/raid1/www/Hosts/bankrupt/CAR_Public/150109.mbx
C L A S S A C T I O N R E P O R T E R
Friday, January 9, 2015, Vol. 17, No. 7
Headlines
ACTAVIS INC: Faces "Gray" Suit in Illinois Over Use of Androderm
ADAMS FLAVORS: Recalls Cumin Products Due to Undeclared Peanut
AMERICAN ROLAND: Recalls Bruschetta Due to Safety Concerns
ARAMARK UNIFORM: Misclassified Route Sales Reps, Class Suit Says
AXA EQUITABLE: Removes "Shuster" Suit to District of New Jersey
BARKWORTHIES: Recalls Barkworthies Chicken Vittles Dog Chews
BLINDS TO GO: Recalls Roller Shades, Smart Lift and Panel Tracks
C&J ENERGY: Delaware Supreme Court Overturns Chancery Court Order
CALIFORNIA SNACK: Recalls Karm'l Dapples/All Styles
CANADA TONG: Recalls Fried Onion Due to Unsuitable Ingredients
CARGILL MEAT: Recalls Your Fresh Market Ground Beef Products
CARGILL MEAT: Recalls Ground Beef Products Over E. Coli
CHESAPEAKE ENERGY: Court Requires Notice in Suit Against D&Os
CLIENT SERVICES: Violates Fair Debt Collection Act, Suit Claims
COGENT COMMUNICATIONS: Class Certification Motion Due June 5
COMPLETE PAYMENT: Accused of Violating Fair Debt Collection Act
COMPUTER CREDIT: Faces Suit in N.J. Alleging Violations of FDCPA
COVIDIEN PUBLIC: Reaches Agreement in Principle to Settle Case
COWBOY'S MOBILE: Initial Conference in FLSA Case on Jan. 12
CVS PHARMACY: Case Management Conference in "Uppal" Postponed
DAIMLER TRUCKS: Recalls Business Class M2 Model
DEVEREUX FOUNDATION: Violates Disabilities Act in Pa., Suit Says
DOG STOP: Fails to Pay Employees' Overtime Wages, Class Claims
DOLE PACKAGED: Recalls Double Dark Chocolate Bites Due to Mould
ENERGY XXI: Defendants' Date to Answer Suit Indefinitely Extended
ESB FINANCIAL: Faces "Kress" Class Action Over Wesbanco Merger
ESB FINANCIAL: Faces "Elliott" Class Action Over Wesbanco Merger
FAMILY DOLLAR: Delaware Court Issued Opinion in Stockholder Case
FARM COUNTRY CHEESE: Recalls Raw Milk Cheddar Due to Listeria
FRUITICANA PRODUCE: Recalls Indican Corriander + Cumin Powder
GENERAL MOTORS: Recalls Multiple Vehicle Models
GENERAL MOTORS: Judge May Stay Shareholder Derivative Case
GENERAL REVENUE: Sued for Violating Fair Debt Collection Act
GLIMCHER REALTY: Entered Into MOU to Settle Class Action
GLOBE ELECTRIC: Recalls Chelsea Collection Chandeliers
GREAT FEELING: Recalls Gluten-Free Ice Cream Cookie Sandwiches
GYRODYNE CO: Plaintiffs' Motion to Enjoin Merger Fully Briefed
HAPPY APPLE: Recalls Caramel Apples Due to Possible Contamination
HAYT HAYT: Sued in Florida for Violating Fair Debt Collection Act
HOME DEPOT: "Blomberg" Suit Consolidated in Security Breach MDL
HOME DEPOT: "Moran" Suit Consolidated in Security Breach MDL
HONDA: Recalls TLX Model Due to Possible Damaged PARK Pawl
HOSPIRA: Recalls 10 Lots of Mitoxantrone
HOVNANIAN ENTERPRISES: Settlement Agreement Being Negotiated
JAGUAR: Recalls XJ Model Due to Possible Loss of Brake Fluid
JARDINE FOODS: Recalls Chili Mix Products Due to Undeclared Peanut
JPMORGAN CHASE: $4-Bil. RMBS Settlement Faces Challenge
KROGER LIMITED: Discriminates Against Cashier & Clerk, Suit Says
MERB'S CANDIES: Recalls Bionic Apples and Double Dipped Apples
MESSERLI & KRAMER: Removes "Smeby" Suit to District of Minnesota
NASRI INTERNATIONAL: Recalls Badaboom Bathrobes
NORTHEAST ADJUSTERS: Sued for Violating Fair Debt Collection Act
NOVA SCOTIA: Canada Supreme Court Decision in Class Suit Pending
NOVA SCOTIA: 100 People Join Suit Over Single Entry Access System
NOVA SCOTIA: Paid $29 Million to Settle Class Action
OHR PHARMACEUTICAL: No Longer Involved in "Schmidt" Litigation
PET EXTREME: "Torres" Plaintiff Must Submit Briefing by Jan. 12
PIEDMONT BEHAVIORAL: Settlement in "L.S." Suit Has Preliminary OK
PLASTIC2OIL INC: April 27 Final Hearing on Class Action Deal
POLYCOM INC: Case Management Conference in FLSA Suit Vacated
REAL FOODS: Recalls Tofu Pad Thai Bowl & Thai Noodle Salad
REDFIN CORPORATION: "Sandoval" Moved to Calif. Central District
REGIONAL ADJUSTMENT: Violates Fair Debt Collection Act, Suit Says
REYNOLDS AMERICAN: 5 Tobacco-Related Cases Served Thru Dec. 12
REYNOLDS AMERICAN: 4,000 Engle Progeny Cases Pending at Dec. 12
REYNOLDS AMERICAN: Paid $5MM in Engle Cases During 4th Quarter
REYNOLDS AMERICAN: Judgments in Engle Progeny Cases Total $23.9BB
REYNOLDS AMERICAN: 63 Engle Progeny Cases for Trial Thru Dec 2015
REYNOLDS AMERICAN: 9 Engle Progeny Cases Were Tried Thru Dec. 12
REYNOLDS AMERICAN: 95 Individual Smoking Cases Pending at Dec. 12
REYNOLDS AMERICAN: Trial Expected in Feb. 2015 in W.Va. IPIC
REYNOLDS AMERICAN: Eight Class-Action Cases Pending as of Dec. 12
REYNOLDS AMERICAN: Trial in "Sateriale" Case Reset to 2015 Q1
REYNOLDS AMERICAN: Briefing Underway in "Price v. Philip Morris"
REYNOLDS AMERICAN: Feb. 2015 Status Conference in "Turner" Case
REYNOLDS AMERICAN: Still No Activity in "Howard" Case
REYNOLDS AMERICAN: Feb. 2 Status Conference in "Collora" Case
REYNOLDS AMERICAN: Plaintiffs' Counsel Pursuing BC Action
REYNOLDS AMERICAN: All Indirect Purchasers Cases Dismissed
REYNOLDS AMERICAN: "Smith" Plaintiffs File Petition for Review
REYNOLDS AMERICAN: 11th Circuit Denied Motion for Reconsideration
REYNOLDS AMERICAN: Trial in Smokeless Tobacco Case Begins 2016 Q1
REYNOLDS AMERICAN: ERISA Defendants File Supreme Court Petition
REYNOLDS AMERICAN: Shareholder Actions in Delaware Consolidated
REYNOLDS AMERICAN: Seeks Dismissal of N.C. Shareholder Actions
RUSLAN MASONRY: Class Seeks to Recover Minimum and Overtime Wages
SATHIES KUMAR: Recalls MD Products Due to Undeclared Sulphites
SMARTHEAT INC: Court to Set Conference on Summary Judgment Bid
SNOQUALMIE GOURMET: Recalls Ice Cream, Gelato, Custard and Sorbet
SPARTAN: Recalls Gladiator and Metro Star Models
SUPERVALU INC: "McPeak" Suit Consolidated in Security Breach MDL
TARGET CORP: Judge Refuses to Dismiss Data Breach Class Action
TESLA MOTORS: Seeks Sanction v. Two Plaintiffs in Securities Suit
TOSHIBA OF CANADA: Recalls AC Power Cords Sold With Notebooks
TOYO MK: Faces "Balcazar" Suit Alleging Violations of FLSA
TRIUMPH: Recalls Tiger Explorer and Tiger Explorer XC Models
ULTIMATE FIGHTING: Ex-Fighters File Antitrust Suit
UNITED STATES: Seeks Dismissal of Suits Over Chrysler Dealerships
WILLBROS GROUP: Sued in Texas Over Violations of Securities Act
WHOLE FOODS: "Rodhouse" Suit Consolidated in Greek Yogurt MDL
* Appeals Court Revisits CPLR 901(b) in Class Action Cases
Asbestos Litigation
ASBESTOS UPDATE: 5-Day Exposure Could Cause Illness, Court Rules
ASBESTOS UPDATE: Court Vacates $14.5MM Verdict, Orders New Trial
ASBESTOS UPDATE: Terminally Ill Pensioner Wins Six-Figure Payout
ASBESTOS UPDATE: Quebec Gov't Refuses to Pay $2.7MM Cleanup Costs
ASBESTOS UPDATE: 6 Chicago-Area Firms Cited for Fibro Violations
ASBESTOS UPDATE: Ill. Court Finds Firm Not Liable for Exposure
ASBESTOS UPDATE: ACT Govt OKs Changes to Fibro Management Code
ASBESTOS UPDATE: Pa. Store Development Needs Fibro Removal
ASBESTOS UPDATE: $90,000 Needed to Fix Lansing DPW's Fibro Issues
ASBESTOS UPDATE: DC Cir. Affirms Honeywell Win in Fibro Suit
ASBESTOS UPDATE: Carlow Factory Fire Sparks Fibro Fears
ASBESTOS UPDATE: Fibro Use in Submarines Put Sailors at Risk
ASBESTOS UPDATE: Critics Slam Thailand's Fibro Ban Delay
ASBESTOS UPDATE: Govt U-Turn on Fibro Fibro After Lunch Offer
ASBESTOS UPDATE: DeKalb-Based Company to Appeal OSHA Violations
ASBESTOS UPDATE: Fibro Victim Wages Battle to Ban Substance
ASBESTOS UPDATE: US Insurers Continue Funding A&E Liabilities
ASBESTOS UPDATE: Judgment Given on Lung Cancer Claims Test Case
ASBESTOS UPDATE: 2nd Cir. Axes En Banc Bid in Travelers Loss
ASBESTOS UPDATE: Lancashire Fibro Payment Claims Hit GBP687,000
ASBESTOS UPDATE: PI Plaintiffs Allowed to Conduct Discovery
ASBESTOS UPDATE: Bid to Junk Fibro Insurance Coverage Suit Denied
ASBESTOS UPDATE: "Freeman" Suit Remanded to La. State Court
ASBESTOS UPDATE: NY Court Refuses to Remand "Gates" Suit
ASBESTOS UPDATE: Voluntary Dismissal Allowed in "Henderson" Suit
ASBESTOS UPDATE: Tenn. Court Dismisses Whistleblower Suit
ASBESTOS UPDATE: NY Court Denies Bid to Junk 3rd-Party Suit
ASBESTOS UPDATE: Bid to Reopen Discovery Post Judgment Denied
ASBESTOS UPDATE: Crane Co. Wins Bid to Bar Exposure Testimony
ASBESTOS UPDATE: Del. Court Recommends Dismissal of PI Suit
ASBESTOS UPDATE: Summary Judgment Ruling in Pa. PI Suit Upheld
ASBESTOS UPDATE: Discovery Clarification Bid Denied in NY PI Suit
ASBESTOS UPDATE: Summary Judgment Partially Granted in PI Suit
ASBESTOS UPDATE: Pa. Court Flips $14.5-Mil. Verdict v. Crane Co.
ASBESTOS UPDATE: Summary Judgment in "Robertson" Suit Reversed
ASBESTOS UPDATE: "Skaggs" Suit Remanded to Wash. State Court
ASBESTOS UPDATE: Con Ed Loses Bid to Dismiss "Smith" Suit
ASBESTOS UPDATE: 2 Firms Win Summary Judgment in S.C. PI Suit
ASBESTOS UPDATE: Partial Summary Judgment OK'd in Insurance Suit
ASBESTOS UPDATE: Appeals Court Affirms Ruling in "Wannall" Suit
*********
ACTAVIS INC: Faces "Gray" Suit in Illinois Over Use of Androderm
----------------------------------------------------------------
Holsey Gray v. Actavis, Inc., and Watson Pharmaceuticals, Inc.,
Case No. 1:14-cv-10377 (N.D. Ill., December 28, 2014) is an action
for damages allegedly suffered by the Plaintiff as a result of his
use of the testosterone therapy Androderm.
Androderm is the Defendants' trade name for their testosterone
transdermal system (patch) designed to deliver testosterone
continuously for 24 hours following application to intact, non-
scrotal skin (e.g., back, abdomen, thighs, and upper arms).
Androderm is a form of testosterone replacement therapy, indicated
for treatment and prevention of low testosterone levels caused by
hypogonadism. Hypogonadism is a specific condition of the sex
glands, which, in men, may result in the diminished production, or
nonproduction of testosterone.
Actavis, Inc. and Watson Pharmaceuticals, Inc. are New Jersey
corporations headquartered in Parsippany, New Jersey. The
Defendants are engaged in the business of developing, designing,
licensing, manufacturing, distributing, selling, marketing, and
introducing into interstate commerce throughout the United States
the testosterone therapy Androderm.
The Plaintiff is represented by:
Brian J. Perkins, Esq.
MEYERS & FLOWERS, LLC
225 West Wacker Drive, Suite 1515
Chicago, IL 60606
Telephone: (630) 232-6333
Facsimile: (630) 845-8982
E-mail: bjp@meyers-flowers.com
- and -
Daniel J. Carr, Esq.
Joseph C. Peiffer, Esq.
PEIFFER ROSCA WOLF ABDULLAH CARR & KANE, LLC
201 St. Charles Ave., Suite 4610
New Orleans, LA 70170
Telephone: (504) 523-2434
Facsimile: (504) 523-2464
E-mail: dcarr@prwlegal.com
jpeiffer@prwlegal.com
- and -
Michael B. Lynch, Esq.
THE MICHAEL BRADY LYNCH FIRM
127 West Fairbanks Ave., #528
Winter Park, FL 32789
Telephone: (877) 513-9517
Facsimile: (321) 972-3568
E-mail: michael@mblynchfirm.com
ADAMS FLAVORS: Recalls Cumin Products Due to Undeclared Peanut
--------------------------------------------------------------
Adams Flavors, Foods & Ingredients of Gonzales, Texas is
voluntarily recalling cumin products because they may contain
undeclared peanut proteins. The company was notified by one of
its third party suppliers that one of the spice ingredients
purchased contains peanut proteins, allergens that are not
declared on the products' ingredient statements. People who have
an allergy or severe sensitivity to peanuts run the risk of
serious or life-threatening allergic reaction if they consume
these products.
The recalled products were distributed nationwide in retail stores
and through web orders.
No illnesses have been reported to date.
The recall was initiated after it was discovered that ingredients
from a single supplier used in the affected products were
contaminated with peanut allergens.
Consumers who have purchased the recalled products are urged to
return them to the place of purchase for a full refund. Consumers
with questions may contact the company at 512-359-3059 from 9 am
to 4 pm CST Monday-Friday, or visit AdamsExtract.com for
additional information.
AMERICAN ROLAND: Recalls Bruschetta Due to Safety Concerns
----------------------------------------------------------
American Roland Food Corp. announced the recall of Roland(R)
Bruschetta from lots numbered 28 and 29 due to safety concerns.
The affected product was distributed to a limited number of
customers and is being recalled due to the possibility of glass in
the product.
Recalled Product: Roland Bruschetta with Item #: 46740 and Lot #:
28 and 29
No other Roland Bruschetta or other Roland products are affected
by the recall.
If you have any of the affected product(s) on hand, please contact
us immediately at 1.800.221.4030 ext. 222, or by e-mail at
recall@rolandfood.com
ARAMARK UNIFORM: Misclassified Route Sales Reps, Class Suit Says
----------------------------------------------------------------
Dwayne Strickland, Eric Hillner, Brian Rauter, Wayne Shepheard II
and Jeffrey Barnes, Individually and On Behalf of All Others
Similarly Situated v. Aramark Uniform & Career Apparel, LLC and
Does 1 through 50, inclusive, Case No. 2:14-cv-09851-CAS-JEM (C.D.
Cal., December 26, 2014) alleges that Aramark misclassified the
Plaintiffs as exempt employees during the three years preceding
the filing of the lawsuit.
The Plaintiffs are former employees of Aramark, who were employed
as Route Sales Representatives or any other similarly titled
position.
Aramark Uniform & Career Apparel is a Delaware Corporation that
conducts business in the state of California and has its corporate
headquarters in Burbank, California. The Company is a division of
ARAMARK, a global professional services corporation. The Company
is, among other things, a uniform servicing business, specializing
in the rental and laundering of uniforms and linens for numerous
retail and service businesses around the country.
The Plaintiffs are represented by:
George P. Moschopoulos, Esq.
THE LAW OFFICE OF GEORGE MOSCHOPOULOS, APC
34197 Pacific Coast Highway, Suite 100
Dana Point, CA 92629
Telephone: (714) 904-1669
Facsimile: (949) 272-0428
E-mail: g.moschopoulos.esq@gmail.com
- and -
Rhonda H. Wills, Esq.
WILLS LAW FIRM, PLLC
1776 Yorktown, Suite 570
Houston, TX 77056
Telephone: (713) 528-4455
Facsimile: (713) 528-2047
E-mail: rwills@rwillslawfirm.com
AXA EQUITABLE: Removes "Shuster" Suit to District of New Jersey
---------------------------------------------------------------
Shuster v. Axa Equitable Life Insurance Company, Case No. L-4485-
14, was removed from the Superior Court of New Jersey, Law
Division, Camden County, to the U.S. District Court for the
District of New Jersey. The District Court Clerk assigned Case
No. 1:14-cv-08035-RBK-JS to the proceeding.
The Plaintiff purports to represent a nationwide class of AXA
Equitable variable life insurance policy holders, whose account
value was invested in SEC-registered investment trusts that
employed a "volatility management" investment strategy.
The Plaintiff is represented by:
Sung-Min Lee, Esq.
Barbara J. Hart, Esq.
David C. Harrison, Esq.
LOWEY DANNENBERG COHEN & HART, P.C.
One North Broadway, Suite 509
White Plains, NY 10601
Telephone: (914) 997-0500
Facsimile: (914) 997-0035
E-mail: SLee@lowey.com
bhart@lowey.com
dharrison@lowey.com
The Defendant is represented by:
Andrew Muscato, Esq.
Jay B. Kasner, Esq.
Kurt Wm. Hemr, Esq.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
Four Times Square
New York, NY 10036
Telephone: (212) 735-3000
Facsimile: (212) 735-2000
E-mail: Andrew.Muscato@skadden.com
Jay.Kasner@skadden.com
Kurt.Hemr@skadden.com
BARKWORTHIES: Recalls Barkworthies Chicken Vittles Dog Chews
------------------------------------------------------------
Barkworthies of Richmond, VA is recalling select lots of
Barkworthies Chicken Vittles dog chews because they have the
potential to be contaminated with Salmonella. Salmonella can
affect animals eating the products and there is risk to humans
from handling contaminated pet products, especially if they have
not thoroughly washed their hands after having contact with the
products or any surfaces exposed to these products.
Healthy people infected with Salmonella should monitor themselves
for some or all of the following symptoms: nausea, vomiting,
diarrhea or bloody diarrhea, abdominal cramping and fever.
Salmonella can result in more serious ailments, including arterial
infections, endocarditis, arthritis, muscle pain, eye irritation,
and urinary tract symptoms. Consumers exhibiting these signs
after having contact with this product should contact their
healthcare providers.
Pets with Salmonella infections may be lethargic and have diarrhea
or bloody diarrhea, fever, and vomiting. Some pets will have only
decreased appetite, fever and abdominal pain. Infected but
therwise healthy pets can be carriers and infect other animals or
humans. If your pet has consumed the recalled product and has
these symptoms, please contact your veterinarian.
The recalled product was distributed nationwide beginning on
May 6, 2014. The product can be identified by the Lot Code
printed on the backside of the plastic pouch or on the bottom.
This product is being recalled as it has the potential to be
contaminated with Salmonella.
BLINDS TO GO: Recalls Roller Shades, Smart Lift and Panel Tracks
----------------------------------------------------------------
Starting date: November 28, 2014
Posting date: November 28, 2014
Type of communication: Consumer Product Recall
Subcategory: Household Items
Source of recall: Health Canada
Issue: Strangulation Hazard
Audience: General Public
Identification number: RA-42699
Affected products: Roller shades, Smart lift (Pleated and cellular
shades), Serenities and Panel Tracks
The recall involves custom shades made to order available in
various dimensions, colours and materials.
The recalled shades pose a strangulation hazard by not having a
tension device attached to the looped bead chain. Without a
tension device securely holding the loop taut, young children may
pull the bead chain around their neck, posing a risk of
strangulation.
Neither Health Canada nor Blinds to Go has received reports of
consumer incidents or injuries related to the use of these shades.
Approximately 415,426 units were sold in Canada.
The recalled products were manufactured in Canada and sold from
January 2012 to October 2014 at various Blinds to Go retail stores
across Canada and Le marche du store in Quebec.
Companies:
Manufacturer Blinds to Go
Montreal
Quebec
Canada
Consumers should immediately stop using the recalled blinds and
contact the retailer where they purchased the product to get a fit
kit that contains a new and improved hold down device with
installation instructions. Consumers may also choose to bring the
shades to the store where the retro fit kit can be implemented for
them.
C&J ENERGY: Delaware Supreme Court Overturns Chancery Court Order
-----------------------------------------------------------------
C&J Energy Services, Inc., the members of the Company's board of
directors, including its management directors, together with
Nabors Industries Ltd. and its wholly owned subsidiary, Nabors Red
Lion Limited, were sued in a putative shareholder class action in
the Court of Chancery of the State of Delaware by certain
stockholders related to the Company's entry into that certain
Agreement and Plan of Merger, dated as of June 25, 2014, among
Nabors, Red Lion and the Company. The case is styled City of
Miami General Employees' and Sanitation Employees' Retirement
Trust, et al. v. C&J Energy Services, Inc., et al.; C.A. No. 9980-
VCN. The complaint sought injunctive relief, among other things,
including an injunction against the consummation of the
transactions contemplated by the Merger Agreement, together with
attorney's fees and costs.
"On November 24, 2014, the Court of Chancery issued a bench ruling
followed by an order on November 25, 2014 preliminarily enjoining
the Company from holding its stockholder meeting to approve the
Merger Agreement for a period of 30 days from November 24, 2014,
during which period certain members of our board of directors were
ordered to solicit alternative proposals to purchase the Company
(or a controlling stake in the Company) that are superior to the
proposed merger from other potential third parties," the Company
said.
On December 19, 2014, the Delaware Supreme Court overturned the
order of the Court of Chancery. As a result of this reversal, C&J
has immediately terminated its previously announced solicitation
of alternative proposals, C&J Energy said in its Form 8-K Report
filed with the Securities and Exchange Commission on December 19,
2014.
CALIFORNIA SNACK: Recalls Karm'l Dapples/All Styles
---------------------------------------------------
California Snack Foods, is issuing a voluntary recall of
California Snack Foods brand caramel apples with a best use by
date between August 15th and November 28th 2014, because it has
the potential to be contaminated with Listeria monocytogenes, an
organism which can cause serious and sometimes fatal infections in
young children, frail or elderly people, and others with weakened
immune systems. Although healthy individuals may suffer only
short-term symptoms such as high fever, severe headache,
stiffness, nausea, abdominal pain and diarrhea, Listeria infection
can cause miscarriages and stillbirths among pregnant women.
California Snack Foods caramel apples are sold in single packs and
three packs and each package will have a best use by date on the
front of the label. They were available for retail sale through
grocery, discount and club stores, generally in the produce
section and were distributed to retailers in the following states:
Arizona, California, Nevada, Texas and Utah.
The company has been working with the Food and Drug Administration
in their investigation of the current outbreak of Listeriosis
which has been associated with caramel apples. The company
recently received notice from Bidart Brothers, one of the
company's apple suppliers that there may be a connection between
this outbreak and the apples that they supplied to the company's
facility.
As has been reported in the news, the Center for Disease Control
has noted 29 illnesses in 10 states linked to the outbreak and
they have advised consumers not to eat commercially produced, pre-
packaged caramel apples until more is known.
The company used the last of the Bidart Brothers apples in the
first week of November 2014. The caramel apples produced with
Bidart Brothers apples should no longer be available in stores,
however, out of an abundance of caution and concern for consumer
safety, the company is recommending that consumers follow the
advice of the CDC and remove any caramel apples you may have in
storage and dispose of them in a secure container to avoid
potential contamination in animals.
Consumers who have any product may return it to the store where
purchased or dispose of it per the advice of the CDC. Consumers
with questions may contact us at 800-966-5501 Monday through
Friday during normal business hours or via email@
info@californiasnackfoods.com
CANADA TONG: Recalls Fried Onion Due to Unsuitable Ingredients
--------------------------------------------------------------
Starting date: November 25, 2014
Type of communication: Recall
Alert sub-type: Notification
Subcategory: Other
Hazard classification: Class 3
Source of recall: Canadian Food Inspection Agency
Recalling firm: Canada Tong Enterprises
Distribution: British Columbia
Extent of the product
distribution: Retail, Hotel/Restaurant/Institutional
CFIA reference number: 9489
CARGILL MEAT: Recalls Your Fresh Market Ground Beef Products
------------------------------------------------------------
Starting date: December 1, 2014
Type of communication: Recall
Alert sub-type: Food Recall Warning
Subcategory: Microbiological - E. coli O157
Hazard classification: Class 1
Source of recall: Canadian Food Inspection Agency
Recalling firm: Cargill Meat Solutions (Est. 700)
Distribution: Alberta, British Columbia, Manitoba,
Saskatchewan
Extent of the product
distribution: Consumer
CFIA reference number: 9497
CARGILL MEAT: Recalls Ground Beef Products Over E. Coli
-------------------------------------------------------
Cargill Meat Solutions (Est. 700) is recalling Your Fresh Market
brand ground beef products from the marketplace due to possible E.
coli O157:H7 contamination. Consumers should not consume the
recalled products.
The products have been sold at Walmart stores in Alberta, British
Columbia, Manitoba and Saskatchewan.
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.
Food contaminated with E. coli O157:H7 may not look or smell
spoiled but can still make you sick. Symptoms can include nausea,
vomiting, mild to severe abdominal cramps and watery to bloody
diarrhea. In severe cases of illness, some people may have
seizures or strokes, need blood transfusions and kidney dialysis
or live with permanent kidney damage. In severe cases of illness,
people may die.
There have been no reported illnesses associated with the
consumption of these products.
The recall was triggered by test results. The Canadian Food
Inspection Agency (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 product
from the marketplace.
CHESAPEAKE ENERGY: Court Requires Notice in Suit Against D&Os
-------------------------------------------------------------
Judge Timothy D. DeGuisti of the United States District Court for
the Western District of Oklahoma, directed that a form of notice
proposed by Chesapeake in the shareholders derivative action
styled M. LEE ARNOLD, Derivatively on Behalf of CHESAPEAKE ENERGY
CORPORATION, Plaintiff, v. AUBREY McCLENDON, et al., Defendants,
CASE NO. CIV-11-986-D (W.D. Okla.), be provided in the manner set
forth in the parties' stipulation. Judge DeGuisti held that if no
shareholder seeks to intervene within the requisite period set
forth in the proposed notice, the Plaintiff is directed to file a
motion requesting the Court to enter its order dismissing the
action pursuant to the parties' Joint Stipulation.
McClendon is the former CEO of Chesapeake Energy.
A full-text copy of Judge DeGuisti's Decision is available at
http://is.gd/i4pFkafrom Leagle.com.
M Lee Arnold, Derivatively on Behalf of Chesapeake Energy
Corporation, Plaintiff, represented by George C Aguilar, Esq. --
gaguilar@robbinsarroyo.com -- Robbins Arroyo LLP, Jay N Razzouk,
Esq. -- jrazzouk@robbinsarroyo.com -- at Robbins Arroyo LLP &
Kenyatta R Bethea, Esq. -- frontdesk@hbolaw.com -- at Holloway
Bethea & Osenbaugh PLLC.
Aubrey K McClendon, Defendant, represented by Alexander K
Talarides, Esq. -- atalarides@orrick.com -- Orrick Herrington &
Sutcliffe, Robert P Varian, Esq. -- rvarian@orrick.com -- at
Orrick Herrington & Sutcliffe & Spencer F Smith, Esq. --
spencer.smith@mcafeetaft.com -- at McAfee & Taft.
Richard K Davidson, Defendant, represented by Alexander K
Talarides, Orrick Herrington & Sutcliffe, Robert P Varian, Orrick
Herrington & Sutcliffe & Spencer F Smith, McAfee & Taft.
Frank Keating, Defendant, represented by Alexander K Talarides,
Orrick Herrington & Sutcliffe, Robert P Varian, Orrick Herrington
& Sutcliffe & Spencer F Smith, McAfee & Taft.
Breene M Kerr, Defendant, represented by Alexander K Talarides,
Orrick Herrington & Sutcliffe, Robert P Varian, Orrick Herrington
& Sutcliffe & Spencer F Smith, McAfee & Taft.
Charles T Maxwell, Defendant, represented by Alexander K
Talarides, Orrick Herrington & Sutcliffe, Robert P Varian, Orrick
Herrington & Sutcliffe & Spencer F Smith, McAfee & Taft.
Don Nickles, Defendant, represented by Alexander K Talarides,
Orrick Herrington & Sutcliffe, Robert P Varian, Orrick Herrington
& Sutcliffe & Spencer F Smith, McAfee & Taft.
Frederick B Whittemore, Defendant, represented by Alexander K
Talarides, Orrick Herrington & Sutcliffe, Robert P Varian, Orrick
Herrington & Sutcliffe & Spencer F Smith, McAfee & Taft.
Marcus C Rowland, Defendant, represented by Alexander K Talarides,
Orrick Herrington & Sutcliffe, Robert P Varian, Orrick Herrington
& Sutcliffe & Spencer F Smith, McAfee & Taft.
Michael A Johnson, Defendant, represented by Alexander K
Talarides, Orrick Herrington & Sutcliffe, Robert P Varian, Orrick
Herrington & Sutcliffe & Spencer F Smith, McAfee & Taft.
Merrill A Miller, Jr, Defendant, represented by Alexander K
Talarides, Orrick Herrington & Sutcliffe, Robert P Varian, Orrick
Herrington & Sutcliffe & Spencer F Smith, McAfee & Taft.
Chesapeake Energy Corporation, an Oklahoma Corporation, Defendant,
represented by Alexander K Talarides, Orrick Herrington &
Sutcliffe, Robert P Varian, Orrick Herrington & Sutcliffe &
Spencer F Smith, McAfee & Taft.
CLIENT SERVICES: Violates Fair Debt Collection Act, Suit Claims
---------------------------------------------------------------
Janet Demonte, on behalf of herself and all others similarly
situated v. Client Services, Inc., a Missouri Corporation, Case
No. 2:14-cv-14511-DMM (S.D. Fla., December 29, 2014) alleges
violations of the Fair Debt Collection Practices Act.
The Plaintiff is represented by:
Leo Wassner Desmond, Esq.
5070 N. Highway A1A, Suite D
Vero Beach, FL 32963
Telephone: (772) 234-5150
Facsimile: (772) 234-5231
E-mail: lwd@verobeachlegal.com
COGENT COMMUNICATIONS: Class Certification Motion Due June 5
------------------------------------------------------------
District Judge Richard Seeborg signed off on a stipulation to
revise a scheduling order in the case, JOAN AMBROSIA, JANE LACAP,
KEITH SWICK, BILL CHAN, COSMIN BANU, SHAHID RAHMATULLAH, DANA
ROGERS, TONY TRINH, CHRISTIAN HALLORAN, NOVELETT WITT, ART
BAIMKIN, ANGELITO MUYOT JR., JASON RUIS, KESHAV LILBURN KAMATH,
PEET SAPSIN, and ALICIA ERBY, Plaintiffs, v. COGENT
COMMUNICATIONS, INC., Defendant, Case No. 3:14-cv-02182-RS (N.D.
Cal.).
The Parties have stipulated that:
a. On or before June 5, 2015, Plaintiffs will file their
motion for Rule 23 class certification and motion for FLSA
collective action certification;
b. On or before July 10, 2015, Defendant will file its
opposition to Plaintiffs' motions for Rule 23 class certification
and FLSA collective action certification;
c. On or before August 7, 2015, Plaintiffs will file a reply,
if any, to Defendant's oppositions; and
d. Plaintiff's motion for Rule 23 class certification and
motion for FLSA collective action certification shall be heard on
August 20, 2015, at 1:30 p.m. in Courtroom 3, 17th Floor, United
States Courthouse, 450 Golden Gate Avenue, San Francisco,
California 94102.
A copy of the Stipulation dated January 2, 2015, is available at
http://is.gd/nOeCrtfrom Leagle.com.
Attorneys for Defendant Cogent Communications are:
Tamara I. Devitt, Esq.
Matthew E. Costello, Esq.
HAYNES AND BOONE, LLP
600 Anton Boulevard, Suite 700
Costa Mesa, CA 92626
Tel: 949-202-3060
Fax: 949-202-3160
E-mail: tamara.devitt@haynesboone.com
matthew.costello@haynesboone.com
Attorneys for Plaintiffs are:
Monique Olivier, Esq.
DUCKWORTH PETERS LEBOWITZ OLIVIER LLP
100 Bush Street, Suite 1800
San Francisco, CA 94104
Tel: 415-433-0333
E-mail: monique@dplolaw.com
COMPLETE PAYMENT: Accused of Violating Fair Debt Collection Act
---------------------------------------------------------------
Izabella Leblanc, on behalf of herself and all others similarly
situated v. Complete Payment Recovery Services, Inc., and John
Does 1-25, Case No. 3:14-cv-08046-MAS-DEA (D.N.J., December 29,
2014) accuses the Defendants of violating the Fair Debt Collection
Practices Act.
The Plaintiff is represented by:
Ari Hillel Marcus, Esq.
MARCUS LAW LLC
1500 Allaire Avenue, Suite 101
Ocean, NJ 07712
Telephone: (732) 660-8169
E-mail: ari@marcuslawyer.com
COMPUTER CREDIT: Faces Suit in N.J. Alleging Violations of FDCPA
----------------------------------------------------------------
Anthony Dorman, on behalf of himself and all others similarly
situated v. Computer Credit, Inc. and John Does 1-25, Case No.
2:14-cv-08065-JLL-JAD (D.N.J., December 29, 2014) is brought for
alleged violations of the Fair Debt Collection Practices Act.
The Plaintiff is represented by:
Ari Hillel Marcus, Esq.
MARCUS LAW LLC
1500 Allaire Avenue, Suite 101
Ocean, NJ 07712
Telephone: (732) 660-8169
E-mail: ari@marcuslawyer.com
COVIDIEN PUBLIC: Reaches Agreement in Principle to Settle Case
--------------------------------------------------------------
Covidien Public Limited Company said in its Form 8-K Report filed
with the Securities and Exchange Commission on December 23, 2014,
that defendants reached an agreement in principle with plaintiffs
in the consolidated class action, and that agreement is reflected
in a memorandum of understanding.
As disclosed at pages 157 and 158 of the definitive joint proxy
statement/prospectus of Covidien plc ("Covidien") dated November
20, 2014 (the "Definitive Joint Proxy Statement/Prospectus") under
the heading "Legal Proceedings Regarding the Transaction,"
putative shareholder class action complaints have been filed in
the United States District Court for the District of Massachusetts
by purported shareholders of Covidien under the captions Taxman v.
Covidien plc, et al., 14-cv-12949, Lipovich v. Covidien plc, et
al., 14-cv-13308 and Rosenfeld Family Foundation v. Covidien plc,
et al., 14-cv-13490. On October 20, 2014, the plaintiff in the
Rosenfeld action and another purported shareholder of Covidien
filed a motion seeking to consolidate the Taxman, Lipovich and
Rosenfeld actions, and on November 14, 2014, the United States
District Court for the District of Massachusetts granted that
motion consolidating the actions (the "Consolidated Action").
On December 23, 2014, the defendants reached an agreement in
principle with plaintiffs in the Consolidated Action, and that
agreement is reflected in a memorandum of understanding. In
connection with the settlement contemplated by the memorandum of
understanding, Covidien agreed to make certain additional
disclosures related to the proposed transaction with Medtronic,
which are contained in this Form 8-K. The memorandum of
understanding contemplates that the parties will enter into a
stipulation of settlement.
The stipulation of settlement will be subject to customary
conditions, including court approval. In the event that the
parties enter into a stipulation of settlement, a hearing will be
scheduled at which the United States District Court for the
District of Massachusetts 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 in all actions that were or could have been brought by
Covidien shareholders challenging any aspect of the proposed
transaction, the negotiation or consideration of the Transaction,
the Transaction Agreement, dated as of June 15, 2014, by and among
Medtronic, Covidien, Kalani I Limited (since renamed Medtronic
Holdings Limited), Makani II Limited, Aviation Acquisition Co.,
Inc., and Aviation Merger Sub, LLC, and any disclosure made in
connection therewith, including in the Definitive Joint Proxy
Statement/Prospectus, pursuant to terms that will be disclosed to
shareholders prior to final approval of the settlement, except
that the released claims will not include the claims currently
asserted in In re Medtronic, Inc. Stockholder Litigation, 27-CV-
14-11452, in the District Court, Fourth Judicial District of
Hennepin Count, Minnesota or the claims currently asserted in In
re Medtronic, Inc. Derivative Litigation, 14-cv-3540, in the
United States District Court for the District of Minnesota
described on pages 157 and 158 of the Definitive Joint Proxy
Statement/Prospectus. In addition, in connection with the
settlement, the parties contemplate that the parties shall
negotiate in good faith regarding the amount of attorneys' fees
and expenses that shall be paid to plaintiffs' counsel in
connection with the actions. There can be no assurance that the
parties will ultimately enter into a stipulation of settlement or
that the United States District Court for the District of
Massachusetts 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.
COWBOY'S MOBILE: Initial Conference in FLSA Case on Jan. 12
-----------------------------------------------------------
An initial conference is scheduled for January 12, 2015, at 3:30
p.m. at 515 Rusk Street, Houston, Texas, 77002, Courtroom 11-B, in
the case, RAMON RODRIGUEZ, individually and on behalf of all
others similarly situated, Plaintiff, v. COWBOY'S MOBILE HOMES,
INC., COWBOY'S SERVICES, INC., and KEITH JANNISE, Defendant, Civil
Action No. G-14-0193 (S.D. Tex.).
Plaintiff Ramon Rodriguez filed a Fair Labor Standards Act (FLSA)
suit against three defendants: Keith Jannise and his two
corporations, Cowboy's Mobile Homes, Inc., and Cowboy's Services,
Inc. In his original answer, Jannise asserted an affirmative
defense, alleging that Rodriguez "is not a citizen of the United
States of America and therefore by Law cannot bring this suit for
profit or maintain this suit as a class action suit in this
court."
A copy of District Judge Lee H. Rosenthal's January 5, 2015 Order
is available at http://is.gd/fTt4JHfrom Leagle.com.
Plaintiff Ramon Rodriguez is represented by:
Curt Christopher Hesse, Esq.
Melissa Moore, Esq.
MOORE & ASSOCIATES
Houston Employment Law Attorney
440 Louisiana Street, Suite 675
Houston, TX 77002
Tel: (713) 581-9001
Local Phone: (713) 222-6775
Defendants Cowboy's Mobile Homes and Keith Jannise are represented
by:
Timothy A Hootman, Esq.
TIM HOOTMAN LAW OFFICES
2402 Pease Street
Houston, TX 77003
Tel: (713) 247-9548
CVS PHARMACY: Case Management Conference in "Uppal" Postponed
-------------------------------------------------------------
District Judge Vince Chhabria signed off on a stipulation
continuing the case management conference and related deadlines,
and to stay the plaintiff's motion to remand and the defendants'
time to respond in the case, RIMANPREET UPPAL, an Individual,
Individually and on behalf of all others similarly situated and
the general public, Plaintiff, v. CVS PHARMACY, INC., a Rhode
Island corporation; CVS RX SERVICES, INC., a New York corporation;
GARFIELD BEACH CVS, LLC, a California limited liability company;
and DOES 1 thru 50, inclusive, Defendants, Case No. 3:14-cv-02629-
VC (N.D. Cal.).
The Initial Case Management Conference presently set for January
13, 2015 at 10:00 a.m. is continued to a date 60 days after the
March 16, 2015, and all corresponding deadlines provided by the
Federal Rules of Civil Procedure, the Civil Local Rules of the
United States District Court for the Northern District of
California, and the Court's Order Setting Initial Case Management
Conference are continued.
Plaintiff's motion to remand, and Defendants' corresponding time
to oppose Plaintiff's motion, be stayed for 60 days after the
March 16, 2015 oral argument before the Ninth Circuit on the so-
called Connell, Bystrom, and Paksy matters.
A copy of the Stipulation and Order dated January 5, 2015, is
available at http://is.gd/ap8nOBfrom Leagle.com.
Counsel for Plaintiff Rimanpreet Uppal represents the named
plaintiffs in four other separate, but related class action cases:
Sharobiem v. CVS Pharmacy, Inc., Case No. CV 13-9426-GHK; Bystrom
v. CVS Pharmacy, Inc., Case No. CV 13-09424-GHK; Paksy v. CVS
Pharmacy, Inc., Case No. CV 13-09425-GHK; and Connell v. CVS
Pharmacy, Inc., No. CV 13-09410-GHK.
Pursuant to the previous stipulations of the Parties, the Court
stayed Plaintiff's pending Motion to Remand and Defendants' time
to respond to said motion in this matter in light of Defendants'
having filed petitions with the United States Court of Appeals for
the Ninth Circuit requesting permission to appeal the Central
District's remand orders in Paksy (Case No. 14-80047), Bystrom
(Case No. 14-80048), and Connell (Case No. 14-80049).
The Ninth Circuit has granted Defendants' petition for permission
to appeal the Central District's orders granting remand in
Connell, Bystrom, and Paksy, and has advised that the matters
shall be calendared for oral argument during the week of March 16,
2015.
The Parties agree that the Ninth Circuit's decision regarding
Defendants' appeals the Central District's orders granting remand
in Connell, Bystrom, and Paksy will likely be dispositive with
respect to Plaintiff's motion to remand in the present action.
The Parties seek to resolve the issue of this case's removal
efficiently and without unnecessary expenditure of the Court's
resources.
Plaintiff Rimanpreet Uppal is represented by:
V. James DeSimone, Esq.
Michael D. Seplow, Esq.
Aidan C. McGlaze, Esq.
SCHONBRUN DESIMONE SEPLOW HARRIS & HOFFMAN LLP
723 Ocean Front Walk, Suite 100
Venice, CA 90291
Tel: 310-396-0731
Fax: 310-399-7040
Attorneys for Defendants CVS Pharmacy, Inc., CVS RX Services,
Inc., and Garfield Beach CVS, LLC are:
Timothy J. Long, Esq.
Michael D. Weil, Esq.
ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall, Suite 3000
Sacramento, CA 95814-4497
Tel: (916) 329-7919
Fax: (916) 329-4900
E-mail: tjlong@orrick.com
mdweil@orrick.com
DAIMLER TRUCKS: Recalls Business Class M2 Model
-----------------------------------------------
Starting date: December 3, 2014
Type of communication: Recall
Subcategory: Truck - Med. & H.D.
Notification type: Safety Mfr
System: Fuel Supply
Units affected: 3
Source of recall: Transport Canada
Identification number: 2014547
TC ID number: 2014547
Manufacturer recall
number: FL-671
On certain trucks fuelled by compressed natural gas, the exhaust
tailpipe may terminate under the fuel tank cabinet. Over time,
the continued heating of the fuel tank by exhaust gases could
increase the risk of a fire, causing injury and/or damage to
property.
Dealers will install an exhaust pipe extension to relocate the
tailpipe.
Affected products: 2012, 2013 Freightliner Business Class M2
DEVEREUX FOUNDATION: Violates Disabilities Act in Pa., Suit Says
----------------------------------------------------------------
Christopher Oji v. Devereux Foundation, Case No. 2:14-cv-07323-TON
(E.D. Pa., December 29, 2014) alleges that the Defendant
discriminated and retaliated against the Plaintiff because of his
disability, in violation of the Pennsylvania Human Relations Act.
Mr. Oji has a disability within the meaning of the Americans with
Disabilities Act due to chronic injuries to his right hand and
left shoulder that prevent him from grasping, gripping or using
force with his right hand, and using strength or flexibility with
his left shoulder.
Devereux Foundation is a nonprofit provider of behavioral
healthcare with a principal place of business located in
Villanova, Pennsylvania.
The Plaintiff is represented by:
Robert T. Vance Jr., Esq.
LAW OFFICES OF ROBERT T. VANCE JR.
100 South Broad Street, Suite 910
Philadelphia, PA 19110
Telephone: (215) 557-9550
Facsimile: (215) 278-7992
E-mail: rvance@vancelf.com
DOG STOP: Fails to Pay Employees' Overtime Wages, Class Claims
--------------------------------------------------------------
Ruben Sandoval and Gregorio Colon, individually and on behalf of
other employees similarly situated v. Dog Stop, Incorporated and
Victoria Bertucci, individually, Case No. 1:14-cv-10371 (N.D.
Ill., December 27, 2014) seeks redress for the Defendants' alleged
willful violations of the Fair Labor Standards Act and the
Illinois Minimum Wage Law for their failure to pay the Plaintiffs
and other similarly situated employees overtime wages for hours
worked in excess of 40 hours in a workweek.
Dog Stop is an entity doing business in Illinois. Victoria
Bertucci is the owner of Dog Stop.
The Plaintiffs are represented by:
Raisa Alicea, Esq.
CONSUMER LAW GROUP, LLC
6232 N. Pulaski, Suite 200
Chicago, IL 60646
Telephone: (312) 800-1017
E-mail: ralicea@yourclg.com
DOLE PACKAGED: Recalls Double Dark Chocolate Bites Due to Mould
---------------------------------------------------------------
Starting date: November 25, 2014
Type of communication: Recall
Alert sub-type: Notification
Subcategory: Microbiological - Non harmful
(Quality/Spoilage)
Hazard classification: Class 3
Source of recall: Canadian Food Inspection Agency
Recalling firm: Dole Packaged Foods Company
Distribution: National
Extent of the product
distribution: Retail
CFIA reference number: 9477
Affected products: 170 g. Dole Live Right Double Dark Chocolate
Bites
ENERGY XXI: Defendants' Date to Answer Suit Indefinitely Extended
-----------------------------------------------------------------
Energy XXI Ltd said in its Form 10-Q/A Report (Amendment No. 1)
filed with the Securities and Exchange Commission on December 23,
2014, for the quarterly period ended September 30, 2014, that the
defendants date to answer, move to dismiss, or otherwise respond
to the lawsuit related to the merger has been indefinitely
extended.
In March and April, 2014, three alleged EPL Oil & Gas, Inc.
("EPL") stockholders (the "plaintiffs") filed three separate class
action lawsuits in the Court of Chancery of the State of Delaware
on behalf of EPL stockholders against EPL, its directors, Energy
XXI, Energy XXI Gulf Coast, Inc., a Delaware corporation and an
indirect wholly owned subsidiary of Energy XXI ("OpCo"), and Clyde
Merger Sub, Inc., a Delaware corporation and wholly owned
subsidiary of OpCo ("Merger Sub" and collectively, the
"defendants"). The Court of Chancery of the State of Delaware
consolidated these lawsuits on May 5, 2014. The consolidated
lawsuit is styled In re EPL Oil & Gas Inc. Shareholders
Litigation, C.A. No. 9460-VCN, in the Court of Chancery of the
State of Delaware (the "lawsuit").
Plaintiffs allege a variety of causes of action challenging the
Agreement and Plan of Merger between Energy XXI, OpCo, Merger Sub,
and EPL (the "merger agreement"), which provides for the
acquisition of EPL by Energy XXI. Plaintiffs allege that (a) EPL's
directors have allegedly breached fiduciary duties in connection
with the merger and (b) Energy XXI, OpCo, Merger Sub, and EPL have
allegedly aided and abetted in these alleged breaches of fiduciary
duties. Plaintiffs' causes of action are based on their
allegations that (i) the merger allegedly provided inadequate
consideration to EPL stockholders for their shares of EPL common
stock; (ii) the merger agreement contains contractual terms -
including, among others, the (A) "no solicitation," (B) "competing
proposal," and (C) "termination fee" provisions -- that allegedly
dissuaded other potential acquirers from making competing offers
for shares of EPL common stock; (iii) certain of EPL's officers
and directors allegedly received benefits -- including (A) an
offer for one of EPL's directors to join the Energy XXI board of
directors and (B) the triggering of change-in-control provisions
in notes held by EPL's executive officers -- that were not equally
shared by EPL's stockholders; (iv) Energy XXI required EPL's
officers and directors to agree to vote their shares of EPL common
stock in favor of the merger; and (v) EPL provided, and Energy XXI
obtained, non-public information that allegedly allowed Energy XXI
to acquire EPL for inadequate consideration. Plaintiffs also
allege that the Registration Statement filed on Form S-4 by EPL
and Energy XXI on April 1, 2014 omits information concerning,
among other things, (i) the events leading up to the merger, (ii)
EPL's efforts to attract offers from other potential acquirors,
(iii) EPL's evaluation of the merger; (iv) negotiations between
EPL and Energy XXI, and (v) the analysis of EPL's financial
advisor. Based on these allegations, plaintiffs seek to have the
merger agreement rescinded. Plaintiffs also seek damages and
attorneys' fees.
Defendants date to answer, move to dismiss, or otherwise respond
to the lawsuit has been indefinitely extended. Neither Energy XXI
nor EPL can predict the outcome of the lawsuit or any others that
might be filed subsequent to the date of the filing of this
quarterly report; nor can either Energy XXI or EPL predict the
amount of time and expense that will be required to resolve the
lawsuit. The defendants intend to vigorously defend the lawsuit.
ESB FINANCIAL: Faces "Kress" Class Action Over Wesbanco Merger
--------------------------------------------------------------
Wesbanco, Inc. ("WesBanco") and ESB Financial Corporation ("ESB")
entered into a definitive Agreement and Plan of Merger (the
"Merger Agreement"), dated as of October 29, 2014, providing for
the merger of ESB with and into WesBanco with WesBanco surviving
(the "Proposed Merger").
ESB Financial Corporation said in its Form 10-K Report filed with
the Securities and Exchange Commission on December 19, 2014, for
the fiscal year ended October 31, 2014, that Randall Kress, a
purported shareholder of ESB, filed on November 21, 2014, a
putative shareholder derivative and class action complaint in the
Court of Common Pleas of Lawrence County, Pennsylvania (the "State
Court Complaint") naming ESB Bank, ESB's board of directors (the
"Director Defendants") and WesBanco as defendants, and ESB as a
nominal defendant (collectively, the "State Court Defendants").
The case is captioned and numbered Randall Kress v. ESB Bank, Case
No. 11185/14 CA. The State Court Complaint makes various
allegations against the State Court Defendants relating to the
Proposed Merger, including that the Director Defendants breached
their fiduciary duties to ESB's shareholders and ESB by aproving
the Proposed Merger and that ESB and WesBanco aided and abetted
those alleged breaches. The State Court Complaint generally seeks
an injunction barring the State Court Defendants from consummating
the Proposed Merger. To the extent that the Proposed Merger is
completed before the court enters judgment, the State Court
Complaint alternatively seeks rescission of the Merger or
rescissory damages, an accounting for all damages suffered as a
result of the alleged breaches of fiduciary duty, and an award of
the costs incurred in prosecuting the case, including attorneys'
fees and costs.
ESB FINANCIAL: Faces "Elliott" Class Action Over Wesbanco Merger
----------------------------------------------------------------
Wesbanco, Inc. ("WesBanco") and ESB Financial Corporation ("ESB")
entered into a definitive Agreement and Plan of Merger (the
"Merger Agreement"), dated as of October 29, 2014, providing for
the merger of ESB with and into WesBanco with WesBanco surviving
(the "Proposed Merger").
ESB Financial Corporation said in its Form 10-K Report filed with
the Securities and Exchange Commission on December 19, 2014, for
the fiscal year ended October 31, 2014, that James Elliott, a
purported shareholder of ESB, filed on December 15, 2014, a
putative class action complaint in the United States District
Court for the Western District of Pennsylvania (the "Federal Court
Complaint") naming as defendants ESB, the Director Defendants and
WesBanco (collectively, the "Federal Court Defendants"). The case
is captioned and numbered James Elliott vs. ESB Financial, Inc.,
et al., Case No. 2:14-cv-01689-MRH. The Federal Court Complaint
makes various allegations against the Federal Court Defendants
relating to the Proposed Merger, including that the Registration
Statement on Form S-4 filed on November 20, 2014 in connection
with the Proposed Merger omits certain information allegedly
necessary for ESB's shareholders to make an informed vote on the
Proposed Merger, that the Director Defendants breached their
fiduciary duties to ESB's shareholders in approving the Proposed
Merger, and that ESB and WesBanco aided and abetted those alleged
breaches. The Federal Court Complaint generally seeks an
injunction barring the Federal Court Defendants from consummating
the Proposed Merger. To the xtent that the Proposed Merger is
completed before the court enters judgment, the Federal Court
Complaint alternatively seeks rescission of the Merger or
rescissory damages, an accounting for all resulting losses and
damages suffered as a result of the alleged breaches of fiduciary
duty, and an award of the costs and expenses incurred in
prosecuting the case, including attorneys' fees and costs.
The Federal Court Defendants have accepted service of the Federal
Court Complaint.
FAMILY DOLLAR: Delaware Court Issued Opinion in Stockholder Case
----------------------------------------------------------------
Family Dollar Stores, Inc. said in its Form 8-K Report filed with
the Securities and Exchange Commission on December 22, 2014, that
on December 19, 2014, the Delaware Court of Chancery issued a
memorandum opinion in the case captioned In re Family Dollar
Stores, Inc. Stockholder Litig., C.A. No. 9985-CB. A copy of the
memorandum opinion is http://is.gd/WzgpSn
Additional Information About the Dollar General Tender Offer
Family Dollar has filed a solicitation/recommendation statement
with respect to the tender offer with the SEC. INVESTORS AND
SECURITY HOLDERS ARE URGED TO READ THE SOLICITATION/RECOMMENDATION
STATEMENT WITH RESPECT TO THE TENDER OFFER AND OTHER RELEVANT
DOCUMENTS THAT ARE FILED WITH THE SEC BECAUSE THEY CONTAIN
IMPORTANT INFORMATION ABOUT THE TENDER OFFER. You may obtain free
copies of the solicitation/recommendation statement with respect
to the tender offer and other documents filed with the SEC by
Family Dollar through the website maintained by the SEC at
http://www.sec.gov.Copies of the documents filed with the SEC by
Family Dollar are available free of charge on Family Dollar's
internet website at www.FamilyDollar.com under the heading
"Investor Relations" and then under the heading "SEC Filings" or
by contacting Family Dollar's Investor Relations Department at
704-708-2858.
Important Information for Investors and Stockholders
This communication does not constitute an offer to sell or the
solicitation of an offer to buy any securities or a solicitation
of any vote or approval, nor shall there be any sale of securities
in any jurisdiction in which such offer, solicitation or sale
would be unlawful prior to registration or qualification under the
securities laws of any such jurisdiction. No offer of securities
shall be made except by means of a prospectus meeting the
requirements of Section 10 of the Securities Act of 1933, as
amended. In connection with the proposed merger between Dollar
Tree and Family Dollar, on October 28, 2014, the Securities and
Exchange Commission (SEC) declared effective Dollar Tree's
registration statement on Form S-4 that included a definitive
proxy statement of Family Dollar that also constitutes a
prospectus of Dollar Tree. On October 28, 2014, Family Dollar
commenced mailing the definitive proxy statement/prospectus to
stockholders of Family Dollar. INVESTORS AND SECURITY HOLDERS OF
FAMILY DOLLAR ARE URGED TO READ THE DEFINITIVE PROXY
STATEMENT/PROSPECTUS (INCLUDING ALL AMENDMENTS AND SUPPLEMENTS
THERETO) AND OTHER DOCUMENTS RELATING TO THE MERGER THAT ARE FILED
WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY BECAUSE THEY CONTAIN
IMPORTANT INFORMATION ABOUT THE PROPOSED MERGER. Investors and
security holders are able to obtain free copies of the
registration statement and the definitive proxy
statement/prospectus (when available) and other documents filed
with the SEC by Dollar Tree and Family Dollar through the website
maintained by the SEC at http://www.sec.gov.Copies of the
documents filed with the SEC by Dollar Tree are available free of
charge on Dollar Tree's internet website at www.DollarTree.com
under the heading "Investor Relations" and then under the heading
"Download Library" or by contacting Dollar Tree's Investor
Relations Department at 757-321-5284. Copies of the documents
filed with the SEC by Family Dollar are available free of charge
on Family Dollar's internet website at www.FamilyDollar.com under
the heading "Investor Relations" and then under the heading "SEC
Filings" or by contacting Family Dollar's Investor Relations
Department at 704-708-2858.
Participants in the Solicitation For the Proposed Dollar
Tree/Family Dollar Merger
Dollar Tree, Family Dollar, and their respective directors,
executive officers and certain other members of management and
employees may be deemed to be participants in the solicitation of
proxies from the holders of Family Dollar common stock in respect
of the proposed merger between Dollar Tree and Family Dollar.
Information regarding the persons who may, under the rules of the
SEC, be considered participants in the solicitation of proxies in
favor of the proposed merger are set forth in the proxy
statement/prospectus filed with the SEC. You can also find
information about Dollar Tree's and Family Dollar's directors and
executive officers in Dollar Tree's definitive proxy statement
filed with the SEC on May 12, 2014 and in Family Dollar's Annual
Report on Form 10-K for the fiscal year ended August 30, 2014,
respectively. You can obtain free copies of these documents from
Dollar Tree or Family Dollar using the contact information above.
FARM COUNTRY CHEESE: Recalls Raw Milk Cheddar Due to Listeria
-------------------------------------------------------------
Farm Country Cheese House of, Lakeview Michigan is recalling
1136.53 pounds of Raw Milk Cheddar, because it has the potential
to be contaminated with Listeria Monocytogenes, an organism which
can cause serious and sometimes fatal infections in young
children, frail or elderly people, and others with weakened immune
systems. Although healthy individuals may suffer only short-term
symptoms such as high fever, severe headache, stiffness, nausea,
abdominal pain and diarrhea, Listeria infection can cause
miscarriages and stillbirths among pregnant women.
Raw Milk Cheddar was distributed in the state of Michigan. More
specific in the Grand Rapids metro area and, Detroit metro area
through retail stores and specialty shops.
The Raw Milk Cheddar in question is packaged under two different
labels. The first label will have Farm Country Cheese House logo
on the far left hand side, and the product name (Raw Milk Cheddar)
will be written on top of the label. This product is sold as an 8
oz block. This product has "Use By Date" on the back of the
cheese. The dates are between October 28th 2015 and December 5th
2015. This label will also have a Julian Date in the lower right
hand corner. These Julian dates are as follows: 14301, 14302,
14308, 14309, 14324, 14325, 14332, 14336, and 14339.
The second label will have Farm Country Cheese House logo on the
far left hand side, and the product name (Raw Milk Cheddar)
written in white over a light blue banner this label will have the
"Use By Date" on the back, it will not have a Julian Date. The
"Use By Date" dates are between October 28th 2015 and December 5th
2015. This will be packaged in 8oz blocks and 5 lb. loafs.
No illnesses have been reported to date.
The recall was the result of a routine sampling program by the FDA
which revealed that the finished products contained the bacteria.
Farm Country Cheese House has ceased the production and
distribution of the product as FDA and the company continues their
investigation as to what caused the problem.
Consumers who have purchased Farm Country Cheese House Raw Milk
Cheddar are urged to return it to the place of purchase for a full
refund. Consumers with questions may contact the company at 989-
352-7779, or info@farmcountrycheesehouse. Monday thru Friday from
9:00 A.M to 5:00 P.M EST.
FRUITICANA PRODUCE: Recalls Indican Corriander + Cumin Powder
-------------------------------------------------------------
Starting date: November 28, 2014
Type of communication: Recall
Alert sub-type: Food Recall Warning (Allergen)
Subcategory: Allergen - Gluten
Hazard classification: Class 3
Source of recall: Canadian Food Inspection Agency
Recalling firm: Fruiticana Produce Ltd.
Distribution: Alberta, British Columbia
Extent of the product
distribution: Retail
CFIA reference number: 9480
Affected products: Indican Corriander + Cumin Powder - Dhania
Jeera Powder
GENERAL MOTORS: Recalls Multiple Vehicle Models
-----------------------------------------------
Starting date: November 26, 2014
Type of communication: Recall
Subcategory: Car, SUV
Notification type: Safety Mfr
System: Lights And Instruments
Units affected: 31661
Source of recall: Transport Canada
Identification number: 2014535
TC ID number: 2014535
Manufacturer recall
number: 14291
On certain vehicles, the headlamp driver module (HDM) may not
operate properly in high underhood temperatures. If the HDM is
not operating correctly, the low-beam headlamps and daytime
running lamps could fail to illuminate. Loss of daytime running
lamps and low-beam headlamps could result in decreased driver's
vision, as well as rendering the vehicle less visible to other
motorists, which could result in a crash causing injury and/or
property damage.
To be determined. Note: this condition does not affect the high-
beam headlamps, marker lamps, turn signals, or fog lamps.
Affected products:
Maker Model Model year(s) affected
----- ----- ----------------------
GMC ENVOY 2006
CHEVROLET TRAILBLAZER 2006
CHEVROLET TRAILBLAZER EXT 2006
GMC ENVOY XL 2006
BUICK RAINIER 2006, 2007
BUICK ALLURE 2006, 2007, 2008, 2009
SAAB 9-7X 2006, 2007, 2008
GENERAL MOTORS: Judge May Stay Shareholder Derivative Case
----------------------------------------------------------
Amanda Bronstad, writing for The National Law Journal, reports
that a federal judge in Michigan is considering whether to stay a
consolidated shareholder derivative case against General Motors
Co. over its ignition-switch recalls pending another judge's
ruling in a similar action in Delaware, according to a lawyer in
the case.
U.S. District Judge Robert Cleland originally scheduled oral
arguments for Dec. 18 on whether to dismiss the Michigan case,
which alleges that GM's directors and officers, including chief
executive officer Mary Barra, cost the automaker billions of
dollars by mishandling the ignition-switch defect. GM recalled
2.6 million cars and trucks worldwide for the problem, which shuts
down engines, disabling air bags and power steering.
GM, in an internal report, blamed the problem on negligence by
company engineers and lawyers, many of whom have been fired, but
concluded that the board, Ms. Barra and other top executives were
kept in the dark.
Cleland could stay the derivative lawsuit in light of an
anticipated order by Vice Chancellor Sam Glasscock in Delaware,
where GM is incorporated. GM moved to dismiss the Delaware case on
Dec. 5.
David Honigman -- dhonigman@manteselaw.com -- of Mantese Honigman
Rossman and Williamson in Troy, Mich., one of the plaintiffs
lawyers in the Michigan case, said the issue before Glasscock is a
novel one.
"Here, even if you accept as true that they don't know about the
ignition-switch problems, it's because they literally designed a
reporting system to prevent themselves from knowing," he said.
"There's nothing like that in the reported decisions anywhere in
the nation."
GM spokesman James Cain didn't respond to a request for comment.
The Michigan case names GM as a nominal defendant and 17
individuals, including Ms. Barra.
On Oct. 9, GM moved to dismiss the case on the ground that the
plaintiffs had failed to give specific reasons why they didn't
just ask the board to investigate before filing suit -- a burden
for plaintiffs in shareholder derivative actions known as demand
futility.
"The complaint fails to allege a single fact about any GM board
meeting or decision of the board related to vehicle quality,
safety or recalls," wrote GM attorneys Daniel LaCombe, a member of
Barris, Sott, Denn & Driker, and Raymond Henney --
rhenney@honigman.com -- leader of the securities and corporate
governance litigation practice group at Honigman Miller Schwartz
and Cohn. Both firms are in Detroit.
"Rather, the complaint only repeats the conclusory statement that
the directors failed to oversee GM, an allegation that does not
satisfy the heightened standard for pleading demand futility."
Shareholders insist that such a demand would have been futile
given GM's reporting system, which failed to alert its officers
and directors to the defect.
"Contrary to their oversight duties, the individual defendants
tolerated processes designed to keep them in the dark and a
dysfunctional corporate culture that discouraged accountability,"
Mr. Honigman wrote with Jay Razzouk, an associate at Robbins
Arroyo in San Diego, in a Nov. 10 response.
Meanwhile, a separate class action filed in Michigan on behalf of
GM shareholders has lumbered to the starting gate, mired in
jurisdiction disputes and fights over who should serve as lead
counsel. That case alleges that misstatements about the defect by
Barra and other top executives led to billions of dollars in lost
shareholder value.
On June 18, U.S. District Judge Linda Parker refused GM's request
to transfer the case to Cleland. She appointed New York's
Bernstein Litowitz Berger & Grossmann as lead counsel on Oct. 24.
On Dec. 8, she refused a request by competing firm Pomerantz of
New York to reconsider that order.
A consolidated complaint is due Jan. 15.
GENERAL REVENUE: Sued for Violating Fair Debt Collection Act
------------------------------------------------------------
Lindsay Reeseg, on behalf of herself and all others similarly
situated v. General Revenue Corporation v. John Does 1-25, Case
No. 2:14-cv-08033-WJM-MF (D.N.J., December 29, 2014) alleges
violations of the Fair Debt Collection Practices Act.
The Plaintiff is represented by:
Ari Hillel Marcus, Esq.
MARCUS LAW LLC
1500 Allaire Avenue, Suite 101
Ocean, NJ 07712
Telephone: (732) 660-8169
E-mail: ari@marcuslawyer.com
GLIMCHER REALTY: Entered Into MOU to Settle Class Action
--------------------------------------------------------
Glimcher Realty Trust said in its Form 8-K Report filed with the
Securities and Exchange Commission on December 23, 2014, that the
defendants entered into a memorandum of understanding with the
plaintiffs providing for the settlement of the consolidated class
action.
The Company filed the Current Report on Form 8-K pursuant to a
memorandum of understanding regarding the settlement of certain
litigation relating to the Agreement and Plan of Merger (the
"Merger Agreement"), dated as of September 16, 2014, by and among
Glimcher Realty Trust, a Maryland real estate investment trust
(the "Company"), Glimcher Properties Limited Partnership, a
Delaware limited partnership and a subsidiary of Glimcher
("Glimcher LP"), Washington Prime Group Inc., an Indiana
corporation ("WPG"), Washington Prime Group, L.P., an Indiana
limited partnership and a subsidiary of WPG ("WPG LP"), WPG
Subsidiary Holdings I, LLC, a Maryland limited liability company
and a wholly-owned subsidiary of WPG LP ("Merger Sub I"), and WPG
Subsidiary Holdings II Inc., a Delaware corporation and a wholly-
owned subsidiary of Merger Sub I ("Merger Sub II"). The Merger
Agreement provides that, upon the terms and subject to the
conditions set forth therein, Glimcher will merge with and into
Merger Sub I, with Merger Sub I being the surviving entity (the
"Acquisition Merger") and then Merger Sub II will merge with and
into Glimcher LP, with Glimcher LP being the surviving entity (the
"Partnership Merger" and together with the Acquisition Merger, the
"Mergers"). As a result of the Mergers, Merger Sub I, as the
surviving entity in the Acquisition Merger, will remain a wholly-
owned subsidiary of WPG LP and Glimcher LP will become a wholly-
owned subsidiary of Merger Sub I.
As disclosed on page 195 of the Definitive Proxy Statement/
Prospectus on Schedule 14A filed with the Securities and Exchange
Commission (the "SEC") by the Company on December 2, 2014 (the
"Definitive Proxy Statement"), two shareholder lawsuits
challenging the proposed transactions have been filed in Maryland
state court, respectively captioned Zucker v. Glimcher Realty
Trust et al., 24-C-14-005675 (Circ. Ct. Baltimore City), filed on
October 2, 2014, and Motsch v. Glimcher Realty Trust et al., 24-C-
14-006011 (Circ. Ct. Baltimore City), filed on October 23, 2014.
The actions were consolidated, and on November 12, 2014 plaintiffs
filed a consolidated shareholder class action and derivative
complaint, captioned In re Glimcher Realty Trust Shareholder
Litigation, 24-C-14-005675 (Circ. Ct. Baltimore City) (the
"Consolidated Action") which alleged that the trustees of the
Company breached fiduciary duties and the Company, WPG and certain
of their affiliates aided and abetted the purported breaches of
fiduciary duty.
On December 22, 2014, the defendants entered into a memorandum of
understanding (the "MOU") with the plaintiffs providing for the
settlement of the Consolidated Action. While the Company and WPG
believe that no supplemental disclosure is required under
applicable laws, in order to avoid the burden and expense of
further litigation, the Company and WPG have agreed, pursuant to
the terms of the MOU, to make certain supplemental disclosures
related to the proposed Mergers, all of which are set forth below.
The MOU contemplates that the parties will enter into a
stipulation of settlement. The stipulation of settlement will be
subject to customary conditions, including court approval
following notice to the Company's shareholders. In the event that
the parties enter into a stipulation of settlement, a hearing will
be scheduled at which the Circuit Court for Baltimore City 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 by shareholders of the Company
challenging any aspect of the proposed Mergers, the Merger
Agreement, and any disclosure made in connection therewith,
including in the Definitive Proxy Statement, pursuant to terms
that will be disclosed to shareholders 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 Circuit Court for Baltimore City for an award of
attorneys' fees and expenses to be paid by the Company or its
successor. The settlement, including the payment by the Company or
any successor thereto of any such attorneys' fees, is also
contingent upon, among other things, the Mergers becoming
effective under Maryland law. There can be no assurance that the
Circuit Court for Baltimore City will approve the settlement
contemplated by the MOU. In the event that the settlement is not
approved and such conditions are not satisfied, the defendants
will continue to vigorously defend against the allegations in the
Actions.
GLOBE ELECTRIC: Recalls Chelsea Collection Chandeliers
------------------------------------------------------
Starting date: December 3, 2014
Posting date: December 3, 2014
Type of communication: Consumer Product Recall
Subcategory: Household Items
Source of recall: Health Canada
Issue: Fall Hazard
Audience: General Public
Identification number: RA-42713
Affected products: Globe Brand Chelsea Collection six- and nine-
light chandeliers
The recall involves Globe Chelsea Collection six- and nine-light
chandeliers that have a bronze finish with frosted-glass shades.
The lights included in this recall are model numbers 63335 and
63336 and the UPC numbers are 058219633359 and 058219633366,
respectively. The lights use 60-W type A19 bulbs (sold
separately).
The ring that connects the chandelier to its chain may break and
the chandelier may fall, which could cause injury.
Two incidents have been reported to Rona in Canada. No injuries
have been reported.
Health Canada has not received any reports of consumer incidents
or injuries related to the use of these products.
Approximately 5,300 chandeliers were sold at Rona and R‚no-D‚p“t
stores in Canada.
The recalled products were manufactured in China and sold between
January 2010 and October 2014.
Companies:
Distributor Rona Inc.
Boucherville
Quebec
Canada
Manufacturer Globe Electric Company Inc.
Montreal
Canada
Consumers should contact Globe Electric Company Inc. customer
service at 1-800-361-6761 or by email for a replacement ring.
GREAT FEELING: Recalls Gluten-Free Ice Cream Cookie Sandwiches
--------------------------------------------------------------
Great Feeling Foods, LLC of Portland, OR has issued a voluntary
recall of all Groove Gluten-free Ice Cream Cookie Sandwiches
produced between May 16, 2014 and December 20, 2014. These
products contain custard ice cream base produced and recalled by
Snoqualmie Gourmet Ice Cream, Inc. as an ingredient. This custard
ice cream base has the potential to be contaminated with Listeria
monocytogenes, an organism which can cause serious and sometimes
fatal infections in young children, frail or elderly people, and
others with weakened immune systems. Although healthy individuals
may suffer only short-term symptoms such as high fever, severe
headache, stiffness, nausea, abdominal pain and diarrhea, listeria
infection can cause miscarriages and stillbirths among pregnant
women.
Groove Gluten-free Ice Cream Cookie Sandwiches were distributed to
and sold in various retail outlets in Western and Central Oregon
and Southwest Washington.
The products are sold in 3 fl. oz. single packs and 6 fl. oz. 2-
packs and labeled as Groove. The packages have "Best By" dates
located on the bottom of the package with lot codes printed above
the "Best By" dates.
This voluntary recall is being made with the knowledge of the U.S.
Food and Drug Administration.
Consumers who have purchase the affected product should dispose of
it or return it to the place of purchase for a full refund.
Consumers with questions may contact Great Feeling Foods, LLC at
503-329-2750 during regular business hours (Monday-Friday 9:00am-
5:00pm PST).
GYRODYNE CO: Plaintiffs' Motion to Enjoin Merger Fully Briefed
--------------------------------------------------------------
Gyrodyne Company of America, Inc. said in its Form 10-Q/A
(Amendment No. 1) filed with the Securities and Exchange
Commission on December 23, 2014, for the quarterly period ended
June 30, 2014, that plaintiffs' motion in a class action lawsuit
has been fully briefed and submitted to the Court for resolution.
On July 3, 2014, a purported stockholder of the Company filed a
putative class action lawsuit against the Company and members of
its board of directors (the "Individual Defendants"), and against
GSD and Gyrodyne, LLC (collectively, the "Defendants"), in the
Supreme Court of the State of New York, County of Suffolk (the
"Court"), captioned Cashstream Fund, on Behalf of Itself and All
Others Similarly Situated v. Paul L. Lamb, et al., Index No.
065134/2014 (the "Action"). The plaintiff in the Action alleges
that (i) the Individual Defendants breached their fiduciary duties
or aided and abetted the breach of those duties in connection with
the Merger and (ii) the Company and the Individual Defendants
breached their fiduciary duties by failing to disclose material
information in the Joint Proxy Statement/Prospectus. The plaintiff
in the Action seeks, among other things, injunctive relief
enjoining the Merger, requiring corrective disclosures in the
Joint Proxy Statement/Prospectus, compensatory and/or rescissory
damages, and interest, attorney's fees, expert fees and other
costs.
On July 17, 2014, the Court signed an Order to Show Cause
submitted by the plaintiff setting a return date of August 5, 2014
on plaintiff's motion for an order (a) preliminarily enjoining
consummation of the Merger, (b) granting expedited discovery and
(c) scheduling a hearing for continuation of a preliminary
injunction after completion of expedited discovery.
Plaintiffs' motion has been fully briefed and submitted to the
Court for resolution. The Defendants believe the lawsuit is
without merit.
HAPPY APPLE: Recalls Caramel Apples Due to Possible Contamination
-----------------------------------------------------------------
Happy Apples, is issuing a voluntary recall of Happy Apple Brand
caramel apples with a best use by date between August 25th and
November 23rd 2014, because it has the potential to be
contaminated with Listeria monocytogenes, an organism which can
cause serious and sometimes fatal infections in young children,
frail or elderly people, and others with weakened immune systems.
Although healthy individuals may suffer only short-term symptoms
such as high fever, severe headache, stiffness, nausea, abdominal
pain and diarrhea, Listeria infection can cause miscarriages and
stillbirths among pregnant women.
Happy Apple caramel apples are sold in single pack, three packs,
four packs and eight packs and each package will have a best use
by date on the front of the label. They were available for retail
sale through grocery, discount and club stores, generally in the
produce section and were distributed to retailers in the following
states: Alabama, Arizona, Arkansas, California, Colorado, Florida,
Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Louisiana,
Massachusetts, Minnesota, Mississippi, Missouri, Montana,
Nebraska, Nevada, New Mexico, North Carolina, Ohio, Oklahoma,
Oregon, Pennsylvania, Tennessee, Texas, Utah, Washington,
Wisconsin.
The company has been working with the Food and Drug Administration
in their investigation of the current outbreak of Listeriosis
which has been associated with caramel apples. The company
recently received notice from Bidart Brothers, one of its apple
suppliers to its California facility that there may be a
connection between this outbreak and the apples that they supplied
to that facility.
As has been reported in the news, the Center for Disease Control
has noted 29 illnesses in 10 states linked to the outbreak and
they have advised consumers not to eat commercially produced, pre-
packaged caramel apples until more is known.
The company ceased its operations at the end of October as part of
its normal, seasonal shut down and the caramel apples produced are
no longer available in stores, however, out of an abundance of
caution and concern for consumer safety, the company is
recommending that consumers follow the advice of the CDC and
remove any caramel apples you may have in storage and dispose of
them in a secure container to avoid potential contamination in
animals.
Consumers who have any product may return it to the store where
purchased or dispose of it per the advice of the CDC. Consumers
with questions may contact us at 800-527-7532 Monday through
Friday during normal business hours or via:
email@customercare@happyapples.com
HAYT HAYT: Sued in Florida for Violating Fair Debt Collection Act
-----------------------------------------------------------------
Janet Demonte, on behalf of herself and all others similarly
situated v. Hayt, Hayt & Landau, P.L., a Florida Professional
Limited Liability Company, Case No. 2:14-cv-14510-JEM (S.D. Fla.,
December 29, 2014) accuses the Defendant of violating the Fair
Debt Collection Practices Act.
The Plaintiff is represented by:
Leo Wassner Desmond, Esq.
5070 N. Highway A1A, Suite D
Vero Beach, FL 32963
Telephone: (772) 234-5150
Facsimile: (772) 234-5231
E-mail: lwd@verobeachlegal.com
HOME DEPOT: "Blomberg" Suit Consolidated in Security Breach MDL
---------------------------------------------------------------
The class action lawsuit captioned Blomberg v. Home Depot, Inc.,
Case No. 1:14-cv-09015, was transferred from the U.S. District
Court for the Northern District of Illinois to the U.S. District
Court for the Northern District of Georgia (Atlanta). The Georgia
District Court Clerk assigned Case No. 1:14-cv-04104-TWT to the
proceeding.
The lawsuit is consolidated in the multidistrict litigation known
as In re: The Home Depot, Inc., Customer Data Security Breach
Litigation, MDL No. 1:14-md-02583-TWT.
The litigation arose from the security breach in Home Depot's data
network in late April or early May 2014. The data network
contained the personal financial information of hundreds of
thousands, if not millions, of consumers. The data breach was
first reported on September 2, 2014, by a computer security
blogger.
The Plaintiff is represented by:
Peter S. Lubin, Esq.
Vincent L. DiTommaso, Esq.
DITOMMASO LUBIN, P.C.
17W220 22nd Street
Oakbrook Terrace, IL 60181
Telephone: (630) 333-0000
E-mail: psl@ditommasolaw.com
vdt@ditommasolaw.com
The Defendant is represented by:
George Robert Dougherty, Esq.
GRIPPO & ELDEN
111 South Wacker Drive
Chicago, IL 60606
Telephone: (312) 704-7700
E-mail: gdougherty@grippoelden.com
HOME DEPOT: "Moran" Suit Consolidated in Security Breach MDL
------------------------------------------------------------
The class action lawsuit entitled Moran v. Home Depot U.S.A.,
Inc., Case No. 3:14-cv-02375, was transferred from the U.S.
District Court for the Southern District of California to the U.S.
District Court for the Northern District of Georgia (Atlanta).
The Georgia District Court Clerk assigned Case No. 1:14-cv-04098-
TWT to the proceeding.
The lawsuit is consolidated in the multidistrict litigation known
as In re: The Home Depot, Inc., Customer Data Security Breach
Litigation, MDL No. 1:14-md-02583-TWT.
The litigation arose from the security breach in Home Depot's data
network in late April or early May 2014. The data network
contained the personal financial information of hundreds of
thousands, if not millions, of consumers. The data breach was
first reported on September 2, 2014, by a computer security
blogger.
The Defendant is represented by:
Vickie E. Turner, Esq.
WILSON TURNER KOSMO, LLP
550 West C. Street, Suite 1050
San Diego, CA 92101-3532
Telephone: (619) 236-9600
Facsimile: (619) 236-9669
E-mail: vturner@wilsonturnerkosmo.com
HONDA: Recalls TLX Model Due to Possible Damaged PARK Pawl
----------------------------------------------------------
Starting date: November 28, 2014
Type of communication: Recall
Subcategory: Car
Notification type: Safety Mfr
System: Powertrain
Units affected: 1995
Source of recall: Transport Canada
Identification number: 2014538
TC ID number: 2014538
On certain vehicles equipped with 9-speed automatic transmissions,
the PARK pawl may not properly engage. If the parking pawl fails
to engage and the driver does not use the electric parking brake,
the vehicle may roll away after the brake pedal is released, which
could result in a crash causing injury and/or damage to property.
Dealers will inspect the transmission and repair if necessary.
Affected products: 2015 ACURA TLX
HOSPIRA: Recalls 10 Lots of Mitoxantrone
----------------------------------------
Hospira, Inc. (NYSE: HSP), announced it has initiated a voluntary
recall of 10 lots, identified below, of MitoXANTRONE (both human
and veterinary), due to confirmed subpotency and elevated impurity
levels.
Risk factors associated with these types of out of specifications
may include the potential for decreased potency which can lead to
decreased effectiveness, additional dosing and the potential for
cumulative impurity toxicity requiring medical intervention. To
date, Hospira has not received reports of any adverse events
associated with subpotency and impurities for these lots.
Hospira initiated an investigation to determine the root cause and
corrective and preventive actions. The root cause was
subsequently found and appropriate implementations of improvements
have been initiated for batches manufactured from March 2014.
Anyone with an existing inventory of the recalled lot should stop
use and distribution, and quarantine the product immediately.
This recall is being carried out to the user level (both human and
veterinary). Customers should notify all users in their facility.
Customers who have further distributed the recalled product should
notify any accounts or additional locations which may have
received the recalled product and instruct them if they have
redistributed the product to notify their accounts, locations or
facilities to the consumer level. Hospira has notified its direct
customers via a recall letter and is arranging for impacted
product to be returned to Stericycle in the United States. For
additional assistance in the U.S., call Stericycle at 1-844-265-
7407 between the hours of 8 a.m. to 5 p.m. ET, Monday through
Friday. Customers outside the United States should work with their
local Hospira offices to return the product per local recall
notifications.
HOVNANIAN ENTERPRISES: Settlement Agreement Being Negotiated
------------------------------------------------------------
Hovnanian Enterprises, Inc. said in its Form 10-K Report filed
with the Securities and Exchange Commission on December 19, 2014,
for the fiscal year ended October 31, 2014, that the settlement
agreement in a class action lawsuit is being negotiated and is
subject to Court approval.
Hovnanian Enterprises, Inc. and K. Hovnanian Venture I, L.L.C.
(collectively, the "Company Defendants") have been named as
defendants in a class action suit. The action was filed by Mike
D'Andrea and Tracy D'Andrea, on behalf of themselves and all
others similarly situated in the Superior Court of New Jersey,
Gloucester County.
The action was initially filed on May 8, 2006 alleging that the
HVAC systems installed in certain of the Company's homes are in
violation of applicable New Jersey building codes and are a
potential safety issue. On December 14, 2011, the Superior Court
granted class certification; the potential class is 1,065 homes.
The Company Defendants filed a request to take an interlocutory
appeal regarding the class certification decision. The Appellate
Division denied the request, and the Company Defendants filed a
request for interlocutory review by the New Jersey Supreme Court,
which remanded the case back to the Appellate Division for a
review on the merits of the appeal on May 8, 2012. The Appellate
Division, on remand, heard oral arguments on December 4, 2012,
reviewing the Superior Court's original finding of class
certification.
On June 18, 2013, the Appellate Division affirmed class
certification. On July 3, 2013, the Company Defendants appealed
the June 2013 Appellate Division's decision to the New Jersey
Supreme Court, which elected not to hear the appeal on October 22,
2013. The plaintiff class was seeking unspecified damages as well
as treble damages pursuant to the NJ Consumer Fraud Act. The
Company Defendants' motion to consolidate an indemnity action they
filed against various manufacturer and sub-contractor defendants
to require these parties to participate directly in the class
action was denied by the Superior Court; however, the Company
Defendants' separate action seeking indemnification against the
various manufacturers and subcontractors implicated by the class
action is ongoing.
The Company Defendants, the Company Defendants' insurance carriers
and the plaintiff class agreed to the terms of a settlement on May
15, 2014 in which the plaintiff class will receive a payment of
$21 million in settlement of all claims, with the majority of the
settlement being funded by the Company Defendants' insurance
carriers. The settlement agreement is being negotiated and is
subject to Court approval. The Company has fully reserved for its
share of the settlement.
JAGUAR: Recalls XJ Model Due to Possible Loss of Brake Fluid
------------------------------------------------------------
Starting date: November 26, 2014
Type of communication: Recall
Subcategory: Car
Notification type: Safety Mfr
System: Brakes
Units affected: 199
Source of recall: Transport Canada
Identification number: 2014534
TC ID number: 2014534
Manufacturer recall
number: J048
On certain vehicles, underbody brake pipe unions may not have been
tightened to specification. This could cause a loss of brake
fluid, illuminating the brake warning lamp and causing the
instrument cluster to display the warning message "Fluid Level
Low". If operated in this condition, brake system function could
be affected, potentially increasing stopping distances or causing
a loss of brake system function. This could increase the risk of
a crash causing injury and/or damage to property. Loss of brake
fluid could also affect brake pressure switch function, which
could cause the vehicle to fail to start.
Dealers will inspect, and if necessary, top up the brake fluid and
tighten the joints to the correct torque specification.
Affected products: 2014, 2015 Jaguar XJ
JARDINE FOODS: Recalls Chili Mix Products Due to Undeclared Peanut
------------------------------------------------------------------
Jardine Foods, Inc. is voluntarily recalling Chili Mix products
because they may contain undeclared peanut proteins. The company
was notified by one of its third party suppliers that one of the
spice ingredients purchased contains peanut proteins, an allergen
which is not declared on the products' ingredient statement.
People who have an allergy or severe sensitivity to peanuts run
the risk of serious or life-threatening allergic reaction if they
consume these products.
The recalled products were distributed nationwide in retail stores
and through web orders.
No illnesses have been reported to date. The recall was initiated
after it was discovered that ingredients from a single supplier
used in the affected products were contaminated with peanut
allergens.
Consumers who have purchased the recalled products are urged to
return them to the place of purchase for a full refund. Consumers
with questions may contact the company at 512.295.4600 from 9 am
to 4 pm CST Monday-Friday, or qualityassurance@jardinefoods.com
for additional information.
JPMORGAN CHASE: $4-Bil. RMBS Settlement Faces Challenge
-------------------------------------------------------
Amaris Elliott-Engel, writing for Commercial Litigation Insider,
reports that a $4 billion-plus settlement to resolve JPMorgan
Chase's liability for more than 300 pools of home loans has raised
objections from a number of entities, including the government-
chartered agency that liquidated several credit unions and a
residential mortgage-backed securities insurer on the hook to pay
more than $500 million for the failed trusts.
Manhattan Commercial Division Justice Marcy S. Friedman still must
approve the July 29 settlement, which would resolve at least $65
billion in liability, in an Article 77 proceeding. The case
involves mortgage securities put together by Bear Stearns before
it went under during the 2008 financial crisis and was acquired by
JPMorgan.
The objectors are seeking discovery from 21 institutional
investors who agreed to the settlement. The parties said they
were forced to get the discovery from the institutional investors
because the trustees in U.S. National Bank Association v. Federal
Home Loan Bank of Boston, 652382/2014, did not get that
information from JPMorgan or the institutional investors
themselves.
Most recently, insurer Ambac Assurance Corporation and other
parties have been fighting for discovery into whether the trustees
truly conducted an "exhaustive evaluation" and to support their
contention that the value of the claims that would be released
dwarf the consideration JPMorgan would pay. The objectors also
want to access documents provided to the trustees from their
consulting experts and considered by each trustee's committee when
determining whether to accept the settlement.
Ambac said in its motion for discovery that the proposed
settlement would only return 7.1 percent of the trusts' projected
losses to investors. But an $8.5 billion settlement involving
Countrywide mortgage-backed securities reimbursed investors
between 10.2 percent and 17.1 percent of their projected losses.
A proposed settlement involving Citibank mortgage-backed
securities would reimburse investors' losses by about 8.3 percent.
JPMorgan loans were not better than Countrywide and Citigroup, so
the "proposed settlement appears to be a great deal for JPMorgan
and a very bad deal for investors and Ambac," according to a
filing by Ambac's counsel, partner David H. Wollmuth and partners
Michael C. Ledley, Steven Fitzgerald and Ryan A. Kane of Wollmuth
Maher & Deutsch in New York.
The trustees "apparently have no idea what the institutional
investors' position is on the nature and extent of JPMorgan's
liability. Yet, the position of JPMorgan's adversary obviously is
relevant to understanding the 'value' of the claims being
released, as well as the reasonableness of the trustees' decision
to accept the settlement," lawyers from Wollmuth Maher, Keller
Rohrback, Miller & Wrubel and Axinn, Veltrop & Harkrider, wrote in
another set of court papers.
The objecting parties noted that the settlement negotiated by the
institutional investors would resolve the claims of every
certificate holder in the pooled mortgages, not just those of the
institutional investors. The institutional investors represent
34.25 percent, or $24 billion, of the securities issued by the
trusts.
The objectors also want discovery from JPMorgan, including
materials turned over to the Department of Justice and the
Securities and Exchange Commission that ultimately ended in,
respectively, a $13 billion settlement and a $296.9 million
settlement.
Mr. Wollmuth said in a statement that "Ambac has devoted years of
work and millions of dollars to developing the factual record on
the trusts it is concerned with in the Article 77 proceeding. The
proposed settlement does not fit with the facts known to Ambac
with regard to the relevant trusts, so we very much look forward
to better understanding how the trustees have possibly seen fit to
support the proposed settlement."
JPMorgan said the requested discovery would get into areas far
beyond the question pending before Friedman: whether the trustees
abused their discretion in accepting the settlement. The right to
examine a trustee "does not translate to plenary discovery of
JPMorgan simply because it has settled certain claims with the
trustees," according to partners Robert A. Sacks --
sacksr@sullcrom.com -- Sharon L. Nelles and Darrell S. Cafasso --
cafassod@sullcrom.com -- of Sullivan & Cromwell in New York. The
objectors, however, suggested that a higher standard of review
should apply: whether the trustees violated their duty as
fiduciaries.
The trustees' counsel said in court papers that "permitting this
discovery would transform this action from one concerning the
reasonableness of the trustees' decision to accept the decision
into a costly, multi-year litigation of the underlying claims.
Doing so would undermine the central benefit of the settlement --
prompt recovery for certificate holders without years of costly
and uncertain litigation."
The trustees' court papers also said that, when seeking approval
for the settlement, that their advisor on loan servicing estimated
there were $1.73 billion up to $4.3 billion in losses because,
among other problems, JPMorgan misrepresented that the mortgage
loans conformed in all material respects to their descriptions in
the investor disclosure documents.
Court filings differ on whether a settlement would result in $4.2
billion or $4.5 billion recovery for all of the trusts. JPMorgan
has agreed to a new protocol for servicing loans, including
transferring high-risk loans that become delinquent after 60 days
to sub-servicers.
Partners Kathy Patrick -- kpatrick@gibbsbruns.com -- Robert Madden
and associate David Shereen -- dsheeren@gibbsbruns.com -- of
Gibbs & Bruns in Houston and partner Kenneth E. Warner of Warner
Partners in New York represent the institutional investors.
Lawyers from Jones Day, Mayer Brown, Alston & Bird, Seward &
Kissel, Faegre Baker Daniels, and Morgan Lewis & Bockius represent
the trustees, which include the U.S. Bank National Association,
Bank of New York Mellon, Wilmington Trust, Wells Fargo Bank, Law
Debenture Trust Company, HSBC Bank USA and Deutsche Bank National
Trust Company.
The parties objecting to the settlement include the Federal Home
Loan Bank of Boston, the National Credit Federal Credit Union,
Ambac, and a couple structured finance entities.
KROGER LIMITED: Discriminates Against Cashier & Clerk, Suit Says
----------------------------------------------------------------
Kevin Harvey v. Kroger Limited Partnership I, Case No. 1:14-cv-
02116-SEB-MJD (S.D. Ind., December 29, 2014) is brought for
violation of the Americans with Disabilities Act and the Civil
Rights Act of 1964.
Specifically, the Plaintiff contends that the Defendant
discriminated against him because of his disabilities and sex, and
retaliated against him for activity protected by the ADA and the
Civil Rights Act.
Mr. Harvey, who was hired by the Defendant as a cashier/clerk in
2005, suffers from a disability of an overactive bladder, a
physical impairment and physiological disorder which affects his
genitourinary system. He also suffers from a learning disability,
a mental impairment that substantially limits him in one or more
of his major life activities, including learning.
Kroger Limited Partnership I is a limited partnership doing
business within the geographic boundaries of the Southern District
of Indiana.
The Plaintiff is represented by:
John H. Haskin, Esq.
Paul A. Logan, Esq.
JOHN H. HASKIN & ASSOCIATES
255 North Alabama Street, 2nd Floor
Indianapolis, IN 46204
Telephone: (317) 955-9500
Facsimile: (317) 955-2570
E-mail: jhaskin@jhaskinlaw.com
plogan@jhaskinlaw.com
MERB'S CANDIES: Recalls Bionic Apples and Double Dipped Apples
--------------------------------------------------------------
Merb's Candies, is issuing a voluntary recall of the Merb's
Candies brand Bionic Apples and Double Dipped Apples because they
have the potential to be contaminated with Listeria monocytogenes,
an organism which can cause serious and sometimes fatal infections
in young children, frail or elderly people, and others with
weakened immune systems. Although healthy individuals may suffer
only short-term symptoms such as high fever, severe headache,
stiffness, nausea, abdominal pain and diarrhea, Listeria infection
can cause miscarriages and stillbirths among pregnant women.
Bionic Apples and Double Dipped Apples were available for retail
sales at St. Louis area locations, through local supermarkets
(located in the produce section) and through mail orders
nationwide. The product is individually packaged in a clear,
burgundy and gold cellophane bag and would have been available
from September 8th through November 25th 2014 - no identifying lot
codes were used.
Merb's Candies has been working with the Food and Drug
Administration in their investigation of the current outbreak of
Listeriosis, which has been associated with caramel apples.
Bidart Brothers, who is one of Merb's Candies apple suppliers, has
initiated a recall as there may be a connection between this
outbreak of Listeria Monocytogenes and apples they supplied Merb's
Candies.
As has been reported in the news, the Center for Disease Control
has noted 30 illnesses in 10 states linked to the outbreak and
they have advised consumers not to eat commercially produced, pre-
packaged caramel apples until more is known.
Production of Merb's Candies caramel apples has ceased- as of
November 23rd 2014 - and the caramel apples produced are no longer
available for purchase. However, out of an abundance of caution
and consumer safety concerns, the company recommends that any
consumers that are still in possession of caramel apples follow
the advice of the CDC and dispose of the product in a secure
container to avoid potential contamination to animals.
Consumers who have any product may return it to the store where
purchased or dispose of it per the advice of the CDC. Consumers
with questions may contact the firm at
customercare.merbscandies@gmail.com or during normal business
hours Monday through Friday 9 a.m. to 5 p.m. CST at (314) 832-
7206.
MESSERLI & KRAMER: Removes "Smeby" Suit to District of Minnesota
----------------------------------------------------------------
The class action lawsuit styled Smeby v. Messerli & Kramer, P.A.,
et al., Case No. 27-cv-14-20156, was removed from the Hennepin
County District Court to the U.S. District Court for the District
of Minnesota. The Minnesota District Court Clerk assigned Case
No. 0:14-cv-05086-MJD-JJK to the proceeding.
The lawsuit asserts violations of the Fair Debt Collection
Practices Act.
The Plaintiff is represented by:
Bennett Hartz, Esq.
Jonathan L. R. Drewes, Esq.
DREWES LAW PLLC
1516 West Lake Street, Suite 300
Minneapolis, MN 55408
Telephone: (612) 285-3051
Facsimile: (612) 285-3062
E-mail: bennett@dreweslaw.com
jon@dreweslaw.com
- and -
David J. Carrier, Esq.
Kai H. Richter, Esq.
NICHOLS KASTER, PLLP
80 S 8th St., Suite 4600
Minneapolis, MN 55402-2242
Telephone: (612) 256-3247
Facsimile: (612) 215-6870
E-mail: dcarrier@nka.com
krichter@nka.com
Defendant Messerli & Kramer, P.A., is represented by:
Aram V. Desteian, Esq.
Christopher R. Morris, Esq.
BASSFORD REMELE, PA
33 S 6th St., Suite 3800
Minneapolis, MN 55402-3707
Telephone: (612) 746-1088
Facsimile: (612) 746-1288
E-mail: adesteian@bassford.com
cmorris@bassford.com
Defendant Discover Bank is represented by:
Charles F. Webber, Esq.
Cicely R. Miltich, Esq.
FAEGRE BAKER DANIELS LLP
90 S 7th St., Suite 2200
Minneapolis, MN 55402-3901
Telephone: (612) 766-8719
Facsimile: (612) 766-1600
E-mail: chuck.webber@faegrebd.com
cicely.miltich@faegrebd.com
NASRI INTERNATIONAL: Recalls Badaboom Bathrobes
-----------------------------------------------
Starting date: December 3, 2014
Posting date: December 3, 2014
Type of communication: Consumer Product Recall
Subcategory: Children's Products, Clothing and
Accessories
Source of recall: Health Canada
Issue: Flammability Hazard
Audience: General Public
Identification number: RA-42761
Affected products: Badaboom bathrobes
The recall involves Nasri International Inc. Badaboom brand
bathrobes for children 9 to 24 months, made of 80% cotton and 20%
polyester. The bathrobes feature a zipper in front and a fish
head hood.
Health Canada determined that these products do not meet the
flammability requirements for children's sleepwear under Canadian
law.
Loose-fitting children's sleepwear can contact ignition sources
such as stove elements, candles, and matches more readily than
tight-fitting sleepwear and once ignited will burn rapidly,
potentially resulting in severe burns to large areas of the
child's body. For this reason, cotton is not permitted in loose-
fitting sleepwear.
Neither Health Canada nor Nasri International has received reports
of consumer incidents or injuries related to the use of this
sleepwear.
Approximately 1,012 Badaboom bathrobes were sold in Canada.
The recalled products were manufactured in Canada and sold between
March 2014 and November 2014 exclusively at Aubainerie Concept
Mode.
Companies:
Distributor Nasri International
Montreal
Quebec
Canada
Consumers should immediately stop using the recalled bathrobes and
return them to an Aubainerie Concept Mode store.
NORTHEAST ADJUSTERS: Sued for Violating Fair Debt Collection Act
----------------------------------------------------------------
Samuel Weber, on behalf of himself and all other similarly
situated consumers v. Northeast Adjusters, Inc., Case No. 1:14-cv-
07524 (E.D.N.Y., December 29, 2014) seeks relief pursuant to the
Fair Debt Collection Practices Act.
The Plaintiff is represented by:
Adam Jon Fishbein, Esq.
ADAM J. FISHBEIN, ATTORNEY AT LAW
483 Chestnut Street
Cedarhurst, NY 11516
Telephone: (516) 791-4400
Facsimile: (516) 791-4411
E-mail: fishbeinadamj@gmail.com
NOVA SCOTIA: Canada Supreme Court Decision in Class Suit Pending
----------------------------------------------------------------
Province of Nova Scotia said in an exhibit to its Form 18-K Annual
Report (For Foreign Government and Political Subdivisions Thereof)
filed with the U.S. Securities and Exchange Commission on December
22, 2014, for the fiscal year ended March 31, 2014, that residents
and former residents of neighborhoods surrounding the former steel
plant and coke ovens in Sydney, Nova Scotia have brought a class
action against the Province. Canada is co-defendant. The
plaintiffs seek damages for harm to property based on soil
contamination and risk of health issues related to air emissions
and soil contamination as a result of emissions from the operation
of the steel plant and coke ovens owned and operated by Sydney
Steel Corporation. The plaintiffs also seek establishment of a
fund for health education for the public and medical community,
and for an epidemiology study to establish health risks.
Additional claims include negligence, strict liability, nuisance,
battery and trespass related to the air emissions, breach of
fiduciary duty based on public statements that it was as safe to
live in Sydney as any urban area.
The proceeding was certified as a class proceeding, but the Court
of Appeal overturned the certification. The Plaintiffs have sought
leave to appeal to the Supreme Court of Canada, and its decision
is pending.
"We are unable to estimate the likelihood of success or loss at
this stage of the proceedings," the Cmpany said.
NOVA SCOTIA: 100 People Join Suit Over Single Entry Access System
-----------------------------------------------------------------
Province of Nova Scotia said in an exhibit to its Form 18-K Annual
Report (For Foreign Government and Political Subdivisions Thereof)
filed with the U.S. Securities and Exchange Commission on December
22, 2014, for the fiscal year ended March 31, 2014, that a class
action has been certified on behalf of residents of nursing homes,
spouses of those residents, or their estates if deceased, seeking
restitution and damages as a result of the introduction by the
Province of Nova Scotia of a Single Entry Access System for
nursing homes admissions in the province between February 1, 2001
and January 1, 2005. The system required both a financial and
health needs assessment for all nursing home applicants,
regardless of their stated ability to pay, and continued as before
to require financially-able persons admitted to nursing homes to
pay some or all of their health care costs in the nursing home.
The claim has been brought on behalf of those applicants for
admission who said they had the ability to pay their own costs and
therefore did not wish to be assessed for admission on the basis
of health need and ability to pay. The claim alleges the
introduction of the Single Entry Access System by the Province
amounted to misfeasance in public office, fraudulent
misrepresentation and deceit, negligence, breach of fiduciary
duty, equitable fraud, unjust enrichment and unconstitutional
discrimination, and seeks restoration of health care costs paid,
damages and costs. Approximately 100 people have joined in the
class action to date. The action is in the discovery stage. The
Province is unable to assess the likelihood of loss at this time.
NOVA SCOTIA: Paid $29 Million to Settle Class Action
----------------------------------------------------
Province of Nova Scotia said in an exhibit to its Form 18-K Annual
Report (For Foreign Government and Political Subdivisions Thereof)
filed with the U.S. Securities and Exchange Commission on December
22, 2014, for the fiscal year ended March 31, 2014, that a class
action proceeding commenced against the Attorney General of Nova
Scotia by former residents of the Nova Scotia Home for Coloured
Children relating to abuse occurring from the 1940s through the
1980s was settled during 2014. The settlement agreement related to
this action was approved by the Nova Scotia Supreme Court by an
Order issued on July 7, 2014. No class members opted out of the
settlement agreement following a period of Court-approved
advertisement, the result being that all of the 56 individual
actions brought against the Province prior to the filing of the
class proceeding, were dismissed, or deemed to be dismissed. The
settlement agreement became effective September 26, 2014, and
payment of a settlement amount of $29 million was made by wire
transfer to the administrator responsible for administering the
payment process distributing compensation to all eligible class
members shortly thereafter.
OHR PHARMACEUTICAL: No Longer Involved in "Schmidt" Litigation
--------------------------------------------------------------
OHR Pharmaceutical, Inc.. said in its Form 10-K Report filed with
the Securities and Exchange Commission on December 22, 2014, for
the fiscal year ended September 30, 2014, that a class action
litigation filed by Alan Schmidt has ended with respect to claims
against the Company, and management believes that it is unlikely
that the litigation continuing against other parties will have a
material adverse impact on the Company's financial condition.
In June 2012, the Company was named, along with other parties, as
a defendant in a putative class action lawsuit brought, as
amended, by Alan Schmidt, individually, and on behalf of Genaera
Corporation and the Genaera Liquidating Trust ("Trust").
"We purchased biotechnology assets from the Trust in 2009. On
August 12, 2013, the court dismissed each of the plaintiff's
claims against the Company. The litigation has ended with respect
to claims against the Company, and management believes that it is
unlikely that the litigation continuing against other parties will
have a material adverse impact on the Company's financial
condition," the Company said.
PET EXTREME: "Torres" Plaintiff Must Submit Briefing by Jan. 12
---------------------------------------------------------------
In the case, CIRENA TORRES, on behalf of herself and all others
similarly situated, Plaintiffs, v. PET EXTREME, Defendant, Case
No. 1:13-cv-01778-LJO-SAB (E.D. Cal.), Magistrate Judge Stanley A.
Boone directed Plaintiff to submit further briefing on the number
of class members that have submitted claims forms on or before
January 12, 2015.
On September 9, 2014, an order issued adopting findings and
recommendations and granting preliminary approval of the
settlement of this class action. A hearing on the final approval
of the class action settlement is set for January 14, 2015 before
the undersigned. On December 12, 2014, Plaintiff filed a motion
for final approval of the class action settlement and a motion for
attorney fees. Upon review of Plaintiff's motions, the Court
required Plaintiff to submit further briefing.
In the motion for final approval of the class action settlement,
Plaintiff states that no class member has opted out of or objected
to the settlement; however no information has been provided on the
number of class members that have submitted claim forms to date.
A copy of the Court's January 5, 2015 Order is available at
http://is.gd/WvhtVofrom Leagle.com.
Plaintiff Cirena Torres is represented by:
Chant Yedalian, Esq.
CHANT & COMPANY
1010 N. Central Ave.
Glendale, CA 91202
Tel: 877-574-7100
Fax: 877-574-9411
Defendant Pet Extreme is represented by:
Lawrence Michael Cirelli, Esq.
Mohammad Walizadeh, Esq.
HANSON BRIDGETT LLP
425 Market Street, 26th Floor
San Francisco, CA 94105
Tel: 415-995-5003
E-mail: lcirelli@hansonbridgett.com
mwalizadeh@hansonbridgett.com
PIEDMONT BEHAVIORAL: Settlement in "L.S." Suit Has Preliminary OK
-----------------------------------------------------------------
Judge Louise Wood Flanagan of the United States District Court for
the Eastern District of North Carolina, Western Division, issued
an order dated Jan. 2, 2015, granting preliminary approval of a
settlement agreement entered into in the class action styled L.S.,
a minor child, by and through his father and next friend, Ron. S.;
K.C., a minor child, by and through his mother and next friend,
Africa H.,; ALLISON TAYLOR JOHNS; and D.C., a minor child, by his
mother and next friend, Penny C.; Plaintiffs, M.S., a minor child,
through his parent and natural guardian, Rachelle S., Intervenor
Plaintiff, v. ALDONA ZOFIA WOS, in her official capacity as the
Secretary of the Department of Health and Human Services; PAMELA
SHIPMAN, in her official capacity as Area Director of Piedmont
Behavioral Health Care Area Mental Health, Developmental
Disabilities, and Substance Abuse Authority, and PIEDMONT
BEHAVIORAL HEALTHCARE AREA MENTAL HEALTH, DEVELOPMENTAL
DISABILITIES AND SUBSTANCE ABUSE AUTHORITY doing business as PBH,
Defendants, CIVIL ACTION FILE NO. 5:11-CV-354 (E.D.N.C.).
The Settlement Agreement was filed on behalf of certain
participants on the 1915(c) Innovations Medicaid waiver, many of
whom are minors and/or incompetent individuals. The settlement,
if approved, includes a set of agreements regarding due process
procedures that will apply to Medicaid-reimbursable services
covered under the Innovations waiver. The Plaintiffs in the class
action allege that the defendants have violated certain provisions
of the United States Constitution and the Medicaid Act.
A hearing will be held on April 6, 2015, at 1:30 p.m. at the
United States District Court in New Bern, North Carolina, 413
Middle Street, New Bern, NC 28560, to consider and act upon any
objection to the proposed settlement, and, if appropriate, to
approve the settlement.
A full-text copy of Judge Flanagan's Decision is available at
http://is.gd/Lr2QA2from Leagle.com.
K.C., Plaintiff, represented by Morris Fonville McAdoo, Disability
Rights of North Carolina, Douglas Stuart Sea, Legal Services of
Southern Piedmont, Jennifer Leah Bills, Disability Rights of North
Carolina, Martha Jane Perkins, National Health Law Program & John
R. Rittelmeyer, Disability Rights North Carolina.
Allison Taylor Johns, Plaintiff, represented by Morris Fonville
McAdoo, Disability Rights of North Carolina, Douglas Stuart Sea,
Legal Services of Southern Piedmont, Jennifer Leah Bills,
Disability Rights of North Carolina, Martha Jane Perkins, National
Health Law Program & John R. Rittelmeyer, Disability Rights North
Carolina.
L.S., Plaintiff, represented by Morris Fonville McAdoo, Disability
Rights of North Carolina, Douglas Stuart Sea, Legal Services of
Southern Piedmont, Jennifer Leah Bills, Disability Rights of North
Carolina, Martha Jane Perkins, National Health Law Program & John
R. Rittelmeyer, Disability Rights North Carolina.
D.C., a minor child, by his mother and next friend, Penny C.,
Plaintiff, represented by Morris Fonville McAdoo, Disability
Rights of North Carolina, Douglas Stuart Sea, Legal Services of
Southern Piedmont, Jennifer Leah Bills, Disability Rights of North
Carolina, Martha Jane Perkins, National Health Law Program & John
R. Rittelmeyer, Disability Rights North Carolina.
M.S., a minor child, through his parent and natural guardian
Rachelle S., Intervenor Plaintiff, represented by Douglas Stuart
Sea, Legal Services of Southern Piedmont, John R. Rittelmeyer,
Disability Rights North Carolina, Jennifer Leah Bills, Disability
Rights of North Carolina & Martha Jane Perkins, National Health
Law Program.
M.S., Intervenor Plaintiff, represented by Morris Fonville McAdoo,
Disability Rights of North Carolina.
Pamela Shipman, Defendant, represented by Reed J. Hollander, Esq.
-- reed.hollander@nelsonmullins.com -- Nelson Mullins Riley &
Scarborough LLP, Stephen D. Martin, Esq. --
steve.martin@nelsonmullins.com -- at Nelson Mullins Riley &
Scarborough, LLP & Wallace C. Hollowell, III, Cardinal Innovations
Healthcare Solutions.
Piedmont Behavioral Healthcare Area Mental Health, Developmental
Disabilities and Substance Abuse Authority, Defendant, represented
by Reed J. Hollander, Nelson Mullins Riley & Scarborough LLP,
Stephen D. Martin, Nelson Mullins Riley & Scarborough, LLP &
Wallace C. Hollowell, III, Cardinal Innovations Healthcare
Solutions.
Aldona Zofia Wos, Defendant, represented by Belinda A. Smith, N.
C. Dept. of Justice & Iain Stauffer, N. C. Dept. of Justice.
PLASTIC2OIL INC: April 27 Final Hearing on Class Action Deal
------------------------------------------------------------
Plastic2oil, Inc. said in its Form 8-K Report filed with the
Securities and Exchange Commission on December 23, 2014, that the
Court scheduled a hearing on April 27, 2015, at which the Court
will be asked to finally approve a class action settlement.
On August 8, 2013, Plastic2Oil, Inc. (formerly known as JBI, Inc.)
(the "Company") entered into a stipulation agreement (the
"Stipulation Agreement") in potential settlement of the previously
reported class action lawsuit filed by certain stockholders of the
Company against the Company and Messrs. Bordynuik and Baldwin
(both former officers of the Company) on behalf of a settlement
class consisting of purchasers of the Company's common stock
during the period from August 28, 2009 through January 4, 2012.
The terms of the Stipulation Agreement are summarized in the
Company's Form 8-K, filed with the Securities and Exchange
Commission on August 9, 2013.
On December 18, 2014, the Court filed and entered its Order
Preliminarily Approving Settlement and Providing for Notice of
Proposed Settlement (the "Preliminary Approval Order"). In its
Preliminary Approval Order the Court preliminarily approved the
settlement, and scheduled a hearing on April 27, 2015, at which
the Court will be asked to finally approve the settlement of the
litigation and to enter judgment accordingly.
Any actual settlement is subject to risks and uncertainties
including, among other things, objections from class members to
the terms of the settlement and failure of the Court to approve
the settlement.
POLYCOM INC: Case Management Conference in FLSA Suit Vacated
------------------------------------------------------------
The Initial Case Management Conference currently set for Jan. 16,
2015, at 10:00 a.m., in the lawsuit captioned MARK NATHANSON,
Individually and On Behalf of All Others Similarly Situated,
Plaintiff, v. POLYCOM, INC., ANDREW M. MILLER, MICHAEL R. KOUREY,
and ERIC F. BROWN, Defendants, CASE NO. 3:13-CV-03476-SC (N.D.
Calif.), is vacated and will be set to a date and time as the
United States District Court for the Northern District of
California, San Francisco Division, may order after the Court
issues its order on the Defendants' pending Motions to Dismiss.
In this case, plaintiff Sean Avery Neal filed an initial purported
Class Action Complaint for Violation of the Federal Securities
Laws on July 26, 2013, setting forth claims under the federal
securities laws that are subject to the procedural requirements of
the Private Securities Litigation Reform Act of 1995.
A full-text copy of the Jan. 2, 2015, stipulation approved by U.S.
District Judge Samuel Conti, Sr., is available at
http://is.gd/wMEGfnfrom Leagle.com.
KEITH E. EGGLETON, Esq. -- keggleton@wsgr.com -- RODNEY G.
STRICKLAND, Esq. -- rstrickland@wsgr.com -- KELLEY M. KINNEY, Esq.
-- kkinney@wsgr.com -- CHERYL W. FOUNG, Esq. -- cfoung@wsgr.com --
and LUKE A. LISS, Esq. -- lliss@wsgr.com -- at WILSON SONSINI
GOODRICH & ROSATI, Professional Corporation, Palo Alto, CA,
Attorneys for Defendants Polycom, Inc., Michael R. Kourey, and
Eric F. Brown.
MORRISON FOERSTER, Philip T. Besirof, Esq. -- pbesirof@mofo.com --
and PAUL T. FRIEDMAN, Esq. -- pfriedman@mofo.com -- San Francisco,
CA, Attorneys for Defendant Andrew M. Miller.
POMERANTZ GROSSMAN HUFFORD, DAHLSTROM & GROSS LLP, JEREMY A.
LIEBERMAN, Esq. -- jalieberman@pomlaw.com -- and EMMA GILMORE,
Esq. -- egilmore@pomlaw.com -- New York, New York, POMERANTZ
GROSSMAN HUFFORD, DAHLSTROM & GROSS LLP, PATRICK V. DAHLSTROM,
Esq. -- pdahlstrom@pomlaw.com -- Chicago, IL, GLANCY BINKOW &
GOLDBERG LLP, LIONEL Z. GLANCY, Esq. -- lglancy@glancylaw.com --
MICHAEL GOLDBERG, Esq. -- mgoldberg@glancylaw.com -- and ROBERT
PRONGAY, Esq. -- RProngay@glancylaw.com -- in Los Angeles, CA,
Attorneys for Lead Plaintiff Mark Nathanson.
Polycom provides open, standards-based unified communications and
collaboration ("UC&C") solutions for voice, video and content
collaboration solutions.
REAL FOODS: Recalls Tofu Pad Thai Bowl & Thai Noodle Salad
----------------------------------------------------------
Real Foods of Kent, WA is initiating a voluntary recall of 299
units of Tofu Pad Thai Bowl and 178 units of Thai Noodle Salad due
to misbranding and undeclared allergens. The product contains
shellfish (shrimp), a known allergen which is not declared on the
product label. People who have an allergy or severe sensitivity
to shellfish (shrimp) run the risk of serious or life-threatening
allergic reaction if they consume this product.
There were 2 units produced on 12/18/14 with a best by of 12/23/14
and 2 units produced on 12/19/14 with a best by of 12/24/14. The
4 units were shipped to one Fred Meyer store in Kent, WA.
There were a total of 295 units produced on 12/18/14, 12/19/14 and
12/20/14 and were shipped to a limited number of QUALITY FOOD
CENTERS stores in Washington State and Oregon only. This product
was distributed and sold to Quality Food Centers stores in the
following cities: Belfair, WA; Tacoma, WA; Port Townsend, WA;
Lacey, WA; Portland, OR; Vancouver, WA; Kent, WA; Seattle, WA;
Mercer Island, WA; Bellevue, WA; Kirkland, WA; Bothell, WA;
Redmond, WA; Issaquah, WA; North Bend, WA; Mukilteo, WA; Bothell,
WA; Lynnwood, WA; Sequim, WA; Edmonds, WA; Everett, WA; Mill
Creek, WA; Mt. Lake Terrace, WA; Enumclaw, WA; Renton, WA;
Stanwood, WA; Maple Valley, WA; Gig Harbor, WA; and Pt. Hadlock,
WA.
There were a total of 178 units produced on 12/14/14 through
12/19/14 and were shipped to a limited number of Haggen/Top Foods
stores in Washington State and Oregon State only. This product
was distributed and sold to Haggen/Top Foods stores in the
following cities: Olympia, WA; Bellingham, WA; Burlington, WA;
Stanwood, WA; Snohomish, WA; Ferndale, WA; Mt. Vernon, WA; Lake
Stevens, WA; Marysville, WA; Auburn, WA; Puyallup, WA;
Woodinville, WA; Aberdeen, WA and Tualatin, OR.
No other products or code dates are affected by this recall. This
recall is being made with the knowledge of the U.S. Food and Drug
Administration.
There have been no adverse reactions or illnesses attributed to
the recalled item.
Customers who have purchased this product and are sensitive to
shellfish (shrimp) products or have shellfish (shrimp) allergies
should not consume the above-mentioned product. This product may
be returned to the store where purchased for a full refund.
REDFIN CORPORATION: "Sandoval" Moved to Calif. Central District
---------------------------------------------------------------
Judge Samuel Conti, Sr., of the United States District Court for
the Northern District of California, granted the stipulation
transferring the putative class action lawsuit styled MAURICE
SANDOVAL, on behalf of himself and all persons similarly situated,
Plaintiff, v. REDFIN CORPORATION, and DOES 1-10, INCLUSIVE,
Defendants, CASE NO. 14-4444 SC (N.D. Calif.), to the Central
District of California, after determining that transferring the
action to the Central District will serve the interests of justice
and convenience of the parties and witnesses.
The class action alleges various violations of state and federal
law arising out of Defendant Redfin Corporation's classification
of its real estate agents as exempt from overtime wages and other
related benefits. The case was originally filed in San Mateo
County Superior Court and removed to federal court on the basis of
diversity jurisdiction under the Class Action Fairness Act of
2005. After the case was reassigned to the Northern District of
California, the parties stipulated to transfer the case to the
Central District for potential consolidation with the cases
Goundar v. Redfin Corp., No. 2:13-cv-03698-PSG-MRW (C.D. Cal.);
and Badivian v. Redfin Corp., No. 2:13-cv-03664-PSG-MRW (C.D.
Cal.). According to the parties, Goundar and Badivian, which are
pending before Judge Philip S. Gutierrez of the Central District
of California, involve the same parties and claims at issue here.
A full-text copy of the stipulation approved on Jan. 5, 2015, is
available at http://is.gd/WP92utfrom Leagle.com.
Maurice Sandoval, Plaintiff, represented by Norman B. Blumenthal,
Blumentha, Nordrehaug & Bhowmik, Aparajit Bhowmik, Blumenthal,
Nordrehaug & Bhowmik, Kyle Roald Nordrehaug, Blumenthal,
Nordrehaug & Bhowmik & Ruchira Piya Mukherjee, Blumenthal
Nordrehaug & Bhowmik.
Redfin Corporation, Defendant, represented by Ronald D. Arena,
Esq. -- RArena@arenahoffman.com -- Arena Hoffman LLP, Kathryn
Macomber Weeks, Esq. -- kweeks@arenahoffman.com -- Arena Hoffman
LLP & Michael A. Hoffman, III, Esq. -- MHoffman@arenahoffman.com
-- at Arena Hoffman LLP.
REGIONAL ADJUSTMENT: Violates Fair Debt Collection Act, Suit Says
-----------------------------------------------------------------
Ari Pfeffer, on behalf of himself and all other similarly situated
consumers v. The Regional Adjustment Bureau, Incorporated, Case
No. 1:14-cv-07538 (E.D.N.Y., December 29, 2014) alleges violations
of the Fair Debt Collection Practices Act.
The Plaintiff is represented by:
Adam Jon Fishbein, Esq.
ADAM J. FISHBEIN, ATTORNEY AT LAW
483 Chestnut Street
Cedarhurst, NY 11516
Telephone: (516) 791-4400
Facsimile: (516) 791-4411
E-mail: fishbeinadamj@gmail.com
REYNOLDS AMERICAN: 5 Tobacco-Related Cases Served Thru Dec. 12
--------------------------------------------------------------
Reynolds American Inc. said in an exhibit to its Form 8-K Report
filed with the Securities and Exchange Commission on December 19,
2014, that from the beginning of the fourth quarter of 2014
through December 12, 2014, five tobacco-related cases, including
one Engle Progeny case, were served against R. J. Reynolds Tobacco
Co. or its affiliates or indemnitees. On December 12, 2014, there
were 176 cases pending against RJR Tobacco or its affiliates or
indemnitees: 160 in the United States and 16 in Canada, as
compared with 165 total cases on December 31, 2013. The U.S. case
number does not include the approximately 564 individual smoker
cases pending in West Virginia state court as a consolidated
action, 4,000 Engle Progeny cases, involving approximately 5,084
individual plaintiffs, and 2560 Broin II cases (as hereinafter
defined), pending in the United States against RJR Tobacco or its
affiliates or indemnitees.
Of the U.S. cases pending on December 12, 2014, 14 are pending in
federal court, 145 in state court and 1 in tribal court, primarily
in the following states: Maryland (28 cases); Florida (26 cases);
Missouri (18 cases); New York (14 cases); and Delaware (12 cases).
The following table lists the categories of the U.S. tobacco-
related cases pending against RJR Tobacco or its affiliates or
indemnitees as of December 12, 2014, compared with the number of
cases pending against RJR Tobacco, its affiliates or indemnitees
as of September 30, 2014, as reported in RAI's Quarterly Report on
Form 10-Q for the fiscal quarter ended September 30, 2014, filed
with the SEC on October 21, 2014, and a cross-reference to the
discussion of each case type.
REYNOLDS AMERICAN: 4,000 Engle Progeny Cases Pending at Dec. 12
---------------------------------------------------------------
Reynolds American Inc. said in an exhibit to its Form 8-K Report
filed with the Securities and Exchange Commission on December 19,
2014, that as of December 12, 2014, 806 Engle Progeny cases were
pending in federal court, and 3,194 of them were pending in state
court.
In 2000, a jury in Engle v. Liggett Group, a class action brought
against the major U.S. cigarette manufacturers by Florida smokers
allegedly harmed by their addiction to nicotine, rendered a $145
billion punitive damages verdict in favor of the class. In 2006,
the Florida Supreme Court set aside that award, prospectively
decertified the class, and preserved several of the Engle jury
findings for use in subsequent individual actions to be filed
within one year of its decision. The preserved findings include
jury determinations that smoking causes various diseases, that
nicotine is addictive, and that each defendant sold cigarettes
that were defective and unreasonably dangerous, committed
unspecified acts of negligence and individually and jointly
concealed unspecified information about the health risks of
smoking.
In the wake of Engle, thousands of individual progeny actions were
filed in federal and state courts in Florida. Such actions are
commonly referred to as "Engle Progeny" cases. As of December 12,
2014, 806 Engle Progeny cases were pending in federal court, and
3,194 of them were pending in state court. These cases include
approximately 5,084 plaintiffs. In addition, as of December 12,
2014, R. J. Reynolds Tobacco Co. was aware of 16 additional Engle
Progeny cases that had been filed but not served. One hundred
nineteen Engle Progeny cases have been tried in Florida state and
federal courts since 2011, and numerous state court trials are
scheduled for 2015. The number of pending cases fluctuates for a
variety of reasons, including voluntary and involuntary
dismissals. Voluntary dismissals include cases in which a
plaintiff accepts an "offer of judgment," referred to in Florida
statutes as "proposals for settlement," from RJR Tobacco and/or
its affiliates. An offer of judgment, if rejected by the
plaintiff, preserves RJR Tobacco's right to recover attorneys'
fees under Florida law in the event of a verdict favorable to RJR
Tobacco. Such offers are sometimes made through court-ordered
mediations.
In Engle Progeny cases tried to date, a central issue has been the
proper use of the preserved Engle findings. RJR Tobacco has argued
that use of the Engle findings to establish individual elements of
progeny claims (such as defect, negligence and concealment) is a
violation of federal due process. In 2013, however, both the
Florida Supreme Court and the U.S. Court of Appeals for the
Eleventh Circuit, referred to as the Eleventh Circuit, rejected
that argument. In addition to this global due process argument,
RJR Tobacco raises many other factual and legal defenses as
appropriate in each case. These defenses may include, among other
things, arguing that the plaintiff is not a proper member of the
Engle class, that the plaintiff did not rely on any statements by
any tobacco company, that the trial was conducted unfairly, that
some or all claims are preempted or barred by applicable statutes
of limitation or statutes of repose, or that any injury was caused
by the smoker's own conduct.
REYNOLDS AMERICAN: Paid $5MM in Engle Cases During 4th Quarter
--------------------------------------------------------------
Reynolds American Inc. said in an exhibit to its Form 8-K Report
filed with the Securities and Exchange Commission on December 19,
2014, that 27 Engle Progeny cases have become final to date. These
cases resulted in aggregate payments by R. J. Reynolds Tobacco Co.
of $203.8 million ($154.6 million for compensatory and punitive
damages and $49.2 million for attorneys' fees and statutory
interest). During the fourth quarter of 2014 (through December 12,
2014), aggregate payments of $5 million were made: $4.5 million
for compensatory and punitive damages and $480,000 for attorneys'
fees and statutory interest in satisfaction of the adverse
judgments in the Odum and Virginia Williams cases.
REYNOLDS AMERICAN: Judgments in Engle Progeny Cases Total $23.9BB
-----------------------------------------------------------------
Reynolds American Inc. said in an exhibit to its Form 8-K Report
filed with the Securities and Exchange Commission on December 19,
2014, that as of December 12, 2014, outstanding judgments in favor
of the Engle Progeny plaintiffs have been entered and remain
outstanding against R. J. Reynolds Tobacco Co. in the amount of
$144,455,200 in compensatory damages (as adjusted) and in the
amount of $23,774,292,000 in punitive damages, for a total of
$23,918,747,200.
Excluding the Robinson case, where a jury awarded $16.9 million in
compensatory damages and $23.6 billion in punitive damages and
where post-trial motions are pending before the trial court,
outstanding judgments in favor of the Engle Progeny plaintiffs
have been entered and remain outstanding against RJR Tobacco in
the amount of $127,555,200 in compensatory damages (as adjusted)
and in the amount of $174,292,000 in punitive damages, for a total
of $301,847,200. All of these verdicts are at various stages in
the appellate process. RJR Tobacco continues to believe that it
has valid defenses in these cases, including case-specific issues
beyond the due process issue discussed above. It is the policy of
RJR Tobacco and its affiliates to vigorously defend all smoking
and health claims, including in Engle Progeny cases.
Should RJR Tobacco not prevail in any particular individual Engle
Progeny case or determine that in any individual Engle Progeny
case an unfavorable outcome has become probable and the amount can
be reasonably estimated, a loss would be recognized, which could
have a material adverse effect on earnings and cash flows of RAI
in a particular quarter or year. This position on loss recognition
for Engle Progeny cases as of December 12, 2014, is consistent
with RAI's and RJR Tobacco's historic position on loss recognition
for other smoking and health litigation. It is also the policy of
RJR Tobacco to record any loss concerning litigation at such time
as an unfavorable outcome becomes probable and the amount can be
reasonably estimated on an individual case-by-case basis.
REYNOLDS AMERICAN: 63 Engle Progeny Cases for Trial Thru Dec 2015
-----------------------------------------------------------------
Reynolds American Inc. said in an exhibit to its Form 8-K Report
filed with the Securities and Exchange Commission on December 19,
2014, that there are seven cases, exclusive of Engle Progeny
cases, scheduled for trial as of December 12, 2014 through
December 12, 2015, for R. J. Reynolds Tobacco Co. or its
affiliates and indemnitees: two non-smoking and health cases and
five individual smoking and health cases. There are 63 Engle
Progeny cases against RJR Tobacco and/or B&W set for trial through
December 12, 2015, but it is not known how many of these cases
will actually be tried.
Trial schedules are subject to change, and many cases are
dismissed before trial. It is likely that RJR Tobacco and other
cigarette manufacturers will have an increased number of tobacco-
related trials in 2015.
REYNOLDS AMERICAN: 9 Engle Progeny Cases Were Tried Thru Dec. 12
----------------------------------------------------------------
Reynolds American Inc. said in an exhibit to its Form 8-K Report
filed with the Securities and Exchange Commission on December 19,
2014, that from January 1, 2011 through December 12, 2014, 125
smoking and health, Engle Progeny and health-care cost recovery
cases in which R. J. Reynolds Tobacco Co. or B&W were defendants
were tried, including six trials for cases where mistrials were
declared in the original proceedings. Verdicts in favor of RJR
Tobacco, B&W and, in some cases, RJR Tobacco, B&W and other
defendants, were returned in 62 cases, including 19 mistrials,
tried in Florida (59), Missouri (1) and West Virginia (2).
Verdicts in favor of the plaintiffs were returned in 58 cases
tried in Florida and one in New York. Three cases in Florida were
dismissed during trial. One case in Florida was a retrial only as
to the amount of damages.
In the fourth quarter of 2014 (through December 12, 2014), nine
Engle Progeny cases in which RJR Tobacco was a defendant were
tried:
-- In Lourie v. R. J. Reynolds Tobacco Co., the jury returned a
verdict in favor of the plaintiff, found the decedent, Barbara
Lourie, to be 63% at fault, RJR Tobacco to be 3% at fault and the
remaining defendants collectively to be 34% at fault, and awarded
approximately $1.37 million in compensatory damages. Punitive
damages were not awarded.
-- In Kerrivan v. R. J. Reynolds Tobacco Co., the jury returned a
verdict in favor of the plaintiff, found the plaintiff to be 19%
at fault, RJR Tobacco to be 31% at fault, the remaining defendant
to be 50% at fault and awarded $15.8 million in compensatory
damages and $9.6 million in punitive damages against RJR Tobacco
and $15.7 million in punitive damages against the remaining
defendant.
-- In Russo v. Philip Morris USA Inc., the court declared a
mistrial because of the inability to seat a jury.
-- In Bishop v. R. J. Reynolds Tobacco Co., the jury returned a
verdict in favor of the defendants, including RJR Tobacco.
-- In Taylor v. R. J. Reynolds Tobacco Co., the jury returned a
verdict in favor of the plaintiff, found the plaintiff to be 42%
at fault, RJR Tobacco to be 58% at fault and awarded approximately
$4.5 million in compensatory damages and approximately $521,000 in
punitive damages.
-- In the Webb v. R. J. Reynolds Tobacco Co. damages retrial, the
jury returned a verdict of $900,000 in compensatory damages and
$450,000 in punitive damages.
-- In Schleider v. R. J. Reynolds Tobacco Co., the jury returned
a verdict in favor of the plaintiff, found the decedent, Andrew
Schleider, to be 30% at fault, RJR Tobacco to be 70% at fault and
awarded $21 million in compensatory damages.
-- In Perrotto v. R. J. Reynolds Tobacco Co., the jury returned a
verdict in favor of the plaintiff, found the decedent, Nicholas
Perrotto, to be 49% at fault, RJR Tobacco to be 20% at fault, and
the remaining defendants collectively to be 31% at fault, and
awarded approximately $4.1 million in compensatory damages, but
refused to award punitive damages.
-- In the Andy Allen v. R. J. Reynolds Tobacco Co. retrial, the
jury returned a verdict in favor of the plaintiff, found the
decedent to be 70% at fault, RJR Tobacco to be 24% at fault and
the remaining defendant to be 6% at fault, and awarded $3.1
million in compensatory damages and approximately $7.76 million in
punitive damages against each defendant.
During the fourth quarter of 2014, through December 12, 2014, no
non-Engle Progeny individual smoking and health cases in which RJR
Tobacco was a defendant were tried.
REYNOLDS AMERICAN: 95 Individual Smoking Cases Pending at Dec. 12
-----------------------------------------------------------------
Reynolds American Inc. said in an exhibit to its Form 8-K Report
filed with the Securities and Exchange Commission on December 19,
2014, that as of December 12, 2014, 95 individual cases were
pending in the United States against RJR Tobacco, B&W, as its
indemnitee, or both. This category of cases includes smoking and
health cases alleging personal injury brought by or on behalf of
individual plaintiffs, but does not include the Broin II, Engle
Progeny or West Virginia IPIC cases discussed below. A total of 93
of the individual cases are brought by or on behalf of individual
smokers or their survivors, while the remaining two cases are
brought by or on behalf of individuals or their survivors alleging
personal injury as a result of exposure to environmental tobacco
smoke, referred to as ETS.
REYNOLDS AMERICAN: Trial Expected in Feb. 2015 in W.Va. IPIC
------------------------------------------------------------
Reynolds American Inc. said in an exhibit to its Form 8-K Report
filed with the Securities and Exchange Commission on December 19,
2014, that the trial court is expected to set a hearing in
February 2015 in the West Virginia Individual Personal Injury
Cases.
In re: Tobacco Litigation Individual Personal Injury Cases began
in 1999, in West Virginia state court, as a series of roughly
1,200 individual plaintiff cases making claims with respect to
cigarettes manufactured by Philip Morris, Lorillard, RJR Tobacco,
B&W and The American Tobacco Company. The cases were consolidated
for a Phase I trial on various defense conduct issues, to be
followed in Phase II by individual trials of any claims left
standing. Over the years, approximately 600 individual plaintiff
claims were dismissed for failure to comply with the case
management order, leaving 564 individual cases pending as of April
2013.
On April 15, 2013, the Phase I jury trial began and ended with a
virtually complete defense verdict on May 15, 2013. The jury found
that cigarettes were not defectively designed, were not defective
due to a failure to warn prior to July 1, 1969, that defendants
were not negligent, did not breach warranties and did not engage
in conduct which would warrant punitive damages. The only claim
remaining after the verdict was the jury's finding that all
ventilated filter cigarettes manufactured and sold between 1964
and July 1, 1969 were defective for a failure to instruct. The
defendants believe that there are only 30 plaintiffs remaining who
arguably claim to have smoked a ventilated filter cigarette during
the relevant period. The court initially entered judgment on the
verdict identifying the 30 plaintiffs remaining, but vacated those
orders as premature (leaving to a later day the task of
identifying the plaintiffs who might be able to assert a
ventilated filter failure to instruct claim during the narrow
relevant period). The court entered a new judgment in October
2013, dismissing all claims lost by the plaintiffs and purporting
to make those claims and all of the jury rulings immediately
subject to appeal.
The plaintiffs filed a notice of appeal to the West Virginia
Supreme Court of Appeals in November 2013. The defendants briefed
the issues and reserved the right to challenge the ventilated
filter claim in the event any plaintiff pursues and succeeds on
such a claim.
In October 2014, the West Virginia Supreme Court affirmed the
verdict, issuing an opinion without oral argument. On November 25,
2014, the plaintiffs filed a petition for rehearing. Briefing is
underway.
The trial court is expected to set a hearing in February 2015 to
address the remaining ventilated filter claim, which is not
expected to result in more than 30 remaining plaintiffs.
REYNOLDS AMERICAN: Eight Class-Action Cases Pending as of Dec. 12
-----------------------------------------------------------------
Reynolds American Inc. said in an exhibit to its Form 8-K Report
filed with the Securities and Exchange Commission on December 19,
2014, that as of December 12, 2014, eight class-action cases,
excluding the shareholder cases, were pending in the United States
against RJR Tobacco or its affiliates or indemnitees.
In 1996, the Fifth Circuit Court of Appeals in Castano v. American
Tobacco Co. overturned the certification of a nation-wide class of
persons whose claims related to alleged addiction to tobacco
products. Since this ruling by the Fifth Circuit, most class-
action suits have sought certification of state-wide, rather than
nation-wide, classes. Class-action suits based on claims similar
to those asserted in Castano or claims that class members are at a
greater risk of injury or injured by the use of tobacco or
exposure to ETS are pending against RJR Tobacco and its affiliates
and indemnitees in state or federal courts in California,
Illinois, Louisiana, Missouri, and West Virginia.
The pending class actions against RJR Tobacco or its affiliates or
indemnitees include four cases alleging that the use of the term
"lights" constitutes unfair and deceptive trade practices under
state law or violates the federal RICO statute. Such suits are
pending in state or federal courts in Illinois and Missouri.
Finally, certain third-party payers have filed health-care cost
recovery actions in the form of class actions.
Few smoker class-action complaints have been certified or, if
certified, have survived on appeal. Eighteen federal courts,
including two courts of appeals, and most state courts that have
considered the issue have rejected class certification in such
cases. Apart from the Castano case discussed above, only two
smoker class actions have been certified by a federal court - In
re Simon (II) Litigation, and Schwab [McLaughlin] v. Philip Morris
USA, Inc., both of which were filed in the U.S. District Court for
the Eastern District of New York and ultimately decertified.
REYNOLDS AMERICAN: Trial in "Sateriale" Case Reset to 2015 Q1
-------------------------------------------------------------
Reynolds American Inc. said in an exhibit to its Form 8-K Report
filed with the Securities and Exchange Commission on December 19,
2014, that in the case Sateriale v. R. J. Reynolds Tobacco Co.,
the trial, if necessary, has been rescheduled to a date yet to be
determined in the first quarter of 2015.
In Sateriale v. R. J. Reynolds Tobacco Co., a class action filed
in November 2009, in the U.S. District Court for the Central
District of California, the plaintiffs brought the case on behalf
of all persons who tried unsuccessfully to redeem Camel Cash
certificates from 1991 through March 31, 2007, or who held Camel
Cash certificates as of March 31, 2007. The plaintiffs allege that
in response to the defendants' action to discontinue redemption of
Camel Cash as of March 31, 2007, customers, like the plaintiffs,
attempted to exchange their Camel Cash for merchandise and that
the defendants, however, did not have any merchandise to exchange
for Camel Cash. The plaintiffs allege unfair business practices,
deceptive practices, breach of contract and promissory estoppel.
The plaintiffs seek injunctive relief, actual damages, costs and
expenses. In January 2010, the defendants filed a motion to
dismiss, which prompted the plaintiffs to file an amended
complaint in February 2010. The class definition changed to a
class consisting of all persons who reside in the U.S. and tried
unsuccessfully to redeem Camel Cash certificates, from October 1,
2006 (six months before the defendant ended the Camel Cash
program) or who held Camel Cash certificates as of March 31, 2007.
The plaintiffs also brought the class on behalf of a proposed
California subclass, consisting of all California residents
meeting the same criteria.
In May 2010, RJR Tobacco's motion to dismiss the amended complaint
for lack of jurisdiction over subject matter and, alternatively,
for failure to state a claim was granted with leave to amend. The
plaintiffs filed a second amended complaint. In July 2010, RJR
Tobacco's motion to dismiss the second amended complaint was
granted with leave to amend. The plaintiffs filed a third amended
complaint, and RJR Tobacco filed a motion to dismiss in September
2010. In December 2010, the court granted RJR Tobacco's motion to
dismiss with prejudice. Final judgment was entered by the court,
and the plaintiffs filed a notice of appeal, in January 2011.
In July 2012, the appellate court affirmed the dismissal of the
plaintiffs' claims under the Unfair Competition Law and the
Consumer Legal Remedies Acts and reversed the dismissal of the
plaintiffs' claims for promissory estoppel and breach of contract.
RJR Tobacco's motion for rehearing or rehearing en banc was denied
in October 2012. RJR Tobacco filed its answer to the plaintiffs'
third amended complaint in December 2012.
In June 2014, RJR Tobacco filed a motion for summary judgment, and
the plaintiff filed a motion for class certification. Oral
arguments on those motions were held on September 15, 2014. A
decision is pending. The trial, if necessary, has been rescheduled
to a date yet to be determined in the first quarter of 2015.
REYNOLDS AMERICAN: Briefing Underway in "Price v. Philip Morris"
----------------------------------------------------------------
Reynolds American Inc. said in an exhibit to its Form 8-K Report
filed with the Securities and Exchange Commission on December 19,
2014, that briefing is underway in the "Lights" case Price v.
Philip Morris, Inc.
"Lights" class-action cases are pending against RJR Tobacco or B&W
in Illinois (2) and Missouri (2). The classes in these cases
generally seek to recover $50,000 to $75,000 per class member for
compensatory and punitive damages, injunctive and other forms of
relief, and attorneys' fees and costs from RJR Tobacco and/or B&W.
In general, the plaintiffs allege that RJR Tobacco or B&W made
false and misleading claims that "lights" cigarettes were lower in
tar and nicotine and/or were less hazardous or less mutagenic than
other cigarettes. The cases typically are filed pursuant to state
consumer protection and related statutes.
Many of these "lights" cases were stayed pending review of the
Good v. Altria Group, Inc. case by the U.S. Supreme Court. In that
"lights" class-action case against Altria Group, Inc. and Philip
Morris USA, the U.S. Supreme Court decided that these claims are
not preempted by the Federal Cigarette Labeling and Advertising
Act or by the Federal Trade Commission's, referred to as FTC,
historic regulation of the industry. Since this decision in
December 2008, a number of the stayed cases have become active
again.
The seminal "lights" class-action case involves RJR Tobacco's
competitor, Philip Morris, Inc. Trial began in Price v. Philip
Morris, Inc. in January 2003. In March 2003, the trial judge
entered judgment against Philip Morris in the amount of $7.1
billion in compensatory damages and $3 billion in punitive
damages. Based on Illinois law, the bond required to stay
execution of the judgment was set initially at $12 billion. Philip
Morris pursued various avenues of relief from the $12 billion bond
requirement.
On December 15, 2005, the Illinois Supreme Court reversed the
lower court's decision and sent the case back to the trial court
with instructions to dismiss the case. On December 5, 2006, the
trial court granted the defendant's motion to dismiss and for
entry of final judgment. The case was dismissed with prejudice the
same day. In December 2008, the plaintiffs filed a petition for
relief from judgment, stating that the U.S. Supreme Court's
decision in Good v. Altria Group, Inc. rejected the basis for the
reversal. The trial court granted the defendant's motion to
dismiss the plaintiffs' petition for relief from judgment in
February 2009.
In March 2009, the plaintiffs filed a notice of appeal to the
Illinois Appellate Court, Fifth Judicial District, requesting a
reversal of the February 2009 order and remand to the circuit
court. On February 24, 2011, the appellate court entered an order,
concluding that the two-year time limit for filing a petition for
relief from a final judgment began to run when the trial court
dismissed the plaintiffs' lawsuit on December 18, 2006. The
appellate court therefore found that the petition was timely,
reversed the order of the trial court, and remanded the case for
further proceedings. Philip Morris filed a petition for leave to
appeal to the Illinois Supreme Court. On September 28, 2011, the
Illinois Supreme Court denied Philip Morris's petition for leave
to appeal and returned the case to the trial court for further
proceedings.
In December 2012, the trial court denied the plaintiffs' petition
for relief from the judgment. The plaintiffs filed a notice of
appeal to the Illinois Appellate Court, Fifth Judicial District.
In April 2014, the appellate court reinstated the 2003 verdict. In
May 2014, Philip Morris filed a petition for leave to appeal to
the Illinois Supreme Court and a motion for supervisory order.
Philip Morris has requested the Illinois Supreme Court to direct
the Fifth Judicial District to vacate its April 2014 judgment and
to order the Fifth Judicial District to affirm the trial court's
denial of the plaintiff's petition for relief from the judgment,
or in the alternative, grant its petition for leave to appeal. On
September 24, 2014, the Illinois Supreme Court agreed to hear
Philip Morris's appeal. Briefing is underway.
REYNOLDS AMERICAN: Feb. 2015 Status Conference in "Turner" Case
---------------------------------------------------------------
Reynolds American Inc. said in an exhibit to its Form 8-K Report
filed with the Securities and Exchange Commission on December 19,
2014, that a status conference is scheduled for February 25, 2015
in the case Turner v. R. J. Reynolds Tobacco Co.
In Turner v. R. J. Reynolds Tobacco Co., a case filed in February
2000, in Circuit Court, Madison County, Illinois, a judge
certified a class in November 2001. In June 2003, RJR Tobacco
filed a motion to stay the case pending Philip Morris's appeal of
the Price v. Philip Morris, Inc. case, which the judge denied in
July 2003. In October 2003, the Illinois Fifth District Court of
Appeals denied RJR Tobacco's emergency stay/supremacy order
request. In November 2003, the Illinois Supreme Court granted RJR
Tobacco's motion for a stay pending the court's final appeal
decision in Price. On October 11, 2007, the Illinois Fifth
District Court of Appeals dismissed RJR Tobacco's appeal of the
court's denial of its emergency stay/supremacy order request and
remanded the case to the Circuit Court. A status conference is
scheduled for February 25, 2015.
REYNOLDS AMERICAN: Still No Activity in "Howard" Case
-----------------------------------------------------
Reynolds American Inc. said in an exhibit to its Form 8-K Report
filed with the Securities and Exchange Commission on December 19,
2014, that there is currently no activity in the case Howard v.
Brown & Williamson Tobacco Corp.
In Howard v. Brown & Williamson Tobacco Corp., a case filed in
February 2000 in Circuit Court, Madison County, Illinois, a judge
certified a class in December 2001. In June 2003, the trial judge
issued an order staying all proceedings pending resolution of the
Price v. Philip Morris, Inc. case mentioned above. The plaintiffs
appealed this stay order to the Illinois Fifth District Court of
Appeals, which affirmed the Circuit Court's stay order in August
2005. There is currently no activity in the case.
REYNOLDS AMERICAN: Feb. 2 Status Conference in "Collora" Case
-------------------------------------------------------------
Reynolds American Inc. said in an exhibit to its Form 8-K Report
filed with the Securities and Exchange Commission on December 19,
2014, that a status conference is scheduled for February 2, 2015
in the "lights" class-action case pending against each of RJR
Tobacco and B&W in Missouri.
In Collora v. R. J. Reynolds Tobacco Co., a case filed in May 2000
in Circuit Court, St. Louis County, Missouri, a judge in St. Louis
certified a class in December 2003. In April 2007, the court
granted the plaintiffs' motion to reassign Collora and the
following cases to a single general division: Craft v. Philip
Morris Companies, Inc. and Black v. Brown & Williamson Tobacco
Corp., discussed below. In April 2008, the court stayed the case
pending U.S. Supreme Court review in Good v. Altria Group, Inc. A
status conference is scheduled for February 2, 2015.
REYNOLDS AMERICAN: Plaintiffs' Counsel Pursuing BC Action
---------------------------------------------------------
Reynolds American Inc. said in an exhibit to its Form 8-K Report
filed with the Securities and Exchange Commission on December 19,
2014, that the following seven putative Canadian class actions
were filed against various Canadian and non-Canadian tobacco-
related entities, including RJR Tobacco and one of its affiliates,
in courts in the Provinces of Alberta, British Columbia, Manitoba,
Nova Scotia, Ontario and Saskatchewan, although the plaintiffs'
counsel have been actively pursuing only the action pending in
British Columbia at this time:
-- In Adams v. Canadian Tobacco Manufacturers' Council, a case
filed in July 2009 in the Court of Queen's Bench for Saskatchewan
against Canadian and non-Canadian tobacco-related entities,
including RJR Tobacco and one of its affiliates, the plaintiff, an
individual smoker, alleging her own addiction and chronic
obstructive pulmonary disease resulting from the use of tobacco
products, is seeking compensatory and unspecified punitive damages
on behalf of a proposed class comprised of all individuals who
were alive on July 10, 2009, and who have suffered, or who
currently suffer, from chronic obstructive pulmonary disease,
emphysema, heart disease or cancer, after having smoked a minimum
of 25,000 cigarettes designed, manufactured, imported, marketed or
distributed by the defendants, as well as disgorgement of revenues
earned by the defendants. RJR Tobacco and its affiliate have
brought a motion challenging the jurisdiction of the Saskatchewan
court.
-- In Dorion v. Canadian Tobacco Manufacturers' Council, a case
filed in June 2009, in the Court of Queen's Bench of Alberta
against Canadian and non-Canadian tobacco-related entities,
including RJR Tobacco and one of its affiliates, the plaintiff, an
individual smoker, alleging her own addiction and chronic
bronchitis resulting from the use of tobacco products, is seeking
compensatory and unspecified punitive damages on behalf of a
proposed class comprised of all individuals, including their
estates, dependents and family members, who purchased or smoked
cigarettes designed, manufactured, marketed or distributed by the
defendants, as well as restitution of profits and reimbursement of
government expenditure for health-care benefits allegedly caused
by the use of tobacco products.
-- In Kunka v. Canadian Tobacco Manufacturers' Council, a case
filed in 2009 in the Court of Queen's Bench of Manitoba against
Canadian and non-Canadian tobacco-related entities, including RJR
Tobacco and one of its affiliates, the plaintiff, an individual
smoker, alleging her own addiction and chronic obstructive
pulmonary disease, severe asthma and lung disease resulting from
the use of tobacco products, is seeking compensatory and
unspecified punitive damages on behalf of a proposed class
comprised of all individuals, including their estates, and their
dependents and family members, who purchased or smoked cigarettes
manufactured by the defendants, as well as restitution of profits
and reimbursement of government expenditure for health-care
benefits allegedly caused by the use of tobacco products.
-- In Semple v. Canadian Tobacco Manufacturers' Council, a case
filed in June 2009 in the Supreme Court of Nova Scotia against
Canadian and non-Canadian tobacco-related entities, including RJR
Tobacco and one of its affiliates, the plaintiff, an individual
smoker, alleging his own addiction and chronic obstructive
pulmonary disease resulting from the use of tobacco products, is
seeking compensatory and unspecified punitive damages on behalf of
a proposed class comprised of all individuals, including their
estates, dependents and family members, who purchased or smoked
cigarettes designed, manufactured, marketed or distributed by the
defendants for the period from January 1, 1954, to the expiry of
the opt-out period as set by the court, as well as restitution of
profits and reimbursement of government expenditure for health-
care costs allegedly caused by the use of tobacco products.
-- In Bourassa v. Imperial Tobacco Canada Limited, a case filed
in June 2010 in the Supreme Court of British Columbia against
Canadian and non-Canadian tobacco-related entities, including RJR
Tobacco and one of its affiliates, the plaintiff, the heir to a
deceased smoker, alleging that the deceased was addicted to and
suffered emphysema resulting from the use of tobacco products, is
seeking compensatory and unspecified punitive damages on behalf of
a proposed class comprised of all individuals, including their
estates, who were alive on June 12, 2007, and who have suffered,
or who currently suffer from chronic respiratory diseases, after
having smoked a minimum of 25,000 cigarettes designed,
manufactured, imported, marketed, or distributed by the
defendants, as well as disgorgement of revenues earned by the
defendants from January 1, 1954, to the date the claim was filed.
RJR Tobacco and its affiliate have filed a challenge to the
jurisdiction of the British Columbia court. The plaintiff filed a
motion for certification in April 2012, and filed affidavits in
support in August 2013.
-- In McDermid v. Imperial Tobacco Canada Limited, a case filed
in June 2010 in the Supreme Court of British Columbia against
Canadian and non-Canadian tobacco-related entities, including RJR
Tobacco and one of its affiliates, the plaintiff, an individual
smoker, alleging his own addiction and heart disease resulting
from the use of tobacco products, is seeking compensatory and
unspecified punitive damages on behalf of a proposed class
comprised of all individuals, including their estates, who were
alive on June 12, 2007, and who have suffered, or who currently
suffer from heart disease, after having smoked a minimum of 25,000
cigarettes designed, manufactured, imported, marketed, or
distributed by the defendants, as well as disgorgement of revenues
earned by the defendants from January 1, 1954, to the date the
claim was filed. RJR Tobacco and its affiliate have filed a
challenge to the jurisdiction of the British Columbia court.
-- In Jacklin v. Canadian Tobacco Manufacturers' Council, a case
filed in June 2012 in the Ontario Superior Court of Justice
against Canadian and non-Canadian tobacco-related entities,
including RJR Tobacco and one of its affiliates, the plaintiff, an
individual smoker, alleging her own addiction and chronic
obstructive pulmonary disease resulting from the use of tobacco
products, is seeking compensatory and unspecified punitive damages
on behalf of a proposed class comprised of all individuals,
including their estates, who were alive on June 12, 2007, and who
have suffered, or who currently suffer from chronic obstructive
pulmonary disease, heart disease, or cancer, after having smoked a
minimum of 25,000 cigarettes designed, manufactured, imported,
marketed, or distributed by the defendants, as well as restitution
of profits, and reimbursement of government expenditure for
health-care benefits allegedly caused by the use of tobacco
products.
In each of these seven cases, the plaintiffs allege fraud,
fraudulent concealment, breach of warranty, breach of warranty of
merchantability and of fitness for a particular purpose, failure
to warn, design defects, negligence, breach of a "special duty" to
children and adolescents, conspiracy, concert of action, unjust
enrichment, market share liability, joint liability, and
violations of various trade practices and competition statutes.
Pursuant to the terms of the 1999 sale of RJR Tobacco's
international tobacco business, RJR Tobacco has tendered the
defense of these seven actions to JTI. Subject to a reservation of
rights, JTI has assumed the defense of RJR Tobacco and its current
or former affiliates in these actions.
REYNOLDS AMERICAN: All Indirect Purchasers Cases Dismissed
----------------------------------------------------------
Reynolds American Inc. said in an exhibit to its Form 8-K Report
filed with the Securities and Exchange Commission on December 19,
2014, that a number of tobacco wholesalers and consumers have sued
U.S. cigarette manufacturers, including RJR Tobacco and B&W, in
federal and state courts, alleging that cigarette manufacturers
combined and conspired to set the price of cigarettes in violation
of antitrust statutes and various state unfair business practices
statutes. In these cases, the plaintiffs asked the court to
certify the lawsuits as class actions on behalf of other persons
who purchased cigarettes directly or indirectly from one or more
of the defendants. As of December 12, 2014, all of the federal and
state court cases on behalf of indirect purchasers had been
dismissed.
REYNOLDS AMERICAN: "Smith" Plaintiffs File Petition for Review
--------------------------------------------------------------
Reynolds American Inc. said in an exhibit to its Form 8-K Report
filed with the Securities and Exchange Commission on December 19,
2014, that the plaintiffs in the Smith v. Philip Morris Cos.,
Inc., case filed a petition for review with the Supreme Court of
the State of Kansas.
In Smith v. Philip Morris Cos., Inc., a case filed in February
2000, and pending in District Court, Seward County, Kansas, the
court granted class certification in November 2001, in an action
brought against the major U.S. cigarette manufacturers, including
RJR Tobacco and B&W, and the parent companies of the major U.S.
cigarette manufacturers, including RJR, seeking to recover an
unspecified amount in actual and punitive damages. The plaintiffs
allege that the defendants participated in a conspiracy to fix or
maintain the price of cigarettes sold in the United States. In an
opinion dated March 23, 2012, the court granted summary judgment
in favor of RJR Tobacco and B&W on the plaintiffs' claims. On July
18, 2014, the Court of Appeals of the State of Kansas affirmed the
grant of summary judgment. On August 18, 2014, the plaintiffs
filed a petition for review with the Supreme Court of the State of
Kansas.
REYNOLDS AMERICAN: 11th Circuit Denied Motion for Reconsideration
-----------------------------------------------------------------
Reynolds American Inc. said in an exhibit to its Form 8-K Report
filed with the Securities and Exchange Commission on December 19,
2014, that Plaintiff's motion for reconsideration of the dismissal
in the case Richard Villarreal v. R. J. Reynolds Tobacco Co., was
subsequently denied by the Eleventh Circuit.
In Richard Villarreal v. R. J. Reynolds Tobacco Co., a case filed
June 6, 2012, the plaintiff filed a collective action complaint
against R. J. Reynolds Tobacco Co., Pinstripe, Inc., and
CareerBuilder, LLC, in the U.S. District Court, Northern District
of Georgia. The complaint alleges unlawful discrimination with
respect to the hiring of individuals to fill entry-level regional
sales positions in violation of the Age Discrimination in
Employment Act (29 U.S.C. Sec. 621, et seq.). Although the
complaint is currently a single plaintiff case, the complaint
seeks collective/class-action status. RJR Tobacco's and
Pinstripe's motion for partial dismissal was granted on March 6,
2013, thereby eliminating the plaintiff's disparate impact claim
and limiting the relevant time period for both the plaintiff's
claims and potential class claims. RJR Tobacco and Pinstripe filed
answers to the remaining disparate treatment claim on March 20,
2013.
Defendant CareerBuilder was dismissed with prejudice on September
25, 2012. Discovery is currently proceeding. The plaintiff's
Fed.R.Civ.P. 54(b) motion to certify for immediate appeal the
trial court's prior dismissal of plaintiff's disparate impact and
time-barred claims was granted on May 21, 2014. Final judgment as
to certain claims (those claims based on a disparate impact theory
of relief and claims challenging hiring decisions made before
November 19, 2009) was entered on May 21, 2014. The plaintiff
filed a notice of appeal of the final judgment on June 18, 2014.
The defendants filed a motion to dismiss the plaintiff's appeal on
July 3, 2014, which was granted by the Eleventh Circuit on
September 22, 2014. Plaintiff's motion for reconsideration of the
dismissal was subsequently denied by the Eleventh Circuit.
REYNOLDS AMERICAN: Trial in Smokeless Tobacco Case Begins 2016 Q1
-----------------------------------------------------------------
Reynolds American Inc. said in an exhibit to its Form 8-K Report
filed with the Securities and Exchange Commission on December 19,
2014, that trial is anticipated to begin in the first quarter of
2016 in the Smokeless Tobacco Litigation.
As of December 12, 2014, American Snuff Co. was a defendant in six
actions brought by individual plaintiffs in West Virginia state
court seeking damages in connection with personal injuries
allegedly sustained as a result of the usage of American Snuff
Co.'s smokeless tobacco products. These actions are pending before
the same West Virginia court as the 564 consolidated individual
smoker cases against RJR Tobacco, B&W, as RJR Tobacco's
indemnitee, or both. Pursuant to the court's December 3, 2001,
order, the smokeless tobacco claims and defendants remain severed.
Pursuant to a second amended complaint filed in September 2006,
American Snuff Co. is a defendant in Vassallo v. United States
Tobacco Company, pending in the Eleventh Circuit Court in Miami-
Dade County, Florida. The individual plaintiff alleges that he
sustained personal injuries, including addiction and cancer, as a
result of his use of smokeless tobacco products, allegedly
including products manufactured by American Snuff Co. The
plaintiff seeks unspecified compensatory and consequential damages
in an amount greater than $15,000. There is no punitive damages
demand in this case, though the plaintiff retains the right to
seek leave of court to add such a demand later. Discovery is
underway. Pursuant to the court's scheduling order, trial is
anticipated to begin in the first quarter of 2016.
REYNOLDS AMERICAN: ERISA Defendants File Supreme Court Petition
---------------------------------------------------------------
Reynolds American Inc. said in an exhibit to its Form 8-K Report
filed with the Securities and Exchange Commission on December 19,
2014, that the defendants in the ERISA Litigation filed a petition
for writ of certiorari with the U.S. Supreme Court.
In May 2002, in Tatum v. The R.J.R. Pension Investment Committee
of the R. J. Reynolds Tobacco Company Capital Investment Plan, an
employee of RJR Tobacco filed a class-action suit in the U.S.
District Court for the Middle District of North Carolina, alleging
that the defendants, RJR, RJR Tobacco, the RJR Employee Benefits
Committee and the RJR Pension Investment Committee, violated the
Employee Retirement Income Security Act of 1974, referred to as
ERISA. The actions about which the plaintiff complains stem from a
decision made in 1999 by RJR Nabisco Holdings Corp., subsequently
renamed Nabisco Group Holdings Corp., referred to as NGH, to spin
off RJR, thereby separating NGH's tobacco business and food
business. As part of the spin-off, the 401(k) plan for the
previously related entities had to be divided into two separate
plans for the now separate tobacco and food businesses. The
plaintiff contends that the defendants breached their fiduciary
duties to participants of the RJR 401(k) plan when the defendants
removed the stock funds of the companies involved in the food
business, NGH and Nabisco Holdings Corp., referred to as Nabisco,
as investment options from the RJR 401(k) plan approximately six
months after the spin-off. The plaintiff asserts that a November
1999 amendment (the "1999 Amendment") that eliminated the NGH and
Nabisco funds from the RJR 401(k) plan on January 31, 2000,
contained sufficient discretion for the defendants to have
retained the NGH and Nabisco funds after January 31, 2000, and
that the failure to exercise such discretion was a breach of
fiduciary duty. In his complaint, the plaintiff requests, among
other things, that the court require the defendants to pay as
damages to the RJR 401(k) plan an amount equal to the subsequent
appreciation that was purportedly lost as a result of the
liquidation of the NGH and Nabisco funds.
In July 2002, the defendants filed a motion to dismiss, which the
court granted in December 2003. In December 2004, the U.S. Court
of Appeals for the Fourth Circuit reversed the dismissal of the
complaint, holding that the 1999 Amendment did contain sufficient
discretion for the defendants to have retained the NGH and Nabisco
funds as of February 1, 2000, and remanded the case for further
proceedings. The court granted the plaintiff leave to file an
amended complaint and denied all pending motions as moot. In April
2007, the defendants moved to dismiss the amended complaint. The
court granted the motion in part and denied it in part, dismissing
all claims against the RJR Employee Benefits Committee and the RJR
Pension Investment Committee. The remaining defendants, RJR and
RJR Tobacco, filed their answer and affirmative defenses in June
2007. The plaintiff filed a motion for class certification, which
the court granted in September 2008. The district court ordered
mediation, but no resolution of the case was reached. In September
2008, each of the plaintiffs and the defendants filed motions for
summary judgment, and in January 2009, the defendants filed a
motion to decertify the class. A second mediation occurred in June
2009, but again no resolution of the case was reached. The
district court overruled the motions for summary judgment and the
motion to decertify the class.
A non-jury trial was held in January and February 2010. During
closing arguments, the plaintiff argued for the first time that
certain facts arising at trial showed that the 1999 Amendment was
not validly adopted, and then moved to amend his complaint to
conform to this evidence at trial. On June 1, 2011, the court
granted the plaintiff's motion to amend his complaint and found
that the 1999 Amendment was invalid.
The parties filed their findings of fact and conclusions of law on
February 4, 2011. On February 25, 2013, the district court
dismissed the case with prejudice. On March 8, 2013, the
plaintiffs filed a notice of appeal.
On August 4, 2014, the Fourth Circuit Court of Appeals, referred
to as Fourth Circuit, reversed, holding that the district court
applied the wrong standard when it held that the defendants did
not cause any loss to the plan and remanded the case back to the
district court to apply the correct standard. On September 2,
2014, the Fourth Circuit denied the defendants' request for
rehearing en banc. The mandate from the Fourth Circuit was issued
on October 1, 2014. On November 19, 2014, the district court held
a hearing and ordered briefing on various issues that remain
pending on remand, with briefs due on various dates in January and
February 2015. On December 1, 2014, the defendants filed a
petition for writ of certiorari with the U.S. Supreme Court.
REYNOLDS AMERICAN: Shareholder Actions in Delaware Consolidated
---------------------------------------------------------------
Reynolds American Inc. said in an exhibit to its Form 8-K Report
filed with the Securities and Exchange Commission on December 19,
2014, that in the third quarter of 2014, 11 alleged class action
lawsuits were filed in the Chancery Court of the State of Delaware
regarding the Merger. The plaintiffs allege that Lorillard's Board
of Directors breached its fiduciary duties to Lorillard's
shareholders by approving the Merger and that RAI and BAT
allegedly aided and abetted the breach of fiduciary duties.
Plaintiffs seek to enjoin the Merger and seek the recovery of
unspecified money damages. On November 25, 2014, the Court
consolidated these actions, appointed a lead plaintiff and ordered
that a consolidated amended complaint be filed "[a]s soon as
practicable." Also, on December 11, 2014, the plaintiffs filed
motions to expedite and for a preliminary injunction.
REYNOLDS AMERICAN: Seeks Dismissal of N.C. Shareholder Actions
--------------------------------------------------------------
Reynolds American Inc. said in an exhibit to its Form 8-K Report
filed with the Securities and Exchange Commission on December 19,
2014, that in the third quarter of 2014, Corwin v. British
American Tobacco PLC, an alleged class action lawsuit, was filed
in the Superior Court, Guilford County, North Carolina against RAI
and its Board of Directors. The plaintiff alleges that RAI's Board
of Directors breached its fiduciary duties to RAI's shareholders
by agreeing to the Share Purchase in connection with the Merger,
and to a proposed technology sharing agreement with BAT. The
plaintiff also alleges that BAT breached its fiduciary duties to
RAI's other shareholders. The plaintiff seeks to enjoin the
transactions and seeks the recovery of unspecified money damages.
The plaintiff served discovery requests on the defendants on
October 21, 2014 and filed an amended complaint on November 7,
2014. On December 8, 2014, all defendants filed motions to dismiss
the complaint and to stay discovery until the motion to dismiss is
decided. Opposition to these motions is to be served on or before
December 29, 2014, and replies are to be served within ten days
after service of the opposition.
RUSLAN MASONRY: Class Seeks to Recover Minimum and Overtime Wages
-----------------------------------------------------------------
Jorge Lopez, Mario Vargas, Hugo Moreno, and Alfonso Corral,
individually and on behalf of other employees similarly situated
v. Ruslan Masonry Construction, Inc., and Ruslan Khomin,
individually, Case No. 1:14-cv-10372 (N.D. Ill., December 27,
2014) alleges that the Defendants' fail to pay the Plaintiffs and
other similarly situated employees:
(1) at least Illinois mandated minimum wages for all hours
worked in a workweek;
(2) overtime wages for hours worked in excess of 40 hours in a
week; and
(3) wages for all hours worked at the rate agreed to by the
parties.
Ruslan Masonry is an entity doing business in Illinois. Ruslan
Khomin is the owner of Ruslan Masonry.
The Plaintiffs are represented by:
Raisa Alicea, Esq.
CONSUMER LAW GROUP, LLC
6232 N. Pulaski, Suite 200
Chicago, IL 60646
Telephone: (312) 800-1017
E-mail: ralicea@yourclg.com
SATHIES KUMAR: Recalls MD Products Due to Undeclared Sulphites
--------------------------------------------------------------
Starting date: November 26, 2014
Type of communication: Recall
Alert sub-type: Food Recall Warning (Allergen)
Subcategory: Allergen - Sulphites
Hazard classification: Class 3
Source of recall: Canadian Food Inspection Agency
Recalling firm: Sathies Kumar (d.b.a. Kumar Trading)
Distribution: Ontario
Extent of the product
distribution: Retail
CFIA reference number: 9487
Affected products:
-- MD Katta Sambol with all codes where sulphites are not
declared on the label;
-- MD Seeni Sambol with all codes where sulphites are not
declared on the label; and
-- MD Lunumiris with all codes where sulphites are not declared
on the label
SMARTHEAT INC: Court to Set Conference on Summary Judgment Bid
--------------------------------------------------------------
Smartheat Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on December 19, 2014, for the
quarterly period ended September 30, 2014, that the Court has
indicated that it will schedule a conference regarding the summary
judgment motion after the Court has decided the class
certification motion.
On August 31, 2012, a putative class action lawsuit, Steven
Leshinsky v. James Wang, et. al., which purported to allege
federal securities law claims against the Company and certain of
its former officers and directors, was filed in the United States
District Court for the Southern District of New York. Thereafter,
two plaintiffs filed competing motions to be appointed lead
plaintiff in the proceeding. A lead plaintiff was appointed and
an amended complaint was filed on January 28, 2013, by the Rosen
Law Firm.
"The amended complaint included Oliver Bialowons, our President,
and Michael Wilhelm, our former Chief Financial Officer, as
defendants in the proceeding though they were not officers of the
Company during the alleged class period. A second amended
complaint was filed on April 8, 2013, under the caption Stream
Sicav, Dharanendra Rai et al. v. James Jun Wang, SmartHeat, Inc.
et al., removing Messrs. Wilhelm and Bialowons as defendants. The
second amended complaint alleges two counts against the Company,
both asserting violations of the federal securities laws arising
from alleged insider sales or management sales of securities and
alleged false disclosures relating to those sales," the Company
said.
On May 8, 2013, the Company filed a motion to dismiss the second
amended complaint which was denied. On March 17, 2014 the court,
denied, the lead plaintiff's motion for class certification,
without prejudice.
On August 6, 2014, the lead plaintiff once again filed a motion
for class certification. On September 19, 2014, the Company filed
an opposition to the lead plaintiff's motion for class
certification, to which plaintiff filed a response on October 20,
2014.
The Company has also indicated to the Court that the Company plans
to file a summary judgment motion and have requested a conference
(as required by the Court) to discuss this motion. The Court has
indicated that it will schedule a conference regarding the summary
judgment motion after the Court has decided the class
certification motion. The pleadings and court orders are publicly
available. The Company intends to vigorously defend this action,
as it believes the allegations against the Company are without
merit.
SNOQUALMIE GOURMET: Recalls Ice Cream, Gelato, Custard and Sorbet
-----------------------------------------------------------------
Snoqualmie Gourmet Ice Cream, Inc. has issued a voluntary recall
of all ice cream, gelato, custard and sorbet for all flavors and
container sizes produced on or after Jan. 1, 2014, until Dec. 15,
2014, because these products have the potential to be contaminated
with Listeria monocytogenes.
Listeria monocytogenes is an organism that can cause serious and
sometimes fatal infections in young children, frail or elderly
people, and others with weakened immune systems. Although healthy
individuals may suffer only short-term symptoms such as high
fever, severe headache, stiffness, nausea, abdominal pain and
diarrhea, Listeria infection can cause miscarriages and
stillbirths among pregnant women.
The ice cream, gelato, custard and sorbet were distributed in
Arizona, Idaho, California, Oregon, and Washington may have been
further distributed and sold in various retail outlets in Alaska,
Colorado, Montana, Nevada, New Mexico, North Dakota, Texas, Utah,
and Wyoming.
The products are labeled Snoqualmie Ice Cream, Snoqualmie Gelato,
Snoqualmie Custard, Snoqualmie Sorbet or Emerald & Spruce Ice
Cream or Top Pot Hand Forged Ice Cream and have a production date
code located on the bottom of the container. The date codes
included either end in "4", e.g. XXX4 (pints and cups) or are
listed by date: Jan. 1, 2014 through Dec. 15, 2014 (trays & tubs).
The voluntary recall was initiated based on the confirmation
positive result of Listeria monocytogenes in the samples collected
within the production facility and ice cream products that were
analyzed by Washington State Department of Agriculture (WSDA).
The company is working with the FDA and WSDA to investigate the
root cause.
The Washington State Department of Health and local health disease
investigators and the state Public Health Laboratories have today
linked two Listeria illnesses to products recalled by Snoqualmie
Gourmet Ice Cream Company. The company understands both persons
were hospitalized and are now recovering.
This voluntary recall is being made with the knowledge of the U.S.
Food and Drug Administration and the WSDA.
Customers who have purchased the affected product should dispose
of it or return it to the place of purchase where they will
receive a refund. Consumers with questions or concern may call
Snoqualmie Gourmet Ice Cream, Inc. at 213-316-8323 during normal
hours of operations (Monday-Friday 9:00am-4:00pm PST).
SPARTAN: Recalls Gladiator and Metro Star Models
------------------------------------------------
Starting date: November 25, 2014
Type of communication: Recall
Subcategory: Truck - Med. & H.D.
Notification type: Safety Mfr
System: Brakes
Units affected: 65
Source of recall: Transport Canada
Identification number: 2014532
TC ID number: 2014532
On certain vehicles equipped with a Wabco quick release with
double check valves, used to control park/spring brake
application, the valve may leak internally. This could cause
unintended partial or full park/spring brake application, which
could affect service brake function and increase the risk of a
crash causing injury and/or damage to property.
Dealers will affect repairs.
Affected products:
Maker Model Model year(s) affected
----- ----- ----------------------
SPARTAN GLADIATOR 2013, 2014, 2015
SPARTAN METRO STAR 2013, 2014, 2015
SUPERVALU INC: "McPeak" Suit Consolidated in Security Breach MDL
----------------------------------------------------------------
The class action lawsuit styled McPeak, et al. v. Supervalu, Inc.,
Case No. 3:14-cv-00899-DRH-DGW, was transferred from the U.S.
District Court for the Southern District of Illinois to the U.S.
District Court for the District of Minnesota. The Minnesota
District Court Clerk assigned Case No. 0:14-cv-05017-ADM to the
proceeding.
The lawsuit is consolidated in the multidistrict litigation
captioned In re: Supervalu, Inc., Customer Data Security Breach
Litigation, MDL No. 0:14-md-02586-ADM.
The actions in the litigation arise from an alleged data security
breach suffered in mid-2014 by Supervalu, a grocery wholesaler
that owns, licenses, franchises, or is otherwise affiliated with
more than a thousand grocery retailers across the United States.
The Plaintiffs allege that this data security breach compromised
the personal financial information of customers, who used debit or
credit cards to make purchases at a number of those stores between
June 22 and July 17, 2014.
The Plaintiffs are represented by:
John J. Driscoll, Esq.
Christopher J. Quinn, Esq.
THE DRISCOLL FIRM
211 N. Broadway, 40th Floor
St. Louis, MO 63102
Telephone: (314) 932-3232
Facsimile: (314) 932-3233
E-mail: john@thedriscollfirm.com
chris@thedriscollfirm.com
The Defendant is represented by:
Sunil Shenoi, Esq.
ROPES & GRAY LLP
191 North Wacker Drive, 32nd Floor
Chicago, IL 60606-4302
Telephone: (312) 845-1200
Facsimile: (312) 845-5500
E-mail: Sunil.Shenoi@ropesgray.com
TARGET CORP: Judge Refuses to Dismiss Data Breach Class Action
--------------------------------------------------------------
Scott Flaherty, writing for The Litigation Daily, reports that
just weeks after Target Corp. failed to escape claims that it's
liable for a massive data breach that cost banks billions of
dollars, a judge refused to dismiss most of a proposed consumer
class action over the same late-2013 hack attack.
U.S. District Judge Paul Magnuson in St. Paul, Minn., refused on
Dec. 18 to dismiss most of a proposed class action brought by
Target customers under dozens of state consumer protection and
privacy laws. The judge did throw out some state law claims,
however, and he hinted that Target's lawyers may yet whittle the
case down further.
Plaintiffs lawyers pounced on Target after unidentified hackers
stole credit and debit card information for some 110 million of
the retailers' customers during the 2013 holiday shopping season.
The company, they alleged, failed to take reasonable steps to
protect its customers' sensitive financial information.
In their motion to dismiss, Target's lawyers at Ropes & Gray
countered that the cardholders didn't have standing to sue,
because they hadn't adequately alleged a financial harm from the
breach. Judge Magnuson mostly swept that argument aside on
Dec. 18, ruling that it wasn't enough to succeed at this early
stage in the case.
"Plaintiffs' allegations plausibly allege that they suffered
injuries that are 'fairly traceable' to Target's conduct,"
Judge Magnuson wrote.
The judge also noted, however, that the plaintiffs' alleged
injuries -- such as unauthorized charges, blocked access to bank
accounts and fees incurred from late payment charges -- would have
to be supported by evidence going forward. That opens the door
for Target to renew its standing challenge in a summary judgment
motion, especially if the plaintiffs struggle to establish a clear
link between the data breach and any harm they suffered.
In addition to the consumer case, Judge Magnuson is considering a
consolidated complaint in which banks have alleged losses of as
much as $18 billion from having to reissue cards and reimburse
customers in the wake of the Target breach. Judge Magnuson issued
a ruling in the financial institutions' suit on Dec. 2, also
keeping most of that case intact.
The courtroom setbacks for Target come as Sony Pictures
Entertainment has been dealing with the fallout from a cyberattack
prompted by the company's planned release of "The Interview," a
comedy about an assassination attempt on North Korea's leader Kim
Jong-un. Sony is facing a flurry of lawsuits brought by employees
claiming the company didn't do enough to protect its computer
network.
Vincent Esades -- vesades@heinsmills.com -- and David Woodward --
dwoodward@heinsmills.com -- of Heins Mills & Olson serve as lead
counsel for the plaintiffs in the Target consumer cases. Mr.
Esades said he was pleased with the Dec. 18 ruling.
Ropes & Gray's Douglas Meal -- Douglas.Meal@ropesgray.com --
represents Target along with lawyers from Faegre Baker Daniels.
Mr. Meal didn't respond to a request for comment, and a Target
spokeswoman said the company doesn't typically comment on pending
litigation.
TESLA MOTORS: Seeks Sanction v. Two Plaintiffs in Securities Suit
-----------------------------------------------------------------
Marisa Kendall, writing for The Recorder, reports that lawyers for
Tesla Motors Inc. are seeking sanctions against two plaintiffs
firms after a federal judge found a securities lawsuit they filed
against the luxury car company "utterly failed" to plead an
actionable claim.
The plaintiffs lawyers with Pomerantz and Glancy Binkow & Goldberg
accused Tesla of making false statements about the risk of fire
posed by batteries in the company's electric cars. In a motion
filed on Dec. 18 in the Northern District of California, Tesla's
attorneys with Irell & Manella argued plaintiffs didn't
investigate their claims, and ignored facts that showed the cars
were not prone to fires and actually some of the safest on the
market.
"As this court recognized over and over, plaintiffs' allegations
were either incoherent or devoid of any factual support," wrote
the Irell team, "and some of those allegations were outright
disproven by the cited documents or plaintiffs' own confidential
witnesses. But plaintiffs ignored this evidence and pressed on
with their baseless claims."
Irell & Manella is seeking reimbursement for attorney fees and
costs under Rule 11 of the Federal Rules of Civil Procedure.
Plaintiffs lawyer Matthew Tuccillo of Pomerantz's New York office
denied the allegations in an email.
"The motion for sanctions is entirely unwarranted and will be
vigorously opposed," he wrote. "Moreover, we respectfully
disagree with the court's decision and intend to appeal."
U.S. District Judge Charles Breyer dismissed the case in
September, saying, "I'm at a total -- I mean total -- loss
understanding the basis for this lawsuit." He denied plaintiffs
leave to amend their claims.
Mr. Tuccillo argued for plaintiffs during the hearing, and Irell &
Manella partner David Siegel of Los Angeles argued for Tesla.
Plaintiffs lawyers based their claims largely on three battery
fires reported in Model S cars over two months in 2013. The suit
alleged Tesla executives outfitted the cars with high-energy
lithium ion batteries, which increased the life of the cars'
charge but also led to a greater risk of fire. Executives did not
try to mitigate the danger by installing protective sleeves or
shielding, according to the complaint.
Plaintiffs lawyers also claimed Tesla executives made false
statements during the class period that the Model S was the
"safest car in America," and that it was less likely than
gasoline-powered cars to catch fire.
In their motion for sanctions, Tesla's lawyers said plaintiffs
ignored "the fact that in each of the three alleged class period
fires, the car operated exactly as designed by warning the driver
to pull over, preventing the fire from spreading, and keeping all
passengers unharmed from the fire-even the driver in Mexico who
crashed his Model S into a concrete wall and a tree after driving
over 100 miles per hour."
The suit wasted court resources and forced Tesla to spend time and
money defending frivolous litigation, the Irell team wrote. "If
ever there was an appropriate occasion to impose sanctions and
mandatory fee shifting under the [Private Securities Litigation
Reform Act], this is the case."
TOSHIBA OF CANADA: Recalls AC Power Cords Sold With Notebooks
-------------------------------------------------------------
Starting date: November 28, 2014
Posting date: November 28, 2014
Type of communication: Consumer Product Recall
Subcategory: Electronics
Source of recall: Health Canada
Issue: Product Safety
Audience: General Public
Identification number: RA-42701
Affected products: Toshiba of Canada Limited notebook computer AC
power cords
The recall involves Toshiba of Canada Limited AC power cords sold
with certain notebook computers including these brands: All in
One, Android, AT, Chromebook, DX, Libretto, Mini Notebook,
Netbook, Portege, Qosmio, Satellite, Tecra, Toshiba and WT. The
power cords are black in colour and are marked with "LS-15" on the
portion of the cord that plugs into the power brick.
The AC power cord can overheat and pose a potential burn hazard.
Neither Toshiba of Canada Limited nor Health Canada has received
reports of consumer incidents or injuries related to the use of
these power cords.
Approximately 501,597 notebook computers were sold in Canada with
an affected AC power cord. These products were sold at various
electronics retailers across Canada.
The recalled products were manufactured in China and sold from
September 2010 to December 2012.
Companies:
Distributor Toshiba of Canada Ltd.
Markham
Ontario
Canada
Consumers should immediately stop using the recalled power cords
and contact Toshiba of Canada Limited for a free replacement.
TOYO MK: Faces "Balcazar" Suit Alleging Violations of FLSA
----------------------------------------------------------
Israel Balcazar v. Toyo MK, Inc. and Toyoji Kawabata, Case No.
1:14-cv-10418 (N.D. Ill., December 29, 2014) alleges violations of
the Fair Labor Standards Act.
The Plaintiff is represented by:
David Erik Stevens, Esq.
CONSUMER LAW GROUP, LLC
6232 N. Pulaski, Suite 200
Chicago, IL 60646
Telephone: (312) 624-8958
E-mail: Dave@StevensLawLLC.com
TRIUMPH: Recalls Tiger Explorer and Tiger Explorer XC Models
------------------------------------------------------------
Starting date: December 3, 2014
Type of communication: Recall
Subcategory: Motorcycle
Notification type: Safety Mfr
System: Accessories
Units affected: 238
Source of recall: Transport Canada
Identification number: 2014542
TC ID number: 2014542
On certain motorcycles, an undersized side stand pivot bolt may
have been installed at time of assembly. As a result, the side
stand bolt could fracture, allowing the motorcycle to fall over.
This could pose a risk of injury to bystanders.
Dealers will replace the pivot bolt and washer.
Affected products: 2011, 2012, 2013, 2014, 2011, 2012, 2013, 2014
Triumph Tiger Explorer
ULTIMATE FIGHTING: Ex-Fighters File Antitrust Suit
--------------------------------------------------
Brian Baxter, writing for The Am Law Daily, reports that the
octagon may be the arena of choice for the Ultimate Fighting
Championship, but the growing mixed martial arts promotion company
now has its eye on hiring some high-profile antitrust lawyers for
a fight in the courtroom.
Slapped with a $100 million antitrust suit by a group of
ex-fighters backed by a formidable team of plaintiffs lawyers, the
UFC and its Las Vegas-based parent company Zuffa LLC have
commenced a beauty contest involving several top firms flexing
their legal muscles in an effort to secure the lucrative defense
work against claimants threatening to knockout the upstart
organization in a federal court.
UFC, led by its bombastic president, Dana White, issued a terse
statement on Dec. 16 in response to the litigation, saying it
would "vigorously defend itself and its business practices."
As with most antitrust cases in the sporting arena, the three lead
plaintiffs suing UFC -- former fighters Jon Fitch, Cung Le and
Nathan Quarry -- are seeking trebled damages and injunctive relief
against an organization they claim has created a monopoly in the
world of mixed martial arts and implemented anticompetitive
practices that have suppressed fighter earnings and created unfair
and restrictive working conditions. (SI.com legal analyst Michael
McCann, an attorney and founding director of the Sports and
Entertainment Institute at the University of New Hampshire, has
written an excellent analysis of the legal theory behind the
suit.)
In an email, UFC chief legal officer Kirk Hendrick confirmed to
The Am Law Daily that his organization had begun the process of
"interviewing several well-respected law firms" for the role of
lead counsel. It's a coveted assignment for the firm or firms
that emerge victorious in the battle to square off in the putative
class action antitrust case being brought by Cohen Milstein
Sellers & Toll and Berger & Montague.
This fall, another group of plaintiffs lawyers submitted a bill
for $45 million in legal fees and $5.3 million in costs after
securing a key victory for former college athletes in an antitrust
case filed against the National Collegiate Athletic Association,
according to sibling publication The Recorder. Among the firms
with hands in that honeypot is Boies, Schiller & Flexner:
Antitrust partner William Isaacson -- wisaacson@bsfllp.com -- in
Washington, D.C., teamed up with Hausfeld LLP's Michael Hausfeld
for the win on behalf of former college basketball and football
players.
Mr. Isaacson just snagged his third Litigator of the Week honor
from sibling publication the Litigation Daily for helping consumer
electronics giant Apple beat back a $1 billion antitrust case in
the Bay Area. That victory, like Boies Schiller's August triumph
over the NCAA, took place in a federal court in the Northern
District of California. (Ironically enough, Mr. Isaacson's
cocounsel in the NCAA case, Mr. Hausfeld, a man called the most
powerful in sports this summer by ESPN, was a name partner at
Cohen Milstein before the two had an acrimonious split six years
ago.)
Perhaps not surprisingly, The Am Law Daily has learned that Boies
Schiller is one of several firms under consideration to step into
the antitrust octagon for the UFC. A Boies Schiller spokesman did
not respond to a request for comment on the matter, but the firm
has previously done work for the UFC through IP litigation partner
Parker Bagley, who joined the firm's San Francisco office last
year from Goodwin Procter. Mr. Bagley came to Goodwin Procter in
2008 from Milbank, Tweed, Hadley & McCloy, a longtime legal
adviser to the UFC and Zuffa, both of which have been owned since
2001 by casino moguls Frank and Lorenzo Fertitta.
In 2010, former UFC general counsel Ike Lawrence Epstein told The
Am Law Daily that Milbank, which predominantly handles corporate
work for the organization, was one of about 25 outside firms that
the UFC counts on for counsel in various matters around the world.
Mr. Epstein, a Las Vegas native formerly affiliated with Lewis
Roca Rothgerber, is now UFC's COO. A spokeswoman for the newly
formed Am Law 200 firm, which has previously handled UFC work,
confirmed that it's not involved in the antitrust matter.
(Federal trademark records show that Gordon & Silver, one of
Nevada's oldest firms, also does IP work for UFC.)
Mr. Epstein will work closely with former COO-turned-legal-chief
Hendrick and assistant general counsel and senior vice president
of business and legal affairs Michael Mersch in forming UFC's
antitrust litigation defense team.
Three years ago, UFC hired antitrust boutique Axinn, Veltrop &
Harkrider to represent it in a Federal Trade Commission
investigation into the organization's acquisition of mixed martial
arts rival Strikeforce, a deal handled on the transactional side
by Milbank.
In conversations with a half-dozen lawyers familiar with UFC,
Axinn Veltrop's name was mentioned repeatedly as a potential
member of any legal team put together by the organization, but
name partner Stephen Axinn, who handled the FTC's probe into the
Strikeforce deal for UFC, did not respond to a request for comment
on whether his former client has approached him about reprising
his antitrust defense role.
Media representatives for Milbank and Morrison & Foerster, the
latter of which has been representing UFC in its ongoing fight to
get New York State to lift a ban on mixed martial arts, also did
not respond to requests for comment.
Brownstein Hyatt Farber & Schreck, another firm with close ties to
UFC and a large office in the company's hometown of Las Vegas, has
also been mentioned as stepping up as a contender for the
antitrust defense crown. Brownstein Hyatt is UFC's lobbyist of
choice, handling advocacy work for the organization since at least
2008, according to records on file with the U.S. Senate. UFC has
paid almost $2.5 million to the firm during that time -- including
$240,000 through the third quarter of this year 00 to advise on
copyright piracy, Internet gaming and event-related issues.
Makan Delrahim, a former deputy assistant attorney general in the
U.S. Department of Justice's Antitrust Division who joined
Brownstein Hyatt in 2005, is listed in the firm's lobbying filings
as one of those representing UFC. He declined to comment.
Whoever UFC selects to handle the antitrust litigation will face a
team of plaintiffs lawyers led by Cohen Milstein partner Benjamin
Brown -- bbrown@cohenmilstein.com -- Berger & Montague managing
partner Eric Cramer -- ecramer@bm.net -- and partner Michael
Dell'Angelo -- mdellangelo@bm.net -- and the San Francisco-based
Joseph Saveri -- jsaveri@saverilawfirm.com -- Law Firm. Mr.
Saveri formed his own shop in 2012 after 20 years at Lieff
Cabraser Heimann & Bernstein, where he founded and chaired the
antitrust group at the leading plaintiffs firm.
Another key figure behind the plaintiffs case is Phoenix lawyer
Robert Maysey -- rmaysey@warnerangle.com -- a partner with local
firm Warner Angle Hallam Jackson & Formanek, who has been a
longtime adviser to several UFC fighters. Mr. Maysey tells The Am
Law Daily that his interest in pursuing a case against UFC began
two years ago after a meeting with former welterweight champion
Carlos Newton, who explained to him how UFC had come to dominate
the growing sport of mixed martial arts. (Newton has now joined
the three name plaintiffs in their 63-page antitrust complaint
against the UFC.)
"They've restrained promoters, and there's no real clear path to a
title bout," says Mr. Maysey, ticking off some of the issues that
nonunionized fighters have with UFC when asked about the case in a
Nov. 17 phone interview.
Mr. Maysey is hardly an antitrust expert. He says he told Newton
as much after their conversation two years ago, but the retired
Canadian fighter told Mr. Maysey "he was smart enough how to
figure this all out." So Mr. Maysey spent the better part of the
next year reading up on antitrust law and putting together packets
to send out to larger plaintiffs firms in an effort to win their
support for a potential antitrust suit against the deep-pocketed
UFC.
"I think we've got a strong case," Mr. Maysey says.
UNITED STATES: Seeks Dismissal of Suits Over Chrysler Dealerships
-----------------------------------------------------------------
Lalita Clozel, writing for The National Law Journal, reports that
the U.S. government has moved to dismiss a suit from 18 former
Chrysler dealerships that lost their contracts with the automaker
during its bankruptcy proceeding in 2009.
In a Dec. 15 filing with the U.S. Court of Federal Claims, the
government argued in that plaintiffs had failed to state a
regulatory takings claim by proving Chrysler had any realistic
alternatives to the Troubled Asset Relief Program -- which
provided $14 billion in bailout funds to the company and its auto
loans arm, Chrysler Financial Corp. -- to stay afloat and maintain
its dealership agreements.
"Spitzer baldly asserts that Chrysler and all of its dealers would
have survived without Government funding," states the government.
"[A] wholly speculative allegation that runs counter to the
reality of the situation."
The plaintiffs in the case, Spitzer Motor City Inc. et al v. USAI,
are among 789 dealers, or about 25 percent of Chrysler's network
at the time, that lost their contract during the automaker's
bankruptcy proceedings.
A June 2009 court order granted Chrysler's release from the its
agreements with dealerships. They argue that they were left with
vehicles and inventory the automaker refused to buy back and were
not compensated by the government for their losses.
The government "expected the terminated dealers to shoulder all of
the financial burden," stated the September amended complaint.
The document cited various hypotheses under which Chrysler, which
had asked Congress for a $7 billion emergency loan in December
2008, could have survived along with its dealership franchises.
Spitzer and the other plaintiffs suggested "cost cutting," a
merger with Fiat, or an "orderly" bankruptcy without the
intervention of the federal government.
The government has made the same arguments in motions to dismiss
in two similar cases, Colonial Chevrolet Co., Inc., et al. v.
United States and Alley's of Kingsport, Inc., et al. v. United
States
Plaintiffs are represented by MLG Automotive Law.
WILLBROS GROUP: Sued in Texas Over Violations of Securities Act
---------------------------------------------------------------
Margaret O'Byrne, Individually and on Behalf of All Others
Similarly Situated v. Willbros Group, Inc., Robert R. Harl, and
Van A. Welch, Case No. 4:14-cv-03693 (S.D. Tex., December 26,
2014) is brought on behalf of purchasers of Willbros securities
between May 5, 2014, and October 21, 2014, inclusive, seeking to
pursue remedies under the Securities Exchange Act of 1934.
Willbros is a Delaware corporation headquartered in Houston,
Texas. The Individual Defendants are directors and officers of
the Company. Willbros is a specialty energy infrastructure
contractor serving the oil, gas, refinery, petrochemical and power
industries.
The Plaintiff is represented by:
Willie C. Briscoe, Esq.
THE BRISCOE LAW FIRM, PLLC
8150 North Central Expressway, Suite 1575
Dallas, TX 75206
Telephone: (214) 239-4568
Facsimile: (281) 254-7789
E-mail: wbriscoe@thebriscoelawfirm.com
- and -
Lionel Z. Glancy, Esq.
Michael Goldberg, Esq.
Robert V. Prongay, Esq.
GLANCY BINKOW & GOLDBERG LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
E-mail: lglancy@glancylaw.com
mmgoldberg@glancylaw.com
rprongay@glancylaw.com
- and -
Howard G. Smith, Esq.
LAW OFFICES OF HOWARD G. SMITH
3070 Bristol Pike, Suite 112
Bensalem, PA 19020
Telephone: (215) 638-4847
Facsimile: (215) 638-4867
WHOLE FOODS: "Rodhouse" Suit Consolidated in Greek Yogurt MDL
-------------------------------------------------------------
The class action lawsuit titled Rodhouse v. Whole Foods Market
Group, Inc., Case No. 4:14-cv-01764, was transferred from the U.S.
District Court for the Eastern District of Missouri to the U.S.
District Court for the Western District of Texas (Austin). The
Texas District Court Clerk assigned Case No. 1:14-cv-01135 to the
proceeding.
The lawsuit is consolidated in the multidistrict litigation
captioned In re: Whole Foods Market, Inc., Greek Yogurt Marketing
and Sales Practices Litigation, MDL No. 1:14-mc-02588-SS.
The actions in the litigation are premised on similar factual
allegations involving the sugar content of Whole Foods 365
Everyday Value Plain Greek Yogurt, which Defendants Whole Foods
Market Group, Inc. and WFM Private Label, L.P. advertise and
market as containing less sugar per serving than the Product
actually does contain.
The Plaintiff is represented by:
David L. Steelman, Esq.
STEELMAN, GAUNT & HORSEFIELD
901 Pine Street, Ste. 110
P.O. Box 1257
Rolla, MO 65402
Telephone: (573) 341-8336
Facsimile: (573) 341-8548
E-mail: dsteelman@steelmanandgaunt.com
- and -
Matthew H. Armstrong, Esq.
ARMSTRONG LAW FIRM, LLC
8816 Manchester Road
St. Louis, MO 63144
Telephone: (314) 258-0212
The Defendant is represented by:
Michael W. Kopp, Esq.
SEYFARTH SHAW, LLP
400 Capitol Mall, Suite 2350
Sacramento, CA 95814-4428
Telephone: (916) 498-7039
Facsimile: (916) 288-6339
E-mail: mkopp@seyfarth.com
* Appeals Court Revisits CPLR 901(b) in Class Action Cases
----------------------------------------------------------
In Borden v. 400 East 55th Street the Court of Appeals has
revisited CPLR 901(b) to clarify that its prohibitions are limited
to a narrow class of statutory causes of actions requiring
mandatory penalties.
CPLR 901(b), which is unique amongst class action rules whether
state or federal, provides, in relevant part, that "an action to
recover a penalty, or minimum measure of recovery created or
imposed by statute may not be maintained as a class action" unless
authorized by the statute creating the penalty. In 1975, as the
Legislature, at the urging of the Court of Appeals, was about to
enact CPLR Article 9, CPLR 901(b) was engrafted onto an otherwise
modern class action statute equal to or better than Federal Rule
23.5. This was done under the treble damages provision of the
Donnelly Act, General Business Law (GBL) 340. The Empire State
Chamber of Commerce requested enactment of 901(b) ("Penalties and
class actions simply do not mix.").
Defining the Scope
Subsequently, in Sperry v. Crompton Corp. the Court of Appeals,
after analyzing the legislative histories of CPLR Article 9 and
GBL 340, concluded that treble damages available in GBL 340 are
not recoverable in class actions. The court stated, "[r]ead
together, we conclude that Donnelly Act threefold damages should
be regarded as a penalty insofar as class actions are concerned."
Uncertainty remained, however, as to whether CPLR 901(b)'s
prohibitions should be applied to a host of other penalty
provision statutes seeking to protect, inter alia, tenants,
employees and consumers.
The Court of Appeals has continued to take a role in encouraging
the use of CPLR Article 9.11 Starting in 2012 with Koch v. Acker,
Merrall & Condit Co.,12 a wine fraud case, the court expanded the
use of General Business Law (GBL) Sec. 350 (false advertising) by
declaring that reliance is not an element of this statutory cause
of action. This important decision made GBL 350 as available in
consumer class actions as is GBL Sec. 349 (deceptive and
misleading business practices).13
And in Corsello v. Verizon, New York,14 an inverse condemnation
class action, the Court of Appeals stated that the case "seems on
its face well-suited to class action treatment" because "it would
be reasonable in infer that the case will be dominated by class-
wide issues -- whether Verizon's practice is lawful, and if not
what the remedy should be" and that expert testimony could be used
to "support an inference" of typicality.
Tenant Class Actions
Two years later in Borden v. 400 East 55th Street the Court of
Appeals took another step forward in giving much needed guidance
on the proper implementation of CPLR Article 9 by clarifying the
circumstances under which class plaintiffs, particularly, tenants,
may waive a statutory penalty pursuant to CPLR 901(b). Several
tenant class actions have been brought16 (three of which are
addressed in Borden) following the Court of Appeals decision in
Roberts v. Tishman Speyer Properties,17 seeking compensatory
damages in the form of rent overcharges on the grounds that "their
units were decontrolled in contravention of Rent Stabilization Law
(RSL) Sec. 26-516(a) because their landlords accept(ed) tax
benefits pursuant to New York City's J-51 tax abatement program .
. . To qualify for the J-51 program exemption, landlords must
relinquish their rights under the decontrol provisions of the RSL
while they benefit from the exemption."
RSL 26-516(a) states, in part, that any landlord "found . . . to
have collected an overcharge above the rent authorized . . . shall
be liable to the tenant for a penalty equal to three times the
amount of the overcharge" but if the landlord's actions were "not
willful" then the penalty would be "the amount of overcharge plus
interest." As noted by the Court of Appeals, all plaintiffs
initially sought RSL treble damages but waived them through
attorney affirmation. "[T]he question arises whether these claims
can properly be brought as class actions" in light of the
provisions of CPLR 901(b).
The court relied on the legislative history of CPLR 901(b), which
states that a "statutory class action for actual damages would
still be permissible . . . if the members of a class who would be
entitled to a penalty sue only for their actual damages"] and the
liberal intent of CPLR 901(b). The court said: "Citing this
Court's decision in Moore v. Metropolitan Life Ins. Co. in which
we commended the legislature for its 'comprehensive proposal to
provide a broadened scope and more liberal procedure for class
actions,' the legislature intended for CPLR 901(b) to be
interpreted liberally, and be a stark contrast from the former
statute 'which fail[ed] to accommodate pressing needs for an
effective, flexible and balanced group remedy.'"
The court held that "Waiver does not circumvent CPLR 901(b); on
the contrary, the drafters not only foresaw but intended to enable
plaintiffs to waive penalties to recover through a class action .
. . Where a statute imposes a non-mandatory penalty, plaintiffs
may waive the penalty in order to bring the claim as a class
action"
Harkening back to its forceful decision in Moore v. Metropolitan
Life Insurance Company, the Court of Appeals in Borden stated:
From a policy standpoint, permitting plaintiffs to bring these
claims as a class accomplishes the purpose of CPLR 901(b) . . .
the State Consumer Protection Board emphasized the importance of
class actions: 'The class action device responds to the problem of
inadequate information as well as the need for economies of scale'
for ' . . . a person contemplating illegal action will not be able
to rely on the fact that most people will be unaware of their
rights-if even one typical person files a class action, the suit
will go forward and the other members of the class will be
notified of the action either during the proceedings or after a
judgment is rendered in their favor.
Taxing Internet Sales
In County of Nassau v. Expedia, Nassau County sought to enforce
its Hotel and Motel Tax Law and other similar taxing statutes on
behalf of a class of 56 other local governmental agencies. The
county alleged that the online sellers collect 3 percent hotel tax
from consumers based on retail room rates but remit to the county
only the portion of the tax based on defendants' lower 'wholesale'
rate." Relying on Overstock.com v. Dept. of Taxation and Finance,
the trial court granted class certification and found a
predominance of common questions concluding that the 'means and
manner' of collecting the taxes is sufficiently similar amongst
class members.
However, the Appellate Division, Second Department, reversed
relying on CPLR 901(b) and rejecting plaintiff's penalty waiver.
"The 'waiver' exception to CPLR 901(b) does not apply where a
penalty is mandatory and cannot be waived . . . the plaintiff's
Hotel Tax law [requires the recovery of] a 'penalty' of 5% of the
amount of the tax allegedly due . . . the recovery of which in a
class action is not specifically authorized in the Hotel Tax law,
and the imposition of which cannot be waived."
Banquet Servers Seeking Tips
In Picard v. Bigsbee Enterprises, a class of catering hall servers
challenged their employer's retention of a "20% Service Personnel
Charge" imposed upon all customers. Alleging a violation of Labor
Law Sec. 196-d ("No employer . . . shall . . . retain any part of
a gratuity . . . purported to be a gratuity for an employee"), the
trial court accepted plaintiff's waiver of the statutory penalty
(Labor Law Sec. 198(1-a) and denied defendant's motion to dismiss
based on CPLR Sec. 901(b). However, the Supreme Court, Albany
County, subsequently denied class certification finding that
plaintiff had met all the requirements of CPLR 901(a) except
numerosity. "[A]ssuming that the proposed class were shown to be
sufficiently numerous . . . the element of superiority would be
established").
Paperless Tickets
In Pires v. Bowery Presents, plaintiffs alleged that a ticket
seller violated Arts and Cultural Law Sec. 25.30(1) by using a
paperless ticket system which did not give consumers the option of
purchasing a ticket which, in accordance with the statute, could
be independently transferred. In sustaining the causes of action
(with the exception of seeking a permanent injunction) the Supreme
Court, New York County, also held that plaintiff could waive the
minimum $50 penalty as long as class members had an opportunity to
opt out of the proposed class action.
Labor Law Claims
Employees have used the class action device extensively over the
years including these cases reported in 2014: Williams v. Air Serv
Corp.26 (underpayment of wages; adequacy of representation;
certification granted); Stecko v. RLI Ins. Co.27 (failure to pay
prevailing wages and supplemental benefits; rejecting "rigorous
analysis" in favor of "liberal" interpretation; certification
granted); Moreno v. Future Care Health Services28 (home health
care workers seek minimum wages, overtime and spread of hours;
pre-certification dismissal motion); Andryeyeva v. New York Health
Care,29 (home health care workers working 24-hour shifts seek
minimum wage, overtime and spread of hours; certification
granted); Cardona v. Maramont Corp.30 (workers seek prevailing
wages and supplemental benefits for work performed in furtherance
of publically financed service contracts; certification granted;
partial summary judgment granted; damages of $86.8 million plus 9
percent interest awarded).
Asbestos Litigation
ASBESTOS UPDATE: 5-Day Exposure Could Cause Illness, Court Rules
----------------------------------------------------------------
Heather Gvillo, writing for The Louisiana Record, reported that a
Louisiana appeals court ruled that an asbestos claimant provided
sufficient evidence that his five-day asbestos exposure could have
been a substantial contributing factor to his asbestosis.
Judge Terri F. Love delivered the Dec. 10 opinion in Louisiana's
Fourth District Court of Appeals, reversing the trial court's
judgment. Judges Edwin A. Lombard and Roland L. Belsome
concurred.
"On appellate review, we find that because there is a genuine
issue of material fact as to whether [the claimant's] exposure to
asbestos at Goodrich was a substantial contributing factor to
[his] development of asbestosis the trial court committed
reversible error," Love wrote.
Plaintiffs Edward and Anna Alberes allege that Edward contracted
asbestosis as a result of occupational asbestos exposures while
employed in various positions from 1953 through 2006.
In the late 1970s or early 1980s, Alberes claims he worked
turnaround job for five days as a pipefitter helper at Goodrich's
Louisiana facility where he was responsible for installing and
removing asbestos-containing gaskets allegedly manufactured by
Garlock Sealing Technologies.
Alberes now seeks to recover damages as a result of his
asbestosis, claiming this five-day asbestos exposure was a
substantial contributing factor. Alberes also claims that while
working at Goodrich, he worked in close proximity to insulators
who were busy removing and installing asbestos-containing
insulation. He was also responsible for cleaning up the insulation
at the end of each work day.
Industrial hygienist Franke Parker III testified on behalf of the
plaintiffs that Alberes' work with asbestos-containing gaskets
would have exposed him to concentrations of asbestos above
"contemporary occupational limits," which would have been a
significant contributing factor in his development of asbestosis.
Dr. Judd Shellito also testified on behalf of the plaintiffs,
arguing the any exposure theory.
Furthermore, Dr. Robert Jones, Goodrich's expert, testified that
all exposures are cumulative and contribute to the resulting
disease.
Goodrich sought summary judgment in the Civil District Court of
New Orleans, asserting that the plaintiffs failed to provide
evidence of frequent and regular exposure to asbestos fibers at
Goodrich and that the exposure would have been a substantial
factor in the development of his asbestosis.
"Goodrich points to the fact that Mr. Alberes' exposure at its
Plaquemine facility was only for five days on a turnaround job and
inconsequential in the scope of a life-long career employed as a
laborer, pipefitter helper and crane operator," the opinion
states.
The trial court agreed and granted Goodrich's motion for summary
judgment.
On appeal, the plaintiffs claim the trial court erred when it
granted Goodrich's motion for summary judgment.
Goodrich argues that "the law allows for defendants with
relatively minimal exposures in these cases to be dismissed,"
meaning the court did not err in its prior ruling.
The appeals court, however, notes that Goodrich failed to point to
any case law supporting its contention.
Love stated that the trial court only granted summary judgment
because the plaintiff's exposure while working for Goodrich was
minimal when compared to other longer exposures.
"Given that the substantial contributing factor test in asbestos-
related cases focuses on the quality of exposure versus the
duration of exposure, granting summary judgment on these grounds
was in error," he wrote.
Therefore, the appeals court held that the plaintiffs provided
sufficient evidence from the claimant's testimony and the experts'
opinions to raise a genuine issue of material fact as to whether
Alberes' asbestos exposure at the Goodrich facility was a
substantial contributing factor to his contraction of asbestosis.
As a result, the appeals court reverse the trial court's ruling
and remand the case for further proceedings.
ASBESTOS UPDATE: Court Vacates $14.5MM Verdict, Orders New Trial
----------------------------------------------------------------
Jim Boyle, writing for The Pennsylvania Record, reported that a
divided en banc Superior Court affirmed a 2013 split-decision by a
three-judge panel to vacate a $14.5 million asbestos verdict
awarded in 2011 and order new trials for damages and liability at
the trial court based on improper comments made by the plaintiff's
attorney during closing arguments and the use of the "any breath"
theory for the cause of mesothelioma.
Defendants Crane Co., Hobart Brothers and The Lincoln Electric
Company, appealed the Feb. 23, 2011, multi-million-dollar judgment
in favor of plaintiff Darlene Nelson, who sued on behalf of her
late husband, James Nelson, over contentions that the trial court
erred in allowing the admission of Nelson's expert witness
testimony that every asbestos exposure must be considered a cause
of mesothelioma.
Darlene Nelson sued a host of companies that dealt in asbestos
products over the mesothelioma related death of her husband, who
contended he developed the disease as a result of occupational
exposures during his career at the Lukens Steel Plant in
Coatesville, Chester County.
James Nelson, who worked as a pitman, laborer, welder and mechanic
at the plant during his decades-long career from 1973 to 2006, was
diagnosed with mesothelioma in the winter of 2008, the record
shows. He died a result of his cancer on Oct. 30, 2009.
In her subsequent complaint, the widow alleged that her husband
had been exposed to asbestos while working with pipe coverings,
gaskets, packing, furnace cement and something called "hot tops,"
which is an asbestos-containing board.
One argument on appeal was whether expert testimony that "every
asbestos exposure must be considered a cause of disease" was
legally sufficient to establish causation under the facts
presented in this case in light of state court precedent.
Daniel DuPont, the expert witness, had testified that mesothelioma
has a long latency period and that each and every exposure to
asbestos is a substantial controlling factor in eventually
developing disease.
The Superior Court judges held that DuPont's testimony was
analogous to testimony in another asbestos mass tort case that was
found to be inadmissible, and that the trial court's admission of
it in the Nelson case was inconsistent with Supreme Court
precedent.
In another defense argument on appeal it was alleged that the
trial court erred in denying a mistrial and in failing to grant a
new trial in response to post-trial motions where the structure
and size of the verdict demonstrated conclusively that the jury
was improperly prejudiced after a lawyer for the plaintiff
"repeatedly wrongfully appealed to emotion and interjected [their]
conduct into his closing argument" at the conclusion of both
phases of the trial.
Examples given of the conduct included the plaintiff's attorney
improperly urging a specific minimum amount of damages by stating
in his phase one argument that each of the 12 separate elements of
non-economic damages was worth "at least $1 million," and by
improperly injecting alleged settlement discussions into his phase
one closing argument.
"Counsel's express reference to the stipulated economic damages
was not evocative, but declarative and algebraic," writes Judge
John T. Bender in the majority opinion. "It is no coincidence,
therefore, that the jury's award to Nelson comprised $7 million in
non-economic damages pursuant to the Survival Act and $5 million
in non-economic damages under the Wrongful Death Act. Clearly,
counsel's remarks were inappropriate."
Bender was joined by judges Mary Jane Bowes, Jacqueline Shogan,
Cheryl Lynne Allen, Victor Stabile and Patricia Jenkins.
The dissenting opinion was authored by Judge David N. Wecht, who
also disagreed with the original appeals panel decision in 2013.
He was joined by President Judge Emeritus Kate Ford Elliot.
"In light of Nelson's relative youth at the time of his death, and
the degree of his suffering in the last year of his life," Wecht
said in his opinion, "it is not at all surprising that appellee's
counsel implored the jury to award substantial noneconomic
damages, and the particulars of his manner of doing so in this
case did not so patently exceed the bounds of permissible argument
as to warrant this court's interference with the trial court's
discretion."
ASBESTOS UPDATE: Terminally Ill Pensioner Wins Six-Figure Payout
----------------------------------------------------------------
Hartlepool Mail reported that a pensioner who was diagnosed with
terminal cancer after being exposed to asbestos has been awarded a
six-figure payout.
Peter, who lives in the Fens area of Hartlepool, in England,
worked as a mechanical fitter for English Electric Company, where
he worked from 1967-68, and then for Richardsons Westgarth and its
subsidiary RW Engineering from 1968-71. But despite winning an
undisclosed compensation payout, the 69-year-old says his family
are still struggling to come to terms with the news that his
cancer is terminal.
Peter said: "When I found out I had a terminal cancer it was
devastating for myself and my wife, Joan.
"The disease has had a significant impact on my lifestyle, as I
underwent several sessions of chemotherapy and my health has
deteriorated rapidly since my diagnosis.
"My family and I are still struggling to come to terms with my
diagnosis and what the future holds for us as my retirement, which
I was looking forward to spending with my wife, will now be
cruelly taken away from us, purely because I went to work every
day and did my job."
During his employment with the companies, Peter was exposed to
asbestos while working at nuclear power stations and gas plants,
where he came into close contact with asbestos which was used to
lag pipework. He regularly worked near areas where lagging was
going on in power stations, with laggers using pre-formed sections
of asbestos lagging which released asbestos dust into the
atmosphere when cut.
Specialist lawyers at Irwin Mitchell's Newcastle office secured
the settlement from his former employers after arguing that Peter
was not warned of the dangers of asbestos or offered any form of
breathing mask or respiratory equipment during his employment with
the two firms.
Isobel Lovett, an expert asbestos-related disease lawyer at Irwin
Mitchell, said: "Peter worked as a mechanical fitter and a turbine
erector for a number of years with these two companies and spent a
lot of time in environments where asbestos dust and fibres were
present in the air.
"Unfortunately, his employers failed to inform him of the risks of
inhaling asbestos and never provided him with masks or respiratory
equipment to protect him from the risks of the deadly substance.
"It is completely unacceptable that employers failed to protect
workers despite the dangers of asbestos being known from the
1930s.
"We are delighted to have secured a settlement for Peter and his
wife Joan.
"While nothing can turn back the clock and prevent the exposure in
the first place, at least it will help provide some comfort at
this difficult time."
Peter was given the devastating news of his condition by medics at
James Cook University Hospital, in Middlesbrough, after initially
visiting his GP complaining of feeling unwell, tired and
breathless. He added: "I'm relieved that my legal team at Irwin
Mitchell secured a settlement from my former employers as it will
help to pay for any assistance and care I need in the future, as
well as providing financial stability for my wife."
ASBESTOS UPDATE: Quebec Gov't Refuses to Pay $2.7MM Cleanup Costs
-----------------------------------------------------------------
Jean-Francois Racine, writing for The Sudbury Star, reported that
four years after a mudslide containing asbestos residue tore
through the town of East Broughton, in Quebec, the provincial
government is refusing to pay $2.7 million in cleanup costs.
The April 2010 mudslide caused major damage to the small town
about 250 km east of Montreal. Now the town is saying that it
shouldn't be footing the bill for the cleanup, which is just under
the $3 million total annual budget for the town of 2,300.
"We're starting to be unhappy because it's been three (provincial)
governments who have passed over us since it started," Mayor Kaven
Mathieu said. "Nothing changes."
The residents are demanding that the provincial government take
responsibility for cleaning up the nearby asbestos mine, which
closed in 1958.
"As the head of a municipality, I have no power to force a company
to clean up their mines," Mathieu said.
The owners of the land on which the mine is situated have claimed
they are unable to pay.
"We had a meeting in August attended by 300 people, and they're
frustrated against the owners and the government," Mathieu said.
A committee of citizens recently met with Forestry, Wildlife and
Parks Minister Laurent Lessard, who refused to comment for this
story.
"The government can't do anything because of legal questions,"
committee spokesperson Jordan Roy said. "We understand they can't
help us. We're very disappointed. They won't do anything without a
court ruling."
ASBESTOS UPDATE: 6 Chicago-Area Firms Cited for Fibro Violations
----------------------------------------------------------------
The Associated Press reported that federal safety officials say
six Chicago-area companies have been cited after workers allegedly
were exposed to asbestos and other hazards while renovating a
suburban school.
The Occupational Safety and Health Administration says the
exposure occurred during the summertime renovation of the Chute
Middle School cafeteria in Evanston.
OSHA is proposing a combined $132,000 in penalties.
Officials from OSHA and the Illinois Department of Public Health
officials say the companies didn't require employees to limit
asbestos exposure or wear personal protective equipment while
cutting pipes that contained asbestos, failed to take air samples
and didn't properly dispose of debris.
Asbestos exposure has been linked to lung cancer.
Inspectors say some workers also were exposed to lead-based paint
and electrical hazards.
The companies have 15 days to accept or contest the citations.
ASBESTOS UPDATE: Ill. Court Finds Firm Not Liable for Exposure
--------------------------------------------------------------
Charles Planek, writing for JDSupra.com, reported that the
Illinois Appellate Court for the Fourth District affirmed a jury's
defense verdict in Holloway v. Sprinkmann Sons Corporation of
Illinois, 2014 IL App (4th) 131118 (December 16, 2014). The
plaintiff testified that from 1962 to 1976 she worked at the
defendant's plant and during that time she was in various portions
of the plant that were served by asbestos-covered steam pipes that
ran in excess of 30,000 feet. She argued that this insulation was
installed by the defendants without any warnings of the hazards of
asbestos to occupants of the plant. She was diagnosed with
asbestosis in 2010.
The plaintiff produced Arthur Frank, M.D., a well-known medical
expert for plaintiffs, who opined that minimal exposure to
asbestos could be detrimental, but he was not certain as to
exactly what that threshold level of exposure would be. He noted
that for asbestosis to develop, many experts thought "significant"
exposure was required, but that the experts could not agree among
themselves as to the definition of "significant." Dr. Frank
testified that he was of the opinion that the exposure did not
need to be very significant. Due to scheduling issues, the
defendant did not produce expert witnesses at trial.
Upon receipt of the defense verdict, the plaintiff challenged the
adverse verdict by arguing that the medical condition was proven,
the presence of the defendant's product in her place of employment
was not denied, and her expert concluded that her exposure was a
competent cause of asbestosis because airborne asbestos can linger
for a very long time and could be inhaled.
After reviewing all the testimony, the Appellate Court upheld the
jury verdict suggesting that the jury may have found that the
extent of the exposure to loose airborne fibers was not sufficient
or continuous enough to support a finding of causation. The Court
cited Thacker v. U N R Industries, Inc., 151 Ill. 2d 343, 359
(1992) as illustrative of the causation test adopted in Illinois,
which requires that the plaintiffs proffer evidence that they were
in close proximity to asbestos such that exposure was likely and
that this exposure was frequent and regular and not sporadic and
occasional. The Court went on to hold:
In short, all plaintiff offered in the trial was speculation that
her asbestosis resulted from repair work on the pipe-covering
insulation in the Eureka plant, although she never saw any repair
work being done on the insulation and there was no other evidence
placing her near any such repair work. Or she theorized that her
asbestosis resulted from damage inflicted on the insulation by a
forklift, or that the canvas-wrapped insulation, as it aged,
spontaneously emitted asbestos fibers. Arguably, no solid evidence
lifted those theories out of the realm of speculation, out of the
realm of "could."
The Illinois Appellate Court in the Fourth District applied the
Illinois causation standard and made plaintiffs prove each element
of their exposure with sufficiency to support causation. The Court
required more than "speculation" by holding that "walk-by contact
with asbestos" was insufficient to support a verdict for the
plaintiffs. For that reason, depositions of plaintiffs and
exposure witnesses taken in an asbestos case should be focused on
developing witnesses on the Thacker exposure factors of frequency,
regularity and proximity as well as challenging the product
identification testimony by any and all product identification
witnesses.
ASBESTOS UPDATE: ACT Govt OKs Changes to Fibro Management Code
--------------------------------------------------------------
ABC News reported that the Australian Capital Territory (ACT)
Government has moved to improve the codes of practice for the
handling and removal of asbestos.
The changes have partly been prompted by the Mr Fluffy loose-fill
asbestos removal program and are designed to achieve higher
standards of safety for workers who come into contact with the
dangerous substance.
The product known as Mr Fluffy insulation was pumped into the roof
spaces of more than 1,000 Canberra homes between 1968 and 1978.
Despite a Commonwealth-funded clean-up program in the 1980s and
1990s, remnant asbestos fibres were still being found in the wall
cavities and sub-floors of some properties.
Workplace Safety Minister Mick Gentleman said mandatory training
for workers was one of the important changes to the codes of
practice.
"We want to make sure that not just for Mr Fluffy, but all
dangerous substances, workplaces have opportunities for people to
be trained correctly," he said.
Mr Gentleman said the impact of Mr Fluffy had already been felt
across the ACT.
"I've worked with these dangerous substances myself in a previous
life," he said.
"At that time we weren't made aware of the dangerous situation
regarding that substance.
"I think it's really important that we are and that trainers and
people in the workplace understand the implications."
Anyone who does not comply with the changed codes of conduct will
not be able to hold a licence to conduct the removal of asbestos.
The other change to the codes of practice included more stringent
requirements about who may remove asbestos from a home or
workplace.
ASBESTOS UPDATE: Pa. Store Development Needs Fibro Removal
----------------------------------------------------------
Carl Rotenberg, writing for Montgomery News, reported that during
the eighth zoning hearing for a convenience store with gasoline
pumps Dec. 18, environmental engineer William Schmidt described
the environmental impact of a 24-hour, seven-day convenience store
operation on the 1100 block of Fayette Street, in Conshohocken,
Pennsylvania.
Schmidt, an engineer at Pennoni Associates, said a building survey
concluded building materials at the former auto dealership at 1109
Fayette St. contained asbestos that will require careful removal.
A subcontractor scanned the underground areas and did not identify
any unknown metal storage tanks. Schmidt said a Phase II
environmental study completed in October 2013 concluded from 12
soil borings that three volatile organic compounds and two metals
were found that "were above allowable limits."
He said the contamination could be left in the ground and
contained by concrete ground coverings.
Lawyer Stephen Pollock, representing Conshohocken residents
opposed to the store, questioned Schmidt about the differences in
testing locations for a previous plan to build semidetached homes
on the parcel.
Under questioning by Pollock, Schmidt said one of the contaminated
soil samples was taken from underneath Harry Street, which is
beyond the property line of the proposed convenience store.
Borough Solicitor John DiPietro asked Schmidt if he was aware that
Harry Street was not part of the development project. Schmidt
agreed that one sample was taken under Harry Street despite the
fact the street is not part of the development application.
Board Chairman Richard Barton asked how many additional soil
borings would be taken if the property is developed as a
residential project. Schmidt said 12 additional borings would be
required for a housing project.
"We talk about environmental concerns. I have nothing against this
particular convenience store. All those cars with their engines
running cause pollution," said a Conshohocken resident. "Think
about that. Have there been any studies about that? We have a park
next door where kids play."
Last year, Provco Pineville Fayette LP of Villanova unsuccessfully
sought zoning changes for the 1.45-acre parcel from Conshohocken
Borough Council. Local officials and a majority of residents
living around the site are opposed to the development plans. PPF
is proposing a 4,670-square-foot market at the former 1.45-acre
E.F. Moore car dealership at 1109 Fayette St. The applicant seeks
variances from front-yard rules, the size and number of signs, the
presence of gasoline tanks on Fayette Street and the design of the
retail store from the Conshohocken Zoning Hearing Board.
At the November hearing, sound engineer Dave Shropshire explained
his April 29 report found that the sound pressure levels (SPLs)
would be between the low 40s and the upper 60s, as measured in
decibels, at the proposed convenience store on Fayette Street.
"The overwhelming sound on the property were the vehicles on
Fayette Street," Shropshire said. "At the comparable site for
sound measurement [a Quick Chek in Hazlet, N.J.] the SPLs were
between 44.9 to 65.3. A morning reading was 49 to 62. The trash
area is the area that generates the highest sound levels."
Deliveries and trash collection were 57 to 75.6 decibels of
"impulse" sound, a short "bang."
"That is the worst-case scenario," he said.
Pollock questioned Shropshire about the conclusions and the
methodology of the study.
"The closest single home is 250 feet from the convenience store in
Hazlet," Shropshire said. "The site plan for Conshohocken has the
proposed building blocking a direct line of sight to the nearest
neighbor.
"The primary source of high sound would be trash collection, then
delivery trucks, then cars entering and exiting." he said.
"Ambient sound comes from trucks and cars on Poole Avenue."
Geologist Brian FitzPatrick, president of Synergy Environmental
Inc. of Royersford, said construction of underground storage tanks
has progressed over the years and additional regulations have been
imposed to prevent accidental spills. Double walls for tanks,
remote sensors, "sheer" valves on the above-ground pumps and
cutoff valves on rubber hoses are now standard protection for new
gasoline tank installations.
"New construction has to have complete containment," FitzPatrick
said. "Automatic tank gauges are fed by several sensors.
Installers have to pass tests to make the tank installations."
FitzPatrick said the developer's plan had four 15,000-gallon tanks
with 10 pumping stations.
The next zoning hearing on the convenience store was scheduled for
Jan. 29.
ASBESTOS UPDATE: $90,000 Needed to Fix Lansing DPW's Fibro Issues
-----------------------------------------------------------------
Dawn Parker, writing for Lansing State Journal, reported that
damaged asbestos insulation and tile at the the Wastewater
Treatment Plant of East Lansing, in Michigan, would be removed or
replaced if city council members approve a request.
Public Works Director Scott House is asking the council to sign
off on a $90,000 contract with Holt-based Fibertec Industrial
Hygiene Services, Inc. to do the work. The project involves
removal and abatement of approximately 1,350 linear feet of
asbestos insulation and approximately 675 fittings and the re-
insulation of the affected pipes and fittings with fiberglass
material.
In addition, 700 linear feet of damaged fiberglass pipe insulation
near the work area will be repaired and 250 square feet of damaged
asbestos floor tiling will be removed.
"Our overarching concern is we would like to remove the material,"
House said.
"Our goal is to create a safe working environment for our
employees."
The contract is not being bid out because Fibertec has already
done significant work for the city, especially an asbestos survey
in 2007. Having another firm do the work would cost East Lansing
an estimated $9,000 extra.
House said the material was probably installed in the 1960s.
Asbestos fibers, a known cancer-causing agent, could be released
if someone either bumps into or tears the material. Broken tiles
could also release the chemical.
The plant also received a violation notice from the Michigan
Occupational Health and Safety Administration for, House said, not
having labels or signs near the areas with asbestos. The violation
has been fixed, House added.
If the council authorizes the work, the cost would be paid from
the city's Wastewater Fund. Work could begin on Jan. 26 and would
continue in phases through early March.
"It's definitely a worthwhile investment," House said.
ASBESTOS UPDATE: DC Cir. Affirms Honeywell Win in Fibro Suit
------------------------------------------------------------
Beth Winegarner, writing for Law360, reported that the D.C.
Circuit has upheld Honeywell International Inc.'s victory in a
case claiming the company is liable for a man's mesothelioma
death, finding that a lower court correctly excluded a plaintiff's
expert declaration claiming that his exposure to the company's
brakes was sufficient to cause asbestos-related cancer.
In a Dec. 30 ruling authored by D.C. Circuit Judge Stephen F.
Williams, the appeals panel agreed that a D.C. federal judge was
right to grant Honeywell summary judgment after excluding new
statements from plaintiff's expert Steven Markowitz.
The estate of the late John Tyler, who sued Honeywell in 2009,
filed the new declaration after the Virginia Supreme Court ruled
in another Honeywell case that plaintiffs in asbestos suits must
offer evidence that exposure to a product was enough, in and of
itself, to cause an injury. In the declaration, Markowitz said
that Tyler's exposure to asbestos from brakes made by Honeywell
predecessor Bendix Corp. was "sufficient" to cause his cancer, the
ruling said.
The D.C. Circuit ruled that the Markowitz submission came too
late, that the late filing was not substantially justified and
that it was harmful to Honeywell, especially given that the case
was on track to go to trial.
"Allowing the new declaration would have required either reopening
discovery -- and possibly delaying trial -- or denying Honeywell
the opportunity to cross-examine Dr. Markowitz on his new opinions
before trial and an adequate chance to offer expert testimony in
rebuttal. These are exactly the types of 'harms' that disclosure
deadlines are intended to prevent," Judge Williams wrote.
Initially, a lower court denied Honeywell's motion for summary
judgment. But after the Virginia Supreme Court's ruling in two
asbestos cases, one involving Honeywell and plaintiff Walter
Boomer, Honeywell filed for reconsideration, prompting Tyler's
estate to file the new Markowitz document two years after the
close of fact discovery, according to the ruling.
However, Tyler didn't seek leave to file the declaration under
Rule 26(e), involving the supplementation of disclosures, and
didn't move for permission to take additional discovery. Instead,
"he argued that Honeywell's motion for reconsideration of the
summary judgment issue was not justified because 'Boomer did not
. . . change Virginia law,'" Judge Williams wrote.
Ultimately, the D.C. Circuit agreed with Honeywell that the lower
court didn't abuse its discretion by excluding the declaration,
and affirmed summary judgment in Honeywell's favor.
Attorneys for the parties didn't respond to requests for comment
on the ruling.
Tyler and his wife sued Honeywell in 2010, but died in July of
that year from malignant pleural mesothelioma. The representative
of his estate, Stephen Wannall, continued the litigation, while
Tyler's wife dropped out and didn't participate in the appeal,
according to the ruling.
Tyler was allegedly exposed to asbestos in at least three ways
over his lifetime, including when he repaired cars using brakes
made by Bendix. Tyler's other alleged exposures to asbestos came
while he served in the Navy and worked on an Army base. He was not
a professional mechanic but repaired cars in his spare time for
family and neighbors.
D.C. Circuit judges Stephen F. Williams, David B. Sentelle and
Janice Rogers Brown sat on the panel. Tyler is represented by
David Michael Lipman of The Lipman Law Firm and by Daniel Aaron
Brown of Brown & Gould LLP.
Honeywell is represented by Michael R. Shebeleskie and John D.
Epps of Hunton & Williams LLP and Michael A. Brown and Alicia N.
Ritchie of Miles & Stockbridge PC.
The case is Stephen A. Wannall v. Honeywell Inc., case number 13-
7185, in the U.S. Court of Appeals for the District of Columbia
Circuit.
ASBESTOS UPDATE: Carlow Factory Fire Sparks Fibro Fears
-------------------------------------------------------
Padraig Byrne, writing for Carlow People, reported that there were
unbelievable scenes in the town of Carlow, in Ireland, as eight
units of Carlow County Fire Service rushed to respond to a blaze
that had broken out in the grounds of the old Erin Foods Factory
at Dr Cullen Road.
The blaze, which was in close proximity to Dr Cullen Park and
Cannery Road, broke out in the afternoon of Jan. 3 and is believed
to have been spotted by a passing garda patrol car. While fire
fighters battled to contain the blaze, the main concern became the
wellbeing of people situated in close proximity to the fire, as it
emerged that the roof of the derelict factory was constructed of
asbestos cement sheeting which had collapsed into the flames.
A warning was immediately issued for residents to stay indoors and
lock their windows and doors amid fears of the toxic material
being burned in the atmosphere. Roads were immediately closed
from Dr Cullen Park Roundabout to Athy Road Roundabout and Oak
Park Road, Drive and Park were all closed off with residents being
urged not to leave the house.
Fire crews battled the blaze through the night of Jan. 3 in
temperatures as low as -2 and by 10 p.m. the fire had been
contained to a single section. They remained on Jan. 4, however,
to 'dampen down' the area and to remove the remainder of the 900
bales of straw which had gone up in flames and caused the fire.
Every fire fighter in the county was on duty at some stage during
the operation.
'Crews rotated throughout the operation,' said Chief Fire Officer
Gerard Guerin. 'But at the height of it I'd say there were eight
to ten units fighting the blaze. In total it took just over
twenty-eight-and-a-half hours to bring it fully under control so
it was hard going, as well as maintaining fire cover in the rest
of the county. We also had to respond to a house fire in Taylor's
Cross while this was going on. We plan for situations like this
though and there's a framework in place for it.'
Organisations working in Carlow have said that any asbestos burned
during the incident doesn't pose a serious health risk to people
in the area.
As of yet it is unclear how the fire started, however, gardai are
appealing for any witnesses who were in the area around the time
the fire was started to contact them at Carlow Garda Station.
'The scene is currently being preserved by gardai for a full
technical examination,' said Mr Guerin. 'A full investigation into
the cause of the fire will now take place.'
ASBESTOS UPDATE: Fibro Use in Submarines Put Sailors at Risk
------------------------------------------------------------
Janene Van Jaarsveldt, writing for NLTimes.com, reported that crew
members of the submarine Zeeleeuw was exposed to carcinogenic
asbestos for years, according to Brandpunt Reporter, based on
their own research. The television program cites internal
documents of Defense.
It was already known that asbestos was released on the Zeeleeuw in
2013 during maintenance work. Measures were then taken. But
according to the television program, a risk of contamination
existed for much longer. This is clear from a report of an
asbestos removal company that Brandpunt Reporter has in its
possession. The "incompetent removal" of a heating element created
a contamination in the air handling system in the past, the
television program reports.
Last year the Ministry of Defense also had to deal with an affair
in which (former) employees had come into contact with
carcinogenic chromium-6 paint. In December 1,250 (former)
employees reported with health problems related to this case.
ASBESTOS UPDATE: Critics Slam Thailand's Fibro Ban Delay
--------------------------------------------------------
Nanchanok Wongsamuth, writing for Bangkok Post, reported that
anti-asbestos groups in Thailand have condemned a cabinet decision
to delay banning asbestos.
The cabinet on Dec 23 rejected a Public Health Ministry proposal
to finally outlaw the material, which has been linked to serious
health issues including lung cancer, saying there is not enough
evidence of asbestos-related disease in Thailand.
The cabinet rejection also invalidates an Industry Ministry
proposal to phase out asbestos in industrial products by 2020.
Anti-asbestos groups have campaigning against its use since 2006,
resulting in a cabinet resolution banning the material four years
ago. But the ban has been stalled by lobbying from manufacturers
and investors.
Somboon Srikamdokcare, a member of the Council of Work and
Environment Related Patients Network of Thailand, said the
decision to delay the ban shows government is siding with business
and neglecting people's health.
"The cabinet must respect the opinions of the ministry in charge
of people's healthcare," said Ms Somboon. "People are starting to
think of the government's 'happiness campaign' as returning
happiness to capitalists, rather than the grassroots."
Disease Control Department deputy director-general Nopporn
Cheanklin said a revised proposal will be submitted to the Public
Health minister, before being resubmitted to the cabinet.
Additional details will set precise schedules for factory
checkups. Around 200 factories in Thailand use asbestos, with less
than 20 using the substance in large quantities, Dr Nopporn said.
Uran Kleosakul, managing director of roof tile manufacturer
Oranvanich Co, said the cabinet's decision provided "justice",
since the Public Health Ministry is yet to link any deaths to
asbestos-related diseases. Asbestos is widely used in Thailand for
roofing materials and floor tiles.
From January to November 2014, Thailand imported 620.95 million
baht worth of asbestos from Brazil, China and Russia, 525.46
million baht of which came from Russia. The Joint Russian-Thai
Intergovernmental Commission on Bilateral Cooperation, Russia's
Minister for Industry, and Thailand's Industry Ministry will hold
talks on the issue.
ASBESTOS UPDATE: Govt U-Turn on Fibro Fibro After Lunch Offer
-------------------------------------------------------------
Sam McBride, writing for News Letter, reported that civil servants
in Ireland agreed to a U-turn on problematic form of asbestos
after the firm which manufactured it entertained three officials
to lunch and flew one of them to England, declassified government
files reveal.
A file on asbestos gives an insight into the pressure which big
asbestos firms brought to bear on mid-ranking civil servants --
and the potentially deadly consequences for decades to come.
Turner and Newall, one of the UK's largest companies at the time,
had set up Turners Asbestos Cement Co Ltd in Ballyclare in the
1960s. Ultimately, Turner and Newall was to be overwhelmed by
multi-million pound claims for compensation and it finally went
under in 2001.
Company documents later revealed that for many years Turner and
Newall knowingly exposed its employees to lethal asbestos, and
used a PR firm to play down the risks to health, while making huge
profits.
One file released at the Public Records Office in Belfast under
the new 20-year-rule records many years of asbestos issues. The
file is only being released now as it was not closed until 1986.
During an October 1969 Ministry of Commerce visit to the Turners
factory in Ballyclare, the official visiting, W McC [sic] Taylor,
said that he had come under great pressure to use the firm's
products for Government contracts.
"The firm hopes to expand its sales of asbestos cladding by
selling to the Ministry of Commerce for its advance factory
programme. I was subjected to very strong pressure regarding this
aspect of their activities . . ."
A note later that month from an unidentified official expressed
concern at what he said was an undertaking to use asbestos
cladding in future factories.
He said: "I would have thought that, in view of the past history
of asbestos cement sheeting, I would have been consulted before
any indication was given to the firm . . . we are well aware of
the problems which arose in the past with the product and the
numerous complaints which came from the tenants.
"Furthermore, at that time Turners were not inclined to be very
helpful. As far as the Maintenance Section is concerned, I
understand that the problems of cracked sheeting are still
continuing."
But the following month another official whose signature is not
clear said that he had been contacted by a Mr Elser from the
asbestos factory pushing for the use of the product. He said "I
was impressed by his argument" and committed to a test use of the
material in a new factory.
The following month the company sent an invitation to "luncheon at
the Dunadry Inn" for several officials, followed by a tour of the
firm's premises in nearby Ballyclare. A John T Dunwoody confirmed
that he, along with two other officials, would take up the offer.
Two days after the lunch meeting, a letter from the firm expressed
"delight" at the opportunity to introduce officials to those
running the factory. It added: "In considering the major question
of whether or not to increase capacity at Ballyclare it was a
great comfort to know that the 'hatchet has been buried' and
asbestos cement will be given a fresh opportunity by the Ministry
of Commerce to prove itself on advance factories".
The firm subsequently invited officials to visit "at our expense"
sites in England where asbestos had been used. Mr Dunwoody
subsequently visited Manchester to inspect asbestos products and
despite some problems with the cladding which he inspected, they
were explained away as being not relevant to the company's
operation in Ballyclare.
It is clear from a memo five years later that the asbestos
cladding was by that stage again being used, partly, it was said,
to sustain jobs in Ballyclare. An 11 February 1975 memo from VD
McGoldrick, whose department is unclear, to Mr FM Craig in the
Department of Commerce's Emergency Division, referred to
disruption to electricity supplies.
He said: "Our factory building programme depends upon the
availability of both asbestos cement and rolled steel cladding.
"We prefer the latter but use the former on the smaller buildings
both for economy and to provide local employment. We are suffering
from a serious shortage of all forms of cladding at present and we
would extend the use of asbestos cladding if it were available as
a substitute for steel.
"In spite of our efforts to get supplies from Great Britain we are
losing time on our factory contracts."
He referred to Turners Asbestos Cement Co and said: "We believe
that four shifts are essential at the Ballyclare plant if the
shortfall in cladding is to be overcome for factories and the
other buildings for which we are responsible."
Yet just a year later, a memo detailing the use of asbestos by
government since 1947 recommended: "In view of the increasing
concern about the application of asbestos in buildings it would be
advisable to consider ways of reducing its use to a minimum,
particularly the amount of exposed surface area in the building."
One of the sites where asbestos was used appears to have been
Pennybridge Industrial Estate in Ballymena.
By 1985, as the Government moved to ban the use of most forms of
asbestos, the long-term costs of using the product became very
apparent.
A July 1985 internal memo from John Caldwell at the Industrial
Development Board referred to the use of asbestos cladding in its
factories as "a dangerous and sensitive matter" given "the known
harmful effects of asbestos dust and the potential for adverse
publicity if the IDB is not seen to be conscientious about dealing
with any risks in its properties".
Asbestos is now said to kill 4,000 people a year in the UK, with
many dying horrific deaths.
ASBESTOS UPDATE: DeKalb-Based Company to Appeal OSHA Violations
---------------------------------------------------------------
Adam Poulisse, writing for Daily Chronicle, reported that
representatives of DeKalb Mechanical said that they plan to appeal
fines levied against them by OSHA in connection with an
investigation in Evanston last year.
DeKalb Mechanical, a commercial and residential HVAC mechanical
contractor at 339 Wurlitzer Drive, in DeKalb, Illinois, was one of
six businesses cited in a June 2014 OSHA inspection at Evanston
Middle School after allegations that workers were exposed to
asbestos and silica, according to a news release from OSHA.
DeKalb Mechanical was exonerated in the initial asbestos
complaint, company President Steve Doonan said, but a closer
inspection revealed three other violations. The citations claim
the business exposed workers to lead-based paint, and respirator
and communication hazards, and call for $13,860 in penalties,
according to a news release.
"When OSHA investigates any contractor, regardless of the cause of
the investigation, every aspect goes under a microscope," Doonan
said. "If OSHA looks hard and long enough, they will find things.
Are we being singled out? No way."
DeKalb Mechanical will appeal the citations at an informal meeting
with OSHA, Doonan said.
"We have a safety policy that's been in place for a very long
time," he said. "We have workers that don't always follow the
rules. That's what causes the fine."
Nicholas & Associates Inc. of Mount Prospect; F.E. Moran Inc. of
Northbrook; Environmental Services Firm Inc. of Evanston; ASAP
Environmental Inc. of Cicero; and B.B. Construction Enterprise
Inc. of Chicago also were cited and penalized for violations
relating to asbestos and electrical safety.
Including DeKalb Mechanical, the fines levied against six
companies total $132,040, according to a news release.
ASBESTOS UPDATE: Fibro Victim Wages Battle to Ban Substance
-----------------------------------------------------------
David McCumber, writing for SFGate.com, reported that the goal,
Paul Zygielbaum says, is "to die of something else." Something
other, that is, than the asbestos-related disease he's been
fighting for 15 years.
Zygielbaum, who lives in Santa Rosa, is a retired engineer, but
that doesn't begin to describe him. He is a warrior -- not just
against his own cancer, but against the asbestos industry that
gave it to him. He's fighting for medical research into new
treatments; for the rights of patients, victims and their
families; and to make asbestos illegal. And he's doing it while
battling mesothelioma, an almost universally fatal cancer caused
by exposure to asbestos.
"I'm having a little trouble right now with an inoperable tumor
behind my liver," he said matter of factly.
"This life has chosen me," said Zygielbaum, 64. "There is no going
back."
Touting the EPA
Gina McCarthy, head of the Environmental Protection Agency,
reminded a Georgetown University audience recently just how much
the agency has accomplished in its four decades of existence.
"In the '60s, our rivers were burning, future Superfund sites were
popping up all over, smokestacks were spewing black soot, and cars
were fueled by leaded gasoline," McCarthy said. Since then, she
said, "we have tackled our environmental challenges in ways that
sparked American ingenuity."
Here's one thing she didn't mention: In 2014, just as it was in
1970, it is legal to import, manufacture and sell asbestos and
products containing it. And asbestos-containing material known to
be carcinogenic remains in millions of U.S. homes.
"The asbestos issue is not a thing of the past," said former
acting U.S. Surgeon General Boris Lushniak. "It continues to this
day, and has a health impact on our nation."
Industry wins
The EPA itself tried to enact a ban administratively 25 years ago,
only to have the industry fight and win in court. Since then, a
major asbestos scandal rocked tiny Libby, Mont., where Hearst
Newspapers disclosed in 1999 that a nearby vermiculite mine, its
ore tainted with tremolite asbestos, had killed hundreds of people
-- miners and their families, even townspeople with no direct
connection to the mine -- and spread toxic fibers worldwide. New
cases from Libby asbestos are still being diagnosed regularly.
In the 15 years since Libby, Congress has made several efforts to
legislate a ban -- all thwarted by industrial lobbies and partisan
wrangling.
Meanwhile, with metronomic consistency, asbestos-related disease
continues to kill about 10,000 Americans each year.
Asbestos-related diseases include mesothelioma, the almost
invariably lethal cancer of the lining of the lungs or intestines;
asbestos-related lung cancer; and asbestosis, a gradual thickening
of asbestos-pierced lung tissue that eventually makes breathing
impossible.
Once these were thought to be occupational diseases, suffered only
by those who worked with asbestos-contaminated substances.
Secondary exposure
But the Libby tragedy, where hundreds of victims never worked at
the mine, and additional research have changed scientists'
thinking. Now, they realize, secondary exposure -- a child or a
spouse hugging a miner or auto mechanic, or handling their dusty
clothing -- can be lethal. Even a single exposure in one of the
estimated 13 million attics across the country that have asbestos-
tainted loose-fill insulation from Libby can be fatal.
For years, Sens. Patty Murray, D-Wash., and Barbara Boxer, D-
Calif., have fought to pass a ban on asbestos. In November 2007
they came close.
In fact, the Ban Asbestos in America Act passed the Senate
unanimously. Many asbestos victims and anti-asbestos activists
celebrated.
Until they read the fine print.
Industry lobbyists had gotten their way: Somehow -- nobody is
saying exactly how -- the bill was watered down in markup. In
particular, a one-word change -- from asbestos-containing
"product" to asbestos-containing "material" -- gutted the proposed
ban.
Bill's failure
The use of the word "product" would have effectively banned
everything that contains asbestos. The use of the word "material,"
on the other hand, meant that anything containing up to 1 percent
asbestos, by weight, would remain legal. Even this version didn't
get through Congress.
Recriminations flew in the halls of the Senate. Now, a Murray aide
will say only, "Sen. Murray worked across the aisle and with
advocates and industry in an attempt to find an agreement.
Unfortunately, the final deal did not reach the goals that Sen.
Murray and many advocates had set."
Paul Zygielbaum was diagnosed with mesothelioma in 2003 after five
years of symptoms. He endured a marathon operation the following
year in which his opened abdomen was bathed in cancer-killing
chemicals. He was actively engaged with the Boxer-Murray effort in
2007, and when he heard it had passed the Senate, he said, "Wow,
this is a miracle."
When he found out what it really was, he was horrified. "It was a
betrayal," he said. "I felt we were in danger of
institutionalizing asbestos poisoning as the policy of the U.S.
government for the next two decades."
Indeed, no subsequent legislation has gotten close to passage.
Meanwhile, 60 countries around the world have banned asbestos.
"A good name for an asbestos ban bill would be 'The Catch Up with
Croatia Act,'" said Dr. Barry Castleman, who has worked for 40
years on the public-health problem of asbestos.
"Americans simply can't identify asbestos or manage the risk,"
said Linda Reinstein, president and co-founder of the Asbestos
Disease Awareness Organization, the country's most prominent anti-
asbestos organization. Her husband died of mesothelioma in 2006.
"If asbestos isn't completely banned, no one is safe," Reinstein
said.
Revamping law
Her ban thwarted, Murray began to focus on other paths that she
believed had greater chances of success. That boiled down to a
revamp of the catchall Toxic Substances Control Act, which has
never been updated since it was passed in 1976.
In 2013, Sen. David Vitter, R-La., ranking minority member of the
Environment and Public Works Committee, produced a version of the
bill without the asbestos-regulation language. Boxer fought back,
proposing legislation in September that included language
mandating EPA action to regulate asbestos.
But in 2015, with the change in Senate control, Sen. James Inhofe,
R-Okla., will run the committee -- and the process will begin
anew. Undeniably, Murray and Boxer will have much less leverage.
It's safe to say prospects are bleak for any effort in the 114th
Congress to ban asbestos. In fact, a bill to reduce corporate
asbestos liability, passed by the House last year, is now expected
to be introduced in the Senate early in 2015.
"I am gravely concerned about the new 2015 Senate and fear that
asbestos victims' civil rights and public health will be buried
with one GOP shovel," said Reinstein.
Fighting on
Murray and Boxer promise to continue the fight.
"As all of us know, this problem isn't going away, so I remain
committed to working with advocates, industry, and members from
both sides of the aisle to move forward with comprehensive reform
of the Toxic Substances Control Act," Murray said.
Boxer, who has led the legislative fight for eight years as chair
of the Environment and Public Works Committee, says she's not
giving up just because she'll be in the minority.
"Asbestos is a well-known killer, and I intend to continue the
fight to ban it," she said. "The test of whether we have
meaningful ... reform is whether we can ensure poisons like
asbestos are banned. The Vitter-led bill did not meet that test."
She warned, "We will also have to fight rollbacks of environmental
laws. They have been highlighted as a major target in the new
Congress. I will use every tool at my disposal to protect health
and environmental safeguards from these attacks."
Can McCarthy's EPA act without Congress to outlaw the fiber once
again?
The current Toxic Substances Control Act "is not the strongest
statute we have at our disposal," McCarthy said. "A closer look at
TSCA would be welcome. There was an active interest in doing that.
I'm hoping there continues to be."
Savoring life
Zygielbaum has been told by other mesothelioma patients that he is
their inspiration. "It's the other way around," he says quietly.
He's learned to savor life -- to appreciate every moment he can
spend with his wife, Michelle, and their children and
grandchildren. He believes in having goals to strive for, and so
he's booked a ticket with XCOR Aerospace for a coming space
flight.
"I'm looking forward to that," he said. "And I'm looking forward
to seeing asbestos banned."
ASBESTOS UPDATE: US Insurers Continue Funding A&E Liabilities
-------------------------------------------------------------
The current estimate of net asbestos losses for the U.S.
property/casualty industry remains at $85 billion, with net
environmental losses estimated at $42 billion, according to a new
Best's Special Report.
According to the report titled "U.S. Insurers Continue Funding of
Asbestos & Environmental Liabilities, Despite Elusive End Game,"
the industry had funded slightly more than 90% of its aggregate
asbestos and environmental (A&E) exposures as of year-end 2013.
This translated into an unfunded liability of $6.7 billion for
asbestos and $3.9 billion for environmental. The report also notes
that incurred losses have increased in five of the past seven
years.
A.M. Best recognizes that fully funding ultimate estimates may be
akin to hitting a moving target, given that ultimate exposures
cannot be known with precision, especially regarding asbestos
claims. Nevertheless, funding efforts continue, as most recently
seen in sizable additions to A&E reserves during 2014 by Travelers
Group, Hartford Insurance Group and Liberty Mutual Insurance Cos.
In aggregate, these three insurers added nearly $690 million to
net A&E reserves in 2014, with most of the strengthening on the
asbestos side, according to the report.
ASBESTOS UPDATE: Judgment Given on Lung Cancer Claims Test Case
---------------------------------------------------------------
Clyde & Co. reported that in Heneghan v Manchester Dry Docks Ltd &
Others [2014] EWHC 4190 (QB), Justice Jay ruled that in multi-
defendant asbestos-related lung cancer claims, where no one
defendant is responsible for more than half of the total exposure,
damages will be apportioned in accordance with each defendant's
relative share of exposure.
The deceased claimant died from asbestos-related lung cancer in
January 2013. He was exposed to asbestos by ten employers between
1961 and 1974. Six of these employers were sued by the claimant.
The level of asbestos exposure of the six defendants was
quantified at 35.2% of the claimant's total asbestos exposure;
with the individual defendant's exposure ranging from 2.5% to
10.1%.
Liability was admitted. If the defendants were liable in full,
damages totaled GBP 175,000. 35.2% of these damages equaled GBP
61,600.
The issue for the High Court was whether the defendants were
liable for damages in full, not at all, or in proportion to their
32.5% share of exposure.
Justice Jay laid down a two-part test in order to determine the
extent of the defendants' liability in multi-defendant cases.
The first stage required the court to consider what caused the
cancer on the balance of probabilities. Analysing the claimant's
personal circumstances and the epidemiological evidence, it was
found to be more likely than not that asbestos exposure, rather
than smoking, had caused the cancer.
The second stage required an assessment of whether it could be
proved that the defendants had caused the claimant's cancer.
The court accepted that where a defendant was responsible for more
than half of the total exposure, it would be proved on the balance
of probabilities that this exposure had caused the cancer.
However, in the present case, despite all the defendants being
negligent, no single defendant was responsible for more than 51%
of the exposure. Given the limitations of present scientific
knowledge when considering several minority share defendants, it
was not possible to infer that any single defendant was
responsible for causing the claimant's cancer. It was found that
all that could be inferred was the possibility of that having
occurred.
This led the court to extend the application of the Fairchild
exception on the basis that mesothelioma and lung cancer are
legally indistinguishable conditions. The Fairchild exception
(given in Fairchild v Glenhaven Funeral Services Ltd [2003] 1AC
32) provides that defendants whose breaches of their duty of care
'materially increase the risk' of mesothelioma [in that case] are
liable for the damage suffered if mesothelioma does develop.
Following the subsequent case of Barker v Corus UK Ltd [2006] 2 AC
572, damages in such cases should be apportioned in line with the
defendants' contribution to the risk of the claimant contracting
the disease.
Accordingly, it was held that the defendants were liable in
damages in proportion to their share of the exposure. The claimant
was thus limited to recovering GBP 61,600.
Points for Defendants
* This judgment will have a significant effect on multi-
defendant asbestos-related lung cancer practice and in respect of
every other type of multi-defendant occupational cancer claims
* Each defendant is now liable in damages in proportion to its
share of the overall exposure. Such diseases are indivisible
conditions with divisible consequences; joint and several
liability does not apply
* The case affirms that every exposure to asbestos does not
contribute to 'causation of the lung cancer' but that each
exposure contributes to the 'risk of contracting the disease'
* The finding represents a common sense approach by the High
Court which is fair to both parties. Had the Fairchild exception
not been extended to lung cancer cases, the claimant would not
have recovered any damages. Alternatively, if as the claimant
argued, it had been found that a material increase in the risk of
exposure was the same as a material increase in exposure (and
therefore of injury) thus satisfying the causation test, a
defendant who was responsible for only 2.5% of the exposure would
be required to pay 100% of the damages. Both these outcomes would
have been demonstrably unfair
ASBESTOS UPDATE: 2nd Cir. Axes En Banc Bid in Travelers Loss
------------------------------------------------------------
Y. Peter Kang, writing for Law360, reported that the Second
Circuit refused to rehear en banc a July decision requiring
Travelers Property Casualty Corp. to pay thousands of asbestos
injury plaintiffs more than $570 million in connection with the
insurer's coverage of bankrupt policyholder Johns-Manville Corp.
In July, a unanimous panel overturned a decision that freed
Travelers from its obligations to compensate asbestos victims who
suffered exposure from products made by Johns-Manville, reversing
a district court's 2012 conclusion that a key condition required
under the deals had not been met.
The case is In Re: Johns-Manville Corporation, Case No. 12-1094
(2d. Cir.).
ASBESTOS UPDATE: Lancashire Fibro Payment Claims Hit GBP687,000
---------------------------------------------------------------
Lancashire Evening Post reported that the Lancashire County
Council, in England, has paid out almost GBP700,000 to people with
conditions linked to asbestos in the past four years.
County Hall shelled out GBP672,094 in compensation and costs to
victims in the past five years -- and the authority has six
ongoing claims. besides
Preston City Council also paid out GBP14,246.59, statistics
revealed to the Evening Post.
Figures obtained under Freedom of Information requests reveal 17
people have contacted Lancashire County Council regarding asbestos
claims since 2010.
Of those there were three pay outs, five cases where there was no
payout and six ongoing claims -- with one of those receiving a
GBP50,000 interim damages payment.
The compensation claims came from victims who breathed in asbestos
fibres. It can cause mesothelioma, a rare form of cancer, which
attacks the lining of organs and is fatal.
All but one of the claimants were employed by the county council
and all the claims related to time frames from the 1950s and
onwards. Twelve of the cases related to mesothelioma, one to
asbestos -related cancer, one to asbestosis and one is listed as
industrial disease. Their jobs at the council included roadsman,
plasterer, cook, heating engineer, a factory worker and teachers.
Meanwhile of the two cases Preston Council dealt with they only
paid out compensation in one of them. The authority was unable to
provide information on where in the council the two claimants had
worked. The claimants had mesothelioma and asbestosis.
Campaigners believe payments are likely to soar over the coming
decade as more people fall ill and die after being exposed to the
material, often decades ago.
Geraldine Coombs, a partner and expert asbestos-related disease
lawyer at Irwin Mitchell, said: "Asbestos exposure is often
regarded as something that only impacts those working within heavy
industry, but the presence of the material in so many public
buildings such as schools and hospitals, means that more and more
people who are not working in traditional construction trades are
being affected through no fault of their own.
"We have repeatedly called for a dedicated programme to identify
any public buildings around the UK that contain asbestos and
continue to pose a danger to those working in them, as well as
calling for a schedule to systematically remove asbestos from
these premises on a priority basis depending on the state of
disrepair in each situation.
Given the vulnerability of children to the potential dangers of
asbestos -- we would suggest schools are given the highest
priority in any action that may be taken."
Bev Cullen, assistant county solicitor for Lancashire County
Council, said: "Each claim is considered on its own facts and will
be investigated in accordance with the county council's insurance
arrangements.
"Claims payments are made either from the council's own reserves
set aside for this purpose, our insurers, or a combination of the
two. It depends on the date of the exposure, and the insurance
arrangements that the county council had in place at the time.
"Claims will be investigated when they're received. Generally the
exposure date goes back many decades, so it is difficult to assess
future numbers."
No-one from Preston Council was available for comment. South
Ribble, Chorley, West Lancashire, Fylde and Lancaster councils
said they had received no claims for compensation.
ASBESTOS UPDATE: PI Plaintiffs Allowed to Conduct Discovery
-----------------------------------------------------------
Plaintiffs Charles Campbell and Lena Campbell filed a motion for
leave to conduct jurisdictional discovery and for an extension of
time to respond to Defendants Akzo Nobel Paints LLC's motion to
dismiss their asbestos-related personal injury complaint or in the
alternative to transfer. Akzo asserts in its motion to dismiss
that it does not have sufficient ties to the State of Missouri to
subject it to the jurisdiction of the United States District Court
for the Eastern District of Missouri, Eastern Division. The
Plaintiffs seek a 40-day extension of time to respond to the
motion to dismiss, during which time they would conduct
jurisdictional discovery.
U.S. District Judge Audrey G. Fleissig in Missouri held that Rule
6(b) of the Federal Rules of Civil Procedure allows a court to
grant a party an extension of time to respond to a motion, for
good cause. Although Akzo opposes the Plaintiffs' motion for
leave, Akzo does not assert any prejudice it would sustain should
the motion for leave be granted, nor does the Court discern any,
Judge Fleissig added. Furthermore, Judge Fleissig ruled that the
Plaintiffs' request is reasonably limited in scope and time.
Accordingly, Judge Fleissig granted the Plaintiffs' motion for
leave to conduct jurisdictional discovery and for extension of
time to respond to Akzo's motion to dismiss.
The case is CHARLES CAMPBELL and LENA CAMPBELL, Plaintiffs, v.
ABB, INC., et al., Defendants, NO. 4:14CV01489 AGF (E.D. Mo.). A
full-text copy of Judge Fleissig's memorandum and order dated
Dec. 24, 2014, is available at http://is.gd/563oovfrom
Leagle.com.
Charles Campbell, Sr., and Lena Campbell, Plaintiffs, represented
by:
Ryan P. Horace, Esq.
Sean Patrick Barth, Esq.
NAPOLI BERN RIPKA SHKOLNIK, LLP
350 5th Avenue, Suite 7413
New York, NY 10118
Tel: (212) 267-3700
E-mail: RHorace@NapoliBern.com
SBarth@NapoliBern.com
ABB Inc., Defendant, Cross Defendant and Counter Defendant,
represented by:
James D. Maschhoff, Esq.
Justin A. Welply, Esq.
Mary A. Hatch, Esq.
HERZOG CREBS LLP
100 North Broadway, 14th Floor
St Louis, MO 63102
Tel: 314-231-6700
Fax: 314-231-4656
E-mail: jdm@herzogcrebs.com
jaw@herzogcrebs.com
mah@herzogcrebs.com
Air & Liquid Systems Corporation, Defendant, Counter Defendant,
Cross Defendant, and Cross Claimant, represented by:
Gregory C. Flatt, Esq.
Kent L. Plotner, Esq.
HEYL AND ROYSTER
Mark Twain Plaza III, Suite 100
105 West Vandalia Street
PO Box 467
Edwardsville, IL 62025
Tel: 618-656-4646
Fax: 618-656-7940
E-mail: gflatt@heylroyster.com
kplotner@heylroyster.com
Akzo Nobel Paints LLC, Defendant, Cross Defendant, and Counter
Defendant, represented by:
Robert Jacob Hurtt, Jr., Esq.
HUSCH BLACKWELL, LLP
The Plaza in Clayton
190 Carondelet Plaza, Suite 600
St. Louis, MO 63105
Tel: 314-345-6210
Fax: 314-480-1505
E-mail: rob.hurtt@huschblackwell.com
Belden Wire & Cable Company, Defendant, Cross Defendant, Counter
Defendant, and Cross Claimant, represented by Gregory C. Flatt,
HEYL AND ROYSTER & Kent L. Plotner, HEYL AND ROYSTER.
Borgwarner Morse Tec Inc., Defendant, Cross Defendant, and Counter
Defendant, represented by James D. Maschhoff, HERZOG CREBS LLP
&Justin A. Welply, HERZOG CREBS LLP.
Borgwarner Morse Tec Inc., Successor by Merger to Borg-Warner
Corporation, Cross Defendant, represented by James D. Maschhoff,
HERZOG CREBS LLP.
Carrier Corporation, Defendant, Cross Defendant, Counter
Defendant, and Cross Claimant, represented by Jennifer M.
Valentino, KUROWSKI SCHULTZ & Lindsay A. Dibler, KUROWSKI SCHULTZ.
CBS Corporation, Defendant, Cross Defendant, Counter Defendant,
and Cross Claimant, represented by Daniel G. Donahue, FOLEY AND
MANSFIELD, P.L.L.P. & Michael R. Dauphin, FOLEY AND MANSFIELD,
P.L.L.P..
Certainteed Corporation, Defendant, Counter Defendant, and Cross
Defendant, represented by Gregory C. Flatt, HEYL AND ROYSTER
& Kent L. Plotner, HEYL AND ROYSTER.
Cooper Technologies Company, Defendant, Cross Defendant, Cross
Claimant, and Counter Claimant, represented by Amy K. Shasserre,
FOLEY AND MANSFIELD, P.L.L.P..
Crane Co., Defendant, Cross Defendant, Counter Defendant, and
Cross Claimant, represented by Benjamin John Wilson, HEPLER BROOM
& Carl J. Geraci, HEPLER BROOM.
Crown Cork & Seal Company Inc., Defendant, Cross Defendant, and
Counter Defendant, represented by Stephen J. Maassen, HOAGLAND AND
FITZGERALD.
DAP, Inc., Defendant, Cross Defendant, and Counter Defendant,
represented by Jennifer M. Valentino, KUROWSKI SCHULTZ & Lindsay
A. Dibler, KUROWSKI SCHULTZ.
Ericsson, Inc., Defendant, Cross Defendant, and Counter Defendant,
represented by Jennifer M. Valentino, KUROWSKI SCHULTZ & Lindsay
A. Dibler, KUROWSKI SCHULTZ.
Gardner Denver, Inc., Defendant, Cross Defendant, and Counter
Defendant, represented by Megan A. Koenig.
General Cable Corporation, Defendant, Cross Defendant, and Counter
Defendant, represented by Albert J. Bronsky, BROWN AND JAMES,
P.C..
General Electric Company, Defendant, Cross Defendant, Counter
Defendant, represented by Anita Maria Kidd, ARMSTRONG TEASDALE,
LLP.
Georgia Pacific, LLC, Defendant, Cross Defendant, Counter
Defendant, and Cross Claimant, represented by Benjamin John
Wilson, HEPLER BROOM & Carl J. Geraci, HEPLER BROOM.
Graybar Electric Company, Inc., Defendant and Cross Defendant,
represented by Jeffrey T. Bash, LEWIS AND BRISBOIS, LLP.
Hanson Permanente Cement, Defendant, Cross Defendant, and Counter
Defendant, represented by Virginia M. Giokaris, RASMUSSEN AND
WILLIS.
Honeywell International Inc., Defendant, Counter Defendant, Cross
Defendant, and Cross Claimant, represented by Anthony L.
Springfield, POLSINELLI PC & Dennis J. Dobbels, POLSINELLI PC.
IMO Industries Inc., Defendant, Counter Defendant, Cross
Defendant, and Cross Claimant, represented by Matthew R. Fields,
BUTSCH ROBERTS & ASSOCIATES, LLC & Matthew David Bigham, Esq. --
mbigham@DMFIRM.com -- at DANNA MCKITRICK, P.C..
Ingersoll-Rand Company, Defendant, Cross Defendant, Counter
Defendant, and Cross Claimant, represented by Benjamin John
Wilson, HEPLER BROOM & Carl J. Geraci, HEPLER BROOM.
J.P. Bushnell Packing Supply Co., Defendant, Cross Defendant, and
Counter Defendant, represented by Stephen J. Maassen, HOAGLAND AND
FITZGERALD.
John Crane Inc., Cross Defendant and Counter Defendant,
represented by Albert J. Bronsky, BROWN AND JAMES, P.C..
Johnson Controls, Inc., Defendant, Cross Defendant, and Counter
Defendant, represented by James D. Maschhoff, HERZOG CREBS
LLP, Justin A. Welply, HERZOG CREBS LLP & Mary A. Hatch, HERZOG
CREBS LLP.
Lennox Industries, Inc. Manufacturing Company, Defendant, Cross
Defendant, Counter Defendant, and Cross Claimant, represented
by Gregory C. Flatt, HEYL AND ROYSTER & Kent L. Plotner, HEYL AND
ROYSTER.
Metropolitan Life Insurance Company, Defendant, Counter Defendant,
and Cross Defendant, represented by Charles L. Joley, JOLEY AND
OLIVER.
Pneumo Abex, LLC, Defendant, Cross Defendant, and Counter
Defendant, represented by Mary Dianne Rychnovsky, Esq. --
mrychnovsky@wvslaw.com -- Williams Venker & Sanders LLC, Matthew
E. Pelikan, Esq. -- mpelikan@wvslaw.com -- WILLIAMS AND VENKER,
LLC, Ross S. Titzer, Esq. -- rtitzer@wvslaw.com -- WILLIAMS AND
VENKER, LLC & Thomas L. Orris, Esq. -- torris@wvslaw.com -- at
WILLIAMS AND VENKER, LLC.
Raypak, Inc., Defendant and Cross Defendant, represented by Tracy
J. Cowan, Esq. -- tcowan@hptylaw.com -- HAWKINS AND PARNELL, LLP
& Earl B. Thames, Esq. -- bthames@hptylaw.com -- at HAWKINS AND
PARNELL, LLP.
Rheem Manufacturing Co., Defendant and Cross Defendant,
represented by Tracy J. Cowan, HAWKINS AND PARNELL, LLP &Earl B.
Thames, HAWKINS AND PARNELL, LLP.
Robertson Ceco Corporation, Defendant, Cross Defendant, Counter
Defendant, and Cross Claimant, represented by Gregory C. Flatt,
HEYL AND ROYSTER.
Rockwell Automation, Inc., Defendant, Cross Defendant, Counter
Defendant, and Counter Claimant, represented by Jennifer M.
Valentino, KUROWSKI SCHULTZ.
Schneider Electric Company, Defendant, Cross Defendant, Counter
Defendant, and Cross Claimant, represented by Anthony L.
Springfield, POLSINELLI PC.
Sears Roebuck & Co., a subsidiary of Sears Holdings Corporation,
Cross Defendant and Counter Defendant, represented by April A.
Vesely, SWANSON AND MARTIN, LLP & Paul W. Lore.
Sears Roebuck & Co., Defendant, Cross Defendant, and Counter
Defendant, represented by April A. Vesely, SWANSON AND MARTIN, LLP
& Paul W. Lore.
Siemens Energy & Automation, Inc., Defendant, Cross Defendant, and
Counter Defendant, represented by Thomas W. Hayes, MCKENNA STORER.
Simpson Timber Company, Counter Defendant, represented by Daniel
G. Donahue, FOLEY AND MANSFIELD, P.L.L.P. & Michael W. Newport,
FOLEY AND MANSFIELD, P.L.L.P..
Simpson Timber Company, Cross Defendant, represented by Daniel G.
Donahue, FOLEY AND MANSFIELD, P.L.L.P. & Michael W. Newport, FOLEY
AND MANSFIELD, P.L.L.P..
Simpson Timber Company, Defendant, represented by Daniel G.
Donahue, FOLEY AND MANSFIELD, P.L.L.P. & Michael W. Newport, FOLEY
AND MANSFIELD, P.L.L.P..
The Goodyear Tire & Rubber Company, Defendant, Cross Defendant,
Counter Defendant, and Cross Claimant, represented by Jennifer M.
Valentino, KUROWSKI SCHULTZ, Jerry S. Warchol, KUROWSKI SHULTZ
LLC, Lacy M. Fields, LACY M. FIELDS ATTORNEY AT LAW, LLC & Lindsay
A. Dibler, KUROWSKI SCHULTZ.
The Sherwin-Williams Company, Defendant, Cross Defendant and
Counter Defendant, represented by John A. Bruegger, HAWKINS AND
PARNELL, LLP & Tracy J. Cowan, HAWKINS AND PARNELL, LLP.
Trane US, Inc., Defendant, Cross Defendant, Counter Defendant, and
Cross Claimant, represented by Benjamin John Wilson, HEPLER BROOM
& Carl J. Geraci, HEPLER BROOM.
Union Carbide Corporation, Defendant, Cross Defendant, and Counter
Defendant, represented by Jeffrey T. Bash, LEWIS AND BRISBOIS,
LLP.
Welco Manufacturing Company, Defendant, Cross Defendant, and
Counter Defendant, represented by James D. Maschhoff, HERZOG CREBS
LLP,Justin A. Welply, HERZOG CREBS LLP & Mary A. Hatch, HERZOG
CREBS LLP.
York International Corporation, Defendant, Cross Defendant and
Counter Defendant, represented by James D. Maschhoff, HERZOG CREBS
LLP,Justin A. Welply, HERZOG CREBS LLP, Mary A. Hatch, HERZOG
CREBS LLP & Tracy Beckman Phipps, HERZOG CREBS LLP.
ASBESTOS UPDATE: Bid to Junk Fibro Insurance Coverage Suit Denied
-----------------------------------------------------------------
Danaher Corporation brought a lawsuit to resolve disputes
concerning insurance coverage for silica- and asbestos-related
claims against Chicago Pneumatic Tool Company. On September 6,
2012, the United States District Court for the Southern District
of New York held that Defendants The Travelers Indemnity Company
and Travelers Casualty and Surety Company have a duty to defend
those claims.
On April 17, 2014, Travelers filed a Second Amended Third Party
Complaint, which impleads five of the six insurers named in a
previous version of the third party complaint: AIU Insurance
Company, Century Indemnity Company, Liberty Mutual Fire Insurance
Company, Trygg-Hansa Insurance Company, Ltd., and Industria
Insurance Company.
AIU, Trygg-Hansa, and Industria filed motions in response to the
SAC. Industria moves to dismiss for lack of personal jurisdiction
under Rule 12(b)(2) of the Federal Rules of Civil Procedure; in
the alternative, it moves to compel arbitration or to dismiss for
failure to state a claim pursuant to Rule 12(b)(6). Trygg-Hansa
moves to compel arbitration or, in the alternative, to dismiss for
failure to state a claim pursuant to Rule 12(b)(6). AIU joins
Trygg-Hansa's motion, but only as to its challenge under Rule
12(b)(6).
Judge J. Paul Oetken of the United States District Court for the
Southern District of New York, in an opinion and order dated
Dec. 12, 2014, denied Industria's motion to dismiss for lack of
personal jurisdiction; denied Trygg-Hansa's and Industria's
motions to compel arbitration; granted Trygg-Hansa's and AIU's
motions to dismiss for failure to state a claim; and denied
Industria's motion to dismiss for failure to state a claim.
The case is DANAHER CORPORATION, Plaintiff, v. THE TRAVELERS
INDEMNITY COMPANY, et al., Defendants, NO. 10-CV-121
(JPO)(S.D.N.Y.). A full-text copy of Judge Oetken's Decision is
available at http://is.gd/kAt4cAfrom Leagle.com.
Danaher Corporation, Plaintiff, Cross Defendant, Counter
Defendant, and Third Party Defendant, represented by Brian
Jonathan Osias, Esq. -- bosias@mccarter.com -- McCarter & English,
LLP & Gita F. Rothschild, Esq. -- grothschild@mccarter.com -- at
McCarter & English, LLP.
AIU Insurance Company, ThirdParty Defendant, represented by Gerard
Craig Morici, Mendes & Mount, LLP.
Allianz Underwriters Insurance Company, Defendant, represented
by John T. Wolak, Esq. -- jwolak@gibbonslaw.com -- at Gibbons, Del
Deo, Dolan, Griffinger & Vecchione.
American Home Assurance Company, Defendant, represented by Ellen
Gayle Margolis, Esq. -- emargolis@moundcotton.com -- Mound Cotton
Wollan & Greengrass, Gerard Craig Morici, Mendes & Mount, LLP
& Robert Michael Flannery, Mendes & Mount, LLP.
Atlas Copco North America, Inc., Defendant, Counter Claimant, and
Cross Claimant, represented by Paul E. Breene, Esq. --
pbreene@reedsmith.com -- at Reed Smith.
Century Indemnity Company, ThirdParty Defendant, represented
by Brian G. Fox, Siegal & Park.
Continental Casualty Company, Defendant, represented by John
Albert Mattoon, Esq. -- jmattoon@fordmarrin.com -- Ford Marrin
Esposito Witmeyer & Gleser LLP & Andrew I Mandelbaum, Esq. --
amandelbaum@fordmarrin.com -- at Ford Marrin Esposito Witmeyer &
Gleser, LLP.
Employers Commercial Union Insurance Company, Defendant,
represented by Gerard Craig Morici, Mendes & Mount, LLP.
Employers Insurance Company of Wausau, Defendant, represented
by Claude N. Grammatico, Epstein, Frankini & Grammatico.
Granite State Insurance Company, Defendant, represented by Ellen
Gayle Margolis, Mound Cotton Wollan & Greengrass, Gerard Craig
Morici, Mendes & Mount, LLP & Robert Michael Flannery, Mendes &
Mount, LLP.
Industria Insurance Company LTD., ThirdParty Defendant,
represented by Paul E. Breene, Reed Smith LLP.
International Insurance Company, Defendant, represented by Anthony
Gambardella, Esq. -- anthony.gambardella@rivkin.com -- Rivkin,
Radler & Kremer & Jay Kenigsberg, Esq. --
jay.kenigsberg@rivkin.com -- at Rivkin Radler, L.L.P.
Liberty Mutual Fire Insuance Company, ThirdParty Defendant,
represented by Eric J. Voigt, Esq. -- evoigt@moundcotton.com -- at
Mound Cotton Wollan & Greengrass.
National Union Fire Insurance Company Of Pittsburgh, PA,
Defendant, represented by Ellen Gayle Margolis, Mound Cotton
Wollan & Greengrass, Gerard Craig Morici, Mendes & Mount, LLP
& Robert Michael Flannery, Mendes & Mount, LLP.
North River Insurance Company, Defendant, Cross Defendant, Cross
Claimant, and Third Party Defendant, represented by Gerard Craig
Morici, Esq. -- gerard.morici@mendes.com -- Mendes & Mount, LLP &
Robert Michael Flannery, Esq. -- robert.flannery@mendes.com -- at
Mendes & Mount, LLP.
The Travelers Indemnity Company, Defendant, Cross Defendant,
Counter Defendant, Third Party Defendant, Third Party Plaintiff,
Cross Claimant, and Counter Claimant, represented by Robert W.
Mauriello, Jr., Graham, Curtin P.A. & Jennifer Leigh Schoenberg,
Graham, Curtin P.A..
Travelers Casualty and Surety Company, Defendant, Cross Defendant,
Counter Defendant, Third Party Defendant, Third Party Plaintiff,
Counter Claimant, and Cross Claimant, represented by Robert W.
Mauriello, Jr., Esq. -- rmauriello@grahamcurtin.com -- Graham,
Curtin P.A. & Jennifer Leigh Schoenberg, Esq. --
jschoenberg@grahamcurtin.com -- at Graham, Curtin P.A..
Trygg-Hansa Insurance Company, LTD., ThirdParty Defendant,
represented by Karen M. Asner, White & Case LLP.
Unigard Mutual Insurance Company Inc., Defendant, represented
by Robert Dwyer Sullivan, Jr, Esq. --
robert.sullivan@wilsonelser.com -- Wilson Elser,Moskowitz Edelman
& Dicker LLP, Barbara Hopkinson Kelly, Esq. --
barbara.kelly@wilsonelser.com -- Wilson, Elser, Moskowitz, Edelman
& Dicker LLP & Sheilagh Mary Depeter, Esq. --
sheilagh.depeter@wilsonelser.com -- at Wilson Elser,Moskowitz
Edelman & Dicker LLP.
ASBESTOS UPDATE: "Freeman" Suit Remanded to La. State Court
-----------------------------------------------------------
Judge Kurt D. Engelhardt of the U.S. District Court for the
Eastern District of Louisiana, in an order and reasons dated
Dec. 18, 2014, granted plaintiff Dan Freeman's motion to remand
his asbestos-related personal injury case to the Civil District
Court for the Parish of Orleans, State of Louisiana, after
determining that defendant Chevron Phillips Chemical Company LP
has not met its burden of showing that removal of the case is
appropriate.
The case is DAN FREEMAN, v. PHILLIPS 66 COMPANY, et al., SECTION
"N" (4), CIVIL ACTION NO. 14-2257 (E.D. La.). A full-text copy of
Judge Engelhardt's Decision is available at http://is.gd/Cy7q1g
from Leagle.com.
Dan Freeman, Plaintiff, represented by Timothy J. Young, Young
Firm, Daniel J. Poolson, Jr., Young Firm & Tammy D. Harris, Young
Firm.
Chevron Phillips Chemical Company, LP, Defendant, represented by
Gerard J. Gaudet, Esq. -- gerard.gaudet@arlaw.com -- Adams &
Reese, LLP, Kathleen F. Drew, Esq. -- kathleen.drew@arlaw.com --
Adams & Reese, LLP, Alex E. Cosculluela, Esq. -- aec@arlaw.com --
Adams & Reese, LLP & Charles A. Cerise, Jr., Esq. --
charles.cerise@arlaw.com -- at Adams & Reese, LLP.
Union Carbide Corporation, Defendant, represented by Deborah
DeRoche Kuchler, Esq. -- dkuchler@kuchlerpolk.com -- Kuchler Polk
Schell Weiner & Richeson, LLC, Ernest G. Foundas, Esq. --
efoundas@kuchlerpolk.com -- Kuchler Polk Schell Weiner & Richeson,
LLC, Francis Xavier deBlanc, III, Esq. -- fdeblanc@kuchlerpolk.com
-- Kuchler Polk Schell Weiner & Richeson, LLC, McGready Lewis
Richeson, Esq. -- mricheson@kuchlerpolk.com -- Kuchler Polk Schell
Weiner & Richeson, LLC, Melissa M. Desormeaux, Esq. --
mdesormeaux@kuchlerpolk.com -- Kuchler Polk Schell Weiner &
Richeson, LLC & Michael H. Abraham, Esq. --
mabraham@kuchlerpolk.com -- at Kuchler Polk Schell Weiner &
Richeson, LLC.
Montello, Inc., Defendant, represented by David C. L. Gibbons,
Jr., Al M. Thompson, Jr., LLC.
Coastal Chemical Company, LLC, Defendant, represented by Campbell
Edington Wallace, Frilot L.L.C., Allen Joseph Krouse, III, Frilot
L.L.C., Caroline C. Boling, Frilot L.L.C. & Krystle Ferbos, Frilot
L.L.C..
Coastal of Abbeville, L.L.C., Defendant, represented by Campbell
Edington Wallace, Frilot L.L.C., Allen Joseph Krouse, III, Frilot
L.L.C., Caroline C. Boling, Frilot L.L.C. & Krystle Ferbos, Frilot
L.L.C..
Murphy Exploration and Production Company, Defendant, represented
by Robert S. Emmett, Baker Donelson Bearman Caldwell & Berkowitz &
Christopher Matthew Hannan, Baker Donelson Bearman Caldwell &
Berkowitz.
Murphy Exploration and Production Company USA, Defendant,
represented by Robert S. Emmett, Baker Donelson Bearman Caldwell &
Berkowitz & Christopher Matthew Hannan, Baker Donelson Bearman
Caldwell & Berkowitz.
ASBESTOS UPDATE: NY Court Refuses to Remand "Gates" Suit
--------------------------------------------------------
Judge David N. Hurd of the United States District Court for the
Northern District of New York denied a second motion to remand to
the New York State Supreme Court, Broome County, the asbestos-
related personal injury lawsuit originally filed by Kenneth Gates,
Sr., decedent, after determining that defendant Crane Co. had
provided sufficient evidence to establish a colorable federal
defense and that jurisdiction in the District Court was proper.
The case is KENNETH GATES, JR., as Executor of the Estate of
KENNETH GATES AND GLADYSGATES, Plaintiff, v. A.O. SMITH WATER
PRODUCTS CO.; A.W. CHESTERTON COMPANY; AMERICAN STANDARD, INC.;
AVIATION MANUFACTURING CORPORATION, Individually and as successor
in interest to SPENCER HEATER; BURNHAM, LLC, as successor to
BURNHAM CORPORATION; CERTAIN TEED CORPORATION; CRANE CO.; CROWN
BOILER CO., formerly known as Crown Industries Inc.; DANA
CORPORATION; DURABLA MANUFACTURING COMPANY; EMPIRE-ACE INSULATION
MFG. CORP.; H.B. SMITH COMPANY, INCORPORATED; HOLLINGSWORTH &
VOSE, CO.; ITT INDUSTRIES, INC.; ITT INDUSTRIES, INC., as
successor to Bell & Gossett Company and as successor to Kennedy
Valve Manufacturing Co., Inc., and as successor to Grinnell Valve
Co., Inc.; J.H. FRANCE REFRACTORIES COMPANY; KENTILE FLOORS, INC.;
MINNESOTA MINING & MANUFACTURING COMPANY; PEERLESS INDUSTRIES,
INC.; ROBERT A. KEASBEY COMPANY; UTICA BOILERS, INC., Individually
and as successor to UTICA RADIATOR CORPORATION; WEIL-MCLAIN, a
division of The Marley Company; and YORK INDUSTRIES CORP.,
Defendants, NO. 3:13-CV-1435 (N.D.N.Y.). A full-text copy of
Judge Hurd's memorandum-decision and order dated Dec. 30, 2014, is
available at http://is.gd/1leHD4from Leagle.com.
WEITZ, LUXENBERG LAW FIRM KYLE A. SHAMBERG, ESQ., GENNARO
SAVASTANO, ESQ. JOHN E. RICHMOND, ESQ., New York, NY, Attorneys
for Plaintiff.
MCELROY, DEUTSCH LAW FIRM, JOSEPH P. LASALA, ESQ. --
jlasala@mdmc-law.com -- Morristown, NJ, Attorneys for Defendant
A.O. Smith, Water Products Co.
WILSON, ELSER LAW FIRM, JULIE R. EVANS, ESQ. --
julie.evans@wilsonelser.com -- Attorneys for Defendant Burnham,
LLC, New York, NY, K&L GATES LLP ANGELA DIGIGLIO, ESQ. --
angela.digiglio@klgates.com -- ERIC R.I. COTTLE, ESQ. --
eric.cottle@klgates.com -- NICOLE M. KOZIN, ESQ. --
nicole.kozin@klgates.com -- TARA L. PEHUSH, ESQ. --
tara.pehush@klgates.com -- at New York, NY, Attorneys for
Defendant Crane Co.
MCGUIRE, WOODS LAW FIRM, GENEVIEVE MACSTEEL, ESQ. --
gmacsteel@mcguirewoods.com -- New York, NY, Attorneys for
Defendant ITT Industries, Inc.
LEWIS, BRISBOIS LAW FIRM PHILIP J. O'ROURKE, ESQ.--
Philip.O'Rourke@lewisbrisbois.com -- and ANNA M. DILONARDO, ESQ.,
New York, NY, Attorneys for Defendants Peerless, Industries, Inc.
and Robert A. Keasbey, Company.
BARRY, MCTIERNAN LAW FIRM SUZANNE M. HALBARDIER, ESQ. --
SHalbardier@bmmfirm.com -- and WILLIAM A. COONEY, ESQ. --
WCooney@bmmfirm.com -- New York, NY, Attorneys for Defendant Utica
Boilers, Inc.
MACKENZIE, HUGHES LAW FIRM DAVID P. SCHAFFER, ESQ., Syracuse, NY,
Attorneys for Defendant Weil-McLain.
HURWITZ, FINE LAW FIRM V. CHRISTOPHER POTENZA, ESQ. --
vcp@hurwitzfine.com -- Buffalo, NY, Attorneys for Defendant Weil-
McLain.
ASBESTOS UPDATE: Voluntary Dismissal Allowed in "Henderson" Suit
----------------------------------------------------------------
Erica Henderson, as special administrator of the estate of David
Henderson, filed an initial complaint in the Third Judicial
Circuit, Madison County, Illinois, alleging that the defendants,
including Armstrong International, caused or contributed to an
asbestos injury and that they negligently (Count IV) and/or
willfully and wantonly (Count V) spoiled evidence.
Armstrong International filed a motion to dismiss Counts IV & V of
the Plaintiff's Complaint, and the Plaintiff, rather than filing a
response, filed a motion to voluntarily dismiss Counts IV and V
against Armstrong. Armstrong has asked that the counts be
dismissed with prejudice while the Plaintiff has asked that the
counts be dismissed without prejudice.
Judge Staci M. Yandle of the United States District Court for the
Southern District of Illinois, in a memorandum and order dated
Dec. 19, 2014, ruled that dismissal with prejudice in this case is
not warranted holding that if the Plaintiff can develop evidence
in the course of discovery that the defendants could anticipate
lawsuits and that they should have preserved evidence, it may be
appropriate to file a motion for leave to amend in order to
reinstate the claim. Moreover, Judge Yandle held that as to the
claims for willful and wanton spoliation, Illinois law has never
recognized this claim. Judge Yandle, however, said that should
the Illinois Supreme Court recognize the claim during the pendency
of the case or should the Plaintiff present evidence that would
place the claim squarely in a forum that does recognize the claim,
the Plaintiff may appropriately seek leave to amend.
Accordingly, Judge Yandle granted the Plaintiff's motions to
dismiss without prejudice and denied Armstrong's motion to dismiss
as moot.
The case is ERICA HERNDERSON as Special Administrator of the
Estate of DAVID HENDERSON, and ERICA HENDERSON, Individually,
Plaintiff, v. ARMSTRONG INTERNATIONAL INC., et al., Defendants,
CASE NO. 14-CV-00555-SMY-DGW (S.D. Ill.). A full-text copy of
Judge Yandle's Decision is available at http://is.gd/VFYE2ufrom
Leagle.com.
Erica Henderson, Plaintiff, represented by Eric D. Jackstadt,
Napoli Bern, et al. & Ryan P. Horace, Napoli Bern, et al..
Armstrong International, Inc., Defendant, Cross Defendant and
Cross Claimant, represented by Carla C. Storm, Esq. --
cstorm@foleymansfield.com -- Foley & Mansfield, PLLP & Michael R.
Dauphin, Esq. -- mdauphin@foleymansfield.com -- at Foley &
Mansfield, PLLP.
CBS Corporation, Defendant, Cross Defendant, and Cross Claimant,
represented by Daniel G. Donahue, Esq. --
ddonahue@foleymansfield.com -- Foley & Mansfield, PLLP & Michael
R. Dauphin, Foley & Mansfield, PLLP.
Cleaver-Brooks, Inc., Defendant and Cross Defendant, represented
by Meredith S Hudgens, Esq. -- mhudgens@otmblaw.com -- at
O'Connell, Tivin, Miller & Burns L.L.C..
Crane Co., Defendant, Cross Defendant and Cross Claimant,
represented by Benjamin J. Wilson, HeplerBroom LLC & Carl J.
Geraci, HeplerBroom LLC.
DAP Inc, Defendant and Cross Defendant, represented by Mario E.
Dominguez, Segal, McCambridge et al..
Foster Wheeler Energy Corporation, Defendant and Cross Defendant,
represented by Bradley R. Bultman, Segal, McCambridge et al..
Gardner Denver Inc, Defendant and Cross Defendant, represented
by Mario E. Dominguez, Segal, McCambridge et al..
General Electric Company, Defendant, Cross Defendant, and Cross
Claimant, represented by Raymond R. Fournie, Armstrong Teasdale
LLP,Anita M. Kidd, Armstrong Teasdale LLP, Julie Fix Meyer,
Armstrong Teasdale LLP & Melanie R. King, Armstrong Teasdale LLP.
Georgia Pacific LLC, Defendant, Cross Defendant, and Cross
Claimant, represented by Benjamin J. Wilson, HeplerBroom LLC
& Carl J. Geraci, HeplerBroom LLC.
Goulds Pumps Inc, Defendant, Cross Defendant, and Cross Claimant,
represented by Dennis J. Graber, Hinshaw & Culbertson, Mark D.
Bauman, Hinshaw & Culbertson, Nicole E. Rice, Hinshaw & Culbertson
LLP & Trevor A. Sondag, Hinshaw & Culbertson LLP.
Honeywell International Inc., Defendant, Cross Defendant, and
Cross Claimant, represented by Dennis J. Dobbels, Polsinelli
PC, Allison K. Sonneveld, Polsinelli Shughart PC, Kathleen Ann
Hardee, Polsinelli PC & Kirra N. Jones, Polsinelli PC.
Imo Industries, Inc., Defendant, Cross Defendant, and Cross
Claimant, represented by Keith B. Hill, Heyl, Royster et al..
Ingersoll-Rand Company, Defendant, Cross Defendant and Cross
Claimant, represented by Benjamin J. Wilson, HeplerBroom LLC
& Carl J. Geraci, HeplerBroom LLC.
John Crane Inc, Defendant, Cross Defendant, and Cross Claimant,
represented by Caroline Linder Olson, O'Connell, Tivin, Miller &
Burns L.L.C. &Sean P. Fergus, O'Connell, Tivin, Miller & Burns
L.L.C..
Pneumo Abex LLC, Cross Defendant and Cross Claimant, represented
by Ross S. Titzer, Williams Venker & Sanders LLC &Thomas L. Orris,
Williams Venker & Sanders LLC.
Scotts Company, LLC, Cross Defendant, represented by Alexandra
Brisky Cunningham, Hunton & Williams, Anita M. Kidd, Armstrong
Teasdale LLP, Julie Fix Meyer, Armstrong Teasdale LLP, Lori
Elliott Jarvis, Hunton & Williams, Melanie R. King, Armstrong
Teasdale LLP, Raymond R. Fournie, Armstrong Teasdale LLP & Thomas
R. Waskom, Hunton & Williams.
Trane US, Inc., Defendant, Cross Defendant, and Cross Claimant,
represented by Benjamin J. Wilson, HeplerBroom LLC.
Union Carbide Corporation, Defendant and Cross Defendant,
represented by Jeffrey T. Bash, Lewis Brisbois Bisgaard & Smith
LLP & Justin S. Zimmerman, Lewis Brisbois Bisgaard & Smith LLP.
Velan Valve Corp, Defendant, Cross Defendant, and Cross Claimant,
represented by Benjamin J. Wilson, HeplerBroom LLC & Carl J.
Geraci, HeplerBroom LLC.
Viking Pumps, Inc, Defendant, Cross Defendant, and Cross Claimant,
represented by Keith B. Hill, Heyl, Royster et al..
Warren Pumps LLC, Defendant, Cross Defendant, and Cross Claimant,
represented by Keith B. Hill, Heyl, Royster et al..
ASBESTOS UPDATE: Tenn. Court Dismisses Whistleblower Suit
---------------------------------------------------------
Tammy Jean Hollis' Amended Complaint alleges that Defendant, Extra
Space Management, Inc., her employer, retaliated against her for
protected activity in reporting potential asbestos on the
Defendant's property. The Plaintiff contends that she was
constructively discharged in violation of common law and the
Tennessee Public Protection Act, also known as the "Whistleblower
Statute."
The Defendant has filed a Motion to Dismiss the Plaintiff's claims
for failure to state a claim. In response, the Plaintiff has
conceded that her common law retaliatory discharge claim should be
dismissed. With regard to her TPPA claim, the Defendant argues
that the Plaintiff has not sufficiently alleged the elements of a
TPPA retaliation claim.
In a memorandum dated Dec. 15, 2014, Judge Todd J. Campbell of the
U.S. District Court for the Middle District of Tennessee,
Nashville Division, granted the defendant's motion after
determining that because the Plaintiff has not alleged illegal
activities, as defined in the statute, the Plaintiff's Amended
Complaint does not state a claim for violation of the TPPA.
The case is TAMMY JEAN HOLLIS v. EXTRA SPACE MANAGEMENT, INC., NO.
3-14-1457 (M.D. Tenn.). A full-text copy of Judge Campbell's
Decision is available at http://is.gd/avpDfefrom Leagle.com.
Tammy Jean Hollis, Plaintiff, represented by Andy L. Allman, Andy
L. Allman & Associates & Jedidiah L. Cochran, Andy L. Allman &
Associates.
Extra Space Management, Inc., Defendant, represented by Sally
Ramsey, Esq. -- pramsey@constangy.com -- Constangy, Brooks &
Smith, LLP & Teresa Rider Bult, Esq. -- tbult@constangy.com -- at
Constangy, Brooks & Smith, LLP.
ASBESTOS UPDATE: NY Court Denies Bid to Junk 3rd-Party Suit
-----------------------------------------------------------
Third-party defendant Kennedy House Owners moves to dismiss as
untimely third-party plaintiff Taco Inc.'s third-party complaint
against it. In the alternative, Kennedy moves for an order
severing the third-party action from an underlying asbestos-
related personal injury action, granting it 20 days to answer or
otherwise respond to the third-party complaint, and directing Taco
to provide it with all discovery and deposition transcripts from
the underlying action.
The asbestos action, filed on October 12, 2012, seeks to recover
for personal injuries allegedly caused by plaintiffs' decedent's
Zbigniew Thomas Jalowski's occupational exposure to asbestos.
Pursuant to the New York City Asbestos Litigation Case Management
Order, Mr. Jalowski's case was included in the Supreme Court, New
York County's October 2013 In-Extremis trial cluster. The
discovery schedule associated therewith requires third-party
complaints to be filed no later than August 15, 2013.
Judge Sherry Klein Heitler of the Supreme Court, New York County,
in a decision and order dated Dec. 12, 2014, denied the branch of
Kennedy House Owners' motion which seeks to dismiss the third-
party action, holding that inasmuch as Taco filed the third-party
complaint only two weeks after the plaintiffs amended the caption
to reflect a substitution, Kennedy's assertion that Taco's delay
was unjustified is without merit.
Judge Heitler, however, severed the third-party action from the
asbestos action, holding that while the court where the asbestos
action is pending has not yet set a trial date for Jalowski, the
Supreme Court anticipates that jury selection for the October 2013
In-Extremis trial cases will commence during the first quarter of
2015. Judge Heitler said Kennedy will likely need more than just
the few months between now and then to locate records from the
relevant time period, depose witnesses who are knowledgeable of
the events at issue, and prepare for trial. The court recognizes
that New York law generally frowns upon severing actions that
involve common issues of law and fact, but this policy must be
balanced against Kennedy's right to complete discovery and
plaintiffs' right to avoid delaying their trial unnecessarily,
Judge Heitler said.
The case is IVONA JALOWSKI, Individually and as the Executrix of
the Estate of ZBIGNIEW THOMAS JALOWSKI, deceased, Plaintiffs, v.
A.O. SMITH WATER PRODUCTS CO., et al., Defendants. TACO, INC.,
Third-Party Plaintiff, v. KENNEDY HOUSE OWNERS, INC., Third-Party
Defendant, DOCKET NO. 190474/12, TP INDEX NO. 595162/14, MOTION
SEQ. NO. 008 (N.Y. Sup.). A full-text copy of Judge Heitler's
Decision is available at http://is.gd/z81WwOfrom Leagle.com.
ASBESTOS UPDATE: Bid to Reopen Discovery Post Judgment Denied
-------------------------------------------------------------
Judge Joan A. Madden of the Supreme Court, New York County, in a
decision dated Dec. 23, 2014, denied Tishman Liquidation
Corporation's motion to reopen discovery post judgment in the
asbestos-related personal injury lawsuit styled RUBY KONSTANTIN,
Individually and as Executrix of the Estate of DAVID KONSTANTIN,
Plaintiff, v. 640 THIRD AVENUE ASSOCIATES, el al, Defendants,
DOCKET NO. 190134/10, MOTION SEQ. NO. 007 (N.Y. Sup.).
Tishman seeks to re-open discovery to determine "whether the
plaintiff's counsel, Belluck & Fox made post-trial submissions to
asbestos trusts or reorganized entities" affecting set-offs of the
verdict so as to inflate the amount recovered, and "whether
material and necessary information was withheld during pre-trial
discovery." Specifically, Tishman seeks to issue subpoenas to
asbestos trusts, which the plaintiff has identified as responsible
for exposure, to determine if claims have been made to, and paid
by these trusts. Tishman also seeks to subpoena documents from
trusts where the plaintiff "may have filed" proof of claims, and
to subpoena the plaintiff's law firm to determine if it submitted
any proof of claims to trusts.
In denying Tishman's motion, Judge Madden concluded that Tishman
failed to establish any newly discovered evidence, or fraud,
misrepresentation or misconduct by the plaintiff, which warrants
reopening discovery. Moreover, under the circumstances in the
case, in the absence of misconduct by the plaintiff, or a
reasonable basis to believe the subpoenas would reveal information
relevant and material to issues raised in Tishman's motion,
Tishman has not established grounds for reopening discovery in the
interests of justice, Judge Madden further ruled.
A full-text copy of Judge Madden's Decision is available at
http://is.gd/eVmyV2from Leagle.com.
ASBESTOS UPDATE: Crane Co. Wins Bid to Bar Exposure Testimony
-------------------------------------------------------------
Defendants Crane Co., ExxonMobil Oil Corporation, Owens-Illinois,
Inc., and the Marley-Wylain Company (f/k/a Weil-McLain), have
variously filed motions to bar asbestos plaintiff Charles Krik
from calling certain expert witnesses at trial. Krik seeks to
present testimony from experts including Dr. Arthur Frank, Frank
Parker, and Dr. Arnold Brody, who intend to testify that, in
general, each and every exposure to asbestos products results in
injury to the person so exposed. Krik believes that this
testimony will help him to establish that his injuries resulted
from exposure to asbestos products manufactured and sold by the
Defendants. The Defendants contend that this theory of causation,
commonly referred to as the "Each and Every Exposure" theory, the
"Any Exposure" theory, and the "Single Fiber" theory, should be
excluded from the trial as inadmissible and unduly prejudicial.
Judge John Z. Lee of the United States District Court for the
Northern District of Illinois, Eastern Division, in a Dec. 22,
2014 memorandum opinion and order granted the Defendants' request
that the Court bar expert testimony espousing the "Each and Every
Exposure" theory, the "Any Exposure" theory, and the "Single
Fiber" theory, but denied the motions in all other respects.
The case is CHARLES KRIK, Plaintiff, v. CRANE CO.; EXXONMOBIL OIL
CORPORATION; OWENS-ILLINOIS, INC.; and THE MARLEY-WYLAIN COMPANY,
Defendants, CASE NO. 10-CV-7435 (N.D. Ill.). A full-text copy of
Judge Lee's Decision is available at http://is.gd/3EtfP7from
Leagle.com.
Charles Krik, Plaintiff, represented by Michael Peter Cascino,
Cascino Vaughan Law Offices, Ltd. & Robert George McCoy, Cascino
Vaughan Law Offices, Ltd..
Crane Co., Defendant, represented by Stephen K. Milott, Esq. --
stephen.milott@guntymccarthy.com -- Gunty and McCarthy, Catherine
Lynn Carlson, Esq. -- cathie.carlson@guntymccarthy.com -- Gunty
and McCarthy, David Fusco, Esq. -- david.fusco@klgates.com -- K&L
Gates & James Paul Kasper, Esq. -- jamie.kasper@guntymccarthy.com
-- Gunty & McCarthy Law Offices.
ExxonMobil Oil Corporation, Defendant, represented by Howard
Patrick Morris, Esq. -- morrisp@jbltd.com -- Johnson & Bell, Ltd.,
Jeffrey Alan Ryva, Husch Blackwell Sanders LLP, David Francis
Fanning, Esq. -- fanningd@jbltd.com -- Johnson & Bell, Ltd. &
Kimberly A. Sarff, Husch Blackwell Sanders LLP.
Owens-Illinois Inc., Defendant, represented by Matthew J. Fischer,
Esq. -- mfischer@schiffhardin.com -- Schiff Hardin LLP, Brian
O'Connor Watson, Esq. -- bwatson@schiffhardin.com -- Schiff Hardin
LLP, Edward M Casmere, Esq. -- ecasmere@schiffhardin.com -- Schiff
Hardin LLP & Peter A Moir, Esq. -- Quilling, Selander, Lownds,
Winslett & Moser.
ASBESTOS UPDATE: Del. Court Recommends Dismissal of PI Suit
-----------------------------------------------------------
Magistrate Judge Christopher J. Burke of the United States
District Court for the District of Delaware, in a report and
recommendation dated Dec. 3, 2014, recommended that the motion
filed by Huntington Ingalls Incorporated to dismiss for lack of
personal jurisdiction the asbestos-related personal injury filed
by Marguerite MacQueen be granted.
Magistrate Burke pointed out that the Plaintiff has come forward
with a paucity of evidence to suggest, under any theory, how there
is personal jurisdiction over HII. The Plaintiff's inability to
put forward "some competent evidence" that personal jurisdiction
over HII might exist leads to the inevitable conclusion that its
request for jurisdictional discovery is the equivalent of a
"fishing expedition," Magistrate Burke ruled.
The case is MARGUERITE MacQUEEN, Individually and as the Surviving
Spouse of DAVID MacQUEEN, deceased, Plaintiff, v. UNION CARBIDE
CORPORATION, et al., Defendants, CIVIL ACTION NO. 13-831-SLR-CJB
(D. Del.).
Marguerite MacQueen, Individually and as the Surviving Spouse of
David MacQueen, deceased, Plaintiff and Cross Defendant,
represented by Thomas C. Crumplar, Jacobs & Crumplar, P.A.
& Raeann Warner, Jacobs & Crumplar, P.A..
Buffalo Pumps Inc., Defendant and Cross Claimant, represented
by Barbara Anne Fruehauf, Wilbraham Lawler & Buba.
Combination Pump & Valve, Defendant, represented by Krista Reale
Samis, Esq. -- ksamis@eckertseamans.com -- at Eckert Seamans
Cherin & Mellott, LLC.
Combination Pump & Valve, n/k/a, Cross Defendant and Cross
Claimant, represented by Krista Reale Samis, Eckert Seamans Cherin
& Mellott, LLC.
Crane Co., Defendant, Cross Defendant and Cross Defendant,
represented by Nicholas E. Skiles, Swartz Campbell LLC, Allison L.
Texter, Swartz Campbell LLC, Nicholas E. Skiles, Swartz Campbell
LLC & Allison L. Texter, Swartz Campbell LLC.
Electrolux Corporation, successor in interest to White
Consolidated Industries Inc. successor in interest to Economy
Pump, Defendant, Cross Defendant, and Cross Claimant, represented
by Paul A. Bradley, Esq. -- pab@maronmarvel.com -- Maron Marvel
Bradley & Anderson LLC.
Huntington Ingalls Inc, Defendant and Cross Defendant, represented
by Beth E. Valocchi, Swartz Campbell LLC.
Ingersoll-Rand Company, Defendant, Cross Defendant, and Cross
Claimant, represented by Ana Marina McCann, Esq. --
ammccann@mdwcg.com -- Marshall, Dennehey, Warner, Coleman &
Goggin, Armand J. Della Porta, Jr., Esq. -- ajdellaporta@mdwcg.com
-- Marshall, Dennehey, Warner, Coleman & Goggin & Jessica Lee
Tyler, Esq. -- JLTyler@mdwcg.com -- at Marshall, Dennehey, Warner,
Coleman & Gaggin.
Siemens Water Technologies Transport Corp., Defendant, Cross
Defendant, and Cross Claimant, represented by Daniel Partick Daly,
Esq. -- ddaly@kjmsh.com -- at Kelley Jasons McGowan Spinelli &
Hanna LLP.
Spence Engineering Company Inc., Defendant, represented by Barbara
Anne Fruehauf, Wilbraham Lawler & Buba.
Spence Engineering Company Inc., Individually and as Successor to,
Cross Defendant and Cross Claimant, represented by Barbara Anne
Fruehauf, Wilbraham Lawler & Buba.
Spirax Sarco Inc., Defendant, Cross Defendant, and Cross Claimant,
represented by Antoinette D. Hubbard, Maron Marvel Bradley &
Anderson LLC, Paul A. Bradley, Maron Marvel Bradley & Anderson LLC
& Stephanie Ann Fox, Maron Marvel Bradley & Anderson LLC.
The Marley-Wylain Company, Defendant, Cross Defendant, and Cross
Claimant, represented by Matthew P. Donelson, Eckert Seamans
Cherin & Mellott, LLC.
Warren Pumps LLC, Defendant, Cross Defendant, and Cross Claimant,
represented by Jessica Lee Tyler, Marshall, Dennehey, Warner,
Coleman & Gaggin.
ASBESTOS UPDATE: Summary Judgment Ruling in Pa. PI Suit Upheld
--------------------------------------------------------------
The Superior Court of Pennsylvania, in a Dec. 22, 2014, opinion,
affirmed a lower court's order granting summary judgment in favor
of Crown Cork & Seal Co. in the asbestos-related personal injury
lawsuit filed by James C. Markovsky, executory of the estate of
James Markovsky, deceased.
The appeals case is JAMES C. MARKOVSKY, EXECUTOR OF THE ESTATE OF
JAMES MARKOVSKY, DECEASED Appellant, v. CROWN CORK & SEAL CO.,
PENN CENTRAL CORPORATION AND CONSOLIDATED RAIL CORPORATION
Appellee, NO. 2755 EDA 2013 (Pa. Super.). A full-text copy of the
Decision is available at http://is.gd/48ShWlfrom Leagle.com.
ASBESTOS UPDATE: Discovery Clarification Bid Denied in NY PI Suit
-----------------------------------------------------------------
Judge Sherry Klein Heitler of the Supreme Court, New York County,
in a decision and order dated Dec. 15, 2014, denied Cleaver-
Brooks, Inc.'s request for clarification of a 2014 order directing
it to produce to the law firm Weitz & Luxenberg, P.C., certain
documents in its possession, including those that "reference or
otherwise mentioned asbestos or asbestos containing products,
components or parts used on, in or in conjunction with, or as
replacement parts for its boilers."
According to Judge Heitler, the CPLR requires the court to ensure
that pre-trial disclosure is broad enough for litigants to obtain
relevant information so that their claims may be adjudicated on
the merits. Judge Heitler ruled that this means that CB must
produce, among other things, records which bear any relation to
asbestos plaintiff Mary Anne McCloskey's claim that CB's boilers
incorporated asbestos components and/or that it advised its
customers to maintain its boilers using asbestos components. CB's
own narrow interpretation of the Special Master's Recommendation
and the court's June 11, 2014, order would improperly allow it to
withhold thousands of pages of relevant information and force
Plaintiffs to haphazardly review its commercial records out of
context, Judge Heitler added.
The case is IN RE: ALL WEITZ & LUXENBERG CASES IN WHICH CLEAVER-
BROOKS, INC. IS A DEFENDANT relating to MARY ANNE McCLOSKEY, as
Administratrix of the Estate of PATRICK McCLOSKEY, Plaintiff, v.
A.O. SMITH WATER PRODUCTS CO., et al., Defendants, DOCKET NO.
190441/12, NO. 040000/88, MOTION SEQUENCE NO. 015., 023 (N.Y.
Sup.). A full-text copy of Judge Heitler's Decision is available
at http://is.gd/F00Vj3from Leagle.com.
ASBESTOS UPDATE: Summary Judgment Partially Granted in PI Suit
--------------------------------------------------------------
Judge James L. Robart of the United States District Court for the
Western District of Washington, Seattle, in a Dec. 9, 2014, order,
granted in part and denied in part motions for summary judgment
filed by Crane Co. and Carrier Corporation in the asbestos-related
personal injury lawsuit filed by Richard J. Nelson and Stephanie
A. Nelson.
With respect to Crane Co.'s motion, the Court concluded that the
Plaintiffs have raised a reasonable inference that Mr. Nelson was
exposed to asbestos-containing products or materials manufactured
by Crane while he worked aboard the Kitty Hawk and that the jury
is entitled to consider and weigh both the Plaintiffs' and Crane's
evidence in that regard. Accordingly, the court denies Crane's
motion for summary judgment with regard to the period of time that
Mr. Nelson served aboard the Kitty Hawk.
The Court further concluded that the Plaintiffs have raised a
reasonable evidentiary inference based on circumstantial evidence
provided by naval expert, Captain William A. Lowell, that the air
conditioning units aboard the Kitty Hawk during Mr. Nelson's term
of service were manufactured by Carrier. This evidence, in
combination with Mr. Nelson's direct testimony concerning the
maintenance and repair work he conducted on the air conditioning
units aboard the Kitty Hawk during the last portion of his service
there, is sufficient to defeat a portion of Carrier's motion for
summary judgment, Judge Robart said. Accordingly, the Court
denies Carrier's motion for summary judgment concerning Mr.
Nelson's asbestos exposure related to Carrier air conditioning
units aboard the Kitty Hawk.
The case is RICHARD J. NELSON, et al., Plaintiffs, v. AIR & LIQUID
SYSTEMS CORPORATION, et al., Defendants, CASE NO. C14-0162JLR
(W.D. Wash.). A full-text copy of Judge Robart's Decision is
available at http://is.gd/zSIcKzfrom Leagle.com.
Richard J. Nelson, Plaintiff, represented by Brian F Ladenburg,
BERGMAN DRAPER & LADENBURG PLLC, Anna D Knudson, BERGMAN DRAPER &
LADENBURG PLLC, Chandler H Udo, BERGMAN DRAPER & LADENBURG PLLC,
Glenn S Draper, BERGMAN DRAPER & LADENBURG PLLC & Matthew Phineas
Bergman, BERGMAN DRAPER & LADENBURG PLLC.
Stephanie A. Nelson, husband and wife, Plaintiff, represented by
Brian F Ladenburg, BERGMAN DRAPER & LADENBURG PLLC, Anna D
Knudson, BERGMAN DRAPER & LADENBURG PLLC, Chandler H Udo, BERGMAN
DRAPER & LADENBURG PLLC, Glenn S Draper, BERGMAN DRAPER &
LADENBURG PLLC & Matthew Phineas Bergman, BERGMAN DRAPER &
LADENBURG PLLC.
CBS Corporation, Defendant, represented by Christopher S Marks,
Esq. -- chris.marks@sedgwicklaw.com -- SEDGWICK LLP & Megan Maria
Coluccio, Esq. -- megan.coluccio@sedgwicklaw.com -- at SEDGWICK
LLP.
Crane Co., Defendant, represented by Brendan J Tuohy, Esq. --
brendan.tuohy@klgates.com -- K&L GATES LLP, Jody Nicholas Duvall,
Esq. -- Jody.Duvall@klgates.com -- K&L GATES LLP & G William Shaw,
Esq. -- bill.shaw@klgates.com -- at K&L GATES LLP.
General Electric Co., Defendant, represented by Christopher S
Marks, SEDGWICK LLP & Megan Maria Coluccio, SEDGWICK LLP.
IMO Industries Inc, Defendant, represented by Michael Edward
Ricketts, Esq. -- mricketts@gth-law.com -- GORDON THOMAS HONEYWELL
& James Edward Horne, Esq. -- jhorne@gth-law.com -- at GORDON
THOMAS HONEYWELL.
Ingersoll-Rand Company, Defendant, represented by Kevin J Craig,
Esq. -- kcraig@gordonrees.com -- GORDON & REES LLP & Mark B Tuvim,
Esq. -- mtuvim@gordonrees.com -- at GORDON & REES.
Northern Pump, Defendant, represented by Katherine M. Steele, Esq.
-- ksteele@williamskastner.com -- WILLIAMS KASTNER & GIBBS &
Zackary A Paal, Esq., at WILLIAMS KASTNER & GIBBS.
Carrier Corporation, Defendant, represented by Jan Catherine
Kirkwood, Esq. -- jkirkwood@williamskastner.com -- WILLIAMS
KASTNER & GIBBS, Nicole R. MacKenzie, Esq. --
nmackenzie@williamskastner.com -- WILLIAMS KASTNER & GIBBS &
Zackary A Paal, WILLIAMS KASTNER & GIBBS.
ASBESTOS UPDATE: Pa. Court Flips $14.5-Mil. Verdict v. Crane Co.
----------------------------------------------------------------
The Superior Court of Pennsylvania, in an opinion dated Dec. 23,
2014, vacated and remanded for a new trial a judgment entered in
Philadelphia County Court of Common Pleas in favor of asbestos
plaintiff Darlene Nelson, both individually and as executrix of
the estate of James Nelson, in the amount of $14.5 million,
against Crane Co., Hobart Brothers Company, and Lincoln Electric
Company.
The Pennsylvania Superior Court remanded for a new trial both on
liability and damages. Regarding liability, the Superior Court
said the Appellants are entitled to a new trial, as Nelson
introduced causation evidence premised upon the any-exposure
theory. On remand, Crane Co. will be permitted to introduce
evidence relevant to the intended use doctrine. Regarding
damages, trial counsel is refrain from inappropriately suggesting
to the jury an amount suitable for non-economic damages.
The appeals cases are DARLENE NELSON, EXECUTRIX OF THE ESTATE OF
JAMES NELSON, v. AIRCO WELDERS SUPPLY, ALLIED SIGNAL (A/K/A ALLIED
CORP.), AMERICAN STANDARD, A.W. CHESTERTON, INC., BASIC, INC.,
BAYER CROPSCIENCE, INC., (F/K/A AVENTIS CROPSCIENCE, USA, INC.),
ACHEM PRODUCTS, INC., RHONE POULENC, AG CO. AND BENJAMIN FOSTER
COMPANY, BEAZER EAST (A/K/A KOOPERS CO., INC. AND KOOPER), BIRD,
INC., BOC GROUP, BORG-WARNER CORP., BRAND INSULATIONS, INC., CBS
CORPORATION (F/K/A VIACOM, INC. AND WESTINGHOUSE ELECTRIC
CORPORATION), CERTAINTEED CORPORATION, CHRYSLER CORP. (A/K/A AMC,
NORTHWEST AUTO RENTAL CO. AND CHRYSLER SERVICE CONTRACT CO.),
CRANE CO., DEMMING DIVISION, CRANE PACKING, ESAB WELDING AND
CUTTING EQUIPMENT, EJ LAVINO & CO., EUTECTIC CORP., FERRO
ENGINEERING, FORD MOTOR CO., FOSECO, INC., FOSTER WHEELER
CORPORATION, GARLOCK, INC., GENERAL ELECTRIC COMPANY, GENERAL
MOTORS CORP., GEORGE V. HAMILTON, INC., GEORGIA-PACIFIC
CORPORATION, GOULD PUMPS, INC., GREEN, TWEED & COMPANY, INC.,
HAJOCA PLUMBING SUPPLY COMPANY, HARNISCHFEGER CORP., HEDMAN
RESOURCES LIMITED (F/K/A HEDMAN MINES LTD.), HOBART BROTHERS CO.,
HONEYWELL INTERNATIONAL, INC., INGERSOLL RAND CO., JOY GLOBAL
INC., LINCOLN ELECTRIC CO., LUKENS STEEL CO., MALLINCKRODT GROUP,
INC. (F/K/A INTERNATIONAL MINERALS & CHEMICALS CORP.), MELRATH
GASKET, INC., MINE SAFETY APPLIANCE (MSA), METROPOLITAN LIFE
INSURANCE COMPANY, NOSROCK CORPORATION, OWENS-ILLINOIS, INC., PEP
BOYS (A/K/A MANNY, MOE AND JACK), UNION CARBIDE CORP., UNIVERSAL
REFRACTORIES DIVISION OF THIEM CORPORATION. APPEAL OF: CRANE CO.
DARLENE NELSON, EXECUTRIX OF THE IN THE SUPERIOR COURT OF ESTATE
OF JAMES NELSON PENNSYLVANIA, v. AIRCO WELDERS SUPPLY, ALLIED
SIGNAL (A/K/A ALLIED CORP.), AMERICAN STANDARD, A.W. CHESTERTON,
INC., BASIC, INC., BAYER CROPSCIENCE, INC., (F/K/A AVENTIS
CROPSCIENCE, USA, INC.), ACHEM PRODUCTS, INC., RHONE POULENC, AG
CO. AND BENJAMIN FOSTER COMPANY, BEAZER EAST (A/K/A KOOPERS CO.,
INC. AND KOOPER), BIRD, INC., BOC GROUP, BORG-WARNER CORP., BRAND
INSULATIONS, INC., CBS CORPORATION (F/K/A VIACOM, INC. AND
WESTINGHOUSE ELECTRIC CORPORATION), CERTAINTEED CORPORATION,
CHRYSLER CORP. (A/K/A AMC, NORTHWEST AUTO RENTAL CO. AND CHRYSLER
SERVICE CONTRACT CO.), CRANE CO., DEMMING DIVISION, CRANE PACKING,
ESAB WELDING AND CUTTING EQUIPMENT, EJ LAVINO & CO., EUTECTIC
CORP., FERRO ENGINEERING, FORD MOTOR CO., FOSECO, INC., FOSTER
WHEELER CORPORATION, GARLOCK, INC., GENERAL ELECTRIC COMPANY,
GENERAL MOTORS CORP., GEORGE V. HAMILTON, INC., GEORGIA-PACIFIC
CORPORATION, GOULD PUMPS, INC., GREEN, TWEED & COMPANY, INC.,
HAJOCA PLUMBING SUPPLY COMPANY, HARNISCHFEGER CORP., HEDMAN
RESOURCES LIMITED (F/K/A HEDMAN MINES LTD.), HOBART BROTHERS CO.,
HONEYWELL INTERNATIONAL, INC., INGERSOLL RAND CO., JOY GLOBAL
INC., LINCOLN ELECTRIC CO., LUKENS STEEL CO., MALLINCKRODT GROUP,
INC. (F/K/A INTERNATIONAL MINERALS & CHEMICALS CORP.), MELRATH
GASKET, INC., MINE SAFETY APPLIANCE (MSA), METROPOLITAN LIFE
INSURANCE COMPANY, NOSROCK CORPORATION, OWENS-ILLINOIS, INC., PEP
BOYS (A/K/A MANNY, MOE AND JACK), UNION CARBIDE CORP., UNIVERSAL
REFRACTORIES DIVISION OF THIEM CORPORATION. APPEAL OF: HOBART
BROTHERS CO. DARLENE NELSON, EXECUTRIX OF THE IN THE SUPERIOR
COURT OF ESTATE OF JAMES NELSON PENNSYLVANIA, v. AIRCO WELDERS
SUPPLY, ALLIED SIGNAL (A/K/A ALLIED CORP.), AMERICAN STANDARD,
A.W. CHESTERTON, INC., BASIC, INC., BAYER CROPSCIENCE, INC.,
(F/K/A AVENTIS CROPSCIENCE, USA, INC.), ACHEM PRODUCTS, INC.,
RHONE POULENC, AG CO. AND BENJAMIN FOSTER COMPANY, BEAZER EAST
(A/K/A KOOPERS CO., INC. AND KOOPER), BIRD, INC., BOC GROUP, BORG-
WARNER CORP., BRAND INSULATIONS, INC., CBS CORPORATION (F/K/A
VIACOM, INC. AND WESTINGHOUSE ELECTRIC CORPORATION), CERTAINTEED
CORPORATION, CHRYSLER CORP. (A/K/A AMC, NORTHWEST AUTO RENTAL CO.
AND CHRYSLER SERVICE CONTRACT CO.), CRANE CO., DEMMING DIVISION,
CRANE PACKING, ESAB WELDING AND CUTTING EQUIPMENT, EJ LAVINO &
CO., EUTECTIC CORP., FERRO ENGINEERING, FORD MOTOR CO., FOSECO,
INC., FOSTER WHEELER CORPORATION, GARLOCK, INC., GENERAL ELECTRIC
COMPANY, GENERAL MOTORS CORP., GEORGE V. HAMILTON, INC., GEORGIA-
PACIFIC CORPORATION, GOULD PUMPS, INC., GREEN, TWEED & COMPANY,
INC., HAJOCA PLUMBING SUPPLY COMPANY, HARNISCHFEGER CORP., HEDMAN
RESOURCES LIMITED (F/K/A HEDMAN MINES LTD.), HOBART BROTHERS CO.,
HONEYWELL INTERNATIONAL, INC., INGERSOLL RAND CO., JOY GLOBAL
INC., LINCOLN ELECTRIC CO., LUKENS STEEL CO., MALLINCKRODT GROUP,
INC. (F/K/A INTERNATIONAL MINERALS & CHEMICALS CORP.), MELRATH
GASKET, INC., MINE SAFETY APPLIANCE (MSA), METROPOLITAN LIFE
INSURANCE COMPANY, NOSROCK CORPORATION, OWENS-ILLINOIS, INC., PEP
BOYS (A/K/A MANNY, MOE AND JACK), UNION CARBIDE CORP., UNIVERSAL
REFRACTORIES DIVISION OF THIEM CORPORATION. APPEAL OF: LINCOLN
ELECTRIC CO. DARLENE NELSON, EXECUTRIX OF THE IN THE SUPERIOR
COURT OF ESTATE OF JAMES NELSON, AND IN HER PENNSYLVANIA OWN
RIGHT, Appellant, v. AIRCO WELDERS SUPPLY, ALLIED SIGNAL (A/K/A
ALLIED CORP.), AMERICAN STANDARD, A.W. CHESTERTON, INC., BASIC,
INC., BAYER CROPSCIENCE, INC., (F/K/A AVENTIS CROPSCIENCE, USA,
INC.), ACHEM PRODUCTS, INC., RHONE POULENC, AG CO. AND BENJAMIN
FOSTER COMPANY, BEAZER EAST (A/K/A KOOPERS CO., INC. AND KOOPER),
BIRD, INC., BOC GROUP, BORG-WARNER CORP., BRAND INSULATIONS, INC.,
CBS CORPORATION (F/K/A VIACOM, INC. AND WESTINGHOUSE ELECTRIC
CORPORATION), CERTAINTEED CORPORATION, CHRYSLER CORP. (A/K/A AMC,
NORTHWEST AUTO RENTAL CO. AND CHRYSLER SERVICE CONTRACT CO.),
CRANE CO., DEMMING DIVISION, CRANE PACKING, ESAB WELDING AND
CUTTING EQUIPMENT, EJ LAVINO & CO., EUTECTIC CORP., FERRO
ENGINEERING, FORD MOTOR CO., FOSECO, INC., FOSTER WHEELER
CORPORATION, GARLOCK, INC., GENERAL ELECTRIC COMPANY, GENERAL
MOTORS CORP., GEORGE V. HAMILTON, INC., GEORGIA-PACIFIC
CORPORATION, GOULD PUMPS, INC., GREEN, TWEED & COMPANY, INC.,
HAJOCA PLUMBING SUPPLY COMPANY, HARNISCHFEGER CORP., HEDMAN
RESOURCES LIMITED (F/K/A HEDMAN MINES LTD.), HOBART BROTHERS CO.,
HONEYWELL INTERNATIONAL, INC., INGERSOLL RAND CO., JOY GLOBAL
INC., LINCOLN ELECTRIC CO., LUKENS STEEL CO., MALLINCKRODT GROUP,
INC. (F/K/A INTERNATIONAL MINERALS & CHEMICALS CORP.), MELRATH
GASKET, INC., MINE SAFETY APPLIANCE (MSA), METROPOLITAN LIFE
INSURANCE COMPANY, NOSROCK CORPORATION, OWENS-ILLINOIS, INC., PEP
BOYS (A/K/A MANNY, MOE AND JACK), UNION CARBIDE CORP., UNIVERSAL
REFRACTORIES DIVISION OF THIEM CORPORATION, NOS. 865 EDA 2011, 866
EDA 2011, 867 EDA 2011, 889 EDA 2011 (Pa. Super.).
A full-text copy of the Decision is available at
http://is.gd/eVeXEhfrom Leagle.com.
ASBESTOS UPDATE: Summary Judgment in "Robertson" Suit Reversed
--------------------------------------------------------------
The Court of Appeals of Louisiana, First Circuit, in an opinion
dated Dec. 23, 2014, reversed and remanded for further proceedings
a lower court's judgment granting Union Carbide Corporation's
motion for summary judgment on the issue of causation and
dismissing asbestos plaintiffs Frances Robertson, Phillis
Castille, Leslie Robinson, and Stewart Robinson's claims with
prejudice.
In support of its decision, the Court of Appeals found that the
plaintiffs have sufficiently demonstrated that there are genuine
issues of fact as to whether Robertson had significant exposure to
Union Carbide asbestos found in Georgia-Pacific and Gold Bond
joint compound, topping, and texture products to the extent that
it was a substantial factor in bringing about Robertson's
mesothelioma. Therefore, the Court of Appeals ruled that Union
Carbide is not entitled to summary judgment on the issue of
causation, and the Court reversed the trial court's judgment
granting its motion for summary judgment.
The appeals case is FRANCIS ROBERTSON, ET AL. v. DOUG ASHY
BUILDING MATERIALS, INC., ET AL., NO. 2014 CA 0142 (La. App.). A
full-text copy of the Decision is available at http://is.gd/a8wtIA
from Leagle.com.
Robert E. Arceneaux, Metairie, LA, and Damon R. Pourciau, Kenner,
LA, and Susannah B. Chester, Dallas, TX, Attorneys for Appellants,
Plaintiffs - Frances Robertson, et al.
Deborah D. Kuchler, McGready L. Richeson, Ernest G. Foundas, Esq.
-- efoundas@kuchlerpolk.com -- Michael H. Abraham, Esq. --
mabraham@kuchlerpolk.com -- Melissa M. Desormeaux Fuller, Esq. --
mdesormeaux@kuchlerpolk.com -- Perrey S. Lee, Esq. --
plee@kuchlerpolk.com -- at Kuchler Polk, in New Orleans, LA,
Attorneys for Appellee Defendant - Union Carbide Corp.
ASBESTOS UPDATE: "Skaggs" Suit Remanded to Wash. State Court
------------------------------------------------------------
Judge James L. Robart of the United States District Court for the
Western District of Washington, Seattle, in an order dated
Dec. 16, 2014, remanded to the Superior Court for King County in
the State of Washington the asbestos-related personal injury
lawsuit styled DONALD M. SKAGGS and CHARLOTTE M. SKAGGS,
Plaintiffs, v. BORGWARNER MORSE TEC INC., et al. Defendants, CASE
NO. C14-1506JLR (W.D. Wash.), after determining that, because the
sole removing defendants have been dismissed from the case, no
other defendants assert a basis for federal jurisdiction, and the
remainder of the case involves state tort claims by Washington
residents against at least one non-diverse defendant.
A full-text copy of Judge Robart's Decision is available at
http://is.gd/z93QTBfrom Leagle.com.
Donald M. Skaggs, Plaintiff, represented by Glenn S Draper,
BERGMAN DRAPER & LADENBURG PLLC & Vanessa Firnhaber Oslund,
BERGMAN DRAPER & LADENBURG PLLC.
Charlotte M. Skaggs, Plaintiff, represented by Glenn S Draper,
BERGMAN DRAPER & LADENBURG PLLC & Vanessa Firnhaber Oslund,
BERGMAN DRAPER & LADENBURG PLLC.
Borgwarner Morse Tec Inc., Defendant, represented by Richard D
Ross, Esq. -- rross@bpmlaw.com -- at BETTS PATTERSON & MINES.
CBS Corporation, Defendant, represented by Christopher S Marks,
Esq. -- chris.marks@sedgwicklaw.com -- SEDGWICK LLP & R Dirk
Bernhardt, Esq. -- dirk.bernhardt@sedgwicklaw.com -- at SEDGWICK
LLP.
Ford Motor Company, Defendant, represented by Daniel K. Reising,
Esq. -- mark@frllp.com -- FUCILE & REISING & Mark J Fucile, Esq. -
- dan@frllp.com -- at FUCILE & REISING.
General Electric Company, Defendant, represented by Christopher S
Marks, SEDGWICK LLP & R Dirk Bernhardt, SEDGWICK LLP.
Honeywell International Inc., Defendant, represented by Erin P
Fraser, Esq. -- EFraser@perkinscoie.com -- PERKINS COIE.
Kaiser Gypsum Company, Inc., Defendant, represented by Jeffrey M
Wolf, Esq. -- jwolf@williamskastner.com -- WILLIAMS KASTNER &
GIBBS & Nicole R. MacKenzie, WILLIAMS KASTNER & GIBBS.
NACCO Materials Handling Group, Inc., Defendant, represented by
Allison K. Krashan, Esq. -- akrashan@schwabe.com -- SCHWABE
WILLIAMSON & WYATT, Bert W. Markovich, Esq. --
bmarkovich@schwabe.com -- SCHWABE WILLIAMSON & WYATT & Jennifer
Campbell, Esq. -- jcampbell@schwabe.com -- SCHWABE WILLIAMSON &
WYATT.
Owens-Illinois, Inc., Defendant, represented by Renee C Kelley,
Esq. -- rkelley@schiffhardin.com -- SCHIFF HARDIN LLP & Stephen M
Copenhaver, Esq. -- scopenhaver@schiffhardin.com -- SCHIFF HARDIN.
Pneumo Abex Corporation, Defendant, represented by Diane J. Kero,
Esq. -- dkero@gth-law.com -- GORDON THOMAS HONEYWELL.
Union Carbide Corporation, Defendant, represented by Diane J.
Kero, GORDON THOMAS HONEYWELL.
ASBESTOS UPDATE: Con Ed Loses Bid to Dismiss "Smith" Suit
---------------------------------------------------------
Judge Sherry Klein Heitler of the Supreme Court, New York County,
in a Dec. 12, 2014, decision and order denied Consolidated Edison
of New York, Inc.'s motion for summary judgment seeking dismissal
of the asbestos-related personal injury complaint filed by
Anastasia Smith. Judge Heitler found that the records submitted
by Con Ed to show that another entity was responsible for the
specific Indian Point units at issue should have been submitted
with its moving papers, not for the first time in reply. Still,
those records, according to Judge Heitler, do not negate the
testimony given by Clifford Smith, decedent, that Con Ed provided
him with the wires and tools at issue and that his work with those
wires and tools caused him to be exposed to asbestos-laden dust.
The case is ANASTASIA SMITH, Individually and as the Executor of
the Estate of CLIFFORD SMITH, Plaintiffs, v. 3M COMPANY, f/k/a
Minnesota Mining and Manufacturing Co., et al., Defendants, DOCKET
NO. 190137/13, MOTION SEQ. NO. 012 (N.Y. Sup.). A full-text copy
of Judge Heitler's Decision is available at http://is.gd/XM7rDi
from Leagle.com.
ASBESTOS UPDATE: 2 Firms Win Summary Judgment in S.C. PI Suit
-------------------------------------------------------------
Judge David C. Norton of the United States District Court for the
District of South Carolina, Charleston Division, issued three
orders on Dec. 29, 2014, in the asbestos-related personal injury
lawsuit captioned TERENCE J. SPARKMAN AND LEONARD SPARKMAN,
personal representatives of the estate of ELIJAH SPARKMAN, JR.,
deceased, Plaintiffs, v. A.W. CHESTERTON COMPANY; FOSTER WHEELER
ENERGY CORP.; GOULDS PUMPS, INC.; METROPOLITAN INSURANCE COMPANY;
RESEARCH-COTTRELL, INC. n/k/a AWT AIR COMPANY, INC; RILEY POWER,
INC.; UNIROYAL, INC., Defendants, NO. 2:12-CV-02957-DCN (D.S.C.).
In the first order, Judge Norton granted defendant Goulds Pumps,
Inc.'s motion for summary judgment, finding that Goulds should not
be held liable for products which it did not manufacture, supply
or market. A full-text copy of Judge Norton's Decision with
respect to Goulds is available at http://is.gd/U27V3Mfrom
Leagle.com.
In the second order, Judge Norton granted defendant Foster Wheeler
Energy Corp.'s motion for summary judgment and motion to strike,
after finding that one of the testimonies presented in the case
does not indicate that Sparkman was exposed to asbestos from a
Foster Wheeler boiler. A full-text copy of Judge Norton's
Decision with respect to Foster Wheeler is available at
http://is.gd/CooORJfrom Leagle.com.
In the third order, Judge Norton denied defendant Research-
Cottrell, Inc.'s motion for summary judgment, after determining
that the plaintiffs have raised a genuine dispute as to whether
Sparkman was exposed to asbestos from his work with and around a
Research-Cottrell precipitator on a frequent and regular basis. A
full-text copy of Judge Norton's Decision with respect to
Research-Cottrell is available at http://is.gd/5ZtsEOfrom
Leagle.com.
Terrence J Sparkman, Plaintiff, represented by John Eugene
Herrick, Motley Rice, V Brian Bevon, Motley Rice & William
Christopher Swett, Motley Rice.
Leonard Sparkman, Plaintiff, represented by John Eugene Herrick,
Motley Rice, V Brian Bevon, Motley Rice & William Christopher
Swett, Motley Rice.
A W Chesterton Company, Defendant, represented by Jennifer M
Techman, Esq. -- jmtechman@ewhlaw.com -- Evert and Weathersby.
Foster Wheeler Energy Corporation, Defendant, represented by
Jennifer M Techman, Evert and Weathersby.
Goulds Pumps Incorporated, Defendant, represented by Moffatt Grier
McDonald, Esq. -- mmcdonald@hsblawfirm.com -- Haynsworth Sinkler
Boyd, Scott E Frick, Esq. -- sfrick@hsblawfirm.com -- Haynsworth
Sinkler Boyd & William David Conner, Esq. --
dconner@hsblawfirm.com -- at Haynsworth Sinkler Boyd.
Metropolitan Life Insurance Company, Defendant, represented by
Mark Hedderman Wall, Esq. -- Mark.Wall@WallTempleton.com -- Wall
Templeton.
Research-Cottrell Inc, Defendant, represented by David Michael
Burkoff, Esq. -- dburkoff@HunterMaclean.com -- Hunter Maclean
Exley and Dunn, Erik David Nadolink, Wheeler Trigg O'Donnell LLP,
John Michael Fitzpatrick, Wheeler Trigg O'Donnell LLp, Nicholas J
Laybourn, Esq. -- nlaybourn@HunterMaclean.com -- Hunter Maclean
Exley and Dunn, Robert Bates Lovett, Esq., Hunter Maclean Exley
and Dunn & Saunders Aldridge, Esq. -- saldridge@HunterMaclean.com
-- at Hunter Maclean Exley and Dunn.
Riley Power Inc, Defendant, represented by Arthur Timothy Jones,
Esq. -- tjones@hptylaw.com -- Hawkins and Parnell, Elisabeth
Maynette Cheatham, Esq., Hawkins Parnell Thackston and Young &
Erin Elaine Shofner, Esq. -- eshofner@hptylaw.com -- at Hawkins
Parnell Thackston and Young.
ASBESTOS UPDATE: Partial Summary Judgment OK'd in Insurance Suit
----------------------------------------------------------------
The Goodyear Tire & Rubber Company sued Travelers Casualty and
Surety Company and Travelers Indemnity Company for breach of
contract with respect to certain primary liability and umbrella
policies. Goodyear seeks damages and declaratory judgments
pertaining to Travelers' duties to defend and indemnify Goodyear
with respect to certain asbestos-related claims filed against it.
Goodyear and Tranvelers filed cross-motions for "Partial Summary
Judgment on Threshold Issues," pursuant to Rule 56 of the Federal
Rules of Civil Procedure.
Upon consideration of the parties' submissions and the applicable
law, Judge Joy Flowers Conti of the United States District Court
for the Western District of Pennsylvania, found, as a matter of
law, that certain umbrella insurance policies were only clarified
by subsequent "No Drop Down" endorsements. The "No Drop Down"
endorsements did not modify or change any provision of the
relevant umbrella policies and had no effect on Goodyear's right
under the umbrella policies to file individual claims which each
encompass the covered damages of multiple individuals that arise
out of a single occurrence, Judge Conti held.
Accordingly, Judge Conti granted Goodyear's motion and denied
Travelers' motion.
The case is THE GOODYEAR TIRE & RUBBER COMPANY, Plaintiff, v.
TRAVELERS CASUALTY AND SURETY COMPANY (f/k/a AETNA CASUALTY AND
SURETY COMPANY), AND TRAVELERS INDEMNITY COMPANY, Defendants,
CIVIL ACTION NO. 13-00256 (W.D. Pa.). A full-text copy of Judge
Conti's memorandum opinion dated Dec. 22, 2014, is available at
http://is.gd/9s2zGwfrom Leagle.com.
PATRICIA L. DODGE, Special Master, represented by Patricia L.
Dodge, Esq. -- pld@muslaw.com -- at Meyer, Unkovic & Scott LLP.
THE GOODYEAR TIRE & RUBBER COMPANY, Plaintiff and Counter
Defendant, represented by Andrew M. Roman, Esq. --
aroman@cohenlaw.com -- Cohen & Grigsby, Barbara A. Scheib, Esq. --
bscheib@cohenlaw.com -- Cohen & Grigsby, P.C., Anna P. Engh, Esq.
-- aengh@cov.com -- Covington & Burling LLP & Matthew J. Berns,
Esq. -- mberns@cov.com -- at Covington & Burling LLP.
TRAVELERS CASUALTY AND SURETY COMPANY, Defendant and Counter
Claimant, represented by Mark A. Martini, Esq. --
mmartini@rlmlawfirm.com -- Robb Leonard Mulvihill LLP, Elisa
Alcabes, Esq., Simpson, Thatcher & Bartlett, LLP, Mary B. Forshaw
& Peri L. Zelig, Simpson Thacher & Bartlett LLP.
TRAVELERS INDEMNITY COMPANY, Defendant and Counter Claimant,
represented by Mark A. Martini, Robb Leonard Mulvihill LLP, Elisa
Alcabes, Esq. -- ealcabes@stblaw.com -- Simpson, Thatcher &
Bartlett, LLP, Mary B. Forshaw, Esq. -- mforshaw@stblaw.com -- and
Peri L. Zelig, Esq. -- jonathan.zelig@stblaw.com -- Simpson
Thacher & Bartlett LLP.
ASBESTOS UPDATE: Appeals Court Affirms Ruling in "Wannall" Suit
---------------------------------------------------------------
The U.S. Court of Appeals, District of Columbia Circuit, in an
opinion dated Dec. 30, 2014, affirmed a lower court's decision
granting Honeywell Inc. motion to strike the new declaration filed
by Dr. Steven Markowitz, the plaintiff's expert, and its renewed
motion for summary judgment in light of Boomer. Wannall, 292
F.R.D. 26.
The appeals case is STEPHEN A. WANNALL, Personal Representative of
the Estate of John M. Tyler APPELLANT, v. HONEYWELL, INC.,
Appellee, NO. 13-7185 (D.C. App.). A full-text copy of the
Decision is available at http://is.gd/ev1Qqdfrom Leagle.com.
David M. Lipman argued the cause for appellant. Daniel A. Brown
filed the briefs.
Michael R. Shebeleskie argued the cause for appellee. With him on
the brief were Michael A. Brown, Alicia N. Ritchie, and John D.
Epps.
*********
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