinhiggins.com Objector Dave Thomas is represented by: Joseph Darrell Palmer, Esq. LAW OFFICES OF DARRELL PALMER PC 2244 Faraday Avenue, Suite 121 Carlsbad, CA 92008 Telephone: (858) 215-4064 Facsimile: (866) 583-8115 E-mail: darrell.palmer@palmerlegalteam.com Intervenor Ron Nolte is represented by: Edward Eshoo, Jr., Esq. CHILDRESS DUFFY GOLDBLATT, LTD 515 North State Street, Suite 2200 Chicago, IL 60610-8190 Telephone: (312) 494-0200 E-mail: eeshoo@childresslawyers.com - and - Michael W. Duffy, Esq. CHILDRESS DUFFY GOLDBLATT, LTD 500 North Dearborn, Suite 1200 Chicago, IL 60654 Telephone: (312) 494-0200 Facsimile: (312) 494-0202 E-mail: mduffy@childresslawyers.com - and - Daniel K. Bryson, Esq. WHITFIELD BRYSON & MASON LLP 3700 Glenwood Ave., Suite 410 Raleigh, NC 27612 Telephone: (919) 981-0191 Facsimile: (919) 981-0199 E-mail: dan@wbmllp.com - and - Matthew E. Lee, Esq. WHITFIELD BRYSON AND MASON LLP 900 West Morgan Street Raleigh, NC 27603 Telephone: (919) 600-5005 Facsimile: (919) 600-5035 E-mail: matt@wbmllp.com - and - Gary E. Mason, Esq. MASON LAW FIRM 1225 19th Street NW, Number 500 Washington, DC 20036 Telephone: (202) 408-4600 E-mail: gmason@wbmllp.com PEPCO HOLDINGS: Entered Into MOU in Merger Class Suit ----------------------------------------------------- Pepco Holdings, Inc. filed with the Securities and Exchange Commission on September 12, 2014, a Form 8-K pursuant to a memorandum of understanding regarding the settlement of certain litigation relating to the Amended and Restated Agreement and Plan of Merger, dated as of July 18, 2014 (the "Merger Agreement"), among Pepco Holdings, Inc., a Delaware corporation ("Pepco Holdings" or "PHI"), Exelon Corporation, a Pennsylvania corporation ("Exelon"), and Purple Acquisition Corp., a Delaware corporation and an indirect, wholly-owned subsidiary of Exelon ("Merger Sub"), providing for the merger of Merger Sub with and into Pepco Holdings (the "Merger"), with Pepco Holdings surviving the Merger as an indirect, wholly-owned subsidiary of Exelon. As disclosed on page 57 of the definitive proxy statement on Schedule 14A filed with the Securities and Exchange Commission (the "SEC") by Pepco Holdings on August 12, 2014 (the "Definitive Proxy Statement"), 13 lawsuits were filed in connection with the Merger in the Delaware Court of Chancery against Pepco Holdings, members of its board of directors, Exelon and Merger Sub. On June 11, 2014, one of the lawsuits was dismissed voluntarily and the Court of Chancery separately entered an order consolidating the remaining 12 actions. The lead plaintiffs subsequently filed a consolidated amended complaint on August 1, 2014, a putative class action alleging, among other things, that members of the PHI board of directors (the "PHI Board") breached their fiduciary duties and that Pepco Holdings, Exelon and Merger Sub aided and abetted those alleged breaches of fiduciary duty. On August 12, 2014, one of the former Delaware state court plaintiffs filed a substantially similar action in federal court in and for the District of Delaware, captioned Reichbart v. Frisby et al., No. 1:14-cv-01039-GMS, alleging that the disclosure in the Definitive Proxy Statement was inaccurate or incomplete in violation of the federal securities laws. On September 12, 2014, Pepco Holdings entered into a memorandum of understanding with the plaintiffs providing for the settlement of the consolidated Court of Chancery action. Pepco Holdings believes that no further supplemental disclosure is required under applicable securities laws; however, to avoid the risk of the consolidated Delaware action delaying or adversely affecting the Merger and to minimize the expense of defending such action, it has agreed, pursuant to the terms of the proposed settlement, to make certain supplemental disclosures related to the proposed Merger, all of which are set forth below. Subject to completion of certain confirmatory discovery by counsel to the plaintiffs, the memorandum of understanding contemplates that the parties will enter into a stipulation of settlement. The stipulation of settlement contemplated by the parties will be subject to customary conditions, including court approval following notice to Pepco Holdings' stockholders. In the event that the parties enter into a stipulation of settlement, a hearing will be scheduled at which the Delaware Court of Chancery will consider the fairness, reasonableness, and adequacy of the settlement. If the settlement is finally approved by the court, it will resolve and release all claims that were or could have been brought in any of the actions challenging any aspect of the proposed Merger, the Merger Agreement, and any disclosure made in connection therewith (but excluding claims for appraisal made by stockholders of Pepco Holdings in accordance with Section 262 of the General Corporation Law of the State of Delaware), pursuant to terms that will be disclosed to stockholders of Pepco Holdings prior to final approval of the settlement. In addition, in connection with the settlement, the parties contemplate that plaintiffs' counsel will file a petition in the Delaware Court of Chancery for an award of attorneys' fees and expenses to be paid by Pepco Holdings or its successor, which the defendants may oppose. Pepco Holdings or its successor shall pay or cause to be paid any attorneys' fees and expenses awarded by the Delaware Court of Chancery. There can be no assurance that the parties will ultimately enter into a stipulation of settlement or that the Delaware Court of Chancery will approve the settlement even if the parties were to enter into such stipulation. In such event, the proposed settlement as contemplated by the memorandum of understanding may be terminated. PERRY ELLIS: Mediation Scheduled for Fiscal 2015 3rd Quarter ------------------------------------------------------------ Perry Ellis International, Inc. said in its Form 10-Q filed with the Securities and Exchange Commission on September 11, 2014, for the quarterly period ended August 2, 2014, that the Company is a defendant in Humberto Ordaz v. Perry Ellis International, Inc., Case No. BC490485 (Cal. Sup. Ct. 2012), involving claims for unpaid wages, missed breaks and related claims, which was originally filed on August 17, 2012 by a former employee in the Company's California administrative offices. The lawsuit has been pleaded but not certified as a class action. Mediation has been scheduled for the third quarter of fiscal 2015, and formal discovery has been deferred until after the mediation. The Company believes that it has meritorious defenses to the claims alleged and is vigorously defending the matter. PHARMACEUTICAL INNOVATIONS: FDA Seeks Permanent Injunction ---------------------------------------------------------- The U.S. Food and Drug Administration on Oct. 3 disclosed that it is seeking a permanent injunction to stop Pharmaceutical Innovations Inc., and its principal officer, Gilbert Buchalter, from manufacturing, marketing, selling, and distributing medical products until they come into compliance with all applicable FDA requirements. The Newark, New Jersey company's products include ultrasound, mammography, and electrocardiogram gels, and scanning pads. These products are medical devices used for diagnostic purposes in health care settings. The complaint alleges that the defendants did not manufacture their devices in conformity with the current good manufacturing practice requirements of the Federal Food, Drug, and Cosmetic Act, and that they distributed their products nationwide without required premarket approval or clearance. The complaint also details that U.S. marshals, acting at the request of the FDA, seized certain lots of Other-Sonic Generic Ultrasound Transmission Gel from the company in April 2012. The seizure took place after FDA laboratories found in those lots significant amounts of Pseudomonas aeruginosa and Klebsiella oxytoca -- bacteria that pose serious risks of infection, such as pneumonia, to people exposed to the product. The FDA is aware of people who were infected with Pseudomonas aeruginosa after having undergone a surgical procedure at a Michigan hospital involving Other Sonic Generic Ultrasound Transmission Gel. On April 18, 2012, FDA issued a safety alert to health care professionals and facilities to stop using the contaminated product. "Despite multiple warnings by the FDA over the past three years, and promises to correct the numerous ongoing violations, the defendants continued to violate the law," said Melinda K. Plaisier, the FDA's associate commissioner for regulatory affairs. "This presents serious health risks to patients who used and continue to use the company's products. By taking this action, the FDA is demonstrating its commitment to protecting the public from the dangers of adulterated and misbranded medical products." The complaint for permanent injunction was filed by the U.S. Department of Justice on behalf of the FDA on Oct. 2, 2014, in the U.S. District Court for the District of New Jersey. The FDA, an agency within the U.S. Department of Health and Human Services, protects the public health by assuring the safety, effectiveness, and security of human and veterinary drugs, vaccines and other biological products for human use, and medical devices. The agency also is responsible for the safety and security of our nation's food supply, cosmetics, dietary supplements, products that give off electronic radiation, and for regulating tobacco products. PHILADELPHIA, PA: Faces Class Action Over Forfeiture Machine ------------------------------------------------------------ Darpana Sheth, Esq. of Institute for Justice, in an article for The Moral Liberal, reports that the city of Philadelphia is facing a class action over forfeiture machine. For the past few months, Chris and Markela Sourovelis have been living a nightmare. It started on May 8 when police showed up on their doorstep to kick them and their family out of their home in suburban Philadelphia. Without any notice or opportunity to see a judge, the Sourovelises were told to pack up their belongings and immediately leave because prosecutors had obtained a secret court order to "seize and seal" the house using civil forfeiture. Prosecutors who seized the home threatened to sell it because Chris' son had been arrested in the home a few weeks earlier for selling $40 worth of drugs. Chris, who owns the property, was never charged with any crime. Unfortunately, in the City of Brotherly Love, Chris and Markela's story is not unique. The city's prosecutors are using civil forfeiture like a machine that strips people of their constitutional rights in order to devour their hard-earned cash, cars and homes. From 2002 through 2012, the city's police and prosecutors took in more than $64 million in forfeiture proceeds by seizing more than 1,100 homes, 3,200 vehicles and $44 million in cash from citizens. That's more than twice the annual forfeiture revenue of Brooklyn, N.Y., and Los Angeles County combined and represents almost 20 percent of the general budget of the city's District Attorney's Office. To make matters worse, these forfeiture proceeds directly benefit the city's police and prosecutors. Each year, Philadelphia rakes in an average of almost $6 million in forfeiture revenue, which Pennsylvania law requires be turned over to law enforcement, rather than put in a neutral fund. Where does all this money go? Over $25 million of the $64 million in forfeited cash and property the city took in went to pay salaries, including the salaries of the very prosecutors doing the forfeiting. It is this perverse profit incentive that fuels Philadelphia's forfeiture machine. This is how the machine works: Property owners like the Sourovelises who have their cash, cars or homes seized are told to go to Courtroom 478 in iconic City Hall for a "hearing." But when they get there, they do not see a judge or a jury; there is not even a court reporter to transcribe these so-called hearings. It is just a room staffed with city prosecutors who run the show and call all the shots. It is the prosecutors who frequently tell property owners that the process is simple and hiring a lawyer is not necessary. It is the prosecutors who require homeowners like Chris to sign away their legal rights and agree to onerous conditions in order to be let back into their homes. It is the prosecutors who force property owners to return to Courtroom 478 time and time again, sometimes up to a dozen times in a single case. It is the prosecutors who mark cases for default -- an automatic win for the government -- if the property owner misses a single hearing. And ultimately it is the prosecutors who stand to profit from this scheme. To end this unconscionable practice, IJ filed a federal lawsuit -- and the first class action lawsuit in IJ's history -- on behalf of the Sourovelises and all other property owners in Philadelphia who are living the nightmare of civil forfeiture. A victory in the lawsuit would not only benefit the property owners IJ is representing, but all Philadelphians who are caught up in an upside-down legal process that violates their constitutional rights and treats them like cash machines. PHOENIX COMPANIES: Court Denied Fleisher's Summary Judgment Bid --------------------------------------------------------------- The Phoenix Companies, Inc. on September 11, 2014, filed with the Securities and Exchange Commission a Form 10-Q Report for the quarterly period ended September 30, 2013, disclosing that by order dated July 12, 2013, two separate classes were certified in an action pending in the United States District Court for the Southern District of New York (C.A. No. 1:11-cv-08405-CM-JCF (U.S. Dist. Ct; S.D.N.Y.)) brought by Martin Fleisher and another plaintiff (the "Fleisher Litigation"), on behalf of themselves and others similarly situated, against Phoenix Life. By subsequent order dated August 26, 2013, the court decertified one of the cases. The complaint in the Fleisher Litigation, filed on November 18, 2011, challenges COI rate adjustments implemented by Phoenix Life, which Phoenix Life maintains were based on policy language permitting such adjustments. The complaint seeks damages for breach of contract. The class certified in the court's July 12, 2013 order, as limited by the court's August 26, 2013 order, is limited to holders of Phoenix Life policies issued in New York and subject to New York law. By order dated April 29, 2014, the court denied Martin Fleisher's motion for summary judgment in the Fleisher Litigation in its entirety, while granting in part and denying in part Phoenix Life's motion for summary judgment. The Phoenix Companies, Inc. is a holding company incorporated in Delaware. Its operating subsidiaries provide life insurance and annuity products through independent agents and financial advisors. PHOENIX COMPANIES: Court Denied Tiger's Summary Judgment Motion --------------------------------------------------------------- The Phoenix Companies, Inc. on September 11, 2014, filed with the Securities and Exchange Commission a Form 10-Q Report for the quarterly period ended September 30, 2013, disclosing that Phoenix Life's subsidiary, PHL Variable, has been named as a defendant in four actions challenging its COI rate adjustments implemented concurrently with the Phoenix Life adjustments. These four cases, which are not styled as class actions, have been brought against PHL Variable by (1) Tiger Capital LLC (C.A. No. 1:12-cv- 02939-CM-JCF; U.S. Dist. Ct; S.D.N.Y., complaint filed on March 14, 2012; the "Tiger Capital Litigation") and (2-4) U.S. Bank National Association, as securities intermediary for Lima Acquisition LP ((2: C.A. No. 1:12-cv-06811-CM-JCF; U.S. Dist. Ct; S.D.N.Y., complaint filed on November 16, 2011; 3: C.A. No. 1:13- cv-01580-CM-JCF; U.S. Dist. Ct; S.D.N.Y., complaint filed on March 8, 2013; collectively, the "U.S. Bank N.Y. Litigations")); and 4: C.A. No. 1:13-cv-00368-GMS; U.S. Dist. Ct; D. Del., complaint filed on March 6, 2013; the "Delaware Litigation"). The Tiger Capital Litigation and the two U.S. Bank N.Y. Litigations have been assigned to the same judge as the Fleisher Litigation, and discovery in these four actions which was coordinated by the court has concluded. By orders in both U.S. Bank N.Y. Litigations dated May 23, 2014, the court denied U.S. Bank's motions for summary judgment in their entirety, while granting in part and denying in part PHL Variable's motions for summary judgment. U.S. Bank moved for reconsideration of the court's summary judgment decisions in the U.S. Bank N.Y. Litigations, which the court denied by orders dated June 4, 2014. By order in the Tiger Capital Litigation dated July 23, 2014, the court denied Tiger Capital's motion for summary judgment in its entirety, while granting in part and denying in part PHL Variable's motion for summary judgment. The Delaware Litigation is proceeding separately and by order dated April 22, 2014 was transferred to the U.S. District Court for the District of Connecticut and assigned a new docket number (C.A. No. 3:14-cv-0555-WWE). The plaintiffs seek damages and attorneys' fees for breach of contract and other common law and statutory claims. The Phoenix Companies, Inc. is a holding company incorporated in Delaware. Its operating subsidiaries provide life insurance and annuity products through independent agents and financial advisors. PIXAR ANIMATION: Faces Class Action Over Sherman Act Violations --------------------------------------------------------------- Kyla Asbury, writing for Legal Newsline, reports that a California woman is suing Pixar after she claims it violated the Sherman Act by entering into anti-solicitation and compensation-suppressing agreements with other animation studios. The genesis of the anti-solicitation and compensation-suppressing agreements at issue was a bilateral agreement originally entered into in the 1980s by George Lucas, the founder of Lucasfilm, Pixar President Ed Catmull and Pixar CEO Steve Jobs, but this bilateral anti-solicitation agreement metastasized over the years into an industry-wide wage-fixing cartel that included the Walt Disney Company, as well as others, according to a complaint filed Sept. 17 in the U.S. District Court for the Northern District of California. DreamWorks Animation SKG Inc., Lucasfilm Ltd.; the Walt Disney Company; Digital Domain 3.0 Inc.; Imagemovers LLC; Imagemovers Digital; Sony Pictures Animation Inc.; Sony Pictures Imageworks Inc.; Blue Sky Studios, Inc; And Does 1 through 100 were also named as defendants in the suit Georgia Cano claims this illegal conspiracy among the defendants to not actively recruit one another's employees in order to thereby suppress their compensation was fraudulently concealed for years. The "illegal conspiracy" was not known to the plaintiff and class members until, in late 2010, when the Department of Justice revealed as part of its then-pending investigation into similar illegal behavior by some of the largest technology companies in the world that Pixar had also engaged in per se violations of the Sherman Act by entering into anti-poaching and wage-fixing agreements with its competitors, the complaint says. The anti-poaching and wage-fixing agreements were made for the express purpose of depressing and/or reducing market-based compensation for class members that are typically associated with the active recruitment of employees and workers in a competitive industry, according to the suit. "While protecting and enhancing their massive profits, defendants through their anti-poaching agreements and wage-fixing agreements deprived class members of hundreds of millions of dollars worth of compensation for which plaintiff and the class now seek relief," the complaint states. Following Disney's acquisition of Pixar, the ongoing mutual anti- solicitation conspiracy expanded to include new animation companies that became partners of Disney's, such as ImageMovers, according to the suit. Ms. Cano claims beginning in 2007, Digital Domain's Head of Human Resources, Lala Gavgavian, and other senior personnel at Digital Domain specifically instructed employees not to cold call or otherwise solicit other defendants' employees. The conspiracy among the defendants was not limited to the anti- solicitation agreements -- it also included activities that were designed to establish and fix compensation for workers, according to the suit. Ms. Cano claims all of the defendants kept the agreements secret from their employees. "Only their top executives and human resources and recruiting personnel involved in the conspiracy communicated about the agreements orally or in emails among themselves, and they almost always insisted that the agreements not be committed to writing," the complaint states. The United States Department of Justice's Antitrust Division investigated the anti-solicitation agreement between Pixar and Lucasfilm and found that their agreement was "facially anticompetitive" and constituted a per se violation of the Sherman Act, according to the suit. "As the DOJ explained, the agreement 'eliminated significant forms of competition to attract digital animators and, overall, substantially diminished competition to the detriment of the affected employees who were likely deprived of competitively important information and access to better job opportunities,'" the complaint states. Ms. Cano claims the DOJ concluded that the agreement "disrupted the normal price-setting mechanisms that apply in the labor setting." Defendants Pixar and Lucasfilm signed settlements enjoining them from making such anti-solicitation agreements again. "Defendants also sought to restrain competition by agreeing to notify each other when an employee or worker from one defendant applied for a position with another defendant, and to limit counteroffers in such situations," the complaint states. "Thus, when an employee at one defendant contacted a second defendant and the second defendant decided to make an offer, it would (a) notify the first defendant, and (b) decline to increase its offer if the current employer outbid it." Ms. Cano is seeking class certification and compensatory damages. She is being represented by Steven G. Sklaver -- ssklaver@susmangodfrey.com -- Kalpana Srinivasan -- ksrinivasan@susmangodfrey.com -- and Matthew R. Berry -- mberry@susmangodfrey.com -- of Susman Godfrey LLP; Julian Ari Hammond --jhammond@hammondlawpc.com -- of Hammond Law PC; and Craig Ackermann of Ackermann & Tilajef PC. The case is assigned to District Judge Paul Singh Grewal. Earlier in September, a similar lawsuit was filed in the U.S. District Court for the Northern District of California. In it, a former DreamWorks employee claimed the defendants violated antitrust laws and caused hundreds of thousands of dollars of damages to the class members. U.S. District Court for the Northern District of California case number: 5:14-cv-04203 PROCTER & GAMBLE: Faces "Tjokronolo" Deodorant Packaging Suit ------------------------------------------------------------- Laura Castro, writing for The National Law Journal, reports that Procter & Gamble Co. and Unilever United States Inc. have been hit with separate putative class actions in New York federal courts alleging that the companies sell antiperspirants and deodorants in packaging that misleads consumers into thinking they're buying more product than they are getting. Although the class actions were filed by different plaintiffs in different courts, they make similar allegations. Plaintiffs are represented by the same attorney, C.K. Lee of Lee Litigation Group. Plaintiff Desta Tjokronolo filed the P&G lawsuit in the U.S. District Court for the Eastern District of New York on Sept. 23, and plaintiff Timba Bimont filed the Unilever lawsuit in the U.S. District Court for the Southern District of New York on Sept. 24. Both plaintiffs are New York state residents. Unilever and P&G are headquartered, respectively in Englewood Cliffs, New Jersey and Cincinnati. The plaintiffs in both cases claim the defendants violated federal and state laws and regulations protecting consumers against unfair, deceptive, fraudulent and unconscionable trade and business practices and false advertising. Mr. Bimont, for example, asserts that Unilever engages in unlawful and deceptive behavior when it manufactures and sells "Degree Dry Protection" and "AXE Gold Protection" products because "the size of the container in comparison to the actual product makes it appear to the reasonable consumer that the consumer is buying more than what is actually being sold." The suit says the Unilever products are about 5 1/4 inch in height and 2 3/4 inches wide, but the actual size of the deodorant stick of the 2.7-ounce product is 3 inches in height and 2 1/2 inches wide. Therefore, the size of the container "has nearly 3 inches of slack-fill in height," the complaint states. Like the Unilever suit, the P&G suit claims the defendant purposely sold its products with non-functional slack-fill, which is described as "the difference between the actual capacity of a container and the volume of product contained within." The line of deodorants at issue are P&G's Gillette and Old Spice products packaged and sold in 2.6, 3.0, and 3.25 ounce containers. Both suits claim the plaintiffs and proposed class members paid a higher price for these products because they were deceived by the products' packaging. The suits seek an unspecified amount of compensatory and punitive damages as well injunctive relief to repackage the products. QUINTAIROS PRIETO: Sued for Violating Fair Debt Collection Act -------------------------------------------------------------- James L. Moore and Sherry L. Moore, on behalf of themselves and all others similarly situated v. Quintairos, Prieto, Wood, & Boyer, P.A., a Florida professional corporation, Case No. 2:14-cv- 14385-RLR (S.D. Fla., October 3, 2014) seeks relief under the Fair Debt Collection Practices Act. The Plaintiffs are represented by: Leo Wassner Desmond, Esq. 5070 N. Highway A1A, Suite D Vero Beach, FL 32963 Telephone: (772) 234-5150 Facsimile: (772) 234-5321 E-mail: lwd@verobeachlegal.com RADIOSHACK CORP: Appeal in "Brookler" Case Fully Briefed -------------------------------------------------------- The appeal in the case Brookler v. RadioShack Corporation has been fully briefed and the parties are awaiting a decision from the Court of Appeals, Radioshack said in its Form 10-Q filed with the Securities and Exchange Commission on September 11, 2014, for the quarterly period ended August 2, 2014. The Company said, "In April 2004, plaintiff Morry Brookler filed a putative class action in Los Angeles Superior Court claiming that we violated California's wage and hour laws relating to meal and rest periods. The meal period claim was originally certified as a class action in February 2006. We filed a Motion for Decertification in August 2007 which was denied. After a favorable decision by the California Court of Appeals in a similar case, Brinker Restaurant Corporation v. Superior Court, we filed a Second Motion for Decertification which was granted in October 2008. The plaintiff appealed this ruling and in August 2010, the California Court of Appeals reversed the trial court's decertification order. In September 2010, we filed a Petition for Review with the California Supreme Court, which granted review and placed the case on hold pending a decision in the Brinker case. In April 2012, the California Supreme Court issued its decision in Brinker and in June 2012, remanded our case to the California Court of Appeals with instructions to vacate its prior order and reconsider its ruling in light of the Supreme Court's decision in Brinker. In December 2012, the Court of Appeals affirmed the trial court's decertification of the meal period class." "In June 2013, the plaintiff filed a Motion to Amend his Complaint to assert rest and meal period as well as off-the-clock and Private Attorneys General Act claims and to add an additional class representative. In July 2013 the trial court granted the Motion to Amend and the plaintiffs filed a Second Amended Complaint. In August 2013 we removed the case to federal court. In September 2013 the plaintiffs filed a Motion to Remand the case back to state court, which was granted in October 2013. In November 2013 we filed a demurrer in state court to all causes of action in the Second Amended Complaint, which was granted without leave to amend in January 2014. "On February 4, 2014, plaintiffs filed a Petition for Writ of Mandate with the Court of Appeals seeking immediate relief from the trial court's order. On February 11, 2014, the Court of Appeals notified the trial court and parties of its intent to issue a peremptory Writ of Mandate compelling the trial court to vacate its order granting the demurrer and issue a new order denying the demurrer. On February 21, 2014, the trial court reversed its prior decision and denied our demurrer. On February 26, 2014, the Court of Appeals determined that the trial court had not followed proper procedure and ordered it to vacate its February 21, 2014, order to allow us an opportunity to oppose the Appellate Court's notice. "In April 2014, after further briefing by the parties, the trial court again sustained our demurrer without leave to amend. In May 2014, plaintiff appealed the trial court's order sustaining the demurrer. The appeal has been fully briefed and the parties are awaiting a decision from the Court of Appeals. The outcome of this case is uncertain and the ultimate resolution of it could have a material adverse effect on our consolidated financial statements in the period in which the resolution is recorded." RADIOSHACK CORP: Class Cert. Denied in "Ordonez" Case ----------------------------------------------------- A court denied a Motion for Class Certification in the case Ordonez v. RadioShack Corporation, the Company said in its Form 10-Q filed with the Securities and Exchange Commission on September 11, 2014, for the quarterly period ended August 2, 2014. The Company said, "In May 2010, we were named as a defendant in a putative class action lawsuit in Los Angeles Superior Court alleging that we violated California's wage and hour laws by not providing required meal periods and rest breaks, failed to pay for all time worked, failed to pay overtime compensation, failed to pay minimum wage and failed to maintain required records. In September 2010, we removed the case to the U. S. District Court for the Central District of California. In July 2012, plaintiff filed a Motion for Class Certification. In January 2013, the court denied, without prejudice, the Motion for Class Certification as to all claims." "In February 2013, plaintiff filed a Motion for Reconsideration of the court's denial of class certification only with regard to the rest period claim. In April 2013, the court ordered that plaintiff could conduct limited additional discovery and file a renewed Motion for Class Certification. Plaintiff filed the renewed motion in July 2013. "A hearing on the motion was held in February 2014, at which time the court issued a tentative ruling granting plaintiff's motion as to the rest period claim. Following oral argument, the court issued orders requiring the parties to submit supplemental evidence and briefs. In August 2014, the court denied the Motion. "We anticipate that the Plaintiff will appeal. The outcome of this case is uncertain and the ultimate resolution of it could have a material adverse effect on our consolidated financial statements in the period in which the resolution is recorded." RADIOSHACK CORP: Awaits Further Action by Appeals Court ------------------------------------------------------- RadioShack Corporation said in its Form 10-Q filed with the Securities and Exchange Commission on September 11, 2014, for the quarterly period ended August 2, 2014, that the Company was named in April 2012 as a defendant in a putative nationwide collective action under the Fair Labor Standards Act and putative statewide class actions under New York and Ohio state laws in the U. S. District Court for the Northern District of Ohio, claiming that the Company's use of the "fluctuating workweek" method to calculate overtime for certain of its retail store managers violates federal and state laws because the store managers receive bonuses in addition to their fixed salaries. In June 2012, the Company filed a Motion to Dismiss the lawsuit. In March 2013, the court issued an opinion granting the Company's motion in part, finding that plaintiffs were not entitled to seek overtime based upon the Company's use of the "fluctuating workweek" method prior to April 5, 2011, the date of a U.S. Department of Labor Final Rule ("Final Rule") addressing, among other things, proposed changes to the federal "fluctuating workweek" regulation finding that, based upon statements in the Final Rule, bonus payments were now incompatible with the "fluctuating workweek" method. The court also dismissed one of the named plaintiffs. Following the court's decision, the Company filed a Motion to Certify Order for Interlocutory Appeal and Stay the Action, which the court granted in August 2013. "Shortly thereafter we filed a Petition for Permission to Appeal with the U.S. Court of Appeals for the Sixth Circuit, which was granted. The appeal has been fully briefed and we are awaiting further action by the Court of Appeals," the Company said. RADIOSHACK CORP: "Fluctuating Worksheet" Method Violates Pa. Law ---------------------------------------------------------------- RadioShack Corporation said in its Form 10-Q filed with the Securities and Exchange Commission on September 11, 2014, for the quarterly period ended August 2, 2014, that plaintiffs in Pennsylvania, New York and New Jersey filed in April 2013 lawsuits alleging violations of their respective state laws. In June 2013, the Company filed Motions to Dismiss in the New York and New Jersey cases. In November 2013, the court in the New York case granted the Company's Motion to Dismiss. In December 2013, the plaintiff in the New York case filed a notice of appeal with the Second Circuit Court of Appeals. The appeal has been fully briefed and the Company is awaiting further action by the Court of Appeals. In April 2014, the plaintiff in the New Jersey case voluntarily dismissed the case and filed an opt in notice in the Ohio case. In September 2013, the court in the Pennsylvania case ordered the parties to file briefs addressing whether the Company's use of the "fluctuating workweek" method violates Pennsylvania law. The plaintiff filed a Motion for Summary Judgment and the Company filed a Motion for Judgment on the Pleadings. In July 2014, the court issued an opinion granting plaintiff's Motion for Summary Judgment and denying the Company's Motion for Judgment on the Pleadings finding that the "fluctuating worksheet" method of compensation violates Pennsylvania law. RADIOSHACK CORP: 7th Circuit Vetoes Class Action Settlement ----------------------------------------------------------- Kyla Asbury, writing for Legal Newsline, reports that a federal appeals court has declared a settlement between class members and RadioShack void after deciding the actual benefits were too low in comparison to the proposed legal fees. The opinion was filed Sept. 19 in the U.S. Court of Appeals for the Seventh Circuit. Judges Richard Posner, Diane Pamela Wood, David Hamilton voted in the majority, with Posner authoring the opinion. "Unfortunately the magistrate judge in approving the settlement in RadioShack failed to analyze the issues properly," the opinion states. "Let's begin with the value of the award to the class members. The judge accepted the settlors' contention that the defendant's entire expenditures should be aggregated in determining the size of the settlement; it was this aggregation that reduced the award of attorneys' fees to class counsel to a respectable -- seeming 25 percent." But the roughly $2.2 million in administrative costs should not have been included in calculating the division of the spoils between class counsel and class members, according to the opinion. Those costs are part of the settlement but not part of the value received from the settlement by the members of the class, and, according to the opinion, the costs shed no light on the fairness of the division of the "settlement pie" between class counsel and class members. "Of course without administration and therefore administrative costs, notably the costs of notice to the class, the class would get nothing," the opinion states. "But also without those costs class counsel would get nothing, because the class, not having learned of the proposed settlement (or in all likelihood of the existence of a class action), would have derived no benefit from class counsel's activity." The settlement in the class action was intended as a resolution to customers who opposed RadioShack's printing of credit and debit card expiration dates on receipts. Class members claimed Radio Shack violated the Fair and Accurate Credit Transactions Act as this practice put them at an increased risk of identity theft in case the receipt was lost. "At most (the class) received $830,000," the opinion states. "That translates into a ratio of attorneys' fees to the sum of those fees plus the face value of the coupons of 1 to 1.83, which equates to a contingent fee of 55%. . ." No attempt was made by the magistrate judge or the parties to the proposed settlement to estimate the actual value of the nominal $830,000 worth of coupons, the court ruled. "The magistrate judge, in approving the inadequate settlement proposal, may have been concerned with the cost of litigation to fragile RadioShack if the settlement was disapproved and the case had to be tried," the opinion states. "But very few class actions are tried . . . and this one would not have been an exception. RadioShack can't afford costly litigation, and class counsel can't afford to risk a delay in settling, lest RadioShack declare bankruptcy." "A renegotiated settlement will simply shift some fraction of the exorbitant attorneys' fee awarded class counsel in the existing settlement that we are disapproving to the class members," according to the opinion. The case is reversed and remanded back to the U.S. District Court for the Northern District of Illinois for further proceedings U.S. Court of Appeals for the Seventh Circuit case numbers: 14- 1470, 14-1471, 14-1658 RESTORATION HARDWARE: $9.2MM in Fees Awarded to Plaintiffs' Atty ---------------------------------------------------------------- Restoration Hardware Holdings, Inc. said in its Form 10-Q filed with the Securities and Exchange Commission on September 11, 2014, for the quarterly period ended August 2, 2014, that the Court granted plaintiffs' motion for attorney's fees, costs and awards, and awarded $9.2 million in fees and costs to plaintiffs' attorney in the class action filed by Mike Hernandez. On October 21, 2008, Mike Hernandez, individually and on behalf of others similarly situated, filed a class action in the Superior Court of the State of California for the County of San Diego against Restoration Hardware, Inc. alleging principally that the Company violated California's Song-Beverly Credit Card Act of 1971 by requesting and recording ZIP codes from customers paying with credit cards. On May 23, 2014, in response to a directive from the Court, the parties filed a joint statement as to the parties' agreed-upon claims process for the class members as well as to other matters related to this proceeding, all of which remain subject to Court approval. As a result of these developments, the Company recorded a $9.2 million charge related to this matter during the six months ended August 2, 2014. On September 5, 2014, the Court granted plaintiffs' motion for attorney's fees, costs and awards, and awarded $9.2 million in fees and costs to plaintiffs' attorney. Restoration Hardware Holdings is a luxury retailer in the home furnishings marketplace. RICH PRODUCTS: Recalls Gelato Fino Tartufo Products --------------------------------------------------- Starting date: September 26, 2014 Type of communication: Recall Alert sub-type: Food Recall Warning (Allergen) Subcategory: Allergen - Tree Nut, Allergen - Wheat Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: Rich Products of Canada Ltd. Distribution: Ontario, Quebec Extent of the product distribution: Retail CFIA reference number: 9287 Check to see if you have recalled products in your home. Recalled products should be thrown out or returned to the store where they were purchased. If you have an allergy to almonds or wheat, do not consume the recalled product as it may cause a serious or life-threatening reaction. There has been one reported reaction associated with the consumption of these products. The recall was triggered by the Canadian Food Inspection Agency's (CFIA) inspection activities. The CFIA is conducting a food safety investigation, which may lead to the recall of other products. If other high-risk products are recalled, the CFIA will notify the public through updated Food Recall Warnings. The CFIA is verifying that industry is removing recalled products from the marketplace. Affected products: Tartufo - Chocolate/Cream and Tartufo - Amaretto/Cappuccino RITE WAY: Fails to Pay Employees Overtime, "Demorris" Suit Says --------------------------------------------------------------- Glenn Demorris, On behalf of himself and others Similarly situated v. Rite Way Fence, Inc., Marx Contracting, Inc., Eugene Zapczynski, Christy Grundner, and Mark Grundner, Case No. 2:14-cv- 13777 (E.D. Mich., October 1, 2014), is brought against the Defendants for failure to pay overtime wages for hours worked in excess of 40 hours in a week. The Defendants are engaged in the business of installing fencing and guardrails along roads and freeways. The Plaintiff is represented by: Maia E. Johnson, Esq. GOLD STAR LAW 2701 Troy Center Dr, Suite 400 Troy, MI 48084 Telephone: (248) 275-5200 Facsimile: (248) 817-2765 E-mail: mjohnson@goldstarlaw.com SANSOO NORTH: Faces "Jaimes" Suit Over Failure to Pay Overtime -------------------------------------------------------------- Florencio Jaimes, individually and on behalf of other employees similarly situated v. Sansoo North Corp, and Chris B. Kim, individually, Case No. 1:14-cv-07656 (N.D. Ill., October 1, 2014), is brought against the Defendants for failure to pay overtime wages. The Defendants own and operate a restaurant known as San Soo Kab San, located at 7901 Golf Road, Morton Grove, Illinois. The Plaintiff is represented by: Valentin Tito Narvaez, Esq. CONSUMER LAW GROUP, LLC 6232 N. Pulaski, Suite 200 Chicago, IL 60646 Telephone: (877) 509-6422 Facsimile: (888) 270-8983 E-mail: consumerlawgroupllc@gmail.com SELECT FOOD: Recalls Newman's Parmesan & Roasted Garlic Dressing ---------------------------------------------------------------- Starting date: September 24, 2014 Type of communication: Recall Alert sub-type: Notification Subcategory: Microbiological - Other Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: Select Food Products Ltd. Distribution: National Extent of the product distribution: Retail CFIA reference number: 9259 Affected products: 350 ml. Newman's Own Parmesan & Roasted Garlic Dressing with 31 OCT 2014 code STARLINE TOURS: Removes "Harp" Suit to California District Court ---------------------------------------------------------------- The class action lawsuit entitled Harp, et al. v. Starline Tours of Hollywood, Inc., et al., Case No. BC498279, was removed from the Superior Court of the State of California for the County of Los Angeles to the U.S. District Court for the Central District of California (Los Angeles). The District Court Clerk assigned Case No. 2:14-cv-07704 to the proceeding. The Plaintiffs accuse the Defendants of failing to compensate for all hours worked and to pay overtime compensation, in violation of the Fair Labor Standards Act. The Defendants are represented by: Mohammed K. Ghods, Esq. Jeremy A. Rhyne, Esq. Sandra J. Vivonia, Esq. GHODS LAW FIRM 2100 N. Broadway, Suite 210 Santa Ana, CA 94706 Telephone: (714) 558-8580 Facsimile: (714) 558-8579 E-mail: mghods@ghodslaw.com jrhyne@ghodslaw.com svivonia@ghodslaw.com STATE FARM: Removes "Silcox" Insurance Suit to S.D. California -------------------------------------------------------------- The class action lawsuit entitled Silcox v. State Farm Mutual Automobile Insurance Company, et al., Case No. 37-2014-00029253- CU-IC-CTL, was removed from the Superior Court of the State of California for the County of San Diego to the U.S. District Court for the Southern District of California (San Diego). The District Court Clerk assigned Case No. 3:14-cv-02345-AJB-NLS to the proceeding. The lawsuit asserts insurance-related claims arising from contract dispute. The Plaintiff is represented by: Ian C. Fusselman, Esq. THORSNES BARTOLOTTA MCGUIRE 2550 Fifth Avenue, 11th Floor San Diego, CA 92103 Telephone: (619) 236-9363 Facsimile: (619) 236-9653 E-mail: cirko@tbmlawyers.com The Defendants are represented by: Shannon Z. Petersen, Esq. SHEPPARD MULLIN RICHTER AND HAMPTON 501 West Broadway, Suite 1900 San Diego, CA 92101-3598 Telephone: (619) 338-6500 Facsimile: (619) 234-3815 E-mail: spetersen@sheppardmullin.com SUPER ASIA: Recalls EBM Click Cumin Biscuit Due to Undeclared Milk ------------------------------------------------------------------ Starting date: September 29, 2014 Type of communication: Recall Alert sub-type: Food Recall Warning (Allergen) Subcategory: Allergen - Milk Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: Super Asia Foods & Spices Ltd. Distribution: Ontario Extent of the product distribution: Retail CFIA reference number: 9292 Affected products: 461 g. EBM Brands Click Cumin Biscuit with all codes where milk is not declared on the label SWEET ART: Recalls Chocolate Chip Macaroon Due to Undeclared Milk ----------------------------------------------------------------- Starting date: September 26, 2014 Type of communication: Recall Alert sub-type: Food Recall Warning (Allergen) Subcategory: Allergen - Milk Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: Sweet Art Bakery Distribution: British Columbia Extent of the product distribution: Retail CFIA reference number: 9290 Affected products: 300 g. Sweet Art Bakery Chocolate Chip Macaroon with best before dates of 14OC21 (14LC11) and 14OC23 (14LC12) SYNGENTA CORP: Sued Over Loss of China's Corn Export Markets ------------------------------------------------------------ Cronin, Inc., and Jim Ruba, Jr. v. Syngenta Corporation, Syngenta Crop Protection, LLC, and Syngenta Seeds, Inc., Case No. 5:14-cv- 04084-MWB (N.D. Iowa, October 3, 2014) arises from the loss of China's corn export markets. In 2009, Syngenta released a genetically engineered corn trait, MIR162, into the U.S. market. The first generation of MIR162 corn was known as "Agrisure Viptera" and the second generation is called "Agrisure Duracade," which, was released, sold, and distributed for planting in 2014. Agrisure varieties have been genetically engineered to protect corn against damage from insects such as the corn borer and corn rootworm. While the seed has been approved by the United States, Brazil, Argentina, and various other countries, Syngenta submitted the corn trait to the Chinese government for approval in March 2010, but it has not been approved for sale in that country. The Plaintiffs allege that they have been damaged by: (1) Syngenta's release of Viptera corn into the U.S. corn and corn seed supply, which has destroyed the export of U.S. corn to China and caused depressed prices for all domestic corn; (2) Syngenta's materially misleading statements relating to the approval status of MIR162 in China and the impact the lack of approval would have on the market; and (3) Syngenta's widespread contamination of the U.S. corn and corn seed supply with MIR162, which will continue to foreclose the U.S. export market to China in future years and will continue to lead to lower corn prices per bushel in the U.S. market, as a result. Cronin, Inc. is a Iowa corporation headquartered in Plymouth County, Iowa. James Ruba, Jr., is resident of Sioux County, Iowa. The Plaintiffs are engaged in the business of planting, growing, harvesting, and selling corn. They contend that they do not buy MIR 162 seed from Syngenta, and instead, only buy corn seed that has either not been genetically modified, or corn seed genetically modified with traits that have been approved by all major corn importing countries, including China. Syngenta Corporation is a Delaware corporation with a principal place of business in Wilmington, Delaware. Syngenta Crop Protection, LLC, is a Delaware limited liability headquartered in Greensboro, North Carolina. Syngenta Seeds, Inc. is a Delaware corporation doing business in Arkansas under the name of Novartis Seeds, Inc., with its principal place of business in Minnetonka, Minnesota. Syngenta is, among other things, in the business of developing and selling, in interstate commerce, corn seed which includes certain genetically engineered traits. After development, Syngenta licenses its genetically-engineered corn seed to seed manufacturers, including Syngenta's subsidiaries, who then sell it to farmers. The Plaintiffs are represented by: Paul D. Lundberg, Esq. LUNDBERG LAW FIRM, P.L.C. 600 Fourth St., Suite 906 Sioux City, IA 51101 Telephone: (712) 234-3030 E-mail: paul@lundberglawfirm.com - and - Thomas V. Bender, Esq. WALTERS BENDER STROHBEHN & VAUGHAN, P.C. 2500 City Center Square 1100 Main Street P.O. Box 26188 Kansas City, MO 64196 Telephone: (816) 421-6620 E-mail: tbender@wbsvlaw.com - and - Charles T. Patterson, Esq. PATTERSON & PRAHL, LLP 25043 Little Water Lane P.O. Box 767 Custer, SD 57730 Telephone: (605) 673-5223 E-mail: tpatterson@patterprahl.com - and - Richard S. Lewis, Esq. James J. Pizzirusso, Esq. Mindy B. Pava, Esq. HAUSFELD LLP 1700 K St. N.W. Suite 650 Washington, D.C. 20006 Telephone: (202) 540-7200 E-mail: rlewis@hausfeldllp.com jpizzirusso@hausfeldllp.com mpava@hausfeldllp.com - and - Adam J. Levitt, Esq. Edmund S. Aronowitz, Esq. GRANT & EISENHOFER P.A. 30 North LaSalle Street, Suite 1200 Chicago, IL 60602 Telephone: (312) 214-0000 E-mail: alevitt@gelaw.com earonowitz@gelaw.com TEMPLETON RYE: Class Action Over Misleading Ad Can Proceed ---------------------------------------------------------- Grant Rodgers, writing for The Des Moines Register, reports that a lawsuit alleging that whiskey maker Templeton Rye deceived consumers received approval to proceed from the state attorney general's office, a signal that the lawsuit's claims are not frivolous. Under a 2009 state law that allows consumers to file class-action lawsuits against companies for fraud, the Iowa attorney general's office must first evaluate the lawsuit and sign off if its claims are found to have validity, said Bill Brauch, director of the office's Consumer Protection Division. Though largely a formality, it is an acknowledgment that Templeton Rye could be found liable for violating Iowa law if allegations of consumer fraud and misleading advertising are found to be true, Mr. Brauch said. Taken at face value, the claims against the rye whiskey producer appear "not even remotely close to frivolous," he said. "In looking at the claims, they appeared to me to be ones that had validity, and in fact, strong validity." If the class action is successful, a judgment or settlement could give future Templeton Rye drinkers a discount on the product, said Ray Johnson, a West Des Moines consumer protection attorney. Often in similar cases, it can be hard to identify all the members of a class, making coupons an attractive option, he said. Proving that consumers paid more for the whiskey believing that it was made in Iowa will be key to the lawsuit, Mr. Johnson said. Additionally, Mr. Brauch approved the filing of a second consumer fraud class-action lawsuit against Templeton Rye from another Chicago law firm, he said. Illinois court records indicate that the second lawsuit has not been filed yet. Attorneys with Edelson PC in Chicago filed a lawsuit earlier this month against the Carroll County-based whiskey company, which since 2006 has sold bottles of its "Prohibition-era" rye whiskey. In marketing materials, such as T-shirts and event advertisements, the company has said the whiskey is "made in Iowa," according to the lawsuit. In August, however, the company's chairman and a co-founder told The Des Moines Register that the company in actuality buys stock rye whiskey from an Indiana distillery, MGP Ingredients, and does not actually produce the whiskey using a Prohibition-era recipe. Drinkers paid more for bottles of Templeton Rye than they normally would have because of advertising that was misleading about the alcohol's roots in Iowa, according to the lawsuit. Looking, for instance, at how Iowa wines are marketed gives weight to the idea that consumers place a higher value on locally made brands, Mr. Johnson said. At stores, local wines are often in their own specially labeled section and sell for higher prices, Mr. Johnson said. "Iowa can develop certain industries by promoting 'made in Iowa' or grown here," he said. "These claims are material and they need to be true. "My personal opinion is this is a no-brainer . . . . If you say something is Iowa-made, most of it or material parts of the product need to be made in Iowa." However, the whiskey company could argue that its production processes allowed it to claim a made-in-Iowa status, said Marsha Mansfield, a professor at the University of Wisconsin's law school who teaches consumer law. After the whiskey is distilled and aged in Indiana, it is shipped to a Templeton facility and blended with other whiskeys, water and other ingredients, the company has said. "That's going to be a question for expert witnesses to address, how the manufacturing process of making this particular product works," she said. "What are they using locally in order to make the final product? Is the fact that it's bottled in the state good enough?" Under Iowa law, the plaintiff's attorneys do not have to show that the Templeton Rye makers intentionally tried to trick consumers to prevail on charges of consumer fraud, Messrs. Brauch and Johnson said. The attorneys must show only that it was "likely" buyers were misled, Mr. Johnson said. The company's intention, however, could factor into a judge's decision on awarding monetary or other damages, both said. The lawsuit, however, does allege that the company made intentional decisions to deceive drinkers, such as originally keeping the fact that the whiskey is distilled in Indiana off the bottle. "Defendant had the opportunity to design, distribute and orchestrate its marketing to disclose the actual origins of its Templeton Rye but instead chose to design misleading marketing that concealed the true origin of its whiskey," the lawsuit said. The lawsuit will most likely be watched by many in the growing craft distilling industry, said Wayne Curtis, a freelance journalist who writes about spirits for the Atlantic. However, Mr. Curtis said he believes the lawsuit is "opportunistic" and overlooks the fact that Templeton Rye and others based on the MGP Ingredients recipe are, overall, quality whiskeys. Media coverage is forcing Templeton Rye and other craft distillers to be more transparent about the source of their products without any need for class-action lawsuits, Mr. Curtis said. "It was not a bait-and-switch kind of thing, other than on the marketing side," he said. "It's not like they're promising craft and giving them some swill made in a Third World country." What's next? The next major step in the lawsuit against Templeton Rye will be a decision by a judge over whether to "certify" the class, which will determine whether the lawsuit moves forward as a class action, said Ray Johnson, a West Des Moines consumer protection attorney. The lawsuit names the class as "all individuals in the United States who've purchased a bottle of Templeton Rye." The company has sold over a million bottles of its whiskey. Templeton Rye will most likely argue against certifying the class, which could increase the amount of damages it pays if the plaintiffs are successful, Mr. Johnson said. A common tactic used by attorneys arguing against class certification is claiming that there's no way to prove the class action accurately represents a group of people, he said. For instance, the whiskey company could argue that there's no way to prove that everybody who bought a bottle feels tricked by what the plaintiff's attorneys claim were Templeton Rye's deceptive marketing practices, Mr. Johnson said. A judge's decision on class certification typically comes months after a lawsuit is filed, he said. Templeton Rye's website and promotional videos claim the firm was born after its founders got a scrap of paper with the whiskey's recipe handed down from Alphonse Kerkhoff, who made the alcohol during Prohibition. The company announced in August that it would change its bottle's labeling to include that the whiskey is distilled in Indiana, which had previously been left off the bottle. TIRE DON: Faces "Camilo" Suit Over Failure to Pay Overtime Wages ---------------------------------------------------------------- Jhomar Camilo and Felix Emanuel Hiraldo, individually and on behalf of others similarly situated v. The Tire Don Inc. (d/b/a El Don De Las Gomas), Paragon Valet Parking Inc. (d/b/a Paragon Valet Parking), Andres Salas, and Andy Salas, Case No. 1:14-cv-07942 (S.D.N.Y., October 1, 2014), is brought against the Defendants for failure to pay overtime wages for hours worked in excess of 40 hours in a week. The Defendants own, operate or control a car repair and valet parking service located at 1809 Carter Avenue and 1805 Carter Avenue, Bronx, New York 10457. The Plaintiff is represented by: Michael Antonio Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 2020 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 E-mail: faillace@employmentcompliance.com TOTAL WEALTH: Faces Class Action Over Investment Losses ------------------------------------------------------- Melissa Mecija, writing for Team 10, reports that a class action lawsuit has been filed against a local financial adviser investment firm. Some clients say they have lost their entire life savings. Don Clugston invested his entire retirement -- $1.7 million -- with San Diego-based Total Wealth Management. "(The) reason I went to them is I wanted someone I could trust. They were very trustworthy," he said. Mr. Clugston retired a couple years ago after a career as an engineer. Total Wealth Management's CEP, Jacob Cooper, would often appear on local radio or TV shows. Now, the Securities and Exchange Commission is investigating the company for fraud, receiving extra money on the side without telling its investors. "They invested the money, not how it would best serve the investors, but how it would best serve them. They invested with companies that gave them kickbacks and that was their criteria. That's illegal," said attorney Maria Severson, who is representing the victims. Mr. Clugston said nearly half of his money is now gone. He is not alone. Gloria Templin, who retired from a career with a telephone company, invested about a quarter of a million dollars. Christopher Bryant invested half a million dollars from his retirement accounts. "My guess would be $400,000 to $450,000 is completely at risk at this point," Mr. Bryant said. Ms. Severson said there could potentially be dozens more victims added to the lawsuit in the future. "When you have everything you work for suddenly disappearing, when you start thinking about it . . . it drains on you," Mr. Clugston said. "It absolutely has an emotional effect at home and what your plans are for the future," Mr. Bryant added. Team 10 reached out to the attorneys representing Mr. Cooper and Total Wealth Management, but have yet to hear back. TOYOTA MOTOR: Sued in C.D. California Over Defective Dashboards --------------------------------------------------------------- Victor Moreno, on behalf of himself and all others similarly situated v. Toyota Motor Sales, U.S.A, Inc., a California Corporation, and Toyota Motor Corporation, Case No. 2:14-cv-07636 (C.D. Cal., October 1, 2014), is brought against the Defendants for failure to disclose to the consumers that they had opted to install dashboards in the vehicles that do not withstand exposure to sunlight; melt, emit a noxious chemical smell; and take on a reflective quality. When the dashboards become reflective, drivers trying to see through the windshield must struggle to see past the reflection of the dashboard in the windshield. And when the sun or another bright light catches the dashboard at the right angle, light shoots unexpectedly into drivers' eyes, temporarily blinding them and endangering everyone on the road. Toyota Motor Corporation manufactures, markets, distributes, and warrants automobiles in the United States, under both the Toyota and Lexus brand names. Toyota Motor Sales, U.S.A, Inc. is the U.S. sales, marketing, and distribution arm of its Japanese parent company, Toyota Motor Corporation. The Plaintiff is represented by: Eric H. Gibbs, Esq. Dylan Hughes, Esq. Jennifer McIntosh, Esq. GIRARD GIBBS LLP 601 California Street, 14th Floor San Francisco, CA 94108 Telephone: (415) 981-4800 Facsimile: (415) 981-4846 - and - Gregory F. Coleman, Esq. GREG COLEMAN LAW PC Bank of America Center 550 Main Avenue, Suite 600 Knoxville, TN 37902 Telephone: (865) 247-0080 Facsimile: (865) 522-0049 TOYOTA MOTOR: Faces "Burns" Suit Over Defect in Tacoma Vehicles --------------------------------------------------------------- Ryan Burns, Individually and on behalf of all others similarly situated v. Toyota Motor Sales, U.S.A., Inc., a California Corporation, Case No. 2:14-cv-02208-PKH (W.D. Ark., October 3, 2014) asserts product liability claims. According to Top Class Actions, the lawsuit alleges that the Company's popular truck model, the Toyota Tacoma, suffers from a defect making that model particularly vulnerable to rust. The Plaintiff is represented by: Phillip J. Milligan, Esq. MILLIGAN MEDLOCK GRAMLICH LLP 500 So. 16th Street P.O. Box 2347 Fort Smith, AR 72902 Telephone: (479) 783-2213 Facsimile: (479) 783-4329 E-mail: patsylund@sbcglobal.net TOYS R US: Recalls Children's Sandals Due to Choking Hazard ----------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Toys R Us Inc., of Wayne, N.J., announced a voluntary recall of about 19,000 Koala children's sandals with butterfly wings. Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The butterfly wings on the children's sandals can rip and detach, posing a choking hazard to young children. Toys R Us has received a report from a consumer who found a piece of the shoe's butterfly wings in their child's mouth. No injuries have been reported. The recall involves Koala Baby girl's plastic sandals with butterfly wings attached to the toes with rhinestones and hard or soft cork-type soles. Sandal colors include white or combination pink, gold and blue. They were sold in baby sizes 0 to 3 and girl's sizes 2 to 10. "Koala Baby" and the size are printed on the soles. White soft-soled sandals have model number GNL 43633BR and item number 795267 printed on a tag sewn into the sandal's ankle strap. White hard-soled sandals have model number GNL 43706BR and item number 795313. Combination pink, gold and blue soft-soled sandals have model number GNL 43634BR and item number 795275. Combination pink, gold and blue hard-soled sandals have GNM 41761BR and item number 845795. Pictures of the recalled products are available at: http://is.gd/gNDCTQ The recalled products were manufactured in China and sold at Toys R Us and Babies R Us stores nationwide and online at toysrus and babiesrus from Feb. 2014 through Sept. 2014 for about $13. Consumers should immediately take the recalled sandals away from young children and return the sandals to any Toys R Us or Babies R Us for a full refund. TRANS UNION: Violates Fair Credit Reporting Act, Class Suit Says ---------------------------------------------------------------- Tyrone Henderson, Joseph L. Buckley and Jonathan Harris, on behalf of themselves and all others similarly situated v. Trans Union, LLC, in its own name and trading as Trans Union Rental Screening Solutions, Inc., trading as Transunion Background Data Solutions, and Trans Union Rental Screening Solutions, Inc., in its own name and trading as, Transunion Background Data Solutions, Case No. 3:14-cv-00679-REP (E.D. Va., October 3, 2014) is brought under the Fair Credit Reporting Act. The Plaintiffs are represented by: Casey Shannon Nash, Esq. Matthew James Erausquin, Esq. CONSUMER LITIGATION ASSOCIATES PC 1800 Diagonal Rd., Suite 600 Alexandria, VA 22314 Telephone: (703) 273-7770 Facsimile: (888) 892-3512 E-mail: casey@clalegal.com matt@clalegal.com TRIMFOOT CO: Recalls Children's Soft-Soled Sneakers --------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Trimfoot Co. LLC., of Farmington, Mo., announced a voluntary recall of 5,300 children's soft-soled shoes. Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. A small metal eyelet can detach from the inside of the sneaker, posing a choking hazard to infants. There were no incidents that were reported. The recall involves First Impressions high-top, soft-soled sneakers for infants that are crawling or standing. The recalled shoes have blue denim soles and uppers, brown canvas tongues, tan shoe laces and white polyurethane toes. Each upper has eight 3/16 inch eyelets for the laces. The shoes came in sizes 0, 1, 2 and 3. Style number 42090 is on a cloth tag inside of shoe. Pictures of the recalled products are available at: http://is.gd/PZJpdR The recalled products were manufactured in China and sold exclusively at Macy's stores nationwide from Feb. 2014 to August, 2014 for about $17. Consumers should immediately take the recalled shoes away from children and return the shoes to Macy's or contact Trimfoot for a full refund. TWIN PINES: District Court Dismisses "Stinson" Class Action ----------------------------------------------------------- In a diversity, putative-class action, Charles Byron Stinson sued Twin Pines Coal Company, Inc. for breach of contract. Twin Pines filed a Motion to Dismiss or, in the Alternative, to Transfer Count I to Arbitration. As grounds for its motion, Twin Pines contended that Mr. Stinson cannot recover on behalf of himself or a putative class because he is neither a party to that contract nor an intended third-party beneficiary. Chief District Judge W. Keith Watkins wrote in his memorandum opinion and order dated September 30, 2014, a copy of which is available at http://is.gd/PeIOZofrom Leagle.com, that Mr. Stinson does not have standing to sue Twin Pines for breach of contract because he lacks a legally protected interest in that contract. Moreover, because the court does not have the power to entertain this action, dismissal is required under Federal Rule of Civil Procedure 12(b)(1), he added. In light of the Rule 12(b)(1) dismissal, Twin Pines's Rule 12(b)(6) motion will be denied as moot. The case is CHARLES BYRON STINSON, on behalf of himself and a class of others similarly situated, Plaintiff, v. TWIN PINES COAL CO., INC., and THE AMERICAN COAL COMPANY, Defendants, CASE NO. 1:14-CV-334-WKW [WO], (M.D. Ala.). Twin Pines Coal Company, Inc., Defendant, represented by Edward Reed Jackson -- ejackson@jacksonandfikes.com -- Jackson Fikes Hood & Brakefield, Hunter Spence Morano -- smorano@friedman-lawyers.com -- Friedman Dazzio Zulanas & Bowling PC, Jeffrey Edwin Friedman -- jfriedman@friedman-lawyers.com -- Friedman Dazzio Zulanas & Bowling PC & Richard Edward Fikes -- rfikes@jacksonandfikes.com -- Jackson Fikes Hood & Brakefield. ULTA SALON: Defending Against Employment Class Action Lawsuit ------------------------------------------------------------- Ulta Salon, Cosmetics & Fragrance, Inc. said in its Form 10-Q filed with the Securities and Exchange Commission on September 11, 2014, for the quarterly period ended August 2, 2014, that a putative employment class action lawsuit was filed on March 2, 2012, against the Company and certain unnamed defendants in state court in Los Angeles County, California. On April 12, 2012, the Company removed the case to the United States District Court for the Central District of California. On August 8, 2013, the plaintiff asked the court to certify the proposed class and the Company opposed the plaintiff's request and is waiting for the court to issue a decision. The plaintiff and members of the proposed class are alleged to be (or to have been) non-exempt hourly employees. The suit alleges that Ulta violated various provisions of the California labor laws and failed to provide plaintiff and members of the proposed class with full meal periods, paid rest breaks, certain wages, overtime compensation and premium pay. The suit seeks to recover damages and penalties as a result of these alleged practices. The Company denies plaintiff's allegations and is vigorously defending the matter. Ulta Salon is a beauty retailer that provides one-stop shopping for prestige, mass and salon products and salon services in the United States. UNILEVER US: Faces "Bimont" Suit Over Deodorant Packaging --------------------------------------------------------- Laura Castro, writing for The National Law Journal, reports that Procter & Gamble Co. and Unilever United States Inc. have been hit with separate putative class actions in New York federal courts alleging that the companies sell antiperspirants and deodorants in packaging that misleads consumers into thinking they're buying more product than they are getting. Although the class actions were filed by different plaintiffs in different courts, they make similar allegations. Plaintiffs are represented by the same attorney, C.K. Lee of Lee Litigation Group. Plaintiff Desta Tjokronolo filed the P&G lawsuit in the U.S. District Court for the Eastern District of New York on Sept. 23, and plaintiff Timba Bimont filed the Unilever lawsuit in the U.S. District Court for the Southern District of New York on Sept. 24. Both plaintiffs are New York state residents. Unilever and P&G are headquartered, respectively in Englewood Cliffs, New Jersey and Cincinnati. The plaintiffs in both cases claim the defendants violated federal and state laws and regulations protecting consumers against unfair, deceptive, fraudulent and unconscionable trade and business practices and false advertising. Mr. Bimont, for example, asserts that Unilever engages in unlawful and deceptive behavior when it manufactures and sells "Degree Dry Protection" and "AXE Gold Protection" products because "the size of the container in comparison to the actual product makes it appear to the reasonable consumer that the consumer is buying more than what is actually being sold." The suit says the Unilever products are about 5 1/4 inch in height and 2 3/4 inches wide, but the actual size of the deodorant stick of the 2.7-ounce product is 3 inches in height and 2 1/2 inches wide. Therefore, the size of the container "has nearly 3 inches of slack-fill in height," the complaint states. Like the Unilever suit, the P&G suit claims the defendant purposely sold its products with non-functional slack-fill, which is described as "the difference between the actual capacity of a container and the volume of product contained within." The line of deodorants at issue are P&G's Gillette and Old Spice products packaged and sold in 2.6, 3.0, and 3.25 ounce containers. Both suits claim the plaintiffs and proposed class members paid a higher price for these products because they were deceived by the products' packaging. The suits seek an unspecified amount of compensatory and punitive damages as well injunctive relief to repackage the products. UNITED STATES: Immigration Case Obtains Class Certification ----------------------------------------------------------- Lisa Hoffman, writing for The National Law Journal, reports that an Illinois federal judge has granted certification to a class action challenging as unconstitutional the federal government's use of immigration detainers to hold those suspected of being slated for deportation. In a Sept. 30 order, U.S. District Judge John Lee, of the Northern District of Illinois, found Moreno v. Napolitano met all the criteria required for certification of a class that potentially includes thousands of immigrants who have faced holds put on them by the Chicago office of the U.S. Department of Homeland Security's Immigration and Customs Enforcement agency. Plaintiffs Jose Jimenez Moreno and others challenged ICE's requests that local law enforcement hold those due for release from police custody so ICE agents can determine if they qualify for deportation. Mr. Moreno, a U.S. citizen, was arrested in March 2011 in Rockford, Ill., on charges of cocaine possession and threatening a public official. Although he was eligible to post bond, ICE requested that the police hold him so agents could take him into custody. Mr. Moreno was denied bail and released only after the putative class action was filed in August 2011. The plaintiffs allege the detainers violate the Fourth and Fifth amendments to the U.S. Constitution because those to be held are not notified that a hold has been placed on them, no showing of probable cause before a neutral magistrate is required, and there is no means by which individuals can challenge their detention, according to the complaint. The plaintiffs are represented by Heartland Alliance's National Immigrant Justice Center and Winston & Strawn. Litigation over the detainer issue has been underway in other federal districts. U.S. Department of Justice attorneys argued in their motion to dismiss that the class definition presented by the plaintiffs was overly broad and likely would include some without standing, and that any threat of injury was conjectural or hypothetical. The plaintiffs in Jimenez Moreno ask for declaratory and injunctive relief to force DHS to follow better procedures for avoiding improper detainers; to give people notice and an opportunity to challenge detainers; and to ensure that detainers should not be issued without warrants unless they have probable cause that individuals are noncitizens likely to flee before warrants can be obtained. VERIS GOLD: Reached $3.6MM Deal in Former Employees' Class Action ----------------------------------------------------------------- Veris Gold Corp. said in its Form 20-F/A filed with the Securities and Exchange Commission on September 12, 2014, for the fiscal year ended December 31, 2013, that the Company in May announced that it had reached a $3.6 million settlement as a result of a class action suit initiated by former employees. VIOLIN MEMORY: Dismissal Motion in IPO Suit Briefed and Argued -------------------------------------------------------------- Violin Memory, Inc. said in its Form 10-Q filed with the Securities and Exchange Commission on September 11, 2014, for the quarterly period ended July 31, 2014, that beginning on November 26, 2013, four putative class action lawsuits were filed in the United States District Court for the Northern District of California, naming as defendants the Company, a number of the Company's present or former directors and officers, and several underwriters of the Company's September 27, 2013 IPO. The four complaints have been consolidated into a single, putative class action, and lead co-lead plaintiffs have been appointed by the court. On March 28, 2014, a consolidated complaint was filed. The complaint purports to assert claims under the federal securities laws on behalf of purchasers of the Company's common stock issued in the IPO, and seeks damages in an unspecified amount and other relief. On April 18, 2014, the defendants filed a motion to dismiss the complaint. The motion has been briefed and argued and now is before the court. It is not known when the court will rule on the motion. Violin Memory was incorporated in 2005 with the goal of bringing storage performance in line with advancements in server and network technologies. WAL-MART: Faces Class Actions Over PCBs in Processing Center ------------------------------------------------------------ Lisa Hoffman, writing for The National Law Journal, reports that Wal-Mart Stores Inc. is facing a pair of proposed class actions stemming from the recent discovery of PCBs in an Indianapolis returns processing center, where hundreds of workers may have been exposed to the toxic, cancer-causing chemicals. The facility, where an estimated 600 people worked, was evacuated and closed on Aug. 20 after the polychlorinated biphenyls were detected in floor sweepings, according to the putative actions and Wal-Mart statements. Employees were informed on Aug. 25, and told their pay and benefits would continue while the facility is decontaminated or operations are moved to another site. About 400 full-time workers have undergone medical tests to learn if they were exposed to PCBs and what health effects might have resulted, according to Exel. The first putative class action, Longest v. Wal-Mart Properties, was filed Sept. 17 in Marion County, Ind., Superior Court. The second, Smith-Cushingberry v. Wal-Mart Properties, was filed in the same court two days later. Both suits allege that workers have not been informed about the extent of the contamination in the warehouse or for how long the employees have been exposed to the manmade organic compounds that can accumulate in the body over time and lead to liver damage, prostate and pancreatic cancer, immune suppression and reproductive disorders. U.S. manufacture of PCBs was banned in 1979. Both also accuse Wal-Mart of negligence in failing to keep the premises safe and to protect the workers, who processed items returned by customers, from hazards the company should have been aware of. Longest v. Wal-Mart asks for a court-approved, supervised and administrated PCB surveillance program, along with ongoing medical screening for the workers. Smith-Cushingberry v. Wal-Mart asks for compensation for injuries resulting from the contamination. Wal-Mart said in a statement that it immediately hired an environmental consulting firm after Exel Inc., the Wal-Mart contractor that operated the 50-year-old warehouse, informed it of the discovery of suspected PCBs. Wal-Mart also said it notified state and federal environmental officials. Plaintiffs' counsel in Longest v. Wal-Mart are attorneys with Price Waicukauski & Riley. Plaintiffs' attorney in Smith- Cushingberry v. Wal-Mart is Gabriel Hawkins, of Cohen and Malad. WELLS FARGO: Violates Fair Debt Collection Act, Class Suit Claims ----------------------------------------------------------------- Lillian Franklin, Individually and on Behalf of All Others Similarly Situated v. Wells Fargo Bank, N.A., Case No. 3:14-cv- 02349-MMA-BGS (S.D. Cal., October 3, 2014) alleges violations of the Fair Debt Collection Practices Act. The Plaintiff is represented by: Douglas J. Campion, Esq. LAW OFFICES OF DOUGLAS J. CAMPION 409 Camino Del Rio South, Suite 303 San Diego, CA 92108-3507 Telephone: (619) 299-2091 Facsimile: (619) 858-0034 E-mail: doug@djcampion.com WHOLE FOODS: Removes "Clemente" Class Suit to E.D. Pennsylvania --------------------------------------------------------------- The class action lawsuit captioned Clemente, et al. v. Whole Foods Market Group, Inc., et al., Case No. 140801271, was removed from the Philadelphia Court of Common Pleas to the United States District Court for the Eastern District of Pennsylvania (Philadelphia). The District Court Clerk assigned Case No. 2:14- cv-05652-MMB to the proceeding. The lawsuit arises from the sale of Whole Foods 365 Everyday Value Plain Greek Yogurt. The lawsuit is brought under the Pennsylvania Unfair Trade Practices and Consumer Protection Law and common law for breach of express and implied warranty. The Plaintiffs are represented by: Stephen P. Denittis, Esq. DENITTIS OSEFCHEN PC 1500 John F. Kennedy Blvd., Suite 200 Two Penn Center Philadelphia, PA 19102 E-mail: sdenittis@shabeldenittis.com The Defendants are represented by: Jacob Oslick, Esq. SEYFARTH SHAW LLP 620 - 8th Ave., 31st Floor New York, NY 10018 Telephone: (212) 218-6480 E-mail: joslick@seyfarth.com ZAZOU SCARVES: Recalls Women's Scarves Due to Burn Hazard --------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Zazou Scarves, of Berkeley, Calif., announced a voluntary recall of about 3,800 Zazou women's silk scarves. Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The scarves fail to meet the federal flammability standard for wearing apparel and pose a risk of burn injury to consumers. There were no incidents that were reported. The recall involves Zazou women's sheer 100% silk scarves. They were sold in 20 different solid colors including black, burgundy, celery, chili red, coral, espresso, fuchsia, grey, indigo, iris blue, mist blue, olive, peacock, periwinkle, pink, purple, ruby, sea foam and white. The scarves measure 72 inches long by 20 inches wide. Zazou Luxe is printed on a tag sewn into the side seam of the scarf. Pictures of the recalled products are available at: http://is.gd/SyO3yB The recalled products were manufactured in China and sold at specialty boutiques nationwide and online at zazou and other websites from August 2012 through August 2014 for about $30. Consumers should immediately stop using the recalled scarves and contact Zazou Scarves to return them for a full refund. The firm is providing a pre-paid postage label to consumers for shipping. * FDA's Device Approval System Needs Reform, Studies Say -------------------------------------------------------- Marie McCullough, writing for The Philadelphia Inquirer, reports that two new studies add to a mountain of evidence that the U.S. Food and Drug Administration has done a poor job of making sure medical devices are safe. The studies, in the current JAMA Internal Medicine, are accompanied by commentaries that point out the agency recognizes the need for reform and is in the midst of improving the device approval system. But critics say the FDA has an inherent conflict because of its dual role of protecting the public and encouraging medical innovation. Thomas Jefferson University cardiac surgeon Hooman Noorchashm, who is pushing the FDA to ban a gynecological surgery device that can spread undetected cancer, said, "The FDA does not have patient safety as its primary directive. It wants to get innovative products to market quickly." One of the new studies focuses on the device approval pathway known as 510(k). Created in 1976, the 510(k) process allows diagnostic tests, surgical machines, heart valves, and other potentially risky devices to be "cleared" for marketing by submitting scientific evidence that they are equivalent to a "predicate" product already on the market. In contrast, new drugs are required to show safety and effectiveness in clinical tests. The Institute of Medicine, an influential federal advisory panel, as well as advocacy groups such as Public Citizen, have issued reports in recent years, calling for the replacement of the 510(k) system. For their study, researchers from the National Center for Health Research chose 50 recently marketed implantable devices -- including hip replacements and bladder slings -- from about 400 per year that the FDA approves under 510(k). Using an FDA database, they found that just eight of the 50 devices had filed scientific data to support their claim of being like an existing product, and only 31 of 1,105 predicate devices had done so. "Despite the legal requirement that scientific evidence of substantial equivalence be publicly available . . . such information is lacking for most implanted medical devices cleared between 2008 and 2012, as well as for their predicates," the authors concluded. The other study, led by researchers from the Pew Charitable Trusts, focused on an FDA program that monitors the safety of high-risk medical devices such as heart stents and defibrillators. While these go through more stringent approval processes than lower-risk devices, serious problems may not show up until the devices are widely used. In recent years, for example, multiple companies have recalled defective defibrillator wiring that was placed in hundreds of thousands of patients. The researchers found that the FDA ordered 223 post-approval studies of 158 high-risk medical devices from 2005 through 2011. However, most of the studies were too small to evaluate safety, and companies were not penalized for study delays. When the studies revealed problems, the FDA took little or no action: it ordered only one device removed from the market, and required labelling changes for 31 products. Labeling is basically the instructions for the physician. "One device label was changed to include the high rates of heart attacks and deaths at five years," said Joshua Rising, a Pew researcher and study author. While label changes may prompt physicians to add stronger warnings to the consent documents that patients have to sign, the value of labeling in ensuring safety is controversial. "Label changes aren't going to do anything to protect anybody," said Mr. Noorchasm. "It's just another layer of informed consent." Since December, Mr. Noorchasm has waged an aggressive media and lobbying campaign to get the FDA to ban gynecological power morcellators. The bladed device enables hysterectomies or fibroid removal to be done through tiny abdominal incisions. But in as many as 1 in 350 cases, the procedure spreads and worsens a rare, aggressive uterine cancer that presurgical tests can't detect. Anesthesiologist Amy Reed, Mr. Noorchasm's wife and the mother of their five children, has been fighting advanced leiomyosarcoma since she underwent morcellation almost year ago. The FDA in April issued an unusual safety advisory to discourage physicians from using the device, and in July the agency held a hearing to decide what more to do. But it hasn't yet taken further action. (The main morcellator manufacturer has suspended sales, and the device has been disavowed by many doctors and a big health insurer. A spokesman said the FDA is "considering a great deal of information . . . in determining any future regulatory action." * K&L, Littler Mendelson & Morgan Lewis Named Top Defendant Firms ----------------------------------------------------------------- Lance Duroni, writing for Law360, reports that, with corporate counsel expecting to boost spending on defending class actions more than on any other litigation area in 2015, three firms stand to reap outsize benefits as the most sought-after players in the field, according to a new survey. K&L Gates LLP, Littler Mendelson PC and Morgan Lewis & Bockius LLP were named as the top three class action and mass tort powerhouses in the BTI Litigation Outlook 2015 report published by BTI Consulting Group Inc. (Wellesley, Massachusetts), which based its findings on interviews with 300 in-house counsel. According to the report, nearly 34 percent of companies are managing at least one class action in any given year. In 2015, in-house counsel anticipate spending nearly $2.1 billion defending such cases as opportunistic class plaintiffs continue to find new topics and interpretations of law to exploit, the report said. This marks a 2.7 percent increase in spending over 2014, according to the report. Class action attorneys at these firms possess a slightly different skill set than their general litigation counterparts, partly due to the need to corral a unified defense strategy in far-flung cases that could be merged into multidistrict litigation, according to BTI President Michael Rynowecer. The ability to quickly assess the landscape and provide a menu of options for corporate counsel is imperative, he told Law360. As a general counsel, "the earlier in the process you can plot your strategy and tactics in a class action case, the better off you're going to be," Mr. Rynowecer said. Plaintiffs firms, often hemmed in by contingency fee business models, have become more aggressive in finding new legal rationales to bring class actions as the economy has improved, according to Mr. Rynowecer. Corporate counsel are on especially high alert in the burgeoning area of data protection and privacy, with data breaches at retailers like Target Corp. and Home Depot Inc. grabbing headlines and inviting lawsuits, he said. "With every Target or Home Depot, the plaintiffs' bar gets more creative and sees millions and millions of potential clients," Mr. Rynowecer said. The early case assessments trumpeted by Mr. Rynowecer are a major part of K&L Gates' approach to class actions, according to Thomas Birsic, a leader in the firm's litigation practice group. Out of 600 litigation lawyers across 24 offices in the U.S., 125 K&L Gates attorneys work on class actions, with mortgage and other consumer finance-related cases a major focus, Mr. Birsic said. "It allows the client and us to focus most effectively on deploying legal resources, creating early decision points and then budgeting around them," he told Law360. "All good lawyers do early case assessment, but we attempt to do it in writing and try to make it a dynamic document for the client." Also, trial courts are increasingly giving consumers the benefit of the doubt in the early stages of litigation, making it more difficult to dismiss consumer protection cases at the class certification stage, even when there are real problems with the pleadings, according to Mr. Birsic. This has led K&L Gates to a "multidimensional approach" that looks ahead to what the key issues may be on appeal, he said. "Pointing the trial courts sharply to what they may face on appeal is becoming more important," Mr. Birsic told Law360. Morgan Lewis litigation practice head J. Gordon Cooney stressed the importance of pinpointing a client's business objective in each class action, noting that these cases can threaten a company's reputation in addition to the obvious legal risks. Morgan Lewis dedicates 120 of its 453 litigation attorneys across the globe to its class action practice, which is divided into employment and nonemployment groups, according to Mr. Cooney. The firm has a stellar track record of securing dispositive decisions, particularly in the pharmaceutical space, where Morgan Lewis attorneys have dispensed with numerous suits over purported injuries from the off-label promotion of drugs, Mr. Cooney told Law360. "We're on the cutting edge of marshaling arguments and presenting evidence to the court concerning why class treatment might not be the best option," he said. Other firms that were noted by general counsel as class action standouts include Alston & Bird LLP, Bartlit Beck Herman Palenchar & Scott LLP, Jones Day, Bingham McCutchen LLP, Dechert LLP, Kirkland & Ellis LLP, O'Melveny & Myers LLP, Skadden Arps Slate Meagher & Flom LLP and Shook Hardy & Bacon LLP. * William Holder Joins Cornerstone Research as Senior Advisor ------------------------------------------------------------- Cornerstone Research, a provider of economic and financial consulting and expert testimony, on Oct. 8 disclosed that William W. Holder, dean of the Leventhal School of Accounting at the University of Southern California, has joined the firm as a senior advisor. He is also the Alan Casden Dean's Chair and Professor of Accounting. Professor Holder has extensive experience as an expert witness in high-profile trials involving questions of accounting. "Bill Holder is one of the foremost experts on accounting issues that arise in legal and regulatory matters," said Cornerstone Research President and CEO Michael E. Burton. "His expertise and reputation in financial accounting and reporting, auditing, governmental accounting, and cost accounting are a major addition to the firm's outstanding network of experts." Professor Holder has served on several governance and standard- setting bodies for the accounting profession, including as a member of the Governmental Accounting Standards Board (GASB), on committees of the American Accounting Association, and on the Board of Directors (chair of the Audit Committee) of the American Institute of CPAs (AICPA). At the invitation of the Congressional Subcommittee on Capital Markets, Insurance, and Government- Sponsored Enterprises, he provided testimony on corporate accounting practices during the Sarbanes-Oxley Act hearings. The accounting profession has bestowed many honors on Professor Holder for his service and lifetime achievements, including the AICPA's Gold Medal Award for Distinguished Service, the organization's highest honor for a CPA. He has won numerous outstanding teaching awards, including Best Professor in the University of Southern California master's degree program. Professor Holder is the author or coauthor of six books on accounting, and his research has been widely published in journals, including the Accounting Review, the Journal of Accountancy, Financial Executive, and the CPA Journal. "I'm pleased to continue as an expert working with Cornerstone Research in the role of senior advisor," said Professor Holder. "I've been impressed by Cornerstone Research's high standards, rigorous methodology, and the level of support they provide." About Cornerstone Research Cornerstone Research -- http://www.cornerstone.com-- provides high-quality economic and financial consulting and expert testimony in all phases of complex litigation and regulatory proceedings. The firm works with an extensive network of prominent faculty and industry practitioners to identify the best- qualified expert for each assignment. Staff consultants bring specialized knowledge and experience as well as a commitment to produce outstanding results. Currently marking its 25th anniversary, Cornerstone Research has more than 500 staff, and offices in Boston, Chicago, London, Los Angeles, Menlo Park, New York, San Francisco, and Washington. Asbestos Litigation ASBESTOS UPDATE: Travelers Awaits Decision in Fibro Suits Appeal ---------------------------------------------------------------- The Travelers Companies, Inc. said in its Form 10-Q filed with the Securities and Exchange Commission on September 10, 2014, for the Quarterly Period Ended June 30, 2014, that oral argument in asbestos class actions before the Second Circuit Court of Appeals took place on January 10, 2013, and the parties await the court's decision. In October 2001 and April 2002, two purported class action suits (Wise v. Travelers and Meninger v. Travelers) were filed against Travelers Property Casualty Corp. (TPC), a wholly-owned subsidiary of the Company, and other insurers (not including The St. Paul Companies, Inc. (SPC), which was acquired by TPC in 2004) in state court in West Virginia. These and other cases subsequently filed in West Virginia were consolidated into a single proceeding in the Circuit Court of Kanawha County, West Virginia. The plaintiffs allege that the insurer defendants engaged in unfair trade practices in violation of state statutes by inappropriately handling and settling asbestos claims. The plaintiffs seek to reopen large numbers of settled asbestos claims and to impose liability for damages, including punitive damages, directly on insurers. Similar lawsuits alleging inappropriate handling and settling of asbestos claims were filed in Massachusetts and Hawaii state courts. These suits are collectively referred to as the Statutory and Hawaii Actions. In March 2002, the plaintiffs in consolidated asbestos actions pending before a mass tort panel of judges in West Virginia state court amended their complaint to include TPC as a defendant, alleging that TPC and other insurers breached alleged duties to certain users of asbestos products. The plaintiffs seek damages, including punitive damages. Lawsuits seeking similar relief and raising similar allegations, primarily violations of purported common law duties to third parties, have also been asserted in various state courts against TPC and SPC. The claims asserted in these suits are collectively referred to as the Common Law Claims. In response to these claims, TPC moved to enjoin the Statutory Actions and the Common Law Claims in the federal bankruptcy court that had presided over the bankruptcy of TPC's former policyholder Johns-Manville Corporation on the ground that the suits violated injunctions entered in connection with confirmation of the Johns-Manville bankruptcy (the "1986 Orders"). The bankruptcy court issued a temporary restraining order and referred the parties to mediation. In November 2003, the parties reached a settlement of the Statutory and Hawaii Actions, which included a lump-sum payment of up to $412 million by TPC, subject to a number of significant contingencies. In May 2004, the parties reached a settlement resolving substantially all pending and similar future Common Law Claims against TPC, which included a payment of up to $90 million by TPC, subject to similar contingencies. Among the contingencies for each of these settlements was that the bankruptcy court issue an order, which must become a final order, clarifying that all of these claims, and similar future asbestos- related claims against TPC, as well as related contribution claims, are barred by the 1986 Orders. On August 17, 2004, the bankruptcy court entered an order approving the settlements and clarifying that the 1986 Orders barred the pending Statutory and Hawaii Actions and substantially all Common Law Claims pending against TPC (the "Clarifying Order"). The Clarifying Order also applies to similar direct action claims that may be filed in the future. Although the District Court substantially affirmed the Clarifying Order, on February 15, 2008, the Second Circuit issued an opinion vacating on jurisdictional grounds the District Court's approval of the Clarifying Order. On December 12, 2008, the United States Supreme Court granted TPC's Petition for Writ of Certiorari and, on June 18, 2009, the Supreme Court reversed the Second Circuit's February 15, 2008 decision, finding, among other things, that the 1986 Orders are final and therefore may not be collaterally challenged on jurisdictional grounds. The Supreme Court further ruled that the bankruptcy court had jurisdiction to issue the Clarifying Order. However, since the Second Circuit had not ruled on certain additional issues, principally related to procedural matters and the adequacy of notice provided to certain parties, the Supreme Court remanded the case to the Second Circuit for further proceedings on those specific issues. On March 22, 2010, the Second Circuit issued an opinion in which it found that the notice of the 1986 Orders provided to one remaining objector was insufficient to bar contribution claims by that objector against TPC. TPC's Petition for Rehearing and Rehearing En Banc was denied May 25, 2010 and its Petition for Writ of Certiorari and Petition for a Writ of Mandamus were denied by the United States Supreme Court on November 29, 2010. The plaintiffs in the Statutory and Hawaii actions and the Common Law Claims actions thereafter filed motions in the bankruptcy court to compel TPC to make payment under the settlement agreements, arguing that all conditions precedent to the settlements had been met. On December 16, 2010, the bankruptcy court granted the plaintiffs' motions and ruled that TPC was required to fund the settlements. The court entered judgment against TPC on January 20, 2011 in accordance with this ruling and ordered TPC to pay the settlement amounts plus prejudgment interest. The bankruptcy court's judgment was reversed by the district court on March 1, 2012, the district court having found that the conditions to the settlements had not been met in view of the Second Circuit's March 22, 2010 ruling permitting the filing of contribution claims against TPC. The plaintiffs appealed the district court's March 1, 2012 decision to the Second Circuit Court of Appeals. Oral argument before the Second Circuit took place on January 10, 2013, and the parties await the court's decision. ASBESTOS UPDATE: Insurers Lose Pittsburg Corning Plan Appeal ------------------------------------------------------------ Chief District Judge Joy Flowers Conti in Pennsylvania affirmed the bankruptcy court's May 24, 2013 order: -- confirming the Modified Third Amended Plan of Reorganization of debtor Pittsburgh Corning Corporation, and -- issuing an asbestos permanent channeling injunction under 11 U.S.C. Sec. 524(g). Mt. McKinley Insurance Company and Everest Reinsurance Company object to the Plan and filed a brief seeking reversal of the confirmation order. Pittsburgh Corning, the Official Committee of Asbestos Creditors, the Legal Representative for Future Asbestos Claimants, PPG Industries, Inc., and Corning Incorporated support the Plan. The plan parties filed a motion for an order affirming the bankruptcy court's confirmation order and a joint brief in response to Mt. McKinley's brief. Certain Underwriters at Lloyd's, London, and Certain London Market Companies filed a separate brief urging affirmance. The key feature of the plan is the creation of the "Pittsburgh Corning Asbestos PI Trust" which will resolve and pay asbestos personal injury claims asserted against it. Pittsburgh Corning, PPG, Corning, and certain insurers will contribute assets to fund the trust. In return, the plan calls for the bankruptcy court to issue a permanent injunction under 11 U.S.C. Sec. 524(g) channeling "Asbestos PI Trust Claims" to the trust and enjoining recovery of such claims against "Asbestos Protected Parties." The plan channels asbestos claims against Pittsburgh Corning to the trust. With respect to PPG and Corning, however, the plan channels only asbestos claims arising out of exposure to Unibestos or other asbestos products manufactured, sold, or distributed by Pittsburgh Corning. Claims against PPG or Corning arising out of exposure to asbestos through PPG or Corning products not related to Pittsburgh Corning are not channeled. Fully funded, the trust will control assets worth more than $3 billion. These assets include 100% of the stock of the reorganized Pittsburgh Corning and $290 million in insurance payments or settlements between Pittsburgh Corning and its insurers. PPG will contribute approximately $825 million in a series of cash payments, 1,388,889 shares of PPG common stock or its cash equivalent, its 50% stake in Pittsburgh Corning, and its 50% stake in Pittsburgh Corning Europe. Corning will contribute between $240 million and $290 million in cash, its 50 percent stake in Pittsburgh Corning, and its 50 percent stake in Pittsburgh Corning Europe. Forty-eight insurers will contribute cash payments totaling in aggregate approximately $1.7 billion. As part of the trust funding agreement, PPG and Corning will relinquish certain insurance claims against the participating insurers. The trust will have three trustees selected by the ACC and FCR. The trust will also have an advisory committee of five members. The initial members of the advisory committee are members of law firms representing asbestos claimants. The advisory commit-tee members have a fiduciary responsibility to the present holders of channeled asbestos claims. The FCR has a fiduciary role representing the interests of future claimants. The trust will resolve channeled asbestos claims according to the terms of the trust distribution procedures. A copy of Judge Conti's Sept. 30 Memorandum Opinion is available at http://is.gd/BMWCcYfrom Leagle.com. Pittsburgh Corning Corporation filed for Chapter 11 bankruptcy protection (Bankr. W.D. Pa. Case No. 00-22876) on April 16, 2000, to address numerous claims alleging personal injury from exposure to asbestos. At the time of the bankruptcy filing, there were about 11,800 claims pending against the Company in state court lawsuits alleging various theories of liability based on exposure to Pittsburgh Corning's asbestos products and typically requesting monetary damages in excess of $1 million per claim. Judge Thomas Agresti handles the bankruptcy case. Reed Smith LLP serves as counsel and Deloitte & Touche LLP as accountants to the Debtor. ASBESTOS UPDATE: WR Grace Terminates Obligations Under PI Trust --------------------------------------------------------------- W.R. Grace & Co. used a portion of the proceeds from its new notes to terminate its obligations under the deferred payment agreement with the WRG PI Trust, according to the Company's Form 8-K filing with the U.S. Securities and Exchange Commission dated September 19, 2014. On September 16, 2014, W. R. Grace & Co., W. R. Grace & Co.-Conn., its wholly owned subsidiary, and Alltech Associates, Inc., completed the sale of $1.0 billion of Notes in two tranches, consisting of $700 million aggregate principal amount of 5.125% Notes due 2021 and $300 million aggregate principal amount of 5.625% Notes due 2024. The New Notes were issued pursuant to an Indenture, as supplemented by that certain First Supplemental Indenture, each dated as of September 16, 2014, by and among the Issuer, the Guarantors and Wilmington Trust, National Association, as trustee. The Indenture provides, among other things, that the New Notes will be general unsecured obligations of the Issuer. Interest is payable on the New Notes on each April 1 and October 1, commencing April 1, 2015. The Issuer may redeem some or all of the New Notes at any time at a price equal to the greater of (i) 100% of the principal amount of the Notes redeemed plus accrued and unpaid interest to, but excluding, the redemption date and (ii) the sum, as determined by an independent Investment Banker, of the present values of the remaining scheduled payments of principal and interest (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the treasury rate plus 50 basis points, in each case, accrued and unpaid interest to, but excluding, the date of redemption. The New Notes will mature on October 1, 2021 and October 1, 2024, respectively. If a change of control occurs while the New Notes are rated below investment grade, or is followed by a below investment grade rating, subject to certain exceptions, each holder shall have the right to require that the Issuer repurchase all or a portion of such holder's New Notes at a purchase price of 101% of the aggregate principal amount thereof, plus accrued and unpaid interest, if any, on the New Notes repurchased, but excluding, the date of repurchase. The New Notes and guarantees are senior obligations of the Issuer and the Guarantors, respectively, and will rank equally with all of the existing and future unsubordinated obligations of the Issuer and the Guarantors, respectively. The Notes are effectively subordinated to any secured indebtedness to the extent of the value of the assets securing such indebtedness and structurally subordinated to the debt and other liabilities of Grace's non- guarantor subsidiaries. The Indenture contains covenants that limit the Issuer's and certain of its subsidiaries' ability, subject to certain exceptions and qualifications, to (i) create or incur liens on assets, (ii) enter into any sale and leaseback transaction and (iii) in the case of the Issuer, merge or consolidate with another company. The Indenture provides for customary events of default which include (subject in certain cases to customary grace and cure periods), among others, nonpayment of principal or interest; breach of other agreements in the Indenture; failure to pay certain other indebtedness; failure to discharge a final judgment for payment of $75 million or more (excluding any amounts covered by insurance of indemnities) rendered against the Issuer or any of its significant subsidiaries; and certain events of bankruptcy or insolvency. Generally, if any event of default occurs, the Trustee or the holders of at least 25% in aggregate principal amount of the then outstanding series of New Notes may declare all the New Notes of such series to be due and payable immediately. On September 18, 2014, the Issuer used a portion of the proceeds from the New Notes to terminate the Issuer's obligations under the deferred payment agreement with the WRG Asbestos PI Trust, dated February 3, 2014, for approximately $632 million on the terms and conditions set forth in the obligation termination agreement, dated August 1, 2014, by and among Grace, the Issuer and the PI Trust. The remaining proceeds from the New Notes will be used: (i) to partially fund the settlement of the warrant issued to the PI Trust; (ii) to repay amounts outstanding under the Issuer's revolving credit facility; and (iii) for other general corporate purposes. W.R. Grace & Co. (Grace) is engaged in the production and sale of specialty chemicals and specialty materials on a global basis. The Company operates in three segments: Grace Catalysts Technologies; Grace Materials Technologies; and Grace Construction Products. Grace Catalysts Technologies will include catalysts and related technologies used in refining, petrochemical and other chemical manufacturing applications. Grace's Advanced Refining Technologies LLC (ART) joint venture will be managed in this segment. Grace Materials Technologies will include engineered materials, coatings and sealants used in industrial, consumer, pharmaceutical and packaging applications. In December 2013, the Company announced that it has completed the acquisition of the assets of the Polypropylene Licensing and Catalysts business of The Dow Chemical Company. ASBESTOS UPDATE: H.B. Fuller Records $190,000 Settlement Cost ------------------------------------------------------------- H.B. Fuller Company recorded $190,000 settlement amount for asbestos-related lawsuits and claims, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended August 30, 2014. The Company states: "From time to time and in the ordinary course of business, we are a party to, or a target of, lawsuits, claims, investigations and proceedings, including product liability, personal injury, contract, patent and intellectual property, environmental, health and safety, tax and employment matters. While we are unable to predict the outcome of these matters, we have concluded, based upon currently available information, that the ultimate resolution of any pending matter, individually or in the aggregate, including the asbestos litigation described in the following paragraphs, will not have a material adverse effect on our results of operations, financial condition or cash flow. "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 under certain circumstances, settlements and judgments, in asbestos-related lawsuits. Under these agreements, we are required under certain circumstances to fund a share of settlements and judgments allocable to years in which the responsible insurer is insolvent. In addition, to delineate our rights under certain insurance policies, in October 2009, we commenced a for the District of Minnesota. Additional insurers have been brought into the action to address issues related to the scope of their coverage. We recently entered into a settlement agreement with the defendant insurers in this case that provided for the allocation of defense costs and settlements in the future. The allocation under the settlement agreement depends on the outcome of an appeal of two issues to the United States Eighth Circuit Court of Appeals. "For the 39 Weeks Ended August 30, 2014, recorded $190,000,000 settlement amount for asbestos-related lawsuits and claims. "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." H.B. Fuller Company is formulator, manufacturer and marketer of adhesives, sealants and other specialty chemical products. The Company operates in four segments: Americas Adhesives, Construction Products, EIMEA (Europe, India, Middle East and Africa) and Asia Pacific. Industrial adhesives represent its core product offering. Customers use its adhesives products in manufacturing common consumer and industrial goods, including food and beverage containers, disposable diapers, windows, doors, flooring, appliances, sportswear, footwear, multi-wall bags, water filtration products, insulation, textiles and electronics. It has established a variety of product offerings for residential construction markets, such as tile-setting adhesives, grout, sealants and related products. These products are sold primarily in its Construction Products operating segment. On June 6, 2013, it acquired Plexbond Quimica, S.A. In September 2014, H.B. Fuller Co acquired ProSpec Construction Products. ASBESTOS UPDATE: Ameren Corp. Reports 73 Pending Suits at June 30 ----------------------------------------------------------------- There were 73 pending asbestos-related lawsuits against Ameren Corporation and its subsidiaries, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2014. The Company states: "Ameren, Ameren Missouri and Ameren Illinois have been named, along with numerous other parties, in a number of lawsuits filed by plaintiffs claiming varying degrees of injury from asbestos exposure at our present or former energy centers. Most have been filed in the Circuit Court of Madison County, Illinois. The total number of defendants named in each case varies, with the average number of parties being 84 as of June 30, 2014. Each lawsuit seeks unspecified damages that, if awarded at trial, typically would be shared among the various defendants. "As of June 30, 2014, there were 73 pending asbestos-related lawsuits filed against the Ameren Companies. However, the figure does not equal the sum of the subsidiary unit lawsuits because some of the lawsuits name multiple Ameren entities as defendants." Ameren Corporation (Ameren) is a utility holding company. The Company's principal subsidiaries are Union Electric Company (Ameren Missouri) and Ameren Illinois Company (Ameren Illinois). The Company's segments include Ameren Missouri and Ameren Illinois. Ameren Missouri operates a rate-regulated electric generation, transmission and distribution business, and a rate- regulated natural gas transmission and distribution business in Missouri. Ameren Illinois operates a rate-regulated electric and natural gas transmission and distribution business in Illinois. AER consists of non-rate-regulated operations, including Ameren Energy Generating Company (Genco), AmerenEnergy Resources Generating Company (AERG) and Ameren Energy Marketing Company (Marketing Company). In December 2013, the Company announced that it has completed the divestiture of its merchant generation business, formerly known as Ameren Energy Resources Company, LLC (AER). ASBESTOS UPDATE: Ameren Corp. Reports $24-Mil. Fibro Liabilities ---------------------------------------------------------------- Ameren Corporation and its subsidiaries had $24 million total liabilities for asbestos-related claims, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2014. At June 30, 2014, Ameren, Ameren Missouri, and Ameren Illinois had liabilities of $12 million, $5 million, and $7 million, respectively, recorded to represent their best estimate of their obligations related to asbestos claims. Ameren Illinois has a tariff rider to recover the costs of IP asbestos-related litigation claims, subject to the following terms: 90% of cash expenditures in excess of the amount included in base electric rates are to be recovered from a trust fund that was established when Ameren acquired IP. At June 30, 2014, the trust fund balance was $22 million, including accumulated interest. If cash expenditures are less than the amount in base rates, Ameren Illinois will contribute 90% of the difference to the trust fund. Once the trust fund is depleted, 90% of allowed cash expenditures in excess of base rates will be recovered through charges assessed to customers under the tariff rider. The rider will permit recovery from customers within IP's historical service territory. Ameren Corporation (Ameren) is a utility holding company. The Company's principal subsidiaries are Union Electric Company (Ameren Missouri) and Ameren Illinois Company (Ameren Illinois). The Company's segments include Ameren Missouri and Ameren Illinois. Ameren Missouri operates a rate-regulated electric generation, transmission and distribution business, and a rate- regulated natural gas transmission and distribution business in Missouri. Ameren Illinois operates a rate-regulated electric and natural gas transmission and distribution business in Illinois. AER consists of non-rate-regulated operations, including Ameren Energy Generating Company (Genco), AmerenEnergy Resources Generating Company (AERG) and Ameren Energy Marketing Company (Marketing Company). In December 2013, the Company announced that it has completed the divestiture of its merchant generation business, formerly known as Ameren Energy Resources Company, LLC (AER). ASBESTOS UPDATE: CERC Continues to Defend Fibro-related Suits ------------------------------------------------------------- CenterPoint Energy Resources Corp. continues to defend itself against numerous asbestos-related lawsuits, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2014. Some facilities owned by CERC's predecessors contain or have contained asbestos insulation and other asbestos-containing materials. CERC or its predecessor companies have been named, along with numerous others, as a defendant in lawsuits filed by a number of individuals who claim injury due to exposure to asbestos. Some of the claimants have worked at locations owned by CERC, but most existing claims relate to facilities previously owned by CERC's subsidiaries. CERC anticipates that additional claims like those received may be asserted in the future. Although their ultimate outcome cannot be predicted at this time, CERC intends to continue vigorously contesting claims that it does not consider to have merit and, based on its experience to date, does not expect these matters, either individually or in the aggregate, to have a material adverse effect on its financial condition, results of operations or cash flows. CenterPoint Energy, Inc. is a domestic energy delivery company. The Company's business segments include Electric Transmission and Distribution, Natural Gas Distribution, Competitive Natural Gas Sales and Services, Interstate Pipelines, Field Services and Other Operations. The Company serves metered customers primarily in Arkansas, Louisiana, Minnesota, Mississippi, Oklahoma and Texas. The company also owns a 58.3% interest in a midstream partnership it jointly controls with OGE Energy Corp. with operations in natural gas and liquids-rich producing areas of Oklahoma, Texas, Arkansas and Louisiana. Centerpoint Energy Resources. Corp. and its subsidiaries are indirect wholly owned subsidiaries of CenterPoint Energy, Inc. ASBESTOS UPDATE: Everest Re Has $360.3-Mil. Fibro Loss Reserves --------------------------------------------------------------- Everest Re Group, Ltd., had gross asbestos loss reserves of $360.3 million, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2014. The Company states: "With respect to asbestos only, at June 30, 2014, we had gross asbestos loss reserves of $360.3 million, or 94.9%, of total A&E reserves, of which $286.6 million was for assumed business and $73.7 million was for direct business. "Ultimate loss projections for A&E liabilities cannot be accomplished using standard actuarial techniques. We believe that our A&E reserves represent our best estimate of the ultimate liability; however, there can be no assurance that ultimate loss payments will not exceed such reserves, perhaps by a significant amount. "Industry analysts use the "survival ratio" to compare the A&E reserves among companies with such liabilities. The survival ratio is typically calculated by dividing a company's current net reserves by the three year average of annual paid losses. Hence, the survival ratio equals the number of years that it would take to exhaust the current reserves if future loss payments were to continue at historical levels. Using this measurement, our net three year asbestos survival ratio was 7.7 years at June 30, 2014. These metrics can be skewed by individual large settlements occurring in the prior three years and therefore, may not be indicative of the timing of future payments." Everest Re Group, Ltd. through its subsidiaries, is principally engaged in the underwriting of reinsurance and insurance in the United States, Bermuda and international markets. The Company underwrites reinsurance both through brokers and directly with ceding companies. The Company operates in four segments: U.S. Reinsurance, International, Bermuda and Insurance. The Company underwrites insurance principally through general agent relationships, brokers and surplus lines brokers. The Company's principal operating subsidiaries include Bermuda Re, Everest International Reinsurance, Ltd., Ireland Re, Everest Re, Everest Insurance Company of Canada, Everest National Insurance Company, Everest Indemnity Insurance Company, Everest Security Insurance Company, Mt. McKinley and Heartland Crop Insurance, Inc. ASBESTOS UPDATE: Park-Ohio Holdings Had 269 PI Cases at June 30 --------------------------------------------------------------- Park-Ohio Holdings Corp., is a co-defendant in approximately 269 cases asserting claims alleging asbestos-related personal injury, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2014. The Company states: "We were a co-defendant in approximately 269 cases asserting claims on behalf of approximately 612 plaintiffs alleging personal injury as a result of exposure to asbestos. These asbestos cases generally relate to production and sale of asbestos-containing products and allege various theories of liability, including negligence, gross negligence and strict liability, and seek compensatory and, in some cases, punitive damages. "In every asbestos case in which we are named as a party, the complaints are filed against multiple named defendants. In substantially all of the asbestos cases, the plaintiffs either claim damages in excess of a specified amount, typically a minimum amount sufficient to establish jurisdiction of the court in which the case was filed (jurisdictional minimums generally range from $25,000 to $75,000), or do not specify the monetary damages sought. To the extent that any specific amount of damages is sought, the amount applies to claims against all named defendants. "There are only seven asbestos cases, involving 26 plaintiffs, that plead specified damages. In each of the seven cases, the plaintiff is seeking compensatory and punitive damages based on a variety of potentially alternative causes of action. In three cases, the plaintiff has alleged compensatory damages in the amount of $3.0 million for four separate causes of action and $1.0 million for another cause of action and punitive damages in the amount of $10.0 million. In the fourth case, the plaintiff has alleged against each named defendant, compensatory and punitive damages, each in the amount of $10.0 million, for seven separate causes of action. In the fifth case, the plaintiff has alleged compensatory damages in the amount of $20.0 million for three separate causes of action and $5.0 million for another cause of action and punitive damages in the amount of $20.0 million. In the sixth case, plaintiffs have alleged compensatory and punitive damages in the amount of $10.0 million for each of the five counts and one count of $5.0 million for the sixth count. In the remaining case, the plaintiff has alleged against each named defendant compensatory and punitive damages, each in the amount of $50.0 million, for four separate causes of action. "Historically, we have been dismissed from asbestos cases on the basis that the plaintiff incorrectly sued one of our subsidiaries or because the plaintiff failed to identify any asbestos- containing product manufactured or sold by us or our subsidiaries. We intend to vigorously defend these asbestos cases, and believe we will continue to be successful in being dismissed from such cases. However, it is not possible to predict the ultimate outcome of asbestos-related lawsuits, claims and proceedings due to the unpredictable nature of personal injury litigation. Despite this uncertainty, and although our results of operations and cash flows for a particular period could be adversely affected by asbestos- related lawsuits, claims and proceedings, management believes that the ultimate resolution of these matters will not have a material adverse effect on our financial condition, liquidity or results of operations. Among the factors management considered in reaching this conclusion were: (a) our historical success in being dismissed from these types of lawsuits; (b) many cases have been improperly filed against one of our subsidiaries; (c) in many cases the plaintiffs have been unable to establish any causal relationship to us or our products or premises; (d) in many cases, the plaintiffs have been unable to demonstrate that they have suffered any identifiable injury or compensable loss at all or that any injuries that they have incurred did in fact result from alleged exposure to asbestos; and (e) the complaints assert claims against multiple defendants and, in most cases, the damages alleged are not attributed to individual defendants. Additionally, we do not believe that the amounts claimed in any of the asbestos cases are meaningful indicators of our potential exposure because the amounts claimed typically bear no relation to the extent of the plaintiff's injury, if any. "Our cost of defending these lawsuits has not been material to date and, based upon available information, our management does not expect its future costs for asbestos-related lawsuits to have a material adverse effect on our results of operations, liquidity or financial position." Park-Ohio Holdings Corp. (Holdings) conducts its business primarily through the subsidiaries owned by its direct subsidiary, Park-Ohio Industries, Inc. (Park-Ohio). The Company is an industrial supply chain logistics and diversified manufacturing business operating in three segments: Supply Technologies, Aluminum Products and Manufactured Products. Supply Technologies provides the Company's customers with Total Supply Management services for a range of specialty production components. The Company's Aluminum Products business manufactures cast and machined aluminum components, and the Company's Manufactured Products business is a manufacturer of engineered industrial products. In June 2014, Park-Ohio Holdings Corp announced that its Supply Technologies (ST) business acquires Apollo Aerospace Group (Apollo) headquartered in West Midlands, England, with operating locations in England, France, Poland, and India. ASBESTOS UPDATE: Magnetek Inc. Continues to Defend Fibro Suits -------------------------------------------------------------- Magnetek, Inc., continues to defend itself in asbestos-related lawsuits, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 29, 2014. The Company has been named, along with multiple other defendants, in asbestos-related lawsuits associated with business operations previously acquired by the Company, but which are no longer owned. During the Company's ownership, none of the businesses produced or sold asbestos-containing products. With respect to these claims, the Company believes that it has no such liability. For such claims, the Company is uninsured and either contractually indemnified against liability, or contractually obligated to defend and indemnify the purchaser of these former Magnetek business operations. The Company aggressively seeks dismissal from these proceedings. Management does not believe the asbestos proceedings, individually or in the aggregate, will have a material adverse effect on its financial position or results of operations. Given the nature of the issues, uncertainty of the ultimate outcome, and inability to estimate the potential loss, no amounts have been reserved for these matters. Magnetek, Inc., is a provider of digital power control systems that are used to control motion and power primarily in material handling, elevator, and mining applications. ASBESTOS UPDATE: Metropolitan Life Had 2,569 New Fibro Claims ------------------------------------------------------------- Metropolitan Life Insurance Company received approximately 2,569 new asbestos-related claims, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2014. Metropolitan Life Insurance Company is and has been a defendant in a large number of asbestos-related suits filed primarily in state courts. These suits principally allege that the plaintiff or plaintiffs suffered personal injury resulting from exposure to asbestos and seek both actual and punitive damages. Metropolitan Life Insurance Company has never engaged in the business of manufacturing, producing, distributing or selling asbestos or asbestos-containing products nor has Metropolitan Life Insurance Company issued liability or workers' compensation insurance to companies in the business of manufacturing, producing, distributing or selling asbestos or asbestos-containing products. The lawsuits principally have focused on allegations with respect to certain research, publication and other activities of one or more of Metropolitan Life Insurance Company's employees during the period from the 1920's through approximately the 1950's and allege that Metropolitan Life Insurance Company learned or should have learned of certain health risks posed by asbestos and, among other things, improperly publicized or failed to disclose those health risks. Metropolitan Life Insurance Company believes that it should not have legal liability in these cases. The outcome of most asbestos litigation matters, however, is uncertain and can be impacted by numerous variables, including differences in legal rulings in various jurisdictions, the nature of the alleged injury and factors unrelated to the ultimate legal merit of the claims asserted against Metropolitan Life Insurance Company. Metropolitan Life Insurance Company employs a number of resolution strategies to manage its asbestos loss exposure, including seeking resolution of pending litigation by judicial rulings and settling individual or groups of claims or lawsuits under appropriate circumstances. Claims asserted against Metropolitan Life Insurance Company have included negligence, intentional tort and conspiracy concerning the health risks associated with asbestos. Metropolitan Life Insurance Company's defenses (beyond denial of certain factual allegations) include that: (i) Metropolitan Life Insurance Company owed no duty to the plaintiffs -- it had no special relationship with the plaintiffs and did not manufacture, produce, distribute or sell the asbestos products that allegedly injured plaintiffs; (ii) plaintiffs did not rely on any actions of Metropolitan Life Insurance Company; (iii) Metropolitan Life Insurance Company's conduct was not the cause of the plaintiffs' injuries; (iv) plaintiffs' exposure occurred after the dangers of asbestos were known; and (v) the applicable time with respect to filing suit has expired. During the course of the litigation, certain trial courts have granted motions dismissing claims against Metropolitan Life Insurance Company, while other trial courts have denied Metropolitan Life Insurance Company's motions. There can be no assurance that Metropolitan Life Insurance Company will receive favorable decisions on motions in the future. While most cases brought to date have settled, Metropolitan Life Insurance Company intends to continue to defend aggressively against claims based on asbestos exposure, including defending claims at trials. Metropolitan Life Insurance Company received approximately 5,898 asbestos-related claims in 2013. During the six months ended June 30, 2014, and 2013, Metropolitan Life Insurance Company received approximately 2,569 and 3,129 new asbestos-related claims, respectively. The number of asbestos cases that may be brought, the aggregate amount of any liability that Metropolitan Life Insurance Company may incur, and the total amount paid in settlements in any given year are uncertain and may vary significantly from year to year. The ability of Metropolitan Life Insurance Company to estimate its ultimate asbestos exposure is subject to considerable uncertainty, and the conditions impacting its liability can be dynamic and subject to change. The availability of reliable data is limited and it is difficult to predict the numerous variables that can affect liability estimates, including the number of future claims, the cost to resolve claims, the disease mix and severity of disease in pending and future claims, the impact of the number of new claims filed in a particular jurisdiction and variations in the law in the jurisdictions in which claims are filed, the possible impact of tort reform efforts, the willingness of courts to allow plaintiffs to pursue claims against Metropolitan Life Insurance Company when exposure to asbestos took place after the dangers of asbestos exposure were well known, and the impact of any possible future adverse verdicts and their amounts. The ability to make estimates regarding ultimate asbestos exposure declines significantly as the estimates relate to years further in the future. In the Company's judgment, there is a future point after which losses cease to be probable and reasonably estimable. It is reasonably possible that the Company's total exposure to asbestos claims may be materially greater than the asbestos liability currently accrued and that future charges to income may be necessary. While the potential future charges could be material in the particular quarterly or annual periods in which they are recorded, based on information currently known by management, management does not believe any such charges are likely to have a material effect on the Company's financial position. The Company believes adequate provision has been made in its consolidated financial statements for all probable and reasonably estimable losses for asbestos-related claims. Metropolitan Life Insurance Company's recorded asbestos liability is based on its estimation of the following elements, as informed by the facts presently known to it, its understanding of current law and its past experiences: (i) the probable and reasonably estimable liability for asbestos claims already asserted against Metropolitan Life Insurance Company, including claims settled but not yet paid; (ii) the probable and reasonably estimable liability for asbestos claims not yet asserted against Metropolitan Life Insurance Company, but which Metropolitan Life Insurance Company believes are reasonably probable of assertion; and (iii) the legal defense costs associated with the foregoing claims. Significant assumptions underlying Metropolitan Life Insurance Company's analysis of the adequacy of its recorded liability with respect to asbestos litigation include: (i) the number of future claims; (ii) the cost to resolve claims; and (iii) the cost to defend claims. Metropolitan Life Insurance Company reevaluates on a quarterly and annual basis its exposure from asbestos litigation, including studying its claims experience, reviewing external literature regarding asbestos claims experience in the United States, assessing relevant trends impacting asbestos liability and considering numerous variables that can affect its asbestos liability exposure on an overall or per claim basis. These variables include bankruptcies of other companies involved in asbestos litigation, legislative and judicial developments, the number of pending claims involving serious disease, the number of new claims filed against it and other defendants and the jurisdictions in which claims are pending. Based upon its reevaluation of its exposure from asbestos litigation, Metropolitan Life Insurance Company has updated its liability analysis for asbestos-related claims through June 30, 2014. Metropolitan Life Insurance Company and its subsidiaries (collectively, "MLIC" or the "Company") is a leading provider of insurance, annuities and employee benefit programs throughout the United States. The Company offers life insurance and annuities to individuals, as well as group insurance and retirement & savings products and services to corporations and other institutions. Metropolitan Life Insurance Company is a wholly-owned subsidiary of MetLife, Inc. ASBESTOS UPDATE: RPM PI Deal Ends if Plan Not Filed by Oct. 31 -------------------------------------------------------------- RPM International Inc.'s agreement in principle with an official representatives of current and future asbestos-related personal injury claimants will automatically terminate if a reorganization plan is not filed by the Company's subsidiaries by October 31, 2014, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended May 31, 2014. The Company states: "The Specialty Products Holding Corp. and Bondex International, Inc., Chapter 11 proceedings involve various risks and uncertainties that could have a material effect on us. "We have entered into an agreement in principle with the official representatives of current and future claimants that would resolve all present and future asbestos personal injury claims related to Bondex and other related entities. The agreement contemplates the filing of a plan or plans of reorganization and related documents (the "Plan") with the United States Bankruptcy Court in Delaware (the "Bankruptcy Court"). The Plan will be subject to approval of the claimants, as well as the Bankruptcy Court and U.S. District Court. "Under the terms of the agreement in principle, a trust or trusts (the "Trust") will be established under Section 524(g) of the United States Bankruptcy Code for the benefit of current and future asbestos personal injury claimants. Upon effectiveness of the Plan (the "Effective Date"), the Trust will be funded with $450 million in cash and one or more promissory notes, bearing no interest and maturing on or before the fourth anniversary of the Effective Date. The Plan shall provide for the following contributions to the Trust: * On or before the second anniversary of the Effective Date, an additional $102.5 million in cash, RPM International stock or a combination thereof (at our discretion in this and all subsequent cases) will be deposited into the Trust; * On or before the third anniversary of the Effective Date, an additional $120 million in cash, RPM International stock or a combination thereof will be deposited into the Trust; and * On or before the fourth anniversary of the Effective Date, a final payment of $125 million in cash, RPM International stock or a combination thereof will be deposited into the Trust. "Of the first $450 million payment, $2.5 million relates to the resolution of all present and future asbestos personal injury claims related to NMBFil, Inc., an indirect subsidiary of RPM International, which is the subject of a separate settlement term sheet. A portion of the payments due under the promissory note(s) will be secured by a right to the equity of Bondex and related chapter 11 debtor entities. All present and future asbestos personal injury claims against Bondex and the other related entities would be channeled to and paid by the Trust. "The agreement in principle will automatically terminate if the Plan is not filed by October 31, 2014. Pursuant to the terms of the agreement, the Plan must be confirmed and effective no later than October 31, 2015, otherwise simple interest at the rate of 3.45% will begin to accrue on the aggregate funding amount of the trust through the effective date of the Plan. "There is no guaranty that the Plan will be filed or confirmed or of the timing of any such confirmation. If the Plan is not filed or if the Plan, or a substantially similar plan, is not confirmed, the interests of SPHC, Bondex and RPM International may be significantly and adversely affected, SPHC and Bondex will remain in chapter 11, the amount of the asbestos liabilities of SPHC and Bondex will remain unresolved and the terms, timing and impact of any plan of reorganization ultimately confirmed will be unknown. If the Plan is not confirmed, the amount of SPHC's and Bondex's asbestos personal injury liabilities will not be resolved and will continue to be subject to substantial dispute and uncertainty as the appeals process with respect to the estimation ruling will then move forward. If the Plan is not confirmed, the amount of the asbestos personal injury liabilities could ultimately be determined to be significantly different from the amount agreed to by the parties in the agreement. This difference could be material to our financial position, cash flows and results of operations. In the event the Plan is not confirmed it is unclear whether any channeling injunction entered in connection with a plan of reorganization will extend to all non-filing affiliates of the filing entities, including RPM International. "As a result of the chapter 11 filing, the filing entities are precluded from paying dividends to shareholders and making payments on any pre-bankruptcy filing accounts or notes payable that are due and owing to any other entity within the RPM group of companies (the "Pre-Petition Intercompany Payables") and other pre-petition creditors during the pendency of the Chapter 11 proceedings, without the Bankruptcy Court's approval. If the Plan is not confirmed, no assurances can be given that any of the Pre- Petition Intercompany Payables will be paid or otherwise satisfied in connection with the confirmation of an alternative plan of reorganization. As of May 30, 2010, the day prior to the Chapter 11 filing, SPHC and its subsidiaries had Pre-Petition Intercompany Payables of approximately $209.6 million and pre-petition intercompany receivables from other entities within the RPM group of companies (other than subsidiaries of SPHC) of approximately $87.3 million. "On May 20, 2013, the Bankruptcy Court for the District of Delaware issued an opinion estimating the current and future asbestos claims associated with Bondex and SPHC at approximately $1.17 billion. The estimation hearing represents one step in the legal process in helping to determine the amount of potential funding for a 524(g) asbestos trust. Bondex and SPHC firmly believe that the opinion substantially overstates the amount of their liability and is not supported by the facts or the law. Bondex and SPHC and we have filed appeals of the decision with the United States District Court for the District of Delaware and sought certification of the appeal directly to the United States Court of Appeals for the Third Circuit, but were denied. The appeals remain pending before the District Court. The asbestos claimants and the future claims representative have moved to dismiss the appeals, arguing that the estimation order is not a final, appealable order. Bondex, SPHC and we believe that the order is final and appealable, and that, even if it were not, the appeals should be treated as motions to appeal which should be granted. Assuming that the motion to dismiss the appeals is not granted, it is anticipated that the appeal process could take two to three years. We believe that the Bankruptcy Court's estimation opinion, if not vacated on appeal, may increase the likelihood that claims may be asserted against RPM International alleging that we are liable for the asbestos liabilities of the filing entities. We expect that these appeals will be stayed pending confirmation of the Plan. "At a hearing held on November 13, 2013, the Bankruptcy Court granted the motion of the Official Committee of Asbestos Personal Injury Claimants and the Future Claimants' Representative (collectively the "ACC/FCR") for standing to pursue the SPHC estate claims against us, certain of our directors and executive officers, and third party advisors. We anticipated that the ACC/FCR might be permitted to pursue claims on behalf of the SPHC and Bondex estates against us. We believe that the alleged SPHC estate claims are without merit and, if such claims are made, intend to contest them vigorously, but if the ACC/FCR are successful in any such effort, it may increase the amount that RPM International may need to contribute to any 524(g) trust. The ACC/FCR have agreed not to proceed with any such claims unless the Plan is not confirmed. "There is also a possibility that the Bankruptcy Court could lift the injunction precluding litigation of asbestos claims against us and permitting such claims against us in the tort system. Although we believe we have no responsibility for asbestos liabilities of the filing entities, we cannot assure you that the resolution of such claims, or the perception that RPM International may have a risk of exposure to liability for the asbestos-related liabilities of the filing entities, will not have a material adverse effect on our financial condition, results of operations or the market price of our securities." RPM International Inc. (RPM) through its subsidiaries manufactures, markets and sells various specialty chemical product lines. RPM's business is divided into two reportable segments: the industrial reportable segment (industrial segment) and the consumer reportable segment (consumer segment). The industrial segment (RPM Building Solutions Group, Performance Coatings Group and RPM2 Group), which comprises approximately 65% of its total net sales, includes maintenance and protection products for roofing and waterproofing systems, flooring, corrosion control and other specialty applications. The consumer segment (Rust-Oleum Group and DAP Group) comprises approximately 35% of its total net sales and includes rust-preventative, special purpose and decorative paints, caulks, sealants, primers and other branded consumer products. In July 2014, the Company announced that its Rust-Oleum Group has acquired Krud Kutter Inc. ASBESTOS UPDATE: "Hallum" Suit v. Andrea Electronics Dismissed -------------------------------------------------------------- An asbestos-related lawsuit filed by John Hallum and Janet Hallum against Andrea Electronics Corporation was dismissed, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2014. In May 2014, John Hallum and Janet Hallum, filed a lawsuit in the County Court of Dallas County, Texas, against Alcatel-Lucent USA, Inc. and over 40 other defendants, including the Company, alleging that the Company processed, manufactured, designed, tested, packaged, distributed, marketed or sold asbestos containing products that contributed to the their contraction of asbestos- related mesothelioma and other asbestos-related pathologies. The Company retained legal counsel and a dismissal via a non-suit was obtained on July 11, 2014. Andrea Electronics Corporation (Andrea) is engaged in designing, developing and manufacturing microphone technologies and products for improving speech-based applications software and communications that require clear voice signals. The Company operates in two segments: Andrea DSP Microphone and Audio Software Products, and Andrea Anti-Noise Products. The Company's Andrea Digital Signal Processing (DSP) Microphone and Audio Software Products and Andrea Anti-Noise Products have been designed for applications that are controlled by or depend on speech across a range of hardware and software platforms. These products incorporate its DSP, noise cancellation (NC), active noise reduction (ANR) and active noise cancellation (ANC) microphone technologies, and are designed to cancel background noise in a range of noisy environments, such as homes, offices, factories and automobiles. ASBESTOS UPDATE: Summary Judgment Awarded to Andrea Electronics --------------------------------------------------------------- A summary judgment was awarded to Andrea Electronics Corporation in an asbestos-related lawsuit filed by Wayne F. Jones and Roberta Jones, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2014. In May 2013, Wayne F. Jones and Roberta Jones, filed a law suit in the Superior Court of Providence County, Rhode Island, against 84 Lumber Company and over 120 other defendants, including the Company, alleging that the Company processed, manufactured, designed, tested, packaged, distributed, marketed or sold asbestos containing products that contributed to the their contraction of asbestos-related mesothelioma and other asbestos-related pathologies. The Company retained legal counsel and filed a response to the compliant. In February 2014, Andrea sought and was granted a Motion for Summary Judgment and Motion for Entry of Final Judgment pursuant to Rule 54(b). Andrea Electronics Corporation (Andrea) is engaged in designing, developing and manufacturing microphone technologies and products for improving speech-based applications software and communications that require clear voice signals. The Company operates in two segments: Andrea DSP Microphone and Audio Software Products, and Andrea Anti-Noise Products. The Company's Andrea Digital Signal Processing (DSP) Microphone and Audio Software Products and Andrea Anti-Noise Products have been designed for applications that are controlled by or depend on speech across a range of hardware and software platforms. These products incorporate its DSP, noise cancellation (NC), active noise reduction (ANR) and active noise cancellation (ANC) microphone technologies, and are designed to cancel background noise in a range of noisy environments, such as homes, offices, factories and automobiles. ASBESTOS UPDATE: "Edwards" Suit v. Andrea Electronics Is Pending ---------------------------------------------------------------- An asbestos-related personal injury lawsuit filed by Audrey Edwards against Andrea Electronics Corporation remains pending, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2014. In December 2010, Audrey Edwards, Executrix of the Estate of Leon Leroy Edwards, filed a lawsuit in the Superior Court of Providence County, Rhode Island, against 3M Company and over 90 other defendants, including the Company, alleging that the Company processed, manufactured, designed, tested, packaged, distributed, marketed or sold asbestos containing products that contributed to the death of Leon Leroy Edwards. The Company received service of process in April 2011. The Company has retained legal counsel and has filed a response to the complaint. The Company believes the lawsuit is without merit and intends to file a Motion for Summary Judgment to that affect. Accordingly, the Company does not believe the lawsuit will have a material adverse effect on the Company's financial position or results of operations. Andrea Electronics Corporation (Andrea) is engaged in designing, developing and manufacturing microphone technologies and products for improving speech-based applications software and communications that require clear voice signals. The Company operates in two segments: Andrea DSP Microphone and Audio Software Products, and Andrea Anti-Noise Products. The Company's Andrea Digital Signal Processing (DSP) Microphone and Audio Software Products and Andrea Anti-Noise Products have been designed for applications that are controlled by or depend on speech across a range of hardware and software platforms. These products incorporate its DSP, noise cancellation (NC), active noise reduction (ANR) and active noise cancellation (ANC) microphone technologies, and are designed to cancel background noise in a range of noisy environments, such as homes, offices, factories and automobiles. ASBESTOS UPDATE: American Locker Group Had 16 Cases as of June 30 ----------------------------------------------------------------- American Locker Group Incorporated had 16 unresolved asbestos- related cases, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2014. Beginning in September 1998 and continuing through June 30, 2014, the Company has been named as an additional defendant in approximately 241 cases pending in state court in Massachusetts and one in the state of Washington. The plaintiffs in each case assert that a division of the Company manufactured and furnished components containing asbestos to a shipyard during the period from 1948 to 1972 and that injury resulted from exposure to such products. The assets of this division were sold by the Company in 1973. During the process of discovery in certain of these actions, documents from sources outside the Company have been produced that indicate the Company appears to have been included in the chain of title for certain wall panels that contained asbestos and were delivered to the Massachusetts shipyards. Defense of these cases has been assumed by the Company's insurance carrier, subject to a reservation of rights. Settlement agreements have been entered in approximately 40 cases with funds authorized and provided by the Company's insurance carrier. Further, over 185 cases have been terminated as to the Company without liability to the Company under Massachusetts procedural rules. Therefore, the balance of unresolved cases against the Company as of June 30, 2014, the most recent date for which information is available, is approximately 16 cases. While the Company cannot estimate potential damages or predict what the ultimate resolution of these asbestos cases may be because the discovery proceedings on the cases are not complete, based upon the Company's experience to date with similar cases, as well as the assumption that insurance coverage will continue to be provided with respect to these cases, at the present time, the Company does not believe that the outcome of these cases will have a significant adverse impact on the Company's operations or financial condition. American Locker Group Incorporated is a manufacturer of lockers, locks and keys with a range of applications for use in numerous industries. The Company serves customers in a range of industries in all 50 states and in Canada, Mexico, Europe, Asia and South America. The Company's products can be categorized as either mailboxes or lockers. Mailboxes are used for the delivery of mail, packages and other parcels to multi-tenant facilities. Lockers are used for applications other than mail delivery, and its lockers are key-controlled checking lockers. The Company's products and services include recreation lockers, coin operated keys and locks, United States Postal Service (USPS) approved multi-tenant mailboxes, private mail delivery mailboxes, electronic distribution lockers, evidence lockers, laptop lockers and mini- check lockers. ASBESTOS UPDATE: IntriCon Corp. Continues to Defend PI Suits ------------------------------------------------------------ IntriCon Corporation continues to defend itself against asbestos- related lawsuits, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2014. The Company is a defendant along with a number of other parties in lawsuits alleging that plaintiffs have or may have contracted asbestos-related diseases as a result of exposure to asbestos products or equipment containing asbestos sold by one or more named defendants. These lawsuits relate to the discontinued heat technologies segment which was sold in March 2005. Due to the non- informative nature of the complaints, the Company does not know whether any of the complaints state valid claims against the Company. Certain insurance carriers have informed the Company that the primary policies for the period August 1, 1970-1978 have been exhausted and that the carriers will no longer provide defense and insurance coverage under those policies. However, the Company has other primary and excess insurance policies that the Company believes afford coverage for later years. Some of these other primary insurers have accepted defense and insurance coverage for these suits, and some of them have either ignored the Company's tender of defense of these cases, or have denied coverage, or have accepted the tenders but asserted a reservation of rights and/or advised the Company that they need to investigate further. Because settlement payments are applied to all years a litigant was deemed to have been exposed to asbestos, the Company believes that it will have funds available for defense and insurance coverage under the non-exhausted primary and excess insurance policies. However, unlike the older policies, the more recent policies have deductible amounts for defense and settlements costs that the Company will be required to pay; accordingly, the Company expects that its litigation costs will increase in the future. Further, many of the policies covering later years (approximately 1984 and thereafter) have exclusions for any asbestos products or operations, and thus do not provide insurance coverage for asbestos-related lawsuits. The Company does not believe that the asserted exhaustion of some of the primary insurance coverage for the 1970-1978 period will have a material adverse effect on its financial condition, liquidity, or results of operations. Management believes that the number of insurance carriers involved in the defense of the suits, and the significant number of policy years and policy limits under which these insurance carriers are insuring the Company, make the ultimate disposition of these lawsuits not material to the Company's consolidated financial position or results of operations. IntriCon Corporation (IntriCon) is an international company engaged in designing, developing, engineering and manufacturing body-worn devices. IntriCon serves the body-worn device market by designing, developing, engineering and manufacturing micro- miniature products, microelectronics, micro-mechanical assemblies and complete assemblies, primarily for bio-telemetry devices, hearing instruments and professional audio communication devices. The Company operates in one operating segment, the body-worn device segment. The Company's core technologies are focused on three main markets: medical, hearing health and professional audio communications. In October 2012, it sold its 50% ownership interest in Global Coils. ASBESTOS UPDATE: EPA Awarded Summary Judgment in FOIA Suit ---------------------------------------------------------- Plaintiff Paul Mancuso brought an action under the Freedom of Information Act seeking to compel the production of documents allegedly withheld by Defendant United States Environmental Protection Agency. The action stems from the Plaintiff's previous conviction for multiple counts of illegal removal of asbestos and related crimes. The Defendant filed a motion for summary judgment. In a memorandum-decision and order dated Sept. 22, 2014, Judge Lawrence E. Kahn of the U.S. District Court for the Northern District of New York granted the Defendant's motion, holding that the Defendant's submissions are facially adequate and, accordingly, are presumed to have been made in good faith. Judge Kahn also ruled that the Plaintiff's argument that the requested air monitoring reports "must exist," and therefore the Defendant's failure to provide them evidences bad faith, is unavailing. The case is PAUL MANCUSO, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant, NO. 5:12-CV-1027 (LEK/TWD)(N.D.N.Y.). A full-text copy of Judge Kahn's Decision is available at http://is.gd/CuO7xwfrom Leagle.com. ASBESTOS UPDATE: Partial Summary Ruling Issued in Metso-ITT Suit ---------------------------------------------------------------- Plaintiff Metso Automation USA, Inc. and defendant ITT Corporation each seek contractual indemnification from the other for damages incurred defending asbestos-related product-liability suits. The parties both rely on an indemnity clause contained in an agreement executed in 1983 between their predecessors-in-interest. The complaint originally stated a claim for, among other things, declaratory judgment as to the parties' rights under the 1983 Agreement. On August 13, 2012, the U.S. District Court for the District of Massachusetts dismissed Metso's declaratory judgment claim on the ground that it was duplicative of the other substantive claims in the complaint. Metso has moved to vacate the Court's previous ruling on the declaratory judgment claim and enter declaratory judgment interpreting the 1983 Agreement in general terms. ITT opposes vacating the Court's previous ruling and has moved for summary judgment on the contractual indemnification claims. U.S. District Judge F. Dennis Saylor, IV, in Massachusetts, in a memorandum and order dated Sept. 22, 2014, granted in part and denied in part the motions. Judge Saylor granted ITT's motion for summary judgment as to the Metso actions (Andrew, Dombrowski, Horsham, Range, Sether, Carmine, Bludworth, Mahar, and Sumner) and denied as to the ITT actions (Boggess, Brown, Chancey, Edwards, Fischerkeller, Hunt, Oxley, Spurlock, and White). The case is METSO AUTOMATION USA, INC., Plaintiff, v. ITT CORPORATION, Defendant, CIVIL ACTION NO. 11-10514-FDS (D. Mass.). A full-text copy of Judge Saylor's Decision is available at http://is.gd/ovLs88from Leagle.com. Metso Automation USA, Inc., Counter Defendant, represented by James L. Ackerman, Esq. -- jackerman@wadacklaw.com -- and Lawrence J. Mullen, Esq. -- lmullen@wadacklaw.com -- at Wadland & Ackerman. ASBESTOS UPDATE: 7 Cos. Obtain Summary Judgment in "Starnes" Suit ----------------------------------------------------------------- Plaintiffs Ralph O'Neill Starnes, et al., filed a diversity action asserting seven claims for relief in their amended complaint. All of the claims center upon Mr. Starnes having contracted mesothelioma from breathing asbestos dust. Count One alleges negligence; Count Two alleges breach of implied warranty; Count Three alleges willful and wanton conduct; Count Four alleges false representation; Count Five alleges failure to warn; and Counts Six and Seven assert claims against defendants other than those moving for summary judgment. All of the Plaintiffs' claims are brought pursuant to North Carolina law. Summary judgment motions were filed by seven defendants: FMC Corporation on behalf of its former subsidiary, and originally sued as Crosby Valve, Inc.; FMC Corporation on behalf of its former Peerless Pump business and originally sued as FMC Corporation, individually and as successor-in-interest to Peerless Pump Company; Sterling Fluid Systems (USA), LLC., formerly known as Peerless Pump Co.; Gardner Denver, Inc.; Watts Water Technologies, Inc. sued as successor to Powers Regulatory Company, Inc.; Ingersoll Rand Company; and Trane U.S. Inc., formerly known as American Standard Companies, sued individually and as successor-in-interest to American Radiator Company also known as Ideal Boiler. Judge Martin Reidinger of the U.S. District Court for the Western District of North Carolina, Asheville Division, in a memorandum order and opinion dated Sept. 23, 2014, concluded that all seven of the Defendants' forecasts of evidence, taken in the light most favorable to the Plaintiffs as the non-movants, is sufficient to establish that no genuine dispute exists as to any of the material facts. Accordingly, Judge Reidinger ruled that the seven named defendants are entitled to judgment as a matter of law and should be dismissed from the action. The case is RALPH O'NEIL STARNES, et al., Plaintiffs, v. A.O. SMITH CORPORATION, et al., Defendants, CIVIL CASE NO. 1:12-CV-360- MR-DLH (W.D.N.C.). A full-text copy of Judge Reidinger's Decision is available at http://is.gd/120Fpkfrom Leagle.com. Pfizer, Inc., Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough, LLP. ASBESTOS UPDATE: 2 Cos. Obtain Summary Judgment in "Walkup" Suit ---------------------------------------------------------------- Judge Sue L. Robinson of the U.S. District Court for the District of Delaware adopted the report and recommendations issued by Magistrate Judge Sherry R. Fallon in the asbestos-related lawsuit styled LARRY WALKUP and BETTY WALKUP, Plaintiffs, v. AIR & LIQUID SYSTEMS CORP., a/k/a BUFFALO PUMPS, INC., et al., Defendants, CIV. NO. 12-1635-SLR-SRF (D. Del.). Magistrate Fallon concluded that the Plaintiffs failed to identify sufficient evidence to withstand summary judgment motions filed by defendants Nash Engineering Company and Air & Liquid Systems Corporation. Judge Robinson found that Mr. Walkup's deposition testimony is insufficient to raise a genuine issue of material facts as to whether he was exposed to either defendant's products. Accordingly, Judge Robinson adopted Magistrate Fallon's recommendation granting the defendants' motions for summary judgment. A full-text copy of Judge Robinson's memorandum dated Sept. 8, 2014, is available at http://is.gd/6wnEQgfrom Leagle.com. ASBESTOS UPDATE: Md. Court Affirms Ruling in "May" Suit ------------------------------------------------------- In Ford Motor Co. v. Wood, 119 Md.App. 1, 34, cert. denied, 394 Md. 494 (1998), the Court of Special Appeals of Maryland held that an automobile manufacturer could not be held liable in tort for failing to warn of the latent dangers of asbestos-containing replacement parts that it neither manufactured nor placed into the stream of commerce. In the asbestos-related case captioned PHILIP ROYCE MAY, ET AL., v. AIR & LIQUID SYSTEMS CORPORATION, ETC. ET AL., NO. 2670, SEPTEMBER TERM, 2012 (Md. Spec. App.), the Court of Special Appeals affirmed a lower court's decision and reaffirmed the Wood decision and, in accordance with a number of out-of-state cases that have followed in its wake, hold that the manufacturers of steam pumps in Navy ships cannot be held liable for failing to warn of the dangers of asbestos-containing replacement parts (gaskets and packing) that they neither manufactured nor placed into the stream of commerce. A full-text copy of the Decision in the "May" case dated Oct. 3, 2014, is available at http://is.gd/o3R7dufrom Leagle.com. ASBESTOS UPDATE: Pa. Court Affirms Ruling in "Haldaman" Suit ------------------------------------------------------------ Appellant, Daniel Haldaman, personal representative of the estate of Gerda W. Haldaman, deceased, and plaintiff in the an asbestos mass tort litigation, appeals from the final judgment entered May 23, 2012, which also rendered final a trial court's earlier orders granting summary judgment to each of Eaton Corporation, as successor in interest to Cutler-Hammer, Inc.; Kentile Floors Inc.; P & H Mining Equipment, f/k/a Harnischfeger Corporation; Reading Crane & Engineering; Morgan Engineering, f/k/a Morgan Crane; CBS Corporation, f/k/a Westinghouse Electric Corporation; and General Electric Company. After careful review, the Superior Court of Pennsylvania, in a memorandum dated Oct. 3, 2014, affirmed and stated: "While the evidence viewed in the light most favorable to Appellant tends to show that, in general, asbestos containing products were present in the workplace during Decedent's husband's years of employment, and that he may have at times been around such products when they created dust, there is no evidence of specific exposure to any of Appellees' asbestos containing products. More particularly, we agree that the deposition testimony and affidavits of Ray Haldaman's co-workers, John Weiss, Joseph Anfuso, Brian Gaugler, Michael Carl, John D. Wagner, Theodore Potteiger, Anthony Lubenesky, and Thomas G. Jones, relied on by Appellant, failed to establish an issue of material fact relative to Ray Haldaman's exposure to asbestos dust from any of Appellees' products. Those statements identifying particular products and times, did not mention the presence of Ray Haldaman, and specific references to Ray Haldaman did not place him in proximity of specific asbestos containing products at specific times. All that Appellant established was general potential exposure from various sources throughout the workplace during Ray Haldaman's employment tenure. No nexus between Ray Haldaman, and by extension Decedent, and any of Appellees' products was established. Accordingly, we adopt the thorough analysis of the law and facts as developed by the Honorable Sandra Mazer Moss in her August 22, 2012 opinion as our own for purposes of further appellate review and affirm the orders granting summary judgment." The appeals case is DANIEL HALDAMAN, AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF GERDA W. HALDAMAN, Appellant, v. EATON CORPORATION, AS SUCCESSOR-IN-INTEREST TO CUTLER-HAMMER, INC., Appellee. DANIEL HALDAMAN, AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF GERDA W. HALDAMAN, Appellant, v. P & H MINING EQUIPMENT F/K/A HARNISCHFEGER CORPORATION, Appellee. DANIEL HALDAMAN, AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF GERDA W. HALDAMAN, Appellant, v. READING CRANE & ENGINEERING, Appellee. DANIEL HALDAMAN, AS PERSONAL RPRESENTATIVE FOR THE ESTATE OF GERDA W. HALDAMAN, Appellant, v. MORGAN ENGINEERING F/K/A MORGAN CRANE, Appellee. DANIEL HALDAMAN, AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF GERDA W. HALDAMAN, Appellant v. CBS CORPORATION, F/K/A WESTINGHOUSE ELECTRIC CORPORATION, Appellee. DANIEL HALDAMAN, AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF GERDA W. HALDAMAN, Appellant, v. GENERAL ELECTRIC COMPANY, Appellee, NOS. 1170 EDA 2012, 1172 EDA 2012, 1173 EDA 2012, 1174 EDA 2012, 1175 EDA 2012, 1176 EDA 2012 (Pa. Super.). A full-text copy of the Decision is available at http://is.gd/rqL8H4from Leagle.com. ASBESTOS UPDATE: La. Court Recommends Remand of "Day" Suit ---------------------------------------------------------- Plaintiff Alfready Day, Sr., filed a Petition for Damages in state court seeking recovery for injuries, including the development of lung cancer, allegedly sustained as a result of exposure to asbestos and asbestos-containing products found aboard vessels while working for various shipowners from 1956 to 1994. The Plaintiff named as defendants Alcoa Steamship Company, Inc.; Crowley Marine Services, Inc., as successor by merger to Delta Steamship Lines, Inc., f/k/a Mississippi Shipping Co., Inc.; Delta Steamship Lines, Inc.; Sea-Land Service, Inc.; Trinidad Corporation; Apex Oil Company, Inc. (identified by plaintiff as successor-in-interest to Trinidad Corporation); and Waterman Steamship Corporation. Plaintiff asserted claims under general maritime law and the Jones Act. Alcoa removed the case to the U.S. District Court for the Middle District of Louisiana, alleging that the District Court has original, exclusive subject matter jurisdiction under general maritime Law. The Defendant asserted that the plaintiff's Jones Act claim does not prohibit removal of the general maritime claims. The Plaintiff filed a motion to remand. Magistrate Judge Stephen C. Riedlinger in Louisiana, in a report dated Sept. 12, 2014, recommended that the Plaintiff's motion to remand be granted, noting that the Defendants did not address how the Plaintiff's state court suit can be removed when it contains a "claim" that is statutorily non-removable. The case is ALFREADY DAY, SR., v. ALCOA STEAMSHIP COMPANY, INC., ET AL., CIVIL ACTION NO. 14-317-BAJ-SCR (M.D. La.). A full-text copy of Magistrate Riedlinger's Decision is available at http://is.gd/JeD2TXfrom Leagle.com. ASBESTOS UPDATE: La. Court Recommends Remand of "Marvin" Suit ------------------------------------------------------------- Magistrate Judge Stephen C. Riedlinger of the U.S. District Court for the Middle District of Louisiana issued a report dated Sept. 12, 2014, recommending the remand to state court of the asbestos-related personal injury lawsuit styled SPRAWLIN MARVIN, v. FARRELL LINES, INC., ET AL., CIVIL ACTION NO. 14-316-JJB-SCR (M.D. La.). A full-text copy of Magistrate Riedlinger's Decision is available at http://is.gd/EzNaFxfrom Leagle.com. ASBESTOS UPDATE: Honeywell Wins Summary Judgment in "Shimko" Suit ----------------------------------------------------------------- Plaintiffs Ronald Shimko and Carol Shimko allege that, due to Defendant Honeywell International Inc.'s wrongful conduct, Mr. Shimko was exposed to asbestos and, as a result of that exposure, developed pleural disease and asbestosis. Honeywell filed a motion for summary judgment, which the Superior Court of Delaware, New Castle County, granted in an opinion dated Sept. 30, 2014, a full-text copy of which is available at http://is.gd/FrhVEdfrom Leagle.com. In granting summary judgment, the Superior Court held that the Shimkos' claims against Honeywell are too speculative to survive summary judgment, noting that Mr. Shimko testified that he installed Bendix brakes on one occasion but that he "probably used" Bendix products on other occasions. The Superior Court concluded that the Shimkos have failed to present sufficient evidence to permit a jury finding that Mr. Shimko was exposed to an asbestos-containing product attributable to Honeywell. The case is RONALD SHIMKO and CAROL SHIMKO, Plaintiffs, v. HONEYWELL INTERNATIONAL INC., et al., Defendants, C.A. NO. N10C- 12-238 ASB (Del. Super.). ASBESTOS UPDATE: Crane Denied Summary Judgment in "Ruppel" Suit --------------------------------------------------------------- Plaintiff Henry Ruppel filed his First Amended Complaint in the Circuit Court of the Third Judicial Circuit in Madison County, Illinois on May 14, 2012, alleging that he sustained injuries as a result of exposure to asbestos-containing products attributable to Crane Company and various other defendants. General Electric Company subsequently removed the Plaintiff's suit to the U.S. District Court for the Southern District of Illinois. The Plaintiff's First Amended Complaint alleges state law claims of negligence, negligent manufacturing, and spoliation against a number of defendants, including Crane. Crane filed its Motion for Summary Judgment on September 23, 2013, asserting it is entitled to judgment as a matter of law on all counts. The Plaintiff timely filed a response on November 27, 2013, after being granted an extension of time to respond. Crane argues for summary judgment on the claim of spoliation to which the Plaintiff indicated that the spoliation claim will be dismissed. Magistrate Judge Donald G. Wilkerson in Illinois issued a memorandum and opinion dated Sept. 30, 2014, denying Crane's motion for summary judgment after determining that the Plaintiff has produced evidence tending to show that the valves manufactured by Crane were inherently dangerous as manufactured. The case is HENRY RUPPEL, Plaintiff, v. CRANE CO., Defendant, CASE NO. 3:12-CV-293-DGW-SCW (S.D. Ill.). A full-text copy of Magistrate Wilkerson's Decision is available at http://is.gd/Qm1EQYfrom Leagle.com. ASBESTOS UPDATE: Navistar Wins Dismissal of "New" Suit ------------------------------------------------------ Plaintiffs John and Beth New claim that John New contracted lung cancer after being exposed to asbestos while working at various automobile part and repair businesses. The Plaintiffs filed a four-count lawsuit in Missouri state court against the various defendants that supplied the products that allegedly caused his injuries. Defendant Ford Motor Company removed the case to United States District Court for the Western District of Missouri, Western Division, alleging diversity jurisdiction. Defendant Navistar Inc., filed a motion to dismiss for insufficient service of process. Finding that the Plaintiffs failed to serve Navistar within the 120-day time limit imposed under Rule 4(m) of the Federal Rule of Civil Procedure and that they have failed to show either "good cause" or "excusable neglect" for their untimely service, the District Court granted Navistar's motion. The case is JOHN NEW, and BETH NEW, Plaintiffs, v. BORG-WARNER CORPORATION, et al., Defendants, NO. 13-00675-CV-W-DGK (W.D. Mo.). A full-text copy of the Oct. 3, 2014, order penned by U.S. District Judge Greg Kays is available at http://is.gd/qzIAGifrom Leagle.com. Hennessy Industries, Defendant, represented by James Hayes Ryan, Gordon & Rees, LLP, John Keen, Gordon & Rees, LLP & Robert Daniel Connealy, Gordon & Rees, LLP. ASBESTOS UPDATE: Summary Judgment Awarded Following Settlement -------------------------------------------------------------- Judge Carl J. Barbier of the U.S. District Court for the Eastern District of Louisiana, in an Oct. 3, 2014 order and reasons, granted the motion for summary judgment filed by the plaintiff in the asbestos-related personal injury lawsuit styled Smith, v. UNION CARBIDE CORP., ET AL., SECTION: "J" (5), CIVIL ACTION NO. 13-6323 (E.D. La.). In her summary judgment motion, the Plaintiff asserted that there is and can be no liability found on the part of defendant Taylor-Seidenbach, Inc. The summary judgment motion was filed following a settlement of the Plaintiff's claims with Taylor. In granting the summary judgment motion, Judge Barbier noted that the other defendants have not opposed the motion, choosing not to attempt to present evidence showing that there is genuine issue of material fact precluding summary judgment on the issue. A full-text copy of Judge Barbier's Decision is available at http://is.gd/BelgqXfrom Leagle.com. ASBESTOS UPDATE: Madison County Landfill Facing Fibro Concerns -------------------------------------------------------------- LocalSYR.com reported that ruins of a former antique store and a karate business have been piled in a heap in Oneida, New York, since early July. The biggest obstacle to getting it cleaned up appears to be money. "They have to truck it all the way out to Seneca Falls. That's the nearest dump that allows it from our area," said Heath Waterman, who owns part of the property. He has a contractor lined up to haul away his portion of the rubble, once he has the money saved to pay for the trip. "The fact is that we do not accept friable asbestos in the Madison County landfill," explained Madison County Department of Solid Waste and Sanitation Director James Zecca. Too small to handle that type of waste, the Madison County landfill is getting swamped with calls from homeowners wondering what to do with materials containing asbestos. "With all of the storms that we've been having, unfortunately people's homes have been damaged and they are doing some major renovations, and in worse case scenarios it is complete demolition of their homes," Zecca said. The landfill director is hoping to educate property owners about the rules. Zecca recommends a survey by state certified inspectors before any renovation work begins, identifying areas for removing friable or non-friable asbestos separately. Zecca says powdery friable asbestos, often found on pipe insulation and various building materials, can cost up to $200 a ton to unload in other landfills. However, non-friable asbestos on floor tiles or roof shingles, among other things, is accepted at the Madison County landfill, for far less money. An inspector will help property owners determine the difference before they start tearing a room apart, so they can contain removal of friable asbestos separately, minimizing trips to other landfills. "Once the building is down, there is no way of identifying where the asbestos is located. So, what the state does is, they step in and say all of the debris, the total house now is considered contaminated with friable asbestos." There's no proof that Waterman's building contained friable asbestos. But, there's also no proof it did not contain the waste. He didn't have an updated asbestos report on record when the City of Oneida ordered an emergency demolition after the wall collapsed. Now, as a precaution, all of the rubble is classified as possibly containing friable asbestos. Without the money to transport the debris at the higher rate of disposal, Waterman has a mess that he hopes others can avoid. "You'd think for something so dangerous they would have more dumps available, so you wouldn't have to truck it two hours one way," Waterman said. Zecca recommends that homeowners hire professionals to handle asbestos. ASBESTOS UPDATE: Arctic College Students Concerned About Fibro -------------------------------------------------------------- CBC News reported that a couple of minor renovations are raising major concerns for students and staff at Nunavut Arctic College's Nunatta residence in Iqaluit, Canada. Nunatta residence is often referred to as the "Old Res" and it is one of the oldest buildings in Iqaluit. It was built in the early 1950s to house American air force crews. Nunavut's Department of Community and Government Services owns the building, which is undergoing renovations to remove mould and a front porch area while students and staff continue to use the facility. Jennifer Archer, the college's co-chair for Occupational Health and Safety Standards, says staff and students are concerned for their health as the building contains asbestos. "Basically most of the materials in this building actually contain asbestos and need to be treated as such," she said. Asbestos was commonly used in building construction until the 1970s. Breathing in asbestos fibres can cause respiratory ailments including lung cancer. The risk of exposure to asbestos is higher when the building materials are disturbed, such as during renovations and repairs. A report prepared for the Nunavut government in 2003 and obtained by CBC News details where asbestos is found in the Nunatta residence, including drywall, ceiling tiles, and vinyl flooring. It states that the asbestos-containing materials "do not currently pose a risk" but would if "the material was damaged . . . removed or repaired." It also spells out how the asbestos should be removed. Archer says faculty members approached her about the renovations, which they felt contravened those standards. "There was no vapour barrier. There were no safety warnings put up; there were students and staff working in very close proximity," she said. "There was quite a bit of dust being generated." The big concern for Archer is that she says workers on site didn't seem to know they were handling asbestos. The Department of Community and Government Services says it is aware of the asbestos, that it is contained and that students and staff are safe. CGS says samples and air quality tests are now being done. The department has had asbestos removed from other buildings in Iqaluit but the Old Res is the only place where people are living and working alongside the repairs. Archer says some instructors have cancelled classes while renovations are underway. ASBESTOS UPDATE: Fibro Complicates Roofing Work at McKean County ---------------------------------------------------------------- Martha Knight, writing for The Bradford Era, reported that the commissioners at McKean County, in Pennsylvania, have authorized a contract with Northeastern Environmental Management of Bradford to encapsulate up to 1,000 linear feet of asbestos-containing pipe insulation in the McKean County Courthouse. Commissioners Joe DeMott, Al Pingie and Cliff Lane took that action at their meeting. They credited maintenance director Ed Tronetti and others with discovering the asbestos in the course of prepping areas for heating, ventilation and air conditioning upgrades. The insulation is on piping between floors, meaning over the ceilings of ground floor offices in the A, B and C wings of the courthouse. The encapsulation cost per linear foot is $29, making the potential cost of the project up to $29,000. The pipe insulation was missed or omitted when there was a major asbestos abatement project at the courthouse in the 1980s. According to the proposal from Northeastern Environmental Management, the encapsulation will be accomplished by applying a wet wrap seal encasement product. "Negative air" (a slight vacuum) will be maintained in each area being worked on. This is to prevent the escape of asbestos particles. Workers will use glove bags, or mini containments attached to the pipe areas, inside which workers manipulate tools and materials. Northeastern Environmental Management will work on weekends and over holidays when necessary, keeping to a minimum the disruption of regular operations in the offices. A Pennsylvania Department of Labor and Industry certified asbestos abatement contractor, Northeastern Environmental Management was organized as a limited liability corporation in 2010. It is headed by Daniel Kellam, and is said to have two employees. ASBESTOS UPDATE: Fibro in Gary Demolition Halts Bank Project ------------------------------------------------------------ Carole Carlson, writing for Post-Tribune, reported that demolition came to a halt on the former Gary State Bank renovation project, in Indiana, after the state said the contractor had improperly disposed of asbestos. Workers were demolishing a building at 540 Broadway, adjacent to Gary State Bank, in order to construct a drive-up window for the new bank tenant. Project developer Vance Kenney, of Gateway Partners LLC in Hobart, said his demolition contractor halted work after spotting the transite asbestos in the debris that had fallen off the facade. But city activist Jim Nowacki said he blew the whistle, calling the Indiana Department of Environmental Management after seeing the asbestos, once used in siding as a fireproofing material, in front of the building. "They started knocking it down on the sidewalk. I made a complaint and the state sent IDEM inspectors out," he said. "The inspectors said you can't do anything till you remove the transite asbestos." IDEM spokesman Dan Goldblatt said inspectors did observe improper disposal of asbestos. "We are concerned, it can lead to transite asbestos in the air," he said. Goldblatt said IDEM was aware of the presence of asbestos in the building and had approved the licensed demolition contractor, D&R Construction, of East Chicago and the Harbor Group, an environmental consultant, also from East Chicago. "We informed them it wasn't being properly taken care of," Goldblatt said. Earlier, Kenney said Industrial Insulation Services Inc., of Hammond, removed asbestos from other parts of the building and IDEM gave the project the green light to proceed. Meanwhile, D&R started demolishing the building from the rear or west side in the alley. "As he got to the front of building, he noticed there was some material that fell off the facade of the building that appeared to be asbestos. He stopped the work," Kenney said. Dragan Vjestica, of Harbor Group, determined the material was transite-laden asbestos, Kenney said. Kenney said he contacted Industrial Insulation, which returned and cordoned off the area. Kenney said workers have to remove bricks by hand to gain access to the asbestos material, which will be bagged and removed. He said IDEM has approved the action plan for the removal and the state will inspect it again when workers are done. "We've taken every precaution to have a consultant who knows the process and a contractor who knows what needs to be done," Kenney said. "Nowacki has taken a special interest in coming by, almost every day. Because of the high profile nature of the project, I understand it goes under the microscope." Gateway Partners LLC, of Hobart, is renovating the 10-story, century-old bank building with $2.8 million in city-issued revenue bonds. The city approved the project in April. Kenney, managing partner of Gateway Partners, has said the bond money will be used to renovate the lobby and build a drive-up window and parking for Centier, which is leasing the lobby. The revenue bonds come from a downtown tax increment financing district. Tax money collected in the TIF district stays in the district to bolster improvements. Some critics, including Nowacki, complained Gateway Partners was not investing any of its money in the project. Gateway Partners bought the iconic bank in February from EFN Gary Property LLC, headed by Edward Napleton, a local auto dealer who had owned it since 1999. ASBESTOS UPDATE: St. Louis Becoming Destination for Fibro Claims ---------------------------------------------------------------- Heather Isringhausen Gvillo, writing for Legal Newsline, reported that two asbestos attorneys discussed at a conference how St. Louis, Missouri, has grown in recent years as a more attractive asbestos jurisdiction. During the HarrisMartin Midwest Asbestos Conference in St. Louis, asbestos attorneys Lindsay Dibler and Melissa Crowe Schopfer discussed how the city is growing as an asbestos personal injury jurisdiction. The cases have nearly quadrupled in the last four years, with just 67 new asbestos cases filed in 2010 and 256 filed so far this year, said Dibler, a defense attorney with the Kurowski Shultz law firm, and Schopfer, a plaintiffs attorney with the Simmons Hanly Conroy law firm. In fact, there have been three asbestos cases that have gone to verdict already this year. Juries entered multimillion-dollar verdicts in favor of the claimants in two of the cases and a defense verdict in the last case. In the first case, Allan Whipple v. John Crane, Inc., the case was tried under Texas law and the jury awarded the claimant $7.25 million. However, John Crane was dismissed on Jan. 8 after only six percent of fault was attributed to the defendant. In the second case, Lawrence Foreman v. Sid Harvey Industries, Inc./Nibco, Inc., the jury awarded the plaintiff a total of $6 million on Feb. 10. Sid Harvey was tried under Maryland law and was found liable for $4 million. Nibco was tried under Missouri law and was found liable for $2 million. In the third case, Louis Dean Nichols v. Dow Chemical Co./BASF Corp., the case was tried under Texas law, and the jury ruled in favor of the defendants on March 11. Dibler and Schopfer said that as the St. Louis asbestos docket sees higher verdicts, foreign law can play a key role in these cases. Because foreign law can make or break a case, Schopfer said it's worth asking for a specific state's law to apply. "If you don't ask for it, the judge won't allow it," she said. However, Schopfer stressed that when requesting choice of law, a plaintiffs attorney must address why it will make a difference when a different law is applied. Dibler added that waivers are also considered in choice of law decisions, as co-defendants may choose to opt out of applying a specific state's law. "You can't force another defendant to be tried under another state's law if they don't want to be tried under another state's law," Dibler said. "They can waive that." Additionally, Dibler explained that St. Louis is seeing more filing recently because "it seems to give an out-of-state plaintiff sort of a better choice of venue than a Missouri resident." This is because Missouri residents have the venue determined based on their initial asbestos exposure. However, if the first exposure occurs outside of the state, a claimant may choose any county in Missouri that applies to the defendant. "A plaintiff is considered first injured where the trauma or exposure occurred rather than where symptoms are first manifested," Dibler and Schopfer wrote in their presentation. Dibler also said the state's statute of limitations law is a contributing factor in making St. Louis a favorable docket. According to Missouri law, product liability actions have a statute of limitations of five years and wrongful death actions have a statute of limitations of three years. On the other hand, in Illinois for example, the statute of limitations for asbestos cases in general is two years from when the claimant knew or should have known of the asbestos-related disease. Because most claimants aren't local, Dibler reminded plaintiffs attorneys that if they are going to claim statute of limitations as an issue, they must make sure to indicate that it applies. The two concluded by comparing St. Louis' growing asbestos docket to its popular neighboring asbestos docket in Madison County, Ill. They agreed the St. Louis City court is stricter. In fact, the city typically follows protocol and schedules by the book in regards to motion practice, deposition procedures and scheduling orders, among others. St Louis also has a different approach to assigning judges for trial than the Madison County jurisdiction. In Madison County's clogged asbestos docket, Circuit Judge Stephen Stobbs presides over all asbestos cases from start to finish. St. Louis, on the other hand, doesn't assign a judge until just before trial. In the meantime, motion judges take care of pre-trial litigation, which helps make the docket more attractive, they said. ASBESTOS UPDATE: Judge Critical of Summary Judgment Arguments ------------------------------------------------------------- Heather Isringhausen Gvillo, writing for Legal Newsline, reported that a Missouri federal judge has ruled that no case law and only one paragraph supporting a defendant's argument for summary judgment is not sufficient to win summary judgment in an asbestos lawsuit. Judge Greg Kays filed the order denying the motion for summary judgment on Sept. 12 in the United States District Court for the Western District of Missouri. Plaintiffs John and Beth New filed a four-count asbestos suit in Jackson County, Mo., state court, before defendant Ford Motor Company removed the case to district court alleging diversity jurisdiction. They allege John developed lung cancer after being exposed to asbestos while working at various automobile parts and repair shops throughout Kansas and Missouri. Defendant Hennessy Industries requested summary judgment under Missouri law in November. Subsequently, defendant Federal Mogul Asbestos Personal Injury Trust also moved for summary judgment under Kansas law. The News failed to respond to Federal-Mogul's arguments. Although both defendants requested summary judgment, Kays only addressed Hennessy's motion in his order, denying the request for now. Because each defendant argued for the application of two separate laws, the court requested supplemental briefing. However, Kays held that the parties' supplemental briefing lacked sufficient legal authority and arguments for the court to effectively decide Hennessy's motion for summary judgment. He added that he cannot determine whether a conflict exists between Missouri and Kansas law on the various liability issues raised in Hennessy's motions, and "if a conflict does exist, how Missouri courts would apply its choice-of-law principles to determine what state has the most significant relationship to this asbestos- related personal injury suit." Kays explained that the parties only make general citations to overarching principles from Missouri case law without providing any discussion or citation of other cases to support their positions. In fact, neither party provided more than a paragraph discussion supporting their opposing positions in regards to the issue of whether a conflict exists. Furthermore, when addressing the significant relationship analysis, the parties merely cite the restatement factors without providing any case law or comments on how the factors apply to this case. "These issues are somewhat complex and nuanced, thus requiring more in-depth legal analysis," Kays said. In addition to Hennessy's arguments in the supplemental brief, the defendant expanded its summary judgment argument by also claiming summary judgment is proper under Kansas law. Kays stated that it was inappropriate to raise this argument for the first time in the supplemental brief, because it denied plaintiffs the opportunity to respond to the new argument. Kays wrote that because there are numerous other defendants involved in the suit that could be impacted by the court's choice-of-law analysis, it is hesitant to just apply Missouri law, assuming it is constitutionally permissible. "Given the importance of this decision, the court requires more thorough and legally supported discussion form Hennessy and plaintiffs before ruling upon the merits of Hennessy's motion," Kays wrote. He added that when the parties thoroughly develop their arguments for summary judgment, they should cite cases relying upon authority from courts interpreting Missouri law as well as "persuasive, on-point" authority from other jurisdictions. Because of what he called insufficient arguments, Kays concluded that "the best course of action" is to deny the summary judgment request and allow Hennessy to refile its supplemental brief. "This will afford the parties sufficient time to more thoroughly research and analyze the potential choice-of-law issue, while also providing plaintiffs the opportunity to respond to arguments advanced in Hennessy's most recent filing," he wrote. ASBESTOS UPDATE: Fibro Removal Clears Way for Use of Fire Hall -------------------------------------------------------------- The Daily Townsman reported that the old fire hall in the city of Cranbook, in British Columbia, Canada, has been cleared of asbestos and is ready for a tenant to take it over. "The asbestos at the fire hall has been dealt with," CAO Wayne Staudt said at the Sept. 15 council meeting. "So we have got a report from the consultant firm that oversaw the work." Staudt said that meant the building is now ready for any kind of construction work or a tenant. While a Memorandum of Understand has been signed between the City of Cranbrook and the Cranbrook and District Arts Council, CAO Wayne Staudt confirmed that there are still "no definite plans for any group to move into the old fire hall at this time." At the end of August the city received a project closure report from Peak Environment Ltd, the professional consultant hired to oversee the project including the monitoring and inspecting services. Peak Environment Ltd has certified that the building can be reoccupied without concerns regarding possible asbestos exposure. Napp Enterprises was selected to perform the removal of hazardous and regulated materials. The work was performed in accordance with WorkSafe BC's Occupational Health and Safety Regulations regarding asbestos and other hazardous materials. The project is reported to be coming in under budget, with the project expected to come in at $110,000. The initial budget was $130,000. ASBESTOS UPDATE: Work Violations Released Fibro Into Apartment -------------------------------------------------------------- CBS Denver reported that Steve and Kim Weiner in Denver, Colorado, are so afraid of the health conditions in their apartment they won't even let family help them move out. "They want to come in and help pack. And I don't want anybody to help us pack," Kim Weiner said. They're moving because asbestos particles and fibers went airborne recently when construction workers removed paneling on windows at various points in the building. "As they pulled that fiberboard off, they damaged that material and potentially released asbestos fibers," Bill Benerman of the Denver Department of Environmental Health said. Dangerous levels of asbestos, which can cause cancer, were found at several points in the building. Health officials said contamination is limited to just a few units, but many residents have said the managers' handling of the situation has been enough for them to leave. The building, located at 330 Acoma St. in the Baker neighborhood, is owned by Maxx Properties. The company did not return CBS4's calls for comment. It's unclear if the company or its contractor is to blame. Witnesses say construction workers were not wearing protective gear. The Denver Health Department issued a cease and desist order on the construction after review indicated dozens of violations where corners were cut. One of the biggest violations happened when regulators were never approached about permits to remove asbestos. An investigation is underway to determine fault. Health officials are investigating what fines may apply. A dumpster containing the asbestos near the building has been sealed. The Weiners said they plan to sue for negligence. "Asbestos, I know, affects people years down the road," Kim Weiner said. "We may not be around, but there are a lot of children that live in this building. There's young adults in this building." ASBESTOS UPDATE: Fibro Compensation Crisis Facing Town Halls ------------------------------------------------------------ Dan Thompson, writing for Manchester Evening, reported that town hall bosses throughout Greater Manchester, England, are facing a 'ticking timebomb' of mounting claims from people struck down with conditions linked to deadly asbestos. Manchester council paid out almost GBP600,000 in damages to victims in the last year alone, an M.E.N. investigation has found. The 2013/14 claims had to be settled using taxpayers' money, rather than through insurance as the cases predated the 1980s when the council did not have asbestos cover. Figures obtained under Freedom of Information requests reveal victims of asbestos-related diseases have won a total of GBP1.8m in damages from councils in Greater Manchester in recent years. Campaigners believe payments are likely to soar over the coming decade as more people fall ill and die after being exposed to the material. ASBESTOS UPDATE: Watchdog Faults EPA on Failed Fibro Tests ---------------------------------------------------------- Timothy Cama, writing for The Hill, reported that the Environmental Protection Agency's internal watchdog criticized it for mismanaging tests on methods for demolishing buildings with asbestos. The EPA conducted research between 1999 and 2011 on alternatives to the federally regulated process for demolishing the buildings and allowed some tests in Fort Worth, Texas, from 2006 to 2007. The Office of Inspector General found in a report that the EPA spent $3.5 million on the program, only to conclude that it did not work as well as the traditional methods. The watchdog concluded that EPA officials "did not conduct the research under a controlled and defined agency process that would have ensured consensus and oversight," disregarded guidance and allowed violations of environmental laws. It also failed to provide good data and results from the testing and put the public at potential risk of exposure to asbestos, which is considered toxic if inhaled. Investigators did not find any documented health problems that resulted. The inspector general said the EPA should learn from the experience and require better oversight of research processes and costs. In a statement, the EPA said it concurred with the report. "EPA has made significant changes to its research planning process to require that all research includes oversight procedures and input from senior managers," EPA spokeswoman Laura Allen said in a statement. "In response, EPA has also taken numerous steps to ensure the safety and health of its employees and contractors, including updating its health and safety procedures and training for research staff," she said. ASBESTOS UPDATE: VA Director Responds to Fibro Investigation ------------------------------------------------------------ WLOS.com reported that four months ago, workers at Charles George Veteran Affairs Medical Center, in North Carolina, came to News 13 out of concern for their safety. The medical center's director agreed to speak with investigative reporter Mike Mason about what he uncovered. OSHA investigated how VA officials handled asbestos issues at the hospital and whether workers were being exposed. Just moments ago, we learned OSHA has launched a second investigation into we uncovered, this time they're taking a close look at an asbestos contractor who worked at the VA. The Charles George VA Medical Center's Director says she wants to set the record straight, "I would like to reassure the public, the staff and all of our veterans that this hospital is safe." A News 13 investigation found damaged asbestos throughout the VA's sub-basement and workers say it has been there for decades. An OSHA complaint filed in January of last year alleged: "Workers were exposed to asbestos." In a letter sent to OSHA, VA director Cynthia Breyfogle responded to those allegations; writing; 'all debris was removed by May of 2013'. Breyfogle also tells us, "Since January of 2010 we've done one thousand and nine separate tests on the air and they've all come back clear." We asked Breyfogle about that OSHA complaint and why she reported there was "no asbestos debris" in the sub-basement when the VA inspected it. News 13 found just six months afterwards, a private contractor discovered damaged asbestos in many areas and highlighted them on a map. Breyfogle responded, "My assumption would be that it was not damaged at the time of inspection, as Mr. Cornell explained; water damage, leaks would cause asbestos. So that's why we do it every six months." Robert Cornell is the VA's Chief of Facilities and admits, "We still have asbestos in our medical center." Cornell says none of that asbestos is considered 'friable' or easily made airborne. This past June, the VA found more asbestos in the sub-basement including damaged piping which created piles of debris around two air handlers. Cornell says that potential hazard was cleared, "Those air samples came back negative as well." News 13's investigative reporter Mike Mason then questioned Cornell whether it's effective to conduct air testing when the dust has already settled, "That's when the debris is just sitting there. It would have to be moved or shifted around, stirred up. I think that's part of the concern." Cornell replied, "But that's kind of why we restrict the access if, and when, we do find something like that. To prevent anyone from stirring anything up." Mason pressed Cornell saying, "Okay, but when this debris is falling from the pipes on to the ground it's becoming airborne. It's disturbed." Cornell replied, "Potentially, yeah." Cornell tells us he simply informs workers not to touch asbestos. One current VA worker says that's not so easy, showing us a photo he took this past June of crumbling pipes in the sub-basement. We showed that photo to Cornell and asked, "Is this acceptable?" Cornell admitted, "No, we would come along and clean that up as well." Breyfogle says she depends on her employees and wants them to know their health along with their jobs are both safe at the VA, "If you see anything about to harm a patient, harm yourself or your co-workers; part of your job is to speak up." VA officials tell News 13 they're applying for federal funding to remove all remaining asbestos in the main building's sub-basement. News 13 requested OSHA's full report regarding their latest air tests at the Asheville VA. They say some of that info will have to wait until their new investigation is complete. ASBESTOS UPDATE: VFW Building Contains Toxic Dust ------------------------------------------------- Elise Kaplan, writing for Mountain View Telegraph, reported that the upset over the hasty demolition of the Veterans of Foreign Wars building in Mountainair, New Mexico, turned out to be well- founded as lab results returned in late July found "10 of 36 samples contained more than 1 percent asbestos (28 percent of the samples)." The upset over the hasty demolition of the Veterans of Foreign Wars building in Mountainair turned out to be well-founded as lab results returned in late July found "10 of 36 samples contained more than 1 percent asbestos (28 percent of the samples)." The contaminated materials included the floor tile, floor tile mastic, gray roofing tar, and the black mastic on the plaster and concrete. Mountainair resident Dan Embree alerted the Air Quality Control Board of the New Mexico Environmental Department on July 21 when he witnessed the demolition of the building and had doubts about whether the town had tested the materials for asbestos. He informed the Telegraph of the town's missteps after he received hundreds of pages of documents from an inspection of public records request asking for all documents pertaining to the matter. The saga started in early July when Romero's Heating and Cooling quoted the town a price of $9,907 for the demolition of the building -- including removal of the structure's roof, use of mechanical equipment to knock down the structure, removing and disposing of all construction debris, leveling the land, and filling the existing basement with adobe. Embree said as far as he can tell the basement has not been properly filled in. Romero began the demolition on July 19 but halted the job after a confrontation with Embree. Embree said according to Town Clerk Suzan Brazil Pablo Romero has not yet been paid for work he undertook. Romero did not return a call for comment. The NMED requires a property owner to file a National Emission Standards for Hazardous Air Pollutants notification alerting the department of their plans 10 days in advance of the demolition of a nonresidential building. A NESHAPS requires prior testing for asbestos, done by the property owner -- in this case the town of Mountainair. Following an inspection by an environmental specialist with NMED, the town received a complaint finding a "failure to thoroughly inspect the VFW Hall building prior to demolition" and "failure to provide to NMED a notice of intent to demolish the former VFW building." The NMED is still finalizing the investigation report, said Jim Winchester, the department's communications director, and the case will be referred to the Air Quality Bureau's Enforcement Section to determine enforcement action and any monetary penalties. At this time no enforcement action has been initiated, he added. On Sept. 9, the town paid Keers Environmental $34,890 for the removal of asbestos materials. This figure is about three-and-a- half times the amount they were going to pay Romero's for the debris removal. "In the end it hasn't cost them anything other than what it would have cost them in the beginning if they'd just done it properly," Embree said. ASBESTOS UPDATE: UO Moves to Correct Fibro Floor Tile Problems -------------------------------------------------------------- Around the O reported that a contractor for the University of Oregon will begin sealing floors in 59 faculty and staff offices in two campus buildings as part of a project that will prevent the release of asbestos fibers from worn floor tiles. The work follows inspections by state officials that turned up evidence of worn sealant on asbestos-containing floor tiles in the offices. Environmental testing has turned up no evidence of unhealthy conditions in the offices or buildings, and the amount of asbestos in the tiles is extremely low, less than 5 percent. But the sealant will ensure that no asbestos fibers are released or exposed due to wear and tear on the floors. The work is being conducted by a company that specializes in asbestos abatement. The offices are located in Prince Lucien Campbell and Lawrence halls. After this initial phase of work, another 102 offices in nine other buildings, where the problem is less urgent, also will receive additional sealant. The UO Department of Environmental Health and Safety was aware of the wear and was in the process of putting protective measures in place when the Oregon Occupational Health and Safety Administration received a complaint from a university employee about the floors. The state conducted tests and found no evidence of unhealthy conditions in the buildings, confirming tests done earlier by the university. But even though the state did not find evidence of unhealthy conditions, citations may be issued over possible shortcomings in the floor maintenance program. It's possible that the state will issue up to four citations -- two each for PLC and Lawrence halls -- that carry fines of $1,600 each. But the university isn't waiting to hear if it will be cited before addressing the concerns. Doug Brooke, associate director of environmental health and safety at the UO, stressed that testing has shown no one is in danger from the floor tiles, which are common in many older commercial and residential buildings. As soon as the university learned of the issue, it began doing air monitoring that showed that if any asbestos has been released it is well below the allowed exposure level. The air monitors detect any fibers in room air, but they don't distinguish between fibers from asbestos and those from paper, fabric or other sources. But Brooke said that even if all the fibers detected were from asbestos -- a highly unlikely result -- the amount still would be well below allowable limits. The wear is generally caused by chairs rolling over the floor tiles. The floors all had been waxed or otherwise sealed at one point, but office floors were only rewaxed upon request and some have lost most of their protective coating, Brooke said. Asbestos is only hazardous when it is broken up or becomes friable, which means it has become crumbly or brittle. Solid tiles pose little threat, Brooke said, but they must be sealed with wax or other coatings to ensure they don't shed fibers. The damage on office floors is limited to areas around chairs and other furniture, and the new sealant will be applied to those areas. Ultimately, it will be up to building managers or department heads to decide whether at some point to cover the tiles with carpet or replace them as a longer-term solution. In a smaller number of offices, about 15, small area rugs will have to removed and disposed of. The rugs concealed but did not prevent wear to the floors. Due to their location, the rugs may contain small amounts of asbestos fibers, which UO health and safety officials said are not harmful because they are not easily released from the rug. However, since removing asbestos fibers from the rugs cannot be guaranteed, the rugs will be thrown away out of an abundance of caution. Before that happens, the university will work with the owners to replace the rug or compensate them for the loss. The rugs will be disposed of according to state laws on asbestos abatement. Mike Eldredge, the UO's asbestos program manager, became aware of a potential problem in 2012 and addressed that with additional sealant on affected floors. That was only a temporary fix, and in fall 2013 Eldredge presented mitigation options to Gwynn Daniels, the UO's director of environmental health and safety, advising that further work was needed. Funding for the work was approved in 2014. A plan to fix the floors was under way when the complaint was received in May and the state began its investigation, which took about three months. That included air sampling, which showed any asbestos release was far below allowable limits. The environmental health and safety office is now working with campus operations to develop an improved floor maintenance plan. Asbestos abatement is a continuing project for the university, which spent more than $1 million on such work in the year prior to receiving the current complaint. The UO spent another $350,000 on abatement as part of the Earl Hall renovation project. ASBESTOS UPDATE: Toxic Dust Found in Longwood University -------------------------------------------------------- Victoria Walker, writing for The Rotunda, reported that the demolition of the Cunninghams in Longwood University, in Virgnia, has brought about many questions around campus, one being the asbestos insulation which is potentially hazardous. Asbestos is a natural mineral that was used quite frequently before more advanced forms of insulation became popular. Many people on campus worry about the danger of asbestos, but it is not as dangerous if it remains contained. "Asbestos is inert as long as it is not disturbed," said Longwood Emergency Response Team Captain, Corey Davis. "It basically becomes an aerosol, but as long as you're not dispersing the particles into the air, it can't get into your lungs and it's not going to hurt you." According to Davis, asbestos has no smell to it, but the particles get into your lungs and scar up the tissue if inhaled over a long period of time. "It is a fire resistant material that was used in fire fighter gear, gloves and other fire resistant objects up until the 70s," he added. "This shows that it has a more recent history than people may think." "There is no reason to worry about it, there is no impeding danger," said Davis. "If they were to take a sledge hammer to the wall that would disturb the particles, but as long as they are not standing there continuously breathing it in, it's not going to hurt them." "It wouldn't be detrimental if a building were to catch on fire," he added. "The fire fighters would have to take extra precautions but the bystanders who are a decent way from the building would not be in harms way." This is new information to most people because it is not visible, but asbestos insulation has been in buildings such as the Cunninghams and Tabb, the Athletics Building, for many years. "It isn't where people can touch it, there is an appropriate guideline being followed," said Capital Design & Construction, Project Manager, Kimberly Bass. "Also, every building on campus with asbestos is kept thoroughly on record in case of emergency." According to capital planning, it is difficult to get the asbestos out of the buildings on campus because it is closed in behind hard surfaces, such as plaster ceilings. This is why they don't take it out until it is time to do major renovations or demolition. Before moving forward with the demolition of the Cunninghams, proper abatement of the asbestos must occur. "Abatement is not a 100 percent affective process, there is a chance some particles will be released into the air but again that low of a quantity will not be harmful," said Davis. "It is important[that] people know the asbestos is not going to a landfill with demolition materials, it will go to a separate location to be buried," says Bass. According to Davis the replacement insulation will typically be a form of fiberglass insulation just like the kind found in your own house. "It is not as fire resistant, it can melt but it won't catch flame," he added. This process will take time but the extra precautions are necessary to ensure student safety. "Project abatement is set for Sept. 29, 2014, this starts the entire process," said Capital Planning Trades Manager, Melvin Moore. "Demolition is set for completion on Dec. 31, 2014." ASBESTOS UPDATE: Welding Program Homeless During Fibro Testing -------------------------------------------------------------- Ilene Olson, writing for Powell Tribune, reported that hands-on instruction for welding students at Northwest College, in Wyoming, has been delayed, pending the results of air-quality testing in the Oliver Building, which houses the welding program. Follow-up testing was ordered after traces of asbestos fibers were found on surfaces in the facility. NWC President Stefani Hicswa said a roof replacement project on the building (the third of three roofing projects on campus) wasn't completed before the beginning of the school year. While that work was underway, the college moved instruction-only welding classes to other rooms on campus, and delayed hands-on welding labs pending a return to the Oliver Building, which has been temporarily closed. Because pounding during the roofing project caused a lot of dust to fall, "we contracted with Northern Industrial Hygiene Inc. to conduct air sampling tests and sampling of the particulate on horizontal surfaces in the facility," Hicswa wrote in a campus- wide email. "We were being proactive to see if there were any health concerns as a result of all that dust," she said. The air sample results showed no hazardous materials in the air, but traces of asbestos were found in samples from horizontal surfaces, Hicswa said. "Therefore, we requested that Northern Industrial Hygiene conduct additional testing," she wrote in the email. Hicswa said she expects results soon, and those results will determine the college's next steps. She said she hopes the new testing shows the problem was temporary, allowing the welding program to return to the Oliver Building. "Best-case scenario, the tests will come back with low levels," she said. If asbestos problems persist, other solutions will have to be found. "Will a temporary facility be needed? I hope not," she said. ASBESTOS UPDATE: More Work Needed in Litigating Fibro Cases ----------------------------------------------------------- Legal Newsline reported that since asbestos cases have found their way back into federal courts across the nation, attorneys from both sides of the asbestos litigation field have agreed that litigating in district courts is nothing to be afraid of. As part of the HarrisMartin Midwest Asbestos Conference in St. Louis, U.S. District Judge Stephen C. Williams was joined by asbestos attorneys Allyson Romani and Anita Kidd to discuss the growing number of asbestos cases being removed to federal court, specifically the U.S. District Court for the Southern District of Illinois. Romani explained that when plaintiffs attorneys first get asbestos cases removed to federal court, panic sets in. Or, as Kidd put it, litigating before a federal judge can be "nerve-racking" compared to state court. However, the two addressed those fears, saying the extra work and strict guidelines can actually be beneficial. "Federal court is not a place to be scared of," she said. Because litigating asbestos cases in federal court is significantly different than litigating in state court, the group addressed factors that must be considered when a case is removed to district court. The most noticeable difference between federal court and state court is the extra work and stricter schedules in federal court. Romani, a plaintiff attorney with Shrader & Associates, explained that while plaintiffs attorneys are used to the expedited cases in state court, specifically Madison County, Ill., there is "much more" work needed in federal court. She advised attorneys to communicate before getting involved in court and to be "overly inclusive." Kidd agreed, explaining that federal cases have to be "worked up." "Don't wait until just before trial to get your ducks in a row. You need to get your ducks in a row as the case progresses," said Kidd, a defense attorney with the Armstrong Teasdale law firm. In fact, Romani suggested decreasing the number of defendants named in an asbestos suit as soon as the case is removed, because parties "do not want to be litigating these cases with 90 defendants. If someone doesn't need to be there, get rid of them." Williams also stressed the federal court's push for settlements in asbestos cases when a lengthy and costly trial can be avoided. "We obviously can't try every case," he said. ASBESTOS UPDATE: Fibro Hikes Prices to Demolish Downtown Icon ------------------------------------------------------------- Vindy.com reported that additional asbestos found inside boilers at the former Wean United complex, in Youngstown, Ohio, caused a 25-percent increase in a contract the city has with a company to remove the hazardous material and clean contaminated soil at the downtown location. The board of control approved the $72,450 change-order increase to the original $288,159 proposal from Environmental Management Specialists, the Cleveland company doing the work. That brought the project's total cost to $360,639. Asbestos-filled fireproofing materials found inside boilers at the facility's former boiler house caused the increase, said Charles Shasho, deputy director of the city's public works department. "It's a little more pricey because of the increased labor involved in the removal," he said. "It became a more time-consuming job." That work is ongoing, Shasho said. Also, the city still has to seek proposals from companies to remove the concrete slabs of the 300,000-square-feet of buildings that used to house Wean United. The estimated cost of that work hasn't been determined, but it will be more than the asbestos remediation and soil cleaning, Shasho said. ASBESTOS UPDATE: Calif. Schools Suspend Fibro Removal Effort ------------------------------------------------------------ CBS Los Angeles reported that school officials in Huntington Beach, California, have halted an asbestos abatement project after hearing complaints from parents and a vocal school board member. KNX 1070's Mike Landa reports the modernization program at 11 schools in the Ocean View School District (OVSD) includes a district-wide effort to remove asbestos from the campuses. School board member John Briscoe filed an official complaint with CAL/OSHA for possible asbestos handling violations citing what he calls evidence of ceiling tiles being "disturbed, moved, removed and even missing" during the modernization effort, which includes restroom renovations, fire alarm upgrades, and roofing work. According to the school district's website, OVSD began the multi- million-dollar project in July on all of its campuses: Circle View, College View, Golden View, Hope View, Lake View, Mesa View, Oak View, Spring View, Star View, Sun View, and Vista View. A notice posted on the OVSD website states the following: "As of September 17, 2014 Asbestos Abatement has been put on hold at ALL sites until further notice." The notice also states the district has inspected each campus "regularly as required to be sure that the remaining [asbestos containing materials] is not disturbed." Briscoe said he's outraged because a project that was supposed to be completed in the summer before kids were in class is continuing into late September. "Our district administration and the contractor decided to do asbestos abatement in the middle of the day, with kids walking around and parents walking around," he said. "Supposedly all safe, but still it's certainly tone-deaf and insensitive in my opinion." The issue is expected to be discussed at the next school board meeting on Oct. 7. ASBESTOS UPDATE: Fibro Contributed to Newquay Man's Death --------------------------------------------------------- Cornish Guardian reported that a man from Newquay, in England, died from a combination of natural causes and industrial disease related to asbestos exposure, an inquest heard. Norman Andrew Grimshaw, 65, died at the Royal Cornwall Hospital, Treliske, on September 4 last year. An inquest at Truro Coroner's Court heard how Mr Grimshaw studied carpentry in Manchester, before starting work at George Hill wood merchants in Oldham, where he worked for around five years. In a statement from Mr Grimshaw's sister, Susan Shaw, who did not attend the inquest, she said: "[My brother worked] in a wood machinery environment, which would have involved cutting wood to size. He never wore a dust mask or protective clothing. Part of his duties probably involved cutting asbestos sheets; the by- products would have been asbestos dust. The statement continued: "Workers at the merchants used to make snowballs of it and throw it at each other. When he came home his clothes were covered in dust." Mr Grimshaw moved to Newquay at the age of 22, where he worked as a kitchen porter in various hotels. A report from his GP Dr Ingall, from Narrowcliffe Surgery in Newquay, said Mr Grimshaw had been suffering from "a long list of health problems," including type 2 diabetes, which was exacerbated by him being overweight. He had suffered a stroke in 2011, and was later admitted to hospital with acute bronchitis. Dr Ingall's statement said: "Mr Grimshaw was treated with oxygen, steroids and antibiotics, and he improved quite well." But after returning to his home, a bedsit with a downstairs kitchen, Mr Grimshaw, who was described as being "very disabled," became depressed. The inquest heard how, on the night of August 25, he took an overdose of 90 codeine tablets, but after waking up in the early hours of the next day he regretted his actions and dialled 999. However, assistant coroner for Cornwall, Andrew Cox, ruled out codeine as a factor of his death after hearing evidence from pathologist Dr Juliane Stolte. "He was admitted to hospital on August 21 and died in September so there was a long time in-between. If he had died from codeine toxicity it would have been much quicker than that," she said. During the post-mortem, Dr Stolte found that both of Mr Grimshaw's lungs showed severe fibrosis - an asbestos related disease -- as well as generalised cardiovascular disease. "I was convinced there were sufficient asbestos bodies to satisfy that asbestos had an effect on the severe pulmonary fibrosis," she said. But Dr Ian Coutts, a consultant respiratory physician, said he did not believe that asbestos exposure had caused Mr Grishaw's death. He said: "I saw this man in life. He did some, but not a lot of work in the building trade. He described himself as a chef, though he did work in the timber trade with Asbestolux, which is an asbestos cement product. That stuff gets sawn and drilled on and releases asbestos. He'd have been exposed during that work, but to get pulmonary fibrosis is unlikely from this tiny bit of exposure he had. "This man's exposure was not of the order one would expect to develop pulmonary fibrosis. I don't know what caused it but I personally believe that it was not asbestos," he added. Assistant coroner for Cornwall, Andrew Cox, said: "The cause of Mr Grimshaw's death was respiratory failure due to idiopathic pulmonary fibrosis, but I can't ignore the findings of Dr Stolte in the post-mortem which showed there was asbestos exposure. "Mr Grimshaw has died as a result of a combination of natural causes and industrial disease," he said. ASBESTOS UPDATE: Stonington Woman Survives Fibro Cancer ------------------------------------------------------- Judy Benson, writing for The Day, reported that for most of her life, Lisa Rolfe, of Stonington, Connecticut, had never been enticed by the notion of getting a tattoo, nor had her husband, Brian, or their daughters Lindsay and Margaret. But one day last April, all four of them entered a Groton tattoo parlor to have matching messages inked onto their bodies: "Run to the roar," to commemorate their common triumph. Wearing a sleeveless shirt so she could easily show the stripe of words across her inner upper arm, Rolfe said that the phrase, introduced to her by a health care worker, encapsulates the incredible series of events that began two years ago, and helped her and her family face their fears and get through the most difficult parts. Her daughters, now 17 and 22, had the message printed on T-shirts they sold at school to raise money for cancer research and, in the process, help themselves cope with what their mother was enduring. "I'll be 17 months cancer free, and I'll be starting to volunteer at Dana-Farber in Waterford in October," said Rolfe, 48, referring to Lawrence + Memorial Hospital's Cancer Center, an affiliate of the Dana-Farber Cancer Institute in Boston. "You don't go through something like this and come out as the same person. I don't have a lot of stamina, and there won't be any more running, but my family and I celebrate every day." Her odyssey conquering one of the most difficult forms of cancer, mesothelioma, is still bringing her new experiences. She and Lindsay will be in Philadelphia to mark as Mesothelioma Awareness Day by attending the Regional Conference on Mesothelioma, perhaps showing their tattoos and sharing their family's inspirational story with others touched by the disease. In Connecticut, the mesothelioma rate was 2.26 cases per 100,000 residents from 2007 to 2011, according to the state Department of Public Health. Caused when asbestos fibers become airborne, are inhaled and get imbedded in the lungs, this relatively rare cancer is more prevalent in southeastern Connecticut than other parts of the state because of workers exposed at some the region's industries that used asbestos, an effective flame retardant. "People still don't take asbestos seriously," said Rolfe, whose father worked with asbestos gloves and asbestos-lined ovens as part of his job as a chemist. "They'll just rip it out of old buildings and put it in garbage bags, but it's not safe to breathe it or touch it. A one-time exposure is enough." While training to run a marathon two years ago, Rolfe started experiencing shortness of breath, a persistent cough and back pain on her left side. Doctors first thought she had a bad case of bronchitis, but when antibiotics didn't cure her, she knew the diagnosis was wrong. A chest X-ray revealed three large tumors outside of her left lung. "I was an athlete, a runner," Rolfe said. "We never expected what was about to hit us." Immediately after learning about the tumors, Rolfe sought out specialty care with pulmonologists in Boston, who diagnosed her with mesothelioma. The typical patient, she noted, is a 70-year- old man who worked with the fibers for decades before retiring. But second-hand exposure to asbestos, she learned, can also cause the illness in wives and other family members. "It was my job as a kid to do the laundry," Rolfe recalled. "My father was bringing it home on his clothes. They call us 'daughters of the dust.'" In a Boston hospital, surgeons removed two of her ribs and the pleura - a membrane that surrounds the lungs - to remove the tumors. They then injected a chemotherapy bath into her entire chest cavity to kill any cancer cells. She remained in the thoracic intensive care unit for eight days, then stayed in an apartment near the hospital for several weeks during her recovery and follow-up treatments. "It's an aggressive, aggressive surgery, and some people don't even make it," Rolfe said. "I only weighed 92 pounds when it was done, and then I had to build myself back up." Her healing, she said, has been helped along by the outpouring of cards, gifts and messages of concern from the community, along with acupuncture and healing touch treatments. A basket on a table in the entrance to her home is filled with dozens of get-well cards, a collection she treasures and has reread many times. "You'd be surprised what you can conquer when you get a little braver," she said. "My message to people who have cancer is to never give up. Cancer is big, but it can be beaten." Rolfe has also become well versed in the story of asbestos, its widespread use in wrapping for pipes, tiles, siding on homes and other products, and the court-ordered funds set up by the now- bankrupt manufacturers. Too many people have become complacent about the danger of asbestos still lurking in basements and utility rooms, she said, recounting how a friend's son had a summer job cleaning schools and was told to enter a building without protective gear. "There's no safe level of exposure," she said. "The only thing I did was take a breath one day." ASBESTOS UPDATE: Toxic Dust Leads to Abingdon Man's Death --------------------------------------------------------- The Oxford Times reported that a man who worked in Abingdon's MG factory, in England, died because of asbestos he inhaled during his employment, his inquest found. Kenneth Kerby, 68, died at his home in Bath Street, Abingdon, on July 19. His inquest, at Oxfordshire Coroner's Court, heard he left school at 16 and in 1961 started working at the MG factory as a mechanic. In a statement Mr Kerby prepared with his lawyer before his death, he said he was exposed to asbestos dust from brake linings. He left the factory in 1964 and spent 30 years as a self-employed decorator. Mr Kerby's GP, Dr Katharina Winkel, said he was diagnosed with mesothelioma -- a type of cancer that can develop in the tissues covering the lungs or the abdomen -- in January 2013 after experiencing shortness of breath. Assistant coroner Nicholas Graham said: "In this case I will draw a conclusion of industrial disease. He was exposed to asbestos during his work life and died of mesothelioma." ASBESTOS UPDATE: Ohio Lawsuits Booted for Lack of Jurisdiction -------------------------------------------------------------- Khadijah M. Britton, writing for Law360, reported that a Pennsylvania federal judge overseeing multidistrict asbestos litigation brought by merchant marines ended 225 of their suits in a decision, saying it lacked jurisdiction over the defendant companies because they had never shipped in Ohio, where the suits were brought. U.S. District Judge Eduardo C. Robreno agreed with the companies that they were improperly joined in the suit outside of their appropriate jurisdictions, and thus the plaintiffs' claims could not proceed. In its one-page order, the court granted defendants' motions to dismiss without providing new reasoning, instead relying on its holdings in two previous decisions, August 2013's Bartel, where it granted 418 motions to dismiss for lack of personal jurisdiction, and March's Jacobs, where it granted 5,974 such motions, along with its own April order. "We are pleased Judge Robreno extended his personal jurisdiction finding to similar cases involving similar issues," defendants' counsel Harold Henderson of Thompson Hine LLP told Law360. In both of the referenced cases, the court said the seamen failed to show that the court could exercise personal jurisdiction over the defendants or that they had not timely asserted or had waived their personal jurisdiction defense. In Bartel, Judge Robreno said the court did not have personal jurisdiction over any of the defendants, whose only Ohio contacts, if any, were unrelated to the plaintiffs' injuries, because Ohio does not recognize general jurisdiction. In Jacobs, Judge Robreno held, "Because the plaintiffs' complaints did not make jurisdictional allegations about any of the shipowner defendants' specific activities that allegedly caused injury to the plaintiffs, this court found that there was no personal jurisdiction over the defendants." The plaintiffs in Bartel and Jacobs argued that the shipowner defendants waived their right to raise the defense of lack of personal jurisdiction through statements they made in the 1980s and '90s, but the court found the defendants did not waive that defense because they consistently raised it throughout the litigation, and did not participate in the litigation of their own volition. Before Jacobs, the plaintiffs submitted further evidence they said proved the waiver, but Judge Robreno said, "the court is not persuaded that these exhibits show by a preponderance of the evidence a universal waiver by all defendants, in all cases, in perpetuity." About 60,000 cases and 3.5 million asbestos claims were transferred to the Eastern District of Pennsylvania starting in 1991. The list of defendants in the sprawling multidistrict litigation includes companies as diverse as General Electric Co., 3M Co., General Motors Corp., DuPont Co. and Sears Roebuck & Co. The massive MDL, which is the longest-running mass tort in U.S. history, has frequently ended in settlements and other dismissals of the individual cases involved. Plaintiff's counsel John D. Herrick of Motley Rice LLC told Law360 that Judge Robreno told the parties he plans to suggest remand to the Multidistrict Litigation Panel for about 250 of the seamen's cases to the Northern District of Ohio through an intercircuit transfer, which would be the MDL's largest remand ever. Judge Robreno said he plans to stay involved in the administration of the case, which he expects will be set for trial in January 2015. The plaintiffs are represented by John E. Herrick and John D. Hurst of Motley Rice LLC. The defendants are represented by Harold W. Henderson, Richard C. Binzley and Susan K. Dirks of Thompson Hine LLP. The case is In re: Asbestos Products Liability Litigation (No. VI), case number 2:02-md-00875, in the U.S. District Court for the Eastern District of Pennsylvania. ASBESTOS UPDATE: Fibro Delays Dracut Old Town Hall Razing --------------------------------------------------------- John Collins, writing for Lowell Sun, reported that the discovery of several asbestos "hotspots" under the slate roofing of Old Town Hall, in Dracut, Massachusetts, has caused the demolition of the 130-year-old building to be indefinitely postponed, Town Clerk Kathy Graham said. Old Town Hall, which was constructed in 1883 as a two-room schoolhouse prior to being expanded, renovated and utilized as the center of town government for about a century, was scheduled to be torn down. But while stripping the building's piping and interior to prepare it for the destruction, New Hampshire Demolition Co. employees found asbestos "under the old slate roofing," Graham said. It may be up to the Massachusetts Department of Environmental Protection or other state officials to determine when the Old Dracut Town Hall is cleared for demolition, Graham said. If a building containing asbestos is torn down, the town could become liable for any materials that end up at a landfill, Graham noted. The $9.3 million new Dracut Town Hall, which was erected immediately in back of the older building at 62 Arlington St., opened for business earlier in September. ASBESTOS UPDATE: Tex. Ruling Not Gaining Traction in Other Courts ----------------------------------------------------------------- Heather Isringhausen Gvillo, writing for Legal Newsline, reported that a Texas defense attorney recently said that as asbestos litigation changes, the laws governing legal causation must also change -- and the recent Bostic decision from the Texas Supreme Court is a prime example of that change despite the fact that it is not having a nationwide impact yet. Attorney Kenneth Rhodes of the Gray Reed & McGraw law firm was joined by plaintiff attorney J. Kyle Beale of the Karst & von Oiste law firm at the HarrisMartin Midwest Asbestos Litigation Conference in St. Louis on Sept. 18 to discuss the recent Bostic decision and causation trends. In Bostic, Texas Supreme Court showed that proving causation would not be taken lightly in the state's asbestos cases. According to Bostic, which was decided on July 11, the court concluded that offering evidence of exposure regarding a dose- related disease alone should not imply automatic liability for asbestos claimants. Rather, plaintiffs must satisfy causation standards for their allegations to survive. The Bostic court held that the every exposure theory negates the plaintiff's burden to prove causation by a preponderance of evidence because it accepts that the failure to find a safe dose means every exposure causes the illness, even background exposure. "If any exposure at all were sufficient to cause mesothelioma, everyone would suffer from it or at least be at risk of contracting the disease," the court stated. The Bostic court held that when proving evidence of causation, the plaintiff's expert testimony of causation must be scientifically reliable and must include epidemiological studies showing the product more than doubled the plaintiff's risk of injury. "An expert's testimony that brings no more than 'his credentials and a subjective opinion' will not support a judgment," the court held. Rhodes and Beale also discussed the Flores decision as it relates to the Bostic decision. In Flores, Borg Warner and three other defendants went to jury trial in a brake mechanic's asbestos case, where a Texas jury ruled in favor of the claimant. However, the state Supreme Court concluded that the evidence provided was legally insufficient to establish causation, thus rejecting the "every exposure" theory. As a result, the state Supreme Court ruled that substantial factor is required to establish causation in Texas. Beale said the "bar was set pretty high" when the court determined that plaintiffs were required to provide defendant-specific dose, aggregate dose and respirable fibers sufficient to cause the disease. As a result of the Bostic and Flores decisions, Beale warned plaintiffs attorneys present at the conference to get their cases "tied" before taking them to trial if the claimant has any Texas exposures. "In Texas," he said, "if you get to verdict -- based on the landscape now with the court of appeals -- even if you get there, you may not get to keep it." Rhodes added that the Court of Appeals has lost its trust in the jury to get decisions right, because the state Supreme Court has ruled against the jury's decisions in both the Flores and Bostic decisions. The question, Rhodes asked, is whether these decisions will gain traction in other asbestos jurisdictions across the country. It doesn't look like it. In fact, his response to that question was, "absolutely not happening." More specifically, the Flores decision has been cited in 38 opinions nationwide, 25 of which were in Texas, he said. Since its conclusion in July, the Bostic decision has been cited in four opinions nationwide. Together with Texas' Stephens decision, the cases have been cited 21 times in foreign jurisdictions, and there doesn't appear to be a trend as rulings are split down the middle. Texas law was applied in 11 courts and rejected in 10 courts. While it appears the Flores and Bostic decisions requiring strict causation standards will not become the norm anytime soon, Rhodes noted that courts are still rejecting the "every exposure" theory as sufficient causation evidence. Jurisdictions rejecting the Flores decision are instead adopting the Lohrmann test, which is viewed as a reasonable middle ground between the Bostic/Flores approach and the "every exposure" approach. Courts have found that the idea of "anything goes" is too relaxed and exposure allegations must be held to a higher standard. "This is a balancing test," Rhodes said of legal causation. "Every single case out there is a balancing of the plaintiff's right to recover and the defendant's liability." The Fourth Circuit Court of Appeals issued the Lohrmann ruling in 1986. As a result, plaintiffs were then required to show frequency, proximity and regularity of exposure. In other words, a plaintiff must be around the asbestos-containing product often enough and close enough to get sick. The Lohrmann standard may have been appropriate before the first wave of asbestos bankruptcies because the amphibole asbestos fibers were more potent and involved claimants who had lengthy, concentrated exposures. However, the standard is considered weak by Texas courts when assessing asbestos cases today, because most current exposure allegations include weaker exposures to less potent chrysotile asbestos fibers that were encapsulated inside metal products. Rhodes said the Bostic decision is an example that asbestos litigation has changed since traditional defendants sought bankruptcy protection. "I've been doing this for a long time," he said, "and it is a much bigger issue than 20 years ago." Rhodes explained that early in his career, he never once denied that a defendant's product caused the alleged asbestos-related injury in court, because the exposures were much more concentrated and it was clear that the claimant was exposed. "Product manufacturers did not challenge the ability of their products to create sufficient quantities of respirable asbestos fibers to cause mesothelioma," he stated in his presentation. However, asbestos litigation today has changed dramatically from the early years, because new claimants' exposures do not have the intensity or duration of those in the early years, he explained. "It's an apple and an orange as compared to exposures in the early years," Rhodes said of alleged asbestos exposures today. As a result, he added that courts today are "faced with the difficult task of re-defining legal causation." Rhodes said that because asbestos litigation is changing, the laws governing legal causation need to change with it. Beale also noted that the state Supreme Court did reject the "but for causation" standard in its Bostic ruling, which requires a plaintiff must prove that but for exposure to the defendant's product, the asbestos-related disease would not have manifested. The Bostic court held that proving "but for causation" can be humanly impossible, as it is difficult to establish which fibers from which defendant actually caused the injury. "This would have done away with asbestos litigation in Texas altogether, especially in multiple exposure cases," Beale said. "That would have been a high hurdle to jump." ASBESTOS UPDATE: Carmakers, Insurers Want Garlock Docs Unsealed --------------------------------------------------------------- Lisa Ryan, writing for Law360, reported that Ford Motor Co., Honeywell International, Volkswagen Group of America Inc. and a slew of insurers urged a North Carolina bankruptcy judge to reject a bid to seal aggregated estimations of past and pending mesothelioma claims against Garlock Sealing Technologies LLC, saying the information should be released to the public. The group, known as the Public Access Proponents, slammed a motion to seal records filed by the Official Committee of Asbestos Personal Injury Claimants in the Garlock case. ASBESTOS UPDATE: Deadly Dust Delays Strip Mall Demolition --------------------------------------------------------- Joseph Ruzich, writing for The Chicago Tribune, reported the demolition of a strip mall near 75th Street and Cass Avenue in Darien, Illinois, has been delayed to allow for asbestos removal work. The mall was owned by the City of Darien before being sold to a private developer for $1.2 million in June. Darien Pointe, LLC plans to put two new retail buildings on the site. Demolition of the strip mall had been scheduled for early September, but was delayed because of asbestos issues, according to Dan Gombac, director of municipal services. "They have to make sure all the asbestos is out of there," Gombac said. "He (the developer) is doing the asbestos report right now. It's taking a little longer than anticipated." Gombac said the developer is removing tile, piping and other materials that may contain asbestos. While most of the businesses have vacated the strip mall, Jim's Quality Meats will remain open. Gombac said the developer will demolish all but the meat market portion of the building and the business will move into the first new space available. Then the rest of the current mall will be razed. "We hate to put any business out of service for any given amount of time," Gombac said. "We are trying to do everything we can to help accommodate the business." An agreement with the city also states that the developer will contribute $50,000 for a small park site to be located just southwest of the strip mall. The city will pay an additional $163,055 to complete construction of the park. The park site will include a 30-foot triangular clock tower with a chime set, a water fountain feature, a drinking fountain and landscaping. It also will have a brick-paved courtyard, ornamental plants, park benches and natural stone accents. The city will maintain the park and will not transfer ownership to the park district. While all aldermen supported the idea of the park, some objected to the cost, which will come from the general fund. The project is expected to begin this year. ASBESTOS UPDATE: MDL Judge to Junk Cases With No Medical Reports ---------------------------------------------------------------- Marilyn Tennissen, writing for The Southeast Texas Record, reported that a Texas judge is ready to dismiss more than a 1,000 asbestos and silica cases for failing to have medical reports filed by a Sept. 1 deadline, but the plaintiffs' attorneys say that deadline is unconstitutional. Tort reforms enacted by the Texas Legislature in 2005 mandated that plaintiffs who said they were harmed by asbestos exposure submit a report showing that they have been diagnosed with a malignant asbestos-related cancer and that is was specifically asbestos exposure that caused their illness. The medical report must include a physical examination of the plaintiff and a detailed occupational, exposure, medical and smoking history. At the time the reform law was enacted, all pending litigation that didn't allege malignant asbestos was moved to an inactive docket until required reports were submitted. But the new law did not include a compliance date, so many cases have lingered for years. Last year, lawmakers passed House Bill 1325, which required all asbestos plaintiffs whose cases were pending in multidistrict pretrial court to file an expert medical report no later than Sept. 1, 2014, or face dismissal. Harris County Judge Joseph Halbach Jr. is faced with about 5,000 cases pending in Texas State Silica Products Liability Litigation multi-district pre-trial court that have not met the medical report deadline. Halbach notified plaintiffs' attorneys that he intends to dismiss their cases on Oct. 20. A group of attorneys representing about 1,000 plaintiffs is fighting the deadline, claiming the changes to Subsection 90.010 of the Texas Civil Procedures and Remedies Code are unconstitutional. In March, they filed a motion to stop enforcement of the statute, but Halbach rejected their argument in August. On Sept. 22, the plaintiffs submitted an appeal to the Texas Supreme Court to have the law declared unconstitutional. The plaintiffs' attorneys involved include Guy Fisher of Beaumont's Provost Umphrey Law Firm and Lance Bradley of McPherson Hughes Bradley Wimberley Steele & Chatelain in Port Arthur. The other attorneys are Mike Martin of Maloney Martin LLP in Houston, F. Scott Baldwin Jr. of Baldwin & Baldwin LLP in Marshall, D. Allen Hossley of Hossley Embry LLP in Tyler, Cory Itkin of Arnold & Itkin in Houston, James "Buddy" Bell of Corpus Christi, Geoff Henley of Henley & Henley PC in Dallas, Hector Gonzalez of San Antonio, Michael Lowenberg of Gardere Wynne Sewell LLP in Dallas, Russell Cook of The Cook Law Firm in Austin, Scott Hooper of Houston, Justin Shrader of Schrader & Associates LLP in Houston, Steven Kherkher of Williams Kherkher in Houston and Mark Goranson of Goranson King PLLC in Houston. Defendant companies named in the lawsuits include 3M, Baker Hughes, Amcol International, American Porcelain Enamel, Pulmosan Safety, Air Liquide, American Optical, Aearo Co., Reynolds Metals, A C and S Inc., Able Supply, Lone Star Industries, US Silica, Alamo Cement Co., Oglebay Norton, Clemtex Ltd., Moldex Metric, ACF Industries and Eastern Safety. In April after the plaintiffs attorneys filed their motion, Harvey Ferguson Jr. of the Defense Liaison Steering Committee wrote to the counsel that since they failed to provide or "make the effort to serve" a report that complies with Chapter 90, the defense will continue to oppose their motions. "It is our position that you cannot bypass the obligations of the statute or circumvent Defendants' opportunity to file objections specific to each plaintiff," he wrote. "We will seek dismissal of your constitutional challenge until each claimant has shown how the statute is allegedly unconstitutional when applied to his or her particular circumstances." TXSC Case No. 14-0757 ASBESTOS UPDATE: Toxic Dust Found in Autauga County Courthouse -------------------------------------------------------------- Marty Roney, writing for Montgomery Advertiser, reported that asbestos floor tiles have been found in an office being renovated in the Autauga County Courthouse, in Alabama. A warning sign listing the dangers of asbestos went up as crews worked to remove the tiles. One of the circuit clerk's offices is having old carpet removed when the tiles were discovered, said Steve Golsan, county administrator. "We didn't know the tiles were there," he said. "Our contractor informed us and another contractor who is licensed and specializes in asbestos removal was called in to properly remove and dispose of the tiles. All precautions are being taken to contain the asbestos. "There shouldn't be any health risks to employees working in the courthouse or the public coming and going in the courthouse." Pauline Webb, who had business in the courthouse, isn't so sure. "You hear asbestos, and it just startles you," she said. "I don't know why they didn't close the courthouse until this gets fixed." Work began removing the tiles about noon and the job was completed about 4 p.m., he said. The work area is on the first floor of the older portion of the courthouse, which was built in the early 1900s. An addition was added to the rear of the original building in the 1960's. Breathing in "high levels" of asbestos fibers over a period of time could lead to several forms of lung cancer and asbestosis, the scarring of the lungs, according to the Centers for Disease Control and Prevention's website. Asbestos was commonly used in the construction in older homes and buildings, according the Consumer Products Safety Commission's website. Those items included floor tiles, adhesives used on certain flooring products and insulating pipes. The best approach to handling asbestos that is in good condition is to leave it alone, the commission's website shows. There are likely more asbestos floor tiles in other offices in the older portion of the courthouse, Golsan said. "From what I understand as long as it it covered and in good shape, it's not a danger," he said. "We have carpets in the offices that are covering those tiles." ASBESTOS UPDATE: Quake Damage, Fibro Trap Mail at Post Office ------------------------------------------------------------- Jennifer Huffman, writing for Napa Valley Register, reported that the downtown post office building in Napa, California, remains closed for earthquake repairs, leaving some mail trapped inside the Franklin Street location because of quake damage and asbestos contamination. Mail belonging to customers who have P.O. boxes inside the older downtown building or those who had vacation holds on mail before the Aug. 24 temblor remains inaccessible, said U.S. Postal Service spokesperson Gus Ruiz. "The building is unsound," he said. "We can't get into it to retrieve that mail." In addition, "There is most likely asbestos in the interior of the Franklin Street post office. Even if we get in, we need to make sure everything is sanitized, including the mail. It has to be cleaned." Asbestos remediation experts will perform that process, he said. He did not know when that might happen or how much asbestos will be found. "We are gathering all that info from operations people as we speak," said Ruiz. "I'm waiting for an update from our structural engineers." Scaffolding had been erected at the damaged corners of the downtown post office building, a masonry building from the 1930s where walls cracked and holes appeared during the Aug. 24 earthquake. Workers were seen on site. Some bracing had been installed around the shifted columns of brick, but loose bricks had not been removed. The windows facing First Street remain shattered. Ruiz could not provide cost estimates on the amount of damage or when either post office building will reopen. Ruiz said he was unsure of how many P.O. boxes are inside the Franklin Street building or the number of residents that had requested vacation holds at the time of the quake. Mail to those P.O. boxes that arrived after Aug. 24 has since been rerouted to the postal annex across Randolph Street next to Billco's, he noted. Those with mail trapped at the downtown post office will receive a letter from the post office as soon as the pre-earthquake mail can be retrieved, he said. In the meantime, questions can be directed to postmaster Juliana Davison at the Trancas Street building. The Trancas Street post office, a more modern structure, was not as damaged as the Franklin Street location was, said Ruiz. It reopened late in September. There was some asbestos contamination in the building but it has been cleaned up and the mail was cleaned during that process, he said. Some internal postal operations have also been moved to a south Napa corporate park. ASBESTOS UPDATE: 75% of English, Welsh Schools Contaminated ----------------------------------------------------------- Sara Hunt, writing for Access-Legal, reported that a recent parliamentary report has estimated that three out of every four schools in England and Wales contain asbestos. In addition to this revelation, the House of Commons education committee has heard up to 300 former pupils die each year from exposure to asbestos. As a result, numerous organizations including the National Union of Teachers (NUT) have called for urgent action to ensure that all materials containing asbestos are removed from educational facilities as soon as possible. The report entitled Asbestos in schools: The need for action provides a comprehensive background to the problem stating that: 'Fourteen thousand schools were built after the Second World War and almost all those built before 1975 contain asbestos. Most of the other schools that were refurbished during this period also contain asbestos.' The report also identifies materials that cause the greatest concern when it comes to asbestos including lagging used on pipes and in boiler rooms and also areas where asbestos has been sprayed, such as ceilings and around structural beams. The report further highlights the fact that Britain has the highest Mesothelioma incidence in the world, at more than twice that of France, Germany or the USA. An HSE report concluded that this is because of the quantity and types of asbestos that Britain imported although all types of asbestos can cause Mesothelioma. In order to find a solution to the issue, the report calls for a phased removal of all materials containing asbestos. ASBESTOS UPDATE: Winchester Engineer's Cancer Linked to Fibro ------------------------------------------------------------- Southern Daily Echo reported that an engineer from Winchester, England, died of asbestos-related cancer but the coroner could not be sure it was caused by worktime exposure to the deadly material. Derek Boardman, 87, died in August of mesothelioma at home, an inquest heard. The hearing in Winchester heard that Mr Boardman, of Birch Close, Colden Common, was an electrical engineer. His son in law Graham Wingrove, of Lichen Way, Marchwood, said he may have been exposed to asbestos as a teenager while working in a wire factory, later during national service in the Royal Engineers or while working for the Central Electricity Generating Board. But assistant central Hampshire coroner Sarah Whitby said she could not be sure how he contracted the cancer and so recorded a verdict of death by natural causes. ASBESTOS UPDATE: Ex-Shipwright Dies Due to Contact With Fibro ------------------------------------------------------------- The Plymouth Herald reported that a former shipwright in England who worked on the HMS Ark Royal, HMS Hermes and HMS Plymouth died as a result of his regular contact with asbestos, an inquest heard. Maurice Dart, of Little Ash Gardens, St Budeaux, passed away on July 5 after being diagnosed with malignant mesothelioma. Assistant coroner Karen Rea read out statements at the inquest which explained how Mr Dart, who died aged 83, had been a shipwright at Devonport Dockyard since 1951 and had worked on a host of naval craft as they underwent refit and repairs. Among them he worked on the HMS Ark Royal, Hermes, Eagle, Belfast and Plymouth as well as a number of submarines. During that time the working conditions were described as "extremely dirty and with large quantities of asbestos", with no proper washing facilities and a minimum of eight-hour shifts. He later took on a desk job but was thought to be in some contact with asbestos. It was explained that the latency period between exposure and diagnoses was between 20 and 40 years. The inquest heard that following diagnoses Mr Dart received medical compensation in 2007, but by 2013 his condition worsened. Ms Rea recorded a verdict of industrial disease, with the cause of death being mesothelioma. ********* 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. Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2014. All rights reserved. ISSN 1525-2272. 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