/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/151030.mbx C L A S S A C T I O N R E P O R T E R Friday, October 30, 2015, Vol. 17, No. 217 Headlines ABERCROMBIE & FITCH: Summary Judgment Bid in "Boundas" Denied AEROHIVE NETWORKS: Defending Suits Over Alleged Misleading Report AIR LINE PILOTS: Ruling on Atty. Fees in "Brady" Case Upheld AMERICAN TOBACCO: Trial Ct. Ruling in State's Suit Reversed ANGLO AMERICAN: Says Silicosis Suit Lacks Common Issues ANHEUSER-BUSCH INBEV: Beck's Settlement to Benefit Consumers ASHLEY MADISON: May Need to Update Online Terms & Conditions AUDIOEYE INC: Shareholder Suits Filed Against Company, Officers BARCLAYS: Settles Foreign-Exchange Rigging Class Action for $1.2BB CALIBER HOME: Objector Must Post $38,000 Appeals Bond CAMERON MUTUAL: Settlement in "Adams" Wins Final Approval CANADA: Labrador Residential Class Action Lawsuit Ongoing CELLADON CORP: Consolidation of 3 Securities Class Actions Seen CF MARTS: Faces Overtime Class Action in Pennsylvania CHAPARRAL ENERGY: Defending Naylor Farms Case CHAPARRAL ENERGY: Discovery Has Not Yet Commenced in "Dodson" CHAPARRAL ENERGY: Discovery Has Not Yet Commenced in "Donelson" CHEMICAL & MINING: S.D.N.Y. Judge Consolidates Class Suits CHIPOTLE MEXICAN: Hearing on Motion to Dismiss Moved to Jan. 14 CONOCOPHILLIPS PIPE: 8th Cir. Decertifies Environmental Suit DAIRYAMERICA INC: Nov. 16 Hearing on Bid to Amend "Carlin" Suit ECOLAB INC: Wins Summary Judgment in "Charlot" Case EDUCATION MANAGEMENT: Feb. 17 Settlement Fairness Hearing Set EDUCATION MANAGEMENT: Robb Says Settlement Not Enough Restitution EL POLLO: Rosen Law Firm Files Securities Class Action ELECTRONIC ARTS: To Seek Further Court Review in "Davis" Case ELECTRONIC ARTS: Court Granted Bid to Dismiss Shareholder Action ENOVA INTERNATIONAL: "Kristensen" Suit in Nevada Still Open EPIRUS BIOPHARMACEUTICALS: Agreed-to $400 Fee and Expense Paid EQUIFAX INC: Dismissal Bids in "Jones" Case Denied FACEBOOK INC: Motion to Compel Discovery in "Campbell" Granted FIRST ACCEPTANCE: Mediation in Class Action Held FIRST SOLAR: To File Appeal From "Smilovits" Ruling HOUSTON AMERICAN: $7MM Settlement in Shareholder Case Now Paid ILLINOIS: Deaf Inmates' Suit Obtains Class Action Status INDIANAPOLIS BUSINESS: Faces Class Action Over Katina Powell Book INOGEN INC: Securities Class Action Closed INSULET CORP: Class Suits Filed Over Inflated Share Price INTERCLOUD SYSTEMS: No Decision Yet on Motion to Dismiss Suit IQOR HOLDINGS: Minn. Judge Certifies Class of Call-Center Workers IRADIMED CORP: Accrued Insignificant Amount Related Class Action JINKOSOLAR HOLDING: March 11 Settlement Fairness Hearing Set JOHNSON & JOHNSON: "Ferrar" Baby Power Suit Remanded LAS VEGAS, NV: Police Union Sues Over New Law on Paid Time Off LONGS DRUG STORES: Pre-Certification Discovery Order Vacated LOS ANGELES, CA: LAUSD Makes Bogus Claims v. Teachers, Suit Says MARICOPA, AZ: Contempt Hearings on Hold Until End of October MARSHALL SQUARE: Faces Class Action Over Resort Fire MEMPHIS, TN: Cops Awarded Monetary Damages, Attorneys' Fees MMA CAPITAL: Hearing to Approve Class Action Settlement Set MOTORS LIQUIDATION: 100 Recall Suits Filed v. New GM at July 20 NABORS COMPLETION: Must Defend Against "Ridgeway" Action NAUGATUCK VALLEY: Jury Trial Sought in Maryland Class Actions NEW YORK, NY: Ex-Police Commissioner Appears Before Judge NEW YORK, NY: Damages Trial in Parole Class Suit to Start Dec. 7 NORTHLAND INVESTMENT: Attorney Mulls Class Suit Over Church Street NPC INTERNATIONAL: Denial of Arbitration Bid Affirmed ON DECK: Faces Class Actions in S.D.N.Y. Over IPO ORBITAL ATK: Agreed to Settle Stockholder Litigation PENNSYLVANIA: DOC's Preliminary Objections Partly Overruled PORSCHE: Car Owners File Class Action Over Windshield Glare PROFESSIONAL MANAGEMENT: Dist. Ct. Order in Szczurek Case Affirmed PRESBYTERIAN HOMES: Faces Class Action Over Leases QC HOLDINGS: Settlement in "Lee" Case to Be Completed by Yearend QC HOLDINGS: Settlement Talks Urged in "Stemple" Litigation QC HOLDINGS: Faces "Marquez" Class Action in C.D. Cal. RCS CAPITAL: ARCH Trust Litigation Still Pending RCS CAPITAL: To Defend Against "Weston" Amended Complaint RCS CAPITAL: Dismissal of ARCP Shareholder Class Action Sought RUSHCARD: Prepaid Debit Card Customers May Opt for Arbitration SAM'S WEST: Won't Honor Fresh Food Refund Guarantee, Suit Says SCO FAMILY: Charity Workers Underpaid, Class Suit Alleges SIERRA HIGH SCHOOL: Calif. School Sued Over Lesbian T-Shirt SNYDER'S-LANCE: Tentative Settlement Agreement Reached SNYDER'S-LANCE: Continues to Defend IBOs Class Action SONY PICTURES: Settles Class Suit by Hacked Employees SPRINT SPECTRUM: "Emilio" Plaintiff May Amend Complaint SQUARE 1: 3 Class Actions Filed Over PacWest Merger STRATEGIC REALTY: $5MM Settlement in IPO Suit Approved STUART PETROLEUM: "Dyson" Case Wins Conditional Certification SWATCH GROUP: Court Denies Motion to Dismiss "Reed" Class Action TOBIRA THERAPEUTICS: Engaged in Confirmatory Discovery TRUECAR INC: Faces "Mahapatra" Class Action in C.D. Cal. TRUECAR INC: Faces Participating Dealer Litigation UNITED STATES: EBCI Among Tribes to Receive Settlement Funds UNITED STATES: Dist. Ct. Narrows Claims in "Jarita" Suit UNITED STATES: Class Certification Bid Granted in "Hart" Case VALEANT PHARMA: Robbins Geller Files Securities Class Action VENAXIS INC: Defending "Bolt" Action in Colorado VERISMA: Class Action Over Medical Records Copying Costs Proceeds VERSACE: Faces Suit Over Misclassification of Fashion Interns VERTEX ENERGY: Proposed Class Yet to Be Certified VIRGINIA: Plaintiffs Challenge Bid to Dismiss Jail Class Action VIVINT SOLAR: Class Action Settlement Remains Pending VIVINT SOLAR: Defending Class Action by Technicians VIVINT SOLAR: Dismissal of IPO Related Class Actions Sought VIVINT SOLAR: Expects Consolidation of Suits Over SunEdison Deal VOLKSWAGEN AG: Mass Tort MDL Deals Need More Judicial Review VOLKSWAGEN AG: Wants Emissions Class Actions Heard in Virginia VOLKSWAGEN GROUP: Plaintiffs Seek to Stop Monthly Car Payments WAFFLE HOUSE: Sued Over Unfair Use of Background Checks WARNER BROS: Hollywood Studios Discriminate v. Deaf, Suit Says WEIGHT WATCHERS: Continues to Defend Securities Litigation WESTPORT FUTURES: Received Final Court Approval of Settlement ZAFGEN INC: Faces Securities Class Action in Massachusetts ZEOBIT: Thousands of MacKeeper Buyers File for Refunds * Class-Action Threats Number One Concern for In-House Attorneys * Cos. Respond to Suits Over Moldy Front-Loading Washing Machines * FDA Has Yet to Decide on "Diet" Soft Drinks Labeling Issue * Gold Mining Cos. No Realistic Alternative to Silicosis Suit Asbestos Litigation ASBESTOS UPDATE: "Rozumek" Remanded to Illinois State Court ASBESTOS UPDATE: MACo Fails to Dismiss Libby Worker's Suit ASBESTOS UPDATE: 5th Cir. Affirms Ruling in "Bartel" ASBESTOS UPDATE: Shipowners' Fail in Bid to Junk 14 PI Suits ASBESTOS UPDATE: Allstate's Bid for Insurance Arbitration Stayed ASBESTOS UPDATE: Cleaver-Brooks Fails to Dismiss "Ricci" ASBESTOS UPDATE: Alcoa Withdraws Appeal in "Andrucki" ASBESTOS UPDATE: Plumber Gets Positive Fibro Results ASBESTOS UPDATE: Construction Company Exposes Workers to Fibro ASBESTOS UPDATE: Veterans, Teachers Oppose FACT Act ASBESTOS UPDATE: Settlement Reached Over Victoria Fibro Cases ASBESTOS UPDATE: Toxic Dust Causes County Workers to Leave Bldg. ASBESTOS UPDATE: Fibro Found in Christchurch Arts Centre ASBESTOS UPDATE: Dunedin Hospital Closed for Fibro Clean-up ASBESTOS UPDATE: Guam On-Island Toxic Dust Disposal Proposed ASBESTOS UPDATE: Firefighters Bear Burden of Fibro Deaths ASBESTOS UPDATE: Fibro-hit School Forced to Close ASBESTOS UPDATE: UK Calls Eradication of Fibro-Infested Areas ASBESTOS UPDATE: Family, 3-Yr. Old Exposed to Dangerous Fibro ASBESTOS UPDATE: Workers Exposed to Fibro in WA Wheatbelt ASBESTOS UPDATE: Contractor Seeks Better Fibro Demolition Rules ASBESTOS UPDATE: Aussies At Risk from Fibro in Imported Cement ASBESTOS UPDATE: Former Hospital Staff Could Be Exposed to Fibro ASBESTOS UPDATE: School Fibro Problems May Cost EUR10MM ASBESTOS UPDATE: Soldiers with Mesothelioma Unfairly Treated ASBESTOS UPDATE: Man Dies After 18 Months of Fibro Exposure ASBESTOS UPDATE: ACT Spends 26K for Acton Tunnel Fibro Clean-Up ASBESTOS UPDATE: Toxic Dust Delays Tyne Tunnels' Re-Opening ASBESTOS UPDATE: Fibro-Ridden Ruins of Hotel Left Uncovered ASBESTOS UPDATE: Oregon Fibro Rules Lags Behind Minimum Standards ASBESTOS UPDATE: Fibro Found in Dubai, Abu Dhabi New Bldgs. ASBESTOS UPDATE: Man Killed by Fibro 50 Years After Exposure ASBESTOS UPDATE: More Deadly Dust Found at Bulla Tip ASBESTOS UPDATE: Fibro Infests Tobribridge McDonald's Site ASBESTOS UPDATE: Nauru Buildings Need $20MM to Remove Fibro ASBESTOS UPDATE: Carpenter Has Mesothelioma Due to Fibro Exposure ASBESTOS UPDATE: Oregon DEQ Mandates Fibro Test Before Demolition ASBESTOS UPDATE: Realtor Exposses Untrained Laborers to Fibro ASBESTOS UPDATE: CenterPoint Energy Continues to Defend PI Suits ASBESTOS UPDATE: Manitex Int'l. Continues to Defend Fibro Suits ASBESTOS UPDATE: Katy Industries Has Pending Fibro Claims ********* ABERCROMBIE & FITCH: Summary Judgment Bid in "Boundas" Denied ------------------------------------------------------------- District Judge John J. Tharp, Jr. denied Plaintiff's motion for summary judgment in the case captioned GS TIFFANY BOUNDAS, individually and on behalf of a class, Plaintiff, v. ABERCROMBIE & FITCH STORES, INC., an Ohio corporation, Defendant, No.: 10 C 04866, (N.D. Ill.) GS Tiffany Boundas, individually and on behalf of a class, alleges that Abercrombie & Fitch Stores, Inc. breached a contract it had made with all members of the class when it voided the value of a number of promotional gift cards that Abercrombie had given class members in late 2009 in exchange for their purchases of at least $100 worth of goods. Boundas moved for summary judgment. In his Memorandum Opinion and Order dated August 28, 2015 available at http://is.gd/N4mKjjfrom Leagle.com, Judge Tharp, Jr. denied Boundas' motion to dismiss. According to the Court, denial of Boundas's summary judgment motion is warranted, not because there are disputed issues of material fact, but because the legal theory on which Boundas' breach of contract claim is based is fatally flawed. Because the only legal theory she has advanced is untenable, it may be appropriate to require Boundas, pursuant to Fed. R. Civ. P. 56(f), to show cause why judgment should not be entered against her and in favor of Abercrombie. A status hearing was set in the case for September 10, 2015. Vincent Louis DiTommaso, Esq. -- vdt@ditommasolaw.com -- Andrew Charles Murphy, Esq. -- acm@ditommasolaw.com -- Patrick Doyle Austermuehle, Esq. -- paustermuehle@ditommasolaw.com -- and Peter Scott Lubin, Esq. -- psl@ditommasolaw.com -- of DiTommaso Lubin, P.C. -- James S. Shedden, Esq. -- Matthew Scott Burns, Esq. -- mattburns@dawnforwomen.com -- and Tony Kim, Esq., of Schad, Diamond & Shedden, P.C. serve as counsel for Plaintiff GS Tiffany Boundas Brian Joseph Murray, Esq. -- bjmurray@jonesday.com -- and Elizabeth P. Kessler, Esq. -- ekessler@jonesday.com -- of Jones Day serve as counsel for Defendant Abercrombie & Fitch Stores, Inc., an Ohio corporation AEROHIVE NETWORKS: Defending Suits Over Alleged Misleading Report ----------------------------------------------------------------- Aerohive Networks, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 12, 2015, for the quarterly period ended June 30, 2015, that a class action complaint was filed in June 2015 in the Superior Court of the State of California, County of San Mateo, against the Company and certain of its current and former officers and directors. This action was subsequently related to two follow-on complaints and is captioned Hunter v. Aerohive Networks, Inc., et al., Case No. 534070 (filed June 2, 2015), Mahajan v. Aerohive Networks, Inc., et al., Case No. 534294 (filed June 17, 2015), and Silverberg v. Aerohive Networks, Inc., et al., Case No. 534505 (filed July 2, 2015). The complaints allege that the Registration Statement which the Company filed with the Securities and Exchange Commission on Form S-1 in connection with its initial public offering in March 2014 contained false and/or misleading statements or omissions. The actions also name as defendants the investment firms who underwrote the Company's initial public offering. The complaints allege that the Registration Statement failed to disclose, among other things, product deficiencies, poor sales, and a decline in sales-related personnel. The complaints additionally allege that the Company improperly recognized revenue, including by booking certain sales with rights of return. The complaints, which have been consolidated, bring claims under the federal securities laws and seek unspecified compensatory damages and other relief. The Company is advancing certain defense costs with respect to individual defendants, including the underwriting investment firms, under written indemnification agreements. The Company intends to defend these lawsuits vigorously. The Company is not able to predict or estimate any range of reasonably possible loss related to these lawsuits. If these matters have an adverse outcome, they may have a material impact on the Company's financial position, results of operations or cash flows. AIR LINE PILOTS: Ruling on Atty. Fees in "Brady" Case Upheld ------------------------------------------------------------- The United States Court of Appeals, Third Circuit affirmed the District Court's (a) denial of Cureton Clark, P.C.'s application for compensation, and (b) order granting attorneys' fees and award of class representative incentive awards in connection with the approved class action settlement in the case captioned, PATRICK BRADY; SALLY YOUNG; HOWARD HOLLANDER; THEODORE CASE; MICHAEL FINUCAN, individually and on behalf of all others similarly situated, v. AIR LINE PILOTS ASSOCIATION CURETON CLARK P.C. f/k/a Cureton Caplan P.C., Appellant. PATRICK BRADY; SALLY YOUNG; HOWARD B. HOLLANDER; THEODORE A. CASE; MICHAEL V. FINUCAN, individually and on behalf of all others similarly situated, v. AIR LINE PILOTS ASSOCIATION Theodore Case, Appellant, Case Nos. 14-2961, 14-3128. In August 2002, Cureton undertook representation of Leroy W. Bensel as representative of a putative class of pilots formerly employed by Transworld Airlines and later employed by American Airlines. The representation involved claims on behalf of the class against the Air Line Pilots Association, American Airlines, and the Allied Pilots Association. The District Court made incentive awards to the twelve current and former class representatives, totaling $640,000. These included an award of $81,702.13 to appellant Theodore Case. Case was one of three current or former class representatives who objected to the proposed incentive awards. He argued that "it would be not be unjustified to award, at a minimum, $250,000 per Class Representative." Case did not submit evidence to support this assertion and did not appear personally or by counsel at the fairness hearing. The District Court noted that, unlike attorneys' fees, there is no established metric for determining class representative incentive awards. Based on the record and after considering the arguments made by the objectors, the District Court increased the total award amount from $440,000 to $640,000. After the District Court announced this revised award at the fairness hearing, the two other objectors announced that they no longer objected to the incentive awards. In the Opinion dated September 23, 2015, available at http://is.gd/cBJVrVfrom Leagle.com, Judge Chagares found that the District Court did not abuse its discretion in awarding fees in the instant case and have made reasonable factual findings. Both Case and Cureton had been appropriately compensated and were not entitled to additional fees. AMERICAN TOBACCO: Trial Ct. Ruling in State's Suit Reversed ----------------------------------------------------------- The United States Court of Appeals of Missouri, Eastern District, Division Four reversed a trial court ruling entered in the case captioned, STATE OF MISSOURI, Appellant/Cross-Respondent, v. AMERICAN TOBACCO CO., ET AL., Respondents/Cross-Appellants, Case No. ED101542. Missouri filed suit against several tobacco companies for health care costs and other damages imposed upon the state by cigarette smoking. Around the same time, more than forty states commenced similar litigation, asserting various consumer protection claims for monetary, equitable, and injunctive relief against certain tobacco product manufacturers and others as defendants. In November 1998, more than forty states and territories ("States") reached a "landmark agreement," known as the MSA, with four major manufacturers in the cigarette industry, known as the "original" Participating Manufacturers ("OPMs"). The "Signatory States" settled their consumer protection claims against the tobacco companies in exchange for monetary payments and permanent injunctive relief, designed to reduce cigarette smoking in the U.S. and compensate, in part, for the health care costs associated with treating tobacco-related diseases under state Medicaid programs Missouri filed a motion on December 10, 2013, asking the circuit court to vacate the Partial Settlement to the extent that it affects Missouri, vacate Missouri's final award, and order related declaratory relief through a single-state arbitration involving only Missouri and the PMs. Missouri moved for the trial court to compel the PMs to arbitrate in a single-state proceeding on the question of whether Missouri diligently enforced its Qualifying Statute in 2004 and is therefore exempt from the 2004 NPM Adjustment. Because Missouri and other Non-signatory States did not agree to such amendment of the calculation of their annual payment, the court modified the settlement award and ordered the IA to treat the 20 Signatory States whose diligence was contested, but not proven, as non-diligent when calculating the NPM Adjustment applicable to the amount owed to Missouri for 2003. Further, the court denied Missouri's motion to vacate the final award, finding that Missouri had not shown that the arbitration Panel was "unduly influenced by any ex parte communication in other states' hearings," and the "abundant evidence in the Missouri record" supported the finding that Missouri failed to diligently enforce its escrow statute in 2003. On appeal, the PMs, including OPMs and SPMs, argued that the trial court erred in its modification of the arbitration Panel's settlement award with regard to the 2003 NPM Adjustment. In its Order dated September 22, 2015 available at http://is.gd/HhSTVvfrom Leagle.com, the Missouri Appeals Court found that the trial court erred in concluding that a nationwide arbitration was envisioned by the parties in drafting the MSA. Moreover, the trial court erred in denying Missouri's motion to compel the PMs into single-state arbitration for Missouri's 2004 diligent enforcement dispute. The parties agreed to arbitrate, so the trial court was required to grant the motion to compel arbitration, which was requested as a single-state proceeding. "The judgment of the trial court is reversed and remanded. The trial court is instructed to enter its judgment affirming the arbitration Panel's direction to the IA to implement the provisions of the "Term Sheet" partial settlement and order the 2003 NPM Adjustment to be allocated among the Non-signatory States using a pro rata method. The trial court is further instructed to grant Missouri's motion to compel single-state arbitration between Missouri and the PMs for a determination of diligent enforcement of a Qualifying Statute for 2004," ruled the Missouri Appeals Court. ANGLO AMERICAN: Says Silicosis Suit Lacks Common Issues ------------------------------------------------------- Daily Maverick reports that attempts by lawyers for mining giant Anglo American to play the race card in the silicosis case were rebuffed by the South Gauteng High Court on Oct. 21. Lawyers for the gold mining companies which are respondents in the case wrapped up their clients' arguments on Oct. 21. The mining companies are asking the court not to grant an application by former mineworkers affected by silicosis and tuberculosis (TB) to be allowed to represent other affected mineworkers and the dependents of dead mineworkers in a class action. Representing Anglo American, advocate Michael Cooper reiterated the argument that the lack of common issues among mineworkers would mean the class would have to be broken down into so many subclasses that it would no longer be a class action. He said one reason why the proposed class was not homogeneous was that it contained members of more than one race. Mr. Cooper pointed to expert testimony by Dr. Jonny Myers of the University of Cape Town, in support of the mineworkers' claim, that under apartheid white mineworkers had benefitted from much better protective measures, occupational health services and compensation for silicosis and TB than black mineworkers. Mr. Cooper said that, as a result, black and white mineworkers should be in separate classes. "In addition," said Mr. Cooper, "black mineworkers who made depositions to their attorneys about their work histories and conditions of work, criticized white miners as treating them with contempt, and made statements such as "they ordered us back into the stopes after a blast often after only two hours, even though the waiting time should have been four hours because of the dust after a blast". "If we add to that the fact that white miners had much higher levels of compensation for silicosis/TB than black mineworkers, this would cause conflict over any settlement that is reached in the trial. "Black workers would say they want more than white workers," said Cooper. Judge Phineas Mojapelo responded: "In this current South Africa, black workers and white workers are entitled to the same treatment. The different treatment meted out to black mineworkers is only part of the claim, and does not create conflict over settlement." Mr. Cooper reiterated his concern that black mineworkers might ask for additional compensation because of previous discrimination. Said Judge Mojapelo: "This is my last engagement on this matter. Why should race be an issue here? Black mineworkers' compensation in the past has also been very differentiated." Mr. Cooper also took issue with the proposal by lawyers for the mineworkers that the certified class should be an "opt-out class", so that all potential claimants would be considered part of the action unless they specifically indicated that they did not want to participate. He said the supposed advantage for all concerned of the "opt-out" method was that there would be "one big battle" over compensation for the mineworkers. But this did not apply to his client, said Cooper, since Anglo American was already involved in arbitration over the issue. Responding to arguments that an "opt-out" system would make it easier to reach a settlement during trial, Mr. Cooper said Anglo American would have to know how many mineworkers were in the class before putting forward any sum for settlement. He said the mineworkers' attorneys had estimated that a typical settlement would be R200,000, but estimates of the numbers of claimants involved ranged from 17,000 to 500,000. An 'opt-in' class would make it easier to judge the amounts involved accurately and make a settlement more likely. "Surely your client has its own records from which it could estimate the likely number of claimants?" asked Judge Mojapelo. Cooper said Anglo American did have records but these were not complete and it would be impossible for the company to say how many workers were affected. He said lawyers for the mineworkers had expressed concern that an "opt-in" system would exclude many people who could be legitimate members of the class. But, said Mr. Cooper, Richard Spoor and the Legal Resources Centre, who are representing the mineworkers, had been working on similar cases for many years. "They have had plenty of time for active recruitment of class members, who could then opt in. Why are they asking for costly publicity in the form of a widely disseminated notice and another six months to identify the class members? I understand that they have extensive networks in the powerful trade unions. These networks would surely work for an opt-in class as well?" Mr. Cooper said an "opt-out" class would be huge, and would lead to misunderstandings and unexpected problems. It would also lead to a cottage industry of people "bilking people of their damages by giving payment up front and pocketing the actual damages". On the question of negligence, Mr. Cooper took issue with arguments by the mineworkers' lawyers that the mines did not implement a 1970s international standard on silica dust limits until 2002; that they did not use the sampling measures established in the 1970s until 1988; and that there had been a systemic failure in the entire gold mining industry to take sufficient measures to protect miners' health. He said all that mattered was whether or not the mines had adhered to South African laws and regulations, and that Anglo American had done so and more. He argued that information on average dust levels on 20 mines submitted by the miners' lawyers as evidence of 'systemic failure' was not admissible as evidence because it hid differences between mines. By using data from unnamed mines, he said, the mineworkers' lawyers were importing the notion of 'guilt by association' into the "systemic failure" argument, which was not legally admissible. The miners' own affidavits, Cooper argued, did not indicate any breach attributable to Anglo American, which was not the employer, and so had no day-to-day control over workplace practices. The mines were not subsidiaries of Anglo American because Anglo American never had a controlling share in them, only a stake of between 10% and 30%. Anglo American had never employed mine managers and its involvement in operations was limited to the provision of medical services to the mines and ventilation design. As a result, he said, there was no case against Anglo American. Representing African Rainbow Minerals (ARM), advocate Theo Beckerling agreed with lawyers for other mines on the 'systemic failure' issue. If that was the main argument for commonality in the class, the certification application should fail, he said. He pointed out that only four of the class members who had been identified to date had any work experience at ARM. Of these, one had only had one year of service. What would happen, he asked, if a mineworker was diagnosed years after working at ARM? Would ARM have any liability in such a case? The court's decision on the certification of the class action was expected on Oct. 23. ANHEUSER-BUSCH INBEV: Beck's Settlement to Benefit Consumers ------------------------------------------------------------ Jacob Gershman, writing for The Wall Street Journal, reports that plaintiffs' lawyers say a class-action settlement involving Beck's beer will provide considerable benefits to consumers who were allegedly tricked into believing the St. Louis-brewed beer was a German import. In court papers, lawyers representing the plaintiffs who sued Anheuser-Busch InBev said the settlement approved by a judge on Oct. 20 "confers over $20 million in cash benefits" to class members. Lawyers for both sides, though, don't expect the actual payout to class members to approach anywhere near that dollar figure. The way the $20 million was calculated isn't out of the ordinary in these types of cases. Judges and plaintiffs often rely on estimates of maximum value when assessing the fairness of a settlement and the requested attorneys' fees. But the method has attracted criticism, including recently from a prominent federal appeals court judge who said the calculations used by the plaintiffs' attorneys in another class action led to a "scandalous" attorneys' fee award. Anheuser-Busch agreed to give Beck's drinkers 10 cents back for every individual bottle purchased; 50 cents for a six-pack or $1.75 per 20-pack. Consumers who back up their claims with receipts can get refunds up to $50 a household. Claims without receipts are capped at $12. The agreement also awards up to $3.5 million in attorneys' fees. The $20 million figure is based on an analysis by an economist at Anderson Economic Group LLC who used sales data to estimate the number of Beck's consuming households. That number, 1.7 million, was then multiplied by 12, representing the maximum payoff if every claim lacked proof of purchase and sought the maximum $12. Plaintiffs attorney Thomas A. "Tucker" Ronzetti of Miami firm Kozyak Tropin & Throckmorton LLP told Law Blog that they're hoping for 170,000 claims but said 60,000 claims so far had been filed with the claims deadline less than a month away. Neither side in the case would guess what the final payout would be. But the general counsel for Anheuser-Busch's U.S. operations, Katherine Barrett, made this prediction to Law Blog. "It's certainly possible that the $3.5 million fee collected by the plaintiffs' attorneys will outsize the benefit paid to consumers, an outcome that is increasingly more common in class action suits such as this," she said in a statement. Mr. Ronzetti said the benefits to consumers "extend beyond the money they get back," noting that Anheuser-Busch also agreed to packaging and marketing changes that he said would prevent consumer deception. (AB InBev didn't admit any wrongdoing by settling the lawsuit.) In court papers, he and co-counsel described the $3.5 million attorneys' as "modest" and based on a federal appeals court precedent. "The requested fee is only 10.9% to 15.3% of the estimated value of the Settlement to the Class," they wrote. Judge Richard Posner of the Seventh U.S. Circuit Court of Appeals drew attention to how class-action settlements are valued in an opinion last year involving a class action case against a company that allegedly sold defective windows. The final settlement directed the company to pay $11 million in attorneys' fees based on claims that the settlement was worth $90 million to the class. Judge Posner said the aggregate value of benefits was at most $8.5 million, labeling the settlement "inequitable -- even scandalous." Litigator and class-action activist Ted Frank raised similar concerns last year when he objected to a settlement of allegations that Gillette Co.'s Duracell unit misled consumers about the battery life of a premium battery line. While approving the settlement, the federal trial court judge in Florida questioned the plaintiffs' assertion that their request for $5-plus million fee was more than reasonable. The lawyers said it was only 10% of the estimated value of the settlement. "[T]he $50 million calculation is somewhat illusory, because the parties never expected that Gillette would actually pay anything close to that amount," wrote Judge Gregory A. Presnell. Mr. Frank told Law Blog that inflated estimates of settlement value are common in class actions and help plaintiffs' lawyers make their fee requests "seem more reasonable." He said he's hoping the U.S. Supreme Court will take up the issue, saying he plans to ask the justices to review the battery settlement, which was affirmed by a federal appeals court. ASHLEY MADISON: May Need to Update Online Terms & Conditions ------------------------------------------------------------ Brian Powers, writing for Forbes, reports that in the wake of the hacking of the extramarital affair website Ashley Madison and the exposure of identifiable user data online, the company is being sued in Canada, the U.S., and likely other places around the world. These class-action lawsuits, seeking over $500 million in damages, will likely take years and millions of dollars in legal fees to get sorted out. Over that time, a majority of the focus will be on the online "Terms and Conditions" and "Privacy Policy" between Ashley Madison and its customers. Those legal documents are filled to the brim with terms that Ashley Madison will attempt to rely on to minimize or eliminate its liability, and avoid a class action lawsuit altogether. Recently, a federal judge in California granted Lyft's motion to dismiss a class action lawsuit filed against it by its drivers. The reason? A provision in Lyft's Terms of Service waives class actions and forced arbitration. That provision saved Lyft from a potentially very long and costly class action lawsuit. Ashley Madison, however, might not be as lucky: some ridiculous and self-imposed update procedures are likely to get those Terms and Conditions completely thrown out! Ashley Madison's Terms and Conditions are clearly intended to protect Ashley Madison. Most online Ts&Cs are incredibly one-sided -- drafted with the sole purpose of protecting one party and shifting as much liability away from that party as possible. This T&C is no exception; it is meant to protect Ashley Madison from almost any liability whatsoever. Ashley Madison makes several direct and bold disclaimers, which in summary state: Use our site, and it's not our problem if your data gets hacked. If you use our site, we are not liable for damages, and if we are, you can't sue us for more than $5,000. You may be interacting with fembots and not actual human beings seeking to have affairs. If you sue us, you must do it via arbitration and you may not do it as part of a class action lawsuit. None of these are surefire get-out-of-jail-free cards, but they could all certainly prove helpful as Ashley Madison tries to get itself out of this mess. Plaintiff's lawyers will have all sorts of strategies to get around these protective terms, one of which will be getting the terms thrown out altogether. And one big glaring weakness surrounds how Ashley Madison manages the updates to these Terms and Conditions. Ashley Madison gives itself the right to update its Terms and Conditions at anytime, and expects users to check for updated terms on their own. Check out this very aggressively worded language at the very beginning of the Terms and Conditions (bold emphasis added, caps as originally presented by Ashley Madison, and commentary sprinkled in) WE RESERVE THE RIGHT, AT OUR DISCRETION, TO MODIFY THESE TERMS AT ANY TIME. ANY UPDATED VERSION SUPERSEDES AND REPLACES ANY PRIOR VERSIONS UPON POSTING AND THE PRIOR VERSION IS OF NO FURTHER FORCE AND EFFECT UNLESS WE SPECIFICALLY STATE OTHERWISE. Translation: Pretty straightforward, we can change these terms whenever we want. WE WILL INDICATE THE LAST UPDATE DATE AT THE END OF THESE TERMS. YOU AGREE TO NOTE THAT LAST UPDATE DATE OF THE REVISION YOU READ AND AGREE TO PERIODICALLY CHECK THESE TERMS FOR CHANGES. IF THE LAST UPDATE DATE HAS BEEN CHANGED, THEN YOU WILL KNOW WE HAVE MADE CHANGES TO THESE TERMS AND THAT YOU MUST REVIEW THE TERMS TO DETERMINE HOW YOUR RIGHTS AND RESPONSIBILITIES UNDER THE TERMS HAVE CHANGED. Translation: Say what? So you need to write down the date of the terms, and then compare that to the date at the end of the terms, and if it is different, search the terms for changes? YOUR CONTINUED USE OF THIS SITE FOLLOWING THE POSTING OF CHANGES TO THESE TERMS WILL MEAN YOU ACCEPT THOSE CHANGES. YOU ALSO WILL BE REQUIRED TO AFFIRMATIVELY AGREE TO THE TERMS AND ANY MATERIAL MODIFICATIONS TO THE TERMS. Translation: If you keep using the site, you automatically accept any changes to terms. There are so many problems with this it's difficult to know where to even begin. First, don't even think about playing this game in California. Why? Ask Safeway, who was just ordered to pay out $31M in a class action lawsuit, due in a part to never having provided conspicuous notice of changes to its own online Terms and Conditions. If an Ashley Madison customer signed up in 2013, and a change was made that might have some bearing on these lawsuits, that change may be difficult to enforce. Second, if Ashley Madison can make changes to the terms any time it wants to, what would prevent it from changing, say, a term that requires binding arbitration? This is the exact issue that led a court to render an arbitration provision in the Zappos Term of Use meaningless, which allowed a massive data breach class action lawsuit to proceed (as opposed to forcing arbitration and avoiding the formation of a class). But here is where things get potentially shady. Finally, in reference to that whole noting the "last update date of the revision", that is difficult to do when those dates seem to change with no rhyme or reason. Thanks to the incredible Internet Wayback Machine, you can see the different versions of the Ashley Madison Terms and Conditions. By no means should this be considered 100% reliable nor an insinuation that all versions are archived there, but a quick review revealed some curious timeline inconsistencies. The timeline shows 2 different sets of Terms and Conditions (one dated 11/21/2013 and one date 11/18/2013) and the dates on which they were archived by the Wayback Machine. Dates on the Terms and Conditions move forward from 11/18/2013 to 11/21/2013, then BACK to 11/18/2013. A quick comparison of all of these archived Terms and Conditions reveals: The terms dated 11/21/2013 COMPLETELY CHANGED the arbitration provisions to require arbitration in Cyprus! What!? That would make the judge in the Zappos case really, really mad, and likely throw the entire Terms and Conditions out! In addition, the terms marked by Ashley Madson with the date 11/18/2013 and archived on 8/20/2014 are NOT THE SAME as the terms that are also marked by Ashley Madison with the date of 11/18/2013, but archived on 3/19/2015. So if you followed Ashley Madison's mandate of noting the "last update date of the revision", you would have no idea that anything had changed because the dates for 2 different sets of Term and Conditions are the same! One of the major differences pertains to the "fembots" that have received some media attention recently; that reference was completely removed in the more recent set of Terms and Conditions marked by Ashley Madison with the date of 11/18/2013. Where does this leave Ashley Madison? What is outlined creates some pretty serious issues for Ashley Madison and is very contrary to some established principles for how to make sure online Terms and Conditions are enforceable (just ask Safeway and Zappos). It could be that Ashley Madison gave its users lots of notice regarding changes to its terms, potentially via email or maybe they had to accept the revised terms when they logged in. If so, that could help Ashley Madison, but only if it can support such a claim with good records. If the date snafu is any indication of how Ashley Madison manages updates, it would not be surprising if they simply made the changes and relied on their absurd directive that customers monitor and discover any changes themselves. The plaintiffs' attorneys in these cases are going to dig even deeper as part of the discovery process, and that could spell trouble for Ashley Madison if it wants to rely on its Terms and Conditions to minimize its liability here. That could spell trouble. AUDIOEYE INC: Shareholder Suits Filed Against Company, Officers --------------------------------------------------------------- AudioEye, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 12, 2015, for the quarterly period ended June 30, 2015, that two purported shareholder class action lawsuits were filed in April 2015, against the Company and its officer Nathaniel Bradley and former officer Edward O'Donnell in the U.S. District Court for the District of Arizona. "The plaintiffs allege various causes of action against the defendants arising from our announcement that our previously issued financial results for the first three quarters of 2014 and the guidance for the fourth quarter of 2014 and the full year of 2014 could no longer be relied upon," the Company said. "The complaints seek, among other relief, compensatory damages and plaintiff's counsel's fees and experts' fees. The Court has not yet appointed a lead plaintiff or lead counsel, and we have not yet responded to the complaints." "We believe that the lawsuits have no merit and intend to mount a vigorous defense. Given the current stage of the proceedings in this case, our management currently cannot assess the probability of losses, or reasonably estimate the range of losses, related to these matters," the Company said. BARCLAYS: Settles Foreign-Exchange Rigging Class Action for $1.2BB ------------------------------------------------------------------ Nick Goodway, writing for Evening Standard, reports that three British banks, Goldman Sachs and BNP Paribas have agreed to pay a total of $1.2 billion (GBP780 million) in a class action settlement in the United States over foreign-exchange rigging. The case could pave the way for a swathe of similar class actions in London, Europe and further cases in the US. The American settlements, which need final approval from a federal court, were a result of the class action brought by US law firm Scott & Scott on behalf of individuals and institutions who bought foreign currencies and forex derivatives from the banks. The agreed payouts were $384 million from Barclays, $285 million from HSBC, $255 million from Royal Bank of Scotland, $135 million from Goldman Sachs and $115 million from BNP Paribas. Scott & Scott, which acted for victims of the BP Gulf of Mexico oil spill, is hoping to get the go-ahead for a class action in the High Court in London by the end of this year or early next. Managing partner, David R Scott, said: "Our work is far from done. Given our in-depth knowledge based on our success against [four other] banks in the US, Scott & Scott is gearing up to bring the action to Europe. "Compensation figures today should serve as an indication of the scale of the potential European action, as the UK forex market is almost double the size of that in the US." As well as achieving significant financial payouts from the banks, the law firm has also won promises from the nine which have settled so far to release extensive details of the forex rigging. That information is able to be used in the UK action. The four banks to have previously settled were Citi -- paying $402 million -- BoA Merrill Lynch on $187 million, UBS with $141 million and JPMorgan at $105 million. The seven banks named in the action which have not yet settled are Deutsche Bank, Credit Suisse, Morgan Stanley, Bank of Tokyo- Mitsubishi, RBC Capital Markets, Societe Generale and Standard Chartered. CALIBER HOME: Objector Must Post $38,000 Appeals Bond ----------------------------------------------------- New Jersey District Judge Stanley R. Chesler directed Karolyn E. Denson, the sole objector to the settlement approved by the Court in the class action against Caliber Home Loans, Inc.; U.S. Bank Trust, N.A., among others, to post an appeals bond in the amount of $38,750 to ensure payment of costs on appeal. The case is, LUTHER B. MANUEL JR. and GERTRUDE MANUEL, on behalf of themselves and the class members described herein, Plaintiff, v. CALIBER HOME LOANS, INC.; U.S. BANK TRUST, N.A., as Trustee of LSF8 MASTER PARTICIPATION TRUST; WELLS FARGO DELAWARE TRUST COMPANY, N.A., as Trustee for VERICREST OPPORTUNITY LOAN TRUST 2013 NPL2 and VERICREST OPPORTUNITY LOAN TRUST 2014 NPL2; and DOES 1-25, Defendants, CIVIL ACTION NO. 14-5233 (SRC)(D.N.J.). Plaintiffs argue that a bond is warranted because the appeal is frivolous, there is a risk of nonpayment because the Objector resides outside of the court's jurisdiction, the objection was filed in bad faith, and the Objector would have no financial difficulty posting the bond. A copy of the Court's October 21, 2015 Opinion and Order is available at http://is.gd/vOpXIbfrom Leagle.com. KAROLYN DENSON, Objector, represented by ELIZABETH USINGER, CULLEN AND DYKMAN LLP & JOCELYN ELIZABETH LUPETIN, CULLEN & DYKMAN LLP. LUTHER B. MANUEL, JR., Plaintiff, represented by ANDREW T. THOMASSON, SternThomasson LLP & PHILIP D. STERN, STERN THOMASSON LLP. GERTRUDE MANUEL, Plaintiff, represented by ANDREW T. THOMASSON, SternThomasson LLP & PHILIP D. STERN, STERN THOMASSON LLP. CALIBER HOME LOANS, INC., Defendant, represented by JOSEPH NICHOLAS FROEHLICH, LOCKE, LORD, LLP. CAMERON MUTUAL: Settlement in "Adams" Wins Final Approval --------------------------------------------------------- Chief District Judge P.K. Holmes, III granted Plaintiffs' motion for final approval of a stipulation of settlement in the case captioned MARK ADAMS and KATHY ADAMS, Individually and on behalf of others similarly situated, Plaintiffs, v. CAMERON MUTUAL INSURANCE COMPANY, Defendant, No.: 2:12-CV-2173-PKH, (W.D. Ark.) Plaintiffs alleges that Cameron Mutual Insurance Company violated applicable law and breached its contracts with insureds by wrongfully depreciating the cost of labor when resolving structural claims in the State of Arkansas. Cameron has maintained throughout this Litigation that they have at all times paid claims when reasonable and appropriate to do so and have consistently acted in accordance with the governing laws and regulations of Arkansas and each State in which they do business. After litigation between the parties and arm's-length negotiations between Class Counsel and counsel for Cameron, the parties reached a settlement that provides substantial benefits to a Settlement Class, in return for a release and dismissal of claims against Cameron. In his Final Order and Judgment dated August 27, 2015 available at http://is.gd/nyLA3Xfrom Leagle.com, Judge Holmes, III granted the motion for final approval settlement, certifying class for settlement purposes, awarding class counsel attorneys' fees, awarding class representatives participation fees and dismissing action with prejudice. The Settlement provides substantial monetary benefits to Class Members. The maximum monetary liability of Cameron for settlement payments to Class Members, attorneys' fees, costs, and expenses of the Litigation, and Court-approved participation awards to the Class Representatives is $1,357,480.56. In addition, Cameron agreed to fund the costs of claims notice and administration. The Court said the payment procedure established under the Stipulation is uniform and fair, and provides Class Members with the opportunity to receive settlement payments as described in the Stipulation. The Court concluded that, for settlement purposes only, the Settlement Class meets all the requirements of FED. R. CIV. P. 23, due process and all other applicable rules and law and can therefore be certified as a settlement class. Class Members are ascertainable and too numerous to be joined, and questions of law and fact are common to all Settlement Class Members, as required by Rule 23(a)(1) and (2). The Class Representatives' claims are typical of those of the Settlement Class, as required by Rule 23(a)(3). The Class Representatives and Class Counsel have fairly and adequately represented and protected the interests of the Settlement Class for the purposes of entering into and implementing the Proposed Settlement, as required by Rule 23(a)(4). The Court also said Class Counsel's requests for $332,081.00 in attorneys' fees and expenses and Class Representatives' participation fee of $5,000.00 to each Class Representative, to be paid by Cameron, are fair, reasonable and adequate. Stevan Earl Vowell, Esq. -- svowell@taylorlawpartners.com -- W H Taylor, Esq. -- whtaylor@taylorlawpartners.com -- William B. Putman, Esq. -- wbputman@taylorlawpartners.com -- and Timothy J Myers, Esq. -- tmyers@taylorlawpartners.com -- of Taylor Law Firm -- Jason Earnest Roselius, Esq., of The Roselius Law Firm; R. Martin Weber, Jr., Esq. -- mweber@crowleynorman.com -- and Richard E Norman, Esq. -- rnorman@crowleynorman.com -- of Crowley Norman LLP serve as counsel for Plaintiff Mark Adams Marshall S. Ney, Esq. -- mney@fridayfirm.com -- of Friday, Eldredge & Clark, LLP serves as counsel for Defendant Cameron Mutual Insurance Company CANADA: Labrador Residential Class Action Lawsuit Ongoing --------------------------------------------------------- James McLeod, writing for The Western Star, reports that the Labrador residential schools class-action lawsuit was in court again on Oct. 21, despite the fact that the incoming Liberal government has promised to settle the case out of court. The morning in the courtroom was spent delving into provincial history, with historian Robert Cuff testifying about aboriginal and Labrador issues at the time when the province joined confederation. That history cuts to the core of the problem with the residential schools lawsuit. Because of the fact that the Labrador schools existed before confederation, and complexities of their legal status after the province joined Canada, the federal government doesn't accept responsibility for the abuses that happened to aboriginal students. So now the survivors are suing the government, and it's all gotten complicated. "We chose to sue Canada, Canada chose to sue the province, and the province chose to sue the Grenfell Association," lawyer Ches Crosbie said. "We've always maintained that Canada is the responsible party, based in their fiduciary relationship with aboriginals in the country at large." But unlike in most of Canada, where the federal government settled with survivors and formally apologized back in 2008, here victims are being forced to go to court and recount their stories. Survivors have describe horrifying sexual, physical and emotional abuse in court, as well as recounting suicide attempts, and openly sobbing during testimony. The Truth and Reconciliation Commission on residential schools recommended that the government pursue a settlement in outstanding litigation including the Labrador class-action, but under the Conservative government, nothing happened. "Canada has not yet made any offer of settlement in this case, and one of the problems in the background, perhaps, has been the election period, during which convention would say the government shouldn't be doing a thing such as settling a case like this because it has a policy component to it," Mr. Crosbie said. In an emailed statement Liberal MP Judy Foote reiterated the party's campaign promise to settle the lawsuit. "The Liberal Party is committed to implementing the 94 recommendations of the Truth and Reconciliation Commission, including on working collaboratively with those not included in the Indian Residential Schools Settlement Agreement on unresolved issues," Mr. Foote said. "We believe it is time to act, without delay, to rebuild Canada's relationship with First Nations, Inuit, and M‚tis Peoples based on rights, respect, and cooperation to ensure we create a fair and prosperous shared future." The new government won't really take shape for another two weeks when Trudeau formally becomes prime minister and appoints a cabinet on Nov. 4. Mr. Crosbie said that he hopes something comes soon, but he understands the realities of the situation. "You have to be pragmatic and realize that a new government has many things on its agenda list, and this case may not be right at the very top," he said. "But hopefully they'll get to it, and get to it very soon." The provincial government, which is a party to the lawsuit because they're being sued by the federal government, issued a statement to the Telegram: "We can't comment on this specific case as the matter is still before the courts, generally the province is always amenable to discussing settlements in litigation." More victims will testify about the abuses they encountered at the governmentrun schools. Mr. Crosbie said that the trial can't just be paused because the water on the beans has changed, politically. "A trial like this, of this size and scope, is a bit like an ocean liner," he said. "Once it's launched and sailing along under power, it's very hard to turn it around." CELLADON CORP: Consolidation of 3 Securities Class Actions Seen --------------------------------------------------------------- Celladon Corporation expects a court to consolidate three putative securities class actions against it, and to appoint a lead plaintiff to represent the putative class, the Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 11, 2015, for the quarterly period ended June 30, 2015. In July 2015, following the Company's announcements of the negative CUPID 2 data and the suspension of further research and development activities and the subsequent declines of the price of the Company's common stock, three putative securities class action complaints (captioned Fialkov v. Celladon Corporation, Case No. 15-cv-1458-AJB-DHB, Lorusso v. Celladon Corporation, Case No. 15- cv-1501-L-JLB and Jacobs v. Celladon Corporation, Case No. 15-cv- 1529-AJB-MDD ) were filed in the U.S. District Court for the Southern District of California against the Company and certain of the Company's current and former officers. The complaints generally allege that the defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 by making materially false and misleading statements regarding the clinical trial program for MYDICAR, thereby artificially inflating the price of the Company's common stock. The complaints seek unspecified monetary damages and other relief, including attorneys' fees. The Company expects the court to consolidate the three putative securities class actions and to appoint a lead plaintiff to represent the putative class. The Company then expects the lead plaintiff to file a consolidated complaint. It is possible that additional suits will be filed, or allegations made by stockholders, with respect to these same or other matters and also naming the Company and/or the Company's officers and directors as defendants. The Company believes that it has meritorious defenses and intends to defend these lawsuits vigorously. Due to the early stage of these proceedings, the Company is not able to predict or reasonably estimate the ultimate outcome or possible losses relating to these claims. CF MARTS: Faces Overtime Class Action in Pennsylvania ----------------------------------------------------- Angelino Menconi, writing for PennRecord.com, reports that a Canadensis man is filing a class action lawsuit against his former employer over claims of unpaid overtime. Christopher Iwaskow filed suit against C.F. Marts of Pennsylvania Inc. on Oct. 6 in the U.S. District Court for the Middle District of Pennsylvania, citing violations of the Fair Labor Standards Act and the Pennsylvania Minimum Wage Act for a class period from October 2012 to present day. According to the complaint, C.F. Marts failed to pay overtime hours to several similarly situated hourly employees of their Convenient Food Marts and City Market Cafes. Mr. Iwaskow alleges he has worked weeks in excess of 60 hours without overtime pay in a violation of state and federal law until his employment ended in September. The plaintiff seeks unpaid overtime wages, liquidated damages, attorney fees and costs of litigation. He is represented by Peter Winebrake, R. Andrew Santillo and Mark J. Gottesfeld of Winebrake and Santillo of Dresher. U.S. District Court for the Middle District of Pennsylvania case number 3:15-cv-01934-ARC. CHAPARRAL ENERGY: Defending Naylor Farms Case --------------------------------------------- Chaparral Energy, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 12, 2015, for the quarterly period ended June 30, 2015, that the Company is defending the case, Naylor Farms, Inc., individually and as class representative on behalf of all similarly situated persons v. Chaparral Energy, L.L.C. On June 7, 2011, an alleged class action was filed against us in the United States District Court for the Western District of Oklahoma ("Naylor Farms Case") alleging that we improperly deducted post-production costs from royalties paid to plaintiffs and other royalty interest owners as categorized in the petition from crude oil and natural gas wells located in Oklahoma. The purported class includes non-governmental royalty interest owners in oil and natural gas wells we operate in Oklahoma. The plaintiffs have alleged a number of claims, including breach of contract, fraud, breach of fiduciary duty, unjust enrichment, and other claims and seek termination of leases, recovery of compensatory damages, interest, punitive damages and attorney fees on behalf of the alleged class. We have responded to the Naylor Farms petition, denied the allegations and raised arguments and defenses. Discovery is ongoing and information and documents continue to be exchanged. The class has not been certified, but the motion for class certification is due in the fourth quarter of 2015. We are not currently able to estimate a reasonably possible loss or range of loss or what impact, if any, the Naylor Farms Case will have on our financial condition, results of operations or cash flows due to the preliminary status of the matters, the complexity and number of legal and factual issues presented by the matter and uncertainties with respect to, among other things, the nature of the claims and defenses, the potential size of the class, the scope and types of the properties and agreements involved, and the ultimate potential outcome of the matter. Plaintiffs in the Naylor Farms Case have indicated that, if the class is certified, they seek damages in excess of $5,000 which may increase with the passage of time, a majority of which would be comprised of interest. "We dispute plaintiffs' claims, dispute that the case meets the requirements for a class action and are vigorously defending the case," the Company said. CHAPARRAL ENERGY: Discovery Has Not Yet Commenced in "Dodson" ------------------------------------------------------------- Chaparral Energy, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 12, 2015, for the quarterly period ended June 30, 2015, that a class has not been certified and discovery has not yet commenced in the case, Amanda Dodson, individually and as class representative on behalf of all similarly situated persons v. Chaparral Energy, L.L.C. On May 10, 2013, Amanda Dodson (the "Plaintiff"), filed a complaint against us in the District Court of Mayes County, Oklahoma, ("Dodson Case") with allegation similar to those asserted in the Naylor Farms Case related to post-production deductions, and include clams for breach of contract, fraud, breach of fiduciary duty, unjust enrichment, and other claims and seek termination of leases, recovery of compensatory damages, interest, punitive damages and attorney fees on behalf of the alleged class. The alleged class includes non-governmental royalty interest owners in oil and natural gas wells we operate in Oklahoma. "We have responded to the Plaintiff's petition, denied the allegations and raised a number of affirmative defenses," the Company said. "At this time, a class has not been certified and discovery has not yet commenced. We are not currently able to estimate a reasonable possible loss or range of loss or what impact, if any, the Dodson Case will have on our financial condition, results of operations or cash flows due to the preliminary status of the matter, the complexity and number of legal and factual issues presented by the matter and uncertainties with respect to, among other things, the nature of the claims and defenses, the potential size of the class, the scope and types of the properties and agreements involved, and the ultimate potential outcome of the matter. We dispute Plaintiff's claims, dispute that the case meets the requirements for a class action and are vigorously defending the case." CHAPARRAL ENERGY: Discovery Has Not Yet Commenced in "Donelson" --------------------------------------------------------------- Chaparral Energy, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 12, 2015, for the quarterly period ended June 30, 2015, that a class has not been certified and discovery has not yet commenced in the case, Martha Donelson and John Friend, on behalf of themselves and on behalf of all similarly situated persons v. Chaparral Energy, L.L.C. The Company said, "On August 11, 2014, an alleged class action was filed against us, as well as several other operators in Osage County, in the United States District Court for the Northern District of Oklahoma ("Donelson Case"), alleging claims on behalf of the named plaintiffs and all similarly situated Osage County land owners and surface lessees. The plaintiffs assert claims seeking recovery for trespass, nuisance, negligence and unjust enrichment. Relief sought includes declaring oil and natural gas leases and drilling permits obtained in Osage County without a prior NEPA study void ab initio, removing us from all properties owned by the class members, disgorgement of profits, and compensatory and punitive damages. We have joined in Motions to Dismiss filed by the other defendants." "At this time, a class has not been certified and discovery has yet to begin. We are not currently able to estimate a reasonably possible loss or range of loss or what impact, if any, the Donelson Case will have on our financial condition, results of operations or cash flows due to the preliminary status of the matter, the complexity and number of legal and factual issues presented by the matter and uncertainties with respect to, among other things, the nature of the claims and defenses, the potential size of the class, the scope and types of properties and agreements involved, and the ultimate potential outcome of the matter. We dispute plaintiffs' claims, dispute that the Donelson Case meets the requirements for a class action and are vigorously defending the case." CHEMICAL & MINING: S.D.N.Y. Judge Consolidates Class Suits ---------------------------------------------------------- District Judge Edgardo Ramos granted the motions to consolidate in the case captioned MEGAN VILLELLA, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. CHEMICAL & MINING CO. OF CHILE INC., PATRICIO CONTESSE, PATRICIO DE SOLMINIHAC, and RICARDO RAMOS, Defendants. LYNN MOLINARO, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. CHEMICAL & MINING CO. OF CHILE INC., PATRICIO CONTESSE GONZALEZ, PATRICIO DE SOLMINIHAC, and RICARDO RAMOS, Defendants, Case Nos.: 15 CIV. 2106 (ER), 15 CIV. 2884 (ER), (S.D.N.Y.) In March and April of 2015, two putative class actions were brought under the federal securities laws against Chemical and Mining Company of Chile Inc. (a/k/a Sociedad Quimica y Minera de Chile S.A.) (SQM) and individual SQM executives. The suits allege that SQM, a large producer and distributor of specialty fertilizers and industrial chemicals, made materially false and misleading statements regarding its business and operations. Specifically, the plaintiffs allege that SQM failed to disclose that funds from its operations were illegally channeled to electoral campaigns and political parties in Chile, that such payments were concealed by fictitious tax receipts filed with Chilean authorities, and that SQM lacked the internal controls to properly prevent this illicit conduct. As SQM's alleged misrepresentations were disclosed to the public in the course of a wider investigation of corruption in the Chilean political system, the price of SQM shares dropped precipitously. Six motions to consolidate have been filed from six distinct SQM shareholders or groups of shareholders. The motions all seek consolidation of the two filed suits. Each movant also seeks appointment as lead plaintiff and approval of the movant's selected counsel as lead counsel. The six movants are: (1) Anton Mandelstam; (2) Richard Gielata; (3) Megan Villella, Sam Villella, and Leroy Robinson; (4) Marty Sholtis; (5) The Council of the Borough of South Tyneside Acting in Its Capacity as the Administering Authority of the Tyne and Wear Pension Fund (Tyne and Wear); and (6) the Arkansas Public Employees Retirement System (APERS). In his Opinion and Order dated October 14, 2015 available at http://is.gd/TAmBWTfrom Leagle.com, Judge Ramos granted the motions to consolidate. All future filings in this case shall be filed in the 15 Civ. 2016 case number and bear the same caption as that case number. All related actions subsequently filed in, or transferred to, this District shall be consolidated into the 15 Civ. 2106 case number, absent order of the Court. The Clerk of the Court is respectfully directed to close the 15 Civ. 2884 case and terminate any pending motions in that case. Additionally, Tyne and Wear's motion for appointment as lead plaintiff and approval of lead counsel is granted. All other movants' motions for appointment as lead plaintiff and approval of lead counsel are denied. The Villella and Molinaro complaints include near-identical allegations about the critical events of February and March 2015. Both complaints recite similar or identical statements from SQM's SEC disclosures and conclude that the statements were materially false and/or misleading for the same reasons -- namely, that the statements failed to disclose that SQM funds were being channeled to Chilean politicians and political parties, that these bribery payments were covered up by fictitious tax filings, and that SQM lacked adequate internal controls over financial reporting. Accordingly, the Court consolidates the Villella and Molinaro Actions. All future filings in this case shall be filed in the 15 Civ. 2016 case number and bear the same caption as that case number. The Molinaro Action, 15 Civ. 2884, shall be closed. Jeremy Alan Lieberman, Esq. -- jalieberman@pomlaw.com -- and Patrick Vincent Dahlstrom, Esq. -- pdahlstrom@pomlaw.com -- of Pomerantz LLP and Jason Allen Zweig, Esq. -- jasonz@hbsslaw.com -- of Hagens Berman Sobol Shapiro LLP serve as counsel for Plaintiff Megan Villella, on behalf of all others similarly situated Grant Richard Mainland, Esq. -- gmainland@milbank.com -- of Wachtell, Lipton, Rosen & Katz and Scott Alexander Edelman, Esq. -- sedelman@milbank.com -- of Milbank, Tweed, Hadley & McCloy LLP serve as counsel for Defendant Chemical & Mining Co. of Chile Inc. CHIPOTLE MEXICAN: Hearing on Motion to Dismiss Moved to Jan. 14 --------------------------------------------------------------- The hearing dates on the motion to dismiss a class action against Chipotle Mexican Grill, Inc., as well as the case management conference set in that case have been rescheduled to be heard concurrently on Thursday, January 14, 2016. The case is, COLLEEN GALLAGHER, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. CHIPOTLE MEXICAN GRILL, INC., a Delaware Corporation, Defendant, CASE NO. 3:15-CV-03952- HSG (N.D. Cal.) A copy of the Stipulation signed by District Judge Haywood S. Gilliam, Jr., on October 22, 2015, is available at http://is.gd/EVhfwbfrom Leagle.com. Colleen Gallagher filed her Complaint against Chipotle Mexican Grill on August 28, 2015. The Court initially set the Case Management Conference for this matter for December 8, 2015. The Defendant filed its Motion to Dismiss on September 21, 2015, and set a date for the hearing on its motion for October 29. Plaintiff's attorneys have a conflict on the Hearing Date and have sought Defendant's concurrence to reschedule the Hearing Date. Defendant's attorneys do not oppose rescheduling the Hearing Date to accommodate Plaintiff's attorneys so long as Defendant has the opportunity to be heard on its motion. The parties conferred on a mutually available Hearing Date; Laurence D. King, Linda M. Fong, Matthew B. George, Mario M. Choi, KAPLAN FOX & KILSHEIMER LLP, San Francisco, CA; and Frederic S. Fox, (pro hac vice) Donald R. Hall, (pro hac vice) KAPLAN FOX & KILSHEIMER LLP, New York, NY. Attorneys for Plaintiff COLLEEN GALLAGHER Charles C. Cavanagh, Allison Dodd, (pro hac vice) MESSNER REEVES LLP, Denver, CO; Sascha Henry, SHEPPARD, MULLIN, RICHTER & HAMPTON, LLP, Los Angeles, CA, Attorneys for Defendant CHIPOTLE MEXICAN GRILL, INC. CONOCOPHILLIPS PIPE: 8th Cir. Decertifies Environmental Suit ------------------------------------------------------------ Jessica Karmasek, writing for Legal Newsline, reports that a federal appellate court recently decertified an environmental nuisance class action that alleged a "fear of contamination," without much more. Last month, a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit, after granting a petition for review, reversed a district court's certification of the class. Circuit judges Diana Murphy and Bobby Shepherd, along with Judge Douglas Harpool for the U.S. District Court for the Western District of Missouri, sitting by designation, sided with defendant ConocoPhillips Pipe Line Company in their Sept. 15 opinion. Phillips 66 owns a petroleum products pipeline that runs through the town of West Alton, Missouri. After a leak in the line was discovered in 1963, its source was repaired, but the contamination at the leak site was not remediated. In 2002, contaminants from the leak were discovered in a family residence in West Alton. Phillips purchased and demolished this property as well as others affected by the leak. In cooperation with the Missouri Department of Natural Resources, Phillips fenced in the area around the leak site and set up monitoring wells to track any spread of pollutants. While groundwater under the property owned by Phillips is contaminated, the surrounding properties have tested clean. In 2011, a class action was filed on behalf of a putative class of nearby landowners who allege the contaminated site is a nuisance. The U.S. District Court for the Eastern District of Missouri, in St. Louis, certified the class on the theory that possible pockets of contamination exist within the identified area. In particular, the district court granted certification to those property owners within 0.25 miles of the contaminated site. Phillips appealed, and the Eighth Circuit reversed. In its 11-page opinion, the appellate court explained that the landowners lacked evidence that their properties, in particular, had been contaminated. Therefore, they failed to demonstrate a common injury, the court ruled. "The presence on only one property of a petroleum pollutant not found at the leak site cannot prove that actual contamination exists on the class land," the judges wrote. "Plaintiffs nevertheless argue that their nuisance claim does not depend on a showing of actual physical invasion, for the presence of contaminants on one class site creates a 'cloud on the class' land' and diminishes its property value." The panel said without evidence of contamination, "the putative class fear of contamination spreading from the West Alton leak site to harm their property is not a sufficient injury to support a claim for common law nuisance in the absence of proof." The Eighth Circuit pointed out in its ruling that "a number of other courts" have addressed a similar, "significant" question of whether nuisance law requires a physical invasion onto property. The U.S. Court of Appeals for the Fourth Circuit took up the issue in Adams v. Star Enterprise. In the 1995 ruling, the Fourth Circuit, in applying Virginia's nuisance law, questioned whether property owners may recover for the diminution in the value of their property and their "reasonable fear of negative health effects" resulting from the proximity of their property to an environmental hazard such as an underground oil spill. In Adams, the Fourth Circuit decided concerns that environmental contamination might spread and cause property values to decrease were not enough to overcome the legal requirement that a nuisance be visible or "capable of physical detection from the plaintiff's property." Similarly, in Berry v. Armstrong Rubber Co., a 1993 case involving dumping of manufacturing waste materials, the U.S. Court of Appeals for the Fifth Circuit concluded in applying Mississippi law that the evidence "failed to show harmful levels of any toxic or hazardous substance in the [plaintiff's] well water." The plaintiffs in Berry simply could not show any invasion of their property entitling them to recovery on their nuisance claim, the Fifth Circuit ruled. "Plaintiffs respond that the governing Missouri law does not require a showing of physical invasion in order to state a claim for common law nuisance," the Eighth Circuit noted in the Phillips opinion. "While these plaintiffs are concerned about the possibility of contamination reaching their properties and harming them, the discovery and testing which has been conducted in the class area has not shown those fears to be substantiated." The panel remanded the case to the district court for further proceedings. John E. Campbell of St. Louis law firm Campbell Law LLC, who represents the plaintiffs in the case, said on Oct. 22 they are proceeding in the district court. "We are disappointed that we can't represent all the people impacted by the contamination site," he said in an email, explaining they will not appeal the ruling. "We respectfully disagree with the holding, but don't believe further appeal is the best course," he said. "Instead, we are turning our attention to showing the court how the site harms our individual clients." Attorney for the defendants, John M. Reynolds of firm Tueth Keeney, could not immediately be reached for comment. But a spokesman for Phillips said on Oct. 22 that the company, as a matter of practice, "does not provide specifics related to legal matters." Meanwhile, Mayer Brown partners Mark R. Ter Molen -- mtermolen@mayerbrown.com -- and Evan M. Tager -- etager@mayerbrown.com -- and associate Sarah E. Reynolds -- sreynolds@mayerbrown.com -- noted in a publication on the firm's website that the Eighth Circuit's decision could prove impactful. The attorneys explained that the ruling "should be useful" in limiting the number of potential plaintiffs in environmental litigation. "Indeed, given the strong line of authority to which it adds, it may deter the filing of 'fear of contamination' claims at the outset," they wrote. DAIRYAMERICA INC: Nov. 16 Hearing on Bid to Amend "Carlin" Suit --------------------------------------------------------------- Senior District Judge Anthony W. Ishii gave his stamp of approval on a Fourth Stipulation to amend the scheduling order in the case, GERALD CARLIN, JOHN RAHM, PAUL ROZWADOWSKI and DIANA WOLFE, individually and on behalf of themselves and all others similarly situated, Plaintiffs, v. DAIRYAMERICA, INC. and CALIFORNIA DAIRIES, INC., Defendants, CASE NO. 1:09 CV 00430-AWI EPG (E.D. Cal.). The terms of the Fourth Stipulation are: 1. Subject to court approval, the briefing schedule regarding Plaintiffs' motion for leave to amend the complaint should now be as follows: October 23, 2015: Last day for Defendants to file opposition to Plaintiffs' motion for leave to amend the complaint. November 6, 2015: Last day for Plaintiffs to file reply brief in support of their motion for leave to amend the complaint. November 16, 2015, at 1:30 PM, Courtroom 2: Hearing on motion for leave to amend the complaint. 2. Subject to court approval, the page limits for the briefs in response to Plaintiffs' motion for leave to amend the complaint, should now be as follows: Opposition Brief: The opposition brief may be up to, but will not exceed, 35 pages in length. Reply Brief: The reply brief may be up to, but will not exceed, 20 pages in length. 3. Subject to court approval, the pre-certification case schedule should now be as follows: December 14, 2015: Close of class certification discovery. February 9, 2016: Last day for Plaintiffs to file motion for class certification (and any accompanying expert disclosures, reliance materials, and data sets). April 22, 2016: Last day for Defendants to file opposition to Plaintiffs' motion for class certification. May 20, 2016: Last day for Plaintiffs to file reply brief in support of motion for class certification. July 8, 2016, at 10:00 AM, Courtroom 10: Hearing on motion for class certification. A copy of the Court's October 21, 2015 order is available at http://is.gd/aPCZv6from Leagle.com. ECOLAB INC: Wins Summary Judgment in "Charlot" Case --------------------------------------------------- District Judge Kiyo A. Matsumoto of the United States District Court for Eastern District of New York granted defendant's motion for summary judgment and denied plaintiffs' cross-motion for partial summary judgment in the case captioned, ANTHONY CHARLOT, ALAN REMACHE and JOSE TEJADA, individually and on behalf of all others similarly situated, Plaintiffs, v. ECOLAB, INC., Defendant, Case No. 12 CIV 4543 (KAM)(VMS). The named plaintiffs bring an individual, collective, and class action against Ecolab, Inc. for alleged violations of the Fair Labor Standards Act; the New York Labor Law and its supporting regulations; the New Jersey Wage-and-Hour Laws, its supporting regulations and the New Jersey Wage Payment Law; the Pennsylvania Minimum Wage Act and the Pennsylvania Wage Payment and Collection Law; the Illinois Minimum Wage Law, the Illinois Wage Payments and Collections Act and their implementing regulations; the Washington Minimum Wage Act, the Washington Industrial Welfare Act, and the Washington Wage Rebate Act, and Washington Administrative Code; and the North Carolina Wage and Hour Act and implementing regulations. Plaintiffs alleged that Ecolab failed to pay its Route Managers, Route Sales Managers, and Service Sales Route Managers overtime for hours worked over forty hours per week in violation of the FLSA and pertinent state overtime and wage laws. On April 6, 2015, plaintiffs filed an amended complaint to add four additional named plaintiffs and their respective state class claims. Parties filed cross-motions for summary judgment on whether plaintiffs, as Route Managers, Route Sales Managers, or Service Sales Route Managers for defendant-employer Ecolab, were (1) exempt employees under the FLSA as either: "outside salesmen,"; or (2) "commissioned salespersons," who have been properly compensated under the FLSA. Defendant contends that plaintiffs, who worked as Route Sales Managers and Sales and Service Route Managers for Ecolab during the relevant time periods, were paid in compliance with the FLSA because they are "commissioned salespersons" pursuant to 29 U.S.C. Section 207(i) or, alternatively, are exempt from the FLSA overtime provisions because they each qualify as an "outside salesman" pursuant to 29 U.S.C. section 213(a)(1). Plaintiffs argue that neither provision of the FLSA applies, and that defendant failed to properly compensate plaintiffs for overtime work under the FLSA. In his Memorandum & Order dated September 30, 2015 available at http://is.gd/ZP0dFcfrom Leagle.com, Judge Matsumoto granted Defendant's motion for summary judgment on the ground that plaintiffs are commissioned salespersons under 29 U.S.C. Section 207. Plaintiff has failed to provide any evidence in the form of sworn testimony or otherwise to raise a factual dispute as to defendant's showing that Ecolab is recognized as retail in the industry. The parties were ordered to submit a joint status letter in writing to how they intend to proceed. Plaintiffs are represented by: Artemio Guerra, Esq. Michael J.D. Sweeney, Esq. GETMAN & SWEENEY, PLLC 228 West 137th Street New York, NY 10030 Tel: (212)234-4443 Molly A. Brooks, Esq. -- mb@outtengolden.com, Justin Mitchell Swartz, Esq. -- jms@outtengolden.com & Sally J. Abrahamson, Esq. - - sa@outtengolden.com -- OUTTEN & GOLDEN LLP Ecolab, Inc. is represented by Andrew J. Voss, Esq. -- avoss@littler.com, Shirley Lerner, Esq. -- slerner@littler.com, Susan K. Fitzke, Esq. -- sfitzkie@littler.com, Amy S. Ramsey, Esq. -- aramsey@littler.com, Angela I. Rochester, Esq. -- arochester@littler.com, John H. Lassetter, Esq. -- jlassetter@littler.com & John A. Ybarra, Esq. -- jybarra@littler.com -- LITTLER MENDELSON, P.C., Jeffrey W. Brecher, Esq. -- BrecherJ@jacksonlewis.com & Noel P. Tripp, Esq. - - TrippN@jacksonlewis.com -- JACKSON LEWIS LLP EDUCATION MANAGEMENT: Feb. 17 Settlement Fairness Hearing Set ------------------------------------------------------------- The following statement is being issued by Pomerantz LLP in regards to a proposed class action settlement. UNITED STATES DISTRICT COURT WESTERN DISTRICT OF PENNSYLVANIA BRIAN H. ROBB, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. EDUCATION MANAGEMENT CORPORATION, EDWARD H. WEST, RANDALL J. KILLEEN, and MICK J. BEEKHUIZEN, Defendants. Case No. 2:14-cv-01287-DSC IF YOU PURCHASED OR OTHERWISE ACQUIRED COMMON STOCK OF EDUCATION MANAGEMENT CORPORATION ("EDMC") BETWEEN JULY 1, 2011 AND SEPTEMBER 16, 2014, INCLUSIVE, AND INCURRED DAMAGES, YOU COULD RECEIVE A PAYMENT FROM A CLASS ACTION SETTLEMENT. YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure that a hearing will be held on February 17, 2016, at 11:00 a.m., before the Honorable David Stewart Cercone, United States District Judge, at the Courthouse for the United States District Court, Western District of Pennsylvania, 501 Grant Street, Pittsburgh, Pennsylvania 15219, Courtroom 7A, for the purpose of determining, among other things, whether the following matters should be approved: (1) the proposed Settlement of the Class claims against the Defendants for $2,500,000.00; (2) the Plan of Allocation of the Settlement Fund; (3) Lead Counsel's request for fees and expenses; (4) Lead Plaintiff's request for Compensatory Award; and (5) dismissals with prejudice of claims against Defendants. If you purchased or otherwise acquired EDMC common stock during the Class Period your rights may be affected. If you have not received the detailed Notice of Proposed Settlement of Class Action and related matters (the "Notice") and Proof of Claim and Release Form, you may obtain them free of charge by contacting the Claims Administrator, by mail at: Education Management Securities Litigation, Claims Administrator, PO Box 4098, Portland, OR 97208- 4098, or at the following website: www.educationmanagementsecuritieslitigation.com If you are a member of the Class and wish to share in the Settlement proceeds, you must submit a Proof of Claim no later than March 18, 2016 establishing that you are entitled to recovery. As further described in the Notice, you will be bound by any Judgment entered in the Action, regardless of whether you submit a Proof of Claim, unless you exclude yourself from the Class, in accordance with the procedures set forth in the Notice, by no later than December 14, 2015. Any objections to the Settlement, Plan of Allocation, attorneys' fees and expenses, or Lead Plaintiff's compensatory award must be filed and served, in accordance with the procedures set forth in the Notice, no later than January 28, 2015. Inquiries, other than requests for the Notice, may be made to Lead Counsel for the Class: Michele S. Carino, Esq, Pomerantz LLP, 600 Third Avenue, New York, NY 10016, Telephone: 212-661-1100, Toll- free: 888-476-6529. INQUIRIES SHOULD NOT BE DIRECTED TO THE COURT, THE CLERK'S OFFICE, THE DEFENDANTS, OR DEFENDANTS' COUNSEL DATED: October 1, 2015 BY ORDER OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA EDUCATION MANAGEMENT: Robb Says Settlement Not Enough Restitution ----------------------------------------------------------------- Justine Coyne, writing for Pittsburgh Business Times, reports that a hearing has been scheduled in Pittsburgh to determine if a $2.5 million class action settlement reached between Education Management Corp. and shareholders will be approved. On Feb. 17, Judge David Stewart Cercone will determine among other things whether the proposed settlement should be approved and if claims against EDMC will be dismissed with prejudice. According to documents filed Sept. 18 in the U.S. District Court for the Western District of Pennsylvania, $250,000 will be set aside to administer the payments and up to one-third of the $2.5 million will be used to cover attorney fees and court costs. The remainder will be divided among shareholders who can prove they owed EDMC shares between July 1, 2011, and Sept. 16, 2014. The lawsuit, which was brought against the company in 2014, alleges EDMC falsely represented that the company changed its marketing and recruiting practices to comply with newly enacted regulations from the U.S. Department of Education. Specifically, the complaint alleges EDMC and its senior officers made false or misleading statements regarding the company's job placement rates, recruiting and enrollment practices, and failed to disclose it was at risk of losing federal funding under Title IV. Brian Robb, the shareholder that brought the lawsuit against EDMC, said he expects the settlement to be approved, but he doesn't believe $2.5 million is enough restitution. "Hopefully this will set a precedence for schools across America," Mr. Robb said. "Not just EDMC, but all schools need to change and live up to their marking promises." Through the settlement EDMC will be released of all claims related to securities fraud. The company has denied and continues to deny they engaged in any wrongdoing, according to the settlement. EDMC has been working to settle a number of lawsuits filed against the company. In September, chairman and newly appointed CEO Mark McEachen said in an interview with the Business Times that his first priority after taking over operations Sept. 28 is resolving the company's ongoing legal issues. EDMC is close to settling an $11 billion federal lawsuit, officials said at an Oct. 15 status conference. A spokesman for the company said it continues to work to resolve its outstanding litigation. He declined further comment. EL POLLO: Rosen Law Firm Files Securities Class Action ------------------------------------------------------ Rosen Law Firm, a global investor rights law firm, on Oct. 22 disclosed that it has filed a class action lawsuit on behalf of all purchasers of the common stock and call options and sellers of put options of El Pollo Loco Holdings, Inc. securities from May 15, 2015 through August 13, 2015. The lawsuit seeks to recover damages for El Pollo Loco investors under the federal securities laws. To join the El Pollo Loco class action, go to the firm's website at http://www.rosenlegal.com/cases-706.htmlor call Phillip Kim, Esq. or Kevin Chan, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or kchan@rosenlegal.com for information on the class action. The lawsuit is pending in the U.S. District Court for the Central District of California. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. According to the lawsuit, Defendants made false and/or misleading statements and/or failed to disclose adverse information about El Pollo Loco's business and prospects, including that traffic at El Pollo Loco stores had declined substantially due to the removal of value items from the restaurants' menu boards, and that consequently, comparable store sales were not increasing at 3%, much less the 3% to 5% the defendants had led investors to believe they would grow in the second quarter of 2015. On August 13, 2015, El Pollo issued a press release revealing its second quarter 2015 results, disclosing that system-wide comparable restaurant sales had grown only 1.3% and reporting sales of just $89.5 million. Shares fell from a close of $18.36 per share on August 13, 2015, to a close of just $14.56 the following day. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than October 23, 2015. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation go to the firm's website at http://www.rosenlegal.com/cases-706.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim, Esq. or Kevin Chan, Esq. of Rosen Law Firm toll-free at 866-767-3653 or via e-mail at pkim@rosenlegal.com or kchan@rosenlegal.com Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. ELECTRONIC ARTS: To Seek Further Court Review in "Davis" Case ------------------------------------------------------------- Electronic Arts Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 11, 2015, for the quarterly period ended June 30, 2015, that the Company intends to seek further court review in the case filed by Michael Davis. On July 29, 2010, Michael Davis, a former NFL running back, filed a putative class action in the United States District Court for the Northern District of California against the Company, alleging that certain past versions of Madden NFL included the images of certain retired NFL players without their permission. In March 2012, the trial court denied the Company's request to dismiss the complaint on First Amendment grounds. In January 2015, that trial court decision was affirmed by the Ninth Circuit Court of Appeals and the case was remanded back to the district court. The Company intends to seek further court review. ELECTRONIC ARTS: Court Granted Bid to Dismiss Shareholder Action ---------------------------------------------------------------- Electronic Arts Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 11, 2015, for the quarterly period ended June 30, 2015, that the court granted the Company's motion to dismiss with prejudice in a shareholder class action. On December 17, 2013, a purported shareholder class action lawsuit was filed in the United States District Court for the Northern District of California against the Company and certain of its officers by an individual purporting to represent a class of purchasers of EA common stock. A second purported shareholder class action lawsuit alleging substantially similar claims was subsequently filed in the same court. These lawsuits were consolidated into one action. The lawsuits, which assert claims under Section 10(b) and 20(a) of the Securities Exchange Act of 1934, alleged, among other things, that the Company and certain of its officers issued materially false and misleading statements regarding the rollout of the Company's Battlefield 4 game. "We filed a motion seeking dismissal of all claims on January 15, 2015 and on April 30, 2015, the court granted our motion to dismiss with prejudice," the Company said. ENOVA INTERNATIONAL: "Kristensen" Suit in Nevada Still Open ----------------------------------------------------------- Enova International, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 11, 2015, for the quarterly period ended June 30, 2015, that the Company intends to vigorously defend this lawsuit filed by Flemming Kristensen. On March 8, 2013, Flemming Kristensen, on behalf of himself and others similarly situated, filed a purported class action lawsuit in the U.S. District Court of Nevada against the Company and other unaffiliated lenders and lead providers. The lawsuit alleges that the lead provider defendants sent unauthorized text messages to consumers on behalf of the Company and the other lender defendants in violation of the Telephone Consumer Protection Act. The complaint seeks class certification, statutory damages, an injunction against "wireless spam activities," and attorneys' fees and costs. The Company filed an answer to the complaint denying all liability. On March 26, 2014, the Court granted class certification. On October 24, 2014, the Company filed a motion for summary judgment, and the court has not yet ruled on this motion. On January 27, 2015, the plaintiff filed a motion for summary judgment against all of the defendants. On July 20, 2015, the court granted Enova's motion, denied Plaintiff's motion and entered judgment in favor of the Company. Plaintiff may seek reconsideration of or appeal the judgment. EPIRUS BIOPHARMACEUTICALS: Agreed-to $400 Fee and Expense Paid -------------------------------------------------------------- Epirus Biopharmaceuticals, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 12, 2015, for the quarterly period ended June 30, 2015, that the agreed-to $400 fee and expense amount in the Zalicus Shareholder Litigation has been paid. Between April 28, 2014 and May 2, 2014, three putative class action lawsuits were filed by purported stockholders of Zalicus in the Business Litigation Session of the Massachusetts Superior Court, Suffolk County (the "Massachusetts Court"), against Zalicus, EB Sub, Inc. the members of Zalicus' board of directors and Private Epirus. Plaintiff has since voluntarily dismissed one of these actions, Civil A. No. 14-1380. The remaining two actions, Civ. A. No. 14-1381 and Civ. A. No. 14-1455, were consolidated into a single action, In re Zalicus Shareholder Litigation, Lead Civ. A. No. 14-1381 (the "Massachusetts Action"). The Massachusetts Action alleged that the Zalicus board of directors breached its fiduciary duties, and that Private Epirus and EB Sub, Inc. aided and abetted the purported breaches, in connection with the proposed Merger. The Massachusetts Action sought relief including, among other things, a declaration that the Merger Agreement was entered into in breach of fiduciary duties and is unlawful and unenforceable, an order enjoining defendants from proceeding with the Merger, an order enjoining defendants from consummating the Merger unless and until additional procedures are implemented and all material information in connection with the proposed Merger is disclosed, rescission of the Merger or any terms thereof to the extent implemented (or an award of rescissory damages), compensatory damages and interest, and an award of all costs of the Massachusetts Action, including reasonable attorneys' fees and experts' fees. Between May 1, and May 16, 2014, three putative class action lawsuits were filed by purported stockholders of Zalicus in the Court of Chancery of the State of Delaware (the "Delaware Court") against Zalicus, Zalicus' directors, Private Epirus and/or EB Sub, Inc., Stein v. Zalicus Inc., et al., No. 9602; Do v. Zalicus, Inc., et al., No. 9636; and Mendlowitz, et al. v. Zalicus Inc., et al., No. 9664 (the "Consolidated Action"). On May 23, 2014, plaintiff Harvey Stein filed a verified amended complaint, and on May 27, 2014, plaintiff Tuan Do filed a verified amended complaint. The Consolidated Action alleged that the Zalicus board of directors breached their fiduciary duties, and Private Epirus and/or EB Sub, Inc. aided and abetted the purported breaches, in connection with the proposed Merger. The Consolidated Action sought relief including, among other things, to preliminarily and permanently enjoin the proposed Merger, to enjoin consummation of the proposed Merger and rescind the Merger if consummated (or to award rescissory damages), an award of compensatory damages, and an award of all costs of the Consolidated Action, including reasonable attorneys' fees and experts' fees. On June 6, 2014, plaintiffs' counsel in the Consolidated Action filed a motion seeking to schedule a preliminary injunction hearing in advance of the stockholder vote on the proposed Merger, and seeking expedited discovery in advance of that hearing. Zalicus, Private Epirus, and the individual defendants opposed the motion. After a hearing, on June 13, 2014, the Delaware Court denied plaintiffs' motion. On October 27, 2014, plaintiffs' counsel in the Massachusetts Action served the Company with a motion for voluntary dismissal and an award of attorney's fees. The motion alleged, as set forth in the consolidated amended complaint filed in the Massachusetts Action on May 21, 2014, that the Form S-4 Registration Statement filed with the SEC on May 8, 2014 contained numerous material misstatements and/or omissions that prevented the Company's shareholders from being able to evaluate the reasonableness of the Merger. The motion further alleged that in the Amended Registration Statement filed on June 4, 2014, the Company supplemented the disclosures and addressed the allegedly material misstatements and omissions contained in the initial Registration Statement, and that the Company did so in response to the claims made in the Massachusetts Action. On November 6, 2014, with the Massachusetts Court's entry of a judgment of dismissal, the Massachusetts Action was closed. On November 10, 2014, the parties in the Consolidated Action submitted a stipulation and proposed order to dismiss the Consolidated Action and to set a schedule for plaintiffs' counsel's anticipated application for an award of attorney's fees and expenses. On November 12, 2014, the Delaware Court entered an order dismissing the Consolidated Action without prejudice. The Delaware Court retained jurisdiction solely for the purpose of determining plaintiffs' anticipated application for an award of attorneys' fees and reimbursement of expenses. After the Consolidated Action was dismissed, the parties commenced and engaged in discussions to resolve the amount of plaintiffs' counsel's application for fees and expenses. After negotiations, the parties agreed that the Company would make a combined, global fee and expense payment to counsel in both the Consolidated Action and the Massachusetts Action in the amount of $400, of which $50 would be paid by the Company's insurer, in full satisfaction of plaintiffs' counsel's claim for attorneys' fees and expenses in the Consolidated Action and the Massachusetts Action, which the parties memorialized in a stipulation dated January 13, 2015. As a result of the order, the Company recorded $350 in general and administrative expense in its Consolidated Statement of Operations for the year ended December 31, 2014. The parties requested that the Delaware Court close the Consolidated Action as a result of the stipulation. The Delaware Court directed that notice of the resolution of plaintiffs' counsel's request for attorneys' fees and expenses be provided to shareholders. The parties have since issued notice to shareholders (including via the Company's filing on its Current Report on March 13, 2015). After expiration of the requisite notice waiting period, the parties submitted to the Delaware Court a proposed order verifying that notice has been provided and providing for the final dismissal and closure of the case. On April 15, 2015, the Delaware Court accepted the order and closed and dismissed the Consolidated Action. The agreed-to $400 fee and expense amount was paid on April 22, 2015, which is within ten days of the final dismissal and closure of the Consolidated Action. EQUIFAX INC: Dismissal Bids in "Jones" Case Denied -------------------------------------------------- District Judge M. Hannah Lauck denied the Defendants' motion to dismiss in the case captioned CHAUNA JONESY f/k/a CHAUNA CRAWLEY and TYRONE HENDERSON, on behalf of themselves and all other similarly situated individuals, Plaintiffs, v. EQUIFAX, INC., in its own name and t/a EQUIFAX WORKFORCE SOLUTIONS a/k/a TALX CORPORATION and EQUIFAX INFORMATION SERVICES, LLC, Defendants, Civil Action No. 3:14CV678, (E.D. Va.) Plaintiffs bring this purported class action against Defendants alleging two Fair Credit Reporting Act (FCRA) violations. In Count I, a class claim, Plaintiffs allege that Defendants, operating collectively and jointly as a national "consumer reporting agency" (CRA) as defined in 15 U.S.C. Section 1681a(f),6 violated 15 U.S.C. Section 1681g(a)7 by not providing Plaintiffs with their full file at the time of their requests. Specifically, Plaintiffs aver that Defendants were required to include the information held about Plaintiffs in the Work Number Database upon Plaintiffs' request for their files. In Count II, Plaintiff Henderson individually alleges that EIS violated 15 U.S.C. Section 1681e(b) by not following "reasonable procedures to assure maximum possible accuracy of the credit reports and credit files it published and maintained concerning" Henderson. Defendants filed their Motion to Dismiss. In her Memorandum Opinion dated August 27, 2015 available at http://is.gd/aoWBZufrom Leagle.com, Judge Lauck denied Defendants' motion to dismiss. Plaintiffs, the Court said, sufficiently stated a claim for liability under FCRA because they plausibly allege that all Defendants operate collectively as a CRA. A consumer reporting agency is "any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties." Plaintiffs adequately asserted that Defendants assemble and evaluate information on consumers, by pointing to Defendants' own website that states that "Equifax organizes and assimilates data on more than 500 million consumers . . . worldwide." Plaintiffs averred that Defendants engage in such activities for the purpose of furnishing consumer reports to specific third parties, such as employers, consumer finance providers, and mortgage companies. Finally, Plaintiffs plausibly alleged that the Defendants do so collectively. Casey Shannon Nash, Esq. -- casey@clalegal.com -- Susan Mary Rotkis, Esq. -- susan@clalegal.com -- Leonard Anthony Bennett, Esq. -- leonard@clalegal.com -- and Matthew James Erausquin, Esq. -- matt@clalegal.com -- of Consumer Litgation Associates PC; John Soumilas, Esq., and James Arthur Francis, Esq., of Francis & Mailman PC; and Dale Wood Pittman, Esq., of The Law Office of Dale W. Pittman, P.C. serve as counsel for Plaintiff Chauna Jones John Willard Montgomery, Jr., Esq., of John W. Montgomery Jr. Attorney PLC; John Anthony Love, Esq. -- tlove@kslaw.com -- Meryl W. Roper, Esq. -- mroper@kslaw.com -- Timothy H. Lee, Esq. -- tlee@kslaw.com -- and Zachary Andrew McEntyre, Esq. -- zmcentyre@kslaw.com -- of King & Spalding serve as counsel for Defendant Equifax, Inc. in its own name and t/a Equifax Workforce Solutions. FACEBOOK INC: Motion to Compel Discovery in "Campbell" Granted -------------------------------------------------------------- Magistrate Judge Maria-Elena James granted Plaintiffs' motion to compel Facebook Inc. in the case captioned MATTHEW CAMPBELL, et al., Plaintiffs, v. FACEBOOK INC., Defendant, Case No. 13-CV- 05996-PJH (MEJ), (N.D. Cal.) The parties in this putative privacy class action filed three Joint Discovery Letters outlining various disputes. In the first Letter, they dispute whether Defendant Facebook, Inc. must produce documents regarding how it monetarily values information obtained by allegedly scanning putative class members' private Facebook messages. In their second Letter, they dispute whether Facebook must produce an interrogatory response and related documents about how Facebook processes users' private messages. Plaintiffs allege that Facebook "has systematically intercepted Facebook users' private Facebook messages without their consent," in violation of the Electronic Communications Privacy Act (ECPA or the Wiretap Act) and the California Invasion of Privacy Act (CIPA). According to Plaintiffs, whenever a private Facebook message contains a Uniform Resource Locator (URL), Facebook uses a software application called a "web crawler" to scan the URL. Plaintiffs allege that "when their ostensibly private messages contained links to other websites, . . . Facebook scanned those messages and then analyzed the URL in the link." Plaintiffs further allege that "Facebook retains the user data it has collected, including the "Likes" assigned through intercepting users' private messages." They allege Facebook uses the data it collects during a scan of a private message for other purposes including, among others, enhancing its targeted advertising efforts. Plaintiffs seek to represent a class of "all natural- person Facebook users located within the United States who have sent or received private messages that included URLs in their content, from within two years before the filing of this action up through and including the date when Facebook ceased its practice." In her Discovery Order dated October 14, 2015 available at http://is.gd/WCqP8Kfrom Leagle.com, Judge James granted Plaintiffs' motion to compel Facebook's responses to Interrogatory No. 8 and RFP Nos. 41, 53-60, as well as its Motion to Compel Facebook's Rule 30(b)(6) deposition to testify as to Topics 1-2. The Court finds it reasonable that Plaintiffs should be permitted somewhat broader discovery to be able to establish a model or methodology for class-wide relief. Facebook was required to respond to these requests in accordance with this Order no later than October 28, 2015. David Taylor Rudolph, Esq. -- drudolph@lchb.com -- Melissa Ann Gardner, Esq. -- mgardner@lchb.com -- Nicholas Diamand, Esq. -- ndiamand@lchb.com -- Rachel Geman, Esq. -- rgeman@lchb.com -- and Michael W. Sobol, Esq. -- msobol@lchb.com -- of Lieff Cabraser Heimann and Bernstein, LLP -- David F. Slade, Esq. -- dslade@cbplaw.com -- James Allen Carney, Esq. -- acarney@cbplaw.com -- and Joseph Henry Bates, III, Esq. -- hbates@cbplaw.com -- of Carney Bates Pulliam, PLLC -- Jeremy A. Lieberman, Esq. -- jalieberman@pomlaw.com -- and Lesley F. Portney, Esq. -- lportnoy@glancylaw.com -- of Pomerantz Grossman Hufford Dahlstrom & Gross LLP serve as counsel for Plaintiff Matthew Campbell, on behalf of himself and all others similarly situated Christopher Chorba, Esq. -- cchorba@gibsondunn.com -- Jeana Marie Bisnar Maute, Esq. -- jbisnarmaute@gibsondunn.com -- Joshua Aaron Jessen, Esq. -- jjessen@gibsondunn.com -- and Ashley Marie Rogers, Esq. -- arogers@gibsondunn.com -- of Gibson Dunn and Crutcher LLP serve as counsel for Defendant Facebook Inc. FIRST ACCEPTANCE: Mediation in Class Action Held ------------------------------------------------ First Acceptance Corporation and the plaintiffs in a class action against the Company were scheduled to hold a mediation on August 17, 2015, the Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 11, 2015, for the quarterly period ended June 30, 2015. In January 2014, one current and three former employees filed a collective action lawsuit against the Company in the U.S. District Court for the Middle District of Tennessee. The suit Lykins, et al. v. First Acceptance Corporation, et al, alleges the Company violated the Fair Labor Standards Act by misclassifying its insurance agents as exempt employees. Plaintiffs seek unpaid wages, overtime, attorneys' fees and costs. The Company answered the plaintiffs' Complaint and denied all of the allegations contained therein. In April 2014, the class of agents was conditionally certified and a notice regarding the case was sent to all potential class members. A total of 227 individuals chose to participate in the case during the opt-in period which closed on July 15, 2014. The Company disagrees with the allegations in this lawsuit and believes that it is able to present a vigorous defense. However, since any such litigation would likely have a lengthy duration and require the Company to incur significant legal expense, the Company and the plaintiffs scheduled a mediation on August 17, 2015. Currently an estimate of the financial impact of this litigation on the Company cannot yet be determined. FIRST SOLAR: To File Appeal From "Smilovits" Ruling --------------------------------------------------- On March 15, 2012, a purported class action lawsuit titled Smilovits v. First Solar, Inc., et al., Case No. 2:12-cv-00555- DGC, was filed in the United States District Court for the District of Arizona (the "Court") against the Company and certain of our current and former directors and officers (the "Defendants"). The complaint was filed on behalf of persons who purchased or otherwise acquired the Company's publicly traded securities between April 30, 2008 and February 28, 2012 (the "Class Action"). The complaint generally alleges that the Defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 by making false and misleading statements regarding the Company's financial performance and prospects. The action includes claims for damages, including interest, and an award of reasonable costs and attorneys' fees to the putative class. On August 11, 2015, the Court issued an order (the "Order") in the Class Action. In the Order, the Court denied in part and granted in part the Defendants' motion for summary judgment and denied plaintiffs' motion for summary judgment. In addition, the Court certified one issue (relating to loss causation) for immediate interlocutory appeal by the parties. The Court, in its Order, stated as follows: "The Court finds two competing lines of cases in the Ninth Circuit on loss causation. Because one line would result in complete summary judgment for Defendants and the other (which the Court chooses to follow) will result largely in denial of summary judgment and a lengthy and expensive trial, the Court will certify this issue for immediate appeal. . . ." The Company intends to file a petition for such immediate appeal with the Ninth Circuit Court of Appeals. Upon such timely filing, further proceedings in the Class Action will be stayed until the Ninth Circuit decides whether to take the appeal, and, if it does, the stay will remain in effect until the appeal is decided, First Solar, Inc. said in its Form 8-K Report filed with the Securities and Exchange Commission on August 12, 2015. HOUSTON AMERICAN: $7MM Settlement in Shareholder Case Now Paid -------------------------------------------------------------- Houston American Energy Corp. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 12, 2015, for the quarterly period ended June 30, 2015, that in the Silverman Shareholder Class Action Suit, the $7,000,000 litigation settlement payable and the related insurance claim receivable were each reflected as settled on the Company's balance sheet at June 30, 2015. The Company disclosed that, "On April 27, 2012, a purported class action lawsuit was filed in the U.S. District Court for the Southern District of Texas against the Company and certain of its executive officers: Steve Silverman v. Houston American Energy Corp. et al., Case No. 4:12-CV-1332. The complaint generally alleged that, between March 29, 2010 and April 18, 2012, all of the defendants violated Sections 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 and the individual defendants violated Section 20(a) of the Exchange Act in making materially false and misleading statements including certain statements related to the status and viability of the Tamandua #1 well on the Company's CPO 4 prospect." "Two additional class action lawsuits were filed against us in May 2012. The complaints sought unspecified damages, interest, attorneys' fees, and other costs. "On September 20, 2012, the court consolidated the class action lawsuits and appointed a lead plaintiff and, on November 15, 2012, the lead plaintiffs filed an amended complaint. The amended complaint, among other things, expanded the putative class period to November 9, 2009 to April 18, 2012 and added allegations challenging a November 2009 estimate concerning the CPO 4 prospect. "On January 14, 2013, the Company filed a motion to dismiss and, on August 22, 2013, the court granted the motion and dismissed the complaint. The plaintiffs subsequently filed a Notice of Appeal of the dismissal of the complaint. "On July 15, 2014, the U.S. Court of Appeals for the Fifth Circuit reversed the dismissal of the case. The appellate court ruling focused on the sufficiency of the pleadings in the case, made no determination regarding the merits of the factual allegations, and remanded the case to the District Court for further proceedings. "In October 2014, the parties reached an agreement in principle to settle the consolidated lawsuit. The settlement, which provided for a $7,000,000 payment expected to be fully funded by the Company's insurance, was subject to preliminary and final approval of the court. The parties submitted the settlement to the court for approval on December 31, 2014. The court signed an order on April 16, 2015 preliminarily approving the settlement. Pursuant to the terms of the settlement, the Company, through its insurer, was required to escrow settlement funds in the amount of $7,000,000. "In May 2015, the Company's insurer deposited the required funds into an escrow account to fund the settlement. On July 29, 2015, the court rendered a final judgment approving the settlement and dismissed the case with prejudice. As a result, the $7,000,000 litigation settlement payable and the related insurance claim receivable were each reflected as settled on the Company's balance sheet at June 30, 2015." ILLINOIS: Deaf Inmates' Suit Obtains Class Action Status -------------------------------------------------------- Molly Parker, writing for The Southern Illinoisan, reports that a federal judge has granted class action status for a lawsuit filed in 2011 on behalf of 11 deaf and hard of hearing inmates at the Illinois Department of Corrections alleging systemic failures by the department to provide critical accommodations as required by law. The lawsuit, which seeks to require the state to provide proper accommodations to an estimated 100 inmates who are deaf or hard of hearing, alleges improper denials of accommodations such as American Sign Language interpreters and other alternate forms of communication. Without these accommodations, the lawsuit alleges, deaf and hard of hearing prisoners are endangered and deprived of meaningful access to religious services, healthcare, educational and vocational programs, telephones, televisions, library services, disciplinary proceedings, grievances, and pre-release programs. In ruling that the case could proceed as a class action, Northern District Illinois Judge Marvin Aspen found that "there are considerable disputed facts as to whether IDOC has appropriate policies and procedures in place and whether those that do exist are sufficient or even practiced and enforced." "Plaintiffs presented significant proof of the systemic failures alleged," he wrote in the decision. IDOC spokeswoman Nicole Wilson said the department is reviewing the court's ruling and has no comment at this time. The lawsuit was filed by Chicago-based Winston & Strawn LLP, serving as lead counsel; two Illinois nonprofit legal advocacy organizations, Equip for Equality and Uptown People's Law Center; and the National Association for the Deaf. "The fact that the Department of Corrections continues its refusal to follow the law and provide accommodations to this group of prisoners should appall every resident of Illinois," stated Alan Mills, executive director of uptown People's Law Center, in a statement. Howard A. Rosenblum, chief executive officer of the National Association of the Deaf, said, "Deaf and hard of hearing people deserve equal access to education, religious services, medical treatment and telecommunications -- even in prison." Barry Taylor, vice president for civil rights with Equip for Equality, the federal designation protection and advocacy agency for Illinois, said the organization estimates the class-action lawsuit would include at least 100 current inmates and all future inmates who are deaf or hard of hearing, and maybe more. Part of the problem is that IDOC has not provided an accurate count of the number of deaf and hard of hearing prisoners in need of accommodations. Though the lawsuit was filed four years ago, Mr. Taylor said it's his belief that issues affecting these prisoners have not been remedied since then. "Every prison is a little different and some interpreters are provided but not consistently," he said. Nine of the 11 inmates named in the original lawsuit, some serving in Southern Illinois prisons, are still incarcerated. One has been released, and one inmate, Curtis Foster, has since died of a burst appendix. Mr. Taylor said the legal teams are looking into whether his alleged insufficient accommodations for communicating may have led to his death by hindering his ability to communicate a medical need to staff. In 2011, the lawsuit described Foster as a 46-year-old man incarcerated at Stateville Correctional Center. He began his prison sentence in 1998 and spent the first five years at Menard Correctional Center. The lawsuit said Foster relied on American Sign Language to communicate and required an ASL interpreter to communicate with those who do not know ASL. The lawsuit names as defendants Salvador Godinez, who was acting director of the department in 2011 when the suit was filed, and the agency's then-disabilities coordinator. They are named in their official capacity, and Mr. Taylor said the lawsuit will be amended to name the current acting director, John Baldwin, who was appointed by Gov. Bruce Rauner to the post in August. INDIANAPOLIS BUSINESS: Faces Class Action Over Katina Powell Book ----------------------------------------------------------------- Andrew Wolfson, writing for Courier-Journal, reports that a University of Louisville student has sued escort Katina Powell and her publisher, saying her book, "Breaking Cardinal Rules," tarnishes the university and reduces the value of her education. Louisville lawyer Nader George Shunnarah, who is asking that the suit be designated a class action on behalf of all U of L students, could not be reached for comment. But he told an online news site that "the goal here is to benefit students instead of the prostitute." The suit asks that all profits from the book be placed with a receiver in the Jefferson Circuit Court clerk's office. But Jon Fleischaker, a leading First Amendment attorney, said the suit, filed on Oct. 22 in Jefferson Circuit Court, is meritless and raises serious constitutional questions. "Whatever you think of Katina Powell, she has a First Amendment right to write about whatever she wants and it appears that at least some of what she wrote is true," said Mr. Fleischaker, who represents the Kentucky Press Association and The Courier-Journal. "This is a silly lawsuit," Mr. Fleischaker said. The complaint was filed on behalf of Kyle Nicole Hornback, who said in an email that she is 19 and a sophomore. It asks a judge to order all profits from "Breaking Cardinal Rules" placed with a receiver in the Jefferson Circuit Court clerk's office and ultimately given to U of L students. The book's publisher, the Indianapolis Business Journal, which is also named as a defendant, did not immediately respond to requests for comment. The suit alleges that the publication of the book alleging that Powell provided prostitutes for U of L basketball players and recruits violates Ms. Hornback's contract with U of L, to which she promised to pay tuition in exchange for an education. Mr. Shunnarah told an online site, The Bird Cage, which first reported about the suit, that "when you commit a criminal act and it damages an entire University, your degree, the value of your degree, your ability to pay back student loans, and your ability to get a job," students should profit, rather than Powell. The suit asks for punitive and compensatory damages, saying Mr. Hornback suffered damages "including but not by way of limitation to her degree, her ability to repay student loans and her ability to find employment after graduation." INOGEN INC: Securities Class Action Closed ------------------------------------------ A securities class action against Inogen, Inc. has been closed, the Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 11, 2015, for the quarterly period ended June 30, 2015. On March 13 and March 19, 2015, plaintiffs Brad Christi and Roger D. Holford each filed, respectively, a lawsuit against Inogen, Raymond Huggenberger, Inogen's President and Chief Executive Officer, and Alison Bauerlein, Inogen's Executive Vice President and Chief Financial Officer, in the United States District Court for the Central District of California on behalf of a purported class of purchasers of our securities between November 12, 2014 and March 11, 2015. The complaints alleged that Inogen, Mr. Huggenberger and Ms. Bauerlein violated Section 10(b) of the Securities Exchange Act of 1934, as amended (the Exchange Act), and Rule 10b-5 promulgated thereunder, and that Mr. Huggenberger and Ms. Bauerlein violated Section 20(a) of the Exchange Act. Specifically, the complaints alleged that during the purported class period our financial statements and disclosures concerning internal controls over financial reporting were materially false and misleading. The complaints sought compensatory damages in an unspecified amount, costs and expenses, including attorneys' fees and expert fees, prejudgment and post-judgment interest and such other relief as the court deemed proper. On May 7, 2015, plaintiff Roger D. Holford filed a notice of voluntary dismissal without prejudice pursuant to Federal Rule of Civil Procedure Rule 41(a)(1)(A) in the second filed action. On June 29, 2015, plaintiff Brad Christi filed a notice of voluntary dismissal without prejudice pursuant to Federal Rule of Civil Procedure Rule 41(a)(1)(A) in the first filed action. The case was closed by the Court as of June 29, 2015. INSULET CORP: Class Suits Filed Over Inflated Share Price --------------------------------------------------------- Insulet Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 12, 2015, for the quarterly period ended June 30, 2015, that from May 5, 2015, to June 16, 2015, three class action lawsuits were filed by shareholders in the U.S. District Court, Massachusetts, against the Company and certain individual current and former executives of the Company. Two suits were voluntarily dismissed. Arkansas Teacher Retirement System v. Insulet, et al., 1:15-cv-12345, alleges violations of Sections 10(b) and 20(a) and Rule 10b-5 of the Securities Exchange Act of 1934 by making allegedly false and misleading statements about the Company's business, operations, and prospects. The lawsuit seeks, among other things, compensatory damages in connection with the Company's allegedly inflated stock price between May 7, 2013 and April 30, 2015, as well as attorneys' fees and costs. In light of the preliminary nature of this matter, the Company is unable to reasonably assess its ultimate outcome. However, the Company believes that the resolution of this matter will not have a material adverse effect on its financial condition. INTERCLOUD SYSTEMS: No Decision Yet on Motion to Dismiss Suit ------------------------------------------------------------- A court decision on Intercloud Systems, Inc.'s motion to dismiss a class action lawsuit remains pending, Intercloud said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 12, 2015, for the quarterly period ended June 30, 2015. The Company said, "In March 2014, a complaint was filed in the United States District Court for the District of New Jersey against our company, our Chairman of the Board and Chief Executive Officer, Mark Munro, The DreamTeamGroup and MissionIR, as purported securities advertisers and investor relations firms, and John Mylant, a purported investor and investment advisor. The complaint was purportedly filed on behalf of a class of certain persons who purchased our common stock between November 5, 2013 and March 17, 2014. The complaint alleges violations by the defendants (other than Mark Munro) of Section 10(b) of the Exchange Act, and other related provisions in connection with certain alleged courses of conduct that were intended to deceive the plaintiff and the investing public and to cause the members of the purported class to purchase shares of our common stock at artificially inflated prices based on untrue statements of a material fact or omissions to state material facts necessary to make the statements not misleading. The complaint also alleges that Mr. Munro and our company violated Section 20 of the Exchange Act as controlling persons of the other defendants. The complaint seeks unspecified damages, attorney and expert fees, and other unspecified litigation costs." "On November 3, 2014, the United States District Court for the District of New Jersey issued an order appointing Robbins Geller Rudman & Dowd LLP as lead plaintiffs' counsel and Cohn Lifland Pearlman Herrmann & Knopf LLP as liaison counsel for the pending actions. The lead filed an amended complaint in January 2015 adding additional third-party defendants. We filed a motion to dismiss the amended complaint in late January 2015 and the plaintiffs filed a second amended complaint in early March 2015. We filed a motion to dismiss the second amended complaint on March 13, 2015. Our motion to dismiss was heard by the Court on May 4, 2015. The Court's decision is pending." IQOR HOLDINGS: Minn. Judge Certifies Class of Call-Center Workers ----------------------------------------------------------------- A federal judge in St. Paul, Minn. conditionally certified the class of call-center workers accusing iQor Holdings of denying them overtime, Courthouse News Service reported. The case is, Paris Shoots, Jonathan Bell, Maxwell, Turner, Tammy Hope, and Phillipp Ostrovsky on behalf of themselves, the Proposed Rule 23 Classes, and others similarly situated, Plaintiffs, v. iQor Holdings US Inc., Defendant, Civil No. 15-CV-563 (SRN/SER)(D. Minn.). For Plaintiffs: Timothy C. Selander, Esq. Rachhana T. Srey, Esq. Carl F. Engstrom, Esq. Ashley R. Thronson, Esq. E. Michelle Drake, Esq. John F. Albanese, Esq. Nichols Kaster, PLLP 80 South Eighth Street, Suite 4600 Minneapolis, MN 55402 - and - Douglas L. Micko, Esq. Vildan A. Teske, Esq. Brian T. Rochel, Esq. Teske Micko, Esq. Katz Kitzer & Rochel, PLLP 222 South Ninth Street, Suite 4050 Minneapolis, MN 55402 For Defendant: Brian T. Benkstein, Esq. Gina K. Janeiro, Essq. Jackson Lewis P.C. 225 South Sixth Street, Suite 3850 Minneapolis, MN 55402 - and - Erin E. McAdams, Esq. Kevin F. Gaffney, Esq. Sari M. Alamuddin, Esq. Stephanie L. Sweitzer, Esq. Morgan, Lewis & Bockius LLP 77 West Wacker Drive Chicago, IL 60601 - and - Paul C. Evans, Esq. Morgan, Lewis & Bockius LLP 1701 Market Street Philadelphia, PA 19103 IRADIMED CORP: Accrued Insignificant Amount Related Class Action ---------------------------------------------------------------- Iradimed Corporation has accrued an insignificant amount related to a class action during the three months ended June 30, 2015, the Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 11, 2015, for the quarterly period ended June 30, 2015. On September 10, 2014, a Civil Action was filed in the U.S. District Court for the Southern District of Florida ("Lam Civil Action"). The Lam Civil Action was a putative class action lawsuit brought against the Company and certain individuals who are officers and / or directors of the Company. The plaintiff was an alleged shareholder of the Company, and in the operative complaint sought relief on behalf of a class of persons who purchased the Company's common stock during the period from July 15, 2014 through September 17, 2014. The complaint alleged that the defendants failed to disclose material information concerning the Company's compliance with FDA regulations in violation of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder, and that the putative class members suffered damages as a result. The complaint additionally alleged "control person" liability against the individual defendants under Section 20(a) of the Securities Exchange Act of 1934. The Company disputed the plaintiff's allegations and theories of liability. On May 26, 2015, the court granted the defendants' motions to dismiss the complaint in its entirety. On June 22, 2015, the plaintiff filed a notice of appeal in the U.S. Court of Appeals for the Eleventh Circuit. "We accrued an insignificant amount related to this matter during the three months ended June 30, 2015," the Company said. JINKOSOLAR HOLDING: March 11 Settlement Fairness Hearing Set ------------------------------------------------------------ The following statement is being issued by Bernstein Liebhard LLP and Zamansky LLC regarding Peters v. JinkoSolar Holding Co. Ltd., et al. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK MARCO PETERS, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, vs. JINKOSOLAR HOLDING CO., LTD., XIANDE LI, KANGPING CHEN, XIANHUA LI, WING KEONG SLEW, HAITAO JIN, ZIBIN LI, STEVEN MARKSCHEID, LONGGEN ZHANG, CREDIT SUISSE SECURITIES (USA) LLC, OPPENHEIMER & CO. INC., ROTH CAPITAL PARTNERS, LLC, WILLIAM BLAIR & CO., and COLLINS STEWART LLC, Defendants. No. 11 Civ. 7133 (JPO) SUMMARY NOTICE TO: ALL PERSONS AND ENTITIES WHO PURCHASED OR OTHERWISE ACQUIRED JINKOSOLAR HOLDING CO., LTD. NEW YORK STOCK EXCHANGE-TRADED ADSs (NYSE:JKS) BETWEEN MAY 13, 2010 AND SEPTEMBER 20, 2011 (THE "CLASS PERIOD"), EITHER IN OR TRACEABLE TO THE MAY 13, 2010 INITIAL PUBLIC OFFERING OR THE NOVEMBER 4, 2010 SECONDARY OFFERING, OR ON THE OPEN MARKET DURING THE CLASS PERIOD, AND WERE DAMAGED THEREBY (THE "CLASS" OR "CLASS MEMBERS"). YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States District Court for the Southern District of New York (the "Court"), that a hearing will be held at 10:00 a.m. on March 11, 2016 before the Honorable J. Paul Oetken, United States District Judge, in Courtroom 706, at the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, New York, for the purpose of determining (1) whether the proposed settlement of the Action for the principal amount of $5,050,000 in cash should be approved by the Court as fair, reasonable, and adequate to Class Members; (2) whether the proposed Order and Final Judgment should be entered by the Court dismissing the Action with prejudice; (3) whether the proposed plan to distribute the settlement proceeds ("Plan of Allocation") is fair, reasonable, and adequate and, therefore, should be approved; and (4) whether the application of Lead Plaintiffs for attorneys' fees and costs incurred in connection with this Action and reimbursement of Plaintiffs' reasonable costs and expenses directly related to representation of the Class ("Fee and Expense Application") should be approved. In connection with the Fee and Expense Application, Co-Lead Counsel will request attorneys' fees of 30% of the Gross Settlement Fund, plus expenses (exclusive of administration costs) not to exceed $90,000. If you purchased JKS ADS between May 13, 2010 and September 20, 2011, your rights may be affected by the settlement of the Action. If you have not received a detailed Notice of Pendency of Class Action and Proposed Settlement, Settlement Fairness Hearing, and Motion For an Award of Attorneys' Fees and Reimbursement of Litigation Expenses (the "Notice") and a copy of the Proof of Claim Form, you may obtain copies by writing to Claims Administrator at JinkoSolar Securities Settlement, c/o Garden City Group, LLC, PO Box 10242, Dublin, OH 43017-5742, or by calling 1- 877-940-7794, or on the Internet at www.jinkosolarsecuritiessettlement.com If you are a Class Member, in order to share in the distribution of the Net Settlement Fund, you must submit a Claim Form, postmarked on or before January 12, 2016 establishing that you are entitled to recovery. If you desire to be excluded from the Class, you must submit a request for exclusion by no later than February 12, 2016, in the manner and form explained in the detailed Notice. All Class Members who have not timely and validly requested exclusion from the Class will be bound by any judgment entered in the Action pursuant to the Stipulation of Settlement dated September 15, 2015. Any objection to the Settlement must be filed with the Court and received by Counsel no later than February 12, 2016. PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING THIS NOTICE. If you have any questions about the Settlement, you may contact Co-Lead Counsel: Michael S. Bigin BERNSTEIN LIEBHARD LLP 10 East 40th Street New York, New York 10016 (212) 779-1414 JKS@bernlieb.com Jacob H. Zamansky Samuel E. Bonderoff ZAMANSKY LLC 50 Broadway, 32nd Floor New York, New York 10004 Telephone: (212) 742-1414 Facsimile: (212) 742-1177 DATED: October 22, 2015 BY ORDER OF THE COURT, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JOHNSON & JOHNSON: "Ferrar" Baby Power Suit Remanded ---------------------------------------------------- District Judge Catherine D. Perry granted the Plaintiffs' motion to remand in the case captioned TENESHA FERRAR, et al., Plaintiffs, v. JOHNSON & JOHNSON CONSUMER COMPANIES, INC., Defendants, Case No. 4:15 CV 1219 CDP, (E.D. Mo.) Plaintiffs in this case are 98 individuals (or their spouses and/or personal representatives) who allege that they developed ovarian cancer from using Johnson & Johnson baby powder and shower products. Defendant Johnson & Johnson designed, developed, manufactured, marketed and sold the products, and defendant Imerys Talc mined the talc contained in the products. Plaintiffs filed this action on October 31, 2014, in the Circuit Court for the City of St. Louis, Missouri, seeking to recover damages from defendants under state law claims for failure to warn, negligence, breach of warranty, wrongful death, civil conspiracy, and concert of action. Johnson and Johnson removed this case the first time on November 18, 2014, alleging diversity jurisdiction under 28 U.S.C. Section 1332. The Court remanded the case based on a concession from Johnson & Johnson that remand was appropriate. After the case was remanded, a second set of 71 plaintiffs filed a lawsuit in the same state court against the same defendants for injuries related to their use of the same baby powder and shower products. In her Memorandum and Order dated October 14, 2015 available at http://is.gd/jLlenRfrom Leagle.com, Judge Perry granted the Plaintiffs' motion to remand and the case is remanded to the 22nd Judicial Circuit Court of the City of St. Louis, Missouri. Johnson & Johnson has not demonstrated by a preponderance of the evidence that the proposed scheduling plans amount to a request for a joint trial. Initially, there is the obvious point that plaintiffs submitted three separate documents (one for each case), with three separate case captions and cause numbers, to defendants. Apart from this, the mere fact that plaintiffs used November 29, 2016, as the date under a heading called "Trial" on all three proposed scheduling plans does not prove that plaintiffs' "true purpose" was a "joint assignment in which the inevitable result will be that their cases are tried jointly. The parties never had a conference with the Division 10 judge about these proposed scheduling plans because Johnson & Johnson rushed to this courthouse with its removal papers immediately upon receiving the email from plaintiffs' counsel. Had it waited to hear what plaintiffs' counsel would actually say at the scheduling conference about the proposed trial dates, there might have been a record sufficient to conclude that they were in effect seeking a joint trial. Johnson & Johnson has provided no other evidence that plaintiffs either explicitly or implicitly requested a joint trial of their claims, and there is nothing in this record to suggest that the federal district court has subject matter jurisdiction over this action. Eric D. Holland, Esq. -- eholland@allfela.com -- Patrick R Dowd, Esq. -- pdowd@allfela.com -- and Randall S. Crompton, Esq. -- scrompton@allfela.com -- of HOLLAND LAW FIRM LLC serve as counsel for Plaintiff Tenesha Ferrar Beth A. Bauer, Esq. -- bbauer@heplerbroom.com -- and Gerard T. Noce, Esq. -- gnoce@heplerbroom.com -- of HEPLER BROOM serve as counsel for Defendant Johnson & Johnson Consumer Companies, Inc. LAS VEGAS, NV: Police Union Sues Over New Law on Paid Time Off -------------------------------------------------------------- Mike Heuer, writing for Courthouse News Service, reported that Las Vegas police unions sued their own police force, challenging the constitutionality of a new state law that prohibits paid time off for union officials to conduct union business. Three unions -- Las Vegas Police Protective Association Metro, Las Vegas Police Association Civilian Employees, and Las Vegas Metro Police Managers & Supervisors Association -- sued Las Vegas Metropolitan Police Department on Oct. 7 in Federal Court in Nevada. They claim Nevada Senate Bill 241, which took effect on June 1, constitutes illegal viewpoint discrimination. The law requires unions to repay employers when union officials take paid time off for union activities. However, "The Legislature does not prohibit paid leaves to work against labor organizations, nor to advocate for nonlabor groups," the complaint states. "The Legislature's purported concern over public spending on advocacy also has not led it to restrict local government spending on lobbying (which amounted to over $3.3 million in the most recent year). This statute represents viewpoint discrimination in violation of the First Amendment freedoms of speech and association and the Equal Protection Clause." The unions say paid time off has been part of their collective bargaining agreements for years. Union officers use it to advocate for their members before government officials, learn members' workplace problems and concerns, and inform and provide counsel for members without having to reimburse employers for the paid time off. "Without paid leave, the unions' officers face being fired if they tried to spend as much time working for and with employees as they have been spending up until now," the unions say in the complaint. Nevada's SB 241 will end paid leave for union officials engaged in union business after their collective bargaining contracts expire. The Police Protective Association Civilian Employees contract expired on July 1; the other plaintiffs' contract will expire on July 1, 2016. The Nevada Legislature wrote the bill at the behest of the American Legislative Exchange Council, or ALEC, according to the lawsuit. ALEC has written pro-management, anti-labor bills for numerous legislatures. Its board of directors in 2012 wrote a model "Prohibition on Paid Union Activity by Public Employees Act" and sent it to lawmakers nationwide. Other states have enacted and/or are considering enacting similar laws. In Michigan, Senate Bill 279 would prohibit public schools from paying for time off for teacher union officials to do union work. State Sen. Marty Knollenberg, R-Troy, introduced the measure, which awaits action before a committee of the whole. The Michigan-based Mackinac Center for Public Policy, a conservative, free-market think tank, says Michigan public schools have paid $3 million a year in paid time off for union officials, including schools with budget deficits and for union officials who spend more time doing union work than school work. "When taxpayers fund release time for government employees, they are paying them to work for a private entity rather than the public," said Jarrett Skorup, a policy analyst at the Mackinac Center. "This scheme costs taxpayers twice -- once to pay for the union official's salary and again to pay for a replacement in the classroom." Las Vegas' police unions want the law declared unconstitutional and its enforcement enjoined. Neither union officials nor their attorney Andrew Kahn, with McCracken Stemerman & Holsberry, returned calls seeking comment. He may be reached at: Andrew J. Kahn, Esq. McCRACKEN, STEMERMAN & HOLSBERRY 1630 S. Commerce Street, Suite A-i Las Vegas, NV 89102 Tel: (702) 386-5107 Fax: (702) 386-9848 Las Vegas Metropolitan Police officials do not comment on active lawsuits. LONGS DRUG STORES: Pre-Certification Discovery Order Vacated ------------------------------------------------------------ Justice Vance W. Raye of the Court of Appeals of California, Third District, Sacramento, vacated the Superior Court of Sacramento's discovery order in the appeal case captioned CVS PHARMACY, INC., et al., Petitioners, v. THE SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; CHARLENE DELUCA, Real Party in Interest, No. C077622, (Cal. App. Ct.) Real party in interest Charlene Deluca filed a complaint alleging defendants CVS Pharmacy, Inc., and Longs Drug Stores California, LLC (CVS), have a corporate policy of automatically terminating employees who do not work any hours for 45 consecutive days. Deluca sought injunctive relief to challenge the policy, which she argued discriminated against qualified individuals with disabilities in violation of the California Fair Employment and Housing Act (FEHA). Deluca, an employee of Longs, was not disabled, nor had she been terminated under the alleged 45-day policy. CVS demurred to Deluca's complaint. The trial court sustained CVS's demurrer based on Deluca's lack of standing and dismissed her individually without leave to amend, but granted 90 days' leave to amend for Deluca to find a substitute plaintiff and granted her motion to compel discovery of the names and contact information of current and former CVS employees. CVS filed a petition for writ of mandate challenging the trial court's ruling. In his Opinion dated October 15, 2015 available at http://is.gd/2P9p3mfrom Leagle.com, Justice Raye vacated the respondent Superior Court of Sacramento County's discovery order of August 29, 2014. CVS is awarded costs in this original proceeding. The Court said the trial court abused its discretion in allowing the proposed pre-certification discovery. Deluca was never a member of the class. The Appeals Court said a class representative who is not a class member or is otherwise unqualified to serve as class representative may, in certain circumstances, move for precertification discovery for the purpose of identifying a new class representative. Courts have recognized that such precertification discovery presents the potential for abuse of the class action procedure, but also implicates the rights and interests of potential class members on whose behalf the complaint was filed. Deluca was never a member of the class she sought to represent. She does not claim a disability and CVS did not terminate her. The Superior Court is hard pressed to explain why the trial court stated it "does not find that Deluca or her counsel had no reasonable, good faith belief that she lacked standing when the suit was initiated." There is no evidence in the record that Deluca had any reason to believe she was a victim of the alleged termination policy when she filed suit. In the case, Best Buy Stores, L.P. v. Superior Court (2006) 137 Cal.App.4th 772 (Best Buy), cited by the trial court, the named plaintiff, at the time of the filing of the class action, was a member of the class. Intervening law held that an attorney could not be both a class representative and class counsel. The Appeals Court said CVS employees know whether or not they were terminated and the circumstances surrounding their terminations. These potential class members know if they have a qualified disability, if that disability prevented them from working during a 45-day period, if they requested and were denied a leave as a reasonable accommodation, and if they were terminated for not working during this period. Given this knowledge, the terminated employees can pursue a claim under the FEHA to vindicate their rights and recover monetary damages. In addition, the privacy rights of the putative class members add to the potential for abuse and undercut the benefits of precertification discovery. Deluca's counsel would inquire as to whether or not a CVS employee is disabled, the nature of the disability, and the circumstances surrounding a termination. Michael E. Brewer, Esq. -- mbrewer@littler.com -- Michael G. Leggieri, Esq. -- mleggieri@littler.com -- and Johanna R. Carney, Esq., of Littler Mendelson serve as counsel for Petitioners No appearance for Respondent LOS ANGELES, CA: LAUSD Makes Bogus Claims v. Teachers, Suit Says ---------------------------------------------------------------- Rebekah Kearn, writing for Courthouse News Service, reported that in a $1 billion class action in Los Angeles, California, a teacher acclaimed for excellence by Oprah Winfrey, Disney and the United Kingdom says Los Angeles Unified School District and its superintendent run a "criminal cartel" that locks thousands of its best teachers in "teacher jails" under bogus accusations so it won't have to pay their retirement benefits. Rafe Esquith sued LAUSD and Superintendent Ramon Cortines in Superior Court on Oct. 15 on behalf of all current and former teachers who were stuffed into LAUSD "teacher jails." "The issue is fundamentally due process," Esquith's attorney Ben Meiselas told Courthouse News. "The allegations against these teachers are generated by a hit squad team through a McCarthyan investigation at odds with what it means to be an American." Meisalas said LAUSD set up its teacher jails to oust teachers nearing retirement age so it can divest them of their benefits. "It's fundamentally wrong and flawed and at odds with the Constitution," Meiselas said. "And the people leading it would not pass muster under their own investigation. They would fail on Day One based on their own conduct." Similar class actions have been filed about teacher "jails" in other major school districts, including New York, where the jails are called "rubber rooms." Teachers in "jail" have spent years doing nothing but show up, on full pay -- an adult equivalent of study hall, on the public dime. Critics of public education blame teacher unions and tenure protections for it. Teachers and their unions blame cowardly administrators who refuse to bring cogent charges against teachers, for fear of embarrassing the districts that hired them. Meisalas put it this way: "Which one are you going to trust: the thousands of teachers who made the sacrifice to dedicate their lives to public education, struggling to support their families, and who go to craft stores before the school year to buy things for their classrooms for the students? Or the administrators who got by based on mediocrity and were raised to positions where they earn over $100,000 a year and get administrative power that is self-perpetuating? "Ultimately it's about the students and their education, and teachers as the conduit are forgotten" at LAUSD, Meiselas said. Esquith's lawsuit says: "LAUSD operates as a criminal cartel, systematically denying its teachers any semblance of due process while detaining them in nondescript, fenced-in, warehouse facilities throughout Los Angeles County, which LAUSD refers to as 'Educational Services Centers' -- but that teachers and the media have exposed as 'teacher jails.' LAUSD's teacher jails are expressly designed as a shrewd cost-cutting tactic, implemented to force its older and better-paid teachers out the door at the expense of the students these experienced educators serve." LAUSD has treated at least 2,000 teachers this way, depriving each of them of about $500,000 in pensions and other benefits -- a total of $1 billion, according to the complaint. Esquith started teaching for LAUSD in 1984 at Hobart Boulevard Elementary School, which primarily serves first-generation, underprivileged students from the surrounding Koreatown and Westlake neighborhoods in Central Los Angeles. He has won several awards, including the Disney National Outstanding Teacher of the Year Award in 1992, a fellowship from Johns Hopkins University, Oprah Winfrey's $100,000 "Use Your Life Award," the National Medal of Arts, and was made an honorary member of the British Empire after his students opened for the Royal Shakespeare Company at the Globe Theater in London. Sir Peter Hall filmed a documentary about his students' performance of A Midsummer Night's Dream in Los Angeles. Esquith also has written several books on education. LAUSD fired Esquith earlier this month, citing a 40-year-old accusation that he touched a student inappropriately, and the allegation that he told a joke while reading Huckleberry Finn. In an Aug. 13 letter to Geragos, rejecting Esquith's tort claim, the district's liability claims coordinator said that the district had found evidence of sexually inappropriate photographs on Esquith's school computer, inappropriate emails to students, and threats to at least two parents. Esquith can contest his dismissal before an administrative law judge. He first sued LAUSD in August this year, claiming the district, Superintendent Cortines and the district's general counsel defamed him by accusing him of telling an off-color joke in class after he cited a passage from "Huckleberry Finn" that mentioned nudity. In the new lawsuit, Esquith claims that though he knew he did nothing wrong, he wrote a note apologizing for any misunderstanding -- and was promptly sent to teacher jail, where a gag order prevented him from explaining his sudden absence to his students and their parents. LAUSD hired investigators to yank his students out of class and harass former students to bully them into badmouthing him, but all of them refused to do it, according to the new complaint. The school district also filed an abuse complaint against him to the California Commission on Teacher Credentialing, but the commission found the accusation unfounded, Esquith says. He says his experience is hardly unique, but is part of a "remarkably consistent pattern" of removing experienced teachers from their classrooms and locking them up in teacher jail without explanation or opportunity to oppose their removal. "Disturbingly, from the very outset LAUSD administrators label the teachers as immoral, unethical, thieves, abusers, or criminals, while at the same time LAUSD places teachers under a gag order. This is despite the fact that no criminal charges or even civil lawsuits exist," the complaint states. Esquith claims that the administrators leading these "witch hunts" are the same people "who have been sanctioned by courts for concealing, manipulating, and destroying evidence of abuse, who are under FBI and other governmental investigation for misappropriation, are led by a superintendent who settled a crotch-grabbing lawsuit for $300,000 of taxpayer money, and who argue in California Superior Courts and to a Court of Appeal (last month) that the age of consent is the same one endorsed by ISIS." That age of consent would be a child in eighth grade -- 13 or 14 years old, Meiselas told Courthouse News. Esquith says that teachers forced to report to a teacher jail are stuffed into a cubicle "while administrators patrol the hallways and prevent teachers from talking to each other." The teachers must stay there for roughly 6 hours a day with only a couple of breaks and nothing to do but stare at the walls, a limbo that can last months or even years. Esquith says LAUSD rarely informs teachers of the accusations against them and never gives them an opportunity to tell their side of the story -- it just assumes they are guilty. "Gag orders are imposed, teachers' entire lives are pried into by a school district acting as a rogue regime with its own rules unto itself, devoid of due process, all because the targeted teacher decided to sacrifice his or her life to public education. Teaches have described the experience as psychological torture, where they are deprived of dignity, and as an experience unlike anything matched in their entire lives," the complaint states. If the jails get too full, teachers must stay at home and call LAUSD once a day "to prove that they are not doing anything productive," and deal with LAUSD investigators spying on them to make sure they are abiding by "their draconian sentences," the complaint states. Most teachers eventually are fired or constructively fired after their stint in teacher jail, according to the complaint. Esquith says LAUSD gets rid of its best teachers to "shave numbers off its bottom line." "LAUSD admits that it cannot fund its benefits package for older teachers nearing retirement -- who also tend to be at the top of the pay scale -- and has decided to solve its funding shortfall by stripping its seasoned educators of their benefits based on secret, and almost exclusively baseless, allegations intended to force them to quit rather than endure a life sentence in teacher jail," the complaint states. Meisalas added: "The scale and scope of the issue is unprecedented and the number of teachers with the exact same story is shocking. Not all of them are internationally recognizable figures. Based on this class action, they felt they could come forward and stand against this LAUSD bully." Other states have similar teacher jails, such as New York's rubber rooms, set up as "pernicious" cost-saving schemes, but LAUSD's "is a particularly virulent strain of the teacher jail system," Meiselas said. "One of the few carrots for teachers is their retirement benefits," Meiselas said. "If we as a society want people leaving college to become teachers, taking away retirement benefits is not the way to encourage them to do it. "LAUSD sets a bad example when it destroys teachers' lives this way." Los Angeles Unified School District did not respond to requests for comment. Veteran schoolteachers told Courthouse News that it's not unusual for school administrators to seek out and punish excellence. "Bad administrators hate good teachers," a longtime public schoolteacher told Courthouse News. "I've seen it time and time again. "Good administrators like them. But there are a lot more good schoolteachers than there are good administrators." This teacher, and others, told CNS that teachers who feel they are underpaid often go into administration. Administrators who want to fire a teacher -- good or bad -- often hesitate to do so, fearing "bad publicity" for the district, whether the allegations prove substantive or not. Esquith seeks class certification, an injunction against holding teachers in teacher jails, and $1 billion in punitive damages for due process violations, age discrimination, whistleblower retaliation, and wrongful termination. Attorney Meiselas is a member of Geragos & Geragos. MARICOPA, AZ: Contempt Hearings on Hold Until End of October ------------------------------------------------------------ Jamie Ross, writing for Courthouse News Service, reported that an investigator hired to look into the thefts of drugs, license plates and IDs by one of Sheriff Joe Arpaio's deputies testified Oct. 14 that some claims against the deputy were never internally investigated. Arpaio hired Don Vogel, a former Mesa Police Department officer, to investigate the failed supervision of Maricopa County sheriff's Officer Charley Armendariz, who committed suicide in May 2014. The Sheriff's Office discovered shortly before and after his death that Armendariz had secretly recorded traffic stops and confiscated drugs, license plates and identification cards during the stops. Armendariz had received a number of citizen complaints, including one from a woman who said Armendariz took $300 from her during a traffic stop. "That was an incident that as far as you can tell was never addressed by Internal Affairs," said Stanley Young, an attorney representing plaintiffs in a 2007 class action against Arpaio. "Do you view that as being problematic?" "It was problematic in my opinion that the line supervisors, Sgt. [Manuel] Madrid and Lt. [Joe] Sousa had an allegation of criminal activity . . . concerning potential violation of the law," Vogel answered. "They prepared documents, purportedly forwarded documents to the Internal Affairs Bureau, but there was no record of such documents in the Internal Affairs Bureau, and no follow up." Arpaio and four of his current and former aides, including Sousa, are accused of civil contempt of court in the 2007 Melendres class action, accusing Arpaio targeted Latinos in traffic stops and street raids. Arpaio and Chief Deputy Jerry Sheridan have admitted they are in contempt, and face the possibility of fines, continued oversight of the Sheriff's Office, and criminal contempt charges. Vogel also testified Oct. 14 that Arpaio ordered a sergeant to turn over undocumented immigrants to the Border Patrol -- in violation of a federal court order requiring deputies to release immigrants not accused of committing a crime. Sheriff's Sgt. Brett Palmer testified during civil contempt hearings in April that Arpaio ordered him not to release undocumented immigrants. "I told the sheriff immediately that that was an unlawful order and I was not going to follow it," Palmer told the court then. Vogel confirmed that Palmer told him about the same conversation. "Sheriff Arpaio directed them to hold on to the individuals until he got down there at the location," Vogel said. "Palmer pointed out to him that he can't do that, that that would be a violation of the order, and after some discussion Palmer, I believe, released those individuals." The court also heard from Sheriff's Capt. Steve Bailey regarding testimony heard from Sgt. David Tennyson about an investigation into whether deputies were pocketing items they retrieved from drop houses. "Did you have any reason to believe it was not true?" asked Cecillia Wang, an attorney with the ACLU. "No, I believed they probably were," Bailey said. That investigation was fruitless and no one was disciplined. When the investigation was shared with a monitor appointed by the federal court, the monitoring team detailed a number of concerns about how Tennyson handled the investigation, and questioning of about 50 deputies about the items taken. Bailey said that while Tennyson did use leading questions from time to time, he didn't doubt the manner in which Tennyson questioned deputies. "I don't think what he gleaned from those interviews gave him additional information," Bailey said. The contempt hearings are on hold until the end of October. * * * Jamie Ross, writing for Courthouse News Service, reported that one of Sheriff Joe Arpaio's sergeants testified Oct. 13 that no victims were ever identified after information was uncovered that deputies would "pocket shit" they found at smuggling houses. The information was divulged during a hearing for unemployment benefits by former sheriff's Officer Cisco Perez. Perez said it was common practice for members of Arpaio's now-defunct Human Smuggling Unit to "pocket shit" left behind in drop houses or in the desert by immigrants. He said the items included religious statues, flags, T-shirts, drug paraphernalia and a 62-inch flat- screen television. Sheriff's Sgt. David Tennyson testified during civil contempt hearings against Arpaio that he didn't trust Perez, who was the former brother-in-law of Alfredo Navarrette -- a former deputy accused of money laundering and providing information to drug smugglers. Arpaio and four of his current and former aides face civil contempt charges for failing to train deputies how to make constitutional traffic stops and failing to deliver data to the court despite a 2013 court order. The 2007 Melendres class action accused Arpaio's officers of arresting Latinos during so-called "crime-suppression sweeps" and traffic stops. U.S. District Judge G. Murray Snow agreed with the plaintiffs in that case, and in 2013 ordered Arpaio and his officers to take steps to stop racial profiling. "I'm thinking I have a guy who lied, who is involved with another guy who was arrested for smuggling humans and smuggling dope," Tennyson said of Perez's claims. In an investigation of items found in the home of sheriff's Officer Ramon "Charley" Armendariz after he killed himself in May 2014, the Sheriff's Office turned up no victims for the trinkets taken by deputies. "I could not move forward without additional evidence," Tennyson said. In a memo in that the case, he wrote that the pocketed items were "of no evidentiary or monetary value . . . left behind as a result of the illegal aliens crossing." Andre Segura, an ACLU attorney representing the plaintiffs, claimed Tennyson would not discipline subordinates if he considered them friends. Segura said a Tennyson investigation of allegations that his friend Det. Brian Mackiewicz was fraudulently claiming overtime and having an improper relationship with a victim of a domestic violence incident was fruitless. Mackiewicz played an important role in communications with Dennis Montgomery, a private investigator Arpaio hired to investigate the sheriff's suspicions that the Department of Justice was conspiring against him. Arpaio's office is also said to be investigating Mackiewicz. Maryann McKessy, a former Maricopa County attorney, made the complaint against Mackiewicz, her former boyfriend, after learning he was dating the domestic violence victim while still dating her. Tennyson said that "based on the information [McKessy] provided us at that time" there was no evidence of criminal wrongdoing. "To me it wasn't relevant; cheating wasn't a violation of state law," Tennyson said. Segura asked Tennyson if he tried to speak to Arpaio about the overtime allegation. "I suggested, in order to further the investigation, I would need to speak to the sheriff," Tennyson responded. He said his request was denied. Tennyson closed the case. He said a court-appointed monitor overseeing the Sheriff's Office under the 2013 court order accused him of interviewing McKessy and immediately relaying her information to Mackiewicz. Tennyson denied it. "The monitors were quite angry with me," he said. "I knew in my heart of hearts I never would have interviewed McKessy and called Brian." The hearing continued Oct. 14 and is expected to last through November. MARSHALL SQUARE: Faces Class Action Over Resort Fire ---------------------------------------------------- Randy L. Key, writing for WJBF News Channel 6, reports that a class action lawsuit that has been filed in connection to the deadly fire at Marshall Square Retirement Resort, in Evans, that happened on June 2nd. The lawsuit was filed by Charles and Margaret Moye, who lived at Marshall Square when that fire started. The suit, which names six defendants, seeks class action status based on the number of residents in the building at the time of the fire. The lawsuit claims the Moyes were placed on the 3rd floor of the facility, despite both of them being in their 90's and Margaret Moye using a walker which made it difficult to evacuate. The suit also alleges that the design of the building was flawed. The lawsuit goes on to allege the defendants told residents to shelter in place when the fire started and did not help residents evacuate. MEMPHIS, TN: Cops Awarded Monetary Damages, Attorneys' Fees ----------------------------------------------------------- District Judge Jon P. McCalla granted the Plaintiffs' motion for payment of attorneys' fees, reimbursement of expenses, entry of judgment for Lakendus Cole, and post-judgment interest in the case captioned LAKENDUS COLE and LEON EDMOND, individually and as representatives of all others similarly situated, Plaintiffs, v. CITY OF MEMPHIS, TENNESSEE, Defendant, No.: 2:13-CV-02117-JPM-DKV, (W.D. Tenn.) Plaintiff Lakendus Cole is a police officer employed with the City of Memphis Police Department Organized Crime Unit, and Plaintiff Leon Edmond is a Special Agent employed with the Bureau of Alcohol, Tobacco, Firearms and Explosives. Plaintiffs assert a class action claim against Defendant City of Memphis for "the policy, procedure, custom, or practice by which police officers of the Memphis Police Department (MPD) order all persons to immediately leave the sidewalks and street on Beale Street when there are no circumstances present which threaten the safety of the public or MPD police officers (referred to as the "Beale Street Sweep"). Plaintiffs Cole and Edmond also assert individual claims against the City of Memphis. Plaintiffs filed a motion for payment of attorneys' fees, reimbursement of expenses, entry of judgment for Lakendus Cole, and post-judgment interest. In his Order dated August 27, 2015 available at http://is.gd/3EpIijfrom Leagle.com, Judge McCalla granted the Plaintiff's motion for payment of attorneys' fees, reimbursement of expenses, entry of judgment for Lakendus Cole, and post- judgment interest. The Court directed Defendant City of Memphis to pay Lakendus Cole $35,000.00 in damages as awarded by the jury in this case; Memphis was further ordered to pay Lakendus Cole $411.48 in prejudgment interest on the damages award; Lakendus Cole's request for postjudgment interest on the damages award also was granted. The Court also awarded Spence Law Firm, PLLC $389,563.50 as attorneys' fees based on 1,468.35 hours of labor; and an enhancement of the award of attorneys' fees in the amount of $58,434.53, for a total attorneys' fees award of $447,998.03. The Court found it appropriate to award Plaintiffs' counsel a 15% enhancement (1.15 multiplier). The Court said Plaintiffs have submitted sufficient evidence to establish reasonableness of the hours logged. Bryan Meredith, Esq., Emmett Lee Whitwell, Esq., and Robert L.J. Spence, Jr., Esq., of SPENCEWALK, PLLC serve as counsel for Plaintiff Lakendus Cole J. Michael Fletcher, Esq. -- michael@michaelfletcherlawoffice.com -- of FLETCHER LAW FIRM; Barbaralette G. Davis, Esq., and Zayid A. Saleem, Esq., of CITY ATTORNEY'S OFFICE-Memphis serve as counsel for Defendant City of Memphis MMA CAPITAL: Hearing to Approve Class Action Settlement Set ----------------------------------------------------------- MMA Capital Management, LLC said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 12, 2015, for the quarterly period ended June 30, 2015, that a hearing to approve a class action settlement was set for September 24, 2015. The Company is a defendant in a purported class action lawsuit originally filed in 2008. The plaintiffs claim to represent a class of investors in the Company's shares who allegedly were injured by misstatements in press releases and SEC filings between May 3, 2004 and January 28, 2008. The plaintiffs sought unspecified damages for themselves and the shareholders of the class they purported to represent. The class action lawsuit was brought in the United States District Court for the District of Maryland. The Company filed a motion to dismiss the class action, and in June 2012, the Court issued a ruling dismissing all of the counts alleging any knowing or intentional wrongdoing by the Company or its affiliates, directors and officers. The plaintiffs appealed the Court's ruling and on March 7, 2014, the United States Court of Appeals for the Fourth Circuit unanimously affirmed the lower Court's ruling. As a result of these rulings, the only counts remaining in the class action relate to the Company's dividend reinvestment plan. The parties have engaged in settlement discussions leading to a settlement agreement. On April 20, 2015, the parties submitted the agreement and related documents to the United States District Court for the Districted of Maryland for approval. The agreement provides for a maximum of $826,820 to cover payments to the class as well as the attorneys for the plaintiffs' counsel. The settlement is a claims-made settlement, in which payments will be made only to those plaintiffs who submit a claim and whose claim is approved, thus the final settlement amount to the class could be less than the amount stated above. Similarly, the court must approve the plaintiffs' counsel's attorneys' fees, thus the final amount could be less than stated. A hearing to approve the settlement was set for September 24, 2015. The Company does not expect to directly incur any settlement costs, as all costs, including both class payments and plaintiffs' attorneys' fees, will be paid directly by its insurance company. As a result, the Company released the litigation reserve of $0.5 million during the first quarter of 2015. MOTORS LIQUIDATION: 100 Recall Suits Filed v. New GM at July 20 --------------------------------------------------------------- About 100 putative class actions have been filed as of July 20, 2015, against "New General Motors" in various federal and state courts seeking compensatory and other damages for economic losses allegedly resulting from one or more of the recalls announced in 2014 and/or the underlying condition of vehicles covered by those recalls. This number was disclosed in the Form 10-Q Report filed by Motors Liquidation Company GUC Trust with the Securities and Exchange Commission on August 11, 2015, for the quarterly period ended June 30, 2015. The GUC Trust is a successor to Motors Liquidation Company (formerly known as General Motors Corp.) for the purposes of Section 1145 of the United States Bankruptcy Code. The GUC Trust holds and directs the distribution of, and pending such distribution administers, certain assets pursuant to the terms and conditions of the Second Amended and Restated Motors Liquidation Company GUC Trust Agreement, dated as of July 30, 2015 and as amended from time to time, and pursuant to the Second Amended Joint Chapter 11 Plan, dated March 18, 2011, of MLC and its debtor affiliates, for the benefit of holders of allowed general unsecured claims against the Debtors. The GUC Trust was formed on March 30, 2011, as a statutory trust under the Delaware Statutory Trust Act, for the purposes of implementing the Plan and distributing the GUC Trust's distributable assets. Wilmington Trust Company serves as trustee and trust administrator of the GUC Trust, and FTI Consulting, Inc. serves as trust monitor of the GUC Trust. The Plan generally provides for the distribution of certain shares of common stock of the new General Motors Company, formerly known as NGMCO, Inc. -- New GM -- and any associated Dividend Cash, and certain warrants for the purchase of shares of such stock to holders of Allowed General Unsecured Claims pro rata by the amount of such claims. In its annual report on Form 10-K filed February 4, 2015, New GM disclosed that, since the beginning of 2014, New GM had recalled approximately 2.6 million vehicles to repair ignition switches or to fix ignition lock cylinders, or the Ignition Switch Recall, and had recalled an additional 33.4 million vehicles to address certain electrical and other safety concerns, including approximately 12.1 million vehicles to rework or replace ignition keys. New GM does not consider any of these 12.1 million vehicles to be a part of the Ignition Switch Recall. Many of the vehicles affected by the foregoing recalls were manufactured or sold prior to July 10, 2009, or the Closing Date, the date on which the sale of substantially all of the assets of Old GM pursuant to the MSPA was completed. In its quarterly report on Form 10-Q filed July 23, 2015, New GM also disclosed that, as of July 20, 2015, 100 putative class actions have been filed against New GM in various federal and state courts seeking compensatory and other damages for economic losses allegedly resulting from one or more of the recalls announced in 2014 and/or the underlying condition of vehicles covered by those recalls. Certain of these 100 cases, or the Ignition Switch Economic Loss Actions, concern the Ignition Switch Recall, certain other cases, or the Other Economic Loss Actions, concern recalls other than the Ignition Switch Recall, and yet others concern both the Ignition Switch Recall and one or more other recalls (such actions are described interchangeably as Ignition Switch Economic Loss Actions or Other Economic Loss Actions). In addition, New GM disclosed that, as of July 20, 2015, 172 putative class actions have been filed against New GM in various federal and state courts seeking compensatory and other damages for personal injury and other claims allegedly arising from accidents that occurred as a result of the underlying condition of the vehicles subject to the recalls initiated by New GM. Certain of these 172 cases, or the Ignition Switch Personal Injury Actions, concern the Ignition Switch Recall, certain other cases, or the Other Personal Injury Actions, concern recalls other than the Ignition Switch Recall, and yet others concern both the Ignition Switch Recall and one or more other recalls (such actions are described interchangeably as Ignition Switch Personal Injury Actions or Other Personal Injury Actions). Since June 2014, 204 Recall-Related Actions have been transferred to the United States District Court of the Southern District of New York, or the MDL Court, and have been consolidated into a single case, case number 14-MD-2543 (JMF), or the MDL Proceeding. On October 14, 2014, the plaintiffs in certain Recall-Related Actions filed two amended and consolidated complaints in the MDL Proceeding that concern vehicles designed, manufactured or sold prior to the Closing Date. Concurrently with the proceedings before the MDL Court, New GM has taken steps in the Bankruptcy Court to enjoin the Subject Recall- Related Actions. In that respect, beginning on April 21, 2014, New GM filed a series of motions with the Bankruptcy Court seeking to enjoin the Subject Recall-Related Actions and to enforce the Sale Order and Injunction entered on July 5, 2009, or the Sale Order (under which all product liability and property damage claims arising from accidents or incidents prior to the Closing Date were to remain with Old GM as general unsecured claims), or the Motions to Enforce. Beginning on May 16, 2014, the Bankruptcy Court entered a series of scheduling orders which identified a number of "threshold issues" to be resolved by the Bankruptcy Court, including (i) whether plaintiffs' procedural due process rights were violated in connection with the 363 Transaction, (ii) if such due process rights were violated, what is the appropriate remedy, (iii) whether any or all of the claims asserted in the Subject Recall- Related Actions are claims against Old GM and/or the GUC Trust, and (iv) whether any such claims against Old GM and/or the GUC Trust should be dismissed as equitably moot. The GUC Trust appeared as a party in interest with respect to New GM's Motions to Enforce and filed briefs in opposition thereto, asserting that none of the claims of the plaintiffs in the Subject Recall-Related Actions may be properly asserted against Old GM or the GUC Trust. On April 15, 2015, the Bankruptcy Court rendered a decision, or the Threshold Issues Decision, on the threshold issues holding (among other things) that the plaintiffs in the Ignition Switch Economic Loss Actions and the Ignition Switch Personal Injury Actions may seek authorization to file late claims in the bankruptcy cases of Old GM, but that any such claims as against the GUC Trust are "equitably moot" (that is, fashioning relief for the plaintiffs against the GUC Trust would be "impractical, imprudent and therefore inequitable"), and thus the assets of the GUC Trust cannot be used to satisfy such claims, or the Equitable Mootness Finding. On June 1, 2015, the Bankruptcy Court issued a judgment, or the Threshold Issues Judgment, which clarifies the terms of the Threshold Issues Decision and distills the Bankruptcy Court's holdings into a binding order. The Threshold Issues Judgment provides, in pertinent part, the following: (i) The plaintiffs in the Ignition Switch Economic Loss Actions suffered a due process violation with respect to the Sale Order, whereas the plaintiffs in the Ignition Switch Personal Injury Actions did not suffer a due process violation with respect to the Sale Order; (ii) As a result of the due process violation, the provisions of the Sale Order which purport to shield New GM from any liability associated with its independent post-Sale actions can be modified, and the plaintiffs in the Ignition Switch Economic Loss Actions may proceed against New GM with respect to its independent post- Sale actions; (iii) Any claims asserted in the Ignition Switch Economic Loss Actions and the Ignition Switch Personal Injury Actions that relate to actions of Old GM are enjoined from being pursued against New GM on successor liability grounds, or the Successor Liability Finding; (iv) The Equitable Mootness Finding is applicable to plaintiffs in the Ignition Switch Economic Loss Actions and the Ignition Switch Personal Injury Actions, and thus, the assets of the GUC Trust cannot be utilized to satisfy any claims that may be filed by such plaintiffs after the date of entry of the Threshold Issues Judgment; (v) Although the Equitable Mootness Finding does not apply automatically to plaintiffs in the Other Economic Loss Actions or the Other Personal Injury Actions, such plaintiffs must file a pleading, or an Equitable Mootness Pleading, with the Bankruptcy Court asserting a good faith basis as to why the Equitable Mootness Finding should not apply to their Other Economic Loss Actions or Other Personal Injury Actions. In any Equitable Mootness Pleading, plaintiffs are not permitted to re-litigate issues of law that were addressed in the Threshold Issues Decision. If a plaintiff in an Other Economic Loss Action or Other Personal Injury Action fails to file a timely Equitable Mootness Pleading, or if the Bankruptcy Court denies the relief requested by the plaintiff in the Equitable Mootness Pleading, the GUC Trust is permitted to seek dismissal of the applicable Other Economic Loss Actions or Other Personal Injury Actions. However, in the event that the Bankruptcy Court grants the relief requested by any plaintiff in a timely Equitable Mootness Pleading, such plaintiff could seek to assert claims against the GUC Trust, which claims (if allowed) could dilute the recoveries of holders of Units in the GUC Trust. To date, the plaintiffs in the Other Economic Loss Actions and Other Personal Injury Actions have not asserted the aggregate amount of their claims; and (vi) Pursuant to section 502(j) of the Bankruptcy Code, assets of the GUC Trust may be used to satisfy previously allowed or disallowed claims that are reconsidered for cause. Hence, any person who holds a previously allowed or disallowed claim may seek to have that claim reconsidered by the Bankruptcy Court, and in the event that any such claimant prevails in an application for reconsideration, the resulting additional allowed claims could dilute the recoveries of holders of Units in the GUC Trust. Similar to the Equitable Mootness Finding, the Successor Liability Finding does not apply automatically to plaintiffs in the Other Economic Loss Actions or the Other Personal Injury Actions, and the Threshold Issues Judgment contains procedures for such plaintiffs to contest the applicability of the Successor Liability Finding to their individual Other Economic Loss Actions or the Other Personal Injury Actions. Following entry of the Threshold Issues Judgment, plaintiffs in certain Other Economic Loss Actions and Other Personal Injury Actions filed Equitable Mootness Pleadings, or reservations of rights thereto, and plaintiffs in certain Other Economic Loss Actions and Other Personal Injury Actions filed pleadings contesting the applicability of the Successor Liability Finding, or the Successor Liability Pleadings. In addition, certain of such plaintiffs have sought to have the Equitable Mootness Pleadings and the Successor Liability Pleadings heard by the MDL Court in lieu of the Bankruptcy Court, or the Motions to Withdraw the Reference. The GUC Trust intends to vigorously oppose the Equitable Mootness Pleadings and the Motions to Withdraw the Reference. The Threshold Issues Decision and Threshold Issues Judgment are subject to appeal by plaintiffs in the Ignition Switch Economic Loss Actions and Ignition Switch Personal Injury Actions, and certain of these plaintiffs have filed notices of appeal. Subsequent to such filings, New GM and the GUC Trust each filed notices of cross-appeal with respect to the Threshold Issues Decision and Threshold Issues Judgment. In a separate order entered on June 1, 2015, the Bankruptcy Court certified its Threshold Issues Decision and Threshold Issues Judgment for a direct appeal to the Second Circuit. In the event that the Second Circuit accepts the certification, the appeals of the Threshold Issues Decision and Threshold Issues Judgment will be heard directly by the Second Circuit, bypassing the intermediate appeal to the District Court for the Southern District of New York, or the District Court. Alternatively, if the Second Circuit denies the certification, the appeals of the Threshold Issues Decision and Threshold Issues Judgment will be heard by the District Court. Appellate proceedings have been stayed, except for certain procedural steps, until a time when the Second Circuit rules on the certification. If the Bankruptcy Court's Equitable Mootness Finding is not overturned on appeal, the claims of the plaintiffs in the Ignition Switch Economic Loss Actions and the Ignition Switch Personal Injury Actions have been determined to be equitably moot and, as a result, such claims (even if allowed by the Bankruptcy Court) may not dilute the recoveries of holders of Units in the GUC Trust. However, in the event that the decision is overturned with respect to the Equitable Mootness Finding, it is possible that those plaintiffs could seek to assert claims against the GUC Trust, which claims (if allowed) could dilute the recoveries of holders of Units in the GUC Trust. On July 1, 2015, the GUC Trust announced that the GUC Trust was exploring, together with certain plaintiffs to the Ignition Switch Economic Loss Actions, Other Economic Loss Actions, Ignition Switch Personal Injury Actions and Other Personal Injury Actions, a potential global resolution of all disputes between the GUC Trust on the one hand and such plaintiffs on the other, relating to the Subject Recall-Related Actions and related appeals of the Threshold Issues Decision and Threshold Issues Judgment, or the Potential Resolution. At the present time, settlement discussions have not materially progressed, and the GUC Trust intends to continue vigorously defending its positions in the Motions to Enforce litigation and the related appeals. NABORS COMPLETION: Must Defend Against "Ridgeway" Action -------------------------------------------------------- District Judge Dean D. Pregerson denied Defendants' motions to compel arbitration, and dismiss or stay, in the case captioned BRANDYN RIDGEWAY and TIM SMITH on behalf of themselves and all others similarly situated and the general public, Plaintiff, v. NABORS COMPLETION & PRODUCTION SERVICES CO., a Delaware corporation; CITY OF LONG BEACH, a California municipality; TIDELANDS OIL PRODUCTION COMPANY, a Texas General Partnership, Defendants, Case No. CV 15-03436 DDP (VBKX), (C.D. Cal.) Plaintiffs Brandyn Ridgeway (Ridgeway) and Tim Smith (Smith; collectively, Plaintiffs) brought this class action wage and hour employment dispute against their former employer, Defendant Nabors Completion and Production Services, Co. (Nabors), as well as unknown Doe defendants. Plaintiffs allege Nabors failed to pay prevailing wages on public works, violated California Labor Code sections 203 and 226(a), and violated California Business & Professions Code section 17200. Plaintiffs have also alleged a declaratory relief cause of action against Nabors and Defendants City of Long Beach (Long Beach) and Tidelands Oil Production Company (Tidelands), asking the court to find that the work Plaintiffs did for Nabors was "public work" because Nabors was a subcontractor of Tidelands, who had contract with Long Beach. The arbitration agreement is divided into two parts. First is an introductory section titled "The Nabors Dispute Resolution Program" and second is a description of the rules of arbitration titled "Nabors Dispute Resolution Rules." In his Order dated October 13, 2015 available at http://is.gd/TbGoTSfrom Leagle.com, Judge Pregerson denied Defendants' motions to compel arbitration and dismiss or stay. There is no real debate that consenting to the arbitration agreement was a condition of even applying to work for Defendants, as well as to continue in employment, the Court said. Further, there are no facts alleged or provisions in the agreement providing that Plaintiffs could have negotiated different terms, much less that they could have forgone the agreement and still had a job. Therefore, the arbitration agreement is procedurally unconscionable as a nonnegotiable requirement of employment drafted by the employer, who had the greater bargaining power. The Court also finds that the unilateral modification provision is unconscionable. The notice provision -- limited as it is -- is insufficient to save the provision, as is any implied covenant, which the Court finds cannot save any unilateral modification provision. Both procedural and substantive unconscionability are present here. Several elements Plaintiffs complained of are unconscionable: the fees and costs of arbitration; the discovery provision; and the unilateral modification provision. Because these are some of the most basic terms of the arbitration contract, the Court finds that the contract is not fixable by simply severing the unconscionable terms and allowing arbitration to proceed. Instead, the entire contract is permeated with the unconscionable effects of these provisions and the contract is thus unenforceable. Judith L Camilleri, Esq. -- jcamilleri@donahoo.com -- Richard E Donahoo, Esq. -- rdonahoo@donahoo.com -- and Sarah Louise Kokonas, Esq. -- skokonas@donahoo.com -- of Donahoo and Associates serve as counsel for Plaintiff Brandyn Ridgeway, on behalf of themselves and all others similarly situated and the general public Kimberly Ann Chase, Esq. -- kimberly.chase@haynesboone.com -- Matthew E Costello, Esq. -- matthew.costello@haynesboone.com -- Tamara I Devitt, Esq. -- tamara.devitt@haynesboone.com -- and Alexander R Stevens, Esq. -- peterstevenscfi@gmail.com -- of Haynes and Boone LLP serve as counsel for Defendant Nabors Completion and Production Services Co., a Delaware corporation NAUGATUCK VALLEY: Jury Trial Sought in Maryland Class Actions ------------------------------------------------------------- Naugatuck Valley Financial Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 11, 2015, for the quarterly period ended June 30, 2015, that four putative class action lawsuits have been filed in Maryland, Morris Goldstein v. Naugatuck Valley Financial Corporation et al., in the Circuit Court for Baltimore City, Case No. 24C15003203, Lenard Cohen v. Naugatuck Valley Financial Corporation et al., in the Circuit Court for Baltimore City, Case No. 24C15003391, Angelo J. Falco v. Naugatuck Valley Financial Corporation et al., in the Circuit Court for Baltimore City, Case No. 24C15003392, and Dallas Faulkner v. Naugatuck Valley Financial Corporation et al., in the Circuit Court for Baltimore City, Case No. 24C15003602. The lawsuits name as defendants Naugatuck Valley, the members of our board of directors and Liberty. The court has consolidated the first three cases and is expected to consolidate all four of these lawsuits. A demand for jury trial has been made in each case. The lawsuits allege a breach of fiduciary duty due to inadequate merger consideration, the process leading to the proposed transaction and potential conflicts of interest. The lawsuits also allege that Liberty aided and abetted the breach of fiduciary duty. The relief sought includes class certification, an injunction against the merger until all alleged breaches have been cured, damages if the merger has been completed prior to the entry of final judgment, costs and attorney's fees. Naugatuck Valley Financial and Naugatuck Valley Savings are also subject to claims and litigation that arise primarily in the ordinary course of business. Based on information presently available and advice received from legal counsel representing Naugatuck Valley Financial and Naugatuck Valley Savings in connection with such claims and litigation, it is the opinion of management that the disposition or ultimate determination of such claims and litigation will not have a material adverse effect on the consolidated financial position, results of operations or liquidity of Naugatuck Valley Financial. NEW YORK, NY: Ex-Police Commissioner Appears Before Judge --------------------------------------------------------- Adam Klasfeld, writing for Courthouse News Service, reported that dogged by allegations of evidence destruction in a class action lawsuit in Manhattan opposing police quotas, New York City Police Commissioner Ray Kelly swore to a federal judge that he "never" used email for "substantive communication." But a mysterious email sent by Kelly shows that he apparently approved the transfer of a female officer who filed a formal grievance that is "directly relevant" to the case, an attorney said at a hearing on Oct. 13. It has been more than five years since East Harlem resident Sharif Stinson led several other black New Yorkers in a class action lawsuit accusing the NYPD of issuing 850,000 phony summonses to maintain an unconstitutional quota system. Stinson's lawyer Elinor Sutton blames the delay, in part, on the city failing to meet their discovery deadlines and destroying relevant evidence. In July, the New York Daily News reported what the lawyers called a "stunning pattern" of spoliation, a legal term for the hiding, withholding or destruction of evidence. Since that time, former NYPD Police Commissioner Ray Kelly swore in a court declaration under oath that it was "never my practice" to use email or text messages to discuss any "substantive communication." Kelly added later that he "simply did not use email" and "simply did not engage" in electronic communications because he wanted his discussions to be "un-compromisable." Calling these assertions "demonstrably false," Sutton suggested a one-word reply email that Kelly fired off in September 2010 tells a different story. While the correspondence remained redacted in court papers, Sutton revealed during the hearing that it discussed a female officer who filed a formal grievance claiming that the department retaliated against her because of her opposition to quotas. Kelly gave a one-word response to an email with a subject line alluding to this officer's "transfer for cause," Sutton said. "Yes," he wrote, according to Sutton. The lawyer says that this email was only discovered in a file maintained at the NYPD's Office of Labor Relations because an employee there printed a hard copy. City lawyer Qiana Smith-Williams replied that Stinson's lawyers were putting too much stock in "one word: 'yes.'" "There is no reason this court should not accept Kelly's representations," she said. Smith-Williams wrote in a letter to the court that this implication was "astounding, not to mention professionally irresponsible," under the heading "Commissioner Kelly Did Not Commit Perjury." Kelly was not the only high-ranking NYPD official who claimed to shun electronic communications. Joseph Esposito, who was then the NYPD's chief of department, swore in a declaration that "it was never my practice to use email or text messaging to communicate about topics like summonses, enforcement activity, performance goals." Since Esposito acknowledged receiving but not sending emails about homicides, injured officers, and gang activity, Sutton spotted a "game" being played in the construction of this denial. "How they're using the word 'use' email is misleading, at best," she said. She also noted that the NYPD issued Esposito four different devices, an iPad, a BlackBerry, a Nextel phone and a beeper. "If the NYPD and taxpayers are providing all of these devices, we hope it is for 'use,'" Sutton quipped. Even though the court-ordered discovery deadline of June 12 has long passed, Stinson's lawyers allege a wide stash of evidence has not been turned over -- such as text messages, monthly activity reports, and handwritten notes from CompStat meetings, where the police brass discuss trends in arrests and summonses. "This has to end, Your Honor," she said. "It has to." U.S. District Judge Robert Sweet, who sat quietly through more than an hour of arguments without asking a question, gave no indication of when and how it would conclude. Stinson's lawyers have requested a wide range of possible sanctions, including legal fees or an instruction to jurors that they could draw an "adverse inference" from the missing documents. Sweet reserved decision without any comment. NEW YORK, NY: Damages Trial in Parole Class Suit to Start Dec. 7 ---------------------------------------------------------------- Adam Klasfeld, writing for Courthouse News Service, reported that New York's top correctional and parole brass can't rehash their "patently frivolous" immunity arguments to delay a civil rights trial four years in the making, a federal judge said in a scathing ruling. Since 2011, former New York State Corrections Commissioner Brian Fischer and dozens of other colleagues and parole officers have tried to fend off a class action lawsuit accusing them of going around courts to enforce parole terms that their departments concocted. The practice had its roots in a New York state law imposing a mandatory parole term of known as post-release supervision for certain violent felonies since 1998. As the statute did not require judges to announce the terms of parole at sentencing, the state's corrections and parole departments often stepped in to fill the void. This practice landed thousands of former prisoners back behind bars for parole violations that no court imposed. The Second Circuit declared that practice unconstitutional in its 2006 Earley v. Murray decision. "Only the judgment of a court, as expressed through the sentence imposed by a judge, has the power to constrain a person's liberty," the appeals court held in Earley. Five years later, dozens of civil rights lawsuits poured into Manhattan Federal Court, accusing correctional and parole officers of ignoring the 2006 decision. The correctional and parole brass named as defendants tried three times in vain to claim immunity from litigation. Two of those attempts failed before U.S. District Judge Shira Scheindlin, and another fell flat before the Second Circuit, which also rejected en banc review. In addition, the U.S. Supreme Court declined to hear the case. Scheindlin, who is known for her tough stance against civil rights violations, did not take kindly to the defendants' request to postpone trial as they pursued yet another appeal. "The delays in this case have caused substantial hardship to plaintiffs (and, needless to say, have been caused by defendants' relentless efforts to prevail on qualified immunity)," the judge wrote. "For over four years, thousands of class members have waited for their due process claims to be adjudicated -- additional postponements will only exacerbate these harms." A New York State Department of Corrections Services database identified at least 8,100 prisoners whose sentences were implicated by the Earley decision, the ruling says. Schiendlin added that trial will be quick because the case's "undisputed record" leaves "no room for debate" on the merits. Trial will center on the damages owed by three of the defendants: Fischer, his former deputy Anthony Annuci, and former parole department chief counsel Terence Tracy. Their damages trial will start on Dec. 7. The New York Attorney General's office, which is representing the defendants, declined to comment on the ruling. NORTHLAND INVESTMENT: Attorney Mulls Class Suit Over Church Street ------------------------------------------------------------------ Paul Bass, writing for New Haven Independent, reports that a prominent New Haven attorney confirmed he will "soon" file a class-action lawsuit against Northland Investment Corp. on behalf of the families living at the crumbling Church Street South housing complex. "What has been done and is being done to these families is being done to them not because of what they did, but because of who they are, because they have the misfortune of being vulnerable and needing to rely on others to fulfill their social and legal responsibilities," the attorney, David Rosen, told the Independent. "The main point about what is happening here is that it isn't just being done to one person or one family, but that it's being done to a whole segment of our community." Mr. Rosen said families from Church Street South contacted him seeking representation in a civil suit to recover damages they've suffered -- ranging from lost furniture to health problems -- because of conditions at the federally subsidized apartment complex across from Union Station. The federal Department of Housing and Urban Development (HUD) has declared Northland, the complex's Massachusetts-based owner, in default of its contract for over $3 million a year in rental subsidies for the project. The city has condemned many of the apartments and ordered massive repairs. Northland is now working with the city and HUD to move some families temporarily into hotel rooms and all families to permanent new housing elsewhere over the coming year. Lawyers form New Haven Legal Assistance represent over 60 of the families living at Church Street South in efforts to seek repairs and safe new housing. But legal aid does not file civil lawsuits seeking monetary damages. That's where Mr. Rosen now comes in. Mr. Rosen has practiced law in New Haven for 45 years, handling high-profile cases ranging from the 1970 murder trial of Black Panther Bobby Seale to class-action cases discrimination and wrongful-death cases. He is one of the lawyers suing the state executive branch in an educational-equity case. He won a $900,000 jury verdict against East Haven police on behalf of Emma Jones (pictured with Rosen) in the killing of her son Malik. (An appeals court subsequently overturned that award.) Northland CEO Larry Gottesdiener declined comment on the pending suit. NPC INTERNATIONAL: Denial of Arbitration Bid Affirmed ----------------------------------------------------- Judge David McKeague of the U.S. Court of Appeals for the Sixth Circuit affirmed a district court order denying NPC International, Inc.'s motion to compel arbitration in five cases against the Pizza Hut operator. The appellate cases are captioned SKYLAR GUNN, Plaintiff-Appellee, v. NPC INTERNATIONAL, INC., Defendant- Appellant. WILLIAM HARRIS, Plaintiff-Appellee, v. NPC INTERNATIONAL, INC., Defendant-Appellant. CANDACE JOWERS, Plaintiff-Appellee, v. NPC INTERNATIONAL, INC., Defendant- Appellant. TIFFNEY PENLEY, et al., Plaintiffs-Appellees, v. NPC INTERNATIONAL, INC., Defendant-Appellant. LEAH REDMOND, Plaintiff- Appellee, v. NPC INTERNATIONAL, INC., Defendant-Appellant, Nos. 14-6036, 14-6040, 14-6041, 41-6042, 14-6044, (6th Cir.) Defendant NPC International, a Kansas corporation, operates Pizza Hut Restaurants in numerous states across the country. In January 2013, five separate actions were commenced against NPC in the Western District of Tennessee. All five were assigned to the same judge. The plaintiffs in all five cases are represented by the same counsel. Each of the actions asserts claims under the Fair Labor Standards Act (FLSA), for unpaid minimum wages and overtime compensation by a different class of current or former employees of NPC. Plaintiff Skylar Gunn brought action on behalf of herself and other similarly situated tipped employees, also classified as waiters/waitresses/servers; plaintiff William Harris proceeded on behalf of cooks; Candace Jowers on behalf of delivery drivers; Tiffney Penley on behalf of shift managers; and Leah Redmond on behalf of customer service representatives. In each case, NPC is alleged to have established uniform policies and practices that denied the named plaintiff and other similarly situated employees' compensation they were entitled to, in violation of the FLSA. In each of the five cases, NPC took various responsive actions, but it was not until April 2014 that it first asserted that the claims were subject to mandatory arbitration under the plaintiffs' employment contracts by moving the court to dismiss the actions for lack of jurisdiction or alternatively, to compel arbitration. The court thus held that NPC had waived its right to compel arbitration and denied NPC's motions to dismiss. The court also denied NPC's motions for reconsideration and these appeals followed. In his Opinion dated August 28, 2015 available at http://is.gd/Bh4sDJfrom Leagle.com, Judge McKeague affirmed the District Court's denial of NPC's motions to dismiss or, in the alternative, to compel arbitration, in all five cases. Judge McKeague said the district court properly heeded "the important remedial purpose" served by the FLSA collective action mechanism. "Through it, a plaintiff who has suffered only small monetary harm can join a larger pool of similarly situated plaintiffs." And "that pool can attract effective counsel who knows that if the plaintiffs prevail, counsel is entitled to a statutorily required reasonable fee as determined by the court." The judicial system, too, benefits from the collective action mechanism because it allows for efficient resolution of common issues of law and fact arising from the same alleged unlawful activity. ON DECK: Faces Class Actions in S.D.N.Y. Over IPO ------------------------------------------------- On Deck Capital, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 11, 2015, for the quarterly period ended June 30, 2015, that two separate putative class actions were filed in August 2015 in the United States District Court for the Southern District of New York against the Company, certain of its executive officers, directors and certain or all of the underwriters of its initial public offering, or IPO. "The suits allege that the registration statement for our IPO contained materially false and misleading statements regarding, or failed to disclose, specified information in violation of the Securities Act of 1933, as amended," the Company said. "The suits seek a determination that the case is a proper class action and/or certification of the plaintiff as a class representative, rescission or a rescissory measure of damages and/or unspecified damages, interest, attorneys' fees and other fees and costs. The Company intends to defend itself vigorously in these matters, although at this time we cannot predict the outcome. ORBITAL ATK: Agreed to Settle Stockholder Litigation ---------------------------------------------------- Parties in the Orbital Corporation Stockholder Litigation have agreed to settle the Consolidated Lawsuit and release the defendants from all claims, Orbital ATK, Inc. said in its Form 10- Q Report filed with the Securities and Exchange Commission on August 11, 2015, for the quarterly period ended July 5, 2015. Putative class action and derivative lawsuits challenging the Merger were filed in the Court of Chancery of the State of Delaware in May 2014, naming Orbital, the Company and Orbital's directors. On November 14, 2014, the lawsuits were consolidated by the court under the caption In Re Orbital Corporation Stockholder Litigation (the "Consolidated Lawsuit"). The plaintiffs alleged, among other things, that the directors of Orbital breached their fiduciary duties in connection with the Merger, and alleged that the Company aided and abetted such breaches of fiduciary duty. On January 16, 2015, the parties entered into a memorandum of understanding (the "MOU") regarding the settlement of this matter. If the court approves the settlement contemplated by the MOU, the Consolidated Lawsuit will be dismissed with prejudice. Under the terms of the MOU, the parties agreed to settle the Consolidated Lawsuit and release the defendants from all claims relating to the Merger, subject to court approval. Pursuant to the terms of the MOU, Orbital and the Company agreed to make available additional information to Orbital's stockholders in connection with the Merger vote, and the defendants agreed to negotiate regarding an appropriate amount of fees to be paid to plaintiffs' counsel by Orbital or its successor. PENNSYLVANIA: DOC's Preliminary Objections Partly Overruled ----------------------------------------------------------- Judge Bernard L. McGinley overruled in part and sustained in part the Department of Corrections' preliminary objections in the case captioned Terrance Williams; Richard Laird; Robert Wharton; Hubert Michael, Michael E. Ballard, individually and on behalf of all others similarly situated, Petitioners, v. Commonwealth of Pennsylvania Department of Corrections, Respondent, No. 353 M.D. 2014, (Pa. Commw.) In 1990, the General Assembly adopted the following method of execution: "the death penalty shall be inflicted by injecting the convict with a continuous intravenous administration of a lethal quantity of an ultrashort-acting barbiturate in combination with chemical paralytic agents approved by the department until death is pronounced by the coroner." Petitioners now request the Commonwealth Court to declare the DOC's Protocol invalid and unlawful. Petitioners bring the action on behalf of themselves and a class of all 184 inmates sentenced to death in the Commonwealth. The DOC filed preliminary objections. In his Opinion dated October 15, 2015 available at http://is.gd/lzxo5Cfrom Leagle.com, Judge McGinley overruled in part and granted in part the DOC's Preliminary Objections. According to Judge McGinley, the Preliminary Objection: -- in the nature of a demurrer is overruled. -- with regard to jurisdiction is overruled. -- with regard to whether the Petitioners have standing to challenge the Protocol is overruled. -- with regard to standing to assert claims related to the ethical standards of nurses and paramedics is sustained. The DOC is directed to file an answer within 30 days of the entry of the Order. According to Judge McGinley, at this early stage of the litigation, taking Petitioners' allegation that pentobarbital and potassium chloride are neither ultrashort-acting barbiturates nor chemical paralytic agents as true, Petitioners have stated a claim that the Protocol violates the statute. Therefore, the DOC's first PO is overruled. Petitioners have sufficiently pled a cause of action in the first portion of Claim II and the DOC's second PO is overruled and DOC shall file an answer to Claim II of the petition for review. The Court considers Petitioners' allegations that the drugs listed in the Protocol will be used to execute Petitioners as more than "rank speculation" because the Protocol was adopted by the DOC and has been in effect since August 28, 2012. To the extent Petitioners are sufficiently aggrieved by the contents of the Protocol to confer standing to challenge the legality of the Protocol, Petitioners would also have standing to challenge whether it was promulgated in the manner prescribed by law. The DOC's preliminary objection that the Petitioners lack standing to challenge the Protocol is overruled. PORSCHE: Car Owners File Class Action Over Windshield Glare ----------------------------------------------------------- Jenna Reed, writing for Glassbytes.com, reports that two California-based Porsche owners have filed a state class action lawsuit alleging their vehicles have a "windshield glare" visibility issue. "This action arises out of a uniform problem in the class vehicles and their beige-colored dashboards, including, but not limited to, Luxor Beige, Sand Beige, or any other beige dashboard, which interferes with the ability of drivers to see the road," reads the court documents. "This condition, caused by the reflection of light from the unusually light colored dashboards into the windshield, and then into the drivers' eyes, can momentarily blind drivers or impair their ability to see the roadway. This windshield glare poses a clear, unreasonable safety risk." The two plaintiffs, Roy Jones and Alyce Rubinfeld, contend Porsche has been aware of the alleged windshield glare since 2011. "Owners of the affected vehicles have a reasonable expectation that they should be able to see clearly through their windshields during normal and routine use of their vehicles. They do not expect Porsche to sell them a product that Porsche knew to cause an unsafe reflection of sunlight into the drivers' eyes," according to the court documents. Plaintiffs are demanding a jury trial. PROFESSIONAL MANAGEMENT: Dist. Ct. Order in Szczurek Case Affirmed ------------------------------------------------------------------ The United States Court of Appeals, Third Circuit affirmed the district court order granting a motion for judgment on the pleadings in the case captioned, JOSEPH SZCZUREK, individually, and on behalf of others similarly situated, Appellant, v. PROFESSIONAL MANAGEMENT INC. d/b/a Financial Recoveries; DOES 1 THROUGH 10, INCLUSIVE, Case No. 14-4775. Szczurek filed a purported class action in the District Court alleging that PMM had violated Sections 1692e and 1692f of the FDCPA by sending correspondence that created the false impression that the only way to stop PMM from further contact was to pay the debt. Szczurek sought declaratory and injunctive relief, as well as damages, and asked the court to certify a class of individuals who received correspondence from PMM indicating that the specified debt must be paid in order to avoid further contact. PMM moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. PMM claimed that it was entitled to judgment as a matter of law because its correspondence fully complied with the FDCPA. The District Court agreed, granted the motion, and dismissed the complaint. Because the District Court found no violation of the FDCPA, it did not reach the question of class certification. On appeal, Szczurek argued that the letter violated Sections 1692e and 1692f of the FDCPA because it created the false impression that the only way that he could prevent further contact from PMM was to pay the debt. In the Opinion dated October 1, 2015 available at http://is.gd/TzXzZQfrom Leagle.com, Judge Sloviter agreed with the District Court that PMM's correspondence did not violate the FDCPA and concluded that the District Court did not err in granting PMM's motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. PRESBYTERIAN HOMES: Faces Class Action Over Leases -------------------------------------------------- Scott Holland, writing for Cook County Record, reports that six women have brought a class action against Presbyterian Homes, alleging the company violated the terms of their leases, as well as Chicago and Illinois law, when the property management company announced its buildings had been sold to developers and threatened with eviction tenants who, until the announcement, believed the terms of their leases entitled them to a subsidized apartment "for life." The plaintiffs -- Linda Armitage, Christine Broxon, Patricia Healy, Margaret Lilek, Barbara Madro and Carolyn Summers -- say senior living facility operator Presbyterian Homes, of Evanston, violated terms of the Chicago Residential Landlord and Tenant Ordinance and the Illinois Consumer Fraud Act by breaching a contract they had for lifetime leases. The complaint, filed early October in Cook County Circuit Court's Chancery Division, arose after Presbyterian Homes announced Aug. 14 it would be selling its buildings and evicting residents. At issue are three subsidized-rent buildings -- called Neighborhood Homes buildings -- Mulvey Place (416 W. Barry Ave.), Crowder Place (3801 N. Pine Grove Ave.) and Devon Place (195 W. Devon Ave.) The plaintiffs say about 100 women live in the buildings, all believing they had lifetime leases that require them to be able to live independently and pay the rent, which is subsidized. Of the six, who are in their mid-60s to early 80s, Madro has the shortest tenure, having been in her Mulvey Place apartment for just six months, while Lilek holds the longest lease, having lived at Crowder Place for 13 years. According to the complaint, "the leases have a specific start date, fixed rent subsidy, fixed rent amount and lifetime guarantee stated as an ending date listed as 'N/A' . . . All residents have essentially the same lease, with the only differences being the start date and the amount of rent and subsidy." Many tenants, they say, were told they "had a home for life" and "would never have to move." They also were told their rent obligations could be reduced if they experienced a change in income, as rent was fixed at 28 percent of a tenant's annual income. Tenants learned of the plans to sell the properties via an Aug. 14 letter, slid under each apartment's door. The letter said leases were being unilaterally terminated and informed the women they would need to move. The apartments are to be closed by Nov. 1, 2016. The complaint states the letter was the first time tenants and apartment employees learned of the possibility of a sale and eviction. Presbyterian Homes executives, including CEO Todd Swortzel, conducted meetings at the homes, reporting the buildings would be sold to for-profit developers. The executives "refused to engage residents or local public officials about sale to affordable housing operators," they said. While the implication at that session was a sale was imminent, Presbyterian Homes was actively soliciting new residents as late as March 2015, the complaint stated. Some women have moved, accepting the offer of $1,500 in moving assistance. Others are on waiting lists for subsidized apartments, some which cite three to five years before an opening. The complaint asserted, however, the people who moved only did so under threat of eviction by Nov. 1, 2016, which is the last date subsidized rent is guaranteed. In addition to certification as a class action and a jury trial, the plaintiffs seek damages, legal fees, injunctions barring Presbyterian Homes from evicting anyone and from selling the three buildings unless the lifetime leases are transferred, as well as stopping the company from preventing women who left any of the three Presbyterian Homes' properties from returning to their unit under their prior lease. The women are represented by Matthew J. Piers and Charles D. Wysong, of Hughes Socol Piers Resnick & Dym, Chicago. QC HOLDINGS: Settlement in "Lee" Case to Be Completed by Yearend ---------------------------------------------------------------- QC Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 11, 2015, for the quarterly period ended June 30, 2015, that parties in the "Lee" class action expect that they will complete the settlement by the end of 2015. On October 18, 2011, Matthew Lee, an alleged Alberta, Canada resident sued Direct Credit, all of its subsidiaries and three former directors of those subsidiaries in the Supreme Court of British Columbia in a purported class action. The plaintiff alleged that Direct Credit and its subsidiaries violated Canada's criminal usury laws by charging interest on its loans at rates higher than 60%. The parties have settled the case. The Company's share of the settlement amount and ancillary expenses, net of indemnification from the prior owners of Direct Credit, is $500,000 (Canadian). The settlement will involve refunds and credits to class members dating back to 2001. The deadline for eligible customers to make a claim was July 21, 2015. The parties expect that they will complete the settlement by the end of 2015. QC HOLDINGS: Settlement Talks Urged in "Stemple" Litigation ----------------------------------------------------------- QC Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 11, 2015, for the quarterly period ended June 30, 2015, that a court has ordered a stay in the "Stemple" litigation to allow the parties to explore possible settlement options. On August 13, 2012, the Company was sued in the United States District Court for the South District of California in a putative class action lawsuit filed by Paul Stemple. Mr. Stemple alleges that the Company used an automatic telephone dialing system with an "artificial or prerecorded voice" in violation of the Telephone Consumer Protection Act, 47 U.S.C. 227, et seq. On September 5, 2014, the district court granted Plaintiff's Motion for Class Certification. The certified class consists of persons and/or entities who were never customers of the Company, but whose 10-digit California area code cell phone numbers were listed by the Company's customers in the "Employment" and/or "Contacts" fields of their loan applications, and who the Company allegedly called using an Automatic Telephone Dialing System for the purpose of collecting or attempting to collect an alleged debt from the account holder, between August 13, 2008 and August 13, 2012. In April 2015, the court refused to reconsider its certification order, but did order a stay in the litigation to allow the parties to explore possible settlement options. QC HOLDINGS: Faces "Marquez" Class Action in C.D. Cal. ------------------------------------------------------ QC Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 11, 2015, for the quarterly period ended June 30, 2015, that the Company was sued on April 20, 2015, in the United States District Court for the Central District of California in a putative class action lawsuit filed by Mike Marquez. Mr. Marquez alleges that the Company was violating California law when it allegedly failed to notify California residents that it was recording phone calls it made to cell phones. The complaint does not identify any other members of the proposed class, nor how many members may be in the class. At this time, there is no reasonable way to determine possible exposure. RCS CAPITAL: ARCH Trust Litigation Still Pending ------------------------------------------------ RCS Capital Corporation continues to defend the American Realty Capital Healthcare Trust Litigation, RCS revealed in its Form 10-Q Report filed with the Securities and Exchange Commission on August 11, 2015, for the quarterly period ended June 30, 2015. In connection with the proposed acquisition by Ventas, Inc. ("Ventas") of all the outstanding stock of American Realty Capital Healthcare Trust, Inc. ("ARCH"), purported shareholders of ARCH have filed multiple class action lawsuits in the Circuit Court for Baltimore City, Maryland and other jurisdictions. Two of these actions named Realty Capital Securities among others, as a defendant. The actions are: Shine v. American Realty Capital Healthcare Trust, Inc. et al filed June 13, 2014 and Abbassi, et al. v. American Realty Capital Healthcare Trust, Inc. et al. filed July 9, 2014. The actions also assert derivative claims on behalf of ARCH against Realty Capital Securities. On October 10, 2014, lead plaintiffs in the Maryland state court action filed a "Consolidated Amended Derivative and Direct Class Action Complaint," asserting direct and derivative claims of aiding and abetting a breach of fiduciary duty against multiple defendants, including Realty Capital Securities, arising from their roles providing services to ARCH in connection with the proposed acquisition of ARCH by Ventas and seek (i) to enjoin the proposed acquisition and (ii) recover damages if the proposed acquisition is completed. A similar shareholder action, Rosenzweig v. American Realty Capital Healthcare Trust, Inc. et al, 1:14-cv- 02019-GLR, was filed in federal court for the District of Maryland. On January 2, 2015 and January 5, 2015, the parties to the consolidated state court action and the Rosenzweig action executed separate memoranda of understanding regarding settlement of all claims asserted on behalf of each alleged class of ARCH stockholders in each case. In connection with the settlement contemplated by each memoranda of understanding, each action and all claims asserted therein will be dismissed, subject to approval by each applicable court. Pursuant to the executed memoranda of understanding, ARCH made certain additional disclosures related to the Ventas transaction. The memoranda of understanding further contemplate that the parties will enter into a stipulation of settlement, which will be subject to customary conditions, upon the conclusion of confirmatory discovery and court approval following notice to ARCH's stockholders. If the parties enter into a stipulation of settlement, a hearing will be scheduled at which the court will consider the fairness, reasonableness and adequacy of the settlement. There can be no assurance that the parties will ultimately enter into a stipulation of settlement, that the applicable court will approve any proposed settlement, or that any eventual settlement will be under the same terms as those contemplated by the memorandum of understanding. The Company believes that such lawsuits are without merit, but the ultimate outcome of the matter cannot be predicted with certainty. Neither the outcome of the lawsuits nor an estimate of a probable loss or any reasonable possible losses is determinable at this time. No provisions for any losses related to the lawsuits have been recorded in the accompanying consolidated financial as of June 30, 2015. An adverse judgment for monetary damages could have a material adverse effect on the operations and liquidity of the Company. All defendants have stated in court filings that they believe that the claims are without merit and are defending against them vigorously. RCS CAPITAL: To Defend Against "Weston" Amended Complaint --------------------------------------------------------- RCS Capital Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 11, 2015, for the quarterly period ended June 30, 2015, that the Company intends to vigorously defend itself against allegations in the amended complaint filed in the case, Weston v. RCS Capital Corporation et al. On or about December 29, 2014, a securities law class action lawsuit was filed in federal court in the Southern District of New York (Weston v. RCS Capital Corporation et al, 14 CV 10136) against the Company and certain former or current officers and directors of the Company. The lawsuit asserts the Company and the individual defendants violated Section 10(b) and 20(a) of the Securities Exchange Act of 1934 by making materially false and misleading public statements pertaining to the Company's financial position and future business and acquisition prospects. Specifically, plaintiffs allege that defendants made false and/or misleading statements and/or failed to disclose that: (i) the financial statements of ARCP were material false and misleading as a result of accounting errors that were disclosed by ARCP on October 29, 2014; (ii) the Company's announced acquisition of Cole Capital Partners LLC and Cole Capital Advisors was at serious risk due to the accounting issues at ARCP; and (iii) the Company's revenue stream from its relationship with ARCP was in jeopardy as a result of the accounting issues at ARCP announced on October 29, 2014. A newly-appointed lead plaintiff filed an amended complaint on June 1, 2015, naming the Company, RCAP Holdings LLC, RCAP Equity LLC, and certain former and current officers and directors of the Company as defendants. The amended complaint alleges that the Company's public statements in 2014 discussing the strength and success of the Company's wholesale and investment banking businesses, as well its public statements regarding the benefits of the announced acquisition of Cole Capital, were materially false and misleading because they failed to provide an accurate portrait of the true strength and specific risks to the Company and its wholesale brokerage and investment banking businesses. Such statements allegedly misrepresented and/or failed to disclose that certain Company executives, who also held roles with ARCP, were engaged in a fraudulent scheme to misstate the financial results of ARCP. The amended complaint alleges defendants (except RCAP Equity LLC, a holding company under common ownership with RCAP Holdings with no ongoing operations, assets or liabilities) violated Sections 11, 12 and 15 of the 1933 Securities Act in connection with the Company's June 2014 secondary stock offering. It further alleges that the Company and certain defendants violated Section 10(b) and 20(a) of the Securities Exchange Act of 1934. The Company believes the Weston amended complaint is without merit and intends to vigorously defend itself against its allegations. RCS CAPITAL: Dismissal of ARCP Shareholder Class Action Sought -------------------------------------------------------------- RCS Capital Corporation has filed a motion to dismiss all of the claims against it and Realty Capital Securities in the so-called ARCP Shareholder Class Action Litigation, RCS revealed in its Form 10-Q Report filed with the Securities and Exchange Commission on August 11, 2015, for the quarterly period ended June 30, 2015. The Company was named as a defendant in a consolidated federal securities law class action (Teachers Insurance and Annuity Association of America, et al. v. American Realty Capital Properties, Inc. et al, Civ. A. 15-cv-00421) filed in federal court in New York on January 21, 2015 brought on behalf of all persons who purchased or otherwise acquired securities of ARCP between May 6, 2013 and October 29, 2014, including ARCP common stock, preferred stock and debt securities. The lawsuit's claims, premised on Sections 11, 12 and 15 of the Securities Act of 1933 and Sections 14(a), 10(b) and 20(a) of the Securities Exchange Act of 1934, allege generally that defendants issued or assisted in the issuance of false and misleading statements to the investing public, including in registration statements, prospectuses, proxies and other public statements and press releases, concerning ARCP's financial results as part of a scheme to artificially inflate the value of ARCP's securities. More specifically, the complaint alleges that the Company is a "control person" of ARCP under the securities laws and thus plaintiffs seek to hold the Company responsible for the alleged misstatements of ARCP and its officers and directors. The Company is also alleged to be a "structuring advisor" to ARCP. Realty Capital Securities is named as a defendant based on its role as a co-manager of ARCP's July 2013 convertible notes offering. On April 17, 2015, plaintiffs filed an amended complaint, which, like the original complaint, alleges that the Company is a "control person" of ARCP under the securities laws. The amended complaint also names Realty Capital Securities as a defendant based on its role as a co-manager of ARCP's July 2013 convertible notes offering. The Company believes the amended complaint is without merit and intends to vigorously defend itself against the allegations contained in the complaint. The Company has filed a motion to dismiss all of the claims against it and Realty Capital Securities. RUSHCARD: Prepaid Debit Card Customers May Opt for Arbitration -------------------------------------------------------------- Mandi Woodruff, writing for Yahoo.com, reports that thousands of RushCard's estimated 3 million prepaid debit card customers who lost access to their accounts on Oct. 10. The company, co-founded by music mogul Russell Simmons in 2003, blamed the lapse in service on a software glitch that occurred while it upgraded its transaction processing software. In a statement issued Oct. 19, Rick Savard, CEO and Chairman of RushCard, said the system was "back up and running," despite hundreds of comments from customers who still claimed their funds had not been returned. "RushCard employees are working around the clock to get every single customer full access to their funds," he said. For RushCard customers who were burned by the software debacle, their options for recourse are limited. Part of the reason prepaid debit card use has ballooned over the last few years is that traditional banks have become prohibitively expensive for low-income workers. Some big banks charge monthly fees of $12 unless customers maintain a minimum balance of $1,500, an amount some people, like Jackson, simply can't keep on hand. Prepaid cards charge fees, too, of course, but they typically don't require minimum balances and monthly fees can be significantly lower than some big bank accounts (RushCard customers pay $5.95 to $7.95 per month). Prepaid cards are also useful alternatives for customers who have poor banking histories and can't get approved for traditional bank accounts. Most cards do not allow customers to overdraw their accounts. "We've been pretty supportive of prepaid cards because our research shows these products could be a really good alternative for somebody who wants an account but can't use a bank account," says Susan Weinstock, director of the consumer banking project at The Pew Charitable Trusts. "We certainly didn't see this coming." For customers looking for prepaid debit card alternatives to the RushCard, they can start by researching fees on sites like NerdWallet or Bankrate. As much as customers are using the RushCard's Facebook and Twitter feeds as a forum for complaints, they're also helping one another suss out better options. Many prepaid debit card customers have been bumped out of the traditional banking system when they develop a poor banking history, which can happen if they overdraw their accounts, bounce checks or open and close savings or checking accounts too often (80% of banks and credit unions in the U.S. use ChexSystems, a consumer reporting agency, to see how often customers have closed checking and savings accounts in bad standing). But consumers with a less-than-stellar banking history still have options beyond prepaid cards. Two national banks, Green Dot, offered by Walmart, and Wells Fargo, offer their version of a "second chance bank account." These accounts, which might be listed under a name like "opportunity checking," are offered by a number of regional and local banks as well (here's a comprehensive list from Nerdwallet). Kind of like a secured credit card, which helps people rebuild their credit histories, second chance accounts help customers build up their bank history. Taking them to court Thousands of poor customers left penniless by a big financial services company? It sounds like any class action attorney's dream case. Unfortunately, like the majority of financial products and services, the RushCard bans customers from filing class action lawsuits. Their only legal option is to file a case to be handled in arbitration, which can be expensive. "Customers would have to go to a lawyer to see what the damages are and see if it's cost effective," says Christine Hines, Legislative Director of the National Association of Consumer Advocates. "But these are low-income people. I don't think they'll be able to take on the cost of arbitration." Affected consumers can file complaints with the Consumer Financial Protection Bureau (submit one here), but even though the watchdog has successfully recouped losses for consumers in cases like this in the past, it could take years for folks like Jackson to receive compensation. In an ironic twist, the CFPB is expected to finalize new rules for prepaid card companies like UniRush in January. The rules, which mostly pertain to transparent fee disclosures and fraud liability, probably would not have made a difference to RushCard users, says Weinstock. In the meantime, Simmons and his team haven't exactly impressed customers with their response to the mess. They offered a "fee- free" holiday service period, in which no fees would be charged for RushCard customers from Nov. 1 through Feb. 29. Russell Simmons posted a video apology to the company's Facebook page four days after the glitch became public. SAM'S WEST: Won't Honor Fresh Food Refund Guarantee, Suit Says -------------------------------------------------------------- Sam's West, Sam's East and Walmart do not honor the 200% refund guarantee for fresh food on their membership agreement, a class action claims in Federal Court in Santa Ana, Calif., Courthouse News Service reported. SCO FAMILY: Charity Workers Underpaid, Class Suit Alleges --------------------------------------------------------- Adam Klasfeld, writing for Courthouse News Service, reported that a charity that makes hundreds of millions of dollars a year serving 60,000 vulnerable New Yorkers is "not so conscious of the plight of their very own workers," including a woman who put in 100-hour weeks without overtime, a class claims in court in Manhattan, NY. Doreen Jones is the lead plaintiff in the lawsuit filed on Oct. 13 against SCO Family of Services, a Glen Cove, N.Y.-based charity, and four of its top executives. The lawsuit notes that SCO "flagrantly touts its socially conscious mission" on its website, which boasts of its 120-year history and its current reach of helping thousands of homeless and struggling families and more than 100 locations. However, "case workers who are entrusted to carry out the organization's mission on a day-to-basis, social conscience, a sense of fairness, and even the law, are of little concern to defendants," the lawsuit filed in Manhattan Supreme Court states. "In fact, defendants, who collect hundreds of millions of dollars in fees on an annual basis, routinely and willfully take advantage of their case workers to the point were they are overworked, underpaid, and intentionally deprived of their legal, earned wages," the 15-page action continues. The charity's chief strategy officer Rose Anello stood by her organization's record with its employees in a phone interview. "SCO takes great pride in assuring that staff are not only lawfully compensated, but treated fairly and with the utmost respect," she commented. SCO's most recent publicly filed tax form reported that the organization received more than $244 million in total revenue from contributions, grants, services, investments and other income in 2013. The organization has sometimes struggled, however, to keep its finances in the black, the same form shows. It lost more than $518,000 in 2012, and made more than $498,000 in 2013. Jones, who has worked for the organization for seven years, says that the charity has cut corners at the expense of its employees. Since Jones started working for the charity in 2008, her salary barely inched up from $35,500 to $38,515 a year, she says. She says that she's allowed to clock in only 35 hours per week, but that her real hours typically range from between 55 to 75 hours. That's because the charity and its executives "burden their caseworkers with immense case loads, inadequate staffing, and deadlines which must be met in order to avoid severe negative repercussions," according to the lawsuit. "If case workers do not meet these deadlines, despite the amount of hours that it takes in a workweek to do so, defendants threaten such case workers with discipline, up to and including termination," the complaint says. "Essentially, the case workers are left with no choice but to do the work at home, on weekends, and during their lunch 'breaks' (which could take anywhere from at least fifty to seventy hours per week), without compensation, or lose their jobs." For two weeks, Jones put in roughly 140 hours without collecting any overtime, she says. Jones is represented by Russell Moriarty of Levine & Blit in the lawsuit, which alleges violations of U.S. and state employment-law protections. The firm may be reached at: Russell Moriarty, Esq. LEVINE & BLIT, PLLC 350 Fifth Avenue, 36th Floor New York, NY 10118 Tel: 212-967-3000 SIERRA HIGH SCHOOL: Calif. School Sued Over Lesbian T-Shirt ----------------------------------------------------------- Nick Cahill, writing for Courthouse News Service, reported that a Northern California high school that sent a girl home for wearing a "Nobody knows I'm a lesbian" T-shirt, claiming she was "promoting sex," is facing a federal lawsuit in Sacramento for it. Sixteen-year-old T.V. and her mother sued two assistant principals at Sierra High School in Manteca, a town of 72,000 just south of Stockton. They claim assistant principal Dan Beukelman and vice principal Greg Leland violated the state and federal constitutions and the California Education Code by censoring her shirt with claims that it was "promoting sex" and "an open invitation to sex." Leland sent her home from school on Aug. 10 after she refused his order to change it. She says he told her "that she was not allowed to display her 'sexuality' on clothing." When she met with him the next day and pointed out that the Manteca Unified School District had no such dress code, he told her "that regardless of the dress code, she was not allowed to display her 'personal choices and beliefs' on a shirt. He also claimed that her shirt violated the dress code because it was 'disruptive' and could be 'gang related,'" according to the Oct. 15 complaint. T.V. says that Leland told her if it was not in the dress code, they could add it. He sent her to assistant principal Beukelman, who told her the next day, Aug. 12, when she was not wearing the shirt, that it violated the dress code because it "promoted sexuality." In a paragraph that might make a good classroom lesson, the complaint states: "T.V. explained to Beukelman that sex and sexuality had different meanings. Beukelman told T.V. she was wrong and claimed that sexuality fell under the category of sex." That led to an Aug. 13 meeting with T.V., her father, the two assistant principals and the teacher who turned her in. T.V. and her parents point out that the school allows students to wear shirts promoting commercial products, "including Captain Morgan's Rum," and that barring her shirt is viewpoint discrimination. To top it off, Sierra High School and Manteca USA can suspend or expel a student for "willful defiance." T.V. says she fears she could be expelled if she wears the shirt again. Her attorney Christine Sun, with the ACLU of Northern California, told Courthouse News the principals should know better. "Public schools can't censor the political beliefs of students, and free speech is not subject to the whims and biases of school administrators," Sun said. "This student's school should be teaching her to think for herself, not punishing her for being herself." Leland and Beukelman did not return requests for comment. In a statement, Manteca Unified School District said it would not discuss T.V.'s case. "Sierra High School is a place where students are taught to respect one another and to learn to work together," the district added. "We support free rights of speech, accept our diversity, while maintaining a learning environment free of disruption for all students. As a school and district we are obligated to adhere to all applicable federal civil rights statutes and regulations enforced by the Office for Civil Rights." In addition to the obvious constitutional violations, T.V. and her parents say the school is targeting her because of her sexuality, which violates the California Education Code. "Defendants' actions are, in whole or in part, unlawfully motivated by their disagreement with the plaintiff's viewpoint concerning sexual orientation, or out of anti-gay animus," the complaint states. They seek declaratory judgment and an injunction, better training for school employees, and nominal damages of $1. SNYDER'S-LANCE: Tentative Settlement Agreement Reached ------------------------------------------------------ A tentative settlement agreement has been reached in a class action involving Snyder's-Lance, Inc., the company revealed in its Form 10-Q Report filed with the Securities and Exchange Commission on August 11, 2015, for the quarter ended July 4, 2015. The Company said, "We have certain class action legal proceedings filed against us which allege that certain ingredients in some of our products that are labeled as "natural" and "all natural" are not natural. Although we believe that we have strong defenses against these claims, subsequent to end of the second quarter, we reached a tentative settlement agreement in order to avoid the costs and uncertainty of litigation. The tentative settlement amount is $2.8 million and the tentative settlement is subject to the preparation, negotiation and execution of definitive settlement agreements. Accordingly, we have recorded an accrual of $2.8 million as of July 4, 2015, which represents our best estimate of the loss we now believe is probable." SNYDER'S-LANCE: Continues to Defend IBOs Class Action ----------------------------------------------------- Snyder's-Lance, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 11, 2015, for the quarter ended July 4, 2015, that the Company continues to defend the so-called IBOs class action. In January 2013, plaintiffs comprised of independent business owner ("IBO") filed a putative class action against our distribution subsidiary, S-L Distribution Company, Inc., in the Suffolk Superior Court of the Commonwealth of Massachusetts. The lawsuit was transferred to the United States District Court, Middle District of Pennsylvania. The lawsuit seeks statewide class certification on behalf of a class comprised of IBOs in Massachusetts. The plaintiffs allege that they were misclassified as independent contractors and should be considered employees. The plaintiffs are seeking reimbursement of their out-of-pocket business expenses. "We believe we have strong defenses to all the claims that have been asserted against us. Given the nature of litigation and the complexities involved in this matter, we are unable to predict the resolution of this lawsuit or to reasonably estimate a possible loss or range of loss for this matter until we know, among other factors, (i) the extent of claims, particularly when damages are not specified or are indeterminate, (ii) how the litigation process, including discovery will impact the litigation, (iii) the settlement posture of the parties to the litigation, (iv) the validity of our defenses and (v) any other factors that may have a material effect on this litigation. It is possible that an unfavorable outcome with respect to this proceeding could have a material adverse effect on our results of operations," the Company said. SONY PICTURES: Settles Class Suit by Hacked Employees ----------------------------------------------------- Courthouse News Service reported that Sony Pictures will pay at least $5.5 million to settle a class action in Los Angeles, California, from employees whose personal information was hacked in an attack the United States blamed on North Korea, which was furious about a movie satirizing its fearless leader Kim Jong Un. The settlement agreement was filed in Superior Court in the seven cases consolidated under the name of the first filer, Michael Corona v Sony Pictures Entertainment. The Hollywood Reporter also reported the settlement. The settlement would provide $2 million to pay each class member up to $1,000 to protect them from identity theft. The class counsel would get about $3.5 million. Sony also must provide ID theft monitoring and insurance for workers who were hacked, and another $2.5 million to pay each class member up to $10,000 for ID thefts traced to the Sony hack. Potential class members can opt out of the agreement, which needs court approval. SPRINT SPECTRUM: "Emilio" Plaintiff May Amend Complaint ------------------------------------------------------- District Judge J. Paul Oetken granted Plaintiff's motion to file an amended complaint in the case captioned VINCENT EMILIO, individually and on behalf of all others similarly situated, Plaintiff, v. SPRINT SPECTRUM L.P., d/b/a SPRINT PCS, Defendant, No.: 11-CV-3041 (JPO), (S.D.N.Y.) Plaintiff Vincent Emilio brings this putative class action against Defendant Sprint Spectrum L.P., d/b/a Sprint PCS, asserting a violation of the Kansas Unfair Trade and Consumer Protection Act (KCPA). In February 2014, the Court granted Emilio's motion to confirm the award, and Emilio filed a class action complaint, which Sprint moved to dismiss. The Court denied Sprint's motion. Subsequently, Emilio moved to file an amended complaint. In his Opinion and Order dated August 27, 2015 available at http://is.gd/BIM480from Leagle.com, Judge Oetken granted Emilio's motion to file an amended complaint. The Court said it cannot conclude that Sprint would be prejudiced by the additional preparations it would be required to undertake in responding to the proposed amended complaint (PAC). Judge Oetken noted that, at the direction of Magistrate Judge Fox, to whom this case has been referred for general pretrial supervision, fact discovery in this case is set to continue for several more months, and expert discovery is not due until February 2016. Sprint has not indicated that it will need to conduct a significant amount of additional discovery to respond to the PAC. The additional matter in the proposed pleadings appears to refer to the same Sprint consumer disclosures and other discovery similar to what was already at issue since the initial complaint. Finally, Sprint may request an extension of discovery deadlines, or the reconsideration of prior discovery-related orders, if the filing of the PAC necessitates it. The Court concluded that the amendment is not futile and that the filing of the PAC would not unduly prejudice Sprint. Jason Allen Zweig, Esq. -- jasonz@hbsslaw.com -- Daniel Kurowski, Esq. -- dank@hbsslaw.com -- and Steve W. Berman, Esq. -- steve@hbsslaw.com -- of Hagens Berman Sobol Shapiro LLP -- William Robert Weinstein, Esq. -- bill@wweinsteinlaw.com -- of Law Offices of William R. Weisnstein serve as counsel for Petitioner Vincent Emilio Joseph Andrew Boyle, Esq. -- jboyle@kelleydrye.com -- Elizabeth D Silver, Esq., Lauri A Mazzuchetti, Esq. -- lmazzuchetti@kelleydrye.com -- Nainesh Ramjee, Esq. -- nramjee@kelleydrye.com -- and Vincent P. Rao, Esq. -- vrao@kelleydrye.com -- of Kelley Drye & Warren LLP serve as counsel for Respondent Sprint Spectrum L.P. SQUARE 1: 3 Class Actions Filed Over PacWest Merger --------------------------------------------------- Square 1 Financial, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 12, 2015, for the quarterly period ended June 30, 2015, that three putative stockholder class action lawsuits have been filed in connection with the previously disclosed proposed merger between the Company and PacWest. Manganaro v. Burke et al., Case No. 10817-VCL, was filed in the Court of Chancery of the State of Delaware on March 20, 2015, and was voluntarily dismissed without prejudice on May 5, 2015. Lakowitz v. Bowers et al., Case No. 1:15-CV-371, was filed in the federal district court for the Middle District of North Carolina on May 6, 2015 and was voluntarily dismissed without prejudice on May 7, 2015. Li v. Bowers et al., Case No. 1:15-CV-373 (the "Li Action"), was filed in federal district court for the Middle District of North Carolina on May 7, 2015. The Li Action alleged that the members of the Square 1 board of directors breached their fiduciary duties to Square 1 stockholders and failed to take steps to maximize the value to be paid to the Square 1 stockholders. In addition, the Li Action alleged that PacWest aided and abetted these alleged breaches of fiduciary duties. The Li Action also alleged violations of federal securities laws with respect to allegedly misleading statements contained in the registration statement filed with the SEC in connection with the merger. The plaintiffs in the Li Action sought, among other things, declaratory and injunctive relief, attorneys' fees and costs, and other and further relief. On June 1, 2015, the parties to the Li Action entered into a Memorandum of Understanding which sets forth the parties' agreement in principle to a settlement of that action. In connection with the settlement of the Li Action, Square 1 and PacWest agreed to make certain additional disclosures, which were contained in the definitive proxy statement and prospectus filed with the SEC with respect to the merger. The settlement remains subject to a number of conditions, including, among other things, final documentation and court approval following notice to the settlement class. There can be no assurance that the settlement will ultimately be approved by the court. STRATEGIC REALTY: $5MM Settlement in IPO Suit Approved ------------------------------------------------------ A federal judge in San Francisco, California, on Oct. 15 approved a $5 million final settlement of a shareholder class action involving Strategic Realty Trust's $70 million IPO, from which $1.3 million will go to attorneys' fees and costs; lead counsel was Girard Gibbs. The case is, LEWIS BOOTH, et al., Plaintiffs, v. STRATEGIC REALTY TRUST, INC., et al., Defendants. Case No. 13-cv-04921-JST (N.D. Cal.). STUART PETROLEUM: "Dyson" Case Wins Conditional Certification ------------------------------------------------------------- District Judge Robert L. Pitman granted Plaintiff's motion for conditional certification of a collective action and authorization for notice in the case captioned RORY DYSON, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. STUART PETROLEUM TESTERS, INC. and SCOTT YARIGER, Defendants, No.: 1-15- CV-282 RP, (W.D. Tex.) Plaintiff Rory Dyson brings this action both individually and on behalf of all others similarly situated against defendants Stuart Petroleum Testers, Inc. (Stuart) and Scott Yariger asserting violations of the Fair Labor Standards Act (FLSA). Plaintiff alleges Defendants provide oil and gas well monitoring services to energy companies in multiple states including Texas, Arkansas and Louisiana. Plaintiff states he, and other putative class members, are employed as "flow testers" whose primary duties consist of monitoring oil and gas wells. Plaintiff alleges he and other similarly situated workers were improperly classified by Defendants as independent contractors, rather than employees, despite the fact that Defendants wholly controlled their work. Plaintiff states that, although he and other similarly situated workers regularly worked in excess of 40 hours per week, they were not paid overtime compensation as required by the FLSA. Plaintiff further asserts Defendants' conduct was undertaken in willful, malicious and/or reckless disregard of the mandates of the FLSA. Specifically, Plaintiff alleges Defendants set up a paper profile designed to create the impression that flow testers were independent contractors, although in reality they were employees of Defendants. Plaintiff seeks monetary damages, attorney's fees and costs. Plaintiff filed a motion seeking conditional certification of this lawsuit as a collective action under the FLSA. Plaintiff asserts there are other similarly situated individuals whose rights under the FLSA have been violated by Defendants and those individuals should be permitted to opt-in to this action. The parties have filed responsive pleadings to the motion. In his Order dated August 27, 2015 available at http://is.gd/V3t4fZfrom Leagle.com, Judge Pitman granted Plaintiff's motion for conditional certification of a collective action and authorization for notice conditionally certifying a class under the FLSA of: "All current and former hourly-paid workers classified as independent contractors who performed work for Defendants associated with monitoring and maintaining oil and gas wells throughout the United States during the three-year period before the date the Court authorizes notice." Defendants were directed to provide counsel for Plaintiff in an electronic format names, all known addresses, all known email addresses, and all known phone numbers of the potential class members. Udyogi Hangawatte, Esq., and Galvin B. Kennedy, Esq., of Kennedy Hodges, L.L.P. serve as counsel for Plaintiff Rory Dyson James D. Rosenblatt, Esq. -- james@rosenblattlawfirm.com -- and Tiffanie Stegall Clausewitz, Esq. -- Tiffanie@rosenblattlawfirm.com -- of The Rosenblatt Law Firm, P.C. serve as counsel for Defendant Stuart Petroleum Testers, Inc. SWATCH GROUP: Court Denies Motion to Dismiss "Reed" Class Action ---------------------------------------------------------------- District Judge Esther Salas of the United States District Court for District of New Jersey denied Defendants' Motion to Dismiss the case captioned, ELLIOT REED, MICHAEL ASTA, individually and on behalf of others similarly situated, Plaintiffs, v. THE SWATCH GROUP (US), INC., a Delaware Corporation, Defendant, Case No. 14- 896(ES)(MAH). Plaintiffs Elliott Reed and Michael Asta bring the instant putative class action on behalf of themselves and similarly situated individuals, alleging violations of the Fair and Accurate Credit Transactions Act amendment to the Fair Credit Reporting Act, 15 U.S.C. Section 1681, et seq., as amended. The Complaint alleges that Plaintiff Elliot Reed made a purchase at Defendant's store at Garden State Plaza in New Jersey and received from Defendant an electronically-printed receipt that displayed the expiration date of his credit card. In the motion, Defendant challenges the Amended Complaint on the grounds that it does not "offer any allegation or evidence that Swatch issued credit card receipts at its New Jersey or Times Square store with the intent to violate FACTA. Plaintiffs respond that Defendant ignores the additional allegations set forth in the Amended Complaint, which sufficiently allege actual knowledge or intent. In her Opinion dated October 1, 2015 available at http://is.gd/boBqBKfrom Leagle.com, Judge Salas found that the Amended Complaint includes enough facts, accepted as true, to state a claim under FACTA because a reckless violation of FACTA is enough to satisfy the "willfulness" requirement. Plaintiffs are represented by Jeffrey W. Herrmann, Esq. - jwh@njlawfirm.com -- COHN, LIFLAND, PEARLMAN, HERRMANN & KNOPF, LLC. The Swatch Group is represented by Andrew Lowe O'Connor, Esq. -- aoconnor@nagelrice.com & Robert H. Solomon, Esq. -- rsolomon@nagelrice.com -- NAGEL RICE, LLP. TOBIRA THERAPEUTICS: Engaged in Confirmatory Discovery ------------------------------------------------------ Parties in a class action involving Tobira Therapeutics, Inc. are engaged in confirmatory discovery, the Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 11, 2015, for the quarterly period ended June 30, 2015. On February 2, 2015, a purported stockholder of Regado filed a putative class-action lawsuit (captioned Maiman v. Regado Biosciences, Inc., C.A. No. 10606-CB) in the Court of Chancery for the State of Delaware, or the Court, challenging the proposed stock-for-stock Merger of Regado with Tobira, or the Proposed Merger. On February 25, 2015, a second, related putative class action (captioned Gilboa v. Regado Biosciences, Inc., C.A. No. 10720-CB) was filed in the Court challenging the Proposed Merger. On May 4, 2014, the Proposed Merger was consummated and Tobira became a wholly-owned subsidiary of Regado and changed its name to Tobira Development Inc. The complaints name as defendants: (i) each member of Regado's Board of Directors, (ii) Regado, (iii) Private Tobira, and (iv) Landmark Merger Sub Inc. Plaintiffs allege that Regado's directors breached their fiduciary duties to Regado's stockholders by, among other things, (a) agreeing to merge Regado with Private Tobira for inadequate consideration, (b) implementing a process that was distorted by conflicts of interest, and (c) agreeing to certain provisions of the Merger Agreement that are alleged to favor Private Tobira and deter alternative bids. Plaintiffs also generally allege that the entity defendants aided and abetted the purported breaches of fiduciary duty by the directors. On March 25, 2015, the Court consolidated the two actions and assigned lead counsel for plaintiffs (captioned In re Regado Biosciences, Inc. Stockholder Litigation, Consolidated C.A. No. 10606-CB). On March 27, 2015, plaintiffs filed a consolidated amended complaint, a motion for expedited proceedings and a motion for preliminary injunction. On April 20, 2015, the parties agreed in principle to resolve the litigation (subject to approval by the Court) and signed a memorandum of understanding setting forth the terms of a proposed settlement to provide additional disclosures related to the Merger Agreement and cover Court awarded fees. On April 23, 2015, as part of the proposed settlement, Regado provided additional disclosures to its stockholders. The parties are currently engaged in confirmatory discovery, after which they will submit the proposed settlement to the Court for approval. As of June 30, 2015, the Company is unable to reasonably estimate an amount and/or a range of loss until the Company is made aware of the Court fees awarded by the Court to the plaintiffs under the proposed settlement, if any, as administered under settlement law. The Company maintains D&O insurance and tail coverage with deductibles of $2.0 million and $1.5 million respectively. TRUECAR INC: Faces "Mahapatra" Class Action in C.D. Cal. -------------------------------------------------------- Truecar, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 12, 2015, for the quarterly period ended June 30, 2015, that a purported securities class action complaint was filed on May 27, 2015, in the U.S. District Court for the Central District of California (the "Securities Litigation") by Satyabrata Mahapatra naming the Company and two other individuals not affiliated with the Company as defendants. On June 15, 2015, the plaintiff filed a Notice of Errata and Correction purporting to name Scott Painter and Michael Guthrie as individual defendants in lieu of the two individual defendants named in the complaint. The complaint in the Securities Litigation seeks an award of unspecified damages, interest and attorneys' fees based on allegations that the defendants made false and/or misleading statements, and failed to disclose material adverse facts about the Company's business, operations, prospects and performance. Specifically, the complaint alleges that during the putative class period, the defendants made false and/or misleading statements and/or failed to disclose that: (i) TrueCar's business practices violated unfair competition and deceptive trade practice laws (i.e., the issues raised in the NY Lanham Act Litigation); (ii) TrueCar acts as a dealer and broker in car sales transactions without proper licensing, in violation of various states' laws that govern car sales (i.e., the issues raised in the CNCDA Litigation); and (iii) as a result of the above, the Company's financial statements were materially false and misleading at all relevant times. The complaint asserts a putative class period stemming from May 16, 2014 to May 20, 2015. The Company believes that the complaint is without merit and it intends to vigorously defend itself in this matter. Based on the preliminary nature of the proceedings in this case, the outcome of this legal proceeding, including the anticipated legal defense costs, remains uncertain; accordingly, the Company cannot predict the ultimate outcome or reasonably estimate the probability of or the range of loss, if any, for this action. As a result, no loss accrual has been recorded in the Company's consolidated financial statements related to this matter. If this matter is not resolved in the Company's favor, losses arising from the results of litigation or settlements, as well as ongoing defense costs, could have a material adverse effect on the Company's business, financial condition, results of operations and cash flows. TRUECAR INC: Faces Participating Dealer Litigation -------------------------------------------------- Truecar, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 12, 2015, for the quarterly period ended June 30, 2015, that the Company was named as a defendant in a lawsuit filed on July 30, 2015, in the Superior Court for the County of Los Angeles by numerous automotive dealers who are participating on the TrueCar platform (the "Participating Dealer Litigation"). The complaint in the Participating Dealer Litigation seeks declaratory and injunctive relief based on allegations that the Company is engaging in unfairly competitive practices and is operating as an unlicensed automobile dealer and autobroker in contravention of various state laws. The Company believes that the complaint is without merit and it intends to vigorously defend itself in this matter. Based on the preliminary nature of the proceedings in this case, the outcome of this legal proceeding, including the anticipated legal defense costs, remains uncertain; accordingly, the Company cannot predict the ultimate outcome or reasonably estimate the probability of or the range of loss, if any, for this action. As a result, no loss accrual has been recorded in the Company's consolidated financial statements related to this matter. If this matter is not resolved in the Company's favor, losses arising from the results of litigation or settlements, as well as ongoing defense costs, could have a material adverse effect on the Company's business, financial condition, results of operations and cash flows. UNITED STATES: EBCI Among Tribes to Receive Settlement Funds ------------------------------------------------------------ Scott McKie B.P., writing for Cherokee One Feather, reports that the Eastern Band of Cherokee Indians will join hundreds of federally-recognized tribes across the country in receiving funds from a $940 million proposed settlement in a class action lawsuit known as the Ramah Navajo Chapter Settlement. The settlement seeks to end a 25-year dispute over contract support costs for tribal agencies. "The Eastern Band of Cherokee Indians is part of the class action suit against the Department of the Interior for failing to pay total contract support costs associated with the programs, services, functions and activities that the Tribe contracts for through the self-determination authority," said Hannah Smith, EBCI attorney general. "While the Tribe's settlement amount has not been negotiated yet, the Tribe does expect a settlement. This phase of the very large class action against the Department of the Interior still has a way to go before EBCI will be paid the funding it is owed." The suit was first filed by the Ramah Navajo Chapter, a sub-unit of the Navajo Nation, in 1990. The Oglala Sioux Tribe of South Dakota and the Pueblo of Zuni joined the suit as class representatives at a later date. "This landmark settlement represents another important step in the Obama Administration's efforts to turn the page on past challenges in our government-to-government relationship with tribes," Interior Secretary Sally Jewell said in a statement. "Tribal self-determination and self-governance will continue to be our North Star as we navigate a new chapter in this important relationship and we are committed to fully funding contract support costs so that tribal contracting can be more successful. Congress can and should make this happen." Kevin Washburn, Assistant Secretary for Indian Affairs, commented, "From the tribes' perspective, underfunding of contract costs is another broken promise. There is no longer any question that we agreed to pay these amounts and we are liable, the only question now is, how much money is needed to settle decades of liability with hundreds of tribal contractors?" According to information from Michael P. Gross, Class Counsel for the suit from Santa Fe, NM, "The actual distribution of funds will be handled by a company to be selected as the "Settlement Administrator". This company has not yet been selected. The Settlement Administrator's work will be supervised by a Class Monitor. Both the Settlement Administrator and the Class Monitor will be required to report all of their work back to the Court." David Jose, Ramah Navajo Chapter president, said in a statement, "This settlement will be remembered as a landmark victory by over 645 tribes and tribal organizations across the country that operate programs under the Self-Determination Act. It will promote the Act's goal of tribal self-sufficiency, self-reliance, and self-governance for generations to come and reduce unemployment on our reservations." John Yellow Bird Steele, Oglala Sioux Tribe president, commented, "We are satisfied with the fine settlement that has been reached here. Previously, they paternalistically shorted us and didn't give a darn. We are hopeful that we are now entering into a period of mutual cooperation with the Department of Interior. We hope the settlement clears the air for the future." This issue reached the U.S. Supreme Court which ruled in favor of the plaintiffs on June 18, 2012. According to the Final Settlement Agreement, "the United States Supreme Court held Defendants could not justify the failure to pay in full the contract support costs of an individual Tribal Contractor on the ground that Congress did not appropriate sufficient funds to meet the total contract support cost requirement of all Tribal Contractors . . ." UNITED STATES: Dist. Ct. Narrows Claims in "Jarita" Suit -------------------------------------------------------- District Judge James O. Browning issued a memorandum opinion and order in the case captioned JARITA MESA LIVESTOCK GRAZING ASSOCIATION; ALAMOSA LIVESTOCK GRAZING ASSOCIATION; SEBEDEO CHACON; THOMAS GRIEGO; DONALD GRIEGO; MICHAEL PENA; JUAN GIRON; JOE GURULE, JR.; FERNANDO GURULE; DIEGO JARAMILLO; LORENZO JARAMILLO; GABRIEL ALDAZ; ARTURO RODARTE; JEFFREY CHACON; GLORIA VALDEZ; JERRY VASQUEZ; CARLOS ORTEGA; LEON ORTEGA; HORACIO MARTINEZ; RONALD MARTINEZ; STEVE CHAVEZ; VANGIE CHAVEZ; ALFONSO CHACON; DANIEL RAEL; JOHN VALDEZ and BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF RIO ARRIBA, Plaintiffs, v. UNITED STATES FOREST SERVICE and DIANA TRUJILLO, in her official and individual capacities, Defendants, Case No. 14-CV-2604-REB-CBS. This matter came before the Court on the Federal Defendants' Motion and Memorandum to Dismiss Plaintiffs' Remaining Claims, filed February 10, 2015. The Court held a hearing on May 21, 2015. The primary issues are: (i) whether the Plaintiffs who suffer no economic injury can establish standing; (ii) whether the Plaintiffs' alleged injuries fall within the "zone of interests" of the National Environmental Policy Act of 1969, 42 U.S.C. Sections 4331-4370 ("NEPA"); (iii) whether the Plaintiffs properly exhausted their administrative remedies; (iv) whether the Plaintiffs' claim that the Forest Service violated the National Forest Management Act of 1976, Pub. L. No. 94-588, 90 Stat. 2949 (codified in scattered sections of 16 U.S.C.)("NFMA"), by failing to remove wild horses is a judicially cognizable claim; (v) whether the Forest Service's guidance document is judicially enforceable; and (vi) whether the Sustained Yield Forest Management Act of 1944, 16 U.S.C. Sections 583, 583a-583i ("SYFMA"), governs the Forest Service's issuance of livestock grazing permits. In his Memorandum Opinion and Order dated September 30, 2015 available at http://is.gd/b5gWJZfrom Leagle.com, Judge Browning concluded that the Plaintiffs who suffer no economic injury nonetheless have standing to redress their environmental, aesthetic, cultural, and recreational injuries. The Plaintiffs' injuries also fall within the zone of interests that the NEPA seeks to protect, although they may not pursue all of the remedies which they seek in the Complaint, filed January 20, 2012. Next, the Court concluded that the Plaintiffs have exhausted only some of their administrative remedies. The Court dismissed the unexhausted claims without prejudice to allow the Plaintiffs to exhaust their remaining claims before pursuing them in federal court. Even if the Plaintiffs had exhausted their remaining claims, however, the Court concluded that: (i) the Plaintiffs' claim that the Defendants violated the NFMA by failing to remove wild horses, Count Seven, is not judicially cognizable; (ii) the Forest Service's guidance document is not judicially enforceable under the Administrative Procedure Act, , 5 U.S.C. Sections 702- 706, Pub. L. No. 79-404, 60 Stat. 237 ("APA"), making Count Nine unenforceable; and (iii) the Plaintiffs' claim that the Defendants violated the SYFMA, Count Eight, fails to state a claim on which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court grants the Motion as to the Complaint's Counts Three, Four, Six, Seven, Eight, and Nine. The Motion is denied as to the Complaint's Counts Two and Five. "It is ordered that the Federal Defendants' Motion and Memorandum to Dismiss Plaintiffs' Remaining Claims, filed February 10, 2015, is granted in part and denied in part. The Court grants the Motion as to the Complaint's Counts Three, Four, Six, Seven, Eight, and Nine of the Complaint, filed January 20, 2012. The Motion is denied as to the Complaint's Counts Two and Five," ruled Judge Browning. Plaintiffs are represented by: Michelle Miano, Esq. Po Box 1075 El Prado, NM 87529 - and - Richard Rosenstock, Esq. 1121 Paseo de Peralta Santa Fe, NM 87501 Tel: (505)988-5324 Defendants are represented by: Damon P. Martinez, Esq. Ruth F. Keegan, Esq. Andrew A. Smith, Esq. John C. Cruden, Esq. UNITED STATES ATTORNEY UNITED STATES: Class Certification Bid Granted in "Hart" Case ------------------------------------------------------------- District Judge Jon S. Tigar granted the Plaintiffs' motion or class certification in the case captioned KEVIN HART, et al., Plaintiffs, v. CAROLYN W. COLVIN, Defendant, Case No. 15-CV-00623- JST, (N.D. Cal.) Plaintiffs sued Defendant Carolyn W. Colvin in her capacity as Acting Commissioner of the Social Security Administration, challenging the SSA's alleged reliance on consultative examinations performed by Dr. Frank Chen, a physician who is now disqualified, in denying or terminating disability benefits. Plaintiffs seek declaratory and injunctive relief requiring the SSA to cease relying on Dr. Chen's reports, to reopen any benefits determination that relied, at least in part, on a report prepared by Dr. Chen, and to notify those individuals whose benefits have been denied or terminated of their right to these forms of relief. Plaintiffs moved for class certification. In his Order dated October 14, 2015 available at http://is.gd/yHqhD7from Leagle.com, Judge Tigar granted Plaintiffs' motion to certify a class consisting of all persons whose SSI or SSDI benefits were either denied or terminated and for whom a consultative examination was prepared by Dr. Chen. In the joint case management statement due on November 5, 2015, the parties are ordered to propose a schedule for the remainder of the case through trial. Defendant does not dispute Plaintiffs' contentions regarding numerosity. Accordingly, the Court concludes that Plaintiffs have satisfied the numerosity requirement. Defendant has not shown that a realistic possibility of antagonism exists between certain members of the proposed class and the Named Plaintiffs, the Court rejects Defendant's conflict of interest argument. The Court concludes that Plaintiffs have satisfied their burden of showing that there exists questions of law or fact common to the proposed class members and that determination of the truth or falsity of these common questions "will resolve an issue that is central to the validity of each one of the claims in one stroke." In particular, Plaintiffs' claim asks the Court to determine whether the SSA-wide policy instructing adjudicators to continue to "consider" Dr. Chen's CE reports following his removal from the CE panel violated the Social Security Act, its implementing regulations, and the Due Process Clause. Resolution of these questions will not depend on the individual facts of each Plaintiff's claims because Plaintiffs argue that any consideration of Dr. Chen's report whatsoever violated the law. Accordingly, Plaintiffs have satisfied the requirement to establish commonality. Plaintiffs simply seek a determination of whether the process involved in each of their benefits determinations was unlawful. And if the Court finds in favor of the Plaintiffs on the merits, a potential remedy would be to require SSA to "reopen the (closed) decisions denying or terminating benefits, and to redetermine eligibility." The Court concluded that Plaintiffs have demonstrated typicality. The Named Plaintiffs have retained experienced counsel, including two nonprofit organizations and a law firm, which collectively "have extensive experience in public benefits law, the Social Security Act, and class-action litigation, as well as the necessary resources and commitment to pursue the interests of the class vigorously." William Lewis Stern, Esq. -- wstern@mofo.com -- of Morrison & Foerster LLP -- Anna Margaret Rich, Esq., of Justice in Aging -- Claudia Maria Vetesi, Esq. -- cvetesi@mofo.com -- of Morrison & Foerster LLP; Elizabeth Gilmore Balassone, Esq. -- balassone@mofo.com -- of Morrison & Foerster LLP -- Gerald Andrew McIntyre, Esq. -- gmcintyre@nsclc.org -- of Justice in Aging; Hope Gisele Nakamura, Esq. -- hnakamura@legalaidsmc.org -- of Legal Aid Society of San Mateo County -- Kathryn Rose Lang, Esq. -- klang@justiceinaging.com -- of Justice in Aging -- Robert Travis Petraglia, Esq. -- rpetraglia@mofo.com -- of Morrison & Foerster LLP and Trinh Phan, Esq., of Legal Aid Society of San Mateo County serve as counsel for Plaintiff Kevin Hart Michael Andrew Zee, Esq., of United States Department of Justice serves as counsel for Defendant Carolyn W. Colvin, Acting Commissioner of Social Security, in her official capacity. VALEANT PHARMA: Robbins Geller Files Securities Class Action ------------------------------------------------------------ Robbins Geller Rudman & Dowd LLP on Oct. 22 disclosed that at a class action has been commenced in the United States District Court for the District of New Jersey on behalf of purchasers of Valeant Pharmaceuticals International, Inc. ("Valeant") stock during the period between February 23, 2015 and October 20, 2015 (the "Class Period"). If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from October 22, 2015. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Darren Robbins of Robbins Geller at 800/449-4900 or 619/231-1058, or via e-mail at djr@rgrdlaw.com If you are a member of this class, you can view a copy of the complaint as filed or join this class action online at http://www.rgrdlaw.com/cases/valeant/ Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. The complaint charges Valeant and certain of its officers and directors with violations of the Securities Exchange Act of 1934. Valeant is a specialty pharmaceutical and medical device company that develops, manufactures, and markets a range of branded, generic, and branded generic pharmaceuticals, over-the-counter products, and medical devices, such as contact lenses, intraocular lenses, ophthalmic surgical equipment, and aesthetics devices. The complaint alleges that during the Class Period, defendants made false and misleading statements and/or failed to disclose adverse information about the Company's business and prospects, including that the Company was using a network of specialty mail- order pharmacies that it actually controlled to prop up sales of its high-priced drugs and to keep patients and their insurance companies from switching to less costly generic drugs, that Valeant's undisclosed use of specialty pharmacies left it subject to increased regulatory risks, and that without the use of the specialty pharmacies, Valeant's financial performance and Class Period financial guidance would have been negatively impacted. As a result of these false and misleading statements and/or omissions, Valeant stock traded at artificially inflated prices during the Class Period, reaching over $260 per share. Then on October 19, 2015, the Company issued a press release reporting its third quarter 2015 financial results. The same day, Valeant hosted an earnings call during which, for the first time, defendants revealed the previously undisclosed and direct relationship between Valeant and certain specialty pharmacies. On this news, the price of Valeant common stock fell over 10% in one day, from a close of $163.83 per share on October 19, 2015 to a close of $146.74 per share on October 20, 2015. Additional news concerning Valeant's unique relationships with specialty pharmacies reached the market on October 21, 2015, causing the price of Valeant stock to drop sharply, falling to a close of $118.61 per share. Plaintiff seeks to recover damages on behalf of all purchasers of Valeant stock during the Class Period (the "Class"). The plaintiff is represented by Robbins Geller, which has extensive experience in prosecuting investor class actions including actions involving financial fraud. With 200 lawyers in ten offices, Robbins Geller -- http://www.rgrdlaw.com/-- represents U.S. and international institutional investors in contingency-based securities and corporate litigation. VENAXIS INC: Defending "Bolt" Action in Colorado ------------------------------------------------ Venaxis, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 11, 2015, for the quarterly period ended June 30, 2015, that a putative class action complaint was filed on February 2, 2015, against Venaxis and two of its current officers in the United States District Court for the District of Colorado. The action is captioned Boldt v. Venaxis, Inc., et al., District of Colorado Case No.: 1:15-cv-00- 222 ("Boldt Action"). The plaintiff in the Boldt Action alleges violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and SEC Rule 10b-5. The Boldt Action plaintiff purports to represent a class of persons who purchased the Company's publicly traded securities between March 13, 2014, and January 28, 2015. The Boldt Action plaintiff alleges that the Company made false and/or misleading statements regarding APPY1. The foregoing is a summary of the allegations in the complaint and is subject to the text of the complaint, which is on file with the Court. Based on a review of the complaint, the Company believes that the allegations are without merit, and intends to vigorously defend against the claims. VERISMA: Class Action Over Medical Records Copying Costs Proceeds ----------------------------------------------------------------- Sharon M. Porcellio, writing for Law.com, reports that in a decision that looks like an answer to a law school exam, the U.S. District Court for the Western District of New York allowed plaintiffs to proceed with their claims after addressing an array of challenges to their Second Amended Complaint in a dispute involving the costs of copies of medical records. In two other cases, the court examined how asserting a good-faith defense may result in an implied waiver of attorney-client privilege and granted sanctions against attorneys disregarding court rules and orders. Plaintiffs' Medical Records Who Paid for the Records? A Standing Issue. U.S. District Judge Michael A. Telesca previously dismissed, without prejudice, plaintiffs' First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. The court reasoned that plaintiffs "did not allege sufficient facts to show that Plaintiffs had suffered cognizable injuries in fact for standing purposes because it was plaintiffs' law firm, and not plaintiffs themselves, which was charged, and which paid, for the copies of the medical records at issue." By contrast, in McCracken v. Verisma Sys., 2015 U.S. Dist. LEXIS 123775 (W.D.N.Y. Sept. 16, 2015), Judge Telesca denied in their entirety defendants' motions pursuant to Rule 12(b)(6) to dismiss plaintiffs' Second Amended Complaint. Plaintiffs brought this class action claiming excessive charges in violation of New York Public Health Law (PHL) Section 18(2)(e) by Verisma Systems, Inc. and the co-defendants "Healthcare Defendants," with whom Verisma contracted to provide medical records to patients who received treatment at the Healthcare Defendants. In addition, plaintiffs asserted causes of action for unjust enrichment and for deceptive trade practices in violation of New York General Business Law (GBL) Section 349(a). To remedy the standing issue, plaintiffs attached signed retainer agreements with plaintiffs' counsel and alleged that they were legally obligated to reimburse plaintiffs' counsel pursuant to the terms of the retainer agreements. Each individual plaintiff complied with this provision and reimbursed plaintiffs' counsel for the full amounts Verisma charged the firm for copies of their medical records. The court held that this legal obligation established plaintiffs' standing to sue because payments by plaintiffs' counsel to Verisma for the copying charges "'would have given rise to a contingent liability on the Plaintiffs' part.'" PHL Statutory Arguments Qualified Persons. With the standing issue resolved, the court addressed an argument by Verisma that plaintiffs' counsel did not meet the statutory definition of a "qualified person" under PHL Section 18, and therefore plaintiffs were not entitled to the statutory protection of a charge not to exceed 75 cents per page. Verisma argued that in addition to the Health Insurance Portability and Accountability Act (HIPAA) authorizations submitted by plaintiffs' counsel, they were required to submit powers of attorney signed by each plaintiff. The court, however, found that Verisma's argument lacked merit. Although it was true that attorneys for plaintiffs-patients were not "qualified persons" when PHL was first enacted, the statute changed in 1992. Presumptively Reasonable Charges. The court next examined PHL Section 18(2)(e) which allows providers to impose a reasonable charge for copies so long as it "does not exceed 'the costs insured by such provider' to make copies; and does not exceed 'seventy-five cents per page' of records." Defendants argued that the statute sets 75 cents as a "presumptively reasonable" price, so even if a health-care provider's actual costs are less than 75 cents, the providers can still charge the 75-cent maximum. Judge Telesca disagreed citing to cases where the longstanding accepted interpretation is that health-care providers cannot charge above the actual cost incurred with a statutory cap of 75 cents. GBL Deceptive Acts The court next analyzed whether plaintiffs sufficiently alleged a claim under GBL Section 349(a) requiring "a plaintiff must demonstrate that (1) the defendant's deceptive acts were directed at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff has been injured as a result." Verisma argued that plaintiffs failed to allege "conduct that is consumer oriented" and as such does not meet the basic pleading requirements of the statute because "consumer" was associated with an individual or natural person who purchases goods or services, not a business. Judge Telesca opined that the agency relationship between the plaintiffs and their attorneys allowed plaintiffs to pursue their personal injury lawsuits to "restore themselves, personally, to their respective pre-injury statuses." Moreover, "[p]laintiffs' medical records were of no use to their attorneys' business or commercial enterprise;" therefore Verisma's 'consumer oriented' arguments were misplaced. Similarly, the court rejected Verisma's argument that plaintiffs "cannot show that they were materially mislead because Verisma's invoices fully disclosed the costs of obtaining copies of the medical records before payments was made." New York State uses an objective definition of defective acts and practices. Courts focus on whether the acts or omissions would have misled a reasonable consumer acting reasonably under the circumstances. Plaintiffs alleged that they were "materially mislead" because defendants failed to disclose the actual cost to produce the copies. The court determined that a reasonable consumer, without information about a provider's actual cost, relying on the statute's provision that providers can charge up to 75 cents for copies, may be misled to think that the actual cost was 75 cents or more. Judge Telesca also declined to accept Verisma's argument that plaintiffs were not deceived under GBL Sec. 349(a), because Plaintiffs' Counsel were "sophisticated intermediaries." He found their argument unpersuasive because Plaintiffs' Counsel, like their clients, did not have access to Verisma's actual costs to produce the copies or to contracts between the defendants, Plaintiffs' Counsel was in the same "inferior position as their clients. . ." Verisma argued that the court should dismiss the unjust enrichment claims because it either had a contract with Plaintiffs' Counsel for the copies at $0.75 or because plaintiffs had no direct relationship with it. The court ejected both arguments and dismissed Verisma's other remaining claims. Likewise, it dismissed the Healthcare Defendants' similar arguments and their separate argument that because Plaintiffs' Counsel paid only Verisma, not them, plaintiffs failed adequately to allege that the Healthcare Defendants were unjustly enriched. The Healthcare Defendants submitted an affidavit supporting their position. The court, however, declined to consider the factual allegations from the affidavit to resolve a motion to dismiss and found it unnecessary to strike the affidavit or convert to a motion for summary judgment. Good Faith Defense In another class action, Magistrate Judge Marian W. Payson granted plaintiffs' motion to compel defendants to produce communications related to their good-faith defense and to require their corporate representative to respond to deposition questions relating to that defense. Hicks v. T.L. Cannon Mgmt. Corp., 2015 U.S. Dist. LEXIS 118734 (W.D.N.Y. Sept. 3, 2015). Plaintiffs filed an action on behalf of current and former tipped employees of Applebee's restaurants against various Applebee's restaurant owners and operators in New York. Plaintiffs alleged that the owners and operators violated the New York Minimum Wage Act, New York Labor Law (NYLL), and the Fair Labor Standards Act (FLSA). Defendants asserted the following defense in their Answer: Plaintiffs' claims for liquidated damages, if any, are barred, in whole or in part, because any and all actions taken by Defendants were undertaken in good faith and with reasonable grounds for believing such actions were not in violation of New York State or Federal Law. In a correspondence to plaintiffs' counsel prior to the deposition of defendants' corporate representative Susan Sabio, defendants' counsel advised that "[d]efendants do not anticipate relying on the advice of counsel as an affirmative defense to these claims at this time. Therefore, [d]efendants will not be waiving the privilege regarding communications . . . " During the deposition, defendants' counsel directed Sabio not to answer multiple questions on the grounds of attorney-client privilege. Ms. Sabio, however, testified that she had communications with defendants' counsel regarding a wage notice and that the communications with counsel informed defendants' decision. Thereafter, plaintiffs filed a motion to compel discovery of defendants' good-faith defense. Defendants opposed, asserting that such disclosure was protected attorney-client privilege. Plaintiffs, however, argued that defendants waived their right to assert attorney-client privilege when they pleaded and asserted a good-faith defense, partially disclosed privileged communications during Sabio's deposition, and failed to provide a privilege log. Because of its importance in promoting open dialogue between attorneys and their clients, communications between attorneys and their clients are usually protected. In United States v. Bilzerian, 929 F.2d 1285 (2d Cir.) cert. denied, 502 U.S. 813 (1991), however, the U.S. Court of Appeals for the Second Circuit recognized that the attorney-client privilege may be waived when a witness testifies about its good-faith efforts to comply with the law. In such cases, "the assertion of a good faith defense involves an inquiry into state of mind, which typically calls forth the possibility of implied waiver of the attorney-client privilege." Thus, in cases where a witness pursues a good-faith defense, the court will examine whether the witness relied on privileged communications with counsel as a claim or defense in the action. Under NYLL Sec. 198(1-a), liquidated damages may be imposed on an employer when an employee is paid less than the entitled wage, unless the employer can show a good-faith basis that it believed the payment was in compliance with the law. Similarly, under FLSA Section 260, an employer may avoid having to pay liquidated damages if it can show that its actions were in good faith and on reasonable grounds, and that the employer did not believe its acts or omissions violated FLSA. Defendants maintained that they should be permitted to argue their good-faith actions to a jury but the jury should not consider their subjective state of mind based on communications with counsel. The court noted defendants articulated no other facts contributing to their good-faith defense. Moreover, since Sabio testified that her attorney's communications and advice influenced the decision on the wage notice issue, defendants could not use the privilege as a shield from plaintiffs' inquiries. Defendants thus impliedly waived the attorney-client privilege. Protective Order Among the issues in Coene v. 3M Co., 2015 U.S. Dist. LEXIS 123773 (W.D.N.Y. Sept. 16, 2015) were the need for a formal notice of deposition and sealing of documents. In Coene, the parties had agreed via emails and telephone calls that a deposition would go forward. Plaintiffs, however, claimed that defendants, in requesting the deposition, did not serve a formal notice. Plaintiffs filed a motion for a scheduling order to determine whether the witness could be deposed and an order to quash defendant's subpoena for the deposition. Judge Payson denied the motion noting that the prior written communications demonstrated an intent by the parties to depose the witness. Any contrary ruling would have elevated form over substance. On a tangential matter, plaintiffs sought to seal documents that were subject to an earlier protective order and attached documents that were subject to that earlier protective order to their motion to seal. The motion to seal and the exhibits were then filed in the public domain on the court's Case Management/Electronic Case File system (CM/ECF). In response, defendant filed a motion "seeking expedited consideration of plaintiffs' motion to seal" to limit the time these documents were in the public domain and also sought sanctions against plaintiff for violating the court's protective order by filing protected documents on CM/ECF. The court determined that the exhibits attached to plaintiffs' and defendant's motions were protected as they contained confidential and proprietary information and granted the motion to seal. Judge Payson also granted defendant's request for attorney fees and sanctions due to "plaintiff's obvious disregard for his obligations under the . . . Protective Order and this Court's Local Rules." Western District Local Rule 5.3(c) directs parties who seek to have documents filed under seal comply with the procedures set forth in CM/ECF Administrative Procedures Guide. VERSACE: Faces Suit Over Misclassification of Fashion Interns ------------------------------------------------------------- Versace and Michael Kors face separate class actions in Manhattan, accusing them of misclassifying workers as interns to deny them a minimum wage, Courthouse News Service reported. VERTEX ENERGY: Proposed Class Yet to Be Certified ------------------------------------------------- A proposed class in the lawsuit involving a unit of Vertex Energy, Inc. has yet to be certified, Vertex Energy disclosed in its Form 10-Q Report filed with the Securities and Exchange Commission on August 11, 2015, for the quarterly period ended June 30, 2015. The Company said, "Vertex Refining LA, LLC, the wholly-owned subsidiary of Vertex Operating, our wholly-owned subsidiary, was named as a defendant in a lawsuit filed in the Twenty-Fourth Judicial District For the Parish of Jefferson Louisiana on January 6, 2015. Pursuant to the lawsuit, Stacy Davis, Becky Vallee and James A. Block (the "Plaintiffs") made certain allegations against Vertex Refining LA, LLC, Omega Refining and the manager of the Marrero, Louisiana facility (the "Defendants"). The claims are structured as class actions relating to certain operations performed at our newly acquired re-refinery located in Marrero, Louisiana, including the alleged emission of noxious and harmful substances. The Plaintiffs allege they are part of a valid class due to the fact that they live and work near the facility. The lawsuit relates to alleged actions and inactions related to the facility between 2012 to present and includes allegations relating to violations of various Louisiana statutes, allegations relating to the misrepresentation of information to the Louisiana Department of Environmental Quality, allegations relating to violations of hourly permitted emission limits, and alleged failure to report an un-permitted point-source. The suit seeks damages for physical and emotional injuries, pain and suffering, medical expenses and deprivation of the use and enjoyment of Plaintiffs' homes. The Plaintiffs further allege that there are estimated to be over 1,000 class members to the suit, provided that the proposed class is yet to be certified." "We intend to vigorously defend ourselves against the allegations made in the complaint, provided that at this stage of the litigation, the Company has no basis of determining whether there is any likelihood of material loss associated with the claims and/or the potential outcome of the litigation." VIRGINIA: Plaintiffs Challenge Bid to Dismiss Jail Class Action --------------------------------------------------------------- Gracie Hart Brooks, writing for The Daily Progress, reports that in response to defense motions to dismiss and deny class action certification, the plaintiff in the approximately $22.5 million lawsuit against the Central Virginia Regional Jail Authority and several of its employees has filed a new memorandum of opposition. The suit, which originally included two counts filed by former inmate Shawn Christopher Berry's mother, Sherry Lynn Thornhill, in federal court in early June, was amended in late August to include a class action count. It names former jail Superintendent Glenn Aylor, the jail authority and nine jail employees (two additional employees were included, but not named beyond John or Jane Doe) and seeks substantial damages for what it calls the "deliberate torture and killing of" Mr. Berry. Mr. Berry, 37, was arrested Aug. 7, 2014, on outstanding warrants and died two days later while in custody at the jail in Orange. A state autopsy revealed that Mr. Berry died from the adverse effects of heroin and ethanol and both the state Office of the Chief Medical Examiner and the Virginia State Police ruled the death an accident. However, in her suit, Ms. Thornhill alleged the "unlawful denial of adequate medical care" to Mr. Berry while he was an inmate, which she claims resulted in his death. The suit includes three counts. Count one of the suit asserts that CVRJ violated inmates' Eighth Amendment (free of cruel and unusual punishment) and Fourteenth Amendment (due process and the equal protection of laws) rights and asks that the court certify the action as a class action with Ms. Thornhill as the class representative and Ms. Thornhill's counsel, Robert Wilson and Mitchell Rotbert, as class counsel. It also asks for equitable relief including court-ordered monitoring of CVRJ, injunctive relief and/or appointment of a federal receiver to abate the acts and practices alleged herein; award Ms. Thornhill reasonable attorney fees and costs for bringing and maintaining the action; and award such other and/or alternative relief as justice may require. Count two alleges a violation of Mr. Berry's Eighth and Fourteenth Amendment rights and requests compensation to be established at trial, but not less than $10 million; reasonable attorneys' fees and costs including the costs of any experts; and/or alternative relief as justice may require. Count three alleges wrongful death and requests a judgment in favor of Ms. Thornhill for compensatory damages in the amount of $2.15 million with respect to defendants deemed to be health care providers within the state code; compensatory damages in an amount to be established at trial, but not less than $10 million with respect to other defendants; punitive damages in the amount of $350,000; reasonable attorneys' fees and costs, including the costs of any experts; and such other and/or alternative relief as justice may require. The defense, led by CVRJ attorney Helen Phillips and her associate Ross Phillips, filed motions to dismiss for each of the 11 defendants along with a motion to deny the class action suit. Those motions were met with a memorandum of law in opposition from Ms. Thornhill's attorneys. Filed early October, the memorandum states that the defendants' motions must be denied. Several reasons are given, with approximately 90 cases and nearly a dozen statutes and rules cited in the 63-page document. Ms. Thornhill, through attorneys Robert Wilson of Harrisonburg and Mitchell Rotbert of Washington, states that her complaint alleges sufficient facts to state a plausible claim for relief under the civil action for deprivation of rights. The memorandum states that the staff defendants knew of the substation risk of harm to Berry or the substantial risk of harm to him was "so obvious that such knowledge is imputed to the staff defendants" and that the staff defendants "consciously disregarded the actual knowledge of Berry's objectively serious medical condition." It also states that Mr. Aylor's "authorization and endorsement of the unconstitutional practices of his subordinates constitutes deliberate indifference to Berry's serious medical needs" and that CVRJ "has executed a policy or custom of deliberate indifference to the serious medical needs of CVRJ inmates, including Berry." In addition, the memorandum states that the individual defendants are not entitled to qualified immunity or sovereign immunity as their motions stated and that the complaint alleges sufficient facts to state a plausible claim for wrongful death. The memorandum also asserts that the defense's motion to deny class certification must be denied, since the complaint adequately alleges each of the Rule 23 factors of the federal rules of civil procedure. These include the numerosity requirement, or that the class is so numerous that joinder of all members is impracticable. "In this case, CVRJ argues that 'Thornhill fails to carry her burden to prove joinder would be impractical,'" the memorandum states. "This argument ignores the fact that Thornhill is not required to prove anything at the pleading stage." "Thornhill's complaint satisfies the numerosity requirement by alleging that the class has 'hundreds, if not thousands' of members," it adds. The memorandum also states that the complaint meets the commonality requirement, or questions of law or fact common to the class. Citing several cases, the memorandum states that "Thornhill alleges the existence of numerous common questions that can be resolved 'in one stroke' as commonality requires," and that she adequately alleges an individual wrongful death claim and the issues CVRJ raises with respect to that claim are irrelevant to the determination of commonality. As for the typicality requirement, claims or defenses of the representative parties are typical of claims or defenses of the class, the memorandum states that Ms. Thornhill's claims are identical to that of the claims of the class and every action she takes in advancing her individual claims will also advance the interests of the class. "The fact that Thornhill seeks damages on her own behalf does nothing to frustrate those interests," it says. "Indeed, class members will likely benefit if Thornhill succeeds on her individual damages claims because a money judgment may spur CVRJ to amend its conduct in order to avoid paying similar claims in the future." As for the argument that Ms. Thornhill isn't an adequate class representative, the memorandum requests that even if she is found to be inadequate, that the motion to deny isn't made at this early stage of the litigation. The memorandum states that the motion to deny is procedurally unusual in that it comes at the pleading stage, "before discovery and the opportunity to develop a full factual record in support of class certification." It also states that discovery is essential to the case and requests that if Ms. Thornhill is found to be an inadequate class representative, CVRJ be ordered to transmit a notice, prepared by her attorneys, to all current inmates setting forth the case and inviting them to step forward as potential class representatives. Gracie Hart Brooks reports for the Madison County Eagle. VIVINT SOLAR: Class Action Settlement Remains Pending ----------------------------------------------------- Vivint Solar, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 11, 2015, for the quarterly period ended June 30, 2015, that a hearing to consider court approval of the proposed settlement agreement was scheduled for August 14, 2015. In December 2013, one of the Company's former sales representatives, on behalf of himself and a purported class, filed a complaint for unspecified damages, injunctive relief and restitution in the Superior Court of the State of California in and for the County of San Diego against Vivint Solar Developer, LLC, one of the Company's subsidiaries, and unnamed John Doe defendants alleging violations of the California Labor Code and the California Business and Professions Code and seeking penalties of an unspecified amount, interest on all economic damages and reasonable attorney's fees and costs. In January 2014, the Company filed an answer denying the allegations in the complaint and asserting various affirmative defenses. In late 2014, the parties agreed to preliminary terms of settlement, which were subsequently revised in mid 2015. The proposed settlement agreement contemplates a settlement payment from the Company in the amount of $0.4 million. A hearing to consider court approval of the proposed settlement agreement was scheduled for August 14, 2015. The Company has recorded a $0.4 million reserve related to this proceeding in its consolidated financial statements. VIVINT SOLAR: Defending Class Action by Technicians --------------------------------------------------- Vivint Solar, Inc. intends to defend a class action by technicians, the Company declared in its Form 10-Q Report filed with the Securities and Exchange Commission on August 11, 2015, for the quarterly period ended June 30, 2015. In September 2014, two former installation technicians of the Company, on behalf of themselves and a purported class, filed a complaint for damages, injunctive relief and restitution in the Superior Court of the State of California in and for the County of San Diego against the Company and unnamed John Doe defendants. The complaint alleges certain violations of the California Labor Code and the California Business and Professions Code based on, among other things, alleged improper classification of installer technicians, installer helpers, electrician technicians and electrician helpers, failure to pay minimum and overtime wages, failure to provide accurate itemized wage statements, and failure to provide wages on termination. In December 2014, the original plaintiffs and three additional plaintiffs filed an amended complaint with essentially the same allegations. On February 5, 2015, the Company filed an answer to the amended complaint, denying liability and asserting a number of defenses. The Company believes that it has strong defenses to the claims asserted in this matter, and the Company intends to defend the case vigorously. Although the Company cannot predict with certainty the ultimate resolution of this suit, it does not believe this matter will have a material adverse effect on the Company's business, results of operations, cash flows or financial condition. VIVINT SOLAR: Dismissal of IPO Related Class Actions Sought ----------------------------------------------------------- Vivint Solar, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 11, 2015, for the quarterly period ended June 30, 2015, that the Company filed a motion to dismiss two putative class actions related to its initial public offering. In November and December 2014, two putative class action lawsuits were filed in the U.S. District Court for the Southern District of New York against the Company, its directors, certain of its officers and the underwriters of the Company's initial public offering of common stock alleging violation of securities laws and seeking unspecified damages. In January 2015, the Court ordered these cases to be consolidated into the earlier filed case, Hyatt v. Vivint Solar, Inc. et al., 14-cv-9283 (KBF). The plaintiffs filed a consolidated amended complaint in February 2015. On May 6, 2015, the Company filed a motion to dismiss the complaint. The Company believes this lawsuit is without merit and intends to defend the case vigorously. The Company is unable to estimate a range of loss, if any, that could result were there to be an adverse final decision. If an unfavorable outcome were to occur in this case, it is possible that the impact could be material to the Company's results of operations in the period(s) in which any such outcome becomes probable and estimable. VIVINT SOLAR: Expects Consolidation of Suits Over SunEdison Deal ---------------------------------------------------------------- Vivint Solar, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 11, 2015, for the quarterly period ended June 30, 2015, that the Company anticipates that two class action lawsuits related to the proposed acquisition by SunEdison will be consolidated into one case. On July 31, 2015, a putative class action lawsuit was filed in the Court of Chancery State of Delaware against the Company's directors, SunEdison Inc. ("SunEdison"), and TerraForm Power ("TerraForm"), alleging that the proposed acquisition by SunEdison is unfair to the Company's stockholders. On August 7, 2015, a second putative class action lawsuit was filed in the same court alleging similar claims, and including 313, Acquisition, LLC as a named defendant. Both complaints seek injunctive relief and unspecified damages. The Company anticipates that both cases will be consolidated into one case. In view of the Company's indemnification obligation to its directors, the Company is unable to estimate a range of loss, if any, that could result were there to be an adverse final decision. If an unfavorable outcome were to occur in these cases, it is possible that the impact could be material to the Company's results of operations in the period(s) in which any such outcome becomes probable and estimable. VOLKSWAGEN AG: Mass Tort MDL Deals Need More Judicial Review ------------------------------------------------------------ Amanda Bronstad, writing for The National Law Journal, reports that with more than 300 consumer lawsuits filed against Volkswagen A.G. over its emissions scandal, one prominent class action critic has elbowed into the litigation to voice an emerging concern: that settlements in mass tort multidistrict litigation need more judicial review. Amicus briefs are very rare in proceedings before the U.S. Judicial Panel on Multidistrict Litigation (JPML), which is set to hear arguments about consolidating the Volkswagen litigation on Dec. 3 in New Orleans. But on Oct. 20, Ted Frank, founder of the Center for Class Action Fairness, made such a filing. In it, Frank argues that the Volkswagen cases -- all consumer class actions -- should be coordinated before a single judge who could ensure fairness to all class members when evaluating what is likely to be a substantial settlement down the line. Although amicus briefs are allowed, most filings before the JPML come from lawyers on both sides of the lawsuits whose arguments, though important, focus on the more mundane issue of which judge in what court should be assigned to the MDL docket. Mr. Frank's filing follows more than 300 class actions brought against Volkswagen in the United States, most in federal court, according to an Oct. 20 brief that Volkswagen filed before the JPML. Consumers allege they were duped into paying premium prices for "clean diesel" cars that the U.S. Environmental Protection Agency has said emit as much as 40 times the standard for nitrogen oxides. The scandal erupted in September, when the EPA notified Volkswagen that some of its diesel cars made since 2009 had a "defeat device" in them designed to cheat emissions tests in violation of the Clean Air Act. The devices are believed to be in 482,000 cars in the United States. Volkswagen said on Oct. 15 it was recalling 8.5 million vehicles in Europe. In targeting the Volkswagen cases, Mr. Frank brought up issues similar to those he's best known for raising in individual class action settlements -- namely that the deals give short shrift to class members at the expense of attorney fees. "We're looking at this like a class action," Mr. Frank said. "There are potentially enormous windfalls if the courts don't scrutinize the fee applications closely. And historically they don't. And we're wondering if there are some really good judges who do scrutinize these things, but they somehow don't get assigned to MDLs." Mr. Frank said the Volkswagen litigation is the first in which his group, which became part of the Competitive Enterprise Institute on Oct. 1, has intervened in the MDL process. But the concern about collusive settlements in MDLs isn't new. Elizabeth Burch, a professor at the University of Georgia School of Law, whose 2015 law review article was cited in Frank's brief, called his argument a "healthy and welcome development" to the MDL process and particularly appropriate in the litigation against Volkswagen, which, unlike most defendants, already has admitted liability. "As such, the case will lack much of the adversarial litigation that we typically depend on to safeguard absent class members' rights," she wrote in an email. Mr. Frank said lawyers on both sides have little incentive to encourage scrutiny of class action settlements -- plaintiffs attorneys are more concerned about their fees and defendants their costs. He suggested sending the Volkswagen cases to U.S. District Judge William Alsup of the Northern District of California, who has a history of critiquing class action settlements. But Jaime Dodge, director of the Institute for Complex Litigation and Mass Claims at Emory University School of Law, said the JPML was unlikely to pick a judge based on his or her past rulings. And whoever ends up getting the Volkswagen cases will have to follow the same legal procedures required in all class actions, she said, such as providing an opportunity for objectors to raise concerns about a proposed settlement. Although most MDLs are made up of individual cases, often over injuries or deaths allegedly caused from a defective product, Volkswagen so far has been hit only with class actions. In the meantime, the U.S. Justice Department, which has launched an investigation of Volkswagen that now involves the U.S. attorney's office in Detroit, filed its own Oct. 20 brief supporting transfer of the litigation to the Eastern District of Michigan, where the EPA's emissions testing lab is located in Ann Arbor. John Cruden, assistant attorney general for the DOJ's Environmental and Natural Resources Division, wrote that the EPA would be "intimately involved" in fixing the problem. A U.S. government case against Volkswagen could end up being transferred into the MDL, and the EPA could assess more than $18 billion in fines. DOJ spokesman Wyn Hornbuckle declined to comment. The Eastern District of Michigan also has become an increasing favorite MDL venue for some plaintiffs attorneys, though they have proposed courts in 13 other states -- especially California, New Jersey and Tennessee -- and the District of Columbia. Volkswagen Group of America Inc., on Oct. 20, also supported Michigan but pushed for the Eastern District of Virginia, where its U.S. headquarters is based in Herndon. The attorney who filed the brief, Jeffrey Chase, a member of New York's Herzfeld & Rubin, is the first to appear before the JPML on behalf of Volkswagen, though several other firms, including Mayer Brown, have shown up in individual cases. A Volkswagen spokeswoman did not respond to a request for comment. VOLKSWAGEN AG: Wants Emissions Class Actions Heard in Virginia -------------------------------------------------------------- Greg Hambrick, writing for Herndon Patch, reports that Volkswagen is hoping a federal court in Virginia will hear the hundreds of class-action lawsuits in response to its emissions cheating scandal. The U.S. headquarters for the embattled car company is located in Herndon. Volkswagen is hoping that's a good enough reason to get the case heard here, rather than California, according to Bloomberg Business. According to the EPA, Volkswagen could face fines up to $18 billion and criminal prosecution for installing so-called "defeat device" software that allowed vehicles to emit up to 40 times more diesel pollution than is legally allowed. The company's CEO, Martin Winterkorn, resigned following the news of the cheating scandal. Angry car owners want VW to refund premiums paid for vehicles with "clean diesel" engines, according to Bloomberg, plus compensation for the lost value those cars now hold. Volkswagen notes the federal court in Alexandria is also near the EPA. A hearing on where the case will land is expected Dec. 3 in New Orleans. VOLKSWAGEN GROUP: Plaintiffs Seek to Stop Monthly Car Payments -------------------------------------------------------------- Philip A. Janquart, writing for Courthouse News Service, reported that in a new blow against Volkswagen, a class of people who bought cars with the illegal emissions "defeat device" asked a federal judge in Missoula, Mont. to let them stop making their monthly payments until the issues are resolved in court. Lead plaintiff Will Ballew says the 1975 "FTC Holder Rule" allows him to sue Volkswagen subsidiary VW Credit, for its abuse of credit. He also wants VW ordered not to report anyone in the putative class to credit bureaus because they stop making their payments. Ballew says he bought a 2015 Volkswagen Jetta Sportwagen because of the "CleanDiesel" system VW touted in advertisements. He financed it through VW Credit, the defendant in his Wednesday complaint in Federal Court. More than 400 lawsuits, most of them class actions, have been filed in the United States alone since Volkswagen admitted it installed cheating software in 11 million vehicles worldwide since 2009, about 500,000 of which were sold in the United States. So far as Courthouse News can determine, Ballew's is the first lawsuit that asks for court permission to stop making payments. The Hagens Berman Shapiro law firm in San Diego appears to have been the first to file against VW, the day Volkswagen admitted its deception: Friday, Sept. 18. The defeat device is a secret, parallel software system that kicks in only when the cars are being tested for emissions. On the road, the cars spew as much as 40 times the amount of some pollutants as they do when the defeat device is turned off. With pollution controls turned off, the cars get better mileage, a peppier response, and are more fun to drive. It's been no fun for Volkswagen, though, which faces as much as $18 billion in Clean Air Act fines in the United States alone, aside from the civil lawsuits. Nations around the world are investigating, and the company could face criminal charges in Germany. It's lost about one-third of its market capitalization as well, as VW share prices have tanked since the scandal broke. Market analysts expect that the company will survive, but gone are its glory days, which it reached this summer, as the world's largest auto company, by sales. Volkswagen CEO Martin Winterkorn, who resigned as the scandal grew, blamed the cheating software on a few "rogue engineers." But the German magazine Der Spiegel reported this week that as many as 30 VW employees may have been involved. Volkswagen models with defeat devices include the Jetta (2009- 2015), Beetle (2009-2015), Golf (2009-2015) and Passat (2014- 2015). Volkswagen claimed the CleanDiesel system cut greenhouse gas emissions by 25 percent, particulate emissions by 90 percent and nitrous oxide by 95 percent. But that was with the defeat devices turned on. The U.S. Environmental Protection Agency has ordered Volkswagen to recall the vehicles and modify or repair them to comply with the Clean Air Act, but Ballew claims, as have numerous other plaintiffs, that this will cause "substantial changes" in the cars' performance -- and resale value. Ballew's 14-page lawsuit asks a new question: "Do I have to continue making payments to VW?" He says the answer is "No," according to a 1975 Federal Trade Commission rule, known as the "FTC Holder Rule." The rule is "designed to prevent the widespread use of credit terms which compel consumers to pay a creditor even if the seller's conduct would not entitle the seller to be paid." "That is, consumers can assert against VW Credit, Inc. and VW Credit Leasing, Ltd. the fraud of Volkswagen Group of America, Inc. and withhold payments pending resolution of their claims, including their claims for rescission due to fraud or illegality," the complaint states. Ballew seeks class certification, an injunction to prevent VW Credit from "(1) accepting payments from consumers on contracts that relate to the violating vehicles, and (2) reporting derogatory or negative information on credit reports of consumers who currently own the violating vehicles and who are, by federal law, excused from payment due to the fraud and illegality of the contracts that they entered for the purchase or lease of the violating vehicles." Ballew is represented by attorney Timothy Bechtold. Ballew also seeks rescission of contracts, restitution, and attorneys' fees. Co-counsel with Bechtold, of Missoula, is John Heenan, with Bishop & Heenan, in Billings. WAFFLE HOUSE: Sued Over Unfair Use of Background Checks ------------------------------------------------------- Legal Newsline reports that a Florida man is suing Waffle House claiming it unfairly used background checks and denied his employment application. William Jones, on behalf of himself and those similarly situated, has filed a class action lawsuit on Oct. 1 in the U.S. District Court for the Middle District of Florida, Orlando Division against Waffle House Inc., WH Capital LLC, The Source for Public Data LP, Publicdata.com, Shadowsoft Inc., Harlington-Straker Studio Inc., and Dale Bruce Stringfellow over claims of violating the Fair Credit Reporting Act (FCRA). Mr. Jones alleges that in December 2014, he applied for employment at a Waffle House, who used PublicData to run a background check on him. According to the complaint, Waffle House denied Jones employment due to this background check, which plaintiff argues had inaccuracies. However, Mr. Jones argues that Waffle House did not provide proper disclosures prior to running a background check on him, did not provide him of a copy of his background report prior to taking adverse actions, did not provide a separate post- adverse notice to him, which all violated the FCRA. Mr. Jones is seeking a trial by jury and is suing for statutory, compensatory, special, general, and punitive damages; court and attorney fees; and any other rewards deemed appropriate by the court. He is being represented by Michael J. Pascucci and Joshua H. Eggnatz of the law offices of Eggnatz, Lopatin, & Pascucci, LLP in Davie, Fla. and the offices of CounselOne PC in Beverly Hills, Calif. U.S. District Court for the Middle District of Florida, Orlando Division case number 6:15-cv-01637-RBD-DAB. WARNER BROS: Hollywood Studios Discriminate v. Deaf, Suit Says -------------------------------------------------------------- Debbie Emery, writing for The Wrap, reported that Disney, Fox, Warner Bros, Paramount, Universal, Sony and Netflix are named in a class action lawsuit accusing the studios and streaming service of discriminating against the deaf and hearing impaired. The suit, which was filed Oct. 19 at the Los Angeles Superior Court, claims the "Captain America" films, "X-Men" franchise, "Selma," "Skyfall," "House Of Cards" and "The Godfather" are among the movies that had song lyrics that were not captioned or subtitled. "While the dialogue of some movies or shows are indeed fully subtitled, the practice of not subtitling song/music lyrics is frustratingly widespread," the complaint stated. "Advertising the movies or shows as begin captioned or subtitled enlarges the market of the consumers, which includes persons who are deaf or hard of hearing. Such persons constitute approximately 10 percent of the population. "Defendants continue to short change those who are deaf and hard of hearing," it added. One of the nine plaintiffs is Susan Bowell, communications director for a deaf advocacy group, who had rented purchased or rented numerous movies and found that much of the content or music wasn't captioned, making it hard to understand, according to the legal filing. "Defendant produced and distributed several DVDs enclosed in packaging with language advertising the DVDs were subtitled, movies that were advertised as captioned, and movies or shows with language, such as captioned, English subtitles, or subtitles for the deaf and hard of hearing, indicating that the movie or show is fully captioned or subtitled," the suit continued. "Captions and subtitles allow Plaintiffs and class members, to follow the content of a film or show visually if they are not able to do so aurally. The DVD packaging does not indicate that the subtitles are limited in any way." The complaint seeks unspecified damages and injunctive relief and requests the "labeling on the mislabeled products to make it clear what content is captioned and what is not." John Girardi of Los Angeles law firm Girardi & Keese is the attorney for the plaintiffs. WEIGHT WATCHERS: Continues to Defend Securities Litigation ---------------------------------------------------------- Weight Watchers International, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 11, 2015, for the quarterly period ended July 4, 2015, that the Company continues to believe that the case, In re Weight Watchers International, Inc. Securities Litigation, is without merit and intends to defend them vigorously. In March 2014, two substantially identical putative class action complaints alleging violation of the federal securities laws were filed by individual shareholders against the Company, certain of the Company's current and former officers and directors, and the Company's controlling shareholder, in the United States District Court for the Southern District of New York. The complaints were purportedly filed on behalf of all purchasers of the Company's common stock, no par value per share, between February 14, 2012 and October 30, 2013, inclusive (the "Class Period"). The complaints allege that, during the Class Period, the defendants disseminated materially false and misleading statements and/or concealed material adverse facts. The complaints allege claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5. The plaintiffs seek to recover unspecified damages on behalf of the class members. In June 2014, the Court consolidated the cases and appointed lead plaintiffs and lead counsel. On August 12, 2014, the plaintiffs filed an amended complaint that, among other things, reduced the Class Period to between February 14, 2012 and February 13, 2013 and dropped all current officers and certain directors previously named as defendants. On October 14, 2014, the defendants filed a motion to dismiss. The plaintiffs filed an opposition to the defendants' motion to dismiss on November 24, 2014 and the defendants filed a reply in support of their motion to dismiss on December 23, 2014. The Company continues to believe that the suits are without merit and intends to defend them vigorously. WESTPORT FUTURES: Received Final Court Approval of Settlement ------------------------------------------------------------- Westport Futures Fund L.P. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 12, 2015, for the quarterly period ended June 30, 2015, that the parties in a class action lawsuit have reached an agreement to settle the litigation, which received final court approval. On October 25, 2010, the Company, certain affiliates and Pinnacle Performance Limited, a special purpose vehicle ("SPV"), were named as defendants in a purported class action related to securities issued by the SPV in Singapore, commonly referred to as "Pinnacle Notes." The case is styled Ge Dandong, et al. v. Pinnacle Performance Ltd., et al. and was pending in the SDNY. On January 31, 2014, the plaintiffs filed a second amended complaint, which asserted common law claims of fraud, aiding and abetting fraud, fraudulent inducement, aiding and abetting fraudulent inducement, and breach of the implied covenant of good faith and fair dealing. On July 17, 2014, the parties reached an agreement to settle the litigation, which received final court approval on July 2, 2015. ZAFGEN INC: Faces Securities Class Action in Massachusetts ---------------------------------------------------------- Bernstein Liebhard LLP on Oct. 22 disclosed that a securities class action has been filed in the United States District Court for the District of Massachusetts on behalf of a class consisting of all persons or entities who purchased the common stock of Zafgen, Inc. between January 12, 2015 and October 16, 2015, inclusive. The lawsuit alleges that Defendants made misleading misrepresentations about thrombotic adverse events in previous clinical trials of its anti-obesity drug, and leading drug candidate, beloranib. Until October 16, 2015, Zafgen had disclosed only two thrombotic adverse events in one prior clinical trial. During most of the Class Period, Zafgen stock traded in the mid to high $30-range while Defendants trumpeted the beloranib drug trials. But in early October, Zafgen stock suddenly began to fall. Between the opening of trading on October 12, 2015 and the close of trading on October 13, 2015, Zafgen shares dropped from $34.76 per share to $15.75 per share -- a drop of approximately 55%. This drop was fueled by rumors in the marketplace that a patient had died in an ongoing Phase 3 clinical trial of beloranib. On October 14, 2015, Zafgen confirmed that a patient in its Phase 3 trial of beloranib had, indeed, died. Zafgen failed to disclose, however, that the patient was receiving beloranib -- not a placebo -- and failed to disclose anything about thrombotic events in prior clinical trials. Late in the day on October 15, 2015, the Food and Drug Administration informed Zafgen that beloranib had been placed on partial clinical hold. This forced Zafgen to reveal on October 16, 2015 that: (i) the patient who died was receiving beloranib -- not a placebo; and (ii) there had been four thrombotic adverse events in prior clinical studies of beloranib -- two more than previously reported -- as well as two additional, previously undisclosed thrombotic events in ongoing studies, for a total of six thrombotic events out of 400 patients receiving beloranib compared to zero thrombotic events in the approximately 150 patients treated with a placebo. The Company's stock plummeted on this news. After closing at $21.02 per share on October 15, 2015, Zafgen stock closed at only $10.36 per share on October 16, 2015 - - a drop of over 50%. Finally, in September 2015 -- the month before Defendants allegedly revealed the truth -- Zafgen insiders unloaded over $10 million of their holdings. Plaintiffs seek to recover damages on behalf of all Class members who invested in Zafgen common stock during the Class Period. If you invested in Zafgen common stock, and lost money on the transactions, you may wish to join in this action to serve as lead plaintiff. In order to do so, you must meet certain requirements set forth in the applicable law and file appropriate papers no later than December 21, 2015. A "lead plaintiff" is a representative party that acts on behalf of other class members in directing the litigation. In order to be appointed lead plaintiff, the court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class. Under certain circumstances, one or more class members may together serve as lead plaintiff. Your ability to share in any recovery is not, however, affected by the decision whether or not to serve as a lead plaintiff. You may retain Bernstein Liebhard LLP, or other counsel of your choice, to serve as your counsel in this action. If you are interested in discussing your rights as a Zafgen investor and/or have information relating to the matter, please contact Joseph R. Seidman, Jr. at (877) 779-1414 or seidman@bernlieb.com Bernstein Liebhard LLP has pursued hundreds of securities, consumer and shareholder rights cases and recovered over $3.5 billion for its clients. The National Law Journal has recognized Bernstein Liebhard for twelve consecutive years as one of the top plaintiffs' firms in the country. You can obtain a copy of the complaint from the clerk of the court for the United States District Court for the District of Massachusetts. ZEOBIT: Thousands of MacKeeper Buyers File for Refunds ------------------------------------------------------ Jeremy Kirk, writing for IDG News Service, reports that tens of thousands of people who bought MacKeeper have filed for refunds as part of a proposed class-action settlement against the application's former developer. The number of refund requests has far exceeded what is typical in these type of lawsuits, surprising even experienced class-action lawyers. But the unfortunate side effect of the robust response means those who've applied will probably get a smaller refund. The class-action suit was filed in May 2014 on behalf of Pennsylvania resident Holly Yencha, who contended that MacKeeper falsely flagged security and performance problems in order to coax consumers into paying US$39.95 for the full version. MacKeeper has been dogged for years by accusations it is so-called scareware, a term for applications that use intimidating warnings to get consumers to buy the program. The lawsuit was filed against ZeoBIT, a company started in Ukraine that originally developed MacKeeper. ZeoBIT no longer owns MacKeeper and sold it in April 2013 to Kromtech Alliance Corp. of Cologne, Germany. Kromtech, which is not a party in the lawsuit, says it has undertaken efforts to rehabilitate MacKeeper and address some of the longstanding criticisms of the program. ZeoBIT proposed to settle the lawsuit for $2 million rather than go to trial. About one-third of that money will go to the plaintiff's attorneys, with about $1.25 million going into a settlement fund. Judge Joy Flowers Conti of the federal district court for western Pennsylvania gave the settlement her preliminary approval in July, but it has yet to earn final approval. Since August, a court-appointed administrator has been contacting the 513,330 people who bought MacKeeper in the U.S. and are eligible for a refund. As of Sept. 26, 78,652 claims have been filed. The claims still need to be verified, but the response rate far exceeds what is normal in class-action suits. Rafey S. Balabanian, an attorney for the plaintiff with the law firm Edelson PC, told Judge Conti in April that claim rates for similar class-action suits usually range around just 1 percent to 2 percent. So far, the MacKeeper claims amount to around 15 percent of those eligible, and claims can continue to be filed through Nov. 30 through this website. Balabanian wrote in an Oct. 2 court filing that the claims rate in this case "is almost unprecedented in consumer class actions such as this." There are some clues as to why the MacKeeper claim campaign has been so successful. More than 90 percent of the email addresses used to contact MacKeeper purchasers were valid, according to Rust Consulting, the court's settlement administrator. A toll-free number advertised on the claim website received more than 1,000 calls. Online ads were also placed on Facebook. The case has also received a fair bit of media coverage. The high response rate will have no effect on ZeoBIT. If the settlement is approved, it just means smaller slices of the $1.25 million set aside for refunds will go to claimants. The plaintiff's attorneys originally thought that given the typical low response rates in class actions, people who applied would get back the full purchase price of MacKeeper. Now it's looking like $15 or $16 each. Attorneys for the plaintiff are still satisfied with that amount, because the lawsuit never contended that MacKeeper was "completely worthless," according to a court filing. And a $2 million settlement for ZeoBIT is a good deal that avoids a long and potentially expensive trial. If 513,330 people bought MacKeeper for $39.95, ZeoBIT would have collected more than $20 million in revenue in the U.S. alone. * Class-Action Threats Number One Concern for In-House Attorneys ---------------------------------------------------------------- Eric S. Fisher, Esq., of Taylor English Duma and Ryan c. Grelecki, in an article for Inside Counsel, report that the threat of class- action lawsuits is the number one concern for many in-house attorneys, and for good reason: class actions cost U.S. companies $2 billion annually. Much of that money is spent on defense litigation fees and related expenses, in addition to judgments or settlements. In every case, the defense team's goal is to avoid certification as a class action. If that strategy is not successful, the company has to make a hard assessment of whether the often-onerous cost of litigating a class action outweighs the cost of a settlement, even if the company believes it has the legal high ground. A 2010 study of class actions by the California Administrative Office of the Courts illustrates how the prolonged timeline of class cases can drive costs. The survey found that cases certified through a motion took an average of 2.7 years just to get to the deposition phase. That compared to just over a year for all cases. That may be one reason that 89 percent of the cases in the California study with a certified class settled. Fortunately, the courts usually impose a high bar on class certification through motion. (Class certification often is agreed to by the parties as part of a settlement.) In order to be certified as a class action by the court, the plaintiff must establish that there exists: (1) a sufficient number of prospective class members; (2) commonality of questions of law or fact; (3) typicality of the claims or defenses of representatives and prospective class members; and (4) adequacy of class representatives to protect the interests of the class. If the defendant can defeat class certification by showing a claim doesn't meet these criteria, it can cut the lawsuit down at the knees, significantly limiting exposure. The rub, however, is that there are often substantial costs just to get to the court's decision on class certification. The Federal Rules of Civil Procedure require the trial court to determine whether to certify an action as a class action at "an early practicable time after a person sues or is sued." In most cases, the court will allow the parties to break up, or bifurcate, the discovery process (which, outside of trial, is usually the most expensive facet of litigation) into two phases: pre- certification and post-certification. The plaintiff is permitted to conduct pre-certification discovery in order to establish the class certification requirements. Unfortunately, the costs of pre-certification discovery include not only money spent on attorneys' fees and vendor costs (such as for processing electronically stored information), but also employee hours lost while searching for and compiling the requested information, as well as potential internal and external damage to the company's reputation. * Cos. Respond to Suits Over Moldy Front-Loading Washing Machines ----------------------------------------------------------------- CBS 11 News reports that front-load washing machines may be triggering more service calls, more trouble, and more lawsuits than manufacturers ever expected. Michael Vogler tells CBS 11 News it's left him high and dry. "You could say it was a clothes spoiler, instead of a clothes washer." Mr. Vogler is one of the lead plantiffs in a class-action lawsuit against Electrolux Home Products, the maker of his Frigidaire front-load machine. He walked us to the back of his house to a shed where he says he is storing the "evidence." "This is where the problem is," Mr. Vogler said, pointing to the machine. Mr. Vogler says he noticed his allergies worsening, his clothes smelling, and he found a streak of mold on one of his clean shirts. That's when he discovered what was hidden inside the front seal of his machine. "It was black and slimy. This is stained and permeated in the rubber," Mr. Vogler said. Class-action lawsuits have been filed against several top washing machine makers -- Electrolux, Frigidaire, Sears, Kenmore, LG Electronics, Bosch and Whirlpool Corporation. The lawsuits claim the machines are defective in their designs and airtight seals, creating breeding grounds for slimy, smelly black bacteria, also known as "biofilm." "In our case, we have a service bulletin on this," said attorney Ed Wallace, who represents Mr. Vogler and others in the litigation against Electrolux Home Products. "The company knew there was a problem as early as April 2007. And rather than recall the machines and let consumers know, they continued to sell the machines," Mr. Wallace said. Attorneys for the plaintiffs are also arguing that when customers complain, manufacturers often place the blame on them for not cleaning their machines. "So this is something I'm responsible for?" says I-Team Senior Investigative reporter Ginger Allen. Ms. Allen called several of the customer service lines and was repeatedly told this was something she was responsible for, and a problem she could prevent, if she followed the manuals. Some of them also told Allen this was not a very common problem. However, the plumbers and appliance service companies, which have inspected the moldy machines, told the I-Team they could not disagree more. "Yeah. Oh my gosh yes!" said one plumber, when Ms. Allen asked whether he'd heard of the problem. When asked whether the problem rests with just one brand, an appliance serviceman said: "No, it's all front loaders." The repairmen told us how "common" was to have standing water, mold and odors in front-load washers. "You can't imagine how it smells, like somebody died. I have to go outside," said one serviceman. In court documents, Whirlpool is said to have marketed a product called Affresh to "combat" mold. The product, according to the documents, could generate an estimated $195 million in sales revenue, even though the company said it had "few" consumer complaints about bacteria. Mr. Vogler says when he complained to Frigidaire, he was told to buy a new $200 part. "Companies rip people off, $200 to $300 at a time. It's just not fair," Wallace said. Mr. Vogler's son was a baby when his lawsuit began. Now, seven years later, they do laundry together in a top-load machine, waiting for their day in court. "It's just a principle thing. I just feel like someone needs to stand up to these people," Mr. Vogler said. STATEMENTS TO CBS 11 I-Team FROM MANUFACTURERS: ELECTROLUX NORTH AMERICA "Although I'm unable to comment about the specific lawsuit, we dispute that our front load washers contain any defect regarding mold or mildew. Please see several tips for consumers experiencing mold or mildew: -- To help prevent odors, mildew or mold, consumers should leave the door open for a few hours after use to allow the washer to dry. -- Additionally, consumers can refresh or clean the inside of the washer by running the Clean Washer cycle. Some models have an automated reminder mode or consumers may prefer to manually select the cycle. -- If a consumer believes that their product is not working as expected, we urge them to call our consumer services group to discuss whether service is necessary." LG ELECTRONICSUSA In light of periodic news reports raising questions about "mold" in front-load washing machines, LG Electronics USA reiterates the importance of proper use and maintenance. Laundry odors can occur for a variety of reasons, and the number of mold reports represents a very small percentage of units installed in consumers' homes. This is not a new issue as claims have been made against all major manufacturers over the years. For all front-load laundry purchasers, LG emphasizes proper use and routine maintenance. -- LG recommends using the correct amount of High-Efficiency (HE) detergent for front-load washers. -- A washer cleaning solution developed for front-loaders may also be used periodically. -- Additional maintenance suggestions and consumer tips, including information on LG's "tub clean" cycle, can be found in the user's manual. LG has also developed a variety of features on its front-load washers to help consumers better care for their washers and clothes, including: -- An exclusive magnetic door ventilation feature to ensure the wash tub stays fresh in-between loads. LG has designed a clever magnet that props the door open ever so slightly to allow fresh air to circulate in the wash tub without getting in the way. -- A redesigned antimicrobial door gasket with drain holes to help the gasket dry more quickly to keep mold and mildew away. -- A high-powered "Tub Clean" cycle that removes detergent residue to keep odors and mildew away; it is recommended that consumers run this cycle every month to help keep the washer clean and fresh. Customer satisfaction with LG front-load laundry products is extremely high, and LG consistently receives accolades from independent testing organizations on our washers and dryers. As an industry leader and technology innovator in front-load laundry, we appreciate the opportunity to set the record straight on this industry issue. SEARS, ROEBUCK AND CO. "Sears and Whirlpool, who manufactured the washing machines at issue and is defending Sears in the lawsuit, reject any claims that Kenmore front-loading washing machines are defective. Indeed, the overwhelming majority of our members are pleased with their Kenmore front-loading washing machines. To control odor, mold, and mildew in their washing machines, our members always should follow the instructions in the use and care guide for their washing machine. For more information on the topic, please see the statement provided by the Association of Home Appliance Manufacturers: http://www.aham.org/consumer/ht/a/GetDocumentAction/id/43663." BOSCH "As a matter of company policy, Bosch does not comment on pending litigation." WHIRLPOOL CORPORATION In October last year Whirlpool Corporation received a winning verdict in a class action involving a wide range of our front- loading washing machines. The verdict clearly validated what our consumers already know -- that these are high-quality washers with great performance, great energy and water savings and clear instructions for proper use. The jury saw through the class- action lawyers' attempts to enrich themselves on the backs of consumers who have never had a complaint about their front-load washing machines. More than 96 percent of people who own these products are happy with their front-loading washing machines, and we have people on call to answer any consumer questions that may arise. The class action lawyers are the only ones who stand to benefit from these lawsuits." * FDA Has Yet to Decide on "Diet" Soft Drinks Labeling Issue ------------------------------------------------------------ Christine Forgues Schlenker, Esq., of Morgan Lewis, in an article for The National Law Review, reports that in April 2015, the US Right to Know (US RTK), a non-profit organization that reports on food industry issues on behalf of consumers, sent a letter to the Federal Trade Commission (FTC) and a citizen petition to the Food and Drug Administration (FDA) with requests to investigate diet soda manufacturers for misbranding and deceptive advertising on the grounds that the "diet" products contain artificial sweeteners that US RTK alleges actually contribute to weight gain. The request for FTC investigation states that the soft drink companies deceptively imply that artificially sweetened beverages contribute to weight loss rather than weight gain and requests that the FTC prohibit the companies from using the term "diet" in advertising such products. US RTK argued that representing that such products are "diet" is likely to mislead reasonable consumers, and that consumers will rely on the claims to their detriment. In the FDA citizen petition, US RTK requests that FDA 1) issue a warning letter for use of the term "diet" as being false and misleading, and 2) investigate the use of the term "diet" (and other terms implying weight loss in other artificially sweetened products) to determine if the product brand names or labels are misbranded. In both requests, US RTK stated that the implied claim that consuming diet soft drinks will assist in weight loss is false. The request and petition cite four reviews of scientific literature on artificial sweeteners that suggest that they do not contribute to weight loss, but rather lead to weight gain. Additionally, US RTK pointed to epidemiological evidence, interventional studies, and animal studies that suggest that artificial sweeteners implicated weight gain. The requests also cite two industry studies that did not find a link between artificial sweeteners and weight gain. FTC declined to comment on the issue, responding in a letter that it would not take action, although it reserved the right to take further action as the public interest may require. FDA provided an interim response to the citizen petition, stating that it has not yet reached a decision regarding US RTK's requests. It is unclear at this time whether FDA will also stay any action against the diet soda manufacturers. It seems that the two regulatory agencies are not willing to expend resources reviewing the controversial topic, despite the scientific support provided. While action is unlikely, the requests reflect an increasing public focus upon such claims and their underlying validity. In the absence of government action, more civil class action litigation over such questions is likely on the horizon. * Gold Mining Cos. No Realistic Alternative to Silicosis Suit ------------------------------------------------------------- Franny Rabkin, writing for BDLive, reports that gold mining companies have spent a week in court putting obstacles in the path of a silicosis class action, but have not offered a single realistic alternative, counsel for mine workers Wim Trengove SC argued in Johannesburg on Oct. 22. Mr. Trengove was presenting a counterargument on behalf of claimants to representations made by eleven senior counsel on why the High Court in Johannesburg should not certify a landmark class action for damages. Hundreds of thousands of people had contracted occupational lung diseases, such as silicosis and tuberculosis, and there was a prima facie case that gold mining houses were to blame, he said. The claimants in the case had a constitutional right to have their day in court, he said. The gold mining companies had made objections and arguments about why the class action should not be certified, but had made "no constructive contribution in finding a solution", Mr. Trengove said. A thousand individual cases were a possibility, but if the "hundreds of thousands" of potential cases were to be heard, the truth was that a class action was the only solution. Geoff Budlender SC, also representing the mine workers, said "after five days of argument by 11 counsel for six mining houses", not one had told the court that their clients had at all times complied with their duties under legislation, common law and the Constitution. Not one of the companies had said that none of its workers had contracted silicosis. None of the companies said that were there was overexposure to silica dust, these were isolated incidents. The mining companies had criticized the claimants' evidence, but it was sufficient for certification. Also, a class action could still be certified on potential evidence, which would emerge during a trial. This included dust level records that mines had to keep, postmortem reports, health and safety records, and transfers due to silicosis or tuberculosis, he said. Steven Budlender, also representing the mine workers, said mining companies' argument that a class action case would be unmanageable was without basis as they had not offered an alternative. Asbestos Litigation ASBESTOS UPDATE: "Rozumek" Remanded to Illinois State Court ----------------------------------------------------------- Dennis Rozumek originally filed an action in the Third Judicial Circuit, Madison County, Illinois, alleging injuries due to exposure to asbestos. Defendant Crane Co. removed the action to the Court pursuant to the provisions of 28 U.S.C. Section 1442(a)(1), which provides for removal when a defendant is sued for acts undertaken at the direction of a federal officer. Defendant General Electric Company timely filed a notice of removal and joinder in Defendant Crane's notice of removal. No co-defendant has identified a basis for federal jurisdiction other than the federal officer removal statute, which only Crane and GE raised. Judge Staci M. Yandle of the United States District Court for the Southern District of Illinois, in a memorandum and order dated Oct. 20, 2015, declined to exercise jurisdiction over the matter. The only basis for federal jurisdiction is the federal defense of two dismissed the Defendants. No other defendant has raised the federal officer removal statute as a defense or objected to remand, the remaining claims are governed by state law and the Plaintiff's choice of forum is state court. Accordingly, Judge Yandle's motion is granted and remanded the case to the Third Judicial Circuit, Madison County, Illinois. The case is DENNIS ROZUMEK, Plaintiff, v. AIR & LIQUID SYSTEMS, INC. et al., Defendants, CASE NO. 15-CV-441-SMY-SCW (S.D. Ill.). A full-text copy of Judge Yandle's Decision is available at http://is.gd/n6HtQTfrom Leagle.com. Dennis Rozumek, Plaintiff, represented by Erica Mynarich, Carver, Cantin & Grantham, Ben A. Vinson, Jr., Vinson Law & Clay Zelbst, Sloan, Bagley, Hatcher & Perry. Air & Liquid Systems, Inc., Defendant, Cross Defendant, represented by Keith B. Hill, Heyl, Royster et al. - Edwardsville. Air & Liquid Systems, Inc, Defendant, represented by James R. Grabowski, Heyl, Royster et al.. Aurora Pump Company, Defendant, Cross Defendant, Counter Defendant, represented by Bradley R. Bultman, Segal, McCambridge et al.. Carrier Corp, Defendant, Cross Defendant, represented by Kyler H. Stevens, Kurowski Shultz LLC. CBS Corporation, Defendant, Cross Defendant, represented by Michael R. Dauphin, Foley & Mansfield, PLLP. Crane Co., Defendant, represented by Carl J. Geraci, HeplerBroom LLC-St. Louis & Benjamin J. Wilson, HeplerBroom LLC-St. Louis. Electrolux Home Products, Inc., Defendant, represented by Daniel W. McGrath, Hinshaw & Culbertson, Dennis J. Graber, Hinshaw & Culbertson, Haley Marie Schumacher, Hinshaw & Culbertson LLP, James M. Brodzik, Hinshaw & Culbertson LLP, Mark D. Bauman, Hinshaw & Culbertson, Nicole E. Rice, Hinshaw & Culbertson LLP & Trevor A. Sondag, Hinshaw & Culbertson LLP. Foster Wheeler LLC, Defendant, represented by Bradley R. Bultman, Segal, McCambridge et al.. Georgia-Pacific LLC, Defendant, represented by Benjamin J. Wilson, HeplerBroom LLC & Carl J. Geraci, HeplerBroom LLC. Goulds Pumps, Inc., Defendant, represented by Dennis J. Graber, Hinshaw & Culbertson, Haley Marie Schumacher, Hinshaw & Culbertson LLP, James M. Brodzik, Hinshaw & Culbertson LLP, Mark D. Bauman, Hinshaw & Culbertson, Nicole E. Rice, Hinshaw & Culbertson LLP & Trevor A. Sondag, Hinshaw & Culbertson LLP. Honeywell International, Inc., Defendant, represented by Kathleen Ann Hardee, Polsinelli PC & Kirra N. Jones, Polsinelli PC. Imo Industries, Inc., Defendant, represented by Keith B. Hill, Heyl, Royster et al.. Imo Industries, Inc., Defendant, represented by James R. Grabowski, Heyl, Royster et al. Ingersoll-Rand Company, Defendant, represented by Benjamin J. Wilson, HeplerBroom LLC & Carl J. Geraci, HeplerBroom LLC. ITT Corporation, Defendant, represented by Undray Wilks, Morgan, Lewis et al. . John Crane Inc, Defendant, represented by Sean P. Fergus, O'Connell, Tivin, Miller & Burns L.L.C. & Simon B. Purnell, O'Connell, Tivin, Miller & Burns L.L.C.. Metropolitan Life Insurance Co., Defendant, represented by Charles L. Joley, Joley, Nussbaumer, et al. & Georgiann Oliver, Joley, Nussbaumer, et al.. Strahman Valves, Inc., Defendant, represented by Bradley R. Bultman, Segal, McCambridge et al.. Velan Valve Corporation, Defendant, represented by Benjamin J. Wilson, HeplerBroom LLC-St. Louis & Carl J. Geraci, HeplerBroom LLC. Warren Pumps, L.L.C., Defendant, represented by Keith B. Hill, Heyl, Royster et al. & James R. Grabowski, Heyl, Royster et al. Georgia-Pacific LLC, Cross Claimant, represented by Benjamin J. Wilson, HeplerBroom LLC & Carl J. Geraci, HeplerBroom LLC. Georgia-Pacific LLC, Cross Defendant, represented by Benjamin J. Wilson, HeplerBroom LLC & Carl J. Geraci, HeplerBroom LLC. ASBESTOS UPDATE: MACo Fails to Dismiss Libby Worker's Suit ---------------------------------------------------------- MACo moves for summary judgment on the grounds that John Carlock's answer to an interrogatory that he suffered a "significant asbestos exposure" while working for the City of Libby establishes that MACo is not liable for Carlock's alleged occupational disease as a matter of law. Respondent Montana Municipal Interlocal Authority, which insured the City of Libby, opposes MACo's motion. MMIA requested oral argument. However, since the court is ruling in MMIA's favor for the reasons set forth in MMIA's brief, an oral argument is unnecessary. Judge David M. Sandler of the Workers' Compensation Court of Montana, an order dated Oct. 21, 2015, denied MACo's motion for summary judgment and denied MMIA's request for oral argument as moot. Although Carlock says the amount of asbestos he was exposed to while working for the City of Libby was "significant," his interrogatory answer does not establish that his alleged occupational disease was caused by his work for the City of Libby because medical causation requires expert opinion or testimony. MACo did not present any evidence of what criteria Carlock used to form his opinion that his alleged exposure to asbestos while working for the City of Libby was "significant," or that he has sufficient knowledge and expertise to say that the conditions under which he worked for the City of Libby could have caused his alleged occupational disease. Therefore, MACo is not entitled to summary judgment. The case is John CARLOCK, Petitioner, v. LIBERTY NW INS. CORP6, MACO, and MONTANA MUNICIPAL INTERLOCAL AUTHORITY, Respondents/Insurers, WCC NO. 2015-3568 (MTWCC). A full-text copy of Judge Sandler's Decision is available at http://is.gd/ukv3Vj from Leagle.com. ASBESTOS UPDATE: 5th Cir. Affirms Ruling in "Bartel" ---------------------------------------------------- The United States Court of Appeals for the Fifth Circuit, in an opinion dated Oct. 19, 2015, affirmed a lower court's decision in a consolidated action involving claims arising from the plaintiffs' alleged exposure to asbestos aboard vessels operated or owned by the various defendants. The Fifth Circuit was asked to determine whether the cases, originally filed in state court, properly belong in federal court. Because the defendants did not establish the necessary causal nexus between their actions and the plaintiffs' claims, the Fifth Circuit said it need not decide whether the defendants have asserted a colorable federal defense. Likewise, the Fifth Circuit need not address plaintiffs' additional arguments in favor of remand. The appeals case is WILLIAM E. BARTEL, as personal representative of the Estate of Silas B. Bishop, Plaintiff-Appellee, v. ALCOA STEAMSHIP COMPANY, INCORPORATED; CENTRAL GULF LINES, INCORPORATED; CENTRAL GULF STEAMSHIP CORPORATION; CROWLEY MARINE SERVICES, INCORPORATED, Successor by Merger Delta Steamship Lines, Incorporated, formerly known as Mississippi Shipping Company; DELTA STEAMSHIP LINES, INCORPORATED; EMPIRE TRANSPORT, INCORPORATED; FARRELL LINES, INCORPORATED, formerly known as American South African Lines; JAMES RIVER TRANSPORT, INCORPORATED; CHAS. KURZ & COMPANY, individually and/or as Successor-in-Interest Keystone Shipping Company, Successor-in-Interest Keystone Tankship Corporation; MARINE NAVIGATION COMPANY; CROWLEY MARITIME CORPORATION, individually and/or as Successor-in-Interest Marine Transport Lines, Incorporated; MATSON NAVIGATION COMPANY, INCORPORATED; NATIONAL BULK CARRIERS, INCORPORATED; OGDEN LEADER STRANSPORT, INCORPORATED; PAN ATLANTIC STEAMSHIP COMPANY; SEA-LAND SERVICE, INCORPORATED; WABASH TRANSPORT, INCORPORATED; WATERMAN STEAMSHIP CORPORATION; MARINE TRANSPORT LINES, INCORPORATED; KEYSTONE SHIPPING COMPANY; CENTRAL GULF LINES, INCORPORATED, individually and/or as Successor-in-Interest Central Gulf Steamship Corporation, Defendants-Appellants WILLIAM E. BARTEL, As personal representative on behalf of Estate of Joseph L. Dennis, Plaintiff-Appellee, v. AMERICAN EXPORT ISBRANTSEN; FARRELL LINES, INCORPORATED, on its own behalf and, formerly known as American South African Lines, Successor-in-Interest American Export Lines, Incorporated formerly known as American Isbrandtsen Lines, Incorporated, incorrectly named American Export Isbrandsten; AMERICAN EXPORT LINES, INCORPORATED; AMERICAN TRADING & PRODUCTION CORPORATION; AMERICAN TRADING TRANSPORTATION COMPANY; CENTRAL GULF LINES, INCORPORATED, Individually and/or Successor-in-Interest Central Gulf Steamship Corporation; CHAS. KURZ; COMPANY, Individually and/or Successor-in-Interest Keystone Shipping Company Successor-in-Interest Keystone Tankship Corporation; FARRELL LINES, INCORPORATED; TRINIDAD CORPORATION, Defendants- Appellants LAWRENCE CRAIG, Plaintiff-Appellee, v. RIO GRANDE TRANSPORT, INCORPORATED; SEA-LAND SERVICE, INCORPORATED; WATERMAN STEAMSHIP CORPORATION, Defendants-Appellants, NO. 15-30004 (5th Cir.). A full-text copy of the Fifth Circuit's Decision is available at http://is.gd/k4JBEUfrom Leagle.com. ASBESTOS UPDATE: Shipowners' Fail in Bid to Junk 14 PI Suits ------------------------------------------------------------ In 14 asbestos-related personal injury lawsuits, which became part of the consolidated asbestos products liability multidistrict litigation (MDL 875), filed by former workers who alleged to have been exposed to asbestos while working aboard various ships, Judge Eduardo C. Robreno of the United States District Court for the Eastern District of Pennsylvania denied the motions for summary judgment filed by various shipowners represented by Thompson Hine LLP, holding that the claims belong to the bankruptcy estates of the individuals and that, therefore, distributions of any recovery by the trustee should be made in accordance with the priorities set forth in the Bankruptcy Code. The asbestos cases are: (1) WILLARD E. BARTEL, et al., (Administrators for Estate of William G. Richards) Plaintiffs, v. A-C PRODUCT LIABILITY TRUST, et al., Defendants, CONSOLIDATED UNDER NO. MDL 875, CIVIL ACTION NO. 2:11-CV-31983-ER (E.D. Pa.). A full-text copy of Judge Robreno's memorandum dated October 14, 2015, is available at http://is.gd/A5rUXZfrom Leagle.com. (2) WILLARD E. BARTEL, et al., (Administrators for Estate of Jimmy L. Day), Plaintiffs, v. A-C PRODUCT LIABILITY TRUST, et al., Defendants, CONSOLIDATED UNDER NO. MDL 875, CIVIL ACTION NO. 2:11- CV-30341-ER (E.D. Pa.). A full-text copy of Judge Robreno's memorandum dated October 23, 2015, is available at http://is.gd/V1VUPBfrom Leagle.com. (3) WILLARD E. BARTEL, et al., (Administrators for Estate of Charles A. Miller) Plaintiffs, v. A-C PRODUCT LIABILITY TRUST, et al., Defendants, CONSOLIDATED UNDER NO. MDL 875, CIVIL ACTION NO. 2:11-CV-30524-ER (E.D. Pa.). A full-text copy of Judge Robreno's memorandum dated October 9, 2015, is available at http://is.gd/n26QQDfrom Leagle.com. (4) DONALD S. BROOKS, Plaintiff, v. A-C PRODUCT LIABILITY TRUST, et al., Defendants, CONSOLIDATED UNDER MDL 875, CIVIL ACTION NO. 2:11-CV-30182-ER (E.D. Pa.). A full-text copy of Judge Robreno's memorandum dated Oct. 20, 2015, is available at http://is.gd/Hkov2lfrom Leagle.com. (5) BARBARA A. GRANT, Plaintiff, v. A-C PRODUCT LIABILITY TRUST, et al., Defendants, MDL NO. 875, CIVIL ACTION NO. 2:11-CV- 30383-ER (E.D. Pa.). A full-text copy of Judge Robreno's memorandum dated Oct. 6, 2015, is available at http://is.gd/2yYIye from Leagle.com. (6) HERBERT L. JACOBS, Plaintiff, v. A-C PRODUCT LIABILITY TRUST, et al., Defendants, MDL 875, CIVIL ACTION NO. 2:09-CV- 30143-ER (E.D. Pa.). A full-text copy of Judge Robreno's memorandum dated Oct. 6, 2015, is available at http://is.gd/jsqkao from Leagle.com. (7) CLAURENCE JONES, Plaintiff, v. A-C PRODUCT LIABILITY TRUST, et al., Defendants, CONSOLIDATED UNDER NO. MDL 875, CIVIL ACTION NO. 2:11-CV-30663-ER (E.D. Pa.). A full-text copy of Judge Robreno's memorandum dated Oct. 15, 2015, is available at http://is.gd/Sx4AHzfrom Leagle.com. (8) CREIGHTON E. MILLER, (Administrator for Estate of Steve Oswald), Plaintiff, v. A-C PRODUCT LIABILITY TRUST, et al., Defendants, NO. 2:11-CV-33109-ER (E.D. Pa.). A full-text copy of Judge Robreno's memorandum dated Oct. 20, 2015, is available at http://is.gd/EJ4D3zfrom Leagle.com. (9) GERARD A. NELSON, Plaintiff, v. A-C PRODUCT LIABILITY TRUST, et al., Defendants, CONSOLIDATED UNDER MDL 875, CIVIL ACTION NO. 2:11-CV-30555-ER (E.D. Pa.). A full-text copy of Judge Robreno's memorandum dated Oct. 6, 2015, is available at http://is.gd/pQHjbtfrom Leagle.com. (10) EUGENE J. PIKE, Plaintiff, v. A-C PRODUCT LIABILITY TRUST, et al., Defendants, CONSOLIDATED UNDER NO. MDL 875, CIVIL ACTION NO. 2:11-CV-30889-ER (E.D. Pa.). A full-text copy of Judge Robreno's memorandum dated Oct. 20, 2015, is available at http://is.gd/9kt26pfrom Leagle.com. (11) ROBERT E. SAUCIER, Plaintiff, v. A-C PRODUCT LIABILITY TRUST, et al., Defendants, CONSOLIDATED UNDER MDL 875, E.D. PA. CIVIL ACTION NO. 2:11-CV-33828-ER (E.D. Pa.). A full-text copy of Judge Robreno's memorandum dated Oct. 9, 2015, is available at http://is.gd/m8dO7yfrom Leagle.com. (12) JOHN L. STEIN, Plaintiff, v. A-C PRODUCT LIABILITY TRUST, et al., Defendants, CONSOLIDATED UNDER MDL 875, E.D. PA. CIVIL ACTION NO. 2:11-CV-30750-ER (E.D. Pa.). A full-text copy of Judge Robreno's memorandum dated Oct. 5, 2015, is available at http://is.gd/bHBa6Ufrom Leagle.com. (13) DOUGLAS C. TESSER, Plaintiff, v. A-C PRODUCT LIABILITY TRUST, et al., Defendants, MDL 875, CIVIL ACTION NO. 2:09-CV- 30094-ER (E.D. Pa.). A full-text copy of Judge Robreno's memorandum dated Oct. 6, 2015, is available at http://is.gd/uQTh1P from Leagle.com. (14) TOMMY L. WILLIAMSON, Plaintiff, v. A-C PRODUCT LIABILITY TRUST, et al., Defendants, CONSOLIDATED UNDER NO. MDL 875, CIVIL ACTION NO. 2:11-CV-30849-ER (E.D. Pa.). A full-text copy of Judge Robreno's memorandum dated Oct. 16, 2015, is available at http://is.gd/y8vJj2from Leagle.com. WILLARD E. BARTEL, Plaintiff, represented by DONALD A. KRISPIN, THE JAQUES ADMIRALTY LAW FIRM, P.C., ROBERT E. SWICKLE, THE JAQUES ADMIRALTY LAW FIRM, P.C., JOHN E. HERRICK, MOTLEY RICE LLC & JOHN DAVID HURST, MOTLEY RICE LLC. DAVID C. PEEBLES, Plaintiff, represented by DONALD A. KRISPIN, THE JAQUES ADMIRALTY LAW FIRM, P.C., ROBERT E. SWICKLE, THE JAQUES ADMIRALTY LAW FIRM, P.C., JOHN E. HERRICK, MOTLEY RICE LLC & JOHN DAVID HURST, MOTLEY RICE LLC. AMERICAN OIL CO., Defendant, represented by GENE B. GEORGE, RAY, ROBINSON, CARLE & DAVIES PLL, WAYNE A. MARVEL, MARON MARVEL BRADLEY & ANDERSON PA, JOHN G. GAUL, MARON, MARVEL, BRADLEY & ANDERSON, P.A. & LINA M. CARRERAS, MARON MARVEL BRADLEY ANDERSON PA. A.W. CHESTERTON COMPANY, Defendant, represented by JOHN P. PATTERSON, TUCKER ELLIS WEST. GATKE CORPORATION, Defendant, represented by JOHN M. HERKE, SPYRIDON PALERMO & DORNAN. GENERAL REFRACTORIES CO., Defendant, represented by CRAIG FOSTER TURET, OFFIT KURMAN, P.A.. IMO INDUSTRIES, INC., Defendant, represented by COLLEEN A. MOUNTCASTLE, GALLAGHER SHARP, STEPHEN M. BEAUDRY, GALLAGHER SHARP & KEVIN C. ALEXANDERSEN, GALLAGHER SHARP. SINCLAIR OIL COMPANY, Defendant, represented by JOHN M. DEITCH, COUGHLIN DUFFY LLP & JOSEPH P. FITENI, COUGHLIN DUFFY LLP. SINCLAIR REFINING COMPANY, Defendant, represented by JOHN M. DEITCH, COUGHLIN DUFFY LLP & JOSEPH P. FITENI, COUGHLIN DUFFY LLP. UNITED FRUIT COMPANY, Defendant, represented by HAROLD W. HENDERSON, THOMPSON, HINE LLP. BP CORPORATION N.A., Defendant, represented by JOHN G. GAUL, MARON, MARVEL, BRADLEY & ANDERSON, P.A., LINA M. CARRERAS, MARON MARVEL BRADLEY ANDERSON PA & WAYNE A. MARVEL, MARON MARVEL BRADLEY & ANDERSON PA. PAN AMERICAN PETROLEUM AND TRANSPORT COMPANY, Defendant, represented by GENE B. GEORGE, RAY, ROBINSON, CARLE & DAVIES PLL, JOHN G. GAUL, MARON, MARVEL, BRADLEY & ANDERSON, P.A., LINA M. CARRERAS, MARON MARVEL BRADLEY ANDERSON PA & WAYNE A. MARVEL, MARON MARVEL BRADLEY & ANDERSON PA. FIBREBOARD CORPORATION, Defendant, represented by DONA L. ARNOLD, BENESCH FRIEDLANDER COPLAN ARONOFF & ERIC LARSON ZALUD, BENESICH FRIEDLANDER COPLAN & ARONOFF. HESS OIL COMPANY, Respondent, represented by HAROLD W. HENDERSON, THOMPSON, HINE LLP & RICHARD C. BINZLEY, THOMPSON, HINE AND FLORY. ASBESTOS UPDATE: Allstate's Bid for Insurance Arbitration Stayed ---------------------------------------------------------------- Allstate Insurance Company has filed a petition seeking an order compelling A.O. Smith Corporation to arbitrate a dispute regarding a Settlement/Coverage-in Place Agreement, pursuant to the Federal Arbitration Act. A.O. has filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, or in the alternative, to stay pursuant to the Colorado River doctrine. Beginning in 1967, A.O. "purchased certain primary general liability insurance policies, umbrella and excess liability insurance policies from various insurance companies," including four from Allstate. A.O. also purchased insurance policies from a number of other insurers. Some of the primary policies have been exhausted, and some of the insurers have become insolvent or are otherwise unable to pay. Due to the exhaustion of some of the primary policies and the insolvency of some insurers, disputes have arisen among A.O. and its remaining insurers with which it has umbrella and excess liability policies, regarding responsibly for A.O.'s liabilities arising out of asbestos claims. In a memorandum opinion and order dated Oct. 23, 2015, Judge Thomas M. Durkin of the United States District Court for the Northern District of Illinois, Eastern Division, denied A.O.'s motion in that the Court will not dismiss Allstate's petition for lack of ripeness, and granted in that the Court stays Allstate's petition pending resolution of the Wisconsin case. A.O.'s motion for an extension of time to respond to Allstate's discovery request and for a protective order, is granted in that the stay pursuant to the Court's decision to abstain in favor of the Wisconsin case also applies to discovery. Additionally, Allstate's motion for summary judgment on its petition is denied without prejudice pending a lifting of the stay. A status hearing is set for April 21, 2016 at 9 A.M. In lieu of appearing on April 21, the parties may file a status report on April 18, 2016 reporting on the status of the Wisconsin case and proposing a new status date. Of course, should the Wisconsin case conclude without the need to revisit Allstate's petition, the parties should inform the Court immediately, Judge Durkin held. The case is ALLSTATE INSURANCE COMPANY, Plaintiff, v. A.O. SMITH CORPORATION, Defendant, NO. 15 C 6574 (N.D. Ill.). A full-text copy of Judge Durkin's Decision is available at http://is.gd/GmNmozfrom Leagle.com. Allstate Insurance Company, Petitioner, represented by James Richard Murray, Esq. -- jmurray@tresslerllp.com -- Tressler, Soderstrom, Maloney & Priess, Heather Colleen Sullivan, Esq. -- hsullivan@tresslerllp.com -- Tressler LLP & Kathryn Ann Formeller, Esq. -- kformeller@tresslerllp.com -- Tressler LLP. A.O. Smith Corporation, Respondent, represented by Jeffrey O. Davis, Esq. -- jeffrey.davis@quarles.com -- Quarles & Brady, Patrick J Murphy, Esq. -- patrick.murphy@quarles.com -- Quarles & Brady Llp, Jacob M. Mihm, Esq. -- jmihm@hokellc.com -- Hoke LLC & Stephen M. Hoke, Esq. -- shoke@hokellc.com -- Hoke Attorneys at Law LLC. ASBESTOS UPDATE: Cleaver-Brooks Fails to Dismiss "Ricci" -------------------------------------------------------- Mark Ricci contends that he developed mesothelioma as a result of bystander exposure to asbestos from dust that his father Aldo Ricci brought home on his clothes. The plaintiff asserts that his father was exposed to asbestos from Cleaver-Brooks, Inc.'s boilers during his father's career as a draftsman engineer for Segner & Dolton from 1952 to 1971, as an engineer for Joseph Loring from 1971 to 1986, and for four years thereafter at Dolton & Ricci Consulting Engineers, Aldo's own engineering firm. The Plaintiff maintains, and Cleaver-Brooks does not dispute, that an unspecified number of the defendant's boilers contained asbestos. Cleaver-Brooks moves for summary judgment dismissing the plaintiffs' complaint and all claims and cross-claims against it. The company submits no affidavit in support of its motion but asserts that it is entitled to summary judgment based upon Aldo's deposition testimony. Aldo was 90 years old when he testified. He could not remember certain facts, which he attributed to his advanced age. Judge Peter H. Moulton of the Supreme Court, New York County, in a decision dated October 14, 2015, denied the Defendant's motion finding that Cleaver-Brooks failed to establish a prima facie case. Judge Moulton pointed out that Cleaver-Brooks failed to proffer unequivocal evidence that its product could not have contributed to the plaintiff's injury. Even if Cleaver-Brooks had met its burden, issues of fact exist for trial, Judge Moulton added. The case is IN RE NEW YORK CITY ASBESTOS LITIGATION relating to MARK RICCI, Plaintiff, v. A.O. SMITH WATER PRODUCTS CO., et al., Defendants, DOCKET NO. 190224/2014, SEQ. NO. 008 (N.Y. Sup.). A full-text copy of the Decision is available at http://is.gd/bp6MVD from Leagle.com. ASBESTOS UPDATE: Alcoa Withdraws Appeal in "Andrucki" ----------------------------------------------------- The appeal syled NEW YORK CITY ASBESTOS LITIGATION relating to ANDRUCKI, v. ALUMINUM COMPANY OF AMERICA - THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY (ALCOA), MOTION NO. M-3427 (N.Y. App. Div.), is withdrawn, according to an Oct. 20, 2015 decision by the Appellate Division of the Supreme Court of New York, First Department. A full-text copy of the Decision is available at http://is.gd/F4KOj5from Leagle.com. ASBESTOS UPDATE: Plumber Gets Positive Fibro Results ---------------------------------------------------- Ainslie Drewitt-Smith, writing for ABC News, reported that a contract plumber has spoken out after he was exposed to asbestos while working on a development at HMAS Albatross on the South Coast. Dave Ahrens was employed by Axis Plumbing to cut pipes, as part of the new Helicopter Aircrew Training System (HATS) being built on the naval air station near Nowra. He claims the asbestos was discovered in August after developer, Lend Lease, had the pipes swabbed. However Mr Ahrens said workers weren't told the result of the tests until September. "My biggest concern is did I bring it home, and the timeframe," he said. "We cut it on the 16th [August], I bought my clothes home, chucked it in the laundry with everyone else's and two weeks later we get a result. "It was tested on the 24th [August] and positive on the same day, and then [the result] sat on the shelf for five days until September 1st," Mr Ahrens said. He's slammed Lend Lease and the Department of Defence for not acting sooner to protect workers. "They knew where we were working, and the footprint of the building. Why wasn't it checked." "I would like to know why we were put in there and exposed. "There was five or six areas within this HATS project that we had dug, cutting off water mains, capped them and we were walking around freely. "But after Comcare arrived there was all exclusions zones and no one was allowed in there and all of the areas got remediated," Mr Ahrens said. A SafeWork NSW spokesperson has confirmed Mr Ahren's allegations. "An investigation found that workers were exposed to low levels of asbestos while cutting underground pipes that contained bonded asbestos during remediation works on the site," the SafeWork NSW Spokesperson said. "An occupational hygienist conducted sample testing which returned a positive result for asbestos containing material, however air monitoring at the site returned a negative result for asbestos fibres. "Worker's vehicles were also tested and no asbestos was found. "All workers involved in the incident received health monitoring by a registered health professional and they have been encouraged to register on the National Asbestos Exposure Register," the spokesperson said. SafeWork NSW has also said it will continue to monitor the situation, "to ensure the systems of work used by the principal contractor are appropriate." Comcare said it is also aware of the incident at HMAS Albatross. A spokesperson for Comcare said it was notified of the incident by the Department of Defence and has conducted a workplace inspection. A spokesperson for Lend Lease said there is no ongoing risk or imminent threat to the workers on the site. "Comcare and SafeWork (NSW) both determined that the processes and procedures in place at the time of the incident complied with the Work Health and Safety Act 2011 and the Work Health and Safety Regulations 2011." The Department of Defence said it was aware of the matter. "Defence's contractors are required to comply with all relevant State and Federal Legislation," a spokesperson said. "Comcare and SafeWork (NSW) investigations regarding this incident confirmed that Lend Lease has complied with the relevant WHS Act and Regulations." The ABC has sought a response from Axis Plumbing. ASBESTOS UPDATE: Construction Company Exposes Workers to Fibro -------------------------------------------------------------- Alexandra Kukulka, writing for Chicago Sun-Times, reported that a contractor and subcontractor have been cited by the Occupational Safety and Health Administration for exposing workers to asbestos hazards while replacing a commercial roof in Chicago. Continental Contractors was cited for 11 serious violations, and Local Roofing Inc., which had been subcontracted to demolish, remove and replace the roofing system, was issued nine serious violations after workers were exposed to asbestos while working in the 4200 block of North Knox, according to a statement from OSHA. The companies were cited for failing to conduct an exposure assessment for asbestos, establish a respiratory protection program, use engineering controls to remove material likely to contain asbestos, train workers on asbestos hazards, and provide personal protective clothing, according to OSHA. "Asbestos exposure can cause chronic lung disease and cancer. No worker should be exposed to this potentially life-ending substance without being trained and provided protective equipment," Angeline Loftus, an OSHA representative, said in the statement. OSHA proposed that Continental Contractors, located in Niles, should pay $21,600 in penalties; and Local Roofing, located in Gurnee, pay $48,510, the agency said. Continental Contractors and Local Roofing Inc. could not be immediately reached for comment. ASBESTOS UPDATE: Veterans, Teachers Oppose FACT Act --------------------------------------------------- Alex Formuzis, writing for EcoWatch, reported that no Americans are at greater risk of asbestos disease than veterans, first responders and teachers. Veterans account for just eight percent of the population but roughly a third of Americans who suffer from mesothelioma -- an extremely painful and always-fatal form of cancer caused only by asbestos. Many Navy veterans were intensely exposed for decades to asbestos in shipyards, where asbestos coatings were used to fireproof ships, buildings and other military equipment. Firefighters and teachers are twice as likely to be diagnosed with mesothelioma as the general public, according to research conducted by the National Institute for Occupational Safety and Health. The fire fighters and other first responders who descend on burning buildings are often exposed to airborne asbestos fibers. Teachers face a special threat because most schools built before 1980 almost certainly contain asbestos-based construction materials. In recent months, news organizations have reported potential asbestos exposures at more than 50 schools in at least 13 states. Locations where children may have been recently exposed to the lethal material include public schools in Philadelphia, Kirksville, Missouri, Huntsville, Alabama, Hayward, California and Cedar Rapids, Iowa. That's why national organizations that represent these groups strongly oppose the so-called FACT Act, sponsored by Rep. Blake Farenthold (R-TX) and Sen. Jeff Flake (R-AZ). This bill would deplete the resources of already-dwindling trust funds set aside to compensate asbestos victims. Trust officials estimate that complying with the bill would require each trust to expend up to 20,000 additional hours a year -- slowing claims processing and payment distribution and exhausting scarce funds meant to compensate victims. The bill would also require public disclosure of victims' personal information, including medical information and partial Social Security numbers. It would put sick people at heightened risk of identity theft. The legislation is backed by the anti-worker, anti-environment and the anti-health American Legislative Exchange Council, better known as ALEC, and the U.S. Chamber of Commerce and by a number of corporations -- including Koch Industries and Honeywell -- that still use asbestos or have significant asbestos liability from past use and their insurance companies. These companies and their political action committees have spent millions of dollars lobbying and contributing to political campaigns to build support for the FACT Act. Opponents include: -- American Veterans or AMVETS, 250,000 members -- Association of the U.S. Navy, 22,000 members -- Military Order of the Purple Heart, serves 90,000 veterans and family members -- International Association of Fire Fighters, 300,000 members -- National Education Association, 3 million members -- American Federation of State, County and Municipal Employees, 1.6 million members -- AFL-CIO, 5 million members Ironically, Farenthold recently wrote an op-ed in The Hill, "Asbestos Reforms Needed to Protect Veterans, First Responders," where he argues his legislation is meant to help those vets and first responders who suffer from asbestos-related disease. Here's a little taste of what veterans, first responders and other communities who often come face-to-face with deadly asbestos dust think about Rep. Farenthold's bill he claims he wrote to "protect" them and their families: "Forcing our veterans to publicize their work histories, medical conditions, social security numbers and information about their children and families is an offensive invasion of privacy to the men and women who have honorably served," AMVETS and Association of the U.S. Navy wrote Congress recently. "Our nation's first responders and teachers dying of asbestos diseases deserve more respect and better treatment from Congress," the International Association of Fire Fighters, the National Education Association and the municipal employees union wrote members of Congress. The bill is headed for a vote in the House where all 435 members, 247 of whom are Farenthold's fellow Republicans, will face reelection in November 2016. Fully, 34 Senators, 24 of who are Republicans, will also face the voters. ASBESTOS UPDATE: Settlement Reached Over Victoria Fibro Cases ------------------------------------------------------------- 9News reported that a leading building products company must contribute thousands toward settlements for asbestos-related illnesses contracted at State Electricity Commission of Victoria facilities in the 1960s and 1970s. Building product company CSR, Bradford Insulation -- also under the CSR banner -- and James Hardie in the 60s and 70s manufactured and distributed Hardie-BI asbestos insulation which was supplied to the SECV and its contractors. Between 1997 and 2003 James Hardie -- now Amaca Pty Ltd -- contributed money toward settlements for asbestos exposure at SECV sites, and went to the Victorian Supreme Court to make a claim against the other two companies. Justice Cameron Macaulay on ordered CSR and Bradford to make contributions in respect of five people who were exposed to asbestos. The money is expected to go to the Asbestos Injuries Compensation Fund, which owns Amaca and manages claims for people with asbestos-related diseases. ASBESTOS UPDATE: Toxic Dust Causes County Workers to Leave Bldg. ---------------------------------------------------------------- John Stroud, writing for Post Independent, reported that a downtown Glenwood Springs building that Garfield County acquired two years ago had to be vacated by county workers due to asbestos concerns, county government officials have confirmed. According to Renelle Lott, chief communications officer for the county, the one-story building at 810 Pitkin Ave. was closed Sept. 13 after initial tests came back from the lab showing the presence of the cancer-causing substance. No one has been back in the building since, she said. Four employees in her own department, including herself, and four employees in the county's procurement department were moved out of the building and were relocated to other quarters in the next-door county administration building and at facilities in Rifle, she said. It's unknown at this time if the asbestos that was discovered was disturbed, or if any of the workers were exposed during the past two years after those two departments moved into the building. "The county is researching that," according to a statement issued by the county. "In the meantime, the county has taken and will continue to take all steps possible to protect its employees, including closing the building." The building was acquired by the county in August 2013 as part of a deal with Valley View Hospital that involved a land trade. In that deal, the hospital acquired previously county-owned land beneath the hospital building, while the county obtained the office building just east of the county administration building at 110 Eighth St. that had been owned by the hospital. The deal also included an $865,000 payment from Valley View to the county. The county in turn used that money to buy the 4,608- square-foot building at 810 Pitkin. Several modifications were made to the building before county offices moved in, according to the statement. Those included replacement of carpet and rubber base, painting, replacement of a water heater, removal of a lift station, replacement of lights and the addition of drywall and IT connections. Two bathrooms were also combined into a single ADA-compliant bathroom, a basement-level bathroom was removed, and one of the rooms was remodeled for an employee break room. Later work included roof repairs, the addition of an exterior back-up generator and radon mitigation, the county said. Lott said the county is in the process of hiring a consulting firm to assess the extent of asbestos contamination, recommend whether additional testing is needed and determine an appropriate abatement plan and cost estimates to do the work. ASBESTOS UPDATE: Fibro Found in Christchurch Arts Centre -------------------------------------------------------- Conan Young, writing for Radio NZ, reported that the Christchurch Arts Centre is counting the cost of the recent discovery of asbestos in one of its buildings. The collection of historical buildings that used to serve as the city's university is undergoing a massive $290 million repair job. The asbestos was found in six rooms in the building that used to serve as the original Christchurch Boys High School. Arts Centre chief executive Andre Lovatt said some workers may have been exposed to the material, which was in a thin layer of plaster on the walls, when blackboards were removed in the 1960s. "That work that was being done was not really in the location where some of this material was but the main contractor had been involved in cutting strips into the walls, which creates dust, and so there's definitely potential for it to have been asbestos- containing material." Mr Lovatt said the impact of exposure to asbestos is not seen until many years later and the matter was being treated seriously. Decontaminating the building will add a six-figure sum to the overall cost of the project and put it up to eight weeks behind schedule, he said. "We're trying to upgrade and modernise the Arts Centre in so many other ways and so it does have an implication on our restoration programme but it's important we don't leave a legacy downstream." Anxious wait for centre's re-opening The restoration of the buildings is due to reach the halfway mark in March 2016, at which point tenants including Canterbury University will start moving in. Jude Gibson, an actor at the Court Theatre, one of the Arts Centre's most well-known tenants before the earthquakes, attended a recent open day for the repair project. "It was the most amazing building to be around and to work in and to have lunch nearby and it was a real privilege coming to work -- so I was absolutely gutted by the earthquake and the damage." Another Court Theatre actor, Tim Bartlett, said he could not wait to see the buildings back up and running as a centre for the arts. "There was all of the performance spaces and the restaurants and the bars and it was a real swirling hub of pleasant activity in the evenings -- and to see it finally, the light's come on again." One of the stonemasons brought over from the northern hemisphere to work on the project, Tristan Delpouve, was kept busy showing off his skills as part of the open day. "It's good to leave a legacy of yourself somewhere," he said. "Maybe if I come back one day with my kids I can say look, I did that when I was young." His work was not just about replicating the buildings' original decorations, he said. "Some you can analyse what they did and say 'that's a mistake, I'm going to do it differently' or you could just copy it because it's just amazing." Buildings due to open by March include the Great Hall, the clock tower and the old Boys' High rooms. ASBESTOS UPDATE: Dunedin Hospital Closed for Fibro Clean-up ----------------------------------------------------------- Hamish McNeilly, writing for Stuff.co.nz, reported that Dunedin Hospital has moved patients, closed its mortuary and central stairwell and postponed non-urgent ultrasound scans after asbestos tests came back positive. The Southern District Health Board (DHB) said on that routine testing revealed positive surface area swabs for asbestos, forcing some areas of the ageing facility to be blocked off and staff and patients to be evacuated from affected areas. Those areas include a waiting area on the first floor near radiology, a level 4 clinic room, theatre change rooms and corridor change rooms, and two internal corridors on level 5. The results were confirmed on evening, with further tests verifying asbestos in the mortuary area, the main stairwell, the laboratory areas on the third floor and numerous rooms in molecular pathology. Traces of asbestos were found in parts of the ultrasound suite. While all air testing came back negative, all three types of asbestos were found. White asbestos in public areas on the first floor, Southern DHB chief executive Carole Heatly said. As a result of those tests, the mortuary and the central stairwell were closed, and non-urgent ultrasound scans had been postponed. Asbestos removal experts were already working on the affected areas. It was unknown the extent of the exposure to staff and patients, if at all. "[W]e will be taking corrective and appropriate action . . . because our first priority is patient, public and staff safety," Heatly said. The asbestos has likely been there since the construction of the building, with contractors likely to have come in contact with asbestos. Heatly acknowledged the facility was an old building and "this has come at an opportune time, we know there are risks . . . and we know how to manage them". The discovery of asbestos in the building was "not a surprise to most people", she said. Commissioner Kathy Grant said she had spoken to Health Minister Jonathan Coleman, who was committed to a rebuild of the clinical services block, and she gave him an assurance on the safety of patients and staff. Staff had been briefed and were understanding of the situation, she said. Surgery medical director Stephen Packer said the risk was very small -- perhaps just one death out of 100,000 over several decades -- and less than dying from a traffic accident or getting cancer from cigarette smoking. Labour's acting health spokesperson David Clark said the discovery of asbestos was "horrifying". "Hospital staff should not be working in a building that makes them sick and risks shortening their lives, nor should patients and other members of the public be exposed to it." ASBESTOS UPDATE: Guam On-Island Toxic Dust Disposal Proposed ------------------------------------------------------------ Gaynor Dumat-ol Daleno, writing for Pacific Daily News, reported that a ban on disposing of asbestos-tainted construction materials on the island might change if a Guam Environmental Protection Agency proposal becomes final. Guam EPA Administrator Eric Palacios said he's proposing to allow the disposal of asbestos-contaminated materials at the Layon Landfill. Palacios' comments were said at a court hearing on the federal receivership over the local government's solid waste management. Asbestos-tainted materials can be disposed of safely at the landfill by keeping them tightly wrapped and sealed in non-porous material and burying them, Palacios said. If the buried asbestos waste isn't disturbed, there won't be any health risk, Palacios said, because it won't become airborne. Palacios said he's trying to help the local construction industry, the government of Guam and the military save cost by opening an area at the landfill for asbestos-tainted materials to be buried. As contractors save money, it would lead to reduced construction costs that could mean lower costs of building homes and buildings that will ultimately help consumers, Palacios explained further after the hearing. Currently, asbestos-tainted materials have to be shipped out of Guam. The cost of properly packing and shipping asbestos-contaminated materials out of Guam can easily cost tens of thousands of dollars or more per project, Palacios said. Palacios said the government-of-Guam-owned landfill in Inarajan was built based on one of the highest federal standards for proper solid waste disposal, including the installation of thick liners between the dirt and the buried trash. The higher environmental safety threshold for the landfill would allow Guam EPA to change the facility's permit category to allow proper burial of safely packaged and sealed asbestos-tainted materials, Palacios said. Resident complaints Residential neighborhoods and Inarajan Middle School have complained of the foul odor that wafts from the landfill when the wind blows from certain directions. Palacios said he would offer public education campaigns to brief Inarajan residents and residents islandwide about the safeguards for proper disposal of asbestos-contaminated materials. A lot of Guam houses and buildings, which were built in the 1960s and early 1970s, contain asbestos-tainted tile adhesives and drop- ceiling materials, Palacios said. At the time those structures were built, asbestos wasn't yet known to cause cancer, he said. The Manuel Guerrero building in Hag†t¤a, which once housed the Department of Administration and Department of Education central offices, is an example of a local government building that has been found to have traces of asbestos-tainted tiles, Palacios said. Demolition work on the building began in October, Pacific Daily News files show. ASBESTOS UPDATE: Firefighters Bear Burden of Fibro Deaths --------------------------------------------------------- Bill Walker, writing for Environmental Health News, reported that Asbestos does not discriminate. It doesn't matter who you are -- young or old, strong or frail, rich or poor, factory worker or CEO -- if you inhale or ingest even one microscopic asbestos fiber, you're at increased risk of developing a deadly disease whose symptoms may not show up for decades. But of the estimated 12,000 to 15,000 Americans who die of asbestos-related diseases each year, some groups do bear a disproportionate burden. The death rate is highest for workers in industries in which asbestos is or was extensively used, such as construction, shipbuilding, chemicals and railroads. But while each asbestos death is tragic, the tragedy feels most horrifying and unfair when it strikes those who were exposed through their unselfish service to society. Among those more likely than the average American to die from asbestos exposure are two such groups -- one that willingly put themselves in harm's way, another that may have never known they were at risk: firefighters and teachers. "It's a risk you accept," said Battalion Chief J.J. Winn of the Charleston, S.C., Fire Department -- the same post held by his father, John Winn, who died in May 2012 at age 59 of mesothelioma, a rare and incurable cancer caused only by asbestos exposure. Although asbestos does not burn, a fire in a building that contains asbestos sends millions of deadly fibers airborne. "When my dad joined the department in the '70s, we didn't know much about asbestos," said Winn. "Now we assume anything built before 1980 has asbestos in it. But every firefighter has always known that every time you go out you might not come home; you might carry something home to your family; you might get cancer. That's the path we chose, and it sure wasn't for the money." Roger Hall, 64, a retired high school teacher in Letcher County, Ky., was similarly unaware that he might be at risk. "I taught in the same building for 20-some years, and I never gave a thought to asbestos," said Hall, whose mesothelioma was discovered in November 2014 when he went into the hospital for a routine operation to repair a nagging hernia. "When the doctor told me I had mesothelioma," he said, "I had no idea where it came from -- that school system was the only place I'd ever worked. I started asking my former co-workers and some said yes, that school was just loaded with asbestos." In a study of nearly 30,000 firefighter deaths in three major cities from 1950 to 2009, the National Institute for Occupational Safety and Health, or NIOSH, found that the firefighters were twice as likely as other Americans to die of mesothelioma, a malignancy that can strike the lungs, stomach or testicles. It has long been known that firefighters are more likely to die of lung cancer, for which asbestos is one possible cause among many. But NIOSH's study of firefighters in Philadelphia, Chicago and San Francisco, published in 2013, was the first to document a higher rate of deaths from mesothelioma, a distinct and much more rare disease. A 2014 study led by the Finnish Cancer Registry of more than 16,000 firefighter deaths over 45 years in five Scandinavian nations found firefighters were more than 2.5 times more likely to die of mesothelioma than the general population. The elevated death rates in these studies are even more striking considering that firefighters, who must be physically fit, are healthier than the general population, with lower death rates from non-cancer respiratory diseases, diabetes, nervous system disorders and alcoholism. Teachers are also twice as likely to die from mesothelioma as other Americans, according to a 2007 NIOSH report that analyzed federal cause-of-death records. The absolute numbers were small -- 13 teachers, all of whom taught in elementary schools, died of mesothelioma in 1999, the latest year for which the agency has classified deaths by occupation. In 2004, an EWG Action Fund analysis of government death records reported that 137 elementary and secondary teachers died of mesothelioma from 1985 to 1999. And that's from only one of the three main diseeases caused by asbestos: a 2015 analysis by the Action Fund found that asbestos- caused lung cancer kills three to four times as many people as mesothelioma. About half as many Americans die of asbestosis, an excruciatingly painful and often-fatal scarring of the lungs, as from mesothelioma. Judging by the frequency with which asbestos problems continue to arise at schools -- in the first half of 2015 more than 50 incidents were reported at schools in 13 states -- it's clear that teachers are at increased risk for on-the-job exposure, particularly in the thousands of schools built before 1980, when the dangers of asbestos became widely known. More than 30 years after the Environmental Protection Agency declared that "asbestos in school buildings poses a significant hazard to public health," we still don't know how much asbestos remains and how great a risk it poses to teachers, staff and students. The NIOSH report said the teachers' death rate from mesothelioma was about half the rate among construction workers, but higher than workers in some industries known for elevated risk, such as chemicals and railroads. The report also said elementary and secondary schools were the tenth-most often listed workplaces of victims of asbestosis. That's on par with electric power plants, where asbestos was widely used in insulation and even in workers' "protective" clothing -- which turned out to be anything but. "Shame on them all" In response to their members' heightened risk, firefighters' and teachers' organizations have registered their opposition to proposed federal legislation that could delay or deny justice to asbestos victims and their families. A bill that could soon reach the floor of the House -- H.R. 526, the so-called FACT Act introduced by Rep. Blake Farenthold, R- Texas -- would require public disclosure of sensitive personal, financial and medical information of anyone seeking compensation for an asbestos-caused illness. Under the guise of "transparency," the bill would erect needless and invasive bureaucratic hurdles that would hold up payments to victims from the private compensation trusts set up by companies that have liability for asbestos illnesses. Some victims could die before seeing any money to pay their staggering medical bills -- Roger Hall's hospital stays for chemotherapy cost $70,000 a night, more than twice what the average asbestos victim recovers from the trusts -- or provide for their families after they're gone. The typical mesothelioma victim survives less than a year after diagnosis. Battalion Chief John Winn made it four months. In an October 15 letter to members of Congress, the International Association of Fire Fighters, the National Education Association and the American Federation of State, County and Municipal Employees said the legislation, which would require the trusts to file unnecessary reports and other paperwork, would also "drain critical resources that have been set aside to secure justice for victims of asbestos diseases." The letter said: "Our nation's first responders [firefighters and other emergency personnel], teachers and public employees dying of asbestos diseases deserve more respect and better treatment from Congress." Roger Hall has already survived longer than the eight months the doctor gave him. In that time, his wife Evelyn has learned all she can about asbestos, including the names of companies that exposed millions of Americans and the members of the House Judiciary Committee who approved the FACT Act. Federal records show that since 2010 those 19 members received almost $3.3 million in campaign contributions from political action committees tied to asbestos interests. "Shame on them all," Evelyn Hall said. "The companies that did it, they knew," she said. "They knew asbestos was killing people, and they allowed it. They might as well have taken a gun and shot you with it. They should be put out of business, not allowed to pay out a little bit to people who are going to die so they can get on with the business of killing people. As for the ones on that committee, I'd ask them, 'Why are you trying to hold up the few dollars we may have coming? Is it not enough that my husband has to die?'" "I hope I'm wrong" On Sept. 11, 2001, the terrorist attack on the World Trade Center claimed nearly 3,000 lives. It also created what a panel of public health experts called "the largest acute environmental disaster that ever has befallen New York City." According to the panel assembled by NIOSH, the plume from the collapse of the twin towers carried 1,000 to 2,000 tons of pulverized asbestos, among other toxic substances, putting hundreds of thousands of firefighters, other emergency responders, recovery workers, volunteers and nearby residents at risk. The World Trade Center Health Registry estimates that on and after 9/11, more than 400,000 people were exposed to asbestos, including 90,000 firefighters and rescue or recovery workers. Because asbestos-triggered diseases can take decades to develop, the full death toll from that day may not be known for 40 years, but it is already mounting. The first confirmed 9/11 asbestos victim was Deborah Reeve, a New York City Fire Department paramedic assigned to identify bodies in a Ground Zero morgue, who died of mesothelioma in March 2006. She was 41. "We've just scratched the surface," Dr. Raja Flores, chief of thoracic surgery at Mount Sinai Medical Center in New York, told Asbestos.com in September 2015. "Between 15 and 20 years out, we'll start seeing [asbestos-related disease] in individuals one by one, but by 25 years out, it will be real obvious what has happened. I hope I'm wrong, but I think I know how this is going to turn out." Some first responders have received compensation for asbestos- related illnesses through the James Zadroga 9/11 Health Compensation Act. But both the 9/11 Victims Compensation Fund, established by Congress in the aftermath of the attacks, and the fund created under the Zadroga Act will expire over the next two years unless Congress re-authorizes funding for both. Beyond that, the only prospect for compensation for those who have not yet been diagnosed may be through the asbestos liability trust system or in court. Even those uncertain avenues may be closed to most firefighters and other first responders. Under common law, the so-called firefighter's rule bars first responders from seeking compensation from property owners or other private parties for injuries sustained in the line of duty because they have inherently assumed the job's risks. Many states have passed legislation that qualifies or abolishes the firefighter's rule, but in others first responders' only choice is to file for worker's compensation from the city or other jurisdiction they worked for. In some states a firefighter's cancer is presumed to be job- related, making it easier to file for worker's comp. But a firefighter's employer may argue that the asbestos exposure occurred off the job -- a bitter truth Charleston Battalion Chief John Winn learned after his diagnosis of mesothelioma. "Asbestos is a danger to everyone" "He tried to file a worker's comp claim, but they wouldn't settle it," said J.J. Winn, his son. John Winn did qualify for federal and state disability insurance, which paid him a fraction of his former salary. It was approved two weeks before his death. "My dad was very dedicated to the fire service," said Winn. "He was stationed downtown most of his career, working in the old buildings -- even some of the old fire stations had asbestos. He received a lifesaving award for saving a baby that he rescued from an old low-income apartment building. That child is still living." In the past, the protective clothing issued to firefighters' was itself often made with asbestos. All firefighters wear protective gear that includes face masks and oxygen tanks, but studies have found that too often they remove the uncomfortable equipment immediately after exiting a burning building, when asbestos and other toxins are likely to be in the air. When John Winn, known as Big John, became a firefighter in 1977, attitudes were different. "In those days, if you wore a SCBA [self-contained breathing apparatus], you were considered a weakling; you weren't tough," said his son. In January 2012, J.J. Winn was working alongside his father in Battalion 4, Engine Company 6. "We were out training, and my dad came over and said he couldn't breathe," he said. "The next night he went to the hospital. They found fluid in his lungs, so they thought it was pneumonia. They tried to pull the fluid out through needles in his back, but when they went in they found the cancer in the pleural cavity." In his final months, John Winn launched a crusade to encourage firefighters to get checked for asbestos disease. On his 59th birthday, two months before his death, another department nearby donated a fire truck that became the foundation of the Big John Project. The truck is pearl white to represent the Minnie Pearl Cancer Foundation, recently renamed PearlPoint Cancer Support. The truck is trimmed in baby blue, a symbol of mesothelioma awareness. Volunteers take the truck to firefighter events, parades and car shows, spreading the message that early detection can save or extend the life of a firefighter or family member. "The Big John Project is helping firefighters to do the right thing, to think about their health and their family," saId J.J. Winn. "But not only firefighters. The day he received the truck, my dad said he wanted everyone to become aware that mesothelioma is out there and that asbestos is a danger to everyone." Half of U.S. schools built in peak asbestos years In 1984 the EPA surveyed and took air samples in 2,600 public school districts and private schools and estimated that 1.4 million teachers, administrators and other employees -- along with 15 million students -- were at risk of asbestos exposure in almost 35,000 U.S. schools. That was the last known attempt to assess the nationwide risk, but the problem clearly remains. In 2013 the National Education Association estimated that about half the country's approximately 100,000 schools were built between 1950 and 1969, the peak years of asbestos use in construction. The first documented cases of teachers with asbestos-related diseases whose only known exposure was at school were reported in two papers published by the New York Academy of Sciences in 1991. One study looked at four teachers who died of pleural mesothelioma between 1983 and 1990. In each case the schools where they had worked were known to contain asbestos insulation, but "none of these persons physically handled the asbestos in the course of his or her employment as a teacher." What's more, these were the first reported cases of victims who apparently were not exposed by contact with a family member who worked with asbestos. The paper also reported three cases of malignant mesothelioma victims whose only known exposure came while they were students. The second study looked at 12 Wisconsin teachers who died of mesothelioma from 1968 to 1987. Researchers concluded that for nine of them, their schools were the only potential sources of asbestos exposure. In eight of those schools inspections found asbestos that was friable, or easily crumbled by touch and more likely to become airborne. Two findings bolstered the evidence that the victims were exposed on the job: Three of them taught at one school, and two at another. Even more surprising, the latter two victims were sisters. The researchers noted the world medical literature contains less than 10 reports of family clustering of mesothelioma. "They did nothing" "My family was not cancer-prone," said Roger Hall, "and I've never smoked. Because of that I never thought much about ever having cancer. So when the doctor said I had mesothelioma, my first question for me and my wife was, now where could I have got it?" From 1976 until he retired in 2003, Hall taught history and social studies at Letcher High School in Letcher County, Ky., near the Virginia border. Every day, he took his breaks and ate lunch in the school's boiler room. According to the negligence lawsuit the Halls filed in September 2015 against the Letcher County school board and the state department of education, in 1988 tests found that the boiler was insulated with asbestos. There was also asbestos in floor and ceiling tiles throughout the building. The complaint charges that the school system failed to remove the asbestos for two to three years and never warned teachers and other employees of the danger. The school board and state have yet to respond. "My mesothelioma was not in the lungs but the abdomen, so I didn't inhale the asbestos but ingested it," said Hall. "The boiler room was the teachers' lounge and lunch room, where all the teachers would go to drink coffee and eat lunch. There was a table and chairs, and pop machines and chip machines were put in. We all sat within 25 feet of the boiler. That's the only possible way I could have ingested asbestos." The Halls could have chosen to sue the maker of the furnace or the asbestos used to insulate it. But as they learned more they focused their anger at the school system. "I requested from the county board all the records on asbestos in the school," said Evelyn Hall. "I saw that they were written up (for an asbestos violation) in 1988. I kept looking. They were written up again multiple times in '88, '89, '90. They did nothing. They never shut the room down. We realized that the real problem was not the boiler but the school system, for not telling employees. If that's not gross negligence there isn't such a thing." Roger Hall's multiple surgeries and hospital stays have extended his life beyond his doctors' expectations. His treatment has cost more than $450,000. So far that's been covered by insurance, but if the Halls get any money from the school district or state, they'll have to pay it back. In June, Roger began another course of chemotherapy, but he had to stop halfway through because his organs were in danger of failing. "Some days it's a real battle," said Evelyn Hall. "He can do nothing a person wants to do. He can't walk outside by himself. Last night I picked him up off the living room floor. Doctor's appointments are basically our life. We're supposed to have some more tests in a few weeks... but we just don't know." ASBESTOS UPDATE: Fibro-hit School Forced to Close ------------------------------------------------- The Sentinel reported that the school at the centre of an asbestos scare is to close on safety grounds. Pupils will not return to Sutherland Primary Academy, in Blurton, following the October half-term break. It follows new safety advice which warns there is the 'potential of a major asbestos fall' from the ceilings. Instead talks are being held to try to find an alternative site elsewhere in Stoke-on-Trent for the school. Now headteacher Garry Boote has warned pupils are unlikely to return to the Sutherland site until Easter -- and could then be taught in temporary buildings on the playing fields. The closure comes just days after The Sentinel revealed nine rooms -- including classrooms, the boys' toilets and the dining hall -- had been sealed off. The school has 510 pupils and 80 staff. Mr Boote said: "The potential for the building to become unsafe is great. This would put children, staff and visitors at an unacceptable risk. We have now started planning for a move to an alternative school premises." It is possible that the nursery children will remain in a separate building at Sutherland -- with the rest of the children bussed to and from their new site each day. Chairman of governors Kathy Niblett said: "The task of moving from the current site cannot be underestimated. "We anticipate our use of an alternative premises will continue until Spring. We would then hope to return to the Sutherland site, either to a building with the asbestos removed or temporary school buildings on our field." Parents have been assured they will not have to meet the cost of paying for their children to get to and from the new school. But they will have to find additional childcare because the pupils will have an extra week off and not return to school until November 9. Mother-of-three Kate Browning, aged 29, of Newstead, said: "The headmaster cannot win at the moment -- he either keeps the school open and gets moaned at or shuts it and still gets moaned at. The school is doing all it can and a number of parents are behind the staff." Fellow mum-of-three Gemma Rutter, aged 28, of Ashby Crescent, who has two children at Sutherland, said: "I am happy as long as my children are safe. The school is providing a bus and doing all it can." Parent Jim Davis has called for a fund-raising campaign to help the school. It comes as the school is set to bid for up to GBP2 million emergency funding to try to remove the asbestos. The 32-year-old, of Beaconsfield Drive, who has two children at the school, said: "The school has been here for a long time and it would be good to do something to help. The work needs to be done." A Government report has revealed dozens of Potteries schools are likely to be riddled with asbestos. ASBESTOS UPDATE: UK Calls Eradication of Fibro-Infested Areas ------------------------------------------------------------- SHPOnline.co.uk reported that a cross-party group of MPs have called for the eradication of all the remaining asbestos in Britain's workplaces and public buildings. A report by the all-party parliamentary group on occupational safety and health calls for regulations requiring the safe phased and planned removal of all the remaining asbestos in Britain. The parliamentary group found asbestos is still a serious threat. According to official figures, 5,000 people in Britain are likely to die prematurely as a result of asbestos exposure. This is around three times the number of road accident deaths. Simple regulations for managing asbestos in the workplace, however good, will never protect workers from risk. So long as asbestos is found in any place where someone could be exposed there will be a danger. The group point out that the only way to eradicate mesothelioma in Britain is by removing asbestos. That will not be easy and there is a need for a realistic timetable, but work towards that should start now, they say. In the report, the group calls for: "All commercial, public, and rented domestic premises should have to conduct, and register with the HSE, a survey done by a registered consultant which indicates whether asbestos containing material is present, and, if so, where it is and in what condition, to be completed no later than 2022 where asbestos is identified in any premises, all refurbishment, repair or remedial work done in the vicinity of the asbestos containing material should include the removal of the asbestos. Where no such work takes place, or is planned within the foreseeable future, the dutyholder must develop and implement a plan for the removal of all asbestos which ensures that removal is completed as soon as is reasonably practical but certainly no later than 2035. In the case of public buildings and educational establishments, such as schools, this should be done by 2028 the HSE, local authorities and other enforcing agencies must develop a programme of workplace inspections to verify that all asbestos containing material identified is properly marked and managed, and that asbestos eradication plans are in place and include, as part of the plan, an acceptable timeframe for the eradication. Resources should be made available to the enforcing agencies to ensure that they can ensure that all workplaces and public places are complying with the regulation relating to management and removal, and that disposal is being done responsibly and safely before any house sale is completed, a survey should be done which includes a survey of the presence of asbestos. Any asbestos containing material should be labelled. Information on the presence of asbestos should be given to any contractor working on the house." Ian Lavery, chair of the all-party group said "There is far too much complacency about the asbestos which we can still find in hundreds of thousands of workplaces as well as a majority of schools where children face exposure to this killer dust. We believe that the Government needs to start now on developing a programme to ensure that asbestos is safely removed from every workplace and public place so that we can end, once and for all this dreadful legacy which has killed so many people, and will continue to kill until asbestos is eradicated." ASBESTOS UPDATE: Family, 3-Yr. Old Exposed to Dangerous Fibro ------------------------------------------------------------- HSE News reported that tenants of a house in Lincolnshire, including a three year old girl, were exposed to dangerous levels of deadly asbestos dust, a court was told. A judge at Lincoln Crown Court fined Blankney Estates Ltd, the company which rented the property in Scopwick, after it pleaded guilty to health and safety offences. The court heard it did not manage adequately what were clearly deteriorating asbestos materials, and did not ensure that work within the property to remove an asbestos-lagged tank was properly planned and carried out safely by competent contractors. The same court also fined plumbing company Michael Grace Ltd and Adam and John Thurlby, who were directors of a family-owned demolition company ART Dismantling Co Ltd. These defendants were prosecuted by HSE for breaching the Control of Asbestos Regulations (CAR) 2006 when they worked on removing the tank from the house. Farming company Blankney Estates Ltd, registered address of Pannell House, Charles Street, Leicester, but with its main operations in Lincolnshire, pleaded guilty to breaching Section 3(1) of the Health and Safety at Work etc Act 1974. It was fined GBP50,000 and ordered to pay GBP20,000 in costs. HSE said it failed in its Section 3 duty to take reasonable steps to ensure the premises were safe and to ensure that the work to remove the tank was done safely. Adam Robert Thurlby, of Sandhill Road, Farndon, Newark, Nottinghamshire, and John Thurlby, of Malt Kiln Lane, Eagle Moor, Lincoln, also pleaded guilty. They were each fined GBP12,500 and were each ordered to pay GBP7,500 costs for contravening five CAR Regulations while acting as directors of ART Dismantling. Michael Grace Ltd, registered address of St John Street, London, but trading locally in Lincolnshire, pleaded guilty to three CAR offences and was fined GBP10,000 plus GBP5,000 in costs. Asbestos can be found in any building built before the year 2000 and causes around 5,000 deaths every year. HSE's website has extensive information on asbestos and how to manage the risks associated with it http://www.hse.gov.uk/asbestos/ ASBESTOS UPDATE: Workers Exposed to Fibro in WA Wheatbelt --------------------------------------------------------- Jacob Kagi, writing for ABC News, reported that there are fears nearly 100 people working on a Water Corporation maintenance project have been exposed to asbestos particles, but authorities insist the risk to workers is low. Water Corporation said 88 people, including its own employees and contract workers, had potentially been exposed to asbestos while conducting maintenance work in Western Australia's Wheatbelt. They were working over several months on a tank at the corporation's Minnivale reservoir near Wyalkatchem, when an asbestos risk with the tank's floor and panels was discovered. Water Corporation said there was no risk to the drinking water supply and it was confident the danger to workers was "relatively low", but said it was treating the matter seriously. The information was first revealed publicly by WA Labor's Dave Kelly, a day after he received what was described as a confidential briefing by Minister Mia Davies. Ms Davies accused Mr Kelly of "moral bankruptcy" because the Opposition's water spokesman had been asked not to release the information publicly before all workers had been told, sparking heated scenes in Parliament. "There are potentially people out there who are going to find this out through the media because the member over here was a gutter snipe trying to score political points," Ms Davies told Parliament. "I told you that not everyone had been advised, it is absolutely disgraceful that because you are scoring political points there are people that will find out about this through the media." But Mr Kelly said he was told the affected workers were all due to be notified by night, which is why he brought the issue to the public notice. "All these people exposed on your watch and I'm morally bankrupt?" Mr Kelly said in the chamber. He maintained there was no confidentially attached to the briefing he was given. Independent review underway Water Corporation chief executive Sue Murphy said the majority of workers had now been informed but the organisation was still trying to make contact with some people who were overseas, after the organisation first became aware of the problem. Ms Murphy said an examination by independent experts had determined the risk to workers was low but those potentially exposed would be regularly monitored. "We have done significant testing on site and that testing has not indicated any trace of asbestos in the air or on any surfaces so we are reasonably confident most of the work has been contained," she said. "We don't want people to panic but we take it seriously and we are appalled we have been in any way part of a situation like this." Ms Murphy said a detailed inquiry with "independent reviewers" was now being conducted. Earlier, Mr Kelly called for a full independent inquiry into the incident which he described as "completely unacceptable". "This is a clear failure of the State Government to protect their own staff and members of the public and we would be calling [for] an independent investigation into how this occurred," he said. "It should never have happened and the Water Corporation should have known there was asbestos in that material before it was worked on." The Community and Public Sector Union said it was concerned there had been a communications breakdown between contractors and Water Corporation staff working on the project. ASBESTOS UPDATE: Contractor Seeks Better Fibro Demolition Rules --------------------------------------------------------------- Joe Douglass, writing for KATU.com, reported that a company that demolishes homes in Portland says some demonstrators at work sites are getting out of control, and they're calling for calm. They also say the government needs to do a better job of regulating home demolitions. Two unoccupied houses on the 600 block of Northeast Thompson are set to be knocked down. The company demolishing them has serious concerns, specifically about how the government regulates asbestos, the fireproof substance used in many old buildings before it was found to cause cancer. "We're doing our job" Protests have been happening all over the city with some voicing their opposition to demolition at the site on Northeast Thompson. "The entire displacement of a community is a terrible idea," Sara Long, who used to rent one of the homes on Thompson set to be demolished, told KATU in August. Dan and Lisa Riehl, who co-own the demolition company, Dan Riehl Excavating, say people need to calm down. "We have sidewalk closed signs," said Lisa regarding other work sites. "They just walk through and they're gonna be the first ones that if a piece of wood falls and hits 'em, then, you know, it's a lawsuit." "They do have the right to complain," said Dan. "It's a free country, but we're out doing our job just like you're doing your job." The Riehls say their business demolishes as many as five or six homes a month. With demolitions up citywide, they say they're busy but they also say what they're doing is nothing new. And they say a lot of the homes being torn down, including the two on Northeast Thompson, have a lot of problems. "It's got a lot of dry rot right back in the back of the house. You can see it," said Dan regarding one of the homes. The Riehls also say unlike some others in their business they now require all builders they work with to show them proof that homes are clear of asbestos before they knock them down. "I have been after all of my builders," said Dan. "I actually lost a builder because he won't supply the paperwork." They showed KATU documents saying the two houses on Northeast Thompson had asbestos that had to be cleared out. Right now, the state Department of Environmental Quality (DEQ) does not require builders to produce those kinds of inspection reports for small residential buildings before demolitions. The Riehls say the agency should. "If there's asbestos that has to be removed you include it in your price so it's not like you're making any more money one way or the other," said Lisa. The DEQ is going to start requiring asbestos surveys and removals for even small residential buildings before they're torn down. But the agency is still working out how the rule will be enforced. Right now builders still won't have to submit paperwork before a demolition, which could change. The DEQ will consider whether the requirement for builders to submit paperwork would be feasible legally and if there's enough money to make it happen. But that could take a while, possibly more than a year. A DEQ spokeswoman told KATU the agency does require asbestos- removal contractors to submit a notification of demolition. Ross Caron, spokesman for Portland's Bureau of Development Services, sent KATU an email saying the city's issued 222 demolition permits for single-family dwellings so far. Caron said 315 were issued and 278 were doled out in 2013. Caron also sent KATU the following information answering questions the station asked about asbestos requirements: -- Asbestos Regulations: Asbestos-related regulations and their enforcement of those regulations are by the EPA via DEQ .See www.deq.state.or.us/aq/asbestos. The website has the general requirements in regard to asbestos survey requirements, abatement rules and requirements for demolitions, specifically, as well as other information. -- City of Portland Inspections of Demolition Permits: Inspections of on-site conditions during demolition is limited to things related to erosion control Title 10 Property Maintenance (Title 29) relating to general trash and debris accumulation on the private property. We also encourage contractors to contain/clean any trash/debris that is in the right-of-way. -- Asbestos Surveys: The City is not required to nor does check for an asbestos survey as part of a demolition permit. As part of a demolition permit, the City is not required to, but does obtain a signed certification from the property owner or a representative of the property owner to verify that the building has been tested for asbestos and either does not contain asbestos, or does contain asbestos and it will be remediated prior to demolition. The City doesn't have a role in enforcement of the testing or remediation. -- DEQ's current regulations do not require asbestos surveys for residential buildings with four or less dwelling units. Senate Bill 705 will require (effective 1/1/16) asbestos surveys for demolitions of ALL residential buildings. DEQ is in the process of developing rules to implement and enforce this new requirement. Requiring the survey to be submitted to the local jurisdiction (in the case of City of Portland, BDS) as part of a demolition permit is under consideration as part of those rules. ASBESTOS UPDATE: Aussies At Risk from Fibro in Imported Cement -------------------------------------------------------------- Stephanie Smail, writing for ABC News, reported that the Asbestos Industry Association said the potentially deadly material was discovered in cement compound board from China. "The samples were tested in Asia with a certificate saying they were asbestos-free," association president Michael Shepherd told the ABC. "We analysed those samples according to Australian standards and detected the presence of chrysotile or white asbestos." The discovery was the latest in a number of imported building products that have tested positive for asbestos in the past year, including cement compound board in Canberra. But Mr Shepherd said Australian border protection officials were not stopping the potentially deadly products from entering the country. "Importers are accepting these goods in good faith and they're relying on the documentation from overseas stating these products are asbestos-free," he said. "From what we know, customs are checking less than 5 per cent of all products that come into Australia, so it's very difficult to identify which products are coming in and which products do contain asbestos." The Immigration Department said the Australian Border Force carries out risk assessments on all imported cargo and physically examines cargo considered high risk. It said 31 suppliers, importers and products are being monitored, with 16 considered high risk in terms of asbestos contamination. 'No guarantee new Australian buildings are risk-free' The Asbestos Related Disease Support Society Queensland has called for urgent action to protect people who could be exposed to asbestos. "It will bring through another wave of asbestos-related diseases," spokeswoman Amanda Richards said. "I mean, these people might have worked with these products for a while before they realise it's asbestos." The Department of Immigration and Border Protection said it was looking into the matter. Australian Border Force commissioner Roman Quaedvlieg told Senate Estimates the problem was ongoing. He was asked by Senator Lisa Singh if he agreed with the Asbestos Safety and Eradication Agency that there was no guarantee Australian buildings built after the asbestos ban in 2003 would be risk-free. "Yes I would," Mr Quaedvlieg replied. He was also quizzed about the role customs officials play in protecting Australians from contaminated building products. "That's where we can stop this, at the gate so to speak," Senator Singh said. "You are right. We have certainly raised the level of awareness and consciousness in our workforce in relation to their responsibilities in this regard," Mr Quaedvlieg said. He said he was due to travel to China to discuss the matter. "I make no secret of the fact that drugs is very high up on the agenda, but certainly prohibited imports like asbestos will be part of that conversation," he said. ASBESTOS UPDATE: Former Hospital Staff Could Be Exposed to Fibro ---------------------------------------------------------------- TVNZ.co.nz reported that the hospital morgue has been closed; and while patients and staff are being told they are at low risk, trades people working at the hospital in the past could have come in contact with the potentially deadly material. Following the announcement that traces of asbestos had been discovered in the clinical services block at Dunedin Hospital further results showed asbestos in the mortuary. Swabs have returned positive (which show the presence of asbestos fibres) for the mortuary area on the lower ground floor, the main stairwell (from the lower ground floor through to the second floor) and the third floor laboratories lobby area; plus several rooms in molecular pathology. All air testing to date remains clear. A Southland DHB spokeswoman says the mortuary has been closed. Alternative arrangements for funeral directors, police, the coroner's office and others who come to the mortuary have been advised. The central stairwell (off Cumberland Street) will be closed tonight and it is planned that decontamination cleaning will take place early morning. Some lifts in the ward block are available for use, as is the south stairwell. The decontamination cleaning is expected to be complete by the end of the day. The ailing state of Dunedin Hospital is in the spotlight again, following the discovery of potentially deadly asbestos on four floors of the building. The find has forced the cancellation of ultrasound appointments, and access restrictions. "We took immediate action, patient safety, staff safety. Public safety is our number one priority, so we closed down those areas," Southern District Health Board chief executive officer Carol Heatley said. An asbestos removal team has been brought in to address the issue, while the discovery has sparked accusations the Government is stalling a $300 million redevelopment of the hospital. ASBESTOS UPDATE: School Fibro Problems May Cost EUR10MM ------------------------------------------------------- The Sentinel reported that pupils at a school being closed down after an asbestos outbreak are set to move into a mothballed city academy building. The former St Peter's Academy site has been lined up for children and staff left homeless by the health scare at Sutherland Primary Academy. It means pupils face being bussed between Blurton and their new school in Penkhull every day until at least Easter. Now talks are being held between the school and the Diocese of Lichfield -- which owns the St Peter's site -- to discuss the costs of using the building. Nine rooms -- including classrooms, the boys' toilets and the dining hall -- are currently shut at Sutherland following the asbestos outbreak. The school will close for the last time and pupils are set to move to the St Peter's site on November 9. Headteacher Garry Boote said: "The former St Peter's Academy in Penkhull represents the only solution in Stoke-on-Trent that will allow almost all of our children and staff to be at one location. Our opinion, guided by experts and Stoke-on-Trent City Council, is that this building offers a good accommodation option." The building is the number one choice because it is big, has good sports facilities and it is easier to transport the children to and from Blurton. But the building has been empty for two years, needs to be thoroughly cleaned and work needs to be carried out to the floors. It comes as the cost of removing the asbestos from Sutherland or building a new school could rise to GBP10 million. Mr Boote added: "Our discussions with the Department for Education have been productive and a high-level meeting is taking place." Plans are set to be lodged later to build 59 houses on the St Peter's site. But residents have raised concerns about extra houses in the area. Penkhull Residents' Association chairman Charles Pantin said: "I would be delighted to welcome the pupils from Sutherland Primary Academy to Penkhull. "The building has been empty for a long, long time and it would be nice to see it brought back to use again. "I just hope the traffic management system will be robust enough to not disrupt residents living near the site." The Diocese of Lichfield declined to comment on the latest developments. ASBESTOS UPDATE: Soldiers with Mesothelioma Unfairly Treated ------------------------------------------------------------ Jonathan Owen, writing for Independent.co.uk, reported that thousands of British veterans who will develop terminal cancer due to being exposed to asbestos during their military service are being unfairly treated by the Ministry of Defence (MoD), campaigners and victims have claimed. Current laws mean that the MoD does not have to pay compensation for accidents or injuries suffered before 1987, which rules out those with mesothelioma caused by asbestos exposure decades ago. While veterans may be eligible for a war disablement pension, this is a fraction of what civilians are paid in compensation. Unlike their civilian counterparts, veterans are not allowed to take a lump sum. This means those with mesothelioma, a cancer usually resulting in death within a year or two of diagnosis, get very little compared to those who did not serve. The unequal treatment amounts to a serious breach of the Armed Forces covenant, which is supposed to ensure veterans are not disadvantaged because of their service, according to the Royal British Legion. Many service personnel were exposed to asbestos when working in the boiler rooms of ships, where the material was routinely used to insulate pipes in the decades after the outbreak of the Second World War. And more than 2,500 Royal Navy veterans will die from mesothelioma in the next three decades, according to researchers at the London School of Hygiene and Tropical Medicine (LSHTM). While civilians with the fatal disease are entitled to a six figure lump sum under a Government compensation scheme, former service personnel get a war pension amounting to a few tens of thousands -- assuming they survive for a year after diagnosis. The Royal British Legion is calling for the Government to redress the balance and offer veterans the option to receive a lump sum. According to the charity, a 63-year-old old civilian could expect to receive around GBP180,000 in compensation under the Mesothelioma Act passed. Yet one year's worth of war pension paid at the maximum rate for a non-married naval veteran amounts to just over GBP31,000. "The Government's current compensation arrangements for those veterans suffering with asbestos-related cancer are unfair, and have to change," said a spokesperson for the charity. "In the current set-up, some veterans suffering with mesothelioma could receive around GBP150,000 less in compensation than their civilian counterparts," they added. Veterans should be offered compensation "at least equal to how much the courts and the Government have decided that civilians deserve," said the spokesperson. Admiral Lord West, former First Sea Lord and Chief of the Naval Staff, commented: "There needs to be a reassessment of what is paid to former service personnel as they are clearly at a disadvantage compared to their civilian counterparts." And cross-bench peer Lord Alton said: "It is an injustice that our servicemen and women are discriminated against in this way." Organisations such as The Royal Navy and Royal Marines Charity, The Royal Navy and Royal Marines Widows' Association, and The Royal Naval Association are backing the calls for fairer treatment. Non-military campaigners also support the demands. Graham Dring, coordinator, Greater Manchester Asbestos Victims Support Group, said: "The MOD were no less culpable than the negligent employers who exposed civilian workers to asbestos and it seems unjust that veterans can only claim a War Disablement Pension and no other compensation for pre-1987 exposure." The MoD accepts that military service is to blame in cases where sufferers served in the Royal Navy between 1939 and 1973. Yet there are only 65 veterans currently receiving a war pension due to mesothelioma. There is a "lack of awareness" of the pension scheme and "it may be that sufferers and their families have other priorities, given the inexorable rapid decline in the sufferer's health," according to a report on the armed forces compensation scheme by the MoD's independent medical expert group earlier. Professor Julian Peto, Cancer Research-UK chair of epidemiology at the LSHTM, commented: "Limiting mesothelioma claims to asbestos exposure after 1987 would be absurd and unfair. Mesothelioma almost never develops less than 25 years after asbestos exposure, and the risk is still increasing 60 years later." In a statement, a MOD spokesperson said: "The War Pensions Scheme provides a tax-free pension and supplementary allowances, along with dependent's benefits. We are considering whether any further flexibility can be provided for future mesothelioma claimants under this scheme. The Government places great importance on the health and wellbeing of our veterans and we are clear that they should not be disadvantaged as a result of their service." Case study: Fred Minall Fred Minall spent almost a decade in the Royal Navy, before joining the police where he reached the rank of inspector. Now retired and living in Northampton, the 74-year-old, married with three sons and six grandsons, was recently diagnosed with mesothelioma and has put in a claim to get a war disablement pension. "Between 1957 and 1965 I served as a mechanical engineer. The pipes were covered with asbestos and before we could touch any piece of machinery this insulating material had to be broken away. We would get it all over our overalls and bodies. I've been ill since January, it wasn't until August that the doctor diagnosed mesothelioma after an X-Ray, and a CT scan established it had spread into my chest cavity. I've discovered that because of when I served I cannot claim compensation from the MoD. I was very very shocked about this and feel it's unfair, it's unjust. There must be literally hundreds if not thousands of people in my situation that are simply being pushed aside in terms of compensation. The law ought to be changed because we are being discriminated against, which in this day and age is unacceptable." ASBESTOS UPDATE: Man Dies After 18 Months of Fibro Exposure ----------------------------------------------------------- Express & Echo reported that retired contract manager Michael Parry died of exposure to asbestos while doing jobs for different employers during his working life. The 65-year-old from Durham Close, Exmouth, was diagnosed with malignant epithelioid, an asbestos-related disease, in January 2014, and died earlier at home on June 9. An inquest held at Exeter's County Hall heard Mr Parry had begun to feel very unwell in December 2013, and simple tasks such as putting on his shoes and walking upstairs left him out of breath. He was later diagnosed with the asbestos-related disease and received radiotherapy, but was not suitable for surgical intervention. A statement written by Mr Parry before his death listed his work history, with roles including factory worker and labourer, and stated when he was exposed to asbestos. The list included sweeping up dust left behind when asbestos was removed from pipe work at a textiles manufacturer in North Wales, and coming into contact with asbestos while on tour with the Royal Marines. Mr Parry added what measures he took to protect himself once dangers of asbestos became recognised. His brother, Keith, said in a statement they worked together so had both come into contact with asbestos. Recording a verdict of industrial disease, coroner Luisa Nicholson said: "During the course of his working life he was exposed to asbestos, apparently on numerous occasions, while working for different employers and consequently developed malignant epithelioid." ASBESTOS UPDATE: ACT Spends 26K for Acton Tunnel Fibro Clean-Up --------------------------------------------------------------- Kirsten Lawson, writing for The Canberra Times, reported that the ACT government spent $26,400 having asbestos removed from the Acton Tunnel late. The asbestos was removed by Ozbestos, a firm contracted to remove the asbestos fire doors that seal the fire compartments in the centre of the tunnel. The tunnel was closed for two days after an excavator shredded 60 metres of asbestos tiles from the ceiling as it tried to drive through. The tunnel was finally reopened, after the closure caused major rush-hour headaches for Canberra drivers. More than 120 damaged bonded asbestos ceiling panels were removed from the tunnel after the accident. Asbestos removal workers and assessors were on site during the week to ensure everything that entered the tunnel was decontaminated before being removed, according to a government spokesperson. The Chief Minister's directorate annual report shows the fire-door asbestos was removed late. The spokesperson said the government was aware at the time that "just like many Canberra homes and other buildings", the ceiling tiles of the tunnel were made from bonded asbestos. They said that when undisturbed, bonded asbestos posed no health or safety risk. ASBESTOS UPDATE: Toxic Dust Delays Tyne Tunnels' Re-Opening ----------------------------------------------------------- Gary Welford, writing for The Shield Gazette, reported that the reopening of the Tyne pedestrian and cyclist tunnels after a multi-million-pound revamp has been delayed again. The tunnels have been closed since May 2013, and the work was originally due to be completed by August 2014. But the scheme has been beset by problems, with the latest the discovery of more asbestos. Now the tunnels are unlikely to reopen before summer 2017 -- nearly three years behind schedule. The cost of the refurbishment has already increased from GBP4.9m to GBP7.1m, and the latest delays are expected to push the bill even higher. The tunnels link Howdon and Jarrow under the Tyne, and they were the first purpose-built combined pedestrian and cyclist tunnels ever built when they opened in 1951. Their wooden-tread escalators, equivalent to the height of the Angel of the North, were once among the longest in the world. The refurbishment work includes the replacement of two of the escalators with inclined lifts. The others will be restored and kept in situ as exhibits, but will not be operational. Contractors GB Building Solutions were removing asbestos from the lining in the escalator shafts and lower halls, which have a problem with corrosion. The work was already taking longer than anticipated, when the contractor went into administration in March. Now, more asbestos has been discovered in the Grade II listed structure, leading to fresh delays. Alastair Swan, principal engineer for the tunnels' owner, the North East Combined Authority (NECA) said: "The discovery of further asbestos was made during our inspection of the tunnels following the collapse of the original contractor, GB Building Solutions. "We had been advised that they had completed the asbestos removal works. "We are now going out to tender for the removal or encapsulation of the remaining asbestos. "We expect the asbestos works to commence early in 2016, and we are committed to the complete treatment of this hazardous material. "We are looking to complete the asbestos work as quickly as possible to enable us to continue the refurbishment works. "We continue to progress off-site works, including the manufacture of the new inclined elevators. "We understand this setback will come as a blow to many tunnel users. We apologise for the inconvenience and ask for their continued patience and forbearance while we work to clean up the tunnels and restore this important pedestrian and cyclist link across the Tyne." The free-to-use, timetabled shuttle bus and a Night Service for shift workers continue to operate. ASBESTOS UPDATE: Fibro-Ridden Ruins of Hotel Left Uncovered ----------------------------------------------------------- Charlie Mitchell, writing for Stuff.co.nz, reported that the asbestos-ridden remains of a North Canterbury heritage hotel have been left uncovered at a residential site for more than a year, causing neighbours to fear for their health. The Waipara Hotel in North Canterbury was destroyed in a fire, just three days after it was sold to a new owner. It was uninsured and ultimately torn down on July 19. Since then, the rubble had remained uncovered at the site, which was near houses and a backpackers. Tests confirmed the rubble contained "significant" amounts of asbestos, exceeding health and safety guidelines for a residential area. An Environment Canterbury (ECan) abatement notice ordering its removal, and dated to March, had not been enforced. Peter Herbert, who lived about 150 metres from the site, said members of the community were concerned for their health. "It's a risk to everyone who lives around here," he said. "The plain fact is there's an open asbestos site sitting 100 metres from the main road. That's the issue." Howling norwesters had picked up recently, he said, and even though the rubble was protected by overgrown weeds, there was no guarantee it was safe. The rubble pile -- which was 3m high and spanned 600 cubic metres -- had a turbulent history. Shortly after the hotel burned down, new owners Sedimento Ltd hired a local contractor to dispose of the remains. About 300 tonnes of rubble was burned on-site and taken to a site on Deans Ave in Christchurch. Five days later, authorities discovered the rubble had been moved and ordered it to be returned to Waipara, where it later tested positive for asbestos. It was unknown if asbestos had contaminated any areas between Waipara and Christchurch. It later emerged the contractor did not have a certificate of competency for dealing with asbestos, according to a report prepared by a joint-council Waste Management Committee. The site on Deans Ave had since been de-contaminated. Another neighbouring resident in Waipara, Fred Hicks, said it was unbelievable the rubble had been allowed to stay there for so long. "The dirt on top isn't going to stay there five minutes. The wind's going to blow it everywhere," he said. The community was frustrated because the asbestos halted progress at the site, which was once the centre of the community. "It's more or less buggered the whole community, and no one can do anything there while the asbestos is there. "It's just turned into a dump. It's an eyesore." A remedial action plan prepared by consultancy company Geoscience found the only safe course of action was to remove the material from Waipara. It said the quantity of asbestos "poses a risk to human health under the rural residential land-use category". About 15 residents forced a meeting with authorities in Waipara earlier seeking an explanation. ECan said it had not stepped in to enforce its abatement notice because it believed a solution could be found. The asbestos posed "minimal risk" to neighbours as it was still bound to the concrete, RMA monitoring and compliance manager Marty Mortiaux said. "We are aware of this situation and are satisfied the proposed outcome can be achieved without resorting to enforcement actions. "However, our priority is that the land is made safe so enforcement remains an option if required." Sedimento Ltd director Paul Sault did not respond to requests for comment. It was understood the site had recently been sold, and its new owners would take it over at the end of November. The new owners had provided a contractual undertaking with ECan to remove the rubble and remediate the site, it said. ASBESTOS UPDATE: Oregon Fibro Rules Lags Behind Minimum Standards ----------------------------------------------------------------- Fedor Zarkhin, writing for The Oregonian, reported that Oregon lags 49 other states in following a federal environmental standard considered essential to protecting people from cancer-causing asbestos fibers. The U.S. Environmental Protection Agency requires contractors to give fair warning before demolishing any commercial, industrial or major residential building. The requirement is designed to ensure asbestos is safely removed before buildings come down. If asbestos isn't removed, workers or passers-by risk breathing the mineral's airborne fibers and contracting a fatal lung disease decades later. State and federal regulators throughout the country adhere to the requirement for pre-demolition reporting, documents and interviews show. But Oregon Department of Environmental Quality officials only requires contractors to notify them if they plan to remove asbestos from a condemned building, not if they believe they don't have to look for it or looked and didn't find any. Regulators elsewhere say that's not enough. "Just because a contractor thinks there's no asbestos doesn't mean that there isn't," said John Angi, an asbestos specialist with the Sacramento Metropolitan Air Quality Management District in California. EPA officials said they were first alerted to the problem in Oregon regulations by The Oregonian/OregonLive. An agency spokesman said that though the agency always reserves the right to withdraw a state's authority to enforce federal rules if it finds a significant problem with how the state is running its asbestos program. The federal rule applies to commercial buildings and apartment buildings. Oregon environmental regulators should have known about every one of the approximately 190 such buildings torn down in Portland from 2011 to mid-2015. But because the state only finds out about the ones where asbestos is removed, regulators knew about only half. In an email sent late night, Department of Environmental Quality spokeswoman Jennifer Flynt said she doesn't think the department doesn't have the power tell contractors to file written notice before all demolitions. The department's rules have never allowed for buildings to be torn down with asbestos inside, Flynt said, adding that the state is "implementing and enforcing a comprehensive asbestos regulatory program as required in the interest of protecting public health." The agency previously has said it plans a comprehensive review of asbestos regulations in 2017. Split from federal rules It's unclear how Oregon's approach to asbestos came to diverge from the federal standard. Under federal laws such as the Clean Air Act, the EPA develops standards for the whole country, then usually hands the authority to enforce those standards to state or local agencies. Those agencies are free to develop their own rules, on one condition: Local rules have to be as stringent or more stringent than the federal ones. The EPA gave the Oregon Department of Environmental Quality authority to enforce asbestos rules in 1988. Federal rules on the books since the 1970s state that contractors must give regulators written notice before tearing down any large structure. At least 10 days ahead of a demolition, regulators must say what they're demolishing, when they're demolishing it, and how they checked for asbestos. Yet Oregon rulemaking documents show that the department has not required pre-demolition reports since at least as long ago as 2001. A review of current state asbestos rules and the Department of Environmental Equality website found no mention of a notification requirement for commercial and large residential demolitions. As a test, The Oregonian/OregonLive asked the department for a 2013 pre-demolition report on a 1960s-vintage, 17,000-square-foot building in Portland. The department said it had no such record. About 90 buildings have been torn down in Portland since 2011 that the Department of Environmental Quality should have learned about but didn't, according to a review of city building permits and state asbestos removal data. The buildings ranged in size from a storage tank, to a three-story Northwest-Portland hotel built in 1902, and a 21,665 square-foot Safeway on Southwest Barbur Boulevard. Had contractors in any of these projects hired a licensed asbestos removal company, the company would have been required to report its work in advance to the Department of Environmental Quality. But because no such work was done, environmental regulators received no notice before the buildings were demolished. Asked by email in July why its rules appeared to diverge from EPA standards, department of environmental quality officials wrote that federal asbestos rules don't apply when a building contains less than certain threshold amounts of asbestos-containing materials. That assertion is at odds with the language of federal regulation, which explicitly says that "written notice of intention to demolish" is required even when the amount of asbestos is less than the threshold cited by the state. EPA officials said the notification requirement extends to demolitions involving zero asbestos. It's unclear how the EPA missed the apparent disconnect between federal rules and Oregon's. The Department of Environmental Quality last made substantial changes to its asbestos rules in 2003. It then asked the EPA to review those rules, said agency spokesman Mark MacIntyre. But 12 years later, the agency has yet to do that. "We have not yet taken action on that request, but we intend to do so," MacIntyre said. What other states do The Oregonian/OregonLive checked every state's policies on demolitions online or by phone. In every state, the review found, contractors have to submit notifications either to their state or local environmental agencies, or to the EPA. Agency officials explained why learning about demolitions in advance was an important way of ensuring asbestos is removed before a demolition. Without the notification, "it would be impossible to safeguard the public," said a spokesman for the clean air agency that oversees demolitions in Los Angeles. Notifications help ensure contractors actually look for asbestos as opposed to simply saying they did. Some environmental agencies demand a copy of the asbestos inspection report. Katie Skipper, an agency spokeswoman with the Northwest Clean Air Agency, in Washington, said reviewing the paperwork allows the agency to order an asbestos inspection when contractors offer no indication one was completed. John Pavitt, an EPA asbestos inspector based in Alaska, said he once reviewed a report from a contractor who said he was demolishing a warehouse with no asbestos. Pavitt showed up on the day of the demolition and found six-foot by four-foot panels made with asbestos. "There was a whole long wall of them," Pavitt said. The contractor, who hadn't tested the panels, stopped the demolition. In Oregon, the contractor wouldn't have submitted a notification. Department officials only would have known that the warehouse was being demolished if somebody filed a complaint, or if a state inspector happened to learn about an upcoming demolition and decided to check it out. John Angi, the asbestos regulator from Sacramento, said he was surprised by Oregon's approach to regulating large-scale demolition projects. Failing to consistently require notifications would put people "all along the line" at risk, Angi said, including demolition workers and people who dispose of demolition waste. "Even one demolition project could give some people a disease," Angi said. What's next Oregon environmental regulators may have some wiggle room on demolition reporting. Pavitt, who works in the EPA region that includes Oregon, said the state has a strong asbestos program that in other regards goes further than federal rules. For example, he said, the state regulates asbestos in all forms; EPA only regulates the substance when it's easily crushed and made airborne. "States are allowed flexibility in how they get things done," Pavitt said. MacIntyre, the EPA spokesman, said it was too early to say what, if anything, the agency will do next. The agency could work with Oregon officials to correct any weaknesses identified in the state's asbestos program. First, he said, the agency must determine if there's enough of a difference between Oregon's state program and federal requirements to warrant any action. "We're not there yet," MacIntyre said. The Department of Environmental Quality said it's planning a complete review of its rules in 2017. Although it hasn't been established that there is a discrepancy that "undermines the program," the state "plans to evaluate the entire program and update the rules as needed," spokeswoman Jennifer Flynt. ASBESTOS UPDATE: Fibro Found in Dubai, Abu Dhabi New Bldgs. ----------------------------------------------------------- Vesela Todorova, writing for TheNational.ae, reported that Asbestos is being used in new buildings almost a decade after a nationwide ban on the dangerous construction material was imposed. Companies specialising in its safe removal say their core business is getting rid of asbestos from old buildings, but they also extract it from new projects. Charles Faulkner, who has worked in the UAE for seven years, said he had seen asbestos in new office towers, power stations, homes and even schools. "I have come across around 20 projects," said Mr Faulkner, head of environment, health and safety at Anthesis, a consultancy. "These were brand-new construction projects that have had asbestos installed in them." They include a residential building in Abu Dhabi, completed in December 2013, and a Jebel Ali warehouse that was finished. Insulation and gaskets are the most common problems. Once a popular building material, asbestos is banned in more than 60 countries. When disturbed it releases small airborne fibres that penetrate deep into the lungs. Breathing them in can lead to an acute reaction with pneumonia-like symptoms. Chronic exposure can lead to lung scarring, pleural disease and even lung cancer. "It would appear that asbestos materials can be bought with relative ease from suppliers here in the Middle East and from places like Satwa and Mussaffah -- even online," said Mr Faulkner. An online search by his team identified eight companies in Dubai, Sharjah and Umm Al Quwain openly advertising the sale of materials containing asbestos. Two companies confirmed that they sold asbestos gasket sheets. Charles Kinniburgh, chief executive of Angus Asbestos Removal in Abu Dhabi, said asbestos material was still available in the UAE. In the past year he had two contracts to remove it from new buildings. Lack of awareness is one reason the problem is persisting, Mr Kinniburgh said. "A lot of people are still unaware of the problems, unaware of the fact that asbestos is expensive to dispose of properly," he said. There also appears to be ambiguity in local regulations. In 2006, the UAE introduced a ban on asbestos products, although it is not clear whether the ban applies to all types of products. The law states that it is prohibited to import or make asbestos board. Until about two years ago, a Dubai company was making products such as pipes, roof sheeting and wall boarding containing asbestos, said Mr Kinniburgh. "That has closed now but it was a fairly big facility," he said. Mr Faulkner said there "definitely appears that there is some uncertainty" about the law. And while some companies may know they are using materials containing asbestos, others may be doing so unwittingly by buying counterfeit products, he said. In Abu Dhabi the Estidama Pearl Rating System, obligatory since 2010, requires new projects to show that no materials with asbestos are used, said Yasmeen Al Rashedi, senior manager of the Estidama Department of the Abu Dhabi Urban Planning Council. Such materials also need to be removed from refurbished buildings that are applying for certification under the scheme. ASBESTOS UPDATE: Man Killed by Fibro 50 Years After Exposure ------------------------------------------------------------ Megan Archer, writing for Oxford Mail, reported that a former carpenter who was exposed to deadly asbestos dust when he was just a teenager died more than 50 years later after he contracted cancer, an inquest heard. Robert Le Masurier from Ducklington was diagnosed with mesothelioma -- a cancer caused by exposure to asbestos -- in 2014. Despite rounds of chemotherapy, his condition gradually deteriorated and he died aged 66 on July 14 at his home in Standlake Road, surrounded by his family. Oxfordshire coroner Darren Salter concluded a death caused by industrial disease. He said: "This is a tragic thing to occur and surely a very difficult thing to deal with. He was only 65 and when we normally deal with this disease it is a lot older. Obviously he was exposed to this a lot younger. "Due to his work as a carpenter and joiner from the mid 1960s to the 1970s, he was exposed to asbestos throughout his working life." Oxford Coroner's Court heard how Mr Le Masurier first began working at a joinery and carpentry firm in Plymouth from 1965, after leaving school at 15. Despite working in the shop at first, Mr Le Masurier was exposed to dust as his colleagues would cut asbestos boards very close to where he stood. He also carried out sawing work himself for several years. GP at Windrush Health Centre Dr Stephen Smith said Mr Le Masurier's disease was responsive in a typical fashion. Dr Smith said: "He did not respond to chemotherapy and was admitted to Sobell House, and then sent home where he was cared for by a Macmillan nurse. "I last saw him on July 1. He had lost a lot of weight and had changed significantly. His condition deteriorated and he died at 2.01pm on July 14." Mr Le Masurier's son Daniel was there to hear the conclusion on his father's death. In August 2014, industrial disease specialist Peter Lodge said asbestos deaths were set to reach a record high in Oxfordshire by 2020. The Health and Safety Executive (HSE) has said that, because of the 30 to 40 year delay -- where the substance is in the body but not causing harmful effects -- more lives could be claimed in the coming years. ASBESTOS UPDATE: More Deadly Dust Found at Bulla Tip ---------------------------------------------------- Alexandra Laskie, writing for Star Weekly, reported that an independent auditor has confirmed there were "administrative errors" in a Bulla tip's licence to dispose of asbestos. In late August, the Environment Protection Authority commissioned auditing firm Ernst & Young to assess its licensing processes at every landfill tip in the state, after it discovered oversights in the licence it had awarded the Bulla Tip and Quarry (BTQ) on Sunbury Road. The administrative error that allowed asbestos to be dumped without proper approval was discovered at an EPA inspection to check whether tip operator Bulla Quarry Developments was complying with its licensing obligations. EPA chief executive Nial Finegan said the audit discovered similar irregularities at a tip in Stawell. He said neither of the errors, at Stawell or Bulla, posed a risk to human health or the environment. "We recognised there was something amiss at Bulla and wanted to make sure it was only an administrative slip-up," Mr Finegan said. "They've confirmed there was an issue with the BTQ licence and at Stawell, and the record-keeping wasn't too good at another two sites. "But the audit confirmed that there were no adverse environmental impacts because of these oversights." The Bulla licence has since been updated and Hume council's director of city sustainability, Kelvin Walsh, said he was pleased the EPA had issued tighter conditions to the tip operators. "We expect the authority will closely monitor the site," Mr Walsh said. In July, the state's planning tribunal extended the tip's lifetime to 2023, despite opposition from residents and the council. ASBESTOS UPDATE: Fibro Infests Tobribridge McDonald's Site ---------------------------------------------------------- Louise Berwick, writing for Kent and Sussex Courier, reported that deadly asbestos is plaguing a site earmarked for a multi-million pound McDonald's drive-thru restaurant -- but the fast food giant says it still plans to open its new branch in Tonbridge. The large Cannon Lane development was revealed in 2014, but documents submitted to the council this summer show the site, which used to be home to West Kent YMCA and The Bridge Trust, is contaminated with asbestos. McDonald's wants to demolish the existing warehouses and build a single-storey restaurant on the land, with a 24-hour, seven day a week drive-thru. But apart from objections from neighbours about noise and anti- social behaviour, official reports submitted to planning chiefs have revealed large quantities of contaminants on the site. Two different environmental studies into the land have turned up large traces of asbestos fibres. According to the UK's Health and Safety Executive, asbestos still kills around 5,000 workers each year, more than the number of people killed on the road, and around 20 tradesman die each week as a result of past exposure. People can get a range of fatal diseases from inhaling the fibres, including lung cancer and asbestosis. Consultants Jomas Associates completed a geo-environmental study on behalf of the site's developers and confirmed there was a high level of asbestos present. "The risk estimation matrix indicates a generally moderate risk, with a high risk relating to the potential presence of asbestos containing materials within the existing building fabric," the document said. "Any potential asbestos containing materials should be assessed, with identified materials removed by suitably qualified personnel." "Based on available information it is concluded there are potential contaminant linkages associated with the site, which require further investigation." The Environment Agency has written to council chiefs and warned them the land has to be decontaminated before development can take place. But a McDonald's spokesman said the large drive-through was still planned for Tonbridge and it would open. Meanwhile, neighbours have raised concerns about anti-social behaviour that might be associated with the development, and Kent Police has expressed its disappointment in the company not consulting them on the plans or crime prevention methods for the area. But representatives for McDonald's have said the development would create 65 full-time jobs and measures would be put in place to ensure noise problems were minimised. Kent County Council has said that it has no objection to the development. The proposal still relies on planning permission from Tonbridge and Malling Borough Council, but consent was given for the demolition of the warehouses and construction of a retail block in 2012. The council's planning committee is due to consider the application at its meeting. ASBESTOS UPDATE: Nauru Buildings Need $20MM to Remove Fibro ----------------------------------------------------------- Chris Kenny, writing for The Australian, reported that an independent report has identified a "substantial quantity" of asbestos in public and private buildings in Nauru and recommended a $20 million program to remove the dangerous building material to Australia. The Nauruan government has started a program of replacing asbestos roofing on the island but the detailed report -- funded by an EU aid program -- could lead to pleas for accelerated action. One of the public buildings identified as a health risk is the main island hospital, the RoN (Republic of Nauru) Hospital, which is being redeveloped in an $11.5m Australian government aid project. The "Survey of the regional distribution and status of asbestos- contaminated construction material" was completed in June and recommends a "detailed and coordinated program of asbestos removal" starting with the highest risk locations. Further EU funding could be available for this task. The report takes some "reassurance" from the fact no asbestos was found in any air samples taken at 77 locations on the island. Swab tests found "significantly high" results in three samples at the hospital, one at the port, four at the power plant and two in the prison and government buildings complex. Moderately high readings were taken from swabs at the hospital, private housing, a refugee accommodation block, a hotel and a restaurant among other locations. Most asbestos on the island is in roofing and cladding, usually considered safe because fibres are locked in the cement. "However, when roofing and cladding deteriorate to the extent it has done in Nauru, it can be considered to be partially friable and will be releasing fibres into the air," the report warns. Nauru's Justice and Finance Minister, David Adeang, said his government had instituted a "community housing renovation program" that replaced deteriorating asbestos roofing with metal materials from Australia. The report costs full removal at $US17.3m, with additional costs incurred if waste is exported to Brisbane, as recommended. ASBESTOS UPDATE: Carpenter Has Mesothelioma Due to Fibro Exposure ----------------------------------------------------------------- Ely News, reported that a carpenter who fitted asbestos panels to Cambridge college boiler rooms and to newly-built homes died from exposure to the building material, an inquest has heard. Richard Elsom told in a statement written during his illness how he was often covered in dust containing asbestos when he swept up after work. Mr Elsom, 64, of Stour Green, Ely, died from malignant mesothelioma in September. Senior Coroner David Heming concluded that Mr Elsom had contracted the asbestos-related condition during the course of his work. Mr Elsom, who was diagnosed in 2011, said in a statement that he had been an apprentice carpenter and joiner with a Cambridge firm and had worked at university colleges in the 1970s. His work included fitting asbestos sheeting to boiler rooms, sawing and drilling the sheets. He said asbestos dust fell on him when he fixed the sheets to ceilings. "I remember being very dusty at the end of the day after carrying out this type of work," Mr Elsom said. He said he had also fitted asbestos soffits and barge boards when working on construction sites in and around the city. "I was not warned of the dangers of asbestos or given protection for it," Mr Elsom said in his statement. He said he had later run his own loft conversion business where he was not exposed to asbestos. The inquest heard that Mr Elsom had been diagnosed after suffering a persistent cough. His wife Jackie, who was behind the Meso 100 campaign to raise funds and awareness, said mesothelioma was a preventable condition and she could not think of any other case where a known risk was allowed to continue. ASBESTOS UPDATE: Oregon DEQ Mandates Fibro Test Before Demolition ----------------------------------------------------------------- EP Newswire reported that following the Oregon Legislature's passage of SB 705, the Oregon Department of Environmental Quality (DEQ) is proposing regulations that would require an asbestos survey prior to the demolition of residential properties. The surveys are mandated by the new law. The regulation will require that an inspector survey all houses, except for those with exemptions, and specify the survey procedures. One exemption will be a cutoff date for properties built on or after a date determined in the rule. SB 705 calls for the new regulation to be in effect as of Jan. 1, 2016. Since that date does not give the DEQ adequate time to institute a permanent rulemaking, the department is concurrently developing a temporary and permanent regulation. The temporary rule will be reviewed by the Environmental Quality Commission (EQC) in December, according to the DEQ, while the permanent rule is expected to be completed in April 2016. ASBESTOS UPDATE: Realtor Exposses Untrained Laborers to Fibro ------------------------------------------------------------- Aimee Green, writing for The Oregonian, reported that a Lake Oswego real-estate agent who investigators say tried to cut corners -- by hiring untrained day laborers to remove asbestos from a trendy Southeast Portland house that he was flipping -- pleaded guilty to a misdemeanor crime. William Gaffney had no previous criminal history, but state investigators say his actions in March 2014 moved into the criminal realm when he failed to hire a trained asbestos-abatement company to gut the 1908 Craftsman-style home, just steps from hip Hawthorne Boulevard. Instead, investigators say Gaffney hired six less-expensive workers from Labor Ready. The workers were covered in dirt, had only dust masks and no protective suits, investigators say. As a dust cloud settled around the home, neighbors shared their worries first with Gaffney -- who brushed off their concerns -- and later with state officials, investigators say. Even after an Oregon Occupational Safety and Health Division inspector showed up and collected samples from a large trash container outside the home, Gaffney disobeyed orders, investigators say. "They specifically told Mr. Gaffney, 'We firmly believe that there are asbestos-containing materials in this Dumpster. Do not dispose of them without making the proper arrangements,'" said Patrick Flanagan, an attorney who prosecuted the case for the Oregon Department of Justice. "The next day when that inspector came back, the Dumpster was gone and it had not gone to a proper disposal facility." This case is only the second that Flanagan could recall of a developer being convicted of criminal wrongdoing for exposing others to asbestos. In 2012, developer Daniel Desler was convicted for negligently releasing asbestos into the air as he tried to redevelop an old sawmill in Sweet Home into a housing development. Asbestos is a known carcinogen believed to be so dangerous that even brief exposures can develop into life-threatening diseases decades later. Gaffney, who goes by Bill Gaffney, is founder and owner of Change Realty in Lake Oswego. The firm has made a name for itself in the real-estate world by charging a 1 percent commission for selling homes, opposed to the more traditional 5 or 6 percent. As part of a plea deal, Gaffney pleaded guilty to two misdemeanor counts of recklessly endangering another person and one violation count of second-degree unlawful air pollution. He was ordered to two years of probation and 80 hours of community service. He also must pay a $10,000 fine -- on top of the $10,200 that the Oregon Department of Environmental Quality and OSHA already fined him for asbestos and lead-paint violations. Gaffney bought the house near Southeast 48th Avenue and Hawthorne for $350,000 in February 2014, according to property records. A year later, he sold it for $675,000. Flanagan, the prosecuting attorney, said he wanted to attach criminal culpability to the case to drive home a message to Gaffney. "It was important to the state that this was not just a cost-of- doing-business analysis for Mr. Gaffney," Flanagan told Multnomah County Circuit Judge Henry Kantor. Flanagan told the judge that Gaffney might not have only exposed the workers' to asbestos, but the neighbors, too. Gaffney also walked through the work site while the home's interior was being demolished. Gaffney clearly had a tough time coming to terms with his first criminal conviction. He looked sullen and sometimes cast his eyes toward the floor or slightly shaking his head as the prosecuting attorney spoke. When the hearing began, the judge asked Gaffney what he did wrong. Gaffney didn't admit much. "It was asbestos that I was unaware of," Gaffney said. "And once I became aware of it, I took the proper steps to remediate." The judge said he couldn't accept Gaffney's guilty pleas, if that's all he was willing to admit. Gaffney left the room with his attorney, then came back 10 minutes later -- willing to concede more fault. His attorney, Per Ramfjord, told the judge that Gaffney should have known that there was a risk of asbestos exposure in remodeling the 107-year-old home -- given Gaffney's years working as a real-estate broker and his experience hiring an asbestos- abatement company for an apartment complex he remodeled about seven years ago. When the judge asked if Gaffney agreed with everything his attorney had just said, Gaffney responded only: "Yes." Gaffney declined to make any additional statements when given a chance. "He should have known better, and he should have hired an abatement contractor first," Ramfjord said. "We think Mr. Gaffney has certainly more than learned his lesson from this event." ASBESTOS UPDATE: CenterPoint Energy Continues to Defend PI Suits ---------------------------------------------------------------- CenterPoint Energy, Inc., continues to defend itself against personal injury lawsuits arising from exposure to asbestos- containing materials, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2015. Some facilities owned by CenterPoint Energy contain or have contained asbestos insulation and other asbestos-containing materials. CenterPoint Energy or its subsidiaries have been named, along with numerous others, as a defendant in lawsuits filed by a number of individuals who claim injury due to exposure to asbestos. Some of the claimants have worked at locations owned by subsidiaries of CenterPoint Energy, but most existing claims relate to facilities previously owned by CenterPoint Energy's subsidiaries. In 2004 and early 2005, CenterPoint Energy sold its generating business, to which most of these claims relate, to a company which is now an affiliate of NRG. Under the terms of the arrangements regarding separation of the generating business from CenterPoint Energy and its sale of that business, ultimate financial responsibility for uninsured losses from claims relating to the generating business has been assumed by the NRG affiliate, but CenterPoint Energy has agreed to continue to defend such claims to the extent they are covered by insurance maintained by CenterPoint Energy, subject to reimbursement of the costs of such defense by the NRG affiliate. CenterPoint Energy anticipates that additional claims like those received may be asserted in the future. Although their ultimate outcome cannot be predicted at this time, CenterPoint Energy intends to continue vigorously contesting claims that it does not consider to have merit and, based on its experience to date, does not expect these matters, either individually or in the aggregate, to have a material adverse effect on CenterPoint Energy's financial condition, results of operations or cash flows. CenterPoint Energy Resources Corp. (NYSE:CNP), headquartered in Houston, is a domestic energy delivery company that includes electric transmission and distribution, natural gas distribution and energy services operations. CNP serves more than 5 million metered customers primarily in Arkansas, Louisiana, Minnesota, Mississippi, Oklahoma and Texas. ASBESTOS UPDATE: Manitex Int'l. Continues to Defend Fibro Suits --------------------------------------------------------------- Manitex International, Inc., continues to defend itself against asbestos-related product liability lawsuits, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2015. The Company has been named as a defendant in several multi- defendant asbestos related product liability lawsuits. In certain instances, the Company is indemnified by a former owner of the product line in question. In the remaining cases the plaintiff has, as of June 30, 2015, not been able to establish any exposure by the plaintiff to the Company's products. The Company is uninsured with respect to these claims but believes that it will not incur any material liability with respect to these to claims. Manitex International, Inc. is engaged in providing engineered lifting solutions. The Company operates in two segments: Lifting Equipment segment and Equipment Distribution segment. The Company, in its Lifting Equipment segment, designs, manufactures and distributes a group of products that serve different functions and are used in a variety of industries. Through its subsidiary, Manitex, Inc., the Company markets a line of boom trucks and sign cranes. Manitex's boom trucks and crane products are primarily used for industrial projects, energy exploration and infrastructure development, including roads, bridges and commercial construction. The Company, in its Equipment Distribution segment, operates a crane dealership located in Bridgeview, Illinois that distributes Terex rough terrain and truck cranes, Fuchs material handlers, and Manitex boom trucks and sky cranes. In December 2013, the Company announced that it has completed the acquisition of Valla, SpA, of Piacenza, Italy. ASBESTOS UPDATE: Katy Industries Has Pending Fibro Claims --------------------------------------------------------- Katy Industries, Inc., has a number of product liability, asbestos and workers' compensation claims pending against the Company and its subsidiaries, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 26, 2015. There are a number of product liability, asbestos and workers' compensation claims pending against the Company and its subsidiaries. Many of these claims are proceeding through the litigation process and the final outcome will not be known until a settlement is reached with the claimant or the case is adjudicated. The Company estimates that it can take up to ten years from the date of the injury to reach a final outcome on certain claims. With respect to the product liability, asbestos and workers' compensation claims, the Company has provided for its share of expected losses beyond the applicable insurance coverage, including those incurred but not reported to the Company or its insurance providers, which are developed using actuarial techniques. Such accruals are developed using currently available claim information, and represent management's best estimates, including estimated legal fees, on an undiscounted basis. The ultimate cost of any individual claim can vary based upon, among other factors, the nature of the injury, the duration of the disability period, the length of the claim period, the jurisdiction of the claim and the nature of the final outcome. Katy Industries, Inc., is a Bridgeton, Missouri-based manufacturer, importer and distributor of commercial cleaning and storage products and a contract manufacturer of structural foam products. The Company's commercial cleaning products are sold to industrial, janitorial/sanitary maintenance and foodservice distributors that supply end users including restaurants, hotels, healthcare facilities and schools. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2015. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. 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