/raid1/www/Hosts/bankrupt/CAR_Public/151106.mbx
C L A S S A C T I O N R E P O R T E R
Friday, November 6, 2015, Vol. 17, No. 222
Headlines
ALAMEDA COUNTY, CA: Class Suit Filed Over High-Speed Chases
AMAZON.COM INC: Same-Day Delivery Drivers File Class Action
AMAZON.COM INC: Misclassified Drivers, "Truong" Suit Says
ANHEUSER-BUSCH: Must Pay $3.5MM in Atty Fees, Fla. Judge Says
ANHEUSER-BUSCH: Judge Approves $20MM Beck Labeling Settlement
AUSTIN, TX: Jails People Who Can't Pay Fines, Class Suit Claims
AVID TECHNOLOGY: Class Action Settlement Approved
AXA EQUITABLE: Motions in Limine in "Sivolella" & "Sanford" Nixed
AXA EQUITABLE: Court Denied Class Certification Motion in "Yale"
AXA EQUITABLE: Defending "Yarbrough" Class Action in S.D.N.Y.
AXA EQUITABLE: NJ Court Remanded "Shuster" Class Action
BANK OF AMERICA: S.D.N.Y. Judge Approves $1.86BB Deal in CDS Suit
BANK OF AMERICA: Third Circuit Reverses Ruling in TCPA Suit
BANK OF NOVA SCOTIA: Inflates Treasury Prices, Illinois Suit Says
BANK OF NOVA SCOTIA: Inflates Treasury Prices, Rock Capital Says
BARCLAYS BANK: Faces "Brang" Suit Over TCPA Violations
BILL COSBY: Faces Sexual Abuse Case by Renita Hill
BILL COSBY: Taps Quinn Partner to Defend Sex Abuse Claims
BIO-REFERENCE: MOU Reached in OPKO Health Merger Class Action
BRM RECOVERY: "Franklin" Suit Seeks Payment for Unpaid OT
CBS BROADCASTING: Had Segregated Lunchroom, Brooklyn Suit Claims
C&J ENERGY: Briefing on Motion to Dismiss Commenced
CUYAHOGA METROPOLITAN: "Lee" Suit Seeks to Recover Unpaid OT
CVB FINANCIAL: Class Action Appeal Remains Pending
DEAN FOODS: Class Suits Over Grade A Milk Pending in Tennessee
DINE AND WINE: Faces "Zheng" Suit for Unpaid OT & Wages
DYNEX CAPITAL: Dismissal of Pa. Class Suit Upheld
EBIX INC: Defendants' Motion to Dismiss Still Pending
ENDO INTERNATIONAL: Second Amended Complaint Filed in Ill. Suit
ENDO INTERNATIONAL: Antitrust Suit Trial to Begin in 2017
ENDO INTERNATIONAL: Discovery Stayed in Opana Purchaser Cases
ETHICON INC: Suits Over Power Morcellators Consolidated in MDL
EXPERIAN HOLDINGS: Faces "Brautigam" Suit for Data Breach
FACEBOOK INC: Judge Dismisses Privacy Class Action
FACEBOOK INC: EU Privacy Suit May Proceed After Safe Harbor Ruling
FANDUEL INC: Two Law Firms Sue Over Alleged Insider Trading
FANDUEL INC: Faces Class Suit by Redskins Receiver Garcon
FIVE STAR QUALITY: Faces "Brown" Suit for Unpaid OT
FIVE STAR QUALITY: Fails to Pay for OT Work, "Salas" Suit Claims
G/J COMPANIES: "Clarke" Suit Seeks to Recover Unpaid Wages
GENERAL CABLE: Appeal in Livonia Complaint Ongoing
GENERAL MOTORS: Conference Takes Up Ignition Switch Fiasco
GENERAL MOTORS: Beefs Up Ignition-Switch Scandal Defense Team
GENERAL MOTORS: Settlement Money Goes to Auto Safety Research
GENERAL MOTORS: Judge Balks at Ignition-Switch Agreement with DoJ
GENERAL MOTORS: Former General Counsel Faces Subpoena
GOLDSTEIN P.A.: "Botting" Suit Seeks to Recover Unpaid Overtime
GOODMAN MANAGEMENT: "Berisha" Suit Seeks Payment of OT & Wages
HAWAIIAN ELECTRIC: Continue to Defend Class Actions
HESTER ENVIRONMENTAL: "Ortez" Suit Seeks to Recover Unpaid Wages
HOME PROPERTIES: Facing Class Actions Related to Merger
HULU: Averts Video Privacy Class Action
J&M RESTAURANT: "Euceda" Suit Alleges FLSA Violations
JANSSEN PHARMA: Third Risperdal Trial Begins in Philadelphia
JCS SECURITY FORCE: "Viera" Suit Alleges FLSA Violations
JUNGLE ISLAND: Miami Non-Profit Files Suit Over Ramp Charges
KNIGHT TRANSPORTATION: Preliminary Accord Reached in Class Suit
KNIGHT TRANSPORTATION: Awaits Final Judgment in Oregon Action
LEWIS ENERGY: "Canales" Suit Seeks to Recover Unpaid OT
MACHINE ZONE: Judge Rejects Unfair Competition Legal Claims
MASSACHUSETTS: Unemployment Assistance Dept. Faces Class Suit
MERCEDES-BENZ: Hogan Lovells Faces Subpoena in Seat Heaters Case
MITSUI & CO: Dismissal of 'Comfort Women' Action Sought
MONSTER BEVERAGE: Defending False Advertising Class Actions
MRV COMMUNICATIONS: "Vo" Class Suit in Discovery Phase
N FRANZE HOSPITALITY: Faces "Tennant" Suit for Unpaid Wages
NATURAL AMERICAN: Class Action Challenges Cigarette Natural Label
NEVADA: San Francisco Settles Patient-Dumping Suit for $400,000
NOMURA: Panel Adopts Pro-Investor Interpretation in RMBS Suit
NY TAXI & LIMOUSINE: Inflates Medallion Prices, CGS Taxi Says
OVERSEAS SHIPHOLDING: Class Suit Claims "Fully & Finally" Settled
PARAMOUNT FOODS: Unlawfully Retained Tips, "Cardoso" Suit Claims
PFIZER INC: Cross-Court Zoloft Rulings Use Different Standards
PHOTOMEDEX INC: Defending D.C. Action Against Radiancy Unit
PHOTOMEDEX INC: Discovery Held in Kern County Suit v. Radiancy
POPULAR INC: Court Denied BPNA's Motion to Compel Arbitration
POPULAR INC: "Quiles" Action Won't Proceed as Class
POPULAR INC: Briefing Held on Bid to Dismiss "Fernandez" Case
POPULAR INC: BPPR Defending RadioShack ERISA Litigation
PROGRESSIVE WASTE: Fees Are Questionable, Mendez Fuel Suit Says
RCI HOSPITALITY: Accrued $10.3MM Related to Class Suit at June 30
ROCK CREEK: Status Hearing Held in "Baldwin" Suit
ROCK CREEK: Has Deal with Jonnie Williams Over Indemnification
ROCK CREEK: Final Judgment Entered in Securities Class Settlement
S-L DISTRIBUTION: Refuses to Withdraw Subpoenas on Class Members
SAN FRANCISCO, CA: Jails People Who Can't Post Bail, Suit Claims
SEQUENTIAL BRANDS: Facing Class Action Over Martha Stewart Deal
SIRIUS XM: Faces Class Action in N.J. Over Unpaid Royalties
SONY PICTURES: Settles Data Breach Class Action for $8 Million
SUFFOLK COUNTY, NY: Class Action Plaintiffs Can Sue Anonymously
SYMMETRY SURGICAL: Agreed to Settle Class Action Lawsuit
TERRAFORM GLOBAL: Faces Shareholder Class Action Over Stock Drop
TRICO BANCSHARES: Hearing on Class Action Settlement Held
TRICO BANCSHARES: Butte County Suit by Ex-Personal Banker Pending
TRICO BANCSHARES: Sacramento Suit by Personal Banker Pending
UBER TECHNOLOGIES: Judge Dismisses "Antman" Data-Breach Suit
UBER TECHNOLOGIES: Driver Classification Lawsuit Ongoing
UNITED STATES: AT&T Customers Appeal Order in NSA Spying Case
UNITED STATES: Settlement of Suit v. Homeland Security Okayed
VACATIONRENTPAYMENT: Exposed Customers' Info, Suit Claims
VOLKSWAGEN GROUP: Faces "Caro" Suit Over Defeat Devices
VOLKSWAGEN GROUP: 2 Firms Sue on Behalf of South Korean Consumers
XOMA CORPORATION: Securities Class Action Filed in N.D. Cal.
XYTEX CORP: Judge Dismisses Wrongful Birth Case
YAHOO! INC: Appeals Court Revives Suit Over Unsolicited Texts
ZYNGA INC: Final Settlement Fairness Hearing on Jan. 28
* FCRA Class Action Suits Surge, SCOTUS Ruling May Slow Trend
* Plaintiffs in Case v. Georgia's EMCs Balk at Judge's Report
Asbestos Litigation
ASBESTOS UPDATE: NY App. Div. Affirms USF & G Allocation Ruling
ASBESTOS UPDATE: EPA Wins Access to Fibro-Contaminated Property
ASBESTOS UPDATE: L&P's Counterclaims in "Taylor" Dismissed
ASBESTOS UPDATE: 9th Cir. Affirms Lockheed Judgment in "Sequira"
ASBESTOS UPDATE: Experts Can't Offer Specific Causation Opinion
ASBESTOS UPDATE: Cos.' Summary Judgment Bids in "Miller" Denied
ASBESTOS UPDATE: Cal. App. Affirms Jury Verdict in "Marteney"
ASBESTOS UPDATE: NY App. Div. Refuses to Stay Trial of "Sherer"
ASBESTOS UPDATE: "Hassebrock" to Proceed to Jury Trial
ASBESTOS UPDATE: "Brown" Remanded to State Court
ASBESTOS UPDATE: Fla. High Court Remands "Aubin" to Appeals Court
ASBESTOS UPDATE: Judge Says Guam's Fibro Concerns Left Unanswered
ASBESTOS UPDATE: Speaker Says Guam Dumping Fibro is Unsafe
ASBESTOS UPDATE: Central Jr. High Preprares for Fibro Clean-up
ASBESTOS UPDATE: NZ Post Renovations Halted, Leaving Fibro Inside
ASBESTOS UPDATE: La. Man Sues Big Companies for Mesothelioma
ASBESTOS UPDATE: Chesham Care Fined Over Failure to Remove Fibro
ASBESTOS UPDATE: Kalamazoo Woman Sentenced Over Fibro Case
ASBESTOS UPDATE: Fibro Issues Delay Courtroom Renovations
ASBESTOS UPDATE: Ultimate Fibro Liability Totals Remain Unknown
ASBESTOS UPDATE: ExxonMobil Faces Fibro Suit for Man's Death
ASBESTOS UPDATE: Liverpool Council Investigates Fibro Allegations
ASBESTOS UPDATE: State Fines Fibro Work at Worcester Care Center
ASBESTOS UPDATE: Toxic Dust Found at Christchurch Sports Park
ASBESTOS UPDATE: High Court Denies Compensation to Pensioner
ASBESTOS UPDATE: Letcher County to Remove Fibro From Schools
ASBESTOS UPDATE: Kaipara College Closed Due to Deadly Dust
ASBESTOS UPDATE: Fla. High Court Reinstates $6.6MM Fibro Verdict
ASBESTOS UPDATE: AM Best Says A&E Losses Drop Sharply in 2014
ASBESTOS UPDATE: Atty Disputes Status of Fibro Docket in News
ASBESTOS UPDATE: Mesothelioma-Caused Deaths to Rise in Korea
ASBESTOS UPDATE: Ex-British Sugar Worker Dies Due to Mesothelioma
ASBESTOS UPDATE: EUR1.5MM Spent to Clean Fibro in Hal-Far Pipes
ASBESTOS UPDATE: Weardale Flower Club Cancels Event Due to Fibro
ASBESTOS UPDATE: Grandad Seeks Info on Asbestos-related Cancer
ASBESTOS UPDATE: Toxic Dust Alert at Melbourne Primary School
ASBESTOS UPDATE: Fibro Found on Former Glencairn Tower Site
ASBESTOS UPDATE: Former Smoker Blames Fibro for Cancer
*********
ALAMEDA COUNTY, CA: Class Suit Filed Over High-Speed Chases
-----------------------------------------------------------
Katherine Proctor, writing for Courthouse News Service, reported
that Alameda County sheriff's officers conduct high-speed chases
with "reckless disregard for public safety," according to class
action filed in Alameda County, Calif., from an "innocent third-
party bystander" whose leg was nearly severed during a pursuit.
William B. Riley claims the sheriff's office has virtually no
guidelines whatsoever for high-speed chases, though California law
requires it to have criteria to "determine the factors to be
considered by a peace officer and supervisor in determining speeds
throughout a pursuit."
The Alameda County Sheriff's Office is "silent" on the issue,
Riley says in his Oct. 29 lawsuit in Alameda County Court. He
claims that nothing in the sheriff's policy "sets forth any speed
limits or guidelines whatsoever" for high-speed chases.
"With no limits on speed, suspected violators set the pace, and
'orders' to terminate are ignored," according to the complaint.
Riley, 61, seeks to be class representative because as he drove
his motorcycle through an Oakland intersection, he was struck at
85 mph by a car that was being "recklessly pursued" by sheriff's
officers "through miles of heavily populated city surface
streets."
He says he was "thrown head-first onto the hood of the speeding
Maxima, his leg nearly severed, bones protruding, and blood
gushing profusely, as Alameda County Sheriff's officers continued
their high-speed pursuit for yet another 2.1 miles, in direct
violation of a supervising officer's repeated orders to terminate
the pursuit."
He seeks to represent a class of "all persons who suffered civil
damages for personal injury to or death of any person or damage to
property resulting from the collision of a vehicle being operated
by an actual or suspected violator of the law" being pursued by a
peace officer employed with the Alameda County Sheriff's Office.
He also seeks an injunction ordering the sheriff to develop and
policy and train his officers, and punitive damages for
negligence, nuisance, and intentional misrepresentation, from the
county and sheriff's office and the teenagers who drove the
Maxima, and their parents.
He is represented by Timothy Rumberger, of Alameda, who did not
respond to a request for comment. Nor did the sheriff's office.
Many California cities and law enforcement agencies began
curtailing high-speed chases and developing policies on them after
six people, including four students, were killed near Temecula
High School in 1992 during a high-speed chase by the Border
Patrol.
AMAZON.COM INC: Same-Day Delivery Drivers File Class Action
-----------------------------------------------------------
Marisa Kendall, writing for The Recorder, reports that an Oakland
plaintiffs lawyer who successfully challenged FedEx's
classification of delivery drivers as independent contractors has
filed a class action against Amazon on behalf of its same-day
couriers. The suit says the Amazon Prime Now drivers, who are
tasked with completing deliveries in two hours or less, are
entitled to employee benefits including minimum wage, overtime
pay, meal breaks and reimbursement for work expenses.
Beth Ross -- bross@leonardcarder.com -- of Leonard Carder, who
represents the potential class, said by the time drivers pay for
gas, car maintenance and insurance, they barely have enough money
to make ends meet.
"Unlike the drones that Amazon hopes to eventually replace them
with, these drivers are human beings with rent to pay and families
to feed," she stated in a release announcing the suit.
The lawsuit filed on Oct. 27 in Los Angeles Superior Court lists
Amazon.com Inc., courier company Scoobeez Inc., and Scoobeez
parent company ABT Holdings as defendants.
Representatives from Amazon declined to comment. ABT Holdings did
not immediately respond to emails seeking comment.
Last year Ross secured a decision from the U.S. Court of Appeals
for the Ninth Circuit holding that FedEx Ground drivers in
California are employees rather than independent contractors. The
case settled in June for $227 million.
Amazon Prime Now, which launched earlier this year, allows
customers to place orders on a mobile app and select either one-
hour or two-hour delivery. The service is available in 10 cities
nationwide, according to the complaint, and recently started San
Francisco.
Plaintiffs, four southern California drivers who no longer work
for the company, claim Amazon controlled their work environment
and therefore must classify them as employees. Amazon required
them to wear Amazon Prime Now shirts and hats, and gave them
smartphones pre-loaded with the company app, according to the
complaint. The drivers claim Amazon set their shifts, assigned
their packages and dictated their routes. Amazon tracked the
drivers while they were on deliveries, according to the complaint,
and called or texted them to suggest alternate routes or alert
them when they were running late.
"Despite these and other clear indicia that plaintiffs are and
were defendants' employees," the plaintiffs lawyers wrote,
"defendants have classified them as 'independent contractors' and,
in so doing, have denied them the benefits and protections of
California employment law."
The plaintiffs also complain about other Amazon practices, such as
the company's alleged practice of occasionally sending drivers
home without pay if they report to the warehouse and there isn't
enough work. According to the complaint, the Irvine warehouse
where drivers wait for deliveries "has neither windows nor air
conditioning, and Amazon requires that all external doors stay
closed. While there are often as many as 60-100 drivers present
at any one time waiting for work, there is only a single unisex
restroom available for their use."
The Oct. 27 lawsuit follows a spate of similar independent
contractor suits against companies including Uber Technologies
Inc., Lyft Inc., GrubHub, DoorDash, Postmates, Washio and Sprig.
U.S. District Judge Edward Chen in the Northern District of
California certified a class of Uber drivers in September.
AMAZON.COM INC: Misclassified Drivers, "Truong" Suit Says
---------------------------------------------------------
Amazon.com hired "Amazon Prime Now" delivery drivers through
cutout companies to misclassify them as independent contractors
and stiff them for overtime, a class claims in Los Angeles
Superior Court, Central District. The case is Taree Truong v.
Amazon.com Inc.; Scoobeez Inc.; ABT Holdings Inc.
ANHEUSER-BUSCH: Must Pay $3.5MM in Atty Fees, Fla. Judge Says
-------------------------------------------------------------
Eva Fedderly, writing for Courthouse News Service, reported that
Anheuser-Busch must pay $3.5 million in attorneys' fees after a
magistrate ruled it deceived consumers of one of its brands,
Beck's, into believing the beer is brewed in Germany, when it is
actually in the United States.
In October 2013, Francisco Rene Marty filed the class action
against Anheuser-Busch claiming the beverage giant "committed
unfair and deceptive practices" in order to deceive consumers into
Beck's beer is still imported from Germany."
Marty claimed the Beck's beer label still bears the phrases
"Originated in Germany" and "German Quality," and that Anheuser-
Busch sold Beck's at prices substantially higher than those of
domestic beer, "despite the fact that the beer is brewed in the
United States with domestic ingredients."
U.S. Magistrate Judge John O'Sullivan ruled on Oct. 22 that the
settlement class consisted of "all consumers who purchased Beck's
Beer in the United States for personal, family, or household
purposes and not for re-sale from May 1, 2011 through June 23,
2015." This includes Beck's Pilsner, Beck's Dark, Beck's Light,
and Beck's Oktoberfest beer.
O'Sullivan awarded original plaintiff Francisco Rene Marty and two
others who joined the case later, Seth Goldman and Fernando
Marquet, contribution awards at $5,000 each.
Kozyak, Tropin, & Throckmorton P.A. represented the plaintiffs.
Tucker Ronzetti, one of the attorneys, told Courthouse News,
"We're very pleased with the settlement. There are potentially 1.7
million households that can make claims. The claims process is a
very simple process. . . .There is also mandated injunctive relief
that will ensure there is no deception or confusion about where
Beck's is brewed."
Anheuser-Busch denied the claims and charges, and believes that
its labeling, packaging, and marketing of Beck's Beer have always
been truthful and not deceptive.
In a written statement, Katherine Barrett, vice president and U.S.
General Counsel for Anheuser-Busch said "Under the Beck's labeling
settlement agreement, consumers can submit claims for up to $12
per household without a receipt, or up to $50 with receipt.
"It's too early to project the final settlement amount, which is
subject to the number of claims and won't be known for several
weeks," Barrett continued. "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."
The case is, FRANCISCO RENE MARTY, SETH GOLDMAN, and FERNANDO
MARQUET on behalf of themselves and all others similarly situated;
Plaintiffs, v. ANHEUSER-BUSCH COMPANIES, LLC; Defendant, Case No.
13-cv-23656-JJO (S.D. Fla.).
ANHEUSER-BUSCH: Judge Approves $20MM Beck Labeling Settlement
-------------------------------------------------------------
Celia Ampel, writing for Daily Business Review, reports that U.S.
Magistrate Judge John J. O'Sullivan on Oct. 20 approved an
agreement by Anheuser-Busch Cos. to pay Beck's beer drinkers about
$20 million to settle a class action lawsuit alleging the
packaging misled consumers into thinking Beck's was imported.
About 1.7 million households are part of the class, meaning the
settlement value is expected to range from about $20.5 million to
$28.9 million, according to the class counsel, Kozyak Tropin &
Throckmorton in Coral Gables.
Consumers who provide proof of purchase can receive up to $50 at a
rate of 50 cents per six pack under the settlement. Customers
without receipts can receive up to $12 by submitting an online
claim.
The false advertising lawsuit alleged the company generated more
sales by leading consumers to believe they were buying a beer
imported from Germany when Beck's is actually brewed in St. Louis.
Although Beck's is brewed in several countries including Germany,
its U.S. customers generally receive a U.S.-brewed beer, a company
representative said.
The packaging for Beck's Beer stated it is "German quality" and
"Originated in Bremen, Germany," according to the 2013 complaint.
"We believe our labeling, packaging and marketing of Beck's have
always been truthful, transparent and in compliance with all legal
requirements," Jorn Socquet, Anheuser-Busch vice president of
marketing, said in a June statement.
Anheuser-Busch agreed as part of the settlement to prominently
feature the words "Product of USA" on its U.S.-brewed Beck's beer.
"The most important aspect of the case was making sure the
consuming public knows exactly what they're purchasing," said
plaintiffs lawyer Tucker Ronzetti of Kozyak Tropin & Throckmorton
in Coral Gables.
Judge O'Sullivan in Miami gave preliminary approval to the
settlement and class certification June 23. The settlement was
reached in mediation May 26 with Ronald B. Ravikoff of JAMS in
Miami.
Plaintiffs attorneys were Mr. Ronzetti, Adam Moskowitz, David Matz
and Tal Lifshitz of Kozyak Tropin; Howard Bushman and Lance Harke
of Harke Clasby & Bushman in Miami Shores; Robert Rodriguez of
Robert W. Rodriguez P.A. in Miami; and John Campbell of Campbell
Law in St. Louis.
Defense attorneys were Brandon Keel -- brandon.keel@skadden.com --
David Pehlke -- david.pehlke@skadden.com -- and Edward Crane of
Skadden, Arps, Slate, Meagher & Flom in Chicago and Stanley
Wakshlag of Kenny Nachwalter in Miami.
AUSTIN, TX: Jails People Who Can't Pay Fines, Class Suit Claims
---------------------------------------------------------------
Ryan Kocian, writing for Courthouse News Service, reported that
Austin, Texas is the latest city to face a federal class action
accusing it of reinstituting debtors' prisons by jailing people
who are too poor to pay fines for traffic tickets and petty
misdemeanors.
Such lawsuits have mushroomed in the past year, in the aftermath
of the protests of the white-on-black police killing of Michael
Brown in Ferguson, Mo. Ferguson and several neighboring cities
were accused of targeting black drivers for traffic stops, and
jailing them, and "debtors' prisons" lawsuits have sprouted all
over the United States. They typically challenge the
constitutionality of a local jurisdiction's practice of jailing
people who cannot afford to pay fines for petty offenses, and
attribute it in part to racial discrimination.
Such lawsuits have been filed against Georgia; New Orleans; San
Francisco ; Benton County, Wash.; Alexander City, Ala.; Douglas
County, (Omaha) Neb.; and Jennings, Mo., a neighbor of Ferguson.
Ferguson agreed to stop doing it after receiving a scorching
report from the Department of Justice.
In the Austin lawsuit, lead plaintiffs Valerie Gonzales and Maria
Salazar say Austin violated their rights to counsel, due process,
and equal protection.
Debtors' prisons "create a racially skewed, two-tiered system of
justice in which the poor receive harsher, longer punishments for
committing the same crimes as the rich, simply because they are
poor," according to the American Civil Liberties Union, which has
taken on such cases elsewhere.
Lead plaintiff Gonzales says the Austin Municipal Court jailed her
in August because she failed to pay traffic tickets accumulated
over nine years. Gonzales, who takes care of five disabled
children, was unemployed when she was arrested and living near the
federal poverty line.
Gonzales says she and her husband could not afford to pay the
tickets because of their modest income and the costs of feeding
and sheltering their family. She acknowledges she drove without a
license, and received tickets for it, but says the reason she
could not obtain a valid license was that she could not afford to
pay her traffic tickets.
Once she was arrested at the scene of a car accident due to
outstanding warrants for unpaid tickets.
"At the jail, the officers treated her as they would treat a
dangerous mentally ill person because she was crying as a result
of the car accident," the complaint states. "They handcuffed her,
stripped her naked, forced her to wear a mask over her face, and
locked her alone in an observation cell. After about thirty
minutes, one guard concluded that this harsh treatment was
unnecessary. Officers then allowed Ms. Gonzales to dress and took
her to a hospital to be checked for injuries from the car
accident. After Ms. Gonzales returned from the hospital, she
waited more than twelve hours to see an Austin Municipal Court
judge."
But the judge was not sympathetic, and told her she would go to
jail if she could not pay $1,000 that day. The judge did not ask
about her ability to pay or her ability to complete community
service, and did not consider reducing the debts, the complaint
states. Nor, she says, did the court inquire about her ability to
afford an attorney, take any steps to appoint one for her, or
obtain a waiver of her right to counsel. She says she had no
attorney when she entered pleas on her underlying traffic tickets.
Gonzales was in jail for two days before she was able to find pro
bono attorneys, who said she was being unconstitutionally
incarcerated and should be released. The court subsequently found
Gonzales to be indigent and agreed to release her with credit for
jail time and said she could work off the remaining debt by
completing 395 hours of community service.
But Gonzales says she had just started a new job, could not afford
to pay her court debt and that it would be a hardship for her to
perform the community service. The court told her if she did not
perform 18 hours of community service per month, a warrant would
be issued for her arrest.
Plaintiff Salazar tells a similar story to that of Gonzales.
Salazar, who is pregnant and the sole caretaker for six children,
has no job and receives public assistance for housing, food
stamps, and Medicaid. Her household income is near the federal
poverty line.
Salazar says she received a multitude of tickets from Austin over
an 11-year span. The tickets include six for speeding and eight
for offenses resulting from poverty. Like Gonzales, Salazar
repeatedly was ticketed for driving without a license and car
insurance, and says she was unable to obtain a license or
insurance unless she paid off all of her traffic tickets.
After police arrested her on outstanding warrants from her unpaid
tickets, the municipal court judge ordered her to perform 336
hours of community service to satisfy the debt. She says that is
difficult, due to her pregnancy and childcare responsibilities.
And, as in Gonzales's case, her judge did not ask about her
ability to pay, her ability to complete community service, her
ability to obtain counsel, nor did the judge appoint counsel or
her or consider reducing her debts. She too says she had no
attorney when she entered pleas on her traffic tickets, and that
she never waived her right to counsel.
Salazar says she is at risk of being jailed again.
The women say the Due Process and Equal Protection Clauses of the
Constitution protect people who are prosecuted for petty crimes,
including Class C misdemeanors.
"The Due Process Clause requires courts to hold an ability to pay
hearing before jailing a poor person for failure to pay a criminal
judgment debt. . . . The court must inquire into the reason the
person failed to pay and consider alternatives to jail, such as
tailoring the debt to the person's resources," the complaint
states.
The women say the Austin Municipal Court has a policy of fines and
fees that can cause the costs of a simple ticket to increase
dramatically. For instance, the court has a $25 per ticket fee
when a person wants to set up a payment plan. So a person with
three tickets would pay an extra $75 to gain more time to pay a
debt that he or she is too poor to pay up front.
The court also imposes a $50 "capias pro fine" for an arrest
warrant when a person misses a deadline to make payments or
perform community service. The women say the court has a policy of
demanding on-the-spot payments to clear such warrants.
The myriad fees and fines can cause a single traffic ticket for
failure to signal a lane change to rise from $66 to more than
$500, according to the complaint.
"Class C prosecutions in Austin Municipal Court trap people who
are too poor to pay in an endless cycle of accumulating debt. The
court burdens people who are too poor to pay with additional fees
and logistical hurdles at every step of the process, then arrests
people who cannot pay and denies them the procedural protections
required by the Constitution. For people who are too poor to pay,
the almost-inevitable result of this system is jail time," the
complaint states.
The women say the Austin Municipal Court collects more than $30
million from more than 150,000 Class C misdemeanor cases each
year. Many of the previous class actions claim that the cities use
traffic tickets to fund their courts, and target black drivers to
do it.
Data show that the Austin Municipal Court rarely waives debt in
these cases. Between September 2011 and September 2015, the court
waived debt just 11 times in more than 600,000 cases. During this
time, it jailed more than 2,000 people.
Gonzales's and Salazar's attorney Rebecca Bernhardt said the
Austin court has to make some changes.
"First, it needs to make fair and thorough determinations of
individuals' ability to pay, based upon their income, expenses,
and dependents.
"Second, the most important alternative to full payment of the
fine is reducing and/or waiving the overdue balance of fines and
fees for people too poor to pay.
"Third, it should make payment plans more accessible, by not
charging a fee for payment plans, and by tailoring payment
installments to ability to pay.
"Fourth, when assigning community service, the court must ensure
that the community service order is appropriate for the person and
that the person's economic circumstances that made fines
impossible to pay do not also make community service impossible to
perform.
"Finally, the court may also consider dramatically decreasing its
use of arrest warrants and regularly rescheduling missed hearings
when someone missing their initial appearance."
Bernhardt said the goal of the lawsuit is "to change the practices
of the City of Austin Municipal Court, to ensure that it follows
state and federal law and comports with the city's self-identified
goals of inclusion and equity."
A spokeswoman for Austin said: "The city is familiar with and has
reviewed the allegations in the lawsuit. We're prepared to defend
the city and are confident that Municipal Court officials and
staff are complying with all appropriate laws in this matter."
Gonzales and Salazar seek class certification, declaratory
judgment, an injunction and attorney's fees.
Bernhardt is with the Texas Fair Defense Project. She is assisted
by attorneys with the University of Texas Civil Rights Clinic, in
Austin, and attorneys with Susman Godfrey, in Houston.
AVID TECHNOLOGY: Class Action Settlement Approved
-------------------------------------------------
Avid Technology, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 10, 2015, for the
quarterly period ended June 30, 2015, that a class action
settlement has been approved and the case has been dismissed.
In March 2013 and May 2013, two purported securities class action
lawsuits were filed against the Company and certain of the
Company's former executive officers seeking unspecified damages in
the U.S. District Court for the District of Massachusetts. In July
2013, the two cases were consolidated and the original plaintiffs
agreed to act as co-plaintiffs in the consolidated case. In
September 2013, the co-plaintiffs filed a consolidated amended
complaint on behalf of those who purchased the Company's common
stock between October 23, 2008 and March 20, 2013. The
consolidated amended complaint, which named the Company, certain
of the Company's current and former executive officers and the
Company's former independent accounting firm as defendants,
purported to state a claim for violation of federal securities
laws as a result of alleged violations of the federal securities
laws pursuant to Sections 10(b) and 20(a) of the Exchange Act and
Rule 10b-5 promulgated thereunder.
In October 2013, the Company filed a motion to dismiss the
consolidated amended complaint, resulting in the dismissal of some
of the claims, and the dismissal of Mr. Hernandez and one of the
two plaintiffs from the case. On December 31, 2014, the parties
reached an agreement to settle the case. The agreement called for
Avid to cause payment of $2.5 million in respect of the
settlement. This payment was placed in escrow on or about January
27, 2015 by the Company's insurance carrier. The settlement was
approved and the case was dismissed on May 12, 2015.
AXA EQUITABLE: Motions in Limine in "Sivolella" & "Sanford" Nixed
-----------------------------------------------------------------
AXA Equitable Life Insurance Company said in its Form 10-Q Report
filed with the Securities and Exchange Commission on August 10,
2015, for the quarterly period ended June 30, 2015, that a court
has denied Plaintiffs' motions in limine and also denied both
parties motions for summary judgment in the Insurance Litigation.
A lawsuit was filed in the United States District Court of the
District of New Jersey in July 2011, entitled Mary Ann Sivolella
v. AXA Equitable Life Insurance Company and AXA Equitable Funds
Management Group, LLC ("FMG LLC") ("Sivolella Litigation"). The
lawsuit was filed derivatively on behalf of eight funds. The
lawsuit seeks recovery under Section 36(b) of the Investment
Company Act of 1940, as amended (the "Investment Company Act"),
for alleged excessive fees paid to AXA Equitable and FMG LLC for
investment management services.
In November 2011, plaintiff filed an amended complaint, adding
claims under Sections 47(b) and 26(f) of the Investment Company
Act, as well as a claim for unjust enrichment. In addition,
plaintiff purports to file the lawsuit as a class action in
addition to a derivative action. In the amended complaint,
plaintiff seeks recovery of the alleged overpayments, rescission
of the contracts, restitution of all fees paid, interest, costs,
attorney fees, fees for expert witnesses and reserves the right to
seek punitive damages where applicable.
In December 2011, AXA Equitable and FMG LLC filed a motion to
dismiss the amended complaint.
In May 2012, the Plaintiff voluntarily dismissed her claim under
Section 26(f) seeking restitution and rescission under Section
47(b) of the 1940 Act. In September 2012, the Court denied the
defendants' motion to dismiss as it related to the Section 36(b)
claim and granted the defendants' motion as it related to the
unjust enrichment claim.
In January 2013, a second lawsuit was filed in the United States
District Court of the District of New Jersey entitled Sanford et
al. v. FMG LLC ("Sanford Litigation"). The lawsuit was filed
derivatively on behalf of eight funds, four of which are named in
the Sivolella lawsuit as well as four new funds, and seeks
recovery under Section 36(b) of the Investment Company Act for
alleged excessive fees paid to FMG LLC for investment management
services. In light of the similarities of the allegations in the
Sivolella and Sanford Litigations, the parties and the Court
agreed to consolidate the two lawsuits.
In April 2013, the plaintiffs in the Sivolella and Sanford
Litigations amended the complaints to add additional claims under
Section 36(b) of the Investment Company Act for recovery of
alleged excessive fees paid to FMG LLC in its capacity as
administrator of EQ Advisors Trust. The Plaintiffs seek recovery
of the alleged overpayments, or alternatively, rescission of the
contract and restitution of the excessive fees paid, interest,
costs and fees.
In January 2015, defendants filed a motion for summary judgment as
well as various motions to strike certain of the Plaintiffs'
experts in the Sivolella and Sanford Litigations. Also in January
2015, two Plaintiffs in the Sanford Litigation filed a motion for
partial summary judgment relating to the EQ/Core Bond Index
Portfolio as well as motions in limine to bar admission of certain
documents and preclude the testimony of one of defendants'
experts.
In August 2015, the Court denied Plaintiffs' motions in limine and
also denied both parties motions for summary judgment.
AXA EQUITABLE: Court Denied Class Certification Motion in "Yale"
----------------------------------------------------------------
AXA Equitable Life Insurance Company said in its Form 10-Q Report
filed with the Securities and Exchange Commission on August 10,
2015, for the quarterly period ended June 30, 2015, that a court
has denied plaintiffs' motion for class certification as moot in
the case, Andrew Yale, on behalf of himself and all others
similarly situated v. AXA Life Insurance Company F/K/A AXA
Equitable Life Insurance Company.
In April 2014, a lawsuit was filed in the United States District
Court for the Southern District of New York, entitled Andrew Yale,
on behalf of himself and all others similarly situated v. AXA Life
Insurance Company F/K/A AXA Equitable Life Insurance Company. The
lawsuit is a putative class action on behalf of all persons and
entities that, between 2011 and March 11, 2014, directly or
indirectly, purchased, renewed or paid premiums on life insurance
policies issued by AXA Equitable (the "Policies"). The complaint
alleges that AXA Equitable did not disclose in its New York
statutory annual statements or elsewhere that the collateral for
certain reinsurance transactions with affiliated reinsurance
companies was supported by parental guarantees, an omission that
allegedly caused AXA Equitable to misrepresent its "financial
condition" and "legal reserve system." The lawsuit seeks recovery
under Section 4226 of the New York Insurance Law of all premiums
paid by the class for the Policies during the relevant period.
In June 2014, AXA Equitable filed a motion to dismiss the
complaint on procedural grounds, which was denied in October 2014.
In February 2015, plaintiffs substituted two new named plaintiffs
for the current named plaintiff, Mr. Yale, who had determined that
he could not serve as the named plaintiff and class representative
in the case.
In March 2015, AXA Equitable filed a motion to dismiss on
substantive grounds, whereupon the court permitted plaintiffs to
file an amended pleading, which they did in March 2015. In April
2015, AXA Equitable filed a motion to dismiss the amended
complaint. In April 2015, plaintiffs filed a motion for class
certification. In July 2015, the Court granted AXA Equitable's
motion to dismiss for lack of subject matter jurisdiction. As a
result of that decision, the Court also denied plaintiffs motion
for class certification as moot.
AXA EQUITABLE: Defending "Yarbrough" Class Action in S.D.N.Y.
-------------------------------------------------------------
AXA Equitable Life Insurance Company said in its Form 10-Q Report
filed with the Securities and Exchange Commission on August 10,
2015, for the quarterly period ended June 30, 2015, that in April
2015, the plaintiffs' law firm in the Andrew Yale lawsuit filed a
second action in the United States District Court for the Southern
District of New York on behalf of a putative class of variable
annuity holders with "Guaranteed Benefits Insurance Riders,"
entitled Calvin W. Yarbrough, on behalf of himself and all others
similarly situated v. AXA Equitable Life Insurance Company. The
new action covers the same class period, makes substantially the
same allegations, and seeks the same relief (return of all premium
paid by class members) as the first action on behalf of life
insurance policyholders. AXA Equitable has notified the court of
the decision in the first action and is requesting permission from
the court to file a motion to dismiss.
AXA EQUITABLE: NJ Court Remanded "Shuster" Class Action
-------------------------------------------------------
AXA Equitable Life Insurance Company said in its Form 10-Q Report
filed with the Securities and Exchange Commission on August 10,
2015, for the quarterly period ended June 30, 2015, that the New
Jersey federal district court remanded the action, Arlene Shuster,
on behalf of herself and all others similarly situated v. AXA
Equitable Life Insurance Company, to New Jersey state court.
In November 2014, a separate lawsuit entitled Arlene Shuster, on
behalf of herself and all others similarly situated v. AXA
Equitable Life Insurance Company was filed in the Superior Court
of New Jersey, Camden County ("New Jersey state court"). The
lawsuit is a putative class action on behalf of "all AXA
[Equitable] variable life insurance policyholders who allocated
funds from their Policy Accounts to investments in AXA's Separate
Accounts, which were subsequently subjected to volatility-
management strategy, and who suffered injury as a result thereof."
Plaintiff asserts that volatility management techniques were
implemented in certain variable investment funds offered to
plaintiff under her variable life insurance contract and that use
of volatility management in those funds "breached the terms of the
variable life insurance policies held by plaintiff and the Class."
The lawsuit seeks unspecified damages.
In December 2014, AXA Equitable filed a notice of removal to the
United States District Court for the District of New Jersey. In
January 2015, plaintiff filed a motion to remand the action to New
Jersey state court. In July 2015, the New Jersey federal district
court remanded the action to New Jersey state court.
BANK OF AMERICA: S.D.N.Y. Judge Approves $1.86BB Deal in CDS Suit
-----------------------------------------------------------------
Molly Willms, writing for Courthouse News Service, reported that a
federal judge for the Southern District of New York approved a
historic $1.86 billion settlement of claims that 12 banks colluded
to obfuscate the credit-default-swap market.
U.S. Judge Denise Cote's preliminary stamp of approval comes
nearly a full month after class counsel announced the massive deal
with Bank of America, Barclays, BNP Paribas, Citigroup, Credit
Suisse, Deutsche Bank, Goldman Sachs, HSBC, JPMorgan Chase, Morgan
Stanley, Royal Bank of Scotland and UBS.
Quinn Emanuel Urquhart & Sullivan and Pearson, Simon & Warshaw
represented 10 plaintiffs led by a Los Angeles retirement fund
that accused the banks of conspiring to prevent exchange trading
of credit default swaps "at secret meetings and through telephone
and email communications."
As further alleged, the banks agreed to work only with the single
clearinghouse they controlled and imposed rules to restrict
trading to their own benefit.
Investigations by the U.S. Justice Department and the European
Commission ensued when The New York Times blew the lid on the
secret meetings in 2010.
Cote rejected an attempt by the banks to dismiss the lawsuit last
year. Though the banks claimed that their behavior was "self-
interested conduct in reaction to the global financial crisis,"
Cote was skeptical.
"The financial crisis hardly explains the alleged secret meetings
and coordinated actions," she wrote.
Class members include people or companies that purchased CDS from
or sold CDS to any of the banks between Jan. 1, 2008, and Sept.
25, 2015, the signed settlement states.
In addition to the payout of more than $1.86 billion, the
International Swaps and Derivatives Association will create a new
licensing subcommittee to approve buy-and-sell firms, the notice
states.
Applicants who are denied must be allowed to modify their
application, and disputes will be handled by a third party.
Before the settlement is finalized, Judge Cote said her Manhattan
court will first hold a fairness hearing on April 15, 2016.
The settlement contains the disclaimer that the "defendants deny
they did anything wrong."
BANK OF AMERICA: Third Circuit Reverses Ruling in TCPA Suit
-----------------------------------------------------------
Charles Toutant, writing for Law.com, reports that in a
precedential ruling, the U.S. Court of Appeals for the Third
Circuit has eased the way for suits filed under the Telephone
Consumer Protection Act by someone other than the intended
recipient of a telemarketing call.
Reversing a U.S. District Court for the District of New Jersey
ruling, the appeals court said the roommate of a woman to whom a
prerecorded Bank of America marketing call about credit cards was
directed may file suit under the TCPA.
In Leyse v. Bank of America National Association, the Third
Circuit said a regular user of a phone line who occupies the
residence being called has the sort of privacy interest that
Congress intended to protect when it enacted the TCPA. But a
house guest or visitor who picks up the phone would fall outside
the protection of the act, according to the Oct. 14 ruling by
Judge Julio Fuentes, who was joined by Judges Dolores Sloviter and
Jane Roth.
The appeals court reversed a ruling by U.S. District Judge Susan
Wigenton, which dismissed the case upon finding that plaintiff
Mark Leyse lacked standing to sue because the bank intended the
call his roommate, Genevieve Dutriaux, the subscriber for the
phone line, who is not a party in the case.
The appeals court found that Mr. Leyse fell under the protection
of the act based on comments of the act's sponsor in a legislative
hearing, who called automated telemarketing calls "the scourge of
modern civilization" for their ability to disrupt dinner, force
the sick and elderly out of bed and "hound us until we want to rip
the telephone right out of the wall."
Finding that the purpose of the act was to prevent harassment of
the occupants of private residences, the appeals court said it is
clear that "the act's zone of interests encompasses more than just
the intended recipients of prerecorded telephone calls. It is the
actual recipient, intended or not, who suffers the nuisance and
invasion of privacy."
The record does not show whether Mr. Leyse, Ms. Dutriaux or an
answering machine picked up the Bank of America call, which was a
recorded message.
The court said the TCPA's protection applies only to plaintiffs
whose interests "fall within the zone of interests protected by
the law invoked."
Some individuals' living arrangements may pose difficult questions
under the zone-of-interests test, but Mr. Leyse's is not a close
case, the appeals court said.
"The complaint alleges that Bank of America placed a call 'to
Leyse's residential telephone line.' At the motion to dismiss
stage, we are required to treat this allegation as true, and it
places Leyse squarely within the zone of interests," the appeals
court said.
Todd Bank of Kew Gardens, New York, the attorney who represented
Mr. Leyse, called the ruling a clarification of the standing
issue. Under the district court ruling, a TCPA plaintiff who was
not the intended recipient of a call would not have standing, but
sometimes it's unclear who a telemarketing call is intended for,
Bank said. The Third Circuit ruling simplifies the standing issue
for prospective litigants and their lawyers, said Bank.
Under the ruling, "if there's liability, generally speaking,
someone is going to have standing," Mr. Bank said.
The Third Circuit's ruling falls in line with decisions from the
Seventh and Eleventh circuits by granting standing to bring TCPA
suits to members of the household of the intended recipient, said
Bank. District courts around the country have taken varying
positions on who has standing to bring a TCPA suit, he said.
Joseph Palmore of Morrison & Foerster in Washington, D.C., who
represented Bank of America, declined to comment on the ruling.
BANK OF NOVA SCOTIA: Inflates Treasury Prices, Illinois Suit Says
-----------------------------------------------------------------
The City Of Omaha Police and Fire Retirement System and Thomas E.
Kalaway, on behalf of themselves and all others similarly
situated, Plaintiffs, vs. Bank Of Nova Scotia, New York Agency;
BMO Capital Markets Corp.; BNP Paribas Securities Corp.; Barclays
Capital Inc.; Cantor Fitzgerald & Co.; Citigroup Global Markets
Inc.; Credit Suisse Securities (USA) LLC; Daiwa Capital Markets
America Inc.; Deutsche Bank Securities Inc.; Goldman, Sachs & Co.;
HSBC Securities (USA) Inc.; Jefferies LLC; J.P. Morgan Securities
LLC; Merrill Lynch, Pierce, Fenner & Smith Incorporated; Mizuho
Securities USA Inc.; Morgan Stanley & Co. LLC; Nomura Securities
International, Inc.; RBC Capital Markets LLC; RBS Securities Inc.;
SG Americas Securities, LLC; TD Securities (USA) LLC; UBS
Securities LLC; and 3Red Trading LLC, Defendants, Case No. 1:15-
cv-08890 (N.D. Ill., October 6, 2015), seeks to recover monetary
damages under the Sherman Act, Clayton Act, and Commodity Exchange
Act.
According to the Complaint, the Primary Dealer Defendants and HFTs
worked together to spoof the market, entering orders with the
intention of canceling them before they were executed. Spoofing
consists of entering large orders outside the current bids with
the intent to change the reported price to other market
participants, i.e., move the market higher where the systematic
trader has resting offers. These spoofed bids are cancelled within
fractions of a second before they can be executed, earning the
"spoofer" hefty profits and tricking other participants in the
market into buying and selling at artificially high or low prices.
During the Class Period, Plaintiffs transacted in Treasury
Instruments at artificially maintained, non-competitive prices
established by Defendants' actions.
The proposed class is defined as: "All persons or entities who,
between January 1, 2007 and June 8, 2015 transacted in Treasury
Notes, Treasury Bonds, or Exchange Treasury Instruments, where
such persons or entities were either domiciled in the United
States or its territories or, if domiciled outside the United
States or its territories, transacted in the United States or its
territories. Specifically excluded from the Class are Defendants
and their co-conspirators; the officers, directors, or
employees of any Defendant or co-conspirator; any entity in which
any Defendant or co-conspirator have a controlling interest; any
affiliate, legal representative, heir, or assign of any Defendant
or co-conspirator and any person acting on their behalf. Also
excluded from the Class are the United States Government, any
judicial officer presiding over this action and the members of
his/her immediate family and judicial staff, and any juror
assigned to this action."
Defendant Bank of Nova Scotia, New York Agency is a New York based
branch of a Canadian financial services and banking company with
its principal place of business at 250 Vesey Street, New York, New
York 10281. BNS is a registered primary dealer for Treasury
securities with the FRBNY.
Defendant BMO Capital Markets Corp. is a New York-based financial
services and banking company with its principal place of business
at 3 Times Square, 28th Floor, New York, New York 10036. BMO is a
registered primary dealer for Treasury securities with the FRBNY.
Defendant BNP Paribas Securities Corp. is a New York-based
financial services company with its principal place of business at
787 Seventh Avenue, New York, New York 10019. BNPP operates as a
subsidiary of BNP Paribas North America Inc. BNPP is a registered
primary dealer for Treasury securities with the FRBNY.
Defendant Barclays Capital Inc. is a New York-based financial
services company with its principal place of business at 745
Seventh Avenue, New York, New York 10019. Barclays operates as a
subsidiary of Barclays Group US, Inc. Barclays is a registered
primary dealer for Treasury securities with the FRBNY.
Defendant Cantor Fitzgerald & Co. is a New York-based financial
services company with its principal place of business at 499 Park
Avenue, New York, New York 10022. Cantor operates as a subsidiary
of Cantor Fitzgerald LP. Cantor is a registered primary
dealer for Treasury securities with the FRBNY.
Defendant Citigroup Global Markets Inc. is a New York-based
financial services company with its principal place of business at
390-388 Greenwich Street, New York, New York 10013. Citigroup
operates as a subsidiary of Citigroup Financial Products
Inc. Citigroup is a registered primary dealer for Treasury
securities with the FRBNY.
Defendant Credit Suisse Securities (USA) LLC is a New York-based
financial services company with its principal place of business at
11 Madison Avenue, 24th Floor, New York, New York 10010. Credit
Suisse operates as a subsidiary of Credit Suisse (USA), Inc.
Credit Suisse is a registered primary dealer for Treasury
securities with the FRBNY.
Defendant Daiwa Capital Markets America Inc. is a New York-based
financial services company with its principal place of business at
Financial Square, 32 Old Slip, New York, New York 10005. Daiwa
operates as a subsidiary of Daiwa Capital Markets America Holdings
Inc. Daiwa is a registered primary dealer for Treasury securities
with the FRBNY.
Defendant Deutsche Bank Securities Inc. is a New York-based
investment bank with its principal place of business at 60 Wall
Street, 4th Floor, New York, New York 10005. Deutsche Bank
operates as a subsidiary of DB U.S. Financial Markets Holding
Corporation. Deutsche Bank is a registered primary dealer for
Treasury securities with the FRBNY.
Defendant Goldman, Sachs & Co. is a New York-based financial
services company with its principal place of business at 200 West
Street, 29th Floor, New York, New York 10282. Goldman operates as
a subsidiary of The Goldman Sachs Group, Inc. Goldman is a
registered primary dealer for Treasury securities with the FRBNY.
Defendant HSBC Securities (USA) Inc. is a New York-based
investment banking firm with its principal place of business at
HSBC Tower, 452 Fifth Avenue, New York, New York 10018. HSBC
operates as a subsidiary of HSBC Investments (North America) Inc.
HSBC is a registered primary dealer for Treasury securities with
the FRBNY.
Defendant Jefferies LLC is a New York-based financial services
company with its principal place of business at 520 Madison
Avenue, 10th Floor, New York, New York 10022. Jefferies operates
as a subsidiary of Jefferies Group LLC. Jefferies is a registered
primary dealer for Treasury securities with the FRBNY.
Defendant J.P. Morgan Securities LLC is a New York-based
financial services company with its principal place of business at
277 Park Avenue, New York, New York 10172. JPMorgan operates as a
subsidiary of JPMorgan Chase & Co. JPMorgan is a registered
primary dealer for Treasury securities with the FRBNY.
Defendant Merrill Lynch, Pierce, Fenner & Smith Incorporated is a
New York-based financial services company with its principal place
of business at One Bryant Park, New York, New York 10036. Merrill
Lynch operates as a subsidiary of BAC North America Holding
Company. Merrill Lynch is a registered primary dealer for Treasury
securities with the FRBNY.
Defendant Mizuho Securities USA Inc. is a New York-based
financial services company with its principal place of business at
320 Park Avenue, 12th Floor, New York, New York 10022. Mizuho
operates as a subsidiary of Mizuho Securities Co., Ltd.
Mizuho is a registered primary dealer for Treasury securities with
the FRBNY.
Defendant Morgan Stanley & Co. LLC is a New York-based
financial services company with its principal place of business at
1585 Broadway, New York, New York 10036. Morgan Stanley operates
as a subsidiary of Morgan Stanley Domestic Holdings, Inc. Morgan
Stanley is a registered primary dealer for Treasury securities
with the FRBNY.
Defendant Nomura Securities International, Inc. is a New York-
based financial services company with its principal place of
business at 309 West 49th Street, Worldwide Plaza, New York, New
York 10019. Nomura operates as a subsidiary of Nomura
Holding America, Inc. Nomura is a registered primary dealer for
Treasury securities with the FRBNY.
Defendant RBC Capital Markets LLC is a Canadian financial services
company with its principal place of business at Royal Bank Plaza,
200 Bay Street, Toronto, Ontario, Canada ON M5J 2W7. RBC also
maintains offices at 3 World Financial Center, 200
Vesey Street, 8th Floor, New York, New York 10281 and at One
Liberty Plaza, 165 Broadway, New York, New York 10006. RBC
operates as a subsidiary of RBC USA Holdco Corporation. RBC is a
registered primary dealer for Treasury securities with the FRBNY.
Defendant RBS Securities Inc. is a Connecticut-based financial
services company with its principal place of business at 600
Washington Boulevard, Stamford, Connecticut 06901. RBS operates as
a subsidiary of RBS Holdings USA Inc. RBS is a registered primary
dealer for Treasury securities with the FRBNY.
Defendant SG Americas Securities, LLC is a New York-based
financial services company with its principal place of business at
1221 Avenue of the Americas, 6th Floor, New York, New York 10020.
SG operates as a subsidiary of SG Americas Securities Holdings,
LLC, which itself is a subsidiary of Societe Generale Group. SG is
a registered primary dealer for Treasury securities with the
FRBNY.
Defendant TD Securities (USA) LLC is a New York-based financial
services company with its principal place of business at 31 West
52nd Street, New York, New York 10019. TD Securities operates as a
subsidiary of TD Holdings II Inc. TD Securities is a registered
primary dealer for Treasury securities with the FRBNY.
Defendant UBS Securities LLC is a Connecticut-based financial
services company with its principal place of business at 677
Washington Boulevard, Stamford, Connecticut 06901. UBS operates as
a subsidiary of UBS Americas Inc. UBS is a registered primary
dealer for Treasury securities with the FRBNY.
Defendant 3Red Trading LLC is a Chicago-based financial services
company with its principal place of business at 440 S. LaSalle,
Chicago, Illinois 60605. 3Red is a high-frequency trading firm
that, trades treasury options futures and cash securities, along
with other financial products.
The Plaintiffs are represented by:
George A. Zelcs, Esq.
Robert E. Litan, Esq.
KOREIN TILLERY, LLC
205 North Michigan, Suite 1950
Chicago, IL 60601
Telephone: (312) 641-9750
Facsimile: (312) 641-9751
Email: gzelcs@koreintillery.com
rlitan@koreintillery.com
- and -
Steven M. Tillery
KOREIN TILLERY, LLC
505 North 7th Street, Suite 3600
St. Louis, MO 63101
Telephone: (314) 241-4844
Facsimile: (314) 241-3525
Email: stillery@koreintillery.com
- and -
Christopher M. Burke, Esq.
Walter W. Nos, Esq.
Kristen M. Anderson, Esq.
Kate LV, Esq.
SCOTT+SCOTT, ATTORNEYS AT LAW, LLP
707 Broadway, Suite 1000
San Diego, CA 92101
Telephone: (619) 233-4565
Facsimile: (619) 233-0508
Email: cburke@scott-scott.com
wnoss@scott-scott.com
kanderson@scott-scott.com
klv@scott-scott.com
- and -
Donald A. Broggi, Esq.
Thomas K. Boardman, Esq.
SCOTT+SCOTT, ATTORNEYS AT LAW, LLP
The Chrysler Building
405 Lexington Avenue, 40th Floor
New York, NY 10174
Telephone: (212) 223-6444
Facsimile: (212) 223-6334
Email: dbroggi@scott-scott.com
tboardman@scott-scott.com
BANK OF NOVA SCOTIA: Inflates Treasury Prices, Rock Capital Says
----------------------------------------------------------------
Rock Capital Markets, LLC, on behalf of itself and all others
similarly situated, Plaintiff, v. Bank Of Nova Scotia, New York
Agency; BMO Capital Markets Corp.; BNP Paribas Securities Corp.;
Barclays Capital Inc.; Cantor Fitzgerald & Co.; Citigroup Global
Markets Inc.; Commerz Markets LLC; Countrywide Securities Corp.;
Credit Suisse Securities (USA) LLC; Daiwa Capital Markets
America Inc.; Deutsche Bank Securities Inc.; Goldman, Sachs & Co.;
HSBC Securities (USA) Inc.; Jefferies LLC; J.P. Morgan Securities
LLC; Merrill Lynch, Pierce, Fenner & Smith Incorporated; Mizuho
Securities USA Inc.; Morgan Stanley & Co. LLC; Nomura Securities
International, Inc.; Rbc Capital Markets, LLC; RBS Securities
Inc.; SG Americas Securities, LLC; TD Securities (USA) LLC; and
UBS Securities LLC, Defendants, Case No. 15-cv-08859 (N.D. Ill.,
October 6, 2015), seeks to recover damages under the Commodity
Exchange Act, Sherman Act, and the Clayton Act.
This action class arises out of the allegation that Defendants
manipulated the market for debt instruments issued by the United
States Department of the Treasury and exchange-traded futures and
options contracts which are tied to Treasury Instruments.
Accordingly, Plaintiff, on behalf of himself and all those
similarly situated who transacted in Exchange-Traded Treasury
Contracts, brings this class action to recover for itself and
those similarly situated all damages caused by the conduct alleged
herein.
The proposed class is defined as: "All persons or entities who
transacted in futures or options on United States Treasury
instruments that were traded on an exchange during the period
January 1, 2007 through the Present. Excluded from the Class are
Defendants and their employees, affiliates, parents, subsidiaries,
and co-conspirators, whether or not named in this Complaint, and
the United States Government."
Defendant Bank of Nova Scotia, New York Agency is a branch of a
Canadian financial services and banking company with its principal
place of business at 250 Vesey Street, New York, New York 10080.
BNS is a registered primary dealer for Treasury Instruments with
the Federal Reserve Bank of New York. Upon information and belief,
BNS, either on its own or through an affiliate, actively traded
Exchange-Traded Treasury Contracts during the Class Period.
Defendant Barclays Capital Inc. is a financial services company
with its principal place of business at 745 Seventh Avenue, New
York, New York 10019. Barclays operates as a subsidiary of
Barclays Group US, Inc. Barclays is a registered primary dealer
for Treasury Instruments with the FRBNY. Barclays, either on its
own or through an affiliate, actively traded Exchange-Traded
Treasury Contracts during the Class Period.
Defendant BMO Capital Markets Corp. is a financial services and
banking company with its principal place of business at 3 Times
Square, 28th Floor, New York, New York 10036. BMO operates as a
subsidiary of BMO Financial Corp. BMO is a registered primary
dealer for Treasury Instruments with the FRBNY. BMO, either on its
own or through an affiliate, actively traded Exchange-Traded
Treasury Contracts during the Class Period.
Defendant BNP Paribas Securities Corp. is a financial services
company with its principal place of business at 787 Seventh
Avenue, New York, New York 10019. BNPP operates as a subsidiary of
BNP Paribas North America Inc. BNPP is a registered primary dealer
for Treasury Instruments with the FRBNY. BNP, either on its own or
through an affiliate, actively traded Exchange-Traded Treasury
Contracts during the Class Period.
Defendant Cantor Fitzgerald & Co. is a financial services company
with its principal place of business at 499 Park Avenue, New York,
New York 10022. Cantor operates as a subsidiary of Cantor
Fitzgerald LP. Cantor is a registered primary dealer for
Treasury Instruments with the FRBNY. Cantor, either on its own or
through an affiliate, actively traded Exchange-Traded Treasury
Contracts during the Class Period.
Defendant Citigroup Global Markets Inc. is a financial services
company with its principal place of business at 390 Greenwich
Street, New York, New York 10013. Citigroup operates as a
subsidiary of Citigroup Financial Products Inc. Citigroup is a
registered primary dealer for Treasury Instruments with the FRBNY.
Citigroup, either on its own or through an affiliate, actively
traded Exchange-Traded Treasury Contracts during the Class Period.
Defendant Commerz Markets LLC, formerly known as Dresdner
Kleinwort Securities, LLC, is a financial services company
incorporated in Delaware with its principal place of business in
New York, New York. Commerz, under its former name, was a
registered primary dealer for Treasury Instruments with the FRBNY
during the Class Period. Commerz, either on its own or through an
affiliate, actively traded Exchange-Traded Treasury Contracts
during the Class Period.
Defendant Countrywide Securities Corp. is a financial services
company with its principal place of business in Calabasas,
California. Countrywide is now part of Bank of America.
Countrywide was a registered primary dealer for Treasury
Instruments with the FRBNY during the Class Period. Countrywide,
either on its own or through an affiliate, actively traded
Exchange-Traded Treasury Contracts during the Class Period.
Defendant Credit Suisse Securities (USA) LLC is a financial
services company with its principal place of business at 11
Madison Avenue, 24th Floor, New York, New York 10010. Credit
Suisse operates as a subsidiary of Credit Suisse (USA), Inc.
Credit Suisse is a registered primary dealer for Treasury
Instruments with the FRBNY. Credit Suisse, either on its own or
through an affiliate, actively traded Exchange-Traded Treasury
Contracts during the Class Period.
Defendant Daiwa Capital Markets America Inc. is a financial
services company with its principal place of business at Financial
Square, 32 Old Slip, New York, New York 10005. Daiwa operates as a
subsidiary of Daiwa Capital Markets America Holdings Inc. Daiwa is
a registered primary dealer for Treasury Instruments with the
FRBNY. Daiwa, either on its own or through an affiliate, actively
traded Exchange-Traded Treasury Contracts during the Class Period.
Defendant Deutsche Bank Securities Inc. is an investment bank with
its principal place of business at 60 Wall Street, 4th Floor, New
York, New York 10005. Deutsche Bank operates as a subsidiary of DB
U.S. Financial Markets Holding Corporation. Deutsche Bank is a
registered primary dealer for Treasury Instruments with the FRBNY.
Deutsche Bank, either on its own or through an affiliate, actively
traded Exchange-Traded Treasury Contracts during the Class Period.
Defendant Goldman, Sachs & Co. is a financial services company
with its principal place of business at 200 West Street, 29th
Floor, New York, New York 10282. Goldman operates as a subsidiary
of The Goldman Sachs Group, Inc. Goldman is a registered primary
dealer for Treasury Instruments with the FRBNY. Goldman, either on
its own or through an affiliate, actively traded Exchange-Traded
Treasury Contracts during the Class Period.
Defendant HSBC Securities (USA) Inc. is an investment banking firm
with its principal place of business at HSBC Tower, 452 Fifth
Avenue, New York, New York 10018. HSBC operates as a subsidiary of
HSBC Investments (North America) Inc. HSBC is a registered primary
dealer for Treasury Instruments with the FRBNY. HSBC, either on
its own or through an affiliate, actively traded Exchange-Traded
Treasury Contracts during the Class Period.
Defendant Jefferies LLC is a financial services company with its
principal place of business at 520 Madison Avenue, 10th Floor, New
York, New York 10022. Jefferies operates as a subsidiary of
Jefferies Group LLC. Jefferies is a registered primary dealer
for Treasury Instruments with the FRBNY. Jefferies, either on its
own or through an affiliate, actively traded Exchange-Traded
Treasury Contracts during the Class Period.
Defendant J.P. Morgan Securities LLC is a financial services
company with its principal place of business at 277 Park Avenue,
New York, New York 10172. JPMorgan operates as a subsidiary of
JPMorgan Chase & Co. JPMorgan is a registered primary dealer for
Treasury Instruments with the FRBNY. JPMorgan, either on its own
or through an affiliate, actively traded Exchange-Traded Treasury
Contracts during the Class Period.
Defendant Merrill Lynch, Pierce, Fenner & Smith Incorporated is a
financial services company with its principal place of business at
One Bryant Park, New York, New York 10036. Merrill Lynch operates
as a subsidiary of BAC North America Holding Company. Merrill
Lynch is a registered primary dealer for Treasury Instruments with
the FRBNY. Merrill Lynch, either on its own or through an
affiliate, actively traded Exchange-Traded Treasury Contracts
during the Class Period.
Defendant Mizuho Securities USA Inc. is a financial services
company with its principal place of business at 320 Park Avenue,
12th Floor, New York, New York 10022. Mizuho operates as a
subsidiary of Mizuho Securities Co., Ltd. Mizuho is a registered
primary dealer for Treasury Instruments with the FRBNY. Mizuho,
either on its own or through an affiliate, actively traded
Exchange-Traded Treasury Contracts during the Class Period.
Defendant Morgan Stanley & Co. LLC is a financial services
company with its principal place of business at 1585 Broadway, New
York, New York 10036. Morgan Stanley operates as a subsidiary of
Morgan Stanley Domestic Holdings, Inc. Morgan Stanley is a
registered primary dealer for Treasury Instruments with the FRBNY.
Morgan Stanley, either on its own or through an affiliate,
actively traded Exchange-Traded Treasury Contracts during the
Class Period.
Defendant Nomura Securities International, Inc. is a financial
services company with its principal place of business at 309 West
49th Street, Worldwide Plaza, New York, New York 10019. Nomura
operates as a subsidiary of Nomura Holding America, Inc. Nomura is
a registered primary dealer for Treasury Instruments with the
FRBNY. Nomura, either on its own or through an affiliate, actively
traded Exchange-Traded Treasury Contracts during the Class Period.
Defendant RBC Capital Markets, LLC is a financial services company
with its principal place of business at Royal Bank Plaza, 200 Bay
Street, Toronto, Ontario, Canada ON M5J 2W7. RBC also maintains
offices at 3 World Financial Center, 200 Vesey Street, 8th Floor,
New York, New York 10281 and at One Liberty Plaza, 165 Broadway,
New York, New York 10006. RBC operates as a subsidiary of RBC USA
Holdco Corporation. RBC is a registered primary dealer for
Treasury Instruments with the FRBNY. Upon information and
belief, RBC, either on its own or through an affiliate, actively
traded Exchange-Traded Treasury Contracts during the Class Period.
Defendant RBS Securities Inc. is a financial services company with
its principal place of business at 600 Washington Boulevard,
Stamford, Connecticut 06901. RBS operates as a subsidiary of RBS
Holdings USA Inc. RBS is a registered primary dealer for Treasury
Instruments with the FRBNY. RBS, either on its own or through an
affiliate, actively traded Exchange-Traded Treasury Contracts
during the Class Period.
Defendant SG Americas Securities, LLC is a financial services
company with its principal place of business at 1221 Avenue of the
Americas, 6th Floor, New York, New York 10020. SG operates as a
subsidiary of SG Americas Securities Holdings, LLC, which itself
is a subsidiary of Societe Generale Group. SG is a registered
primary dealer for Treasury Instruments with the FRBNY. SG,
either on its own or through an affiliate, actively traded
Exchange-Traded Treasury Contracts during the Class Period.
Defendant TD Securities (USA) LLC is a financial services
company with its principal place of business at 31 West 52nd
Street, New York, New York 10019. TD Securities operates as a
subsidiary of TD Holdings II Inc. TD Securities is a registered
primary dealer for Treasury Instruments with the FRBNY. TD, either
on its own or through an affiliate, actively traded Exchange-
Traded Treasury Contracts during the Class Period.
Defendant UBS Securities LLC is a financial services company with
its principal place of business at 677 Washington Boulevard,
Stamford, Connecticut 06901. UBS operates as a subsidiary of UBS
Americas Inc. UBS is a registered primary dealer for Treasury
Instruments with the FRBNY. UBS, either on its own or through an
affiliate, actively traded Exchange-Traded Treasury Contracts
during the Class Period.
The Plaintiff is represented by:
Jennifer W. Sprengel, Esq.
Anthony Francis Fata, Esq.
Daniel O. Herrera, Esq.
CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP
150 S. Wacker Dr., Suite 3000
Chicago, IL 60606
Tel: (312) 782-4880
Fax: (312) 782-4485
Email: afata@caffertyclobes.com
BARCLAYS BANK: Faces "Brang" Suit Over TCPA Violations
------------------------------------------------------
Michael Brang, individually and on behalf of all others similarly
situated, Plaintiff, vs. Barclays Bank PLC, and DOES 1 through 10,
inclusive, and each of them, Defendants, Case No. 2:15-cv-07831
(C.D. Cal., October 6, 2015), seeks to recover damages and any
other available legal or equitable remedies under the Telephone
Consumer Protection Act.
According to the Complaint, Barclays Bank contacted the Plaintiff
on the Plaintiff's cellular telephone in violation of the
Telephone Consumer Protection Act, thereby invading Plaintiff's
privacy.
The proposed class is define as: "All persons within the United
States who received any telephone call/s from Defendant or its
agent/s and/or employee/s to said person's cellular telephone
made through the use of any automatic telephone dialing system or
with an artificial or prerecorded voice within the four years
prior to the filling of the Complaint."
The Plaintiff is represented by:
Todd M. Friedman, Esq.
Arvin Ratanavongse, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
324 S. Beverly Drive, Suite 725
Beverly Hills, CA 90212
Phone: 877-206-4741
Fax: 866-633-0228
Email: tfriedman@attorneysforconsumers.com
aratanavongse@toddflaw.com
BILL COSBY: Faces Sexual Abuse Case by Renita Hill
--------------------------------------------------
Max Mitchell, writing for The Legal Intelligencer, reports that a
Pittsburgh woman has filed suit against Bill Cosby, claiming the
comedian drugged and sexually abused her beginning when she was a
teenager.
Renita Hill filed suit against Cosby in the Allegheny County Court
of Common Pleas on Oct. 14, alleging that, between 1983 and 1987,
he repeatedly drugged Hill and sexually assaulted her.
Ms. Hill had been an aspiring actress and model, according to the
complaint, and the assaults began when she was 16 years old.
Ms. Hill asserted claims of defamation, defamation per se, false
light and intentional infliction of emotional distress for
statements Mr. Cosby and his attorneys made saying that her
allegations against him were absurd.
According to the complaint, Ms. Hill had given an interview about
the alleged abuse in November 2014, and Mr. Cosby's attorney
responded with a denial statement saying the various accusations
against Cosby by numerous women "escalated far past the point of
absurdity."
"The statements were made and broadcast with the intent to paint
Renita; and the other women who had come public with allegations
and accusations of sexual abuse, as liars," the complaint said.
"Said statements explicitly provide that the women's stories are
'unsubstantiated,' 'fantastical,' and 'absurd,' among other
derogatory descriptions. The statements also imply that the women
were merely coming forth with the abuse stories in order to extort
money from Cosby."
According to the complaint, Mr. Cosby met Ms. Hill while in the
process of finding a co-host for an episode of the children's
educational television program called "Picture Pages" that
Mr. Cosby hosted. The complaint noted the show was produced by
Walt Disney Entertainment.
Mr. Cosby, the complaint said, portrayed himself as a mentor, and
offered to pay for her college education at both Temple University
and Spelman College in Atlanta, which she eventually attended.
The complaint said that, under the guise of mentoring Ms. Hill,
Cosby requested she meet him at various locations where he was
performing. The complaint said that, generally, Mr. Cosby would
summon Ms. Hill to his room after he was done performing, and then
he would hand Ms. Hill a glass with "some form of liquid in it."
He would then instruct Hill to drink the beverage, the complaint
said.
"On the majority of these occasions, upon imbibing the drink,
Renita would lose consciousness and wake up in her room the next
day, oftentimes nude, disheveled, confused and disoriented," the
complaint said.
According to the complaint, the first time this pattern occurred
was in Atlantic City, New Jersey. Ms. Hill assumed she had
consumed too much alcohol, but she soon realized that she was
being assaulted during these occasions, the complaint said.
After the first few occasions, Ms. Hill told Mr. Cosby she did not
want to drink the drinks he made for her, but Mr. Cosby told her
that if she did not drink the beverages, she would no longer be
allowed to attend the trips with him and his mentoring would end.
According to the complaint, Ms. Hill said she did not fully lose
consciousness during one occasion, and remembered Cosby kissing
her, and touching her breasts and vagina.
"The aforementioned pattern happened numerous times over the
course of several years, starting when Renita was a minor and
continuing until the completion of her second year at Spelman,"
the complaint said.
Ms. Hill remained silent about the alleged abuse for more than 20
years, the complaint said. However, after Andrea Constand came
forward in 2005 about similar alleged abuse, and then other women
began coming forward as well, Hill decided to come forward with
her story.
On Nov. 20, Ms. Hill gave an interview on a local Pittsburgh news
channel in which she discussed the alleged abuse. The following
day, Mr. Cosby's attorney issued a statement saying the escalating
allegations were absurd, the complaint said. The complaint also
noted statements that Mr. Cosby and his wife, Camille Cosby, made
indicating that Ms. Hill was lying.
Ms. Hill's alleged damages include mental anguish, depression,
anxiety, humiliation and loss of enjoyment of life.
According to Ms. Hill's attorney, George M. Kontos of Kontos and
Mengine Law Group, the case is about a person in a position of
authority using that authority to take advantage of someone young
and vulnerable.
"We're looking forward to having our day in court, and we feel
that, when the jury hears all the evidence, Renita will be
vindicated and Bill Cosby will finally be held accountable for his
actions," Mr. Kontos said.
Patrick J. O'Connor of Cozen O'Connor, an attorney for Cosby, did
not return a call for comment.
BILL COSBY: Taps Quinn Partner to Defend Sex Abuse Claims
---------------------------------------------------------
Patience Haggin, writing for The Recorder, reports that in what
may be a sign of the legal difficulties surrounding comedian Bill
Cosby, he has brought in a former prosecutor and partner at Quinn
Emanuel Urquhart & Sullivan to take over his defense in one of
several civil sexual assault cases he faces. Partner Christopher
Tayback is taking over for "attack dog to the stars" Martin Singer
of L.A.'s Lavely & Singer.
Mr. Tayback will defend Cosby, 78, against civil charges relating
to an allegation that he sexually molested then-15-year-old
Judy Huth at the Playboy Mansion in 1974. More than 50 women have
accused the actor of molestation or abuse, and at least six suits
are pending in connection with these allegations.
Mr. Tayback, a former assistant U.S. attorney and Los Angeles
County prosecutor, has served on Quinn Emanuel's team enforcing
the Academy of Motion Picture Arts and Sciences' copyright to its
gold Oscar statuettes. His father, actor Vic Tayback, was best
known as Mel in the TV series "Alice" from the 1970s and 1980s.
Mr. Singer, a well-known attorney to the stars, told The Los
Angeles Times he could not explain his removal from the case,
citing attorney-client privilege. He said he agreed to the
substitution and was "happy to assist in the transition."
The move comes less than two weeks after Cosby's deposition in
Ms. Huth's suit, and Ms. Huth's attorney, Gloria Allred of Allred,
Maroko & Goldberg, has announced plans to seek a second
deposition.
Ms. Allred represents 26 women who allege Cosby sexually abused
them. A deposition of Ms. Huth was delayed.
Los Angeles County Superior Court Judge Craig Karlan denied
Singer's motion to dismiss the Huth lawsuit on grounds that it
improperly identified Cosby by name. Mr. Cosby also has removed
Singer from his defense in a defamation suit filed by Janice
Dickinson, a model who accused Cosby of drugging and raping her in
1982.
"Mr. Singer has represented Mr. Cosby from the inception of Judy
Huth's case until now," Allred said in a statement. "We look
forward to continuing our legal battle on behalf of Ms. Huth and
this change will not impact our vigorous advocacy on her behalf."
While Mr. Singer has courtroom experience, his reputation is
primarily as a "guard dog" who fends off filings with letters and
growls, said an entertainment litigator who knows Mr. Singer and
didn't want to be quoted. He added that Singer might not be the
best person for what could be a lengthy and closely followed
trial.
Mr. Singer has "a Brooklyn foghorn kind of voice," the lawyer
said, and is "kind of bombastic."
"Cosby may be thinking, 'I need a lawyer with a little bit of a
softer touch to replace him.' And that may be not just for trial,
but for the media," the litigator said. Mr. Singer has already
taken a harsh tone in responding to Ms. Huth's allegations,
describing them as "meritless" and nothing short of "a shakedown"
in court papers.
Mr. Tayback's experience as a prosecutor may be another draw. Los
Angeles County prosecutors declined to file criminal charges in
connection with Ms. Huth's allegation, but are considering
criminal charges in connection with claims by model Chloe Goins.
Mr. Tayback referred comment to the Pressley Firm, the media
relations company representing Mr. Cosby, which declined to
comment. Mr. Singer did not respond to a request for comment.
BIO-REFERENCE: MOU Reached in OPKO Health Merger Class Action
-------------------------------------------------------------
Bio-Reference Laboratories, Inc. said in its Form 8-K Report filed
with the Securities and Exchange Commission on August 10, 2015,
for the quarterly period ended June 30, 2015, that parties to the
consolidated OPKO Health merger class action have entered into a
memorandum of understanding ("MOU") setting forth the terms of a
settlement of the action.
Following the announcement of the merger with OPKO Health, Inc.,
four putative class action complaints challenging the merger were
filed in the Superior Court of New Jersey in Bergen County. Two of
the complaints were filed in the Law Division, and two of the
complaints were filed in the Chancery Division. The complaints are
captioned: Ertan v. Bio-Reference Laboratories, Inc., et al., No.
L-5697-15 (filed on June 18, 2015 in the Law Division of Bergen
County); Cohen v. Bio-Reference Laboratories, Inc., et al., No. L-
5701-15 (filed on June 18, 2015 in the Law Division of Bergen
County); Scott v. Bio-Reference Laboratories, Inc., et al., No. C-
215-15 (filed on July 15, 2015 in the Chancery Division of Bergen
County); and Katcher v. OPKO Health, Inc., et al., No. C-207-15
(filed on July 16, 2015 in the Chancery Division of Bergen
County). The complaints name Bio-Reference, OPKO, Merger Sub and
members of the Bio-Reference board as defendants. The complaints
generally allege, among other things, that members of the Bio-
Reference board breached their fiduciary duties to Bio-Reference's
shareholders by agreeing to sell Bio-Reference for an inadequate
price and agreeing to inappropriate deal protection provisions in
the merger agreement that may preclude Bio-Reference from
soliciting any potential acquirers and limit the ability of the
Bio-Reference board to act with respect to investigating and
pursuing superior proposals and alternatives. The complaints also
allege that Bio-Reference, OPKO and Merger Sub have aided and
abetted the Bio-Reference board members' breaches of their
fiduciary duties. Certain of the complaints also allege that the
Form S-4 omits certain material information. The complaints seek
injunctive relief enjoining Bio-Reference and OPKO from
consummating the merger at the agreed-upon price unless and/or
until the defendants cure their breaches of fiduciary duty (or, in
the event the merger is consummated, rescinding the merger or
awarding rescissory damages). The complaints also seek to recover
costs and disbursement from the defendants, including attorneys'
fees and experts' fees. On August 4, 2015, the four complaints
were consolidated by order of the Chancery Division of the
Superior Court of New Jersey in Bergen County (the "Court").
During late July and early August 2015, the parties to the
consolidated action engaged in expedited document and deposition
discovery. On August 7, 2015, following expedited discovery, the
parties to the consolidated action entered into a memorandum of
understanding ("MOU") setting forth the terms of a settlement of
the consolidated action. Pursuant to the MOU, and without
admitting any wrongdoing or that these supplemental disclosures
are material or required to be made, defendants agreed to include
in this Form 8-K certain supplemental disclosures demanded by
plaintiffs in the consolidated action. In addition, defendants
have acknowledged that plaintiffs' prosecution of the consolidated
action was the sole cause of Bio-Reference's decision to send
letters, on July 22, 2015, to two entities with which it had
executed non-disclosure agreements to discuss a potential
transaction with Bio-Reference, notifying those entities that Bio-
Reference had waived certain provisions of those agreements which
(absent waiver) could have prevented them from making a competing
proposal to acquire Bio-Reference.
The MOU further provides that, among other things, (a) the parties
will negotiate a definitive stipulation of settlement (the
"Stipulation") and will submit the Stipulation to the Court for
review and approval; (b) the Stipulation will provide for
dismissal of the consolidated action with prejudice; (c) the
Stipulation will include a release of defendants of claims
relating to, among other things, the merger and the merger
agreement; and (d) the settlement is conditioned on, among other
things, consummation of the merger, class certification, and final
approval of the settlement by the Court after notice to the Bio-
Reference's shareholders. Defendants believe that the allegations
and claims in the consolidated action are without merit and, if
the settlement does not receive final approval, intend to defend
against them vigorously. Defendants are entering into the
settlement solely to eliminate the burden and expense of further
litigation and to put the claims that were or could have been
asserted to rest. The settlement will not affect the timing of the
merger or the amount or form of consideration to be paid in the
merger.
BRM RECOVERY: "Franklin" Suit Seeks Payment for Unpaid OT
---------------------------------------------------------
Charlotte Gambrell, individually and on behalf of all others
similarly situated, Plaintiff, v. Landmark at Beaver Dam LLC,
Defendant, Case No. 2:15-cv-01172 (E.D. Wis., September 30, 2015),
allegations violations of the Fair Labor Standards Act.
The proposed class is defined as: "All persons who were employed
by Landmark, classified by Landmark as FLSA non-exempt, and who
were not compensated at a rate of one and one-half times their
regular rate of pay for hours worked over forty (40) per workweek
at any time during the three years preceding the filing of this
Complaint."
The Wisconsin class is defined as: "All persons who were employed
by Landmark, classified by Landmark as FLSA non-exempt, and who
were not compensated at a rate of one and one-half times their
regular rate of pay for hours worked over forty (40) per workweek
at any time during the two years preceding the filing of this
Complaint."
Defendant Landmark at Beaver Dam LLC is a domestic limited
liability company with its principal office at 104 Fakes Court,
Beaver Dam, Wisconsin.
The Plaintiff is represented by:
David C. Zoeller, Esq.
Caitlin M. Madden, Esq.
HAWKS QUINDEL, S.C.
222 West Washington Avenue, Suite 450
Post Office Box 2155
Madison, WI 53701-2155
Telephone: (608) 257-0040
Facsimile: (608) 256-0236
Email: dzoeller@hq-law.com
cmadden@hq-law.com
- and -
Jason Knutson, Esq.
Breanne L. Snapp, Esq.
HABUSH HABUSH & ROTTIER S.C.
150 East Gilman Street, Suite 2000
Madison, WI 53703-1481
Telephone: (608) 255-6663
Facsimile: (608) 255-0745
Email: jknutson@habush.com
bsnapp@habush.com
CBS BROADCASTING: Had Segregated Lunchroom, Brooklyn Suit Claims
----------------------------------------------------------------
Nick Divito, writing for Courthouse News Service, reported that a
white CBS executive forced her black employees to eat in a
separate cafeteria, a former employee claims in court in Brooklyn,
New York.
Bennielee Berridge says she worked for CBS Broadcasting Inc. from
1997 to 2014, when she was fired. She worked under Diane Togneri,
who was the director of the network's Travel and Entertainment
Department within CBS' accounting department in Manhattan,
according to a 15-page lawsuit.
Berridge sued CBS and Togneri in Kings County, N.Y. Supreme Court.
She says her boss was "social and amiable" to the other non-black
workers in the department, but "avoided social interactions" with
her black employees.
"Togneri, who acted in an intolerant and annoyed manner to the
sounds of the voices of African Americans, caused the segregation
and banishment of the employees of [the accounts payable
department], a majority of whom were African American, from the
department lunchroom, ultimately forcing those employees to eat in
a separate lunchroom from the lunchroom that non-African American
employees were permitted to use," the complaint states.
Berridge says she felt "humiliated, embarrassed, degraded,
racially ostracized and unwelcome in the department lunchroom,"
causing her to eat lunch at her desk for the rest of her time at
CBS.
Last year, Togneri gave her an "unwarranted negative performance
review" and a lower raise than non-black employees, according to
the complaint. After Togneri encouraged her to quit working for
CBS, Berridge was ultimately fired in November 2014 and replaced
by a white employee, she claims.
"Plaintiff was shocked to hear this, as she had received no prior
work-related write-ups and had been adequately performing all of
the duties of her position," the complaint states.
Berridge wants her job back and punitive damages. She is
represented by Mark Bierman in Manhattan.
CBS representatives did not respond to a request for comment.
C&J ENERGY: Briefing on Motion to Dismiss Commenced
---------------------------------------------------
C&J Energy Services Ltd. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 10, 2015, for the
quarterly period ended June 30, 2015, that briefing on the motion
to dismiss a class action lawsuit was scheduled to commence in
September 2015.
In July 2014, following the announcement that Legacy C&J, Nabors,
and New C&J had entered into the Merger Agreement, a putative
class action lawsuit was filed by a purported shareholder of
Legacy C&J challenging the Merger. The lawsuit is styled City of
Miami General Employees' and Sanitation Employees' Retirement
Trust, et al. ("Plaintiff") v. C&J Energy Services, Inc., et al.;
C.A. No. 9980-CB, in the Court of Chancery of the State of
Delaware, filed on July 30, 2014 (the "Lawsuit"). Plaintiff in the
Lawsuit generally alleges that the board of directors for Legacy
C&J breached fiduciary duties of loyalty, due care, good faith,
candor and independence by allegedly approving the Merger
Agreement at an unfair price and through an unfair process.
Plaintiff specifically alleges that the Legacy C&J board
directors, or certain of them (i) failed to fully inform
themselves of the market value of Legacy C&J, maximize its value
and obtain the best price reasonably available for Legacy C&J,
(ii) acted in bad faith and for improper motives, (iii) erected
barriers to discourage other strategic alternatives and (iv) put
their personal interests ahead of the interests of Legacy C&J
shareholders. The Lawsuit further alleges that Legacy C&J, Nabors
and Red Lion aided and abetted the alleged breaches of fiduciary
duties by the Legacy C&J board of directors.
On November 10, 2014, Plaintiff filed a motion for a preliminary
injunction. On November 24, 2014, the Court of Chancery entered a
bench ruling, followed by a written order on November 25, 2014,
that (i) ordered certain members of the Legacy C&J board of
directors to solicit for a period of 30 days alternative proposals
to purchase Legacy C&J (or a controlling stake in Legacy C&J) that
was superior to the Merger, and (ii) preliminarily enjoined Legacy
C&J from holding its shareholder meeting until it had complied
with the foregoing. The order provided that the solicitation of
proposals consistent with the order, and any subsequent
negotiations of any alternative proposal that emerges, would not
constitute a breach of the Merger Agreement in any respect.
Legacy C&J complied with the Court of Chancery's order while it
simultaneously pursued an expedited appeal of the Court of
Chancery's order to the Supreme Court of the State of Delaware. On
November 26, 2014, in response to, and in compliance with, the
Court of Chancery's order, the Legacy C&J board of directors
established a special committee, which retained separate legal and
financial advisors, to proceed with the ordered solicitation.
On December 19, 2014, following oral argument, the Delaware
Supreme Court overturned the decision of the Court of Chancery and
vacated the order. As such, Legacy C&J's special committee
immediately discontinued the solicitation required by the order.
On March 25, 2015, the C&J Defendants filed a motion to dismiss.
Briefing on the motion to dismiss is currently scheduled to
commence in September 2015.
"We cannot predict the outcome of this or any other lawsuit that
might be filed, nor can we predict the amount of time and expense
that will be required to resolve the Lawsuit. We believe the
Lawsuit is without merit and we intend to defend against it
vigorously," the Company said.
CUYAHOGA METROPOLITAN: "Lee" Suit Seeks to Recover Unpaid OT
------------------------------------------------------------
Pearl Lee, on behalf of herself and all others similarly situated,
Plaintiff, vs. Cuyahoga Metropolitan Housing Authority,
Defendants, Case No. 1:15-cv-02022-CAB (N.D. Ohio, September 30,
2015), seeks to recover unpaid wages and overtime pay under the
Fair Labor Standards Act.
CMHA owns and manages property and administers rent subsidy
programs to provide eligible low-income persons good, safe,
affordable housing.
The Plaintiff is represented by:
Chastity L. Christy, Esq.
Anthony J. Lazzaro, Esq.
THE LAZZARO LAW FIRM, LLC
920 Rockefeller Building
614 W. Superior Avenue
Cleveland, OH 44113
Telephone: 216-696-5000
Facsimile: 216-696-7005
Email: anthony@lazzarolawfirm.com
chastity@lazzarolawfirm.com
CVB FINANCIAL: Class Action Appeal Remains Pending
--------------------------------------------------
CVB Financial Corp. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 10, 2015, for the
quarterly period ended June 30, 2015, that the appeal in a class
action lawsuit remains pending.
The Company said, "On July 26, 2010, we received a subpoena from
the Los Angeles office of the SEC regarding the Company's
allowance for loan loss methodology, loan underwriting guidelines,
methodology for grading loans, and the process for making
provisions for loan losses. In addition, the subpoena requested
information regarding certain presentations Company officers have
given or conferences Company officers have attended with analysts,
brokers, investors or prospective investors. We have fully
cooperated with the SEC in its investigation, and we will continue
to do so if and to the extent any further information is
requested, although we have not been contacted by the SEC in
connection with this matter since October 2011. We cannot predict
the timing or outcome of the SEC investigation or if it is still
continuing."
"In the wake of the Company's disclosure of the SEC investigation,
on August 23, 2010, a purported shareholder class action complaint
was filed against the Company, in an action captioned Lloyd v. CVB
Financial Corp., et al., Case No. CV 10-06256- MMM, in the United
States District Court for the Central District of California.
Along with the Company, Christopher D. Myers (our President and
Chief Executive Officer) and Edward J. Biebrich, Jr. (our former
Chief Financial Officer) were also named as defendants. On
September 14, 2010, a second purported shareholder class action
complaint was filed against the Company, in an action originally
captioned Englund v. CVB Financial Corp., et al., Case No. CV 10-
06815-RGK, in the United States District Court for the Central
District of California. The Englund complaint named the same
defendants as the Lloyd complaint and made allegations
substantially similar to those included in the Lloyd complaint. On
January 21, 2011, the District Court consolidated the two actions
for all purposes under the Lloyd action, now captioned as Case No.
CV 10-06256-MMM (PJWx). That same day, the District Court also
appointed the Jacksonville Police and Fire Pension Fund (the
"Jacksonville Fund") as lead plaintiff in the consolidated action
and approved the Jacksonville Fund's selection of lead counsel for
the plaintiffs in the consolidated action. On March 7, 2011, the
Jacksonville Fund filed a consolidated complaint naming the same
defendants and alleging violations by all defendants of Section
10(b) of the Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder and violations by the individual defendants
of Section 20(a) of the Exchange Act. Specifically, the complaint
alleges that defendants misrepresented and failed to disclose
conditions adversely affecting the Company throughout the
purported class period, which is alleged to be between October 21,
2009 and August 9, 2010. The consolidated complaint sought
compensatory damages and other relief in favor of the purported
class.
"Following the filing by each side of various motions and briefs,
and a hearing on August 29, 2011, the District Court issued a
ruling on January 12, 2012, granting defendants' motion to dismiss
the consolidated complaint, but the ruling provided the plaintiffs
with leave to file an amended complaint within 45 days of the date
of the order. On February 27, 2012, the plaintiffs filed a first
amended complaint against the same defendants, and, following
filings by both sides and another hearing on June 4, 2012, the
District Court issued a ruling on August 21, 2012, granting
defendants' motion to dismiss the first amended complaint, but
providing the plaintiffs with leave to file another amended
complaint within 30 days of the ruling. On September 20, 2012, the
plaintiffs filed a second amended complaint against the same
defendants, the Company filed its third motion to dismiss on
October 25, 2012, and following another hearing on February 25,
2013, the District Court issued an order dismissing the
plaintiffs' complaint for the third time on May 9, 2013.
"Although the District Court's May 2013 order of dismissal
provided the plaintiffs with leave to file a third amended and
restated complaint within 30 days of the issuance of the order, on
June 3, 2013, counsel for the plaintiffs instead filed a Notice of
Intent Not to File an Amended Complaint, along with a request that
the District Court convert its order to a dismissal with
prejudice, so that plaintiffs could proceed straight to appeal at
the U.S. Court of Appeals for the Ninth Circuit. On September 30,
2013, the District Court entered its order dismissing the
plaintiffs' second amended complaint with prejudice, and the
plaintiffs filed their notice of appeal on October 24, 2013.
"With respect to the appeal, the plaintiffs' opening brief was
filed on June 7, 2014, the Company's reply brief was filed on July
7, 2014, and the plaintiff's rebuttal brief was filed on August
20, 2014. It is expected that the Court of Appeals will schedule a
hearing in the case to conduct oral argument at some point within
the next three to six months, and would then issue its opinion at
some point within nine to twelve months thereafter."
The Company intends to continue to vigorously contest the
plaintiff's allegations in this case.
DEAN FOODS: Class Suits Over Grade A Milk Pending in Tennessee
--------------------------------------------------------------
Dean Foods Company continues to defend putative class actions
pending before the District Court for the Eastern District of
Tennessee on behalf of purchasers of processed fluid Grade A milk.
A putative class action antitrust complaint (the "retailer
action") was filed against Dean Foods and other milk processors on
August 9, 2007 in the United States District Court for the Eastern
District of Tennessee. "Plaintiffs allege generally that we,
either acting alone or in conjunction with others in the milk
industry, lessened competition in the Southeastern United States
for the sale of processed fluid Grade A milk to retail outlets and
other customers," Dean Foods said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 10, 2015,
for the quarterly period ended June 30, 2015. "Plaintiffs further
allege that the defendants' conduct artificially inflated
wholesale prices paid by direct milk purchasers."
In March 2012, the district court granted summary judgment in
favor of defendants, including the Company, as to all counts then
remaining. Plaintiffs appealed the district court's decision, and
in January 2014, the United States Court of Appeals for the Sixth
Circuit reversed the grant of summary judgment as to one of the
five original counts in the Tennessee retailer action.
"Following the Sixth Circuit's denial of our request to reconsider
the case en banc, the Company petitioned the Supreme Court of the
United States for review," the Company said. "On November 17,
2014, the Supreme Court denied our petition and the case returned
to the district court. There are now various motions and briefs
pending before the district court, including defendants' motion
for summary judgment on grounds previously raised but not yet
decided, and plaintiffs' motion for class certification. The
district court held a hearing on these and other related issues in
June 2015, and further argument was scheduled for September 2015."
On June 29, 2009, another putative class action lawsuit was filed
in the Eastern District of Tennessee on behalf of indirect
purchasers of processed fluid Grade A milk (the "indirect
purchaser action"). This case was voluntarily dismissed, and the
same plaintiffs filed a nearly identical complaint on January 17,
2013. The allegations in this complaint are similar to those in
both the retailer action and the 2009 indirect purchaser action,
but involve only claims arising under Tennessee law. The Company
filed a motion to dismiss, and on September 11, 2014, the district
court granted in part and denied in part that motion, dismissing
the non-Tennessee plaintiffs' claims. The Company filed its answer
to the surviving claims on October 15, 2014.
Dean Foods disclosed that the parties in this class action have
jointly proposed that further proceedings (including any
discovery) be deferred until after the district court rules on the
summary judgment and class certification issues in the Tennessee
retailer action.
DINE AND WINE: Faces "Zheng" Suit for Unpaid OT & Wages
-------------------------------------------------------
Hua Wen Zheng, on behalf of himself and all other persons
similarly situated, Plaintiff, v. Dine and Wine, Inc., Carl
LaManna, and John Does #1-10, Defendants, Case No. 3:15-cv-
0007010811 (S.D.N.Y., September 28, 2015), seeks to recover unpaid
wages and overtime pay under the Fair Labor Standards Act.
Dine and Wine is a New Jersey-based company that owns and operates
resort themed restaurants.
Defendant Carl LaManna is an owner and principal of Dine and Wine
and has the power to set wages, fire, and hire employees of the
company.
The Plaintiff is represented by:
Heng Wang, Esq.
WANG, GAO & ASSOCIATES, P.C.
36 Bridge Street
Metuchen, NJ 08840
Telephone: (732) 767-3020
DYNEX CAPITAL: Dismissal of Pa. Class Suit Upheld
-------------------------------------------------
Dynex Capital, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 10, 2015, for the
quarterly period ended June 30, 2015, that with respect to the
putative class action lawsuit that was filed in June 2012 in the
Court of Common Pleas of Allegheny County, Pennsylvania (the
"Court"), and to which GLS Capital, Inc. and the Company are named
defendants, on May 14, 2015, the Commonwealth Court of
Pennsylvania affirmed the trial court's dismissal of the
plaintiffs' complaint in its entirety.
As previously reported by the Class Action Reporter, plaintiffs in
the class action appealed the Court's dismissal of the case.
Between 1995 and 1997, GLS purchased from Allegheny County
delinquent property tax lien receivables for properties located in
the county. The purported class in this action consisted of owners
of real estate in Allegheny County whose property is or has been
subject to a tax lien filed by Allegheny County that Allegheny
County either retained or sold to GLS and who were billed by
Allegheny County or GLS for attorneys' fees, interest, and certain
other fees and who sustained economic damages on and after August
14, 2003. The putative class allegations were that Allegheny
County, GLS, and the Company violated the class's constitutional
due process rights in connection with delinquent tax collection
efforts. There were also allegations that amounts recovered from
the class by GLS and /or Allegheny County are an unconstitutional
taking of private property. The claims against the Company were
solely based upon its ownership of GLS. The complaint requested
that the Court order GLS to account for amounts alleged to have
been collected in violation of the putative class members' rights
and create a constructive trust for the return of such amounts to
members of the purported class.
EBIX INC: Defendants' Motion to Dismiss Still Pending
-----------------------------------------------------
Ebix, Inc. on December 3, 2012, received a subpoena and letter
from the SEC dated November 30, 2012, stating that the SEC is
conducting a formal, non-public investigation styled In the Matter
of Ebix, Inc. (A-3318) and seeking documents primarily related to
the issues raised in the In re: Ebix, Inc. Securities Litigation.
On April 16, 2013, the Company received a second subpoena from the
SEC seeking additional documents. The Company has cooperated with
the SEC to provide the requested documents.
On June 6, 2013, the Company was notified that the U.S. Attorney
for the Northern District of Georgia had opened an investigation
into allegations of intentional misconduct that had been brought
to its attention from the pending shareholder class action lawsuit
against the Company's directors and officers, the media and other
sources. The Company has cooperated with the U.S. Attorney's
office.
Following the announcement on May 1, 2013 of the Company's
execution of a merger agreement with affiliates of Goldman Sachs &
Co., twelve putative class action complaints challenging the
proposed merger were filed in the Delaware Court of Chancery.
These complaints name as Defendants some combination of the
Company, its directors, Goldman Sachs & Co. and affiliated
entities. On June 10, 2013, the twelve complaints were
consolidated by the Delaware Court of Chancery, now captioned In
re Ebix, Inc. Stockholder Litigation, CA No. 8526-VCN. On June 19,
2013, the Company announced that the merger agreement had been
terminated pursuant to a Termination and Settlement Agreement.
After Defendants moved to dismiss the consolidated proceeding,
Lead Plaintiffs amended their operative complaint to drop their
claims against Goldman Sachs & Co. and focus their allegations on
an Acquisition Bonus Agreement ("ABA") between the Company and
Robin Raina. On September 26, 2013, Defendants moved to dismiss
the Amended Consolidated Complaint. On July 24, 2014, the Court
issued its Memorandum Opinion. The only surviving counts are as
follows: (i) Counts II and IV, but only to the extent the
Plaintiffs seek non-monetary relief for alleged material
misstatements related to the ABA base price in the 2010 Proxy
Statement; (ii) Count II, but only to the extent it challenges the
continued existence of the ABA as an alleged unreasonable anti-
takeover device; and, (iii) Count V, but only to the extent that
it relates to the compensation the Board received under the
Company's 2010 Stock Incentive Plan. On September 15, 2014, the
Court entered an Order implementing its Memorandum Opinion. On
January 16, 2015, the Court entered an Order permitting Plaintiffs
to file a Second Amended and Supplemented Complaint naming the
individual directors and the Company as Defendants. As currently
pled, the Second Amended and Supplemented Complaint asserts (i) a
purported class and derivative claim for breach of fiduciary duty
by the individual Defendants in improperly maintaining the ABA as
an unreasonable anti-takeover device; (ii) a purported class claim
against the individual Defendants for breach of the fiduciary duty
of disclosure to the stockholders with respect to the Company's
2010 Proxy Statement and 2010 Stock Incentive Plan, (iii) a
purported derivative claim against the individual Defendants for
breach of fiduciary duty to the Company in causing incentive
compensation to be awarded to themselves and others under the 2010
Stock Incentive Plan, (iv) a purported class and derivative claim
for breach of fiduciary duty by the individual Defendants in
adopting the August 5, 2014 Credit Agreement, the November 26,
2014 Director Nomination Agreement with Barrington Capital Group,
L.P. and certain bylaw amendments adopted December 19, 2014, (v) a
purported class and derivative claim seeking invalidation of the
December 19, 2014 bylaw amendments under Delaware law, and (vi) a
purported class claim for breach of fiduciary duty by the
individual Defendants for issuing a purportedly materially
misleading and incomplete 2014 Proxy Statement. On February 10,
2015, Defendants filed a Motion to Dismiss the Second Amended and
Supplemented Complaint, which is still pending. The Company denies
any liability and intends to defend the action vigorously.
No further updates were provided in Ebix's Form 10-Q Report filed
with the Securities and Exchange Commission on August 10, 2015,
for the quarterly period ended June 30, 2015.
ENDO INTERNATIONAL: Second Amended Complaint Filed in Ill. Suit
---------------------------------------------------------------
Endo International PLC said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 10, 2015, for the
quarterly period ended June 30, 2015, that plaintiffs in a class
action in Illinois have filed a second amended complaint.
On November 5, 2014, a civil class action complaint was filed in
the Northern District of Illinois against EPI, Auxilium, and
various other manufacturers of testosterone products on behalf of
a proposed class of health insurance companies and other third
party payers that had paid for certain testosterone products,
alleging that the marketing efforts of EPI, Auxilium, and other
defendant manufacturers with respect to certain testosterone
products constituted racketeering activity in violation of 18
U.S.C. Sec.1962(c), and other civil RICO claims. Further, the
complaint alleges that EPI, Auxilium, and other defendant
manufacturers violated various state consumer protection laws
through their marketing of certain testosterone products.
On June 10, 2015 plaintiffs in that action filed a Second
Amendment Complaint. The Company and/or its subsidiaries are
unable to predict the outcome of this matter or the ultimate legal
and financial liability, if any, and at this time cannot
reasonably estimate the possible loss or range of loss for this
matter, if any.
ENDO INTERNATIONAL: Antitrust Suit Trial to Begin in 2017
---------------------------------------------------------
Endo International PLC said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 10, 2015, for the
quarterly period ended June 30, 2015, that trial is currently
scheduled to begin in 2017 in an antitrust litigation.
Multiple direct and indirect purchasers of Lidoderm(R) have filed
a number of cases against EPI and co-defendants Teikoku Seiyaku
Co., Ltd., Teikoku Pharma USA, Inc. (collectively, Teikoku) and
Actavis plc., f/k/a as Watson Pharmaceuticals, Inc., and a number
of its subsidiaries (collectively, Actavis or Watson). Certain of
these actions have been asserted on behalf of classes of direct
and indirect purchasers, while others are individual cases brought
by one or more alleged direct or indirect purchasers. The
complaints in these cases generally allege that Endo, Teikoku and
Actavis entered into an anticompetitive conspiracy to restrain
trade through the settlement of patent infringement litigation
concerning U.S. Patent No. 5,827,529 (the '529 patent) and other
patents. Some of the complaints also allege that Teikoku
wrongfully listed the '529 patent in the Orange Book as related to
Lidoderm(R), that Endo and Teikoku commenced sham patent
litigation against Actavis and that Endo abused the FDA citizen
petition process by filing a citizen petition and amendments
solely to interfere with generic companies' efforts to obtain FDA
approval of their versions of Lidoderm(R). The cases allege
violations of Sections 1 and 2 of the Sherman Act (15 U.S.C.
Sections 1, 2) and various state antitrust and consumer protection
statutes as well as common law remedies in some states. These
cases generally seek damages, treble damages, disgorgement of
profits, restitution, injunctive relief and attorneys' fees.
The United States Judicial Panel on Multidistrict Litigation,
pursuant to 28 U.S.C. Sec. 1407, issued an order on April 3, 2014,
transferring these cases as In Re Lidoderm Antitrust Litigation,
MDL No. 2521, to the U.S. District Court for the Northern District
of California.
Litigation similar to that described above may also be brought by
other plaintiffs in various jurisdictions, and cases brought in
federal court will be transferred to the Northern District of
California as tag-along actions to In Re Lidoderm Antitrust
Litigation.
The cases are in the discovery phase of the litigation in
accordance with the pre-trial schedule. Trial is currently
scheduled to begin in 2017.
ENDO INTERNATIONAL: Discovery Stayed in Opana Purchaser Cases
-------------------------------------------------------------
Endo International PLC said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 10, 2015, for the
quarterly period ended June 30, 2015, that discovery is currently
stayed in the cases filed by multiple direct and indirect
purchasers of Opana(R) ER.
Multiple direct and indirect purchasers of Opana(R) ER have filed
cases against EHSI, EPI, Penwest Pharmaceuticals Co., and Impax
Laboratories Inc., all of which have been transferred and
coordinated for pretrial proceedings in the Norther District of
Illinois by the Judicial Panel on Multidistrict Litigation. Some
of these cases have been filed on behalf of putative classes of
direct and indirect purchasers, while others have been filed on
behalf of individual retailers. These cases generally allege that
the agreement reached by EPI and Impax to settle patent
infringement litigation concerning multiple patents pertaining to
Opana(R) ER and EPI's introduction of the re-formulation of
Opana(R) ER violated antitrust laws. The complaints allege
violations of Sections 1 and 2 of the Sherman Act (15 U.S.C.
Sections 1, 2), various state antitrust and consumer protection
statutes, as well as state common law. These cases generally seek
damages, treble damages, disgorgement of profits, restitution,
injunctive relief and attorneys' fees. The defendants have filed
motions to dismiss these actions and discovery is currently stayed
pending the outcome of these motions.
"We cannot predict whether or not additional cases similar to
those described above will be filed by other plaintiffs or the
timing or outcome of any such litigation," the Company said.
The Company and its subsidiaries are unable to predict the outcome
of these matters or the ultimate legal and financial liability, if
any, and at this time cannot reasonably estimate the possible loss
or range of loss for these matters, if any, but will explore all
options as appropriate in the best interests of EPI and the
Company.
ETHICON INC: Suits Over Power Morcellators Consolidated in MDL
--------------------------------------------------------------
Amanda Bronstad, writing for The National Law Journal, reports
that a federal judicial panel has coordinated more than two dozen
lawsuits alleging that power morcellators -- medical devices used
in laparoscopic surgeries -- have caused women to develop an
aggressive form of cancer.
Litigation over power morcellators has been a hot topic among the
plaintiffs bar for the past year, although the number of cases
brought so far is relatively small. About 45 lawsuits have been
filed in federal and state court on behalf of women or their
family members claiming a power morcellator used to remove uterine
fibroids or the uterus during a hysterectomy led to cancer,
"recurrent parasitic fibroids" or other injuries. In court
papers, plaintiffs lawyers have estimated there could be more than
300 cases filed over power morcellators.
In its Oct. 15 decision, the U.S. Judicial Panel on Multidistrict
Litigation appeared persuaded that there could be more cases,
noting that 650,000 women per year have surgeries or
hysterectomies due to uterine fibroids and, until last year, were
likely to have them done laparoscopically with power morcellators.
The panel ordered most of the federal lawsuits consolidated in
Kansas. About 15 power-morcellator lawsuits also have been filed
in state courts.
Paul Pennock, managing attorney at New York's Weitz & Luxenberg,
who argued to coordinate all the cases to Kansas, said an MDL
would benefit many of the women and their families who have faced
challenges so far in bringing a case -- most prominently
identifying the power morcellator used in a surgery.
"There is absolutely not a shred of doubt in my mind they will
actually not only achieve justice faster but be actually able to
achieve it through an MDL where, separately, we'll be crushed," he
said.
Although four power-morcellator manufacturers opposed the creation
of an MDL, the panel limited its order to cases filed against
Johnson & Johnson's Ethicon Inc. unit. Matthew Johnson, a
spokesman for Johnson & Johnson, which faces the most lawsuits of
any defendant, wrote in an email: "Because Ethicon acted
appropriately and responsibly at all times in relation to our
morcellation devices, we will defend ourselves in the lawsuits
that have been filed against us."
As of Oct. 15, plaintiffs had filed 22 lawsuits against Ethicon in
federal court.
On April 17, 2014, the U.S. Food and Drug Administration issued a
safety advisory discouraging doctors from using the devices, which
shred tissue into smaller pieces to be extracted through a small
incision in a woman's body. The FDA cited data that one in 350
women could be at risk for developing cancer from their use. On
July 30, 2014, Ethicon pulled its power morcellators from shelves
across the globe.
On Nov. 24, the FDA stopped short of banning power morcellators
but found that the devices should not be used for the majority of
women.
The FBI is investigating the devices, according to the suits, and
the U.S. Government Accountability Office has "accepted a
congressional request to examine the issue," according to
spokesman Charles Young.
The other defendants include Germany's Richard Wolf GmbH and its
Vernon Hills, Illinois-based subsidiary, Richard Wolf Medical
Instruments Corp.; Karl Storz Endoscopy-America Inc. in El
Segundo, California, and its German parent company, Karl Storz
GmbH & Co. K.G.; and Gyrus ACMI L.P., now part of Olympus Corp. in
Japan.
EXPERIAN HOLDINGS: Faces "Brautigam" Suit for Data Breach
---------------------------------------------------------
Michael G. Brautigam, individually and on behalf of all others
similarly situated, Plaintiff, vs. Experian Holdings, Inc.,
Defendant, Case No. 8:15-cv-01616-JLS-JCG (C.D. Cal., October 7,
2015), seeks to recover, among other things, damages, including
actual and statutory damages, equitable relief, costs, and
reasonable attorney fees for data breach under the Fair Credit
Reporting Act and the California Unfair Competition Law.
This data breach class action arises out of the allegation that
Defendants failure to protect Plaintiff's personal information and
personal financial information thereby causing substantial
consumer harm and injuries to consumers who are customers of
T-Mobile across the United States.
The proposed class is defined as: "All persons in the United
States whose personal information was accessed by unauthorized
individuals in the data breach announced by Experian and T-Mobile
on October 1, 2015 or whose personal information is maintained on
Experian's servers."
The proposed subclass is defines as: "All persons who are
domicilliaries of Ohio and whose personal information was accessed
by unauthorized individuals in the data breach announced by
Experian and T-Mobile on October 1, 2015 or whose personal
information is maintained on Experian's servers."
Defendant Experian Holdings, Inc., a Delaware corporation, is a
citizen of California that operates as an information services
company that provides data and analytical tools to its customers
around the world through several business lines including credit
services, decision analytics, marketing services, and consumer
services.
The Plaintiff is represented by:
Wylie Aitken, Esq.
AITKEN AITKEN & COHN
3 MacArthur Pl #800
Santa Ana, CA 92707
Tel: (714) 434-1424
Fax: (714) 434-3600
Email: wylie@aitkenlaw.com
- and -
Stephen R. Basser
Samuel M. Ward
BARRACK, RODOS & BACINE
600 West Broadway, Suite 900
San Diego, CA 92101
Telephone: (619) 230-0800
Facsimile: (619) 230-1874
Email: sbasser@barrack.com
sward@barrack.com
- and -
John G. Emerson
EMERSON SCOTT, LLP
830 Apollo Lane
Houston, TX 77058
Telephone: (281) 488-8854
Facsimile: (281) 488-8867
Email: jemerson@emersonfirm.com
FACEBOOK INC: Judge Dismisses Privacy Class Action
--------------------------------------------------
Ross Todd, writing for The Recorder, reports that Facebook Inc.
may have put to rest a privacy suit seeking billions of dollars in
damages for the company's alleged snooping on users' browsing
habits.
Plaintiffs in the multidistrict litigation claimed that Facebook
employed cookies that could track and store users' web surfing
even after they logged out of the social networking site. Brought
under state and federal privacy laws that carry steep statutory
penalties per violation, the suit could have exposed Facebook to
more than $15 billion in potential damages and sought an
injunction barring Facebook from installing such cookies.
On Oct. 23 U.S. District Judge Edward Davila of the Northern
District of California granted a request by Facebook's lawyers at
Cooley to dismiss the three-year-old suit. Judge Davila found
plaintiffs lacked standing to pursue some claims and failed to
show that Facebook had violated the decades-old privacy laws on
those that remained. Davila gave plaintiffs until Nov. 30 to amend
their complaint.
As is the case in many privacy class actions brought against
defendants who offer free products, the plaintiffs firms suing
Facebook struggled to show that consumers had suffered any
economic injury. In the amended consolidated complaint filed in
2012, plaintiffs pointed to a Google program that paid
participants about $5 in gift cards in exchange for allowing the
company to track their browsing history for three months.
Although Judge Davila acknowledged in the Oct. 23 decision that
plaintiffs demonstrated there was a market for their browsing
data, he concluded that they failed to show that Facebook's
actions affected the data's value.
"That programs may exist to compensate Internet users with $5 gift
cards in exchange for monitoring their browsing activity is a fact
of little assistance to plaintiffs when they have not also alleged
an inability to participate in these programs after Facebook
collected their information," Judge Davila wrote.
Judge Davila found that plaintiffs had statutory standing under
the federal Wiretap Act and Stored Communications Act, as well as
California's Invasion of Privacy Act. But he found that
plaintiffs' accusations didn't tick all the required boxes under
those decades-old privacy laws which carry stiff statutory
penalties -- running as high as $10,000 per violation for the
Wiretap Act.
On the Wiretap Act claim, Davila found that plaintiffs failed to
allege that Facebook's purported interceptions -- a Facebook
user's unique ID and browsing history -- qualified as "contents"
of electronic communication under the law. Judge Davila also
found plaintiffs' theory under the Stored Communications Act-that
Facebook gets access to personal information through "persistent
cookies permanently residing in users' personal web browsers"-
failed to fit the statutory definition of storage. Judge Davila
further held that plaintiffs had failed to show how Facebook's
cookies acted as a "machine, instrument, or contrivance" under
California's Invasion of Privacy Act.
The judge gave plaintiffs leave to amend their claims. Co-lead
counsel Stephen Grygiel -- sgrygiel@mdattorney.com -- at
Silverman, Thompson, Slutkin & White in Baltimore and David
Straite of Kaplan Fox & Kilsheimer in New York didn't respond to
messages on Oct. 26.
Cooley's Matthew Brown -- brownmd@cooley.com -- directed a request
for comment to a Facebook spokesperson who said the company was
"pleased with the court's ruling."
FACEBOOK INC: EU Privacy Suit May Proceed After Safe Harbor Ruling
------------------------------------------------------------------
Chris DiMarco, writing for Legaltech News, reports that in 2013,
Austrian student Maximilian Schrems filed a lawsuit again
Facebook, alleging the social media giant violated the EU Data
Protection Directive when it shared EU citizen data with the U.S.
National Security Agency. Over 25,000 European Facebook users
signed up to join the class action, with another 60,000 on a
waiting list, making it one of the largest privacy suits in
history.
To date, Mr. Schrem's lawsuit has yet to make it to court,
receiving pushback predicated on a number of EU privacy policies
and being bounced in and out of EU jurisdictions over the course
of the last few years. But the case has been the catalyst for a
seismic shift in EU policy over September, and its looking more
certain that it will go forward.
Earlier in October, an appeal of the decision to toss the
Mr. Schrem's suit was reviewed by the European Union Court of
Justice (EUCJ). In its decision the court ruled that the Safe
Harbor agreement that precluded the case from being heard by the
Irish Data Protection Commission violated EU citizen rights, and
ruled it invalid. In doing so, the EUCJ gave individual member
states the ability to apply their interpretation of "reasonable"
security measures in governing how data moves in and out of their
borders.
The ruling also gave the greenlight to Mr. Schrem's case, was set
to go under review, following a approval from an Irish high court.
Speaking on the High Court's decision, on Oct. 20 Irish Data
Protection Commissioner, Helen Dixon said in a statement, "I
welcome the ruling from Judge Hogan which brings these proceedings
to a conclusion. My Office will now proceed to investigate the
substance of the complaint with all due diligence."
Former Data Protection Commissioner Billy Hawkes had originally
halted Mr. Schrem's suit in 2013, and said at the time of his
review the case could not proceed because of Facebook's compliance
with the Safe Harbor agreement. The appeal of this decision moved
the case to an Irish high court and then on to the EUCJ.
Now, contingent on word from Irish high court judges, the Irish
Data Protection Commission will review the merits of the case and
determine whether or not it can move forward once again.
According to the Irish Times, Mr. Hawkes said that at the time of
the original case "his hands were tied" by the Safe Harbor
agreement and he has since stated that the agreement was the
primary motivation for the dismissal of Mr. Schrems' complaint
there.
Should the case go to the trial, it could be first of many that
make use of the EUCJ Safe Harbor decision which, for the time
being at least, gives member states the ability to directly govern
their data privacy laws. On Oct. 16, EU officials said that the
U.S. would have until January 2016 to come up with a replacement
framework governing how data should be swapped between the
regions.
According to Brian Kudowitz, Bloomberg Law's commercial product
director for privacy and data security," All eyes should now be
on the Irish Data Protection Commission and the Irish High Court-
how those bodies proceed will be the first glimpse of what's ahead
for companies. While the EUCJ's decision called for direct
oversight from each of the 28 data protection authorities, the
Article 29 Working Party statement noted that absent a new
solution in three months time, EU member data protection
authorities may take "all necessary and appropriate actions"
including coordinated enforcement, potentially making this case
the proverbial canary in the coal mine."
As for the fuzziness surrounding the current atmosphere of
international data law, Mr. Kudowitz said: "Guidance thus far from
authorities hasn't clarified much, and many companies are still
navigating without a compass, even with the release of the Article
29 Working Party statement. While companies are waiting for
deeper guidance and Safe Harbor II, one of the most important
things they can do is ensure they are positioned to understand and
execute on the varying data protection stringencies and risks
across the 28 EEA countries."
FANDUEL INC: Two Law Firms Sue Over Alleged Insider Trading
-----------------------------------------------------------
Celia Ampel, writing for Daily Business Review, reports that two
South Florida law firms are the latest to sue fantasy sports
companies FanDuel Inc. and DraftKings Inc. on behalf of the
websites' users.
Scandal erupted two weeks ago when it emerged that a DraftKings
employee had inadvertently released data on players' entries in
the site's biggest contest. He quickly went on to win $350,000 in
a FanDuel contest, "a situation that is tantamount to insider
trading," according to the lawsuit filed on Oct. 19 in Miami
federal court.
"It's like a stockbroker that knows that there's going to be a
merger," said Colson Hicks Eidson partner Ervin Gonzalez --
ervin@colson.com -- who filed the lawsuit with colleague Patrick
Montoya of the Coral Gables firm and Christos Lagos and John
Priovolos of Lagos & Priovolos in Miami.
The lawsuit also alleges both websites' contests are dominated by
people who use algorithms and other automated tools to win, an
unfair advantage the sites don't disclose to small-time players,
according to the complaint.
About "1.5 percent of the players are making 90 percent of the
money, and that's because they invest hundreds of thousands of
dollars a day, and these large companies need that money in order
to fill their coffers to pay the prize money," Mr. Gonzalez said.
The lawsuit is one of about a dozen filed against the companies
for similar reasons in the past two weeks, but Mr. Gonzalez said
he believes his is the first in Florida and the most thorough.
The plaintiffs claim negligence, breach of contract, racketeering
and conspiracy, and seek damages higher than $5 million. Included
as defendants are two alleged "sharks," who the plaintiffs claim
use algorithms to win games, along with company employees who
allegedly enter contests on their rival site.
Mr. Gonzalez amended the complaint on Oct. 16 to allege FanDuel
and DraftKings are actually participating in illegal gambling. If
the companies' user agreements ask people to participate in an
illegal activity, they're void, nullifying any clauses blocking
class actions, he said.
New York-based FanDuel and Boston-based DraftKings have benefitted
from a fantasy sports exemption in the federal Unlawful Internet
Gambling Enforcement Act of 2006. Legislators decided fantasy
sports generally required more skill than luck.
Game Integrity
FanDuel and DraftKings did not exist when the law passed. Now,
they have more than 1 million users each and an array of deep-
pocketed investors.
DraftKings' investors include FoxSports and the owners of the
Dallas Cowboys and the New England Patriots, according to the
New York Times. Comcast, NBC and KKR have invested in FanDuel.
But the legality of FanDuel's and DraftKings' operations has come
into question since the employee "insider trading" scandal broke.
Nevada state regulators decided on Oct. 12 that using the sites
was a form of unlicensed gambling.
The FBI is investigating the daily fantasy sports sites, according
to the New York Times, and the New York Attorney General opened an
investigation into FanDuel and DraftKings on Oct. 6 just after the
scandal broke.
The companies responded by permanently banning their employees
from participating in any fantasy contests for money.
"Nothing is more important to DraftKings and FanDuel than the
integrity of the games we offer to our customers," the companies
said in a joint statement Oct. 5. "Both companies have strong
policies in place to ensure that employees do not misuse any
information at their disposal and strictly limit access to company
data to only those employees who require it to do their jobs.
Employees with access to this data are rigorously monitored by
internal fraud control teams, and we have no evidence that anyone
has misused it."
DraftKings announced it hired Greenberg Traurig to conduct an
investigation of employee Ethan Haskell's $350,000 FanDuel contest
win.
FanDuel asked former U.S. Attorney General Michael Mukasey of
Debevoise & Plimpton to review its policies and former Manhattan
U.S. Attorney Michael Garcia of Kirkland & Ellis to lead a new
internal advisory board.
Neither company responded to a request for comment by deadline
about the Miami lawsuit assigned to U.S. District Senior Judge
Paul Huck.
Gonzalez said he hopes the lawsuits will be the beginning of a sea
change that pushes state attorneys general to reconsider whether
fantasy sports sites are operating legally.
He said consumers have a right to know how FanDuel and DraftKings
run their games.
"You look at their ads, it looks like every Joe Blow or Mary Blow
can win," he said. "The reality is, unless you're extremely
sophisticated, you're going to lose the money you put in there."
FANDUEL INC: Faces Class Suit by Redskins Receiver Garcon
---------------------------------------------------------
Daniel W. Staples, writing for Courthouse News Service, reported
that Washington Redskins wide receiver Pierre Garcon claims in a
class action that the online fantasy sports website FanDuel is
making millions while using star players' likenesses without their
permission.
In a federal complaint in Greenbelt, Maryland, filed on Oct. 30,
Garcon claims FanDuel is "trying to profit on plaintiff Garcon's
success, and that of other NFL athletes, without compensating
them."
There is no doubt online fantasy sports is big business. On its
website FanDuel says it anticipates "paying out [an] expected $2
billion in real cash prizes this year," while promising its
participants they'll "get instant payouts as soon as contests
end."
But Garcon says FanDuel promotes and operates its daily fantasy
football contests "on the backs of NFL players, whose popularity
and performance make the Defendant's commercial daily fantasy
football product possible."
"Defendant FanDuel owes its success operating these daily fantasy
football contests to NFL players, like [Garcon] and Class members,
whose names and likenesses make FanDuel's games possible," the
complaint says. "Without them and their on-the-field success,
daily fantasy football would not exist."
Thanos Basdekis -- tbasdekis@baileyglasser.com -- an attorney with
Baily & Glasser, the Washington firm that is representing Garcon,
did not immediately respond to a request for comment.
FanDuel said it believes the class action is without merit.
"There is established law that fantasy operators may use player
names and statistics for fantasy contests," the business said in a
statement. "FanDuel looks forward to continuing to operate our
contests which sports fans everywhere have come to love."
Allegations of "insider trading" have dogged online fantasy sports
companies in recent weeks after a DraftKings employee won hundreds
of thousands of dollars with the rival website. In addition to an
FBI investigation, the news has sparked dozens of lawsuits.
Sites like FanDuel and DraftKings allow customers to select real-
life athletes from multiple teams and collect points based on the
statistical performance of those players. The better their players
perform statistically, the better their chances of winning cash.
FIVE STAR QUALITY: Faces "Brown" Suit for Unpaid OT
---------------------------------------------------
Debra Brown, Annell Smalls Jackson, and Lutrice Jenkins, on behalf
of themselves and others similarly situated, Plaintiff, v. Five
Star Quality Care, Inc., Aidells Sausage Company, Inc., Defendant,
Case No. 2:15-cv-04105-RMG (D.S.C., October 2, 2015), seeks for
unpaid overtime compensation, liquidated damages, and other relief
under the Fair Labor Standards Act of 1938 ("FLSA").
Defendant Five Star Quality Care Inc. is a for-profit
corporation organized under the laws of the State of Maryland.
Five Star is registered with the South Carolina Secretary of State
and regularly conducts business in South Carolina.
The Plaintiffs are represented by:
Marybeth Mullaney, Esq.
MULLANEY LAW
321 Wingo Way, Suite 201
Mount Pleasant, SC 29464
Tel: (843)849-1692
Fax: (800)385-8160
Email: marybeth@mullaneylaw.net
- and -
William C. Tucker, Esq.
TUCKER LAW FIRM, PLC
690 Berkmar Circle
Charlottesville, VA 22901
Tel: (434) 978-0100
Fax: (434) 978-0101
Email: bill.tucker@tuckerlawplc.com
FIVE STAR QUALITY: Fails to Pay for OT Work, "Salas" Suit Claims
----------------------------------------------------------------
Rosa Chavez Salas, on behalf of herself and others similarly
situated, Plaintiff, vs. Abhipra Food And Catering, Inc., d/b/a
Subway Restaurant and Sanjiv Chowdhary, Defendants, Case No. 15-
cv-03017 (D. Md., October 6, 2015), seeks for unpaid overtime
compensation, liquidated damages, and other relief under the Fair
Labor Standards Act of 1938 and the Maryland Wage Payment and
Collection Law.
Defendant Abhipra Food And Catering, Inc., d/b/a Subway
Restaurant, is a corporation formed under the laws of the State of
Maryland with its principal place of business in Howard County,
Maryland. Abhipra operates a franchise of Subway Restaurant in
Baltimore County at: 8001 Pulaski Highway, Rosedale, Maryland
21237.
Defendant Sanjiv Chowdhary is an owner, principal and manager of
Abhipra.
The Plaintiff is represented by:
Roberto N. Allen, Esq.
THE LAW OFFICES OF ROBERTO ALLEN, LLC
11002 Veirs Mill Rd., Suite 700
Wheaton, MD 20902
Tel: (301) 861-0202
Fax: (301) 861-4354
Email: rallen@robertoallenlaw.com
G/J COMPANIES: "Clarke" Suit Seeks to Recover Unpaid Wages
----------------------------------------------------------
Shawn Clarke Jr., individually and on behalf of all others
similarly situated, Plaintiff, vs. G/J Companies Inc., Gennaro Jay
Anguilo & Barbara A. Lombard, Defendants, Case No. 15-3006F
(Commw. Ct. Mass., October 2, 2015), seeks to recover unpaid and
lost straight time wages, unpaid overtime wages, lost front pay
and back pay, under the Massachusetts Overtime Statute.
The Plaintiff is represented by:
Jonathon D. Friedmann, Esq.
Adam J. Shafran, Esq.
RUDOLPH FRIEDMANN LLP
92 State Street
Boston, MA 02109
Tel: 617-723-7700
Fax: 617-227-0313
Email: ashafran@rflawyers.com
GENERAL CABLE: Appeal in Livonia Complaint Ongoing
--------------------------------------------------
General Cable Corporation said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 10, 2015, for the
quarterly period ended July 3, 2015, that a class action plaintiff
has appealed a lower court's decisions to the Sixth Circuit Court
of Appeals, which appeal is pending.
The Company said, "Two civil complaints were filed in the United
States District Court for the Southern District of New York on
October 21, 2013 and December 4, 2013 by named plaintiffs, on
behalf of purported classes of persons who purchased or otherwise
acquired our publicly traded securities, against us, Gregory
Kenny, our former President and Chief Executive Officer, and Brian
Robinson, our Executive Vice President and Chief Financial
Officer. On our motion, the complaints were transferred to the
United States District Court for the Eastern District of Kentucky,
the actions were consolidated, and a consolidated complaint was
filed in that Court on May 20, 2014 by City of Livonia Employees
Retirement System, as lead plaintiff on behalf of a purported
class of all persons or entities who purchased our securities
between November 3, 2010 and October 14, 2013 (the "City of
Livonia Complaint").
"The City of Livonia Complaint alleged claims under the antifraud
and controlling person liability provisions of the Exchange Act,
alleging generally, among other assertions, that we employed
inadequate internal financial reporting controls that resulted in,
among other things, improper revenue recognition, understated cost
of sales, overstated operating income, net income and earnings per
share, and the failure to detect inventory lost through theft;
that we issued materially false financial results that had to be
restated on two occasions; and that statements of Messrs. Kenny
and Robinson that they had tested and found effective our internal
controls over financial reporting and disclosure were false.
"The City of Livonia Complaint alleged that as a result of the
foregoing, our stock price was artificially inflated and the
plaintiffs suffered damages in connection with their purchase of
our stock. The City of Livonia Complaint sought damages in an
unspecified amount; reasonable costs and expenses, including
counsel and experts fees; and such equitable injunctive or other
relief as the Court deems just and proper."
On January 27, 2015, the Court dismissed the City of Livonia
Complaint, with prejudice, based on plaintiff's failure to state a
claim upon which relief could be granted. On February 24, 2015,
plaintiff filed a motion to alter or amend the January 27, 2015
judgment and for leave to file the proposed amended complaint,
which the lower Court also denied. On June 9, 2015, plaintiff
appealed the lower Court's decisions to the Sixth Circuit Court of
Appeals, which appeal is pending.
GENERAL MOTORS: Conference Takes Up Ignition Switch Fiasco
----------------------------------------------------------
Sheri Qualters, writing for The National Law Journal, reports that
the takeaway for lawyers from the GM ignition-switch fiasco is for
legal staff to have an open path for full disclosure-up the chain.
That was the conclusion from a discussion at the panel titled
"General Motors: What In-house Counsel Can Learn from the Valukas
Report" on Oct. 20 at the Association of Corporate Counsel's
annual meeting. The panel at the conference in Boston focused on
the report that slammed General Motors Co.'s response to a deadly
ignition-switch defect.
Those in the general counsel or top in-house roles, "need to
articulate the rule and live with that rule. You have to follow
that rule and not punish someone," said Evan Slavitt, general
counsel AVX Corp.
Mr. Slavitt led a session with Allie Wright, associate general
counsel at Allegis Group Inc., and Joseph O'Dea Jr., a commercial
litigation partner at Philadelphia's Saul Ewing.
In 2014, Jenner & Block chairman Anton Valukas' 315-page report
detailed GM's failure to identify an ignition-switch defect that
shut down the engine and air bag function.
The report found that lower level lawyers failed to report
problems with the ignition switch to the company's then general
counsel, who has since retired, and a top deputy.
In September, the company agreed to pay $900 million in criminal
penalties and $575 million in civil settlements. The defect led
to more than 100 deaths.
Mr. Slavitt, who was somewhat critical of the Valukas report, said
it "assumes an omnipotence of lawyers that is not really
justified."
Still, he agreed that in-house lawyers must retain responsibility
over serious ethical and legal problems, even when others in the
company get involved.
"It's our problem. It doesn't stop being our problem just because
it's also someone else's problem," Mr. Slavitt said.
Wright said lower-level lawyers have a responsibility to report
anything that might be detrimental to the client up the chain of
command. That could include reporting it to the general counsel,
the company's board of directors or regulatory authorities in some
industries, Wright said.
"We have to be able to speak up to people who are in control and
can make decisions," Wright said.
Mr. O'Dea said the GM situation "really is a systemic failure."
But a crisis can be the catalyst to change a culture, O'Dea said.
"Don't let a meeting conclude without saying who's got ownership.
Who owns this issue," O'Dea said.
The two in-house panelists acknowledged the risks of speaking out
about company problems. Mr. Slavitt said a lawyer's fiduciary
duty to his or her client trumps that risk.
"Every day is a day you might get fired because of your
professional obligation," Mr. Slavitt said.
GENERAL MOTORS: Beefs Up Ignition-Switch Scandal Defense Team
-------------------------------------------------------------
Sue Reisinger, writing for Corporate Counsel, reports that General
Motors on Oct. 20 announced the hiring of two high-powered deputy
general counsel as it fills the void left by lawyers ousted during
its ignition switch scandal last year. One will lead its massive
litigation efforts while the other will work with a federal
monitor to ensure that the auto company fulfills the mandates laid
down in its deferred prosecution agreement.
It is no coincidence that general counsel Craig Glidden, hired
from the outside on March 1 to rebuild GM's legal department and
help change the company culture, hired both new deputy GCs from
the outside as well. GM has traditionally promoted its lawyers
from within, including former general counsel Michael Millikin.
One of the outside hires is Jeffrey Taylor, a former interim U.S.
attorney for Washington, D.C., and now general counsel of Raytheon
Integrated Defense Systems. He will become GM's deputy GC for
federal oversight, a newly created position, on Nov. 1.
The other is Ann Cathcart Chaplin, currently the litigation
practice group leader at Fish & Richardson. On Dec. 14 she will
take over GM's litigation team, replacing Lawrence Buonomo, one of
at least five company attorneys sent packing last year for their
role in settling the faulty ignition switch cases while not
informing superiors of the safety issues.
Mr. Taylor's key job will be to work with the as-yet-named federal
monitor, who must be appointed under terms of the three-year
deferred prosecution agreement GM signed in September. The
monitor will be chosen by the U.S. attorney's office in New York
-- not GM -- and approved by the U.S. deputy attorney general.
Asked about progress on naming a monitor, a GM spokesman said on
Oct. 20 he had "no news" on that front.
Mr. Taylor presumably will also be trying to mend fences with the
National Transportation Safety Board, the federal regulator GM
kept in the dark for nine years on the ignition switch. He may
also work with the U.S. Securities and Exchange Commission, which
is investigating GM's failures to disclose, and Congress, which
strongly criticized the company last year in public hearings.
"Jeff is a highly accomplished attorney who has managed extremely
complex legal issues and his appointment demonstrates how
seriously we take our commitment to the federal government and our
customers to build the best safety organization in the industry,"
Mr. Glidden said in a statement.
Mr. Taylor brings much experience and some federal clout to his
new job. Before joining Raytheon as GC, he led a team of 300-plus
professionals as chief executive of Ernst & Young's fraud
investigation and dispute services practice in the Americas.
He also worked for 15 years in the U.S. Department of Justice as
an assistant U.S. attorney, senior adviser to Attorneys General
John Ashcroft and Alberto Gonzales, and as the interim U.S.
attorney for Washington, D.C., from 2006 to 2009.
The ignition switch scandal also means Cathcart Chaplin will have
her hands full. Even after settling dozens of such cases earlier
this year, GM faces at least 84 more death cases and 380 injury
suits in the multidistrict litigation due to go to trial in
January. Other investigations by state attorneys general, Canada
and others are pending.
In her current job Cathcart Chaplin oversees 245 lawyers in 12
offices worldwide, and for the past 11 years her litigation group
has handled more patent litigation in the U.S. than any other
firm, according to GM.
"Ann is a great addition to our team. She is an experienced trial
lawyer, an exceptional leader, and her work in litigation project
management has been innovative," said Mr. Glidden's statement.
"Having her expertise at GM will be an incredible asset as we
manage complex legal issues, and deploy advanced technology to
transform our vehicles and the way we manage the business."
Meanwhile, in-house lawyers across the country continue to examine
the GM's scandal for the lessons it holds for them. The latest
was a panel discussion Oct. 20 at the Association of Corporate
Counsel's annual meeting, which concluded that a company's legal
staff needs to have an open path for full disclosure up the chain.
GENERAL MOTORS: Settlement Money Goes to Auto Safety Research
-------------------------------------------------------------
Katheryn Hayes Tucker, writing for Daily Report, reports that some
of the more than $6 million General Motors paid a Cobb County
couple to settle the lawsuit that identified a deadly ignition
switch defect will be spent for safety research for cars.
Ken and Beth Melton have become sponsors of a nonprofit
organization that compiles data on automobile safety complaints
nationwide. The current edition of the Safety Institute's Vehicle
Safety Watch List discloses their investment and says it is being
made in memory of their daughter, Brooke Melton. She was a 29-
year-old nurse who died in 2010 after her 2005 Chevy Cobalt
crashed. Police initially said she lost control because of wet
roads. But her parents hired Lance Cooper of the Cooper Firm in
Marietta, whose investigation found the faulty ignition switch
that turned off while the car was running full speed on the
highway, causing a loss of power steering and brakes and shutting
off the air bags. The same defect was found in other cases
involving other GM cars. Ultimately, the Meltons' case led to 30
million recalls. They settled with GM in March for a confidential
amount, but revelations by both sides indicated the payment was at
least $6 million.
The Vehicle Safety Watch List website reveals the Meltons'
sponsorship and says they plan to provide "ongoing support" to its
research "in hope of preventing future tragedies." An article
notes that documents and evidence developed in the Melton case
found that GM knew about the ignition switch problem as early as
2001.
The Safety Institute executive director, Jamie Schaefer-Wilson,
confirmed the Meltons' sponsorship but declined to disclose the
amount of the investment.
The Safety Institute is a nonprofit affiliated with Rehoboth,
Massachusetts-based Safety Research & Strategies, founded by auto
safety analyst and advocate Sean Kane. Mr. Kane started his
research career with Ralph Nader's Center for Auto Safety in 1991.
Kane is president of both groups. He has also worked with the
Meltons' lawyer, Cooper, on research for other cases.
The watch list monitors vehicle defect trends and the National
Highway Traffic Safety Administration's Early Warning System
complaints as well as other recall and enforcement activities.
Its stated intention is to recognize early signs of emerging,
potential problems and to address issues that are already known.
The Meltons' premiere issue of the watch list identifies 15
potential defects, starting with a steering issue in the Ford
Focus.
GENERAL MOTORS: Judge Balks at Ignition-Switch Agreement with DoJ
------------------------------------------------------------------
Zoe Tillman, writing for The National Law Journal, reports that a
federal district judge in Washington on Oct. 21 criticized the
U.S. Department of Justice's recent agreement with General Motors
Co. as "a shocking example of potentially culpable individuals not
being criminally charged."
The Justice Department in September announced a $900 million
agreement with General Motors, which was accused of concealing
information about a deadly safety defect in its vehicles from U.S.
regulators. No individual corporate officers were charged.
U.S. District Judge Emmet Sullivan, in an opinion published late
on Oct. 21 in an unrelated white-collar criminal case involving
allegations of bribery in government contracting, cited the
General Motors agreement as an example of prosecutors going too
easy on individual corporate wrongdoers.
"Despite the fact that the reprehensible conduct of its employees
resulted in the deaths of many people, the agreement merely
'imposes on GM an independent monitor to review and assess
policies, practices, and procedures relating to GM's safety-
related public statements, sharing of engineering data, and recall
processes' plus the payment of a $900 million fine," Judge
Sullivan wrote.
Judge Sullivan contrasted the GM agreement with a recent Justice
Department policy announcement that urged prosecutors to place
greater emphasis on holding corporate actors individually
responsible.
General Motors will be subject to a "deferred-prosecution
agreement," a type of arrangement in which a criminal defendant
agrees to make reforms and meet certain conditions in exchange for
the having charges dropped after a period of time.
In his ruling on Oct. 21, Judge Sullivan approved deferred-
prosecution agreements between prosecutors and two government
contractors -- Saena Tech Corp. and Intelligent Decisions Inc. --
accused of bribing public officials.
Judge Sullivan has been publicly critical in the past of the lack
of prosecutions against individuals in white-collar criminal
cases. He's called deferred-prosecution agreements with
corporations "sweetheart deals." Earlier this summer at a meeting
of D.C. federal judges, Judge Sullivan lamented the lack of
criminal prosecutions against individuals. "No one ever goes to
jail," he said. "I think it's just unjust."
The judge used the Oct. 21 opinion in the Saena Tech case as an
opportunity to say that he was "extremely dismayed" that deferred-
prosecution agreements for individuals weren't a greater part of
the national discussion over criminal justice reform.
Such agreements, the judge wrote, could be used in other types of
criminal cases where defendants charged with nonviolent crimes
would benefit from an opportunity to clean up their act without
facing a criminal conviction on their record and jail time. These
tools could also help ease overincarceration, Judge Sullivan said.
"Notwithstanding clear congressional intent, however, the court is
disappointed that deferred-prosecution agreements or other similar
tools are not being used to provide the same opportunity to
individual defendants to demonstrate their rehabilitation without
triggering the devastating collateral consequences of a criminal
conviction," Judge Sullivan wrote.
GENERAL MOTORS: Former General Counsel Faces Subpoena
-----------------------------------------------------
Amanda Bronstad, writing for The National Law Journal, reports
that the former general counsel of General Motors Co. is fending
off a subpoena to testify in the first bellwether trial over the
ignition switch defect that prompted recalls of 2.6 million cars
and trucks last year.
Michael Millikin, who announced his retirement from GM last year
after being grilled on Capitol Hill for failing to act on
increasing numbers of lawsuits filed over ignition switch injuries
and deaths, was deposed for seven hours on Aug. 26 in preparation
for the trial, which begins Jan. 11 in New York. Plaintiffs
lawyers have filed a trial subpoena for his testimony in court.
So far, GM has allowed only videotaped depositions of its
employees to be played at trial, said Robert Hilliard, a partner
at Corpus Christi, Texas-based Hilliard, Munoz Gonzales, and
co-lead plaintiffs counsel in the ignition switch litigation.
Having Millikin testify in court would "be extremely informative
to the jury and to the story," he said.
"We would like the opportunity of having a live, breathing human
being on the stand," he said. "We want to be able to show, let
the jury see, exactly what was going on inside GM in real time,
not just from an engineering standpoint but from the lawyer's
standpoint."
The trial is the first of hundreds of cases alleging deaths and
injuries from accidents allegedly tied to the defect, which causes
the ignition switch to slip into the accessory position, shutting
down engines and disabling air bags.
Mr. Millikin's attorney, Dechert Chairman Andrew Levander, did not
respond to a request for comment.
GM spokesman James Cain wrote in an email: "We are working with
Mr. Millikin's personal counsel to respond to the subpoena for his
testimony."
The subpoena against Mr. Millikin is the latest attempt in the GM
ignition switch debacle to put lawyers in the hot seat. At least
nine GM lawyers have been deposed, according to Hilliard.
Plaintiffs have waged war over the scope of a Sept. 24 deposition
of Anton Valukas, chairman of Jenner & Block, whose internal
investigation blamed the defect on a handful of employees,
At the same time, plaintiff lawyers want the privileged notes and
memos of lawyers at King & Spalding, GM's outside counsel in many
of the accident cases.
In their attempt to invoke the crime-fraud exception to the King &
Spalding notes, plaintiffs lawyers now have cited the $900 million
deferred prosecution agreement GM reached on Sept. 17 with the
U.S. Justice Department. In that deal, GM, which admitted it
failed to adequately disclose the defect to the U.S. National
Highway Traffic Safety Administration while assuring its customers
its cars were safe, agreed not to make any statement in litigation
that contradicted a "statement of facts" in the deferred
prosecution agreement. GM's court filings on the King & Spalding
issue that were made prior to the deferred prosecution agreement
now contradict those statements, Hilliard said.
"In support of their defense of the attorney-client privilege,
they've taken positions contrary to the deferred prosecution
agreement," he said.
Mr. Cain, GM's spokesman, disputed that characterization. "We
continue to believe that the crime-fraud exception does not apply
in this case," he wrote.
The injury and death cases are not among the 1,380 lawsuits,
including a shareholder case, that GM on Sept. 17 settled for $575
million. Most of the remaining cases are class actions by
consumers, but six involving injuries and deaths are slated for
trial next year. The first, in which plaintiffs seek Millikin's
in-court testimony, comes in a case brought by Robert Scheuer, who
was injured in a 2014 crash in Bristle, Oklahoma, involving his
2003 Saturn Ion. According to his complaint, Scheuer, 47,
suffered neck pain and was hospitalized after the air bags failed
to go off when he crashed into a tree at 60 miles per hour to
avoid another vehicle.
So far, more than 240 people have been deposed, including GM CEO
Mary Barra on Oct. 19.
GM, meanwhile, has sought to depose a representative of ignition
switch manufacturer Delphi Automotive Systems to discuss oral
communications it had with plaintiffs attorneys as part of a 2014
agreement in which it provided information in exchange for not
being sued. Delphi, which already has provided representatives
for depositions, has insisted in court papers that the only person
who could answer those questions is former in-house counsel
Joseph Papelian, who wouldn't be able to divulge information under
attorney-client privilege.
But GM also wants Delphi to explain how 400 boxes of documents,
several of which were labeled "Ignition PPAP," got destroyed.
Papelian, in a declaration, said the document destruction was
inadvertent and, in any case, didn't involve ignition switches.
On Oct. 16, Furman sided with Delphi on the 2014 agreement but
allowed GM to depose a representative on the document destruction.
GOLDSTEIN P.A.: "Botting" Suit Seeks to Recover Unpaid Overtime
---------------------------------------------------------------
Vrolet Botting, for and in behalf of herself and other employees
similarly situated, Plaintiff, v. Cindy A. Goldstein, P.A.,
Defendant, Case No. 0:15-cv-62113-BB (S.D. Fla., October 7, 2015),
seeks for unpaid overtime compensation, liquidated damages, and
other relief under the Fair Labor Standards Act of 1938.
According to the Complaint, the Defendants do not compensate the
Plaintiff for overtime work.
Defendant, Cindy A. Goldstein, P.A. is a Florida corporation doing
business in Florida. Cindy A. Goldstein is the sole owner and
operator of the Defendant.
The Plaintiff is represented by:
Michael Gulisano, Esq.
5613 NW 117th Ave.
Coral Springs, FL 33076
Phone: 561-271-1678
Email: gulisanomichael@gmail.com
GOODMAN MANAGEMENT: "Berisha" Suit Seeks Payment of OT & Wages
--------------------------------------------------------------
Frank Berisha, individually and on behalf of all others similarly
situated, Plaintiff, v. Goodman Management Co., Inc., Richard
Goodman and Arthur Meltser, jointly and severally, Defendants,
Case No. 1:15-cv-07830 (S.D.N.Y., October 2, 2015), seeks to
recover overtime pays and unpaid wages under the Fair Labor
Standards Act and the New York Labor Law.
According to the Complaint, Plaintiff worked as a
concierge/doorman for Defendant's building management company
located in Bronx, NY. Despite the fact that Plaintiff was required
to perform work both before and after his 8-hour scheduled shifts
each day, Defendants paid Plaintiff and their other
concierges/doormen on a per-shift basis of only eight hours per
shift, nothing more. Accordingly, Defendants failed to pay
Plaintiff and their other concierges/doormen for all hours worked,
let alone overtime premium pay when such work was performed in
excess of 40 hours in a given workweek.
Defendant Goodman Management has been a building management
company with its principal office located at 5683 Riverdale
Avenue, Suite 203, Bronx, NY 10471.
Defendant Goodman Management has been a building management
company with its principal office located at 5683 Riverdale
Avenue, Suite 203, Bronx, NY 10471.
Defendant Meltser hired Plaintiff to work for Defendants at the
building located at 27 Palisade Avenue, Bronx, NY. Defendant
Meltser set Plaintiff's pay rate, schedule and controlled and
directed Plaintiff's work at this building.
Defendants R. Goodman and Meltser hire and fire, set the pay rates
and schedules, and supervise, direct and control the work of all
of the concierges/doormen who work at all of the buildings that
Defendants manage.
The Plaintiff is represented by:
Brent E. Pelton, Esq.
Taylor B. Graham, Esq.
Alison G. Lobban, Esq.
PELTON & ASSOCIATES PC
111 Broadway, Suite 1503
New York, NY 10006
Telephone: (212) 385-9700
HAWAIIAN ELECTRIC: Continue to Defend Class Actions
---------------------------------------------------
Hawaiian Electric Industries, Inc. and Hawaiian Electric Company,
Inc. said in their Form 10-Q Report filed with the Securities and
Exchange Commission on August 10, 2015, for the quarterly period
ended June 30, 2015, that the Companies continue to defend class
action complaints.
Since the December 3, 2014 announcement of the merger agreement,
eight purported class action complaints were filed in the Circuit
Court of the First Circuit for the State of Hawaii by alleged
stockholders of HEI against HEI, Hawaiian Electric (in one
complaint), the individual directors of HEI, NEE and NEE's
acquisition subsidiaries. The lawsuits are captioned as follows:
Miller v. Hawaiian Electric Industries, Inc., et al., Case No. 14-
1-2531-12 KTN (December 15, 2014) (the Miller Action); Walsh v.
Hawaiian Electric Industries, Inc., et al., Case No. 14-1-2541-12
JHC (December 15, 2014) (the Walsh Action); Stein v. Hawaiian
Electric Industries, Inc., et al., Case No. 14-1-2555-12 KTN
(December 17, 2014) (the Stein Action); Brown v. Hawaiian Electric
Industries, Inc., et al., Case No. 14-1-2643-12 RAN (December 30,
2014) (the Brown Action); Cohn v. Hawaiian Electric Industries,
Inc., et al., Case No. 14-1-2642-12 KTN (December 30, 2014) (the
Cohn State Action); Guenther v. Watanabe, et al., Case No. 15-1-
003-01 ECN (January 2, 2015) (the Guenther Action); Hudson v.
Hawaiian Electric Industries, Inc., et al., Case No. 15-1-0013-01
JHC (January 5, 2015) (the Hudson Action); Grieco v. Hawaiian
Electric Industries, Inc., et al., Case No. 15-1-0094-01 KKS
(January 21, 2015) (the Grieco Action).
On January 12, 2015, plaintiffs in the Miller Action, the Walsh
Action, the Stein Action, the Brown Action, the Guenther Action,
and the Hudson Action filed a motion to consolidate their actions
and to appoint co-lead counsel. The Court held a hearing on this
motion on February 13, 2015 and granted consolidation and
appointment of co-lead counsel on March 6, 2015.
On March 10, 2015, plaintiffs in the consolidated state action
filed an amended complaint, and added J.P. Morgan Securities, LLC
(JP Morgan), which was HEI's financial advisor for the Merger, as
a defendant. On March 17, 2015, plaintiffs in the consolidated
state action moved for limited expedited discovery. After limited
discovery, the parties in the consolidated state action stipulated
and the Court ordered that the deadline for defendants to respond
to the amended complaint is extended indefinitely.
On April 30, 2015, the Court consolidated the seven state actions
under the caption, In re Consolidated HEI Shareholder Cases.
On January 23, 2015, the Cohn State Action was voluntarily
dismissed. Thereafter, the same alleged stockholder plaintiff
filed a purported class action complaint in the United States
District Court for the District of Hawaii against HEI, the
individual directors of HEI, NEE and NEE's acquisition
subsidiaries. The lawsuit is captioned as Cohn v. Hawaiian
Electric Industries, Inc. et al., 15-cv-00029-JMS-KSC (January 27,
2015) (the Cohn Federal Action).
The actions allege, among other things, that members of HEI's
Board breached their fiduciary duties in connection with the
proposed transaction, and that the Merger Agreement involves an
unfair price, was the product of an inadequate sales process, and
contains unreasonable deal protection devices that purportedly
preclude competing offers. The complaints further allege that HEI,
NEE and/or its acquisition subsidiaries aided and abetted the
purported breaches of fiduciary duty. The plaintiffs in these
lawsuits seek, among other things, (i) a declaration that the
Merger Agreement was entered into in breach of HEI's directors'
fiduciary duties, (ii) an injunction enjoining the HEI Board from
consummating the Merger, (iii) an order directing the HEI Board to
exercise their duties to obtain a transaction which is in the best
interests of HEI's stockholders, (iv) a rescission of the Merger
to the extent that it is consummated, and/or (v) damages suffered
as a result of the defendants' alleged actions. Plaintiffs in the
consolidated state action also allege that JP Morgan had a
conflict of interest in advising HEI because JP Morgan and its
affiliates had business ties to and investments in NEE. The
consolidated state action also alleges that the HEI board of
directors violated its fiduciary duties by omitting material facts
from the Registration Statement on Form S-4. In addition, the Cohn
Federal Action alleges that the HEI board of directors violated
its fiduciary duties and federal securities laws by omitting
material facts from the Registration Statement on Form S-4.
HEI and Hawaiian Electric believe the allegations of the
complaints are without merit and intend to defend these lawsuits
vigorously.
HESTER ENVIRONMENTAL: "Ortez" Suit Seeks to Recover Unpaid Wages
----------------------------------------------------------------
Felix Ortez, and Rudis Yanez, individually and on behalf of all
other similarly situated, Plaintiffs, vs. Hester Environmental, LP
dba Team Enterprise; and Philip Hester, Defendants, Case No. 3:15-
cv-03208-D (N.D. Tex., October 2, 2015), seeks to recover unpaid
wages under the federal Fair Labor Standards Act.
Defendant Team Enterprise operates as a sanitary services
business, specializing in mold, asbestos, and/or lead abatement,
removal, and remediation projects. Team Enterprise has employed
workers to perform mold, asbestos, and/or lead abatement and
removal work at facilities throughout the Dallas-Fort Worth
Metroplex. It is a limited partnership formed and licensed to do
business in the State of Texas.
Defendant Philip Hester is an individual and is the General
Partner of and registered agent for Hester Environmental, LP, dba
Team Enterprise. Throughout the relevant period, Philip Hester has
had operational control over Team Enterprise, exercised control
over the terms and conditions of Team Enterprise employees' work,
and had the power to act on behalf of Team Enterprise vis-a-vis
its employees.
The Plaintiffs are represented by:
Michael O'Keefe Cowles, Esq.
Gonzalo Serrano, Esq.
EQUAL JUSTICE CENTER
1801 N. Lamar, Suite 325
Dallas, TX 75201
Tel: (469) 203-2150
Fax: (469) 629-5045
Email: mcowles@equaljusticecenter.org
gserrano@equaljusticecenter.org
HOME PROPERTIES: Facing Class Actions Related to Merger
-------------------------------------------------------
Home Properties, Inc., Home Properties, L.P. (the "Operating
Partnership"), LSREF4 Lighthouse Acquisitions, LLC, a Delaware
limited liability company ("Parent"), LSREF4 Lighthouse Corporate
Acquisitions, LLC, a Maryland limited liability company and
wholly-owned subsidiary of Parent ("MergerSub"), LSREF4 Lighthouse
Operating Acquisitions, LLC, a New York limited liability company
and wholly-owned subsidiary of MergerSub ("Partnership
MergerSub"), and UDR, Inc., a Maryland corporation ("UDR"), on
June 22, 2015, entered into an Agreement and Plan of Merger (the
"Merger Agreement").
Home Properties said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 10, 2015, for the
quarterly period ended June 30, 2015, that a purported class
action related to the Merger Agreement, Kelly v. Home Properties,
Inc., et al., was filed on June 26, 2015, in the Circuit Court for
Baltimore City, Maryland, Case No. 24C15003400, against the
Company, the Operating Partnership, Lone Star Funds, Parent,
MergerSub, Partnership MergerSub, and the members of Home
Properties' board of directors. Five other lawsuits, Lipovich v.
Pettinella et al., Jonas v. Home Properties, Inc., et al., Umbach
v. Home Properties, Inc., et al., Halberstam v. Home Properties,
Inc., et al. and Sindoni v. Home Properties, Inc., et al., were
subsequently filed in the Circuit Court for Baltimore City,
Maryland, Case Nos. 24C15003523, 24C15003618, 24C15003707,
24C15003737 and 24C15003881, on July 1, 2015, July 9, 2015, July
15, 2015, July 16, 2015, and July 24, 2015 respectively.
These six lawsuits generally allege breaches of fiduciary duties
by our directors in connection with the merger agreement. More
specifically, the complaints allege that the defendants failed to
take appropriate steps to maximize stockholder value and
improperly favored themselves in connection with the proposed
transaction. The complaints further assert that the Merger
Agreement contains several deal protection provisions that are
unnecessarily preclusive. The complaints also allege that some or
all of the Company, the Operating Partnership, Lone Star Funds,
Parent, MergerSub, Partnership MergerSub, and UDR aided and
abetted the directors' purported breaches of fiduciary duty.
Additionally, the plaintiff in Jonas v. Home Properties, Inc., et
al. purports to bring derivative claims for breach of fiduciary
duty. The complaints seek to enjoin defendants from consummating
the proposed mergers, to rescind, to the extent already
implemented, the Merger Agreement, and various additional
remedies. The defendants believe that the allegations against
them lack merit and intend to defend against the lawsuits
vigorously.
HULU: Averts Video Privacy Class Action
---------------------------------------
Ross Todd, writing for The Recorder, reports that Hulu has shaken
off a long-running privacy suit that accused the video-streaming
service of illegally sharing users' viewing histories with
Facebook Inc. and other third parties.
The U.S. Court of Appeals for the Ninth Circuit signed off on
Oct. 28 on a joint agreement dropping the appeal of a court order
earlier this year that dismissed the proposed class action filed
under the Video Privacy Protection Act. It's not clear if any
money changed hands. However, after investing more than four
years in the litigation, plaintiffs lawyer Scott Kamber of
KamberLaw faced long odds of resurrecting the suit.
The Ninth Circuit recently declined to revive claims brought
against Netflix and Sony under the Video Privacy Protection Act,
or VPPA, a 1988 law which bars video service providers from
disclosing users' viewing choices and carries statutory damages of
$2,500 per violation.
Reached by email, Mr. Kamber declined to comment. A Hulu
spokesperson didn't immediately respond to email messages.
In In re Hulu Privacy Litigation, 11-3764, plaintiffs claimed the
company disclosed users' identifying information and viewing
histories to Facebook and third-party data analytics firms.
Plaintiffs won an early ruling from U.S. Magistrate Judge Laurel
Beeler finding that Hulu qualified as a "video tape service
provider" under the VPPA and that the law didn't require a showing
of actual harm for an award of statutory damages.
But the judge later chipped away at the suit. Judge Beeler first
knocked out claims related to Hulu's sharing of anonymized data
with a metrics firm tracking general viewing habits. She later
denied class certification, finding it would be too difficult to
determine who should recover damages and that the potential
windfall for plaintiffs at $2,500 per claimant was "wildly
disproportionate to any adverse effects the class members
suffered, and it shocks the conscience."
In April, Judge Beeler dismissed the plaintiffs' sole remaining
claim, finding no evidence that Hulu knew that Facebook might
combine information identifying users with data showing which
video they watched.
No settlement papers have been filed in district court, indicating
that any deal involved only the name plaintiffs and will remain
confidential.
Hulu was represented on appeal by Irell & Manella and Covington &
Burling.
J&M RESTAURANT: "Euceda" Suit Alleges FLSA Violations
-----------------------------------------------------
Freddy Euceda, individually & on behalf of all similarly situated,
Plaintiffs, v. J&M Restaurant Enterprises LLC, Gene Steinbach,
Bonne Steinbach, Jaclyn Aleo, and Georgette Schnitzer, Defendants,
Case No. 2607738 (N.D.N.Y., September 30, 2015), seeks to recover
unpaid overtime under the Fair Labor Standards Act.
The Defendant operates an Irish pub located at 550 Plandome Rd.,
Munhasset, New York 11030.
Individual defendants Gene Steinbach, Bonne Steinbach, Jaclyn
Aleo, and Georgette Schnitzer possess operational control over the
Defendant Corporation, possess an ownership interest in the
Defendant Corporation, and control significant functions of the
Defendant Corporation.
The Plaintiff is represented by:
Michael A. Fallace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 2540
New York, NY 10165
Telephone: (212) 317-1200
JANSSEN PHARMA: Third Risperdal Trial Begins in Philadelphia
------------------------------------------------------------
P.J. D'Annunzio, writing for Law.com, reports that lawyers in the
third Risperdal gynecomastia trial against Johnson & Johnson
subsidiary Janssen Pharmaceuticals in the Philadelphia Court of
Common Pleas on Oct. 15 painted starkly different pictures to the
jury on what caused a young boy to grow enlarged breasts.
Plaintiff Tim Stange's case will be the tiebreaker in the
litigation, as the first and second trials resulted in victories
for the plaintiff and defendants, respectively. On Feb. 25, a
jury awarded $2.5 million to plaintiff Austin Pledger, while on
March 20, the jury in plaintiff William Cirba's case came back in
favor of Janssen.
Mr. Stange, like the other plaintiffs, alleged his use of the
antipsychotic drug Risperdal caused him to develop enlarged
breasts. Mr. Stange took Risperdal from 2006 to 2009 to control
his Tourette syndrome symptoms.
Before the jury in Philadelphia Court of Common Pleas Judge
Kenneth Powell's courtroom, Thomas R. Kline of Kline & Specter,
representing Stange, repeated allegations made by plaintiffs in
the other cases that Janssen failed to warn doctors of the
increased risk of breast development in young males associated
with taking Risperdal.
Mr. Stange started taking the drug when he was 11 years old, and
according to Kline, "a year after the prescription of the drug, he
had grown female breasts."
Mr. Kline said Mr. Stange had surgery to remove the excess breast
tissue when he was 18, but the emotional damage that came from his
peers' taunts is not so easily repaired.
He added the drug caused Mr. Stange to gain 60 pounds, initially
masking the breast growth. The gynecomastia, Mr. Kline argued,
was not revealed until Stange had lost weight after ending his use
of the drug. Mr. Stange also complained of stabbing pains in his
left nipple while on the drug.
Mr. Kline told the jury that Risperdal was marketed for off-label
use in children, despite the fact that it was not indicated by the
U.S. Food and Drug Administration for that purpose.
"The drug was never, ever approved for children with Tourette's,
but Janssen Pharmaceuticals had different ideas, and that affected
what they were willing to tell doctors about the drug and what its
real risks were," Kline said.
He further maintained that Janssen hid information on the alleged
increased prolactin levels -- the hormone that causes breast
growth -- associated with Risperdal from the FDA. And on the
Risperdal label, Kline said, Janssen noted the incidence of
increased prolactin levels was rare (one case of gynecomastia in
1,000) when it was actually closer to five in 100.
McCarter & English chairman Michael Kelly -- mkelly@mccarter.com
-- went up to bat for Janssen after Mr. Kline had concluded his
opening remarks.
Mr. Kelly said Mr. Stange didn't complain of gynecomastia until
after he had been off the drug for a year.
"If you're going to see something, you're going to see it while
he's taking the drug," Mr. Kelly explained to the jury.
McCarter & English chairman Michael Kelly went up to bat for Kelly
went on to answer Kline's claims that Mr. Stange was teased for
his enlarged breasts by pointing out that he was also teased for
his Tourette syndrome, a condition that Risperdal helped to
improve.
He also asked the jury that if Risperdal was such a bad drug, why
did Stange's doctor keep prescribing it to him for four years
before switching to a generic? Mr. Kelly said the doctor was aware
of the risks and benefits.
Additionally, Mr. Kelly said puberty is the main cause of
gynecomastia, and Mr. Stange took Risperdal right in the middle of
it. He also said 50 to 75 percent of boys going through puberty
experience breast growth; for some, it diminishes afterward and
for others, it remains.
He told the jury that Mr. Stange was never tested to see if his
prolactin levels had increased while on the drug.
Mr. Kelly added Mr. Stange's weight gain could also be attributed
to other drugs he was taking, along with his normal pubescent
growth spurt.
Lastly, Kelly said the warning labels on Risperdal were adequate
in informing physicians of the potential risks.
"Even the earliest label mentions prolactin," Mr. Kelly said, and
as more testing was done down the road, the warnings were updated.
JCS SECURITY FORCE: "Viera" Suit Alleges FLSA Violations
--------------------------------------------------------
Raul Viera, and other similarly situated individuals, Plaintiff,
vs. JCS Security Force Corporation, a Florida Profit Corporation
and Juan C. Walters, Defendants, Case No. 32607738 (Circuit Court
of the 11th Judicial Circuit in and for Miami Dade County,
Florida, September 29, 2015), seeks to recover unpaid wages under
the Fair Labor Standards Act.
Juan C. Walters, is a corporate officer of, and exercised
operational control over the activities of, JCS Security Force
Corporation.
The Plaintiff is represented by:
Jason S. Remer, Esq.
Brody M. Shulman, Esq.
REMER & GEORGES-PIERRE, PLLC
44 West Flagler Street, Suite 2200
Miami, FL 33130
Telephone: (305) 416-5000
Facsimile: (305) 416-5005
E-mail: jremer@rgpattorneys.com
JUNGLE ISLAND: Miami Non-Profit Files Suit Over Ramp Charges
------------------------------------------------------------
Celia Ampel, writing for Daily Business Review, reports that a
Miami nonprofit is suing Jungle Island for charging extra for a
ramp so that award recipients with disabilities could reach the
stage at an event.
The fair-housing organization Housing Opportunities Project for
Excellence claims the zoological park and its caterer violated the
Americans with Disabilities Act by charging $2,261 for the ramp.
The city of Miami, which owns Watson Island and leases to Jungle
Island, is also a defendant in the federal lawsuit filed Oct. 16.
"You can't surcharge a group for having persons with disabilities
attend," said Matthew Dietz, HOPE's attorney and cofounder of the
Miami nonprofit legal advocacy center Disability Independence
Group. "It's wrong, especially when they are the honorees."
HOPE held its annual Miami-Dade County Fair Housing Month
Celebration on April 17 in Jungle Island's Treetop Ballroom. The
nonprofit has held the event at Jungle Island many times before,
but it had never asked for a ramp until this year, when it honored
three people with mobility impairments.
Jungle Island and its caterer, Ovations Food Services L.P., told
HOPE they would have to pay to use a ramp from an outside vendor,
according to the lawsuit.
HOPE objected that the ramp was a reasonable accommodation that
the venue should cover for any of its 700 annual events, HOPE
President and CEO Keenya Robertson said.
"If you had a bride in a wheelchair, is her wedding more expensive
because she needs a ramp to get up on the riser?" she asked.
HOPE ultimately paid the $2,261 but has been trying to get the
money back ever since, starting with discussions with the city,
the venue and the caterer.
The city alerted Jungle Island to the possible ADA violation in
May, and park owner Bern Levine responded via email that "a call
to the ADA Advisory Board confirmed their request was not
'reasonable accommodation,'" according to the lawsuit. "The
alternative to leasing the ramp was to have the head table at
grade level. Many of our clients do this."
Mr. Levine also said Jungle Island offered to cover half the cost
of the ramp.
"Who wants to pay half of a bill they shouldn't have had to pay in
the first place?" Robertson said.
She said a stage is often necessary for event attendees to see
what's happening, and she has never had to pay for a stage at any
venue.
The lawsuit claims Jungle Island and the city are not only liable
for damages under the ADA, but also under the Rehabilitation Act
of 1973, which prohibits federal agencies from discriminating
against people with disabilities.
That law applies because Miami and Jungle Island received a $25
million loan from the U.S. Department of Housing and Urban
Development to move the park from Pinecrest to Watson Island,
according to the lawsuit.
HOPE objected that the ramp was a reasonable accommodation that
the venue should cover for any of its 700 annual events, HOPE
President and CEO Keenya Robertson said.
"If you had a bride in a wheelchair, is her wedding more expensive
because she needs a ramp to get up on the riser?" she asked.
HOPE ultimately paid the $2,261 but has been trying to get the
money back ever since, starting with discussions with the city,
the venue and the caterer.
The city alerted Jungle Island to the possible ADA violation in
May, and park owner Bern Levine responded via email that "a call
to the ADA Advisory Board confirmed their request was not
'reasonable accommodation,'" according to the lawsuit. "The
alternative to leasing the ramp was to have the head table at
grade level. Many of our clients do this."
Mr. Levine also said Jungle Island offered to cover half the cost
of the ramp.
"Who wants to pay half of a bill they shouldn't have had to pay in
the first place?" Ms. Robertson said.
She said a stage is often necessary for event attendees to see
what's happening, and she has never had to pay for a stage at any
venue.
The lawsuit claims Jungle Island and the city are not only liable
for damages under the ADA, but also under the Rehabilitation Act
of 1973, which prohibits federal agencies from discriminating
against people with disabilities.
That law applies because Miami and Jungle Island received a $25
million loan from the U.S. Department of Housing and Urban
Development to move the park from Pinecrest to Watson Island,
according to the lawsuit.
HOPE is under contract to have its next April event at Jungle
Island. Mr. Dietz said he hopes the lawsuit will be resolved as
quickly as possible.
"We have no interest in making life harder for any of our partners
that we work with," he said. "We just want to make sure that
everybody's treated the same."
The city of Miami, Jungle Island and Ovations did not comment by
deadline. Comcast Spectacor recently rebranded Ovations to Food
Services & Hospitality at Spectra.
"The comfort and safety of all of our guests is a top priority for
Spectra Food Services & Hospitality (formerly Ovations Food
Services)," a spokeswoman said via email. "We are aware of the
lawsuit and are reviewing it."
KNIGHT TRANSPORTATION: Preliminary Accord Reached in Class Suit
---------------------------------------------------------------
Knight Transportation, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 10, 2015,
for the quarterly period ended June 30, 2015, that during the
second quarter of 2015, the Company reached a preliminary
settlement with the plaintiffs in a class action lawsuit.
The Company said, "We are a defendant in a class action lawsuit
which was filed on May 8, 2008, in the California Superior Court
for Tulare County. The plaintiffs, who are current and former
drivers and who worked for us during the period of May 8, 2004
through the present, allege claims for failure to provide meal
periods, inaccurate itemized pay statements and other items under
the California Labor Code. During the second quarter of 2015, we
reached a preliminary settlement with the plaintiffs. Should the
settlement not be approved by the court, further negotiations may
take place that could result in a different settlement, or the
case may continue on to trial, which could result in a judgment
for a different amount."
* * *
Knight Transportation also said in its Form 10-Q Report that as a
result of the California settlement and the decision in an Oregon
class action, during the second quarter of 2015, the Company
accrued a total of $7.2 million, including the plaintiffs'
estimated attorneys' fees and related costs and excluding
attorneys' fees and costs related to our defense, in our condensed
consolidated financial statements. The Company had previously
accrued $0.2 million as of December 31, 2014 related to these
cases.
KNIGHT TRANSPORTATION: Awaits Final Judgment in Oregon Action
-------------------------------------------------------------
Knight Transportation, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 10, 2015,
for the quarterly period ended June 30, 2015, that a final
judgment has not yet been entered in the Oregon class action.
The Company said, "We are also a defendant in a class action
lawsuit which was filed on June 10, 2010, in the Oregon Circuit
Court for Multnomah County. The plaintiffs, who are current and
former drivers who worked for us during the period of June 10,
2004 through the date of the lawsuit was filed, allege the Company
failed to pay minimum wage for attending pre-employment
orientation and failed to pay minimum wage for work performed
during certain pay periods after the start of employment. On July
2, 2015, the court, following a bench trial, issued a decision
finding that we failed to pay minimum wage to some class members
for work performed during certain pay periods and assessed
statutory penalties and prejudgment interest related to our
failure to comply with minimum wage obligations. A final judgment
has not yet been entered."
* * *
Knight Transportation also said in its Form 10-Q Report that as a
result of the settlement in a California class action and the
Oregon decision, during the second quarter of 2015, the Company
accrued a total of $7.2 million, including the plaintiffs'
estimated attorneys' fees and related costs and excluding
attorneys' fees and costs related to our defense, in our condensed
consolidated financial statements. The Company had previously
accrued $0.2 million as of December 31, 2014 related to these
cases.
LEWIS ENERGY: "Canales" Suit Seeks to Recover Unpaid OT
-------------------------------------------------------
Jaime E. Canales, individually and on behalf of all others
similarly situated, Plaintiff, v. LEWIS ENERGY GROUP, L.P. and
LEWIS RESOURCE MANAGEMENT, LLC, Defendants, Case No. 5:15-cv-00225
(S.D. Tex., October 7, 2015), seeks to recover unpaid overtime
pays under the Fair Labor Standards Act of 1938.
Defendant Lewis Energy Group, L.P. is a Delaware limited
partnership that may be served with process by serving its
registered agent, Tercero Navarro, Inc. Lewis Energy is "a
vertically-integrated oil and gas company" that does business in
the territorial jurisdiction of this Court.
Defendant Lewis Resource Management, LLC is a Texas limited
liability company that may be served with process by serving the
Texas Secretary of State.
The Plaintiff is represented by:
Melissa Moore, Esq.
Curt Hesse, Esq.
MOORE & ASSOCIATES
Lyric Center 440 Louisiana Street, Suite 675
Houston, TX 77002
Telephone: (713) 222-6775
Facsimile: (713) 222-6739
MACHINE ZONE: Judge Rejects Unfair Competition Legal Claims
-----------------------------------------------------------
Ross Todd, writing for The Recorder, reports that the Edelson firm
in Chicago so far this year has sued the makers of the "massively
multiplayer" games "Game of War: Fire Age" and "Castle Clash" as
well as the companies who run social casino games "Big Fish
Casino," "Slotomania" and "Double Down Casino."
The games derive much of their revenue from a tiny sliver of users
who pay real-world money for virtual "coins," "gems," "chips" and
currency to hasten their advancement or refill their pretend
coffers. Plaintiffs in the string of suits claim that the games
run afoul of various states' laws by running thinly veiled
gambling enterprises.
A federal judge in Baltimore became the first jurist to weigh in
on one of the suits, emphatically rejecting claims against Palo
Alto-based Machine Zone Inc., the maker of "Game of War," over its
operation of a virtual casino within the game. Among other
shortcomings, U.S. District Judge James Bredar found that a
player's losses in virtual currency can't support legal claims
under California's Unfair Competition Law and other statutes.
"Perceived unfairness in the operation and outcome of a game,
where there are no real-world losses, harms or injuries, does not
and cannot give rise to the award of a private monetary remedy by
a real-world court," Judge Bredar wrote.
But questions related to whether and when virtual world losses can
breed real-world liabilities are unlikely to disappear as quickly
as the Machine Zone suit. With annual revenues in the casino-style
online games alone pegged by analysts to hit $2.4 billion this
year, the industry has the attention of plaintiffs lawyers and
regulators.
In all five complaints, Edelson lawyers cite a study that found
more than half of people seeking treatment for gambling disorders
say that social casino games were their entry point to the habit.
Recently launched state and federal probes into the workings of
daily fantasy sports sites DraftKings and FanDuel have renewed the
discussion over where the line should be drawn between a game of
skill and a game of chance. The companies targeted in the round
of lawsuits filed by the Edelson firm aren't taking the threat
lightly. They've brought on top-flight defense firms, including
Arnold & Porter, Susman Godfrey; Sheppard, Mullin, Richter &
Hampton; and Paul Hastings.
LITIGATING OVER 'PLAY MONEY'
Edelson lawyers sued Machine Zone earlier this year on behalf of
Mia Mason, a Maryland woman who plays Game of War, a multiplayer
strategy game available on Android and Apple mobile devices where
players seek to gather resources they can use to build cities and
armies.
Although the game is free to play, players can purchase virtual
gold to help speed the conquest of virtual worlds. Ms. Mason
claimed that she lost more than $100 worth of the virtual currency
wagering at an in-game casino where players can place bets on a
virtual wheel. Spins of the wheel grant players virtual resources
such as wood, stone or additional gold.
The Edelson lawyers argued that the in-game casino was an unlawful
"slot machine or device" under California's gaming statute and
that Machine Zone violated California's Unfair Competition Law by
owning and operating it. They also sought restitution under
Maryland law and to certify a class of Game of War players who
allegedly lost "millions of dollars" in the game's casino.
Siding with Machine Zone and the company's lawyers at Arnold &
Porter, Judge Bredar wrote that the laws of California and
Maryland "do not trifle with play money," and dismissed the case
Oct. 21. He minced no words in his appraisal of the suit as a
"hodgepodge of hollow claims lacking allegations of real-world
harms or injuries." In a footnote, Bredar scolded the plaintiffs
lawyers for wasting court resources, writing that the federal
dockets are crowded enough with "credible allegations of true
harms."
Edelson's Rafey Balabanian said that he was disappointed in the
court's decision and that he plans to seek appellate review.
Machine Zone lawyer Michael Berta of Arnold & Porter said his team
was pleased by the result.
Judge Bredar concluded that although the in-game casino might
resemble a classic game of chance aesthetically, Game of War as a
whole is predominantly a game of skill. The judge also pointed
out that under the game's terms of service, Mason could never cash
out of her stake of virtual gold or sell her account to another
player. Therefore, Mason's loss occurred not in the casino, he
wrote, but at the moment she swapped "something of value (real
money) for something of whimsy (pretend 'gold')."
He further noted that each wager in the casino resulted in some
prize -- which would leave him in "the unenviable position of
pricing the conversion from virtual gold and chips to virtual wood
and rock" to determine damages in the case.
"Such a whimsical undertaking may spark the imaginations of
children and ardent game enthusiasts, but it can have no place in
federal court," he wrote.
Just like Monopoly?
Defense motions raise similar arguments in the four pending cases.
Lawyers for IGG.com, maker of Castle Clash, wasted no time in
pointing out Judge Bredar's decision to the judge overseeing its
case in the Northern District of Illinois. The company's lawyers
at Sheppard Mullin Richter & Hampton filed a copy of Judge
Bredar's decision with the court the day it was handed down,
calling it persuasive authority for the argument that anti-gaming
laws don't apply to "virtual video games with fictional heroes."
Partner Mark Eisen said that he sees some defense arguments that
hold for all the cases filed thus far. " You can't cash out. You
can't get real money," Mr. Eisen said. "You're buying the
product, and that's all it is. Whatever you get stays in the
game."
The complaint against IGG includes the allegation that the company
ran an event that ranked every player in the world by the number
of "gems" purchased within the game over a certain period in 2014.
The top 20, according to the suit, were awarded a special
character within the game ("the latest legendary Hero Moltanica").
Plaintiffs pointed to reports in an online forum dedicated to the
game claiming that players among the top of the leader board
during the event spent $3,000 in one day attempting to win.
The social casino game defendants face alleged losses by
individual plaintiffs that skew higher, climbing to $12,000 for
the name plaintiff in the suit against Slotomania. The casino-
style defendants also won't be able to argue that they operate
games of skill, not chance. Caesars Interactive Entertainment,
which acquired Slotomania's Israel-based parent company in 2011,
is represented by Paul Hastings. In a motion to dismiss, the
lawyers argue that since players need pay nothing to play and
can't cash out, it is no more gambling than the game of Monopoly.
To the Edelson lawyers, it's relevant that the casino-style game
is designed to stoke the same psychological triggers as real-world
gambling and mimic Vegas slot machines.
First-time players are awarded 10,000 free "coins." Once those run
out, players can purchase more at a price that starts at $1.99 for
7,500 coins but descends for larger purchases. The game is
connected to the same rewards program used in Caesars and Harrah's
casinos, plaintiffs allege. "There can be no question," the team
writes, "that Slotomania constitutes a gambling game."
MASSACHUSETTS: Unemployment Assistance Dept. Faces Class Suit
-------------------------------------------------------------
Amanda Castillo, Rosemond Louis, and Sylvester Miller, on behalf
of themselves and all others similarly situated, Plaintiffs, v.
Department Of Unemployment Assistance and Robert Cunningham, in
his capacity of Director of the Department of Unemployment
Assistance, Defendants, Civil Action No. 2015-2960B (Mass. Super.
Ct., Suffolk Cty., September, 30, 2015), seeks declaratory and
injunctive relief under the Massachusetts Unemployment Insurance
Law, G.L., the Social Security Act, and the Federal Unemployment
Tax Act.
According to the Complaint, Plaintiffs allege that DUA does not
follow its regulations concerning the granting of waivers even
when it knows, that the Plaintiffs have shown that they meet the
criteria set forth in those regulations; that is, Plaintiffs have
shown they cannot afford to pay back the debt and/or they gave up
another benefit when they received UI. This action also challenges
DUA's failure to provide adequate notice to claimants or
applicants whom it alleges are not entitled to a waiver of an
overpayment as to why their requests for a waiver were denied.
The Department of Unemployment Assistance, which has its
headquarters at 19 Staniford Street, Boston, MA in Suffolk County,
is charged under G.L., with the administration of the UI program
in Massachusetts pursuant to the Massachusetts Unemployment
Insurance Law, G.L., the Social Security Act, and the Federal
Unemployment Tax Act.
Defendant, Robert Cunningham, is the Director of the Department of
Unemployment Assistance, as such, is responsible for the actions
of the Department, and is sued in his official capacity. His
principle place of business is at the Department of Unemployment
Assistance, 19 Staniford Street, Boston, Suffolk County.
The Plaintiff is represented by:
Brian Flynn, Esq.
GREATER BOSTON LEGAL SERVICES
197 Friend Street
Boston, MA 021 14
Telephone: (617) 603-1629
MERCEDES-BENZ: Hogan Lovells Faces Subpoena in Seat Heaters Case
----------------------------------------------------------------
Amanda Bronstad, writing for The National Law Journal, reports
that Hogan Lovells is fighting a subpoena to turn over all its
files associated with two federal regulatory investigations into
defective seat heaters in certain Mercedes-Benz vehicles.
In 2005 and 2008, the U.S. National Highway Traffic Safety
Administration investigated consumer complaints that seat warmers
in some Mercedes-Benz models were prone to setting fire,
potentially burning occupants. The NHTSA closed both
investigations after failing to find a safety defect trend.
On Oct. 23, Hogan Lovells filed a motion to quash a subpoena for
its "entire file" of both investigations, in which Patrick Raher,
a former firm partner in Washington, had represented Mercedes-Benz
and Daimler AG. The subpoena was issued in September by
plaintiffs attorneys in a class action filed in federal court in
Los Angeles against Mercedes-Benz over allegedly defective seat
warmers.
In its motion, Hogan Lovells said most of the documents are
privileged and duplicative of materials that Mercedes-Benz already
produced in the case. Hogan Lovells partner Steven Barley also
sought sanctions against plaintiffs attorneys for the costs and
time of dealing with the "undue burden and expense" of a subpoena
demand that could contain up to 2,500 pages.
Mr. Barley and a Hogan Lovells spokesman did not respond to a
request for comment.
Plaintiffs attorney Scott Sims of Eagan Avenatti in Newport Beach,
California, wrote in an email: "NHTSA relies on manufacturers like
Mercedes Benz being completely forthright and fulfilling their
reporting obligations. As we have seen recently with Takata and
GM, if they do not, the system does not work. Plaintiffs believe
documents in Hogan Lovells' files will support the contention that
Mercedes Benz misled both NHTSA and consumers, and anticipate
filing a response to the firm's motion."
Recalls over defective seat warmers aren't new. Last year, Aston
Martin Lagonda recalled 7,256 vehicles made from 2006 to 2014
because the seat heaters could get too hot.
But the case involving the Hogan Lovells subpoena, filed on
Dec. 18 in federal court in Los Angeles, is the first class action
involving alleged seat heater defects against Mercedes-Benz.
It was brought by Elizabeth and William Callaway on behalf of a
class of Californians who purchased or leased Mercedes-Benz
vehicles model years 2000 to 2014. The suit names Mercedes-Benz
USA LLC and the dealership in Laguna Niguel where the Callaways
bought their car.
According to the suit, the driver seat of the San Diego couple's
used 2006 R350 burned through the leather and singed a hole
through Elizabeth Calloway's dress one evening in 2014. The suit
alleges that Mercedes-Benz failed to disclose a defect that caused
seat warmers to "spark, smoke, overheat, and catch fire."
U.S. District Judge James Selna of the Central District of
California refused to dismiss the case on May 19, finding that the
plaintiffs had "adequately alleged design defects, an unreasonable
safety hazard, and a sufficient nexus between the two." But he
also struck plaintiffs' claims that Mercedes-Benz actively
concealed the defect by insisting that customers sign a release
upon getting their cars repaired and keep all settlement terms
confidential.
MITSUI & CO: Dismissal of 'Comfort Women' Action Sought
-------------------------------------------------------
Nicholas Iovino, writing for Courthouse News Service, reported
that one of 19 entities sued for allegedly aiding a scheme to
force Korean women into sexual slavery during World War II or
subsequently defaming them asked a federal judge to dismiss the
class action.
Hee Nam You and Kyng Soon Kim, two Korean women who say they were
kidnapped and made to serve as comfort women during the war, sued
19 defendants including the government of Japan and its prime
minister earlier this year. During a hearing, Japan-based Mitsui's
U.S. subsidiary, Mitsui & Co., presented a slew of reasons why the
claims against it should be dismissed. Mitsui argued the
plaintiffs' more than 70-year-old claims are barred by the statute
of limitations, based on overseas conduct outside U.S. courts'
jurisdiction and were already settled in a 1965 treaty between
Japan and South Korea. The defendant further argued the
plaintiffs cannot show that Mitsui injured them by allegedly
providing the "trains or vessels" to transport abducted comfort
women, because the U.S.-based subsidiary did not exist prior to
1966.
"If this was sufficient to show causation then any business that
transacted with the Japanese government during World War II could
be held liable," Mitsui attorney Katie Glynn told the judge.
Plaintiff attorney Hyung Jin Kim claims Mitsui is an alter ego of
its parent Japanese company and that the subsidiary was
established using "huge profits" Mitsui gained by supporting the
Japanese empire and its crimes against humanity during the war.
"This is a case about the Asian version of the Holocaust," Kim
said. "We're talking about more than 200,000 women taken from
their homeland by force, taken to support the morale of the
soldiers of the Japanese empire."
Kim pointed out that the International Military Tribunal for the
Far East found Mitsui had supported Japan's war effort, including
the invasion of China and attack on Pearl Harbor.
"If Mistui is denying any liability, then they're denying the
whole legal structure after the war," Kim argued. "We know Mitsui
got huge benefits and profits by providing support to the Japanese
government at the time."
U.S. District Judge William Alsup asked Kim if, by his logic, any
company that did business with Japan, including those that sold
bandages and medical supplies, could be held liable for atrocities
committed by the empire. Rather than directly answer Alsup's
question, Kim argued companies that supported Japan's cruel and
inhuman crimes should be held responsible. He said his clients are
still working to identify companies that provided condoms to
Japanese soldiers.
On the statute of limitations question, Kim argued that Mitsui
"willfully hid and manipulated evidence" that prevented the
plaintiffs from filing their suit earlier and that Mitsui
continues to conspire to hide evidence from the women.
Alsup responded that under Kim's theory, the plaintiffs could wait
another 30 years to bring their lawsuit because Mitsui continues
to deny responsibility for the alleged crimes.
"I'm not sure I buy that," Alsup said. "It has been 70 years.
That's longer than you've been alive."
After about 30 minutes of debate, Alsup ended the hearing and
asked attorneys for other named defendants to state their
appearance in preparation for a case management conference
scheduled for later in the afternoon.
The judge asked why other defendants had not filed motions to
dismiss, and several of them answered that they are waiting to see
how Mitsui's motion to dismiss plays out first for the sake of
"efficiency."
Sankei Shimbun, Japan's largest media company, is the only other
defendant to file a motion to dismiss thus far. The Tokyo-based
publisher is accused of defaming the plaintiffs by labeling them
"voluntary prostitutes" in editorials.
Other corporate defendants include Nissan, Toyota, Mitsubishi,
Hitachi, Nippon Steal and Sumitomo Metal Corporation, NYK Line and
their U.S. subsidiaries.
The lawsuit also lays blame on the Japanese government, its prime
minister Shinzo Abe, deceased former Japanese emperor Hirohito and
the heir to his assets, Akihito Nobuske Kishi.
Mitsui & Co. is a business and financial investment corporation
that owns Sapporo Breweries and several other finance,
engineering, construction and technology firms.
Sankei Shimbun's motion to dismiss hearing is scheduled for
Nov. 19.
MONSTER BEVERAGE: Defending False Advertising Class Actions
-----------------------------------------------------------
Monster Beverage Corporation said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 10, 2015,
for the quarterly period ended June 30, 2015, that the Company has
been named as a defendant in various false advertising putative
class actions and in a private attorney general action. In these
actions, plaintiffs allege that defendants misleadingly labeled
and advertised Monster Energy(R) brand products that allegedly
were ineffective for the advertised benefits (including, but not
limited to, an allegation that the products do not hydrate as
advertised because they contain caffeine). The plaintiffs further
allege that the Monster Energy(R) brand products at issue are
unsafe because they contain one or more ingredients that allegedly
could result in illness, injury or death. In connection with these
product safety allegations, the plaintiffs claim that the product
labels did not provide adequate warnings and/or that the Company
did not include sufficiently specific statements with respect to
contra-indications and/or adverse reactions associated with the
consumption of its energy drink products (including, but not
limited to, claims that certain ingredients, when consumed
individually or in combination with other ingredients, could
result in high blood pressure, palpitations, liver damage or other
negative health effects and/or that the products themselves are
unsafe).
Based on these allegations, the plaintiffs assert claims for
violation of state consumer protection statutes, including unfair
competition and false advertising statutes, and for breach of
warranty and unjust enrichment. In their prayers for relief, the
plaintiffs seek, inter alia, compensatory and punitive damages,
restitution, attorneys' fees, and, in some cases, injunctive
relief. The Company regards these cases and allegations as having
no merit. Furthermore, the Company is subject to litigation from
time to time in the normal course of business, including
intellectual property litigation and claims from terminated
distributors.
MRV COMMUNICATIONS: "Vo" Class Suit in Discovery Phase
------------------------------------------------------
MRV Communications, Inc. is in the discovery phase of the case,
Nhan T. Vo, individually and on behalf of other aggrieved
employees vs. the Company, Superior Court of California, County of
Los Angeles, MRV revealed in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 10, 2015, for the
quarterly period ended June 30, 2015.
On June 27, 2013, the plaintiff in this matter filed a lawsuit
against the Company alleging claims for failure to properly pay
overtime or provide meal and rest breaks to its non-exempt
employees in California, among other things. The complaint seeks
an unspecified amount of damages and penalties under provisions of
the Labor Code, including the Labor Code Private Attorneys General
Act. The Company has filed an answer denying all allegations
regarding the plaintiff's claims and asserting various defenses.
The Company is currently in the discovery phase of this case.
"Management believes it has accrued adequate reserves for this
matter and does not expect the resolution of this case to have a
material adverse effect on its business or financial condition.
However, depending on the actual outcome of this case, provisions
could be recorded in the future which may have a material adverse
effect on the Company's operating results," the Company said.
N FRANZE HOSPITALITY: Faces "Tennant" Suit for Unpaid Wages
-----------------------------------------------------------
Tia Tennant, Summer Lancaster, Jessica Long, an Cynthia Carole
McKenna, individually, and on behalf of all others similarly
situated, Plaintiffs, v. N. Franze Hospitality LLC, Craig Franze,
and Jacqueline Barnes, individually, Defendants, Case No. 8:15-cv-
02732-ACC-DAB (M.D. Fla., October 2, 2015), seeks to recover
unpaid wages under the Fair Labor Standards Act.
According to the Complaint, Defendants required herein Plaintiffs
to work as exotic dancers and massage girls at their adult
entertainment club for up to and in excess of 40 hours per week,
but refused to compensate them at the applicable minimum wage and
overtime rate. It was further alleged that Defendants refused to
compensate Plaintiffs at all for the hours they worked.
Plaintiffs' only compensation was in the form of tips from club
patrons.
Defendant N. Franze Hospitality LLC d/b/a Mile High Clearwater is
a domestic limited liability company doing business in Florida for
the purpose of accumulating monetary profit.
Defendant BEC FL LLC d/b/a Mile High Pinellas is a domestic
limited liability company doing business in Florida for the
purpose of accumulating monetary profit.
Defendant Craig Franze is an individual residing in Florida. He is
a citizen conducting business in Pinellas County, Florida and upon
information and belief is domiciled in Pinellas County, Florida.
Defendant Jacqueline Barnes is an individual residing in Florida.
She is a citizen conducting business in Pinellas County, Florida
and upon information and belief is domiciled in Pinellas County,
Florida.
The Plaintiffs are represented by:
Jack Morgan, Esq.
2320 First Street, Suite 1000
Fort Myers, FL 33901
Tel: 239.338.4218
Fax: 239.337.3850
Email: jmorgan@ralaw.com
- and -
John B. Gallagher, Esq.
2631 East Oakland Park Boulevard, Suite 201
Fort Lauderdale, FL 33306
Tel: 954.524.1888
Fax: 954.524.1887
Email: gal2701@aol.com
NATURAL AMERICAN: Class Action Challenges Cigarette Natural Label
-----------------------------------------------------------------
Celia Ampel, writing for Law.com, reports that Natural American
Spirit cigarettes are anything but "natural," alleges a class
action lawsuit filed by a Fort Lauderdale law firm.
Schlesinger Law Offices is looking to build on a recent string of
successful litigation against tobacco companies with the Sept. 30
fraudulent advertising lawsuit brought against Santa Fe Natural
Tobacco Co. and Reynolds American Inc.
The lawsuit claims American Spirit smokers paid extra for the
cigarettes because marketing called them "natural," "organic" and
"additive-free."
"The language is deliberately deceptive, and these health claims
unfairly mislead consumers," lead plaintiffs attorney
Scott Schlesinger said. "The implication is that 'organic' means
healthful, but this is nothing more than a continuation of the
reassurance campaign that the tobacco companies used for decades
to defraud consumers."
The lawsuit comes five years after a settlement signed by 34 state
attorneys general with Santa Fe Natural. The settlement required
Natural American Spirit organic cigarette packages to say,
"Organic tobacco does NOT mean safer cigarettes."
A 2000 Federal Trade Commission settlement with Santa Fe required
the label to say, "No additives in our tobacco does NOT mean a
safer cigarette."
Mr. Schlesinger said that wasn't enough.
"The deceptive nature of the cigarette was recognized by the FTC.
They instituted some action but, instead of seeing it through to
enforcement, entered into a settlement with an industry that
outsmarted them with a voluntary additional label that conveys
little useful information and is actually confusing," he said by
email.
The no-additives sentence contains a double negative,
Mr. Schlesinger said.
"This label was sometimes on the tear-off strip as I recall, so in
order to open the pack you had to tear off this tiny label and
toss it out in the trash," he said in his email.
A Reynolds American spokesman declined to comment. Santa Fe did
not respond to a request for comment by deadline.
The plaintiffs aim to stop the companies from stating the
cigarettes are "organic," "additive-free" or "natural" in its
marketing. They also seek to force Reynolds and Santa Fe to fund
medical monitoring and smoking cessation programs.
Mr. Schlesinger was joined on the case by Jonathan Gdanski and
Jeffrey Haberman of his firm. Schlesinger Law Offices won a $2.25
million products liability verdict in September against R.J.
Reynolds Tobacco Co. and Philip Morris USA Inc.
The firm also won a $10.5 million verdict in July in another
smoker case against R.J. Reynolds Tobacco, Lorillard Tobacco Co.
and Philip Morris.
The American Spirit case was assigned to U.S. District Judge Joan
A. Lenard in Miami.
NEVADA: San Francisco Settles Patient-Dumping Suit for $400,000
---------------------------------------------------------------
Dave Tartre, writing for Courthouse News Service, reported that
San Francisco, California, will settle its charges that Nevada
dumps mentally ill patients in California for $400,000, a promise
that Nevada will stop doing it, and some new rules. Under the
agreement, Nevada will be allowed to transfer psychiatric patients
to California medical facilities, but only by following new
guidelines.
The San Francisco Board of Supervisors has approved the deal
unanimously. Nevada's Board of Examiners approved it earlier in
October.
San Francisco filed a class action against Nevada in September
2013, claiming it discharged about 1,500 patients from a
psychiatric hospital in Las Vegas and sent them to other states.
Almost 500 were sent by Greyhound bus to California, and though
most of them "required continuing medical care, Nevada did not
make arrangements for the patients to be received by family
members or a medical facility," the city said in the lawsuit.
The San Francisco Board of Supervisors must vote again before the
settlement goes to the mayor's desk. If Mayor Ed Lee signs it, a
superior court judge must approve it.
City Attorney Dennis Herrera filed the lawsuit on behalf of San
Francisco and other cities and counties in California who had
received bused-in patients. Defendants included the Nevada
Department of Health and Human Services, Southern Nevada Adult
Mental Health Services, the Rawson-Neal Psychiatric Hospital, and
several administrators.
"Nevada jeopardized the bused patients' physical and mental health
by failing to provide them with adequate food, water and
medication during their trip to California," Herrera said, "and by
failing to assure that shelter or medical care had been arranged
for the patients at their destinations."
Some were given the names of shelters or told to dial "911" when
they got to California. San Francisco said it spent $500,000 to
care for the 24 people who ended up here.
Officials at Rawson-Neal Psychiatric Hospital in Las Vegas
"understood and expected that the bused patients would rely on San
Francisco's public health resources for continuing medical care,
and specifically directed some of the patients to seek care at San
Francisco public health clinics and shelter at San Francisco-
supported shelter and care programs," according to the complaint.
The Nevada Department of Health and Human Services said it could
not comment until the settlement has been approved.
Herrera said that he was "pleased we reached an agreement that
will assure the well-being of psychiatric patients when they're
transported." He said the deal "also offers a model for how
jurisdictions can work together to better protect our patients and
taxpayers."
The agreement allows Nevada to send patients to California only if
they are returning home or to a medical facility, and if they are
accompanied by a responsible person or will be met by one when
they arrive. Also, until the end of 2019, Nevada must provide San
Francisco with a twice-yearly report about patients who have been
sent to California. The report must include the date of discharge,
the destination city and the names of people responsible for
receiving the patients in California medical facilities.
NOMURA: Panel Adopts Pro-Investor Interpretation in RMBS Suit
------------------------------------------------------------
Ben Bedell, writing for New York Law Journal, reports that a
unanimous panel of the Appellate Division, First Department
adopted a pro-investor interpretation of key contract provisions
common to a slew of state-law residential mortgage-backed
securities (RMBS) cases.
Justice John Sweeny, Jr., writing for the court, applied reasoning
from several federal cases that considered the scope of remedies
available to investors who lost billions in the 2008 recession
when mortgage-backed securities plummeted in value.
The mortgage-backed loans were bundled into trusts by sponsoring
banks who are the defendants. The banks entered into contracts
that provided the investor's "sole remedy" for a breach would be
specific performance, a court order that loans not meeting
eligibility criteria be repurchased by the banks.
Since many of those loans have been foreclosed or charged off as
uncollectible, the investors would be left with a remedy
"impossible to fulfill," Justice Sweeny said.
The banks that bought up the mortgages and sponsored the trust
deals have claimed they are not liable for mortgages that were
foreclosed or charged off prior to the lawsuits having been filed
because the contract language required them to buy back only the
defective loans on their books at the time a claim by investors
was filed.
Justice Sweeny adopted the reasoning of Southern District Judge
Denise Cote, who has overseen most RMBS cases brought under
federal claims.
"Specific performance is an equitable remedy," Justice Sweeny said
on Oct. 13 in Nomura Home Equity Loan v. Nomura Credit & Capital,
653783/12.
In the RMBS context, "most courts have repeatedly held that while
a provision providing for equitable relief as the 'sole remedy'
will generally foreclose alternative relief, where the granting of
equitable relief appears to be impossible or impracticable, equity
may award damages in lieu of the desired equitable remedy,"
Justice Sweeny held, citing Cote's holding in Bank of New York
Mellon v. WMC Mtge., LLC, 2015 WL 2449313, *2, 2015 US Dist LEXIS
67367, *6 (SDNY, May 22, 2015).
Judge Cote had relied on Doyle v. Allstate Ins. Co., 1 NY2d 439,
443 (1956) in holding that the "sole remedy" clause could be
overridden by equitable relief.
In the RMBS context, "such a rule makes sense," Justice Sweeny
wrote, "for to hold otherwise would create a perverse incentive
for a sponsor to fill the trust with junk mortgages that would
expeditiously default so that they could be released, charged off,
or liquidated before a repurchase claim is made."
Justice Sweeny was joined in the ruling by Justices Angela
Mazzarelli, Rolando Acosta and Barbara Kapnick, which affirmed two
July 2014 holdings by Justice Marcy Friedman of Manhattan's
Commercial Division. Justice Friedman had adopted Judge Cote's
logic, which has been followed by other federal trial courts
considering the remedies issue.
The panel also reinstated two causes of action that Friedman had
dismissed.
Since May 2013, Friedman has been designated as the judge to hear
all RMBS cases brought in Manhattan Supreme Court.
Shearman & Sterling partner Agnes Dunogue represented the
defendants. She did not respond to an email requesting comment.
NY TAXI & LIMOUSINE: Inflates Medallion Prices, CGS Taxi Says
-------------------------------------------------------------
CGS Taxi LLC, Akal Taxi NYC LLC, D&P Baidwan LLC, Jaspreet Singh,
C&R Bhogal LLC and Peg Taxi NYC LLC, individually and on behalf of
all others similarly situated, Plaintiffs, vs. The City of New
York and The New York City Taxi And Limousine Commission,
Defendants, Index No. 653264/2015 (N.Y. Sup. Ct., September 30,
2015), seeks to secure an order requiring defendants to rescind
the auction sale transactions under the General Business Law, and
the NYC Code, state law and Taxi and Limousine Commission rules.
According to the Complaint, in early 2014, plaintiffs Jaspreet
Singh, CGS Taxi LLC, CGS Taxi LLC, D&P Baidwan LLC, C & R BHOGAL
LLC and Peg Taxi NYC LLC purchased New York City taxi medallions
directly from the City of New York in an auction organized and
promoted by the defendant New York City Taxi and Limousine
Commission (TLC). Before the auction, the TLC intentionally
overstated the value of taxi medallions and hid the fact that the
value of those medallions had already begun to decline due to
factors known to the TLC but not disclosed to plaintiffs. After
the auction, the TLC, through its actions and its inaction,
significantly undermined the value of the medallions it had just
sold to plaintiffs, causing them substantial economic harm.
Defendant City of New York is a municipal corporation duly
incorporated and existing pursuant to the laws of the State of New
York.
Defendant New York City Taxi & Limousine Commission is an
administrative agency for the City of New York, created by Sec.
2300 of the New York City Charter. The TLC was and remains
responsible for enforcing the statutes and regulations pertaining
to the taxi industry.
The Plaintiff is represented by:
Gregory M. Nespole, Esq.
Benjamin Y. Kaufman, Esq.
Correy A. Kamin, Esq.
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
270 Madison Avenue
New York, NY 10016
Tel: (212) 545-4600
Fax: (212) 545-4653
Email: nespole@whath.com
- and -
Daniel L. Ackman, Esq.
LAW OFFICE OF DANIEL L. ACKMAN
222 Broadway, 19th Floor
New York, NY 10038
Tel: (917) 282-8178
Email: d.ackman@comcast.net
OVERSEAS SHIPHOLDING: Class Suit Claims "Fully & Finally" Settled
-----------------------------------------------------------------
Overseas Shipholding Group, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on August 10,
2015, for the quarterly period ended June 30, 2015, that the
Company has fully and finally resolved all potential direct claims
by members of the putative class of securities claimants through a
settlement effectuated through the Equity Plan, which became
effective on August 5, 2014.
Under the terms of that settlement, the Equity Plan provides for
full satisfaction of the claims of the putative class through (i)
$7,000 in cash, which was paid on August 5, 2014, (ii) 15% of the
net litigation recovery in the action against Proskauer, described
below, (iii) $5,000 in cash, payable following the entry of a
final order resolving the Proskauer action, (iv) $3,000 in cash,
payable by the reorganized Company on August 5, 2015, (v) proceeds
of any residual interest the Company has in certain director and
officer insurance policies, and (vi) any remaining cash in the
class E1 disputed claims reserve established by the Equity Plan
following resolution of all other class E1 claims. The settlement
proceeds will be held in escrow pending allocations and
distributions to members of the putative class to be determined by
the district court overseeing the Exchange Act claims.
The settled claims stem from the Company's filing of a Form 8-K on
October 22, 2012 disclosing that on October 19, 2012 the Audit
Committee of the Board of Directors of the Company, on the
recommendation of management, concluded that the Company's
previously issued financial statements for at least the three
years ended December 31, 2011 and associated interim periods, and
for the fiscal quarters ended March 31, 2012 and June 30, 2012,
should no longer be relied upon. Shortly thereafter several
putative class action suits were filed in the United States
District Court for the Southern District of New York (the
"Southern District") against the Company, its then President and
Chief Executive Officer, its then Chief Financial Officer, its
then current and certain former members of its Board of the
Directors, its current independent registered public accounting
firm, and underwriters of the Company's public offering of notes
in March 2010 (the "Offering"). The Company's former independent
registered public accounting firm was later added as a defendant.
Subsequent to the Company's filing for relief under Chapter 11,
these suits were consolidated and the plaintiffs filed an amended
complaint that does not name the Company as a defendant. The
consolidated suit is purportedly on behalf of purchasers of
Company securities between March 1, 2010 and October 19, 2012 and
purchasers of notes in the Offering. The plaintiffs allege that
documents that the Company filed with the SEC were defective,
inaccurate and misleading, that the plaintiffs relied on such
documents in purchasing the Company's securities, and that, as a
result, the plaintiffs suffered losses. The plaintiffs assert
claims under the Securities Act against all defendants and claims
under the Securities Exchange Act of 1934 (the "Exchange Act")
against the then former President and former Chief Financial
Officer of the Company.
Following additional amendments on plaintiffs' Exchange Act claims
and motion to dismiss briefing, on April 28, 2014, the Southern
District denied the motion to dismiss the Exchange Act claims
filed by the then former President and former Chief Financial
Officer on the third amended complaint. On July 2, 2014, the
Southern District issued a scheduling order provided that
discovery would be completed by July 22, 2015. On October 20,
2014, the plaintiffs moved for leave to file another amended
complaint alleging claims under the Exchange Act against the
Company's current and former independent registered public
accounting firms, and on November 28, 2014, the Southern District
denied the plaintiffs' motion. On March 18, 2015, OSG's former
independent registered public accounting firm moved for summary
judgment and on May 29, 2015, the Southern District granted that
motion. On July 1, 2015, the plaintiffs noticed an appeal of the
Southern District's order granting that motion, as well as all
prior related rulings, including the Southern District's denial of
the plaintiffs' motion to amend their complaint, to the U.S. Court
of Appeals for the Second Circuit. Plaintiffs' opening brief in
that appeal is due on October 13, 2015. All defendants other than
OSG's former independent registered public accounting firm have
reached settlements in principle with the plaintiffs, which remain
subject to review and approval by the Southern District.
The plaintiffs in the Southern District action filed a proof of
claim against the Company in the Bankruptcy Court. Pursuant to a
settlement with such plaintiffs and the putative class on whose
behalf their claim is filed, their direct claims against the
Company are fully and finally resolved based on the Equity Plan
treatment described above. Separately, certain of the defendants
in the Southern District have filed claims in the Bankruptcy Court
against the Company for indemnification or reimbursement based on
potential losses incurred in connection with such action. Certain
of those indemnification claims, asserted by former directors of
the Company, have been released pursuant to the Equity Plan. In
addition, the indemnification claims asserted by the Company's
former underwriters have been capped at no more than $1,500,
pursuant to orders of the Bankruptcy Court. All claims of the
defendants in the Southern District against the Company are
subordinated pursuant to Section 510(b) of the Bankruptcy Code and
are classified in Class E1. Under the Equity Plan, subordinated
claims against the Company are limited to recoveries from a
segregated reserve of $2,000 to be funded by the Company pursuant
to the Equity Plan. The Equity Plan and related confirmation order
do not permit any recoveries by the defendants beyond this $2,000
cap. Any amounts remaining following full and complete
satisfaction of all Class E1 claims, including claims of
defendants in the Southern District, will be distributed to
members of the putative class pursuant to the terms of the
settlement. The Equity Plan and confirmation order foreclose the
defendants in the Southern District from pursuing any other or
further remedies against the Company. As such, management
estimates the amount of its exposure with respect to the actions
pending before the Southern District described above at between
zero and $2,000.
PARAMOUNT FOODS: Unlawfully Retained Tips, "Cardoso" Suit Claims
----------------------------------------------------------------
Swisszan Cardoso and Diomedes Garcia, on behalf of themselves,
FLSA Collective Plaintiffs and the Class, Plaintiffs, v. Paramount
Foods Inc., Devi Group Ltd. d/b/a Devi, John Doe Corps 1-5 d/b/a
Baluchi's, Rakesh Aggarwal and Rohan Aggarwal, Defendants, Case
No. 1:15-cv-07674 (S.D.N.Y, September 29, 2015), seeks to recover
unpaid overtime, wages, and tips unlawfully retained under the
Fair Labor Standards Act and the New York Labor Law.
The Defendants operate a restaurant enterprise using the trade
names "Baluchi's" and "Devi." There are six locations of
Defendants' restaurants. The Restaurants operate as a single
integrated enterprise. Specifically, the Restaurants are engaged
in related activities, share common ownership and have a common
business purpose.
Paramount Foods Inc. is a domestic business corporation organized
under the laws of the State of New York with a corporate office
located at 167 Madison Avenue, Suite 203, New York, NY 10016, and
an address for service of process located at 109 West 38th Street,
Second Floor, New York, New York 10018.
Paramount Foods Inc. owns each of the Subsidiary Corporate
Defendants.
Devi Group Ltd. d/b/a Devi is a corporation organized under the
laws of the State of New York, with a corporate office located at
167 Madison Avenue, Suite 203, New York, NY 10016, a principal
place of business formerly located at 8 E. 18th Street, New York,
NY 10003, and an address for service of process located at 84-61
Abingdon Road, Kew Gardens, New York 11415. Devi Group Ltd. is
wholly owned by the Parent Corporate Defendant.
John Doe Corp. 1 d/b/a Baluchi's is a corporation organized under
the laws of the State of New York, with a corporate office located
at 167 Madison Avenue, Suite 203, New York, NY 10016, and a
principal place of business and an address for service of process
located at 37 West 43rd Street, New York, NY 10036 (Baluchi's
Bryant Park). John Doe Corp. 1 is owned by the Parent Corporate
Defendant.
John Doe Corp. 2 d/b/a Baluchi's is a corporation organized under
the laws of the State of New York, with a corporate office located
at 167 Madison Avenue, Suite 203, New York, NY 10016, and a
principal place of business and an address for service of process
located at 493 9th Avenue, New York, NY 10018 (Baluchi's Hudson
Yards). John Doe Corp. 2 is owned by the Parent Corporate
Defendant.
John Doe Corp. 3 d/b/a Baluchi's'S is a corporation organized
under the laws of the State of New York, with a corporate office
located at 167 Madison Avenue, Suite 203, New York, NY 10016, and
a principal place of business and an address for service of
process located at 329 3rd Avenue, New York, NY 10010 (Baluchi's
Murray Hill). John Doe Corp. 3 is owned by the Parent Corporate
Defendant.
John Doe Corp. 4 d/b/a Baluchi's'S is a corporation organized
under the laws of the State of New York, with a corporate office
located at 167 Madison Avenue, Suite 203, New York, NY 10016, and
a principal place of business and an address for service of
process located at 1724 2nd Avenue, New York, NY 10128 (Baluchi's
Upper East). John Doe Corp. 4 is owned by the Parent Corporate
Defendant. and
John Doe Corp. 5 d/b/a Baluchi's is a corporation organized under
the laws of the State of New York, with a corporate office located
at 167 Madison Avenue, Suite 203, New York, NY 10016, and a
principal place of business and an address for service of process
located at 257 Smith Street, Brooklyn, NY 11215 (Baluchi's
Brooklyn). John Doe Corp. 5 is owned by the Parent Corporate
Defendant.
Rakesh Aggarwal is the founder, owner and Chief Executive Officer
of all Corporate Defendants. Rakesh Aggarwal exercises operational
control. He exercises the power to (and also delegates to managers
and supervisors the power to) fire and hire employees, supervise
and control employee work schedules and conditions of employment,
and determine the rate and method of compensation of employees
including those of Plaintiffs, FLSA Collective Plaintiffs and the
Class at each of the Restaurant locations.
Rohan Aggarwal is the son of Rakesh Aggarwal and is a Principal of
all Corporate Defendants. Rohan Aggarwal exercises operational
control as it relates to all employees including Plaintiffs, FLSA
Collective Plaintiffs and the Class. He exercises the power to
(and also delegates to managers and supervisors the power to) fire
and hire employees, supervise and control employee work schedules
and conditions of employment, and determine the rate and method of
compensation of employees including those of Plaintiffs.
Rohan Aggarwal additionally has the power to fire and hire,
supervise and control work schedules and conditions of employment,
and determine rate and method of pay of managerial employees who
directly supervise Plaintiffs, FLSA Collective Plaintiffs and the
Class. Rohan Aggarwal exercises functional control over the
business and financial operations of all Corporate Defendants.
The Plaintiffs are represented by:
C.K. Lee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP, PLLC
30 East 39th Street, Second Floor
New York, NY 10016
Tel: 212-465-1188
Fax: 212-465-1181
PFIZER INC: Cross-Court Zoloft Rulings Use Different Standards
---------------------------------------------------------------
P.J. D'Annunzio, writing for The Legal Intelligencer, reports that
though a federal and state judge overseeing Zoloft birth-defect
litigation have recently come to similar conclusions on the
viability of certain expert witnesses, attorneys familiar with
pharmaceutical products liability litigation say the two
jurisdictions can take different paths to reach those results.
Philadelphia Court of Common Pleas Judge Mark I. Bernstein on Oct.
8 granted drugmaker Pfizer's motion to dismiss the claims filed
against it by the parents of Bo Porter, a child born with the
birth defect omphalocele. This ruling came shortly after
Bernstein disallowed the plaintiffs' causation expert to testify.
Rosemary Pinto, handling the case for the plaintiffs, did not
return a call seeking comment.
"This summary judgment ruling, which follows two jury verdicts in
recent months in favor of Pfizer in the Zoloft litigation, affirms
that there is no reliable scientific evidence demonstrating that
Zoloft causes the injuries alleged by the plaintiffs," a
spokesperson for Pfizer said in a statement.
In federal court, hundreds of Zoloft cases were dismissed in the
MDL in the time since presiding U.S. District Judge Cynthia Rufe
of the Eastern District of Pennsylvania decided to exclude the
testimony of the plaintiffs' non-cardiac birth injury expert.
Dianne Nast, local counsel for the plaintiffs in the Philadelphia-
based MDL said she believed the dismissal of the Porter case would
not influence the federal litigation because of the different
standards-in this instance, the state court's Frye standard versus
the federal system's Daubert standard.
Whether Pfizer would use the dismissal as ammunition in the MDL,
Nast said, "I think they are likely to announce any dismissal that
they get, and in fairness, in this case they would announce any
loss they have. They've been pretty candid with the court."
Despite Nast's belief that the Porter dismissal will not be
influential in the MDL, Reed Smith products liability defense
attorney James Beck -- jmbeck@reedsmith.com -- said a well-
reasoned state court ruling can be persuasive in federal
litigation. That's because it's harder to get a case thrown out
in state court than the federal counterpart, Mr. Beck said.
However, the reverse does not apply. "If you get a federal MDL
dismissal, while it will be very strong in federal courts . . .
you take that to state court and they'll say they don't apply that
standard," Mr. Beck said.
As for why a plaintiff would bring a drug case in state court
while an MDL is already ongoing, Beck reasoned that some
plaintiffs want to avoid the higher attorney fees associated with
large litigation.
"There are ordinarily these charging orders that use 7 to 10
percent of the settlement and they apply to all the cases in the
MDL," Mr. Beck said. "If you want to avoid that you tend to file
in state court where the MDL judge can't reach you."
He added, "It can also be that the plaintiffs lawyers filing in
state court are the ones that didn't get a lead role in the MDL
and they don't want to lose control over the cases."
Ross Feller Casey pharmaceutical products liability lawyer Brian
McCormick -- bmccormick@rossfellercasey.com -- said some
plaintiffs prefer to file in state court believing they can get a
quicker resolution than they would as part of an MDL.
Mr. McCormick added that while state and federal court rulings in
similar litigations may play off of each other, "it doesn't hold
that a state court judge or federal court judge has to rule the
same way as their peer in the other court."
The Zoloft inventory in federal court has been substantially
reduced since the summer.
In June, the docket listed 550 total active cases, and over the
course of the summer, hundreds of cases were dismissed, bringing
the current number to 278, according to the MDL clerk's office.
The cases dismissed all related to non-cardiac birth injuries, as
opposed to the cardiac-only injury cases moving forward in the
MDL.
Ms. Nast previously said the plaintiffs moved to dismiss the cases
and proceed in cardiac-only matters for greater efficiency.
Ms. Nast had said cases can be refiled with the understanding that
the statute of limitations will not be running.
She pointed to Judge Rufe's decision to bar the testimony of the
plaintiffs' non-cardiac birth injury expert, Dr. Anick Berard, as
a factor in the decision to dismiss the cases.
"I'm not saying we would have made a different decision if she had
passed muster with the court," Ms. Nast had said, because
efficiency was the primary concern.
PHOTOMEDEX INC: Defending D.C. Action Against Radiancy Unit
-----------------------------------------------------------
PhotoMedex, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 10, 2015, for the
quarterly period ended June 30, 2015, that the Company intends to
defend itself vigorously against the class action filed by
plaintiffs' attorneys against only the Company's subsidiary,
Radiancy, Inc.
On April 25, 2014, a putative class action lawsuit was filed in
the United States District Court for the District of Columbia
against the Company's subsidiary, Radiancy, Inc. and Dolev
Rafaeli, Radiancy's President. The suit was filed by Jan Mouzon
and twelve other customers residing in ten different states who
purchased Radiancy's no!no! Hair products. It alleges various
violations of state business and consumer protection codes
including false and misleading advertising, unfair trade
practices, and breach of express and implied warranties. The
complaint seeks certification of the putative class, or,
alternatively, certification as subclasses of plaintiffs residing
in those specific states. The complaint also seeks an unspecified
amount of monetary damages, pre-and post-judgment interest and
attorneys' fees, expert witness fees and other costs.
Dr. Rafaeli was served with the Complaint on May 5, 2014; to date,
Radiancy, has not been served. A mediation was scheduled in this
matter for November 24, 2014, but no settlement was reached.
On March 30, 2015, the Court dismissed this action in its entirety
for failure to state a claim. The Court specifically dismissed
with prejudice the claims pursuant to New York General Business
Law Sections349-50 and the implied warranty of fitness for a
particular purpose; the other counts against Radiancy were
dismissed without prejudice. The Court also granted Dr. Rafaeli's
motion to dismiss the actions against him for lack of personal
jurisdiction over him by the Court. The Court denied the
plaintiffs request for jurisdictional discovery with respect to
Dr. Rafaeli and plaintiffs request to amend the complaint.
Radiancy and its officers intend to continue to vigorously defend
themselves against any attempts to continue this lawsuit.
On July 17, 2014, plaintiffs' attorneys refiled their putative
class action lawsuit in the United States District Court for the
District of Columbia against only the Company's subsidiary,
Radiancy, Inc. The claims of the suit are virtually identical to
the claims originally considered, and dismissed without prejudice,
by the same Court. The Company intends to defend itself vigorously
against this suit. At this time, the amount of any loss, or range
of loss, cannot be reasonably estimated as the case has only been
initiated and no discovery has been conducted to determine the
validity of any claim or claims made by plaintiffs. Therefore, the
Company has not recorded any reserve or contingent liability
related to these particular legal matters. However, in the future,
as the cases progress, the Company may be required to record a
contingent liability or reserve for these matters.
PHOTOMEDEX INC: Discovery Held in Kern County Suit v. Radiancy
--------------------------------------------------------------
PhotoMedex, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 10, 2015, for the
quarterly period ended June 30, 2015, that discovery has commenced
in a class action against Radiancy, Inc.
On June 30, 2014, the Company's subsidiary, Radiancy, Inc., was
served with a class action lawsuit filed in the Superior Court in
the State of California, County of Kern. The suit was filed by
April Cantley, who purchased Radiancy's no!no! Hair products. It
alleges various violations of state business and consumer
protection codes including false and misleading advertising,
breach of express and implied warranties and breach of the
California Legal Remedies Act. The complaint seeks certification
of the class, which consists of customers in the State of
California who purchased the no!no! Hair devices. The complaint
also seeks an unspecified amount of monetary damages, pre-and
post-judgment interest and attorneys' fees, expert witness fees
and other costs. Radiancy has filed an Answer to this Complaint;
the case is now in the discovery phase. Radiancy and its officers
intend to vigorously defend themselves against this lawsuit.
Discovery has now commenced in this action.
At this time, the amount of any loss, or range of loss, cannot be
reasonably estimated as the case has only been initiated and no
discovery has been conducted to determine the validity of any
claim or claims made by plaintiffs. Therefore, the Company has not
recorded any reserve or contingent liability related to these
particular legal matters. However, in the future, as the cases
progress, the Company may be required to record a contingent
liability or reserve for these matters.
POPULAR INC: Court Denied BPNA's Motion to Compel Arbitration
-------------------------------------------------------------
Popular, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 10, 2015, for the
quarterly period ended June 30, 2015, that a court has denied
Banco Popular North America ("BPNA")'s motion to compel
arbitration and granted plaintiffs' motion for leave to amend the
complaint to replead certain claims.
BPNA has been named a defendant in a putative class action
complaint captioned Josefina Valle, et al. v. Popular Community
Bank, filed in November 2012 in the New York State Supreme Court
(New York County). Plaintiffs, existing BPNA customers, allege
among other things that BPNA has engaged in unfair and deceptive
acts and trade practices in connection with the assessment of
overdraft fees and payment processing on consumer deposit
accounts. The complaint further alleges that BPNA improperly
disclosed its consumer overdraft policies and, additionally, that
the overdraft rates and fees assessed by BPNA violate New York's
usury laws. The complaint seeks unspecified damages, including
punitive damages, interest, disbursements, and attorneys' fees and
costs.
BPNA removed the case to federal court (S.D.N.Y.) and plaintiffs
subsequently filed a motion to remand the action to state court,
which the Court granted on August 6, 2013. A motion to dismiss was
filed on September 9, 2013. On October 25, 2013, plaintiffs filed
an amended complaint seeking to limit the putative class to New
York account holders. A motion to dismiss the amended complaint
was filed in February 2014.
In August 2014, the Court entered an order granting in part BPNA's
motion to dismiss. The sole surviving claim relates to BPNA's item
processing policy. On September 10, 2014, plaintiffs filed a
motion for leave to file a second amended complaint to correct
certain deficiencies noted in the court's decision and order. BPNA
subsequently filed a motion in opposition to plaintiff's motion
for leave to amend and further sought to compel arbitration.
In June 2015, this matter was reassigned to a new judge and on
July 22, 2015, such Court denied BPNA's motion to compel
arbitration and granted plaintiffs' motion for leave to amend the
complaint to replead certain claims based on item processing
reordering, misstatement of balance information and failure to
notify customers in advance of potential overdrafts. The Court did
not, however, allow plaintiffs to replead their claim for the
alleged breach of the implied covenant of good faith and fair
dealing, effectively reducing the scope of potential recovery
claims from six to three years.
POPULAR INC: "Quiles" Action Won't Proceed as Class
---------------------------------------------------
Popular, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 10, 2015, for the
quarterly period ended June 30, 2015, that a court has denied with
prejudice plaintiffs' motion for class certification under Rule 23
of the Federal Rules of Civil Procedure in the case, Neysha Quiles
et al. v. Banco Popular de Puerto Rico et al.
BPPR has been named a defendant in a putative class action
complaint captioned Neysha Quiles et al. v. Banco Popular de
Puerto Rico et al., filed in December 2013 in the United States
District Court for the District of Puerto Rico (USDC-PR).
Plaintiffs essentially allege that they and others, who have been
employed by the Defendants as "bank tellers" and other similarly
titled positions, have been paid only for scheduled work time,
rather than time actually worked. The Complaint seeks to maintain
a collective action under the Fair Labor Standards Act ("FLSA") on
behalf of all individuals formerly or currently employed by BPPR
in Puerto Rico and the Virgin Islands as hourly paid, non-exempt,
bank tellers or other similarly titled positions at any time
during the past three years. Specifically, the complaint alleges
that Banco Popular violated FLSA by wilfully failing to pay
overtime premiums. Similar claims were brought under Puerto Rico
law. On January 31, 2014, the Popular defendants filed an answer
to the complaint.
On January 9, 2015, plaintiffs submitted a motion for conditional
class certification, which BPPR opposed. On February 18, 2015, the
Court entered an order whereby it granted plaintiffs' request for
conditional certification of the FLSA action. Following the
Court's order, plaintiffs sent out notices to all purported class
members with instructions for opting into the class. Approximately
sixty potential classmembers opted into the class prior to the
expiration of the opt-in period. On June 25, 2015, the Court
denied with prejudice plaintiffs' motion for class certification
under Rule 23 of the Federal Rules of Civil Procedure.
POPULAR INC: Briefing Held on Bid to Dismiss "Fernandez" Case
-------------------------------------------------------------
Popular, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 10, 2015, for the
quarterly period ended June 30, 2015, that briefing had been
conducted on the motion to dismiss in the case, Nora Fernandez, et
al. v. UBS, et al.
Banco Popular de Puerto Rico et al. and Popular Securities have
been named defendants in a putative class action complaint
captioned Nora Fernandez, et al. v. UBS, et al., filed in the
United States District Court for the Southern District of New York
(SDNY) on May 5, 2014 on behalf of investors in 23 Puerto Rico
closed-end investment companies. UBS Financial Services
Incorporated of Puerto Rico, another named defendant, is the
sponsor and co-sponsor of all 23 funds, while BPPR was co-sponsor,
together with UBS, of nine (9) of those funds. Plaintiffs allege
breach of fiduciary duty and breach of contract against Popular
Securities, aiding and abetting breach of fiduciary duty against
BPPR, and similar claims against the UBS entities. The complaint
seeks unspecified damages, including disgorgement of fees and
attorneys' fees.
On May 30, 2014, plaintiffs voluntarily dismissed their class
action in the SDNY and on that same date, they filed a virtually
identical complaint in the USDC-PR and requested that the case be
consolidated with the matter of In re: UBS Financial Services
Securities Litigation, a class action currently pending before the
USDC-PR in which neither BPPR nor Popular Securities are parties.
The UBS defendants filed an opposition to the consolidation
request and moved to transfer the case back to the SDNY on the
ground that the relevant agreements between the parties contain a
choice of forum clause, with New York as the selected forum. The
Popular defendants joined this opposition and motion.
By order dated January 30, 2015, the court denied the plaintiffs'
motion to consolidate. By order dated March 30, 2015, the court
granted defendants' motion to transfer. On May 8, 2015, plaintiffs
filed an amended complaint in the Southern District of New York
containing virtually identical allegations with respect to Popular
Securities and BPPR. Defendants filed motions to dismiss the
amended complaint on June 18, 2015. The briefing on those motions
was scheduled to be completed by August 21, 2015.
POPULAR INC: BPPR Defending RadioShack ERISA Litigation
-------------------------------------------------------
Popular, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 10, 2015, for the
quarterly period ended June 30, 2015, that Banco Popular de Puerto
Rico has been named a defendant in a putative class action
complaint titled In re 2014 RadioShack ERISA Litigation, filed in
U.S. District Court for the Northern District of Texas. The
complaint alleges that certain employees of RadioShack incurred
losses in their 401(k) plans because various fiduciaries elected
to retain RadioShack's company stock in the portfolio of potential
investment options. The complaint further asserts that once
RadioShack's financial situation began to deteriorate in 2011, the
fiduciaries of the RadioShack 401(k) Plan and the RadioShack
Puerto Rico 1165(e) Plan (collectively, "the Plans") should have
removed RadioShack company stock from the portfolio of potential
investment options.
Popular was a directed trustee, and therefore a fiduciary, of the
RadioShack Puerto Rico 1165(e) Plan ("P.R. Plan"). Even though the
P.R. Plan directed Popular to retain RadioShack company stock
within the portfolio of investment options, the complaint alleges
that a trustee's duty of prudence requires it to disregard plan
documents or directives that it knows or reasonably should know
would lead to an imprudent result or would otherwise harm plan
participants or beneficiaries. It further alleges that Popular
breached its fiduciary duties by (i) failing to take any
meaningful steps to protect plan participants from losses that it
knew would occur; (ii) failing to divest the P.R. Plan of Company
Stock; and (iii) participating in the decisions of another trustee
(Wells Fargo) to protect the Plans from inevitable losses.
PROGRESSIVE WASTE: Fees Are Questionable, Mendez Fuel Suit Says
---------------------------------------------------------------
Mendez Fuel Holdings 3, LLC, Plaintiff, v. Progressive Waste
Solutions of FL, INC. and Progressive Waste Solutions, Ltd.,
Defendants, Case No. 32624304 (Fla. Cir., September 29, 2015),
seeks to recover damages under the Florida Deceptive and Unfair
Trade Practices Act.
According to the Complaint, Defendants Progressive Waste Solutions
of FL, Inc. and Progressive Waste Solutions, Ltd. are waste
disposal companies that provide waste removal services to
businesses such as Plaintiff Mendez Fuel Holdings 3, LLC.
Defendants provide these waste disposal services in exchange for
an agreed upon service rate. However, in addition to this service
rate, Defendants also charge their Florida customers two
additional fees Defendants call a "fuel surcharge" and an
"environmental surcharge". Defendants purportedly charge these
fees to recover the increased fuel and environmental costs
Defendants incur in providing waste disposal services to their
customers.
Defendants Progressive Waste Solutions of FL, Inc. and Progressive
Waste Solutions, Ltd. are waste disposal companies that provide
waste removal services to businesses.
Defendant Progressive Waste Solutions, Ltd. is a Texas corporation
that does business in Miami-Dade County, Florida. Defendant may be
served at their corporate office, 2301 Eagle Parkway, Suite 200,
Fort Worth, Texas, 76177. Defendant Progressive Waste Solutions,
Ltd. received all or a portion of the fees at issues in this
matter and are responsible, either directly or indirectly, for the
conduct at issue in this matter.
The Plaintiffs are represented by:
J. Matthew Stephens, Esq.
MCCALLUM, METHVIN & TERRELL, P.C.
2201 Arlington A venue South
Birmingham, AL 35205
Telephone: (205) 939-0199
Facsimile: (205) 939-0399
Email: mstephens@mmlaw.net
- and -
Lance A Harke, P.A., Esq.
Howard M. Bushman, P.A, Esq.
HARKE CLASBY & BUSHMAN, L.L.P.
9699 NE Second A venue
Miami, FL 33138
Telephone: (305) 536-8220
Facsimile: (305) 536-8229
Email: lharke@harkeclasbv.com
hbushman@harkeclasbv.com
- and -
Javier Lopez, Esq.
KOZYAK, TROPIN, THROCKMORTON, LLP
2525 Ponce de Leon Blvd., 9th Floor
Miami, FL 33134
Telephone: (305) 372-1800
Facsimile: (305) 372-3508
Email: jal@kttlaw.com
RCI HOSPITALITY: Accrued $10.3MM Related to Class Suit at June 30
-----------------------------------------------------------------
RCI Hospitality Holdings, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 10, 2015,
for the quarterly period ended June 30, 2015, that the Company has
accrued $10.3 million as of June 30, 2015 as the estimated
liability for its obligations under a class action settlement.
The Company said, "On April 1, 2015, we and our subsidiaries, RCI
Entertainment (New York), Inc. and Peregrine Enterprises, Inc.,
entered into an agreement to settle in full a New York based
federal wage and hour class action case filed in the United States
District Court for the Southern District of New York. The
settlement has been filed with the court for preliminary approval.
Trial was scheduled to begin April 27, 2015. Under terms of the
agreement, RCI Entertainment (New York), Inc. and Peregrine
Enterprises, Inc. will make up to $15 million available to class
members and their attorneys. The actual amount paid will be
determined based on the number of class members responding by the
end of a three-month notice period, with final court approval
expected sometime after that. Any unclaimed checks or payments
will revert back to our subsidiaries. Based on the current
schedule, an initial payment of $1,833,333 will be made in
approximately five months, with two subsequent payments of
$1,833,333 each being made in equal annual installments. As part
of the settlement, we were required to guarantee the obligations
of RCI Entertainment (New York), Inc. and Peregrine Enterprises,
Inc. under the settlement."
"Filed in 2009, the case claimed Rick's Cabaret New York
misclassified entertainers as independent contractors. Plaintiffs
sought minimum wage for the hours they danced and return of
certain fees. RCI Entertainment (New York), Inc. and Peregrine
Enterprises, Inc. maintained the dancers were properly classified,
and alternatively, amounts earned were well in excess of the
minimum wage and should satisfy any obligations.
"In accordance with GAAP, the Company has accrued $10.3 million as
of June 30, 2015 as the estimated liability for its obligations
under the settlement. This is included as accrued liabilities in
the consolidated balance sheets."
ROCK CREEK: Status Hearing Held in "Baldwin" Suit
-------------------------------------------------
On January 27, 2014, Howard T. Baldwin filed a purported class
action naming Rock Creek Pharmaceuticals, Inc. and GNC Holding,
Inc., or "GNC," as defendants. The case was filed in the United
States District Court for the Northern District of Illinois.
Generally, the complaint alleged that claims made for the
Company's Anatabloc(R) product have not been proven and that
individuals purchased the product based on alleged misstatements
regarding characteristics, uses, benefits, quality and intended
purposes of the product. The complaint purported to allege claims
for violation of state consumer protection laws, breach of express
and implied warranties and unjust enrichment. The Company has
agreed to indemnify and defend GNC pursuant to the terms of the
purchasing agreement between RCP Development and GNC. Consistent
with that commitment, the Company has agreed to assume the defense
of this matter on its own behalf as well as on behalf of GNC. The
defendants filed a motion to dismiss the complaint on March 24,
2014. On January 13, 2015, the Court entered an order dismissing
the complaint in its entirety without prejudice.
On February 10, 2015, Mr. Baldwin filed an Amended Complaint
against Rock Creek Pharmaceuticals, Inc. f/k/a Star Scientific,
Inc., RCP Development, Inc. f/k/a Rock Creek Pharmaceuticals, Inc.
and GNC Holdings, Inc. (collectively "Defendants"). The Amended
Complaint also includes an additional named plaintiff, Jerry Van
Norman, who alleges that he is a citizen of Parkville, Missouri.
The Amended Complaint requests certification of an "Illinois
Class" consisting of "[a]ll persons who paid, in whole or in part,
for Anatabloc(R) dietary supplement in Illinois between August 1,
2011 and the present for personal, family or household uses," and
a "Missouri Class" consisting of "[a]ll persons who paid, in whole
or in part, for Anatabloc(R) dietary supplement in Missouri
between August 1, 2011 and the present for personal, family or
household uses."
The Amended Complaint is pleaded in seven counts: (1) violation of
the Consumer Fraud and Deceptive Business Practices Act of
Illinois; (2) violation of the Missouri Merchandising Practice
Act; (3) breach of express warranty under Illinois law; (4) breach
of express warranty under Missouri law; (5) breach of implied
warranty of merchantability under Illinois law; (6) breach of
implied warranty of merchantability under Missouri law; and (7)
unjust enrichment.
Like the original Complaint, the Amended Complaint alleges that
Defendants manufactured, marketed and/or sold Anatabloc(R), a
dietary supplement purportedly derived from an anatabine alkaloid
and promoted Anatabloc(R) as a "wonder drug" with a number of
medical benefits and uses, from treating excessive inflammation
(associated with arthritis) to Alzheimer's disease, traumatic
brain injury (or concussions), diabetes and multiple sclerosis.
Plaintiffs allege that Defendants have never proven any of these
claims in clinical trials or received U.S. Food and Drug
Administration approval for Anatabloc(R), and that Anatabloc(R)
"was never the 'wonder drug' it claimed to be." Plaintiffs allege
that they purchased Anatabloc(R) based upon claims that it
provides "anti-inflammatory support." Mr. Baldwin alleges that he
purchased Anatabloc(R) to "reduce inflammation and pain in his
joints," and Mr. Van Norman alleges that he "suffers back and knee
problems, as well as arthritis, and expected Anatabloc(R) to be
effective in treating these symptoms and purchased Anatabloc(R) to
help alleviate his symptoms." Both plaintiffs allege that
Anatabloc(R) did not provide the relief promised by the
Defendants.
Although the Amended Complaint does not include claims based on
the consumer protection laws and breach of warranty laws of
several additional states like the original Complaint, on February
10, 2015, counsel for plaintiffs also served a "Notice pursuant
to: Alabama Code Sec. 8-19-10(e); Alaska Statutes Sec.45.50.535;
California Civil Code Sec. 1782; Georgia Code Sec. 10-1-399;
Indiana Code Sec. 24-5-0.5-5(a); Maine Revised Statutes, Title 5,
Sec. 50-634(g); Massachusetts General Laws Chapter 93A, Sec. 9(3);
Texas Business & Commercial Code Sec. 17.505; West Virginia Code
Sec. 46A-6-106(b); and, Wyoming Statutes Sec. 40-12-109 as well as
state warranty statutes," which purports to give notice to
Defendants on behalf of the named plaintiffs and a "class of
similarly situated individuals" that Defendants have "violated
state warranty statutes and engaged in consumer fraud and
deceptive practices in connection with its sale of Anatabloc(R),"
and demanding that "Defendants correct or otherwise rectify the
damage caused by such unfair trade practices and warranty breaches
and return all monies paid by putative class members."
The Defendants timely moved to dismiss the Amended Complaint on
March 10, 2015. Plaintiffs filed a memorandum in response to the
motion to dismiss on April 9, 2015, and Defendants filed their
reply memorandum on April 22, 2015. On April 28, 2015, the Court
entered an order lifting the stay of discovery that had been in
place in the case. The Plaintiffs served discovery requests on May
18, 2015, to which the Company responded on June 17, 2015. The
Company is continuing to produce responsive documents to the
Plaintiffs on a rolling basis. A status hearing before the Court
was scheduled for September 24, 2015. To date, no amounts for loss
contingency have been accrued in the consolidated financial
statements.
No further updates were provided in Rock Creek's Form 10-Q Report
filed with the Securities and Exchange Commission on August 10,
2015, for the quarterly period ended June 30, 2015.
ROCK CREEK: Has Deal with Jonnie Williams Over Indemnification
--------------------------------------------------------------
On May 20, 2015, Rock Creek Pharmaceuticals, Inc. (the "Company")
entered into a Memorandum of Understanding Regarding Settlement
(the "MOU") with Jonnie R. Williams ("Williams") providing for the
manner in which indemnification payments will be made by the
Company to law firms previously engaged by Mr. Williams. The MOU
was entered into in furtherance of the settlement of the Company's
securities class action litigation, which settlement was approved
on June 22, 2015.
Rock Creek explained in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 10, 2015, for the
quarterly period ended June 30, 2015, that in general, the MOU
addresses the manner in which the Company will satisfy Mr.
Williams' indemnification rights for reimbursement of legal
expenses incurred by Mr. Williams from the law firms of McGuire
Woods LLP and Steptoe and Johnson LLP. The MOU provides for the
payment of such expenses by an aggregate up-front payment of
$300,000 to the law firms on or before May 29, 2015 (which payment
was timely made), plus subsequent payments of a total of $60,000
per month between the law firms to commence on August 1, 2015. The
aggregate amount of payments to be made by the Company over an
approximately two-year payment period under the MOU will be $1.6
million to McGuire Woods LLP (against an invoiced amount of $1.93
million) and $437,000 to Steptoe and Johnson LLP (against an
invoiced amount of $629,897). The MOU also provides that certain
discounts will be granted to the Company in the event that the
Company makes early payment of the balance of payments due under
the MOU.
ROCK CREEK: Final Judgment Entered in Securities Class Settlement
-----------------------------------------------------------------
Rock Creek Pharmaceuticals, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on August 10,
2015, for the quarterly period ended June 30, 2015, that a court
has entered final judgment in the Securities Class Action
Settlement.
On March 2, 2015, the United States District Court for the Eastern
District of Virginia, preliminarily approved the Company's
securities class action settlement in the amount of $5.9 million.
The settlement stipulated that the amount of $5.9 million, which
included litigation costs, be paid from certain Rock Creek
Pharmaceuticals, Inc. (f/k/a Star Scientific, Inc.) D&O insurance
policies. The funding of the settlement by insurers occurred in
March, 2015.
On May 4, 2015, the court entered an order setting a meeting with
the court's mediator, Magistrate Judge Novak, regarding an
indemnification issue related to the settlement. The
indemnification issue was subsequently resolved with Judge Novak's
assistance. After notice was furnished to the class, a final
approval hearing was held on June 11, 2015, at which the court
indicated it intended to approve the settlement. The court
subsequently entered final judgment on June 26, 2015.
S-L DISTRIBUTION: Refuses to Withdraw Subpoenas on Class Members
----------------------------------------------------------------
Charles Toutant, writing for New Jersey Law Journal, reports that
independent distributors of Snyder's of Hanover pretzels are
fighting the company's attempt to take depositions of putative
class members and compel them to produce documents in a franchise
dispute.
In McPeak v. S-L Distribution, the defendant issued subpoenas on
two putative class members in a suit filed on behalf of a class of
distributors who were terminated by the company in 2011 or 2012.
Plaintiffs counsel moved to quash the subpoenas Oct. 21, arguing
that no Third Circuit case law has allowed depositions of absent
class members, and that written discovery of such persons is
disfavored.
The case has one named plaintiff, Joseph McPeak, but the defendant
has issued subpoenas on two putative class members, John Tubertini
and Frank Matthews. Mr. Tubertini and Matthews moved to intervene
in May 2014, but S-L Distribution opposed their intervention, and
U.S. Magistrate Judge Karen Williams denied the motion in December
2014.
S-L Distribution's lawyer refused to withdraw the subpoenas in an
Oct. 19 letter to plaintiffs counsel, maintaining that the limited
discovery it seeks is supported by the law. But plaintiffs
counsel claims the subpoenas are intended only "to harass and
punish them for having the temerity to try to intervene."
Mr. McPeak seeks a protective order against S-L Distribution
serving additional subpoenas on putative class members in addition
to quashing those issued to Messrs. Tubertini and Matthews. His
duties were to deliver snack foods to retailers in a given
territory, arrange them on store shelves and remove stale
products.
His suit claims the company terminated the franchises of at least
100 distributors without compensating them for the value of their
distributorships, in violation of the New Jersey Franchise
Practices Act.
S-L Distribution is a subsidiary of Snyder's-Lance, which makes
Lance and Cape Cod snacks, and Archway and Stella D'oro cookies,
in addition to its pretzels. Its subpoenas, served Oct. 9 on
Matthews and on Oct. 19 on Mr. Tubertini, seek 36 categories of
documents, including personal tax returns, and command them to
appear at a deposition.
In an Oct. 19 letter to the plaintiff's lawyer, defense counsel
Joel Lennen of Eckert Seamans Cherin & Mellott in Pittsburgh said
the U.S. Court of Appeals for the Third Circuit supported the
discovery of Messrs. Matthews and Tubertini in Easton & Co. v.
Mutual Benefit Life Insurance, a 1994 ruling where the court
denied a plaintiff's request for reconsideration of an opinion
permitting discovery of absent class members.
But plaintiffs lawyer Shawn Wanta of Baillon, Thome, Jozwiak &
Wanta in Minneapolis, in court papers filed Oct. 21, said the
Easton case "provides no support whatsoever to S-L's quest to
depose and seek reams of private financial documents from absent
class members."
Mr. Wanta said the court in Easton allowed "limited, simple"
interrogatories on absent class members for the stated purpose of
rebutting reliance on the fraud-on-the-market theory. In Easton,
according to Mr. Wanta, the court made the finding that class
members would not require the assistance of counsel to answer the
interrogatories. And in Easton the court ordered that the
interrogatories not seek information on matters already known to
defendants.
In the present case, Messrs. Matthews and Tubertini would be put
to "enormous effort to find and gather the extensive list of
documents demanded" by the subpoena, and would need the assistance
of counsel to interpret the 36 requests for production, prepare
and produce the documents and determine whether they have a basis,
such as privilege, to object to the subpoena, Mr. Wanta said. In
addition, "simple fairness" requires that they have representation
of counsel at the depositions themselves, Mr. Wanta said.
S-L Distribution has "utterly failed to demonstrate the necessity
of subjecting these absent class members to sit for a deposition
and produce documents," Mr. Wanta said.
In its answer to the complaint, S-L Distribution says the
New Jersey Franchise Practices Act does not apply to the present
case, and it said it paid McPeak $112,000 for his territory.
Neither Messrs. Wanta nor Lennen returned calls about the case.
SAN FRANCISCO, CA: Jails People Who Can't Post Bail, Suit Claims
----------------------------------------------------------------
Maria Dinzeo, writing for Courthouse News Service, reported that
the city and county of San Francisco is unconstitutionally
criminalizing poverty by keeping poor arrestees in jail because
they can't afford to post bail, a federal class action in San
Francisco claims.
"Nobody should be detained because they're too poor to pay an
arbitrary amount of money," Phil Telfeyan of the Washington, D.C.-
based Equal Justice Under the Law told reporters. "A very, very
dangerous criminal might be released if they can post $100,000
bond, whereas a completely nonviolent detainee might be in jail
for months pending trial simply because she's too poor to pay that
bond amount."
The class is led by Riana Buffin, 19, and Crystal Patterson, 29.
Both women were arrested and charged respectively with grand theft
and assault.
Buffin's bail was set at $30,000, Patterson's at $150,000. Both
have since had their charges dropped.
Patterson was able to scrape together $1,500 from friends and
family to pay a bail bondsman but is still on the hook to the
private company for $15,000 -- 10 percent of the $150,000 bond.
"It's quite likely that had we been able to get them to court in
front of a judge they would have been released on their own
recognizance. But that would have required them to wait several
days, more time than either of them could afford to wait in
custody," said deputy public defender Chesa Boudin. "Poor people's
lives are turned upside down every day they're kept in jail."
Telfeyan underscored the women's plights.
"These aren't career criminals, these aren't serial offenders.
Nobody sees them as a serious threat to others, and yet they were
detained simply because of their wealth status," he said.
Boudin added that poor detainees are severely prejudiced by trying
to mount a defense from jail, where it's harder to review
discovery and track down key witnesses.
"The problem with San Francisco's bail practice is it ensures that
those hardships fall exclusively on the city's poorest," he said.
The lawsuit notes that Buffin is the sole caretaker of her
disabled mother and two younger brothers."Two days in jail
matters," Telfeyan said. "Ms. Buffin was in jail for two days only
to see her charges discharged. For her to be in jail for two days
has a huge negative impact on her life, her ability to retain her
employment and take care of her family. It's a real human cost."
Telfeyan said his group has brought six successful lawsuits in
cities and counties in Alabama, Mississippi, Louisiana and
Missouri. "Those cities have agreed to stop using money bail
altogether," he said. Two actions in Georgia and Kansas are still
being litigated.
The state of California is also named as a defendant, Telfeyan
explained, because state law requires the city and county of San
Francisco to use a fixed bail schedule that does not take
individual circumstances into account.
California's bail requirements stand in stark contrast to the
federal system, where arrestees are not required to put up money
for their freedom.
"They'll actually go before a judge who will evaluate if they're a
flight risk or a danger to others. If not, which is the vast
majority of arrestees, that person is free. We don't tie it to
wealth -- it's based on danger or flight risk. It's only the
cities and counties that require money to be put up front,"
Telfeyan said.
What's unique about this case is its support from San Francisco's
top law enforcement officer, Sheriff Ross Mirkarimi.
"We are detaining or incarcerating people simply because of the
size of their bank accounts," Mirkarimi said, noting that over 30
percent of people detained in San Francisco's county jail cannot
afford a $5,000 bond. Of that number, 31 percent cannot afford
even $500.
"It costs $63,000 a year to incarcerate someone in our county
jail. But alternatives to incarceration that are just as effective
are a fraction of the cost. Electronic monitoring could be a tenth
if not less than the cost of incarceration," Mirkarimi said.
Buffin and Patterson want a ban on money bail in San Francisco,
along with compensation for the time they spent in jail. They are
represented by Telfeyan and Katherine Hubbard with Equal Justice
Under Law in Washington, D.C.
SEQUENTIAL BRANDS: Facing Class Action Over Martha Stewart Deal
---------------------------------------------------------------
Sequential Brands Group, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 10, 2015,
for the quarterly period ended June 30, 2015, that in connection
with the merger with Martha Stewart Living Omnimedia Inc. et al.,
the following 13 putative stockholder class action lawsuits have
been filed in the Court of Chancery of the State of Delaware: (1)
David Shaev Profit Sharing Plan f/b/o David Shaev v. Martha
Stewart Living Omnimedia Inc. et al. filed on June 25, 2015; (2)
Malka Raul v. Martha Stewart Living Omnimedia Inc. et al. filed on
June 26, 2015; (3) Daniel Lisman v. Martha Stewart Living
Omnimedia Inc. et al. filed on June 29, 2015; (4) Matthew
Sciabacucchi v. Martha Stewart Living Omnimedia Inc. et al. filed
on July 2, 2015; (5) Harold Litwin v. Martha Stewart Living
Omnimedia Inc. et al. filed on July 5, 2015; (6) Richard Schiffrin
v. Martha Stewart filed on July 7, 2015; (7) Cedric Terrell v.
Martha Stewart Living Omnimedia Inc. et al. filed on July 8, 2015;
(8) Dorothy Moore v. Martha Stewart Living Omnimedia Inc. et al.
filed on July 8, 2015; (9) Paul Dranove v. Pierre De Villemejane.
et al. filed on July 8, 2015; (10) Phuc Nguyen v. Martha Stewart
Living Omnimedia Inc. et al. filed on July 10, 2015; (11) Kenneth
Steiner v. Martha Stewart Living Omnimedia Inc. et al. filed on
July 16, 2015; (12) Karen Gordon v. Martha Stewart et al. filed on
July 27, 2015; and (13) Anne Seader v. Martha Stewart Living
Omnimedia, Inc. et al. filed on July 28, 2015.
All of the 13 class action lawsuits name MSLO, the MSLO board of
directors, the Company, Madeline Merger Sub, Singer Merger Sub and
TopCo as defendants and allege that (a) members of the MSLO board
of directors breached their fiduciary duties and (b) MSLO, the
Company, Madeline Merger Sub, Singer Merger Sub and TopCo aided
and abetted such alleged breaches of fiduciary duties by the MSLO
board of directors. The Company has referred the matters to
external counsel. Based on preliminary discussions, the Company
believes that the actions are not likely to result in material
liability for the Company and expects that the actions will be
settled prior to the MSLO Merger Closing Date.
SIRIUS XM: Faces Class Action in N.J. Over Unpaid Royalties
-----------------------------------------------------------
Zack Needles, writing for New Jersey Law Journal, reports that
Arthur and Barbara Sheridan, an Illinois couple who owned several
doo-wop, jazz and R&B recording companies in the 1950s and 1960s,
have filed two putative federal class actions in New Jersey
against Internet and satellite radio providers iHeartMedia Inc.,
Sirius XM Radio Inc. and Pandora Media Inc., over allegedly unpaid
royalties and unauthorized use of pre-1972 recordings.
The fight over royalties for music recorded before Feb. 15, 1972,
which are not mandated under the federal Copyright Act of 1976,
has made national headlines recently: In June, Sirius XM agreed to
pay $210 million to several major record labels to settle a
dispute over pre-1972 royalties and media reports said Pandora is
preparing to settle with major labels over the same issue for $90
million.
Federal courts across the country have split on whether royalties
are due on pre-1972 recordings under their respective states'
laws. In related cases filed against Sirius XM by members of the
1960s band The Turtles, federal judges in New York and California
found in favor of the plaintiffs earlier this year. But a federal
judge in Florida found against the plaintiffs, saying state law
did not entitle pre-1972 copyright owners to pursue damages for
unpaid royalties.
In a pair of suits filed Oct. 19 in the U.S. District Court for
the District of New Jersey -- one against iHeartMedia, which
operates the iHeartRadio Internet radio service, and the other
against both Sirius XM and Pandora -- the Sheridans are seeking
damages under New Jersey state law on behalf of themselves and
similarly situated copyright holders.
Both suits allege the defendants "profit handsomely by advertising
and offering these sounds to the public," but have failed to
obtain permission to use pre-1972 recordings or to pay royalties
on them.
The Sheridans claim in the suits that they own the master
recordings -- and the accompanying intellectual property and
contract rights -- of several songs from the 1950s and 1960s,
including "She's Going to Ruin Me" by T-Bone Walker, "Just Keep
Loving Her" by Little Walter and "Golden Teardrops" by The
Flamingos.
The Sheridans have filed similar suits against iHeartMedia in
federal courts in Illinois, California and Georgia, and against
Sirius XM and Pandora in New York.
In the New Jersey suits, the Sheridans argue they are entitled to
damages under the state's common-law prohibitions on
misappropriation and unjust enrichment.
The Sheridans say in the complaints that they are bringing the
suits on behalf of what they call the "misappropriations class,"
which is composed of "all owners of reproduction and public
performance rights in pre-1972 recordings that have been publicly
performed, copied or otherwise exploited" by the defendants
"without a license or other authorization, in the marketing, sale
and provision of Internet and terrestrial radio services."
According to the suits, the District of New Jersey has personal
jurisdiction because the defendants "mass-solicit New Jersey
customers" through their websites and on-air advertising.
The suit against iHeartMedia says the company advertises its
Internet and terrestrial radio services, as well as offers its
mobile app, through several New Jersey radio stations, including
WHCY 106.3 FM, WNNJ 103.7 FM and WSUS 102.3 FM.
The suits each bring one count for common-law copyright
infringement and unfair competition, as well as one count for
unjust enrichment.
The Sheridans are being represented by Bruce Greenberg of Lite
DePalma Greenberg in Newark and Steve Berman and Robert Carey of
Hagens Berman Sobol Shapiro in Seattle and Phoenix, respectively.
None of the plaintiffs attorneys responded to requests for
comment.
At press time, no attorneys had entered appearances for
iHeartMedia, Sirius XM or Pandora. Spokespersons for iHeartMedia
and Pandora did not respond to requests for comment.
Sirius XM spokesman Patrick Reilly said the company declined to
comment on the litigation.
SONY PICTURES: Settles Data Breach Class Action for $8 Million
--------------------------------------------------------------
Cheryl Miller, writing for The Recorder, reports that Sony
Pictures Entertainment Inc. will pay up to $8 million, including
$3.5 million in attorney fees, to settle claims tied to the
infamous 2014 hacking scandal, according to proposed terms filed
on Oct. 19 in the U.S. District Court for the Central District of
California.
Attorneys representing a proposed class of current and former Sony
employees say the entertainment conglomerate has agreed to create
a $2 million fund to reimburse settlement class members for costs
they've incurred to shield themselves from identity theft. Sony
will also pay for two years of identity-protection services for
class members plus an additional $2.5 million to victims who have
suffered losses tied to the data breach.
Class counsel will also receive fees of up to $3.49 million under
the terms of the deal.
"The settlement not only allows the settlement class to avoid the
risks of continued litigation, but it provides them with something
else that could not be achieved through litigation -- prompt
relief," Keller Rohrback partner Cari Campen Laufenberg wrote in
support of the motion to approve the pact. "Proceeding to trial
could add years to the resolution of this case, given the legal
and factual issues raised and likelihood of appeals."
Keller Rohrback, Girard Gibbs, and Lieff Cabraser Heimann &
Bernstein serve as co-lead class counsel in the case.
A Sony press representative declined to comment on the proposed
settlement.
The litigation stems from a November 2014 hack of Sony's computer
network by a group calling itself Guardians of the Peace. The
cyberattack exposed confidential information about thousands of
current and former employees, including Social Security numbers,
salaries and medical records, according to class counsel. The
hackers also posted a salacious trove of studio insider emails
that included racially tinged missives, details about movie stars'
pay and gossipy opinions of industry talent.
U.S. District Judge Gary Klausner of the Central District of
California in June dismissed plaintiffs' claims for breach of
implied contract and for violations of various states' consumer-
protection laws. The settlement was reached five months before
trial on the four remaining categories of claims was scheduled
to begin, Laufenberg wrote.
Sony is represented by Wilmer Cutler Pickering Hale and Dorr.
The agreement calls on Sony to provide direct notice to settlement
class members and to publish a notice in People magazine.
SUFFOLK COUNTY, NY: Class Action Plaintiffs Can Sue Anonymously
---------------------------------------------------------------
Andrew Keshner, writing for New York Law Journal, reports that
plaintiffs alleging that Suffolk County police officers have a
policy, pattern and practice of discriminatory policing against
Latinos may proceed with the putative class action anonymously, a
judge has ruled.
The suit, filed by 21 plaintiffs, claims police subject Latino
drivers to illegal traffic stops and target them in a "stop and
rob" scheme.
Defendants include the county, its police department, police
officials and a former officer, Scott Greene, who is awaiting
trial on charges he took money from 27 Latino drivers, some of
whom are the plaintiffs.
In Plaintiffs #1-21 v. County of Suffolk, 15-cv-2431, the
plaintiffs asked to litigate anonymously because they "fear[ed]
that any litigation will lead to further harassment or
retaliation, including the extreme harm of deportation."
They offered to allow limited disclosure of their identities as
long as they were not made public, but the county rejected the
offer and opposed the anonymity request.
On Oct. 14, Eastern District Judge Arthur Spatt granted the
request but directed the parties to enter a protective order
allowing for limited disclosure of the plaintiffs' identities for
the purpose of discovery.
"Based on the extraordinary nature of these allegations, the court
finds that the plaintiffs' fears of potential retaliation by the
[Suffolk County Police Department] appear reasonable, at least
until discovery proves otherwise," he said.
Judge Spatt decided sua sponte to stay litigation with respect to
Greene, noting the pending criminal case and Greene's lack of
representation in the civil case.
The county is represented by Assistant County Attorneys Megan
O'Donnell and Jessica Spencer.
The plaintiffs are represented by Juan Cartagena, Nancy Trasande
and Foster Maer of LatinoJusticePRLDEF, Heather Kafele, a partner
at Shearman & Sterling, and associates Elan DiMaio, Zachary Bench
and Mallory Brennan.
SYMMETRY SURGICAL: Agreed to Settle Class Action Lawsuit
--------------------------------------------------------
Symmetry Surgical Inc has agreed to settle a class action, the
Company said in its Form 10-Q Report filed with the Securities and
Exchange Commission on August 10, 2015, for the quarterly period
ended July 4, 2015.
On September 29, 2014, a purported class action complaint
challenging the company's former parent's merger and the Company's
spin-out as a stand-alone public company was filed by Resolution
Partners, an alleged stockholder of SMI, and all others similarly
situated, in the Kosciusko Circuit Court in the state of Indiana.
The complaint named as defendants Symmetry Medical Inc. ("SMI"),
the members of the board of directors of SMI, Genstar Capital LLC,
Tecomet's sponsor (''Genstar''), Tecomet, Holdings and TecoSym
Inc. The complaint generally alleges, among other things, that the
members of the SMI board of directors breached their fiduciary
duties to Resolution Partners and SMI stockholders during merger
negotiations and by entering into the Merger Agreement and
approving the Merger, and that Genstar and Tecomet allegedly aided
and abetted such alleged breaches of fiduciary duties. The
complaint further alleges that the joint proxy
statement/prospectus filed by Symmetry Surgical with the SEC on
September 5, 2014, which contained the preliminary proxy statement
of SMI, was misleading or omitted certain allegedly material
information. The complaint sought, among other relief, injunctive
relief enjoining consummation of the Merger, compensatory and/or
rescissory damages in an unspecified amount and costs and fees.
The parties settled the suit prior to the consummation of the
transaction, for no additional consideration and a few additional
disclosures filed in a Form 8-k, although left the issue of a
claim for fees and costs for resolution at a later time, either
through agreement or via a court hearing. The Company has agreed
with SMI to share equally in any fee award, up to 50% of the
remaining insurance deductible. The Company does not believe this
will have a significant impact on its financial position, results
of operations or cash flows.
TERRAFORM GLOBAL: Faces Shareholder Class Action Over Stock Drop
----------------------------------------------------------------
Marisa Kendall, writing for The Recorder, reports that
shareholders of clean energy company TerraForm Global Inc. are
suing over alleged misrepresentations they say drove down stock
prices shortly after the company's July initial public offering.
TerraForm is a subsidiary or "yieldco" of solar company SunEdison
Inc., created to serve as an investment vehicle to fund SunEdison
projects. The two companies are closely tied, plaintiffs' lawyers
argue, so the surprise announcement of subpar SunEdison earnings
in August was disastrous for TerraForm's stock value.
Lawyers with Glancy Prongay & Murray sued on Oct. 23 in San Mateo
County Superior Court. The complaint lists both TerraForm and
SunEdison as defendants.
TerraForm raised about $620 million through its July 31 IPO, after
deducting offering expenses and underwriting discounts and
commissions, according to the complaint. The company sold 45
million shares at $15 per share. A week later, SunEdison issued a
press release disclosing disappointing financial results for the
second quarter of 2015. The company reported a loss of 93 cents
per share, compared with a predicted loss of 55 cents per share.
On Oct. 7, SunEdison insiders revealed during an investor
conference call that the company was shifting its focus away from
yieldcos such as TerraForm, according to the complaint. The
lawyers say SunEdison also announced it was reducing its workforce
by up to 15 percent and slowing down its acquisition of energy-
generating assets, including solar and wind.
On Oct. 22 TerraForm's shares closed at $7.94, down more than $7
from the summer's IPO price.
Plaintiffs lawyers claim the documents TerraForm filed with the
Securities and Exchange Commission in anticipation of its IPO were
misleading. The forms failed to disclose that SunEdison was about
to report disappointing financial results, that SunEdison was
changing its business strategy, and that those changes would hurt
TerraForm.
Representatives from Maryland-based TerraForm and Missouri-based
SunEdison declined to comment. SunEdison's solar cell research
team is headquartered in Belmont.
TRICO BANCSHARES: Hearing on Class Action Settlement Held
---------------------------------------------------------
TriCo Bancshares said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 10, 2015, for the
quarterly period ended June 30, 2015, that a court was slated to
consider final approval of a class action settlement and the
potential award of attorneys' fees at a hearing scheduled for
October 19, 2015.
On January 24, 2014, a putative shareholder class action lawsuit
was filed against TriCo, North Valley Bancorp and certain other
defendants in connection with TriCo entering into the merger
agreement with North Valley Bancorp. The lawsuit, which was filed
in the Shasta County, California Superior Court, alleges that the
members of the North Valley Bancorp board of directors breached
their fiduciary duties to North Valley Bancorp shareholders by
approving the proposed merger for inadequate consideration;
approving the transaction in order receive benefits not equally
shared by other North Valley Bancorp shareholders; entering into
the merger agreement containing preclusive deal protection
devices; and failing to take steps to maximize the value to be
paid to the North Valley Bancorp shareholders. The lawsuit alleges
claims against TriCo for aiding and abetting these alleged
breaches of fiduciary duties. The plaintiff seeks, among other
things, declaratory and injunctive relief concerning the alleged
breaches of fiduciary duties injunctive relief prohibiting
consummation of the merger, rescission, attorneys' of the merger
agreement, fees and costs, and other and further relief.
On July 31, 2014 the defendants entered into a memorandum of
understanding with the plaintiffs regarding the settlement of this
lawsuit. In connection with the settlement contemplated by the
memorandum of understanding and in consideration for the full
settlement and release of all claims, TriCo and North Valley
Bancorp agreed to make certain additional disclosures related to
the proposed merger, which are contained in a Current Report on
Form 8-K filed by each of the companies. The memorandum of
understanding contemplated that the parties would negotiate in
good faith and use their reasonable best efforts to enter into a
stipulation of settlement. The parties entered into a stipulation
of settlement dated May 18, 2015 that is subject to customary
conditions, including final court approval following notice to
North Valley Bancorp's shareholders. In the stipulation of
settlement, the plaintiff agreed that to seek no more than
$375,000 in attorneys' fees and costs. The court preliminarily
approved the settlement by order dated June 22, 2015. The court
was to consider final approval of the settlement and the potential
award of attorneys' fees at a hearing that is scheduled for
October 19, 2015. There can be no assurance that the court will
approve the settlement. In such event, the proposed settlement as
contemplated by the memorandum of understanding and stipulation of
settlement may be terminated.
TRICO BANCSHARES: Butte County Suit by Ex-Personal Banker Pending
-----------------------------------------------------------------
TriCo Bancshares said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 10, 2015, for the
quarterly period ended June 30, 2015, that a former Personal
Banker at one of the Bank's in-store branches filed on September
15, 2014, a Class Action Complaint against the Bank in Butte
County Superior Court, alleging causes of action related to the
observance of meal and rest periods and seeking to represent a
class of current and former hourly-paid or non-exempt personal
bankers, or employees with the same or similar job duties,
employed by Defendants within the State of California during the
preceding four years. On or about June 25, 2015, Plaintiff filed
an Amended Complaint expanding the class definition to all current
and formerly hourly-paid or non-exempt branch employees employed
by Defendant's within the State of California at any time during
the period from September 15, 2010 to final judgment. The Bank has
not yet responded to the First Amended Complaint, but denies the
charges, and the Bank intends to vigorously defend the lawsuit
against class certification and liability.
TRICO BANCSHARES: Sacramento Suit by Personal Banker Pending
------------------------------------------------------------
TriCo Bancshares said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 10, 2015, for the
quarterly period ended June 30, 2015, that a current Personal
Banker at one of the Bank's in-store branches filed on January 20,
2015, a First Amended Complaint against Tri Counties Bank and
TriCo Bancshares, dba Tri Counties Bank, in Sacramento County
Superior Court, alleging causes of action related to wage
statement violations. Plaintiff seeks to represent a class of
current and former exempt and non-exempt employees who worked for
the Bank during the time period beginning October 18, 2013 through
the date of the filing of this action. The Company and the Bank
have responded to the First Amended Complaint, deny the charges,
and intend to vigorously defend the lawsuit against class
certification and liability.
UBER TECHNOLOGIES: Judge Dismisses "Antman" Data-Breach Suit
------------------------------------------------------------
David Ruiz, writing for The Recorder, reports that a federal
magistrate dismissed a suit against Uber Technologies Inc. by
drivers alleging they were harmed by its handling of a data breach
last year. U.S. Magistrate Judge Laurel Beeler said the
plaintiffs hadn't shown they were injured by the unauthorized
accessing of files that included driver names and license numbers.
"Without a hack of information such as Social Security numbers,
account numbers, or credit card numbers, there is no obvious,
credible risk of identity theft that risks real, immediate
injury," Beeler wrote. But she gave named plaintiff Sasha Antman
a chance to amend the complaint. Mr. Antman's counsel, Theodore
Maya of Ahdoot & Wolfson, said he and his client plan on taking
that option. "We continue to believe that Uber failed to
adequately safeguard its drivers' personal information," Mr. Maya
said Oct. 19.
Michael Li-Ming Wong, partner at Gibson, Dunn & Crutcher and
counsel for Uber, declined to comment.
Uber announced in February of this year that up to 50,000 drivers
had their names and driver's license numbers stolen from an Uber
database in May 2014. A month later, plaintiff Antman filed a
putative class action against the ride-sharing company.
Mr. Antman, who now lives in Oregon, was a driver for Uber in San
Francisco until September 2013.
On the day the motion was heard, earlier in October, Reuters
reported that Uber was investigating whether the files were
accessed by the chief technology officer at rival Lyft. Judge
Beeler told Uber to come forward with any information that would
show the breach was not the work of typical identity thieves.
Maya tried to connect the dots between the breach of the database
and a suspicious Capital One credit card opened in Mr. Antman's
name with the use of his Social Security number. But Uber has
said only names and driver's license numbers were taken, not
Social Security numbers. Still, Mr. Maya argued that the loss of
a name and a driver's license number is inherently a type of harm.
"Driver's license information is an important piece of one's
personal information and a counterfeit driver's license goes for
more on the black market than a counterfeit credit card," Mr. Maya
asserted again in a telephone conversation on Oct. 19.
But Judge Beeler didn't see it that way and said the plaintiff
"did not allege a causal connection between Uber's conduct and the
credit-card application."
UBER TECHNOLOGIES: Driver Classification Lawsuit Ongoing
--------------------------------------------------------
Rebekah Mintzer, writing for Corporate Counsel, reports that until
recently, to drive across town, grocery shop or clean the house,
there were only two options: Do it yourself, or search the Web or
a phone book for a service worker to do it for you. The on-demand
economy (aka the sharing or gig economy) is changing that. Now,
with just the click of a button on a smartphone app, customers can
have a cab, personal shopper or home cleaner at their doorstep.
On-demand companies make it easy to get goods and services quickly
using an app-based system that connects the customer with another
person in their geographic area who can provide what they are
looking for.
Consumers like the efficiency of this arrangement, and many on the
other side of the transaction do, too. The app-fueled and largely
low-skilled nature of on-demand work means that almost anyone can
do it, and they get the flexibility to work only when they want
to. Some work for multiple on-demand companies at the same time to
make a living, while others only switch on their apps when they
need some extra cash. Kristin Sverchek, general counsel of San
Francisco-based Lyft, an on-demand company that provides car
rides, says that drivers who supply rides on the Lyft "platform"
have a lot more freedom than they'd have in other jobs. "If
drivers were employees, you'd expect them to work a set schedule,
clock in and clock out, and wear certain clothes," she says.
"There would be repercussions if they didn't comply, but none of
those rules are present with us. Incidentally, this is exactly why
a lot of drivers like driving on the Lyft platform."
But as tends to be the case with technology-based disruptive
change, not everyone is on board. Workers have filed class action
lawsuits against a number of on-demand companies, alleging that
management is misclassifying workers as 1099 independent
contractors, when they should really be W2 employees. Full
employees are entitled to numerous benefits, including minimum
wage and overtime under the Fair Labor Standards Act, workers'
compensation, matching contributions to Social Security and
Medicare, and the right to unionize. In response, most of the
companies have defended their policies, maintaining that they
don't actually employ their workers, although a few have given
workers the chance to switch to W2 status.
The most high-profile target of this new breed of
misclassification lawsuit is the San Francisco-based ride-hailing
company Uber Technologies Inc. A suit against Uber in California
may serve as a test case for the survival of the on-demand
economy. If Uber and similar companies lose their cases, explains
Shelby Clark, executive director of Peers, an advocacy group for
the emerging sector, the shift will be major. "It will
undoubtedly change the way these businesses operate," he says,
"and my fear is that it will dramatically reduce the flexibility
associated with them, and flexibility is the No. 1 thing that
draws people to this work."
What makes this high-stakes litigation even more complex is that
many believe the legal framework for classification is
insufficient for today's tech-driven working world. The 1099-
based business model that has helped Uber achieve an estimated
valuation of more than $50 billion -- but may have made it
vulnerable to lawsuits -- is actually rather straightforward.
Prospective passengers and drivers download Uber's app. When a
passenger indicates on the app that he or she needs a ride, the
app uses geographic tracking to match the rider with the closest
Uber driver. Passengers pay for their trip electronically without
the hassle of using cash or swiping a credit card. The company
sets the fare rates and takes a cut of around 20 percent.
According to Uber, as of 2014 there were more than 160,000 active
drivers working for the company around the U.S. But some, such as
Douglas O'Connor, a driver living in South San Francisco, do not
like the way Uber treats them. In August 2013, O'Connor, along
with three other drivers, filed a class action in the U.S.
District Court for the Northern District of California on behalf
of all Uber drivers in the state. The complaint says that Uber
violated California labor codes by misclassifying workers as
independent contractors. It demands that Uber reclassify the
workers as employees and reimburse them for withheld gratuities as
well as job-related expenses such as gas money and vehicle-related
costs, as required of W2 employers under California law.
The employment law framework in California puts the burden on Uber
to show that drivers are not bona fide employees. To do so, the
company will need to demonstrate that it lacks sufficient
"control" over drivers in the course of their jobs. Tests to
determine company control vary nationwide, but are often based on
the Internal Revenue Service's 20-point test. Judge Edward Chen,
who is presiding over the case, ruled that the test in this case
will be the one created in 1989 by the California Supreme Court in
S.G. Borello & Sons v. Department of Industrial Relations.
The Borello test requires courts to ask whether the company
retains the "right to control work details." To make this
determination, the court will look at eight factors, and may also
take into consideration five other factors that Borello cited.
There is no set number of factors that have to favor the W2 side
in order to create employee status.
The plaintiffs suing Uber claim in their complaint that they are
"required to follow a litany of detailed requirements imposed on
them by Uber," which amount to control over drivers under the law.
The complaint cites that drivers are graded, and can be
terminated, based on a star rating system that customers use to
rate their drivers. If ratings get too low, Uber can deactivate
the driver. The plaintiffs also cite the company's rules that
instruct drivers on how to conduct themselves with customers,
including what they can say, how clean their vehicles should be
and how timely they have to be in customer pickups and drop-offs.
In addition, the complaint argues that drivers are employees
because they are integral to Uber's survival: "The drivers'
services are fully integrated into Uber's business, and without
the drivers, Uber's business would not exist."
The plaintiffs are represented by Shannon Liss-Riordan of Boston's
Lichten & Liss-Riordan, who has become one of the on-demand
economy's greatest legal foes. She has sued Uber in a separate
class action in Massachusetts, and she has also sued several other
companies for misclassification, including Lyft. Ms. Liss-
Riordan believes that despite the technology involved, the
O'Connor case is actually not too different from other
misclassification suits she has brought on behalf of more
traditional types of workers such as baristas, house cleaners and
exotic dancers. "It seems to be yet another in a long line of
cases where a company tries to distance itself from its workers in
order not to involve itself as an employer," she says.
Uber has a very different take on its relationship to drivers. It
has repeatedly asserted that it is a technology company that
generates job leads for drivers, not a transportation company that
should be held responsible for employing drivers.
Theodore Boutrous Jr., a partner at Gibson Dunn & Crutcher in Los
Angeles who represents Uber in the case, argues that the drivers'
jobs are very different from standard employment, starting with
the contracts. "With an app, you're signing up on a licensing
agreement, you don't have to do anything, you don't have to ever
drive," he says.
The company explained in its filings to the federal district court
that several factors point to the lack of control needed to make
drivers W2 employees. They set their own hours and work
schedules, own their vehicles and are subject to very little
direct supervision from Uber. "Plaintiffs do not dispute that
defendant did not set their schedules and did not supervise their
work," the company said in its motion for summary judgment.
"While plaintiffs will likely suggest the star rating system
permitted defendant to 'supervise' them in some way, imposing
quality standards in no way undermines the independent contractor
relationship." Uber also pointed out that as 1099s, drivers are
free to subcontract out their work and even work for multiple
ride-hailing companies at once.
The data that Uber has collected about its drivers seems to
support the idea that many don't see themselves as employees
either. An Uber-commissioned survey of U.S. drivers released in
January says that 62 percent have an additional full- or part-time
job, and that 73 percent would rather be their own boss and choose
their own schedule than have a 9-to-5 job with some benefits and a
set salary. Only 19 percent said they were driving 35 hours a
week or more. Uber has also presented declarations to the court
from drivers who claim that getting W2 status would actually hurt
them because companies can impose requirements on employees about
how, where and when to work.
So far, the momentum in the courtroom has favored the plaintiffs.
In March, Judge Chen denied Uber's motion for summary judgment. On
Sept. 1, he granted the plaintiffs class certification with some
stipulations, including that those drivers who signed up in the
summer of 2014 or later could not be part of the class because
they may be bound by an arbitration clause that Uber added to its
driver licensing agreements at that point. He will also only
allow workers to claim tips, not other business reimbursements.
On Sept. 15, Uber appealed the class certification decision to the
U.S. Court of Appeals for the Ninth Circuit. It asserted that
drivers lack sufficient commonality to form a class. "Think about
it this way," says Mr. Boutrous. "How could you possibly say that
a woman who signed on to Uber in 2009 and drove one time and never
used the app again is in the same position vis-a-vis Uber and
their relationship as another woman who signed up in 2012 and
drove 40 hours a week? You just can't say those two people are the
same, that they are both employees or they are both similarly
situated."
If class certification in O'Connor survives the appeal and
proceeds to trial, the jury will have a big job on its hands:
dealing with the potential complications of applying the decades-
old Borello test to a tech-driven 21st-century workforce. Despite
his decision to use Borello, even Judge Chen noted that it could
be problematic. "The application of the traditional test of
employment -- a test which evolved under an economic model very
different from the new 'sharing economy' -- to Uber's business
model creates significant challenges," he wrote in his order
denying Uber summary judgment. "Arguably, many of the factors in
that test appear outmoded in this context."
One factor Borello asks companies to take into account, for
instance, "whether the principal or the worker supplies the
instrumentalities, tools and the place for the person doing the
work." In the case of Uber, it may be tough to say which tools
and instrumentalities matter in a situation where an app is
directing and facilitating the work. Another factor -- "the
degree of permanence of the working relationship" -- could be
problematic in the on-demand economy, as a worker can do
dramatically different amounts of work from week to week and just
has to turn on and off an app to clock in or out.
Still, some believe that these tests are evergreen.
Ms. Liss-Riordan, for one, disagrees with the notion that they no
longer apply just because the technologies are novel. "I don't
understand the impetus for why we should start tearing down those
protections to help $50 billion companies like Uber make more
money," she says.
Uber may be in the spotlight now, but many other on-demand
companies that provide different types of services are also in
court fighting off class action misclassification suits. For
example, two major on-demand home cleaning companies,
San Francisco-based Homejoy and New York City's Handy, have also
been in the crosshairs. Homejoy shut its digital doors in July,
citing misclassification litigation as the deciding factor. Handy
is still trying to fight off a suit in California.
In October 2014, three plaintiffs who had served as on-demand home
cleaners for Handy filed a class action misclassification lawsuit
in California Superior Court. Their lawyer, Byron Goldstein of
Oakland's Goldstein, Borgen, Dardarian & Ho, explains that his
clients were misled into believing they were signing up for a good
steady job. "When Handy advertises, it appears that the job gives
you a lot of flexibility and also promotes earning a good living,"
he says. "The reality, unfortunately, has been that there turns
out to be a tremendous amount of control, without the benefits of
employment."
According to the complaint, Handy instructs its home cleaners how
to dress (including wearing clothing with the Handy insignia),
when and how to announce their arrival, whether to shake hands or
take off shoes when entering someone's home and how to use the
bathroom on the job. The complaint notes that Handy workers have
no control over the length of time they can work at a job and
can't negotiate a price for their services beyond what is set by
Handy.
Greta and Vilma Zenelaj, two of the plaintiffs, told Fast Company
that there were other problems involved. They didn't get paid to
wait for a client who was running 30 minutes late (even though
they were already at his house), they didn't get paid if they got
stuck in traffic in between jobs and, of course, they didn't get
reimbursed for gas or overtime. "All these sharing-economy
companies have been able to grow quickly by being fairly
noncompliant with the law," says Mr. Goldstein. "But if they want
to stick around, they're going to need to make that decision of
whether they are going to be actual employers or actual
independent contractors. It's time to get their house in order."
(Handy did not respond to multiple requests for comment.)
Worker classification in the on-demand economy may resemble a
litigation minefield at the moment, but there are some potential
long-term solutions that don't involve going to court. Companies
can avoid litigation by making their workers full employees.
Though most have opted not to, one of the companies that has
embraced W2 classification is San Francisco-based Shyp, an on-
demand packing and shipping company. Shyp uses couriers to pick
up items from customers, and then uses drivers and warehouse
workers to ensure that items are packed up and shipped out
properly. Although its drivers and warehouse workers have had W2
status since the service began, in July CEO Kevin Gibbon decided
to convert couriers from independent contractors to employees as
well.
Shyp had also faced a misclassification suit, but the company
asserts that this was not the reason for the decision. Instead,
Johnny Brackett, head of communications, explains that Shyp
realized that it could handle the change financially, and that it
wanted to give workers more training about what to do and how to
answer questions when going to a customer's home. Doing that
would have been hard without giving the couriers W2 status. "We
learned that the interaction between the courier and customer is
extremely important, and not just important, it needs to be
consistent," Mr. Brackett says. He added that scheduling
flexibility was also an element. As 1099s, couriers had the
leeway to reject pickup requests, and Shyp couldn't control their
work shifts well enough to maintain fast customer service, a
problem that was corrected when they become W2s.
The response to the rollout of employee status for the couriers
appears to be going well. Mr. Brackett reports that although the
conversion process isn't over yet, as of early September only an
estimated 12 percent of couriers have opted not to accept W2
status. "We actually had couriers calling their courier manager,
crying out of happiness, saying: 'We've always loved Shyp, of
course you're taking this to the next level for us,'" Mr. Brackett
says.
Would Shyp's solution help extricate other on-demand companies
from litigation? It could provide a model for some, but it almost
certainly won't work for all. Ms. Sverchek, the GC of Lyft, notes
that what's good for one company in her sector may not work for
another. "I think it's interesting, because you see all these
sharing-economy companies lumped together, but they all interact
with their users in very different ways," she says.
A business model in which everyone is an employee is probably not
going to work for a company such as Uber. It would be far too
costly to provide a full slate of benefits plus possible
reimbursements for gas and other auto expenses to all of its
160,000-plus active drivers. Employees are significantly more
expensive than contractors. In addition, the freewheeling, do-it-
yourself ethos at many on-demand companies, including Uber,
doesn't necessarily jibe well with the highly structured world of
W2 employment.
This is Uber's view, of course. Many consumers seem to buy it.
Plenty of drivers have -- so far. But will the courts buy it? For
now, the jury is out.
UNITED STATES: AT&T Customers Appeal Order in NSA Spying Case
-------------------------------------------------------------
Matt Reynolds, writing for Courthouse News Service, reported that
in the face of Obama administration opposition, AT&T customers has
asked the U.S. Court of Appeals for the Ninth Circuit to rule that
a government mass surveillance program is unconstitutional.
Five people sued the National Security Agency seven years ago in
Federal Court seeking a court order to dismantle a "digital
dragnet" that allows the agency to tap into the fiber optic cables
of U.S. telecommunications companies to intercept emails, text
messages, phone records and other communications.
The plaintiffs are represented by Electronic Frontier Foundation
in a class action that was filed in the Northern District of
California.
A digital-rights watchdog, EFF has asserted that there is ample
evidence of the mass collection of Americans' records through a
program known as Domestic Internet Backbone Surveillance. The case
has included evidence from whistleblower Mark Klein, a former AT&T
technician who discovered that the telecommunications company was
routing Internet traffic to a secret NSA room in San Francisco.
In February, U.S. District Judge Jeffrey White -- a George W. Bush
appointee -- partially ruled in favor of the federal government on
the claim that the warrantless spying of Americans who are not
under suspicion is unlawful under the Fourth Amendment of the
Constitution.
At a hearing at the Richard H. Chambers Courthouse, Justice
Department attorney Henry Whitaker argued that the appeal was
premature because White has yet to issue a final judgment on the
remaining claims.
"What the district court adjudicated is but a tiny slither of a
massive case, of a massive sprawling challenge to multiple aspects
of the government's surveillance activities," Whitaker said.
Circuit Judge Margaret McKeown, a Bill Clinton appointee, said
there had been a "fairly long and torturous path" for the case and
asked Whitaker why "some of it shouldn't come to an end, or at
least to a decision."
Whitaker said the appeal would only exacerbate the delays.
"What's going on in this case is that the plaintiffs are trying to
have their cake and eat it," he said. "What they are trying to do
is have an immediate appeal on this tiny slice of the case, while
leaving all their district-court options open in the event they
lose the appeal."
But EFF attorney Richard Wiebe urged the three-judge panel to find
that the backbone surveillance program unconstitutionally searches
and seizes communications.
"The government has been conducting its mass Internet surveillance
for the past 14 years. If we're correct, that's an ongoing Fourth
Amendment violation that every day causes continuing harm not just
to the plaintiffs but to millions of other Americans. We've been
seeking a ruling on this claim since 2008 when we filed the
complaint. In all that time, the harm has continued," Wiebe said.
Circuit Judge Susan Graber, also a Clinton appointee, was
concerned the appeal would be intertwined with other claims in the
underlying litigation.
"That causes me to wonder why it is appropriate to adjudicate what
is really a piece of a defense to a whole bunch of related
things," she said.
Wiebe argued that if the Fourth Amendment claim came back to the
Ninth Circuit on appeal it would be in the "same posture, with the
same evidence as now."
"Nothing would have been gained by that delay in terms of deciding
the Fourth Amendment claim," he said.
Circuit Judge Michael Daly Hawkins -- yet another Clinton
appointee -- joined McKeown and Graber on the panel.
In addition to the National Security Agency, the lawsuit titled
Jewel v. NSA also names the Department of Justice, President
George W. Bush, Vice President Dick Cheney and other high-ranking
officials.
UNITED STATES: Settlement of Suit v. Homeland Security Okayed
-------------------------------------------------------------
Nicholas Iovino, writing for Courthouse News Service, reported
that a federal judge approved a class action settlement promising
speedier processing times for detained immigrants who say they
fear returning to their nations of origin.
Lead plaintiff Marco Antonio Alfaro Garcia sued the Department of
Homeland Security and Citizenship and Immigration Services in
April 2014 for violating the Administrative Procedure Act.
The plaintiffs say immigrants facing deportation can spend more
than a year in the asylum process, despite a law requiring the
government to decide within 10 days whether refuge-seekers
reasonably fear persecution in their home nations.
"I think we really see this as a very big victory for individuals
in ICE custody who now have some assured timeframe in keeping with
what the law requires to have their determinations," plaintiff
class attorney Claudia Valenzuela, of the National Immigration
Justice Center, said.
Valenzuela said her firm has seen many refuge-seeking immigrants
withdraw their legitimate claims for protection because of the
"limbo status" they were stuck in indefinitely.
"We have seen many individuals who had either been ignored or for
whatever reason turned away on seeking asylum but returned again
because they continued to face danger in their countries[when
they] to tried to go back," Valenzuela said.
The Department of Homeland Security did not immediately return a
request for comment.
U.S. District Judge Yvonne Gonzalez Rogers approved the
settlement, along with an award of $327,000 in attorneys' fees and
costs for the plaintiffs.
"The attorneys' fees and costs provision appears to have taken
into consideration the right of plaintiffs to seek an award of
fees that would be substantially higher than the amount agreed to,
the risks of trial and all other relevant factors," Rogers wrote
in her Oct. 27 order.
The settlement, which goes into effect Nov. 26, requires
Immigration and Customs Enforcement to refer immigrants with fear
claims to the government's asylum division within an average of
five days. And the government must reduce the average time it
takes to process reasonable fear determinations to less than 10.5
days.
Under the settlement terms, the government must also furnish
monthly progress reports to the plaintiffs' attorneys, the ACLU
and National Immigration Justice Center to ensure compliance.
Any further disputes will be referred to mediation with Magistrate
Judge Laurel Beeler, who oversaw settlement negotiations between
the parties. If disputes are not resolved within 45 days,
attorneys may seek to enforce or terminate the agreement through
district court action. If the government fully complies with the
settlement's requirements for three years without incident, the
agreement will be terminated.
Members of the plaintiff class include all persons detained by the
Department of Homeland Security subject to deportation that have
expressed fear of returning to their home nations and have not
received a determination within 10 days.
"Based on all the facts and circumstances, the court finds that
settlement is fair, reasonable, adequate, and in the best interest
of the members of the plaintiff class," Rogers wrote.
The case is, MARCO ANTONIO ALFARO GARCIA, CREDY MADRID CALDERON,
GUSTAVO ORTEGA, AND CLAUDIA RODRIGUEZ DE LA TORRE, on behalf of
themselves and all others similarly situated, Plaintiffs, v. JEH
JOHNSON, Secretary of Homeland Security, LEON RODRIGUEZ, Director
of U.S. Citizenship and Immigration Services, and JOSEPH LANGLOIS,
Associate Director of Refugee, Asylum and International
Operations, Defendants, Case No. 4:14-cv-01775-YGR (N.D. Cal.).
VACATIONRENTPAYMENT: Exposed Customers' Info, Suit Claims
---------------------------------------------------------
Courthouse News Service reported that Homeaway and Yapstone dba
VacationRentPayment exposed customers' personal information for
more than a year due to a data breach, a class action claims in
Federal Court in Oakland, Calif.
VOLKSWAGEN GROUP: Faces "Caro" Suit Over Defeat Devices
-------------------------------------------------------
Howard Caro and John T. Coates, individually and on behalf of all
others similarly situated, Plaintiffs, v. VOLKSWAGEN GROUP OF
AMERICA, INC., Defendant, Case No. 3:15-cv-04653-JCS (N.D. Cal.,
October 7, 2015), seeks injunctive relief and payment of damages
under the US Environmental Protection Agency as redress for the
fraud perpetrated against them.
According to the Complaint, VW vehicles were secretly equipped
with certain software called "Defeat Devices," which were designed
by Volkswagen to fool emission testers. The Defeat Devices would
turn on the full emission control system in the TDI Engines only
when the car was undergoing emission testing. Once the emission
test was completed, the car's emission control system shuts off --
thus improving performance and mileage, but also resulting in the
car emitting up to 40 times more pollution than allowed by U.S.
and state regulations. As a result of this fraud, over half a
million United States consumers currently own and drive vehicles
that are not "street legal".
Defendant Volkswagen is a corporation doing business in all 50
states and is organized under the laws of the State of New Jersey,
with its principal place of business located at 2200 Ferdinand
Porsche Drive, Herndon, Virginia 20171. As such, Volkswagen is a
citizen of New Jersey and Virginia.
The Plaintiffs are represented by:
A. Chowning Poppler, Esq.
BERMAN DEVALERIO
One California Street, Suite 900
San Francisco, CA 94111
Telephone: (415) 433-3200
Facsimile: (415) 433-6282
Email: jtabacco@bermandevalerio.com
nlavallee@bermandevalerio.com
cpoppler@bermandevalerio.com
- and -
Norman Berman, Esq.
Leslie Stern, Esq.
Nathaniel L. Orenstein, Esq.
Mark Delaney, Esq.
BERMAN DEVALERIO
One Liberty Square
Boston, MA 02109
Telephone: (617) 542-8300
Facsimile: (617) 542-1194
Email: nberman@bermandevalerio.com
lstern@bermandevalerio.com
norenstein@bermandevalerio.com
mdelaney@bermandevalerio.com
VOLKSWAGEN GROUP: 2 Firms Sue on Behalf of South Korean Consumers
-----------------------------------------------------------------
Amanda Bronstad, writing for The National Law Journal, reports
that two prominent law firms filed a federal class action on
Oct. 23 in Los Angeles against Volkswagen A.G. on behalf of South
Korean consumers, making it the first case of its kind against an
automaker in the United States.
The case, filed by Los Angeles-based Quinn Emanuel Urquhart &
Sullivan and Seattle's Hagens Berman Sobol Shapiro, is one of more
than 300 consumer class actions brought against Volkswagen but the
first filed on behalf of customers outside the United States,
where 482,000 diesel vehicles made since 2009 are believed to have
a "defeat device" installed in them designed to cheat emissions
test.
Class actions are not permitted in South Korea, where Volkswagen
customers must sue individually. South Korea is one of nine
countries with environmental standards comparable to those in the
United States, where the Environmental Protection Agency first
flagged the problem in September, said Shon Morgan, chairman of
Quinn Emanuel's national class action practice group. Volkswagen
has estimated that 11 million "clean diesel" vehicles worldwide
could have the device. South Korea has launched its own
investigation of Volkswagen's cars.
"So even though these devices may have been used in 11 million
vehicles around the world, these were particularly egregious
workarounds, for lack of a better word, in these countries with
higher environmental standards," he said. Volkswagen also has
made an aggressive push into the South Korean market, he said.
On Oct. 1, Volkswagen said it might recall 120,000 vehicles in
South Korea.
Volkswagen Group of America Inc. spokeswoman Jeannine Ginivan
declined to comment.
The class action alleges that Volkswagen's "clean diesel" vehicles
violate the Korean Clean Air Conservation Act and brings common
law fraud and breach of contract claims under state law in
Virginia, where Volkswagen has its U.S. headquarters. The case is
brought on behalf of a proposed class of South Korean customers of
Volkswagens as of Sept. 18, plus a subclass of those with 2012 to
2015 models of Passat vehicles, which are made exclusively at a
plant in Chattanooga, Tennessee.
Quinn Emanuel and Hagens Berman have partnered with South Korea's
Barun Law LLC to bring the case. Barun Law, based in Seoul,
already has filed some individual suits on behalf of Volkswagen's
customers in South Korean courts, Morgan said.
Quinn Emanuel and Hagens Berman have teamed up in filing other
class actions on behalf of Volkswagen's U.S. customers, and
neither are strangers to South Korean clients or the automotive
market.
Hagens Berman was co-lead counsel in multidistrict litigation on
behalf of U.S. customers against Toyota Motor Corp. and General
Motors Co. over their recent recalls, and Quinn's clients have
included Samsung Electronics Co. in its patent battles against
Apple Inc. and Kia Motors America and Hyundai Motor America in
consolidated consumer class actions over gas mileage claims
brought by Hagens Berman.
"We've spent an awful lot of time over there developing
relationships with law firms and are well known there," Mr. Morgan
said.
Quinn also has partnered with Bentham Europe to bring a case in
German court on behalf of Volkswagen's shareholders, who are
limited in pursuing claims of securities fraud in U.S. courts.
XOMA CORPORATION: Securities Class Action Filed in N.D. Cal.
------------------------------------------------------------
XOMA Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 10, 2015, for the
quarterly period ended June 30, 2015, that on July 24, 2015, a
purported securities class action lawsuit was filed in the United
States District Court for the Northern District of California
(Case No. 3:15-cv-3425) against the Company, its Chief Executive
Officer and its Chief Medical Officer. The complaint asserts that
all defendants violated Section 10(b) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and SEC Rule 10b-5,
by making materially false or misleading statements regarding the
Company's EYEGUARD-B study between November 6, 2014 and July 21,
2015. The plaintiffs also allege that Messrs. Varian and Rubin
violated Section 20(a) of the Exchange Act. The plaintiffs seek
class certification, an award of unspecified compensatory damages,
an award of reasonable costs and expenses, including attorneys'
fees, and other further relief as the Court may deem just and
proper. Based on a review of the allegations, the Company believes
that the plaintiffs' allegations are without merit, and intends to
vigorously defend against the claims.
XYTEX CORP: Judge Dismisses Wrongful Birth Case
-----------------------------------------------
Greg Land, writing for Daily Report, reports that in dismissing a
suit accusing a sperm bank and a donor of lying that the donor was
highly educated with clean legal and medical records, Fulton
County Superior Court Judge Robert McBurney ruled that the parent-
plaintiffs -- two Canadian women, one of whom bore the resulting
child seven years ago-are barred by Georgia law from suing for
"wrongful birth," even though they argued that their suit was no
such thing.
The lead plaintiffs attorney, Nancy Hersh of San Francisco's Hersh
& Hersh, said she was "surprised and taken aback" by Judge
McBurney's order, and vowed to appeal.
"He seems to have determined that, no matter how we pleaded this
case, it was a wrongful birth case," said Ms. Hersh. "I take
substantial issue with this order."
In a highly publicized suit filed earlier this year, the couple --
birth mother Angela Collins and her partner, Margaret Hanson --
sued Atlanta sperm bank Xytex Corp. and the donor, James Christian
"Chris" Aggeles. The couple claimed that they had been assured
that Aggeles had an IQ of 160, held a degree in neuroscience and a
master's degree in artificial intelligence and was working on his
Ph.D. in neuroscience. Xytex also claimed to have thoroughly
vetted his medical and legal background, the complaint said.
Instead, six years after the birth of their boy, the couple
learned Mr. Aggeles' identity through an inadvertent
confidentiality breach by Xytex, and -- along with the parents of
other children whose sperm he had provided -- began researching
Mr. Aggeles' background. They said they found that he held no
college degrees, had been convicted of burglary and -- as alleged
in their complaint -- suffered from schizophrenia which, it said,
"is genetic and hereditary."
The complaint also said that photos of Mr. Aggeles that Xytex
provided had been "doctored and a large mole on his cheek
removed."
Mr. Aggeles provided the sperm for 36 children, all through Xytex,
it said.
Collins and Hanson's complaint acknowledged that the child has not
shown any symptoms of schizophrenia, but said that -- in addition
to the emotional damage they had suffered -- they will have to
monitor the child to ensure that he doesn't develop schizophrenia
and that, if he does, will have to treat it "before it becomes a
full-blown psychosis."
The suit, filed in March by Ms. Hersh and Lewis Garrison, Taylor
Bartlett, Brandy Robertson and James McDonough of Birmingham,
Alabama's Heninger Garrison Davis, named Aggeles, Xytex and an
employee, Mary Hartley, as defendants. It included claims for
fraud, negligence, negligent misrepresentation, product liability,
breach of warranty, unfair business practices and battery.
In an order issued on Oct. 20 dismissing the action, Judge
McBurney noted that in an age of advanced in vitro fertilization,
artificial insemination and embryo transplantation, the suit
raised public policy issues that may not be adequately addressed
under current law.
"Science has once again -- as it always does -- outstripped the
law," Judge McBurney wrote. The plaintiffs "make a compelling
argument that there should be a way for parties aggrieved as these
plaintiffs are to pursue negligence claims against a service
provider involved in preconception services."
Nonetheless, the plaintiffs "at base are challenging the purported
negligence that resulted in a wanted conception with unwanted
results. This claim most closely (though by no means perfectly)
fits a claim for wrongful birth -- and so is not allowed. The
reason for this is both simple and profound: courts are 'unwilling
to say that life, even life with severe impairments, may ever
amount to a legal injury,'" wrote Judge McBurney, citing a 1990
Georgia Supreme Court decision, Atlanta Obstetrics & Gynecology v.
Abelson, 261 Ga. 711.
"The direction of the higher courts and the legislature is clear
-- perhaps a half-step behind today's science, but clear -- and
until it is changed, it controls the outcome of this case," Judge
McBurney wrote.
The Abelson decision said that "wrongful birth" cases typically
are brought by the parents of an impaired child, alleging that,
but for the treatment or advice provided by the defendant, the
parents would have aborted the fetus.
Ms. Hersh pointed to Judge McBurney's acknowledgment of the public
policy issues raised by the case, and she said she was confident
his order would be reversed and the case remanded on appeal.
Knight Johnson partner James Johnson, who is representing
Mr. Aggeles pro bono, said he had sent the plaintiffs a letter
warning that he would seek sanctions for frivolous litigation if
they pursued the suit, citing "20 reasons your suit will fail
under Georgia law."
Mr. Johnson said he was particularly offended by the plaintiffs'
assertions that his client is schizophrenic, which they apparently
arrived at by reviewing Facebook and Google postings.
"That schizophrenic stuff really bothered me," said Mr. Johnson.
"You don't have the right to go online and go through Google and
say my client is schizophrenic."
While declining to say whether his client is schizophrenic,
Mr. Johnson took issue with the charge that the disorder is
genetically based.
"If you could prove schizophrenia is hereditary, you'd probably
win a Nobel prize," Johnson said. "It's still widely
misunderstood."
Mr. Johnson said the plaintiffs' child is, by all accounts,
perfectly healthy. He said the parents only found out about
Mr. Aggeles' background when they approached Xytex to ask about
having another baby by the same father.
Mr. Johnson also said he had earlier sent the plaintiffs an offer
of judgment for a nominal sum in an effort to settle their claims
against his client. If they agree not to pursue an appeal against
Mr. Aggeles, he said, he will forego seeking attorney fees and
expenses that may be available under Georgia's frivolous
litigation or offer of judgment statutes.
Lewis Brisbois Bisgaard & Smith partner Ted Lavender, who
represents Xytex with associates Alison Currie and Andrew King,
said Judge McBurney's order "was essentially what our motion to
dismiss argued. At the end of the day, I think he got it exactly
right."
Mr. Lavender noted that the case was dismissed very early in
process. Had it survived dismissal, he said, the company would
have provided evidence that Xytex goes to great lengths to provide
extensive profiles and background information on its donors to
clients, but that information is provided by the donors.
He pointed to a written notice on Xytex's website warning that
donors' medical and social history is "provided by the donors and
cannot be verified for accuracy."
"Xytex is not unique" among sperm banks in that regard, he said.
The company does perform blood tests for sexually transmitted
diseases, HIV and the like, he said, but "the realities of that
are that they rely on the donors and the information they
provide."
Ms. Hersh said that she expects to file more suits on behalf of
other parents who used Mr. Aggeles' sperm.
"We have to change this industry," said Ms. Hersh said. "We know
these people were negligent because they didn't do anything to
elucidate the truth about this donor. I think they also
encouraged him to mislead about his education and background."
YAHOO! INC: Appeals Court Revives Suit Over Unsolicited Texts
-------------------------------------------------------------
P.J. D'Annunzio, writing for The Legal Intelligencer, reports that
A man who received 27,809 unsolicited text messages from Yahoo can
have another chance to get his class action against the company on
track, a federal appeals court has ruled.
Bill Dominguez claimed he received 54 text messages a day for 17
months from Yahoo when he bought a new cellphone that used the
phone number of its previous owner. That previous owner had
signed up for text message alerts every time an email was sent to
the owner's Yahoo account, and since the number remained the same,
Dominguez inherited the messages.
According to Third Circuit Judge Thomas L. Ambro's opinion,
Mr. Dominguez called Yahoo to cancel the messages, but the company
did nothing. He then approached the Federal Communications
Commission, but the texts kept coming.
Ultimately, Mr. Dominguez filed his prospective class action under
the Telephone Consumer Protection Act (TCPA), which forbids anyone
from contacting reassigned cellphone numbers with automatic
dialing systems, only to have it dismissed. The district court
tossed the case on the grounds that Dominguez's definition of
"autodialer" did not mesh with the statute's and sided with Yahoo.
Yahoo had argued the statute required an autodialer to have a
"random sequential number generator," and Yahoo's texting system
dialed numbers from a pre-existing list. Dominguez countered that
one meaning of sequential is "in numerical sequence," and an
autodialer could also meet the definition if it dials
nonsequential numbers placed in a queue, one at a time.
According to Judge Ambro, Dominguez also argued the FCC
interpreted the statute to cover "any equipment" that can
"generate numbers and dial them without human intervention
regardless of whether the numbers called are randomly or
sequentially generated or come from calling lists."
On appeal, the Third Circuit ruled the definition was up for
interpretation and sent it back for further proceedings to take
into account a recent 2015 FCC ruling clarifying the definition of
an autodialer.
"Although hardly a model of clarity, its orders (as we interpret
them) hold that an autodialer must be able to store or produce
numbers that themselves are randomly or sequentially generated
'even if [the autodialer is] not presently used for that
purpose,'" Judge Ambro said. Looking back, Judge Ambro said the
TCPA's 1992 definition of an autodialer -- that is, equipment that
has the capacity to store or produce phone numbers to be called
using a random sequential generator -- was a reflection of the
times.
Back then, Judge Ambro said, "Telemarketers typically used
autodialing equipment that either called numbers in large
sequential blocks or dialed random 10-digit strings. Thus, the
FCC initially interpreted the statute as specifically targeting
equipment that placed a high volume of calls by randomly or
sequentially generating the numbers to be dialed."
But times have changed, and as digital technology evolved, so did
the FCC's interpretation of autodialing systems.
Judge Ambro said the Third Circuit agreed with the lower court's
definition of sequential in that it refers to the numbers
themselves rather than the order in which they were dialed, and
that the statutory definition included that requirement. But the
Third Circuit disagreed with the court's ruling of summary
judgment based on Yahoo's arguments.
The only evidence Yahoo offered on whether its equipment met the
statutory definition was from its expert witness, who said the
Yahoo servers and systems did not have the capacity to store or
produce random numbers to be called using a random number
generator.
"Not only does this restating of the statutory definition amount
to nothing more than a legal conclusion couched as a factual
assertion," Judge Ambro said, "it begs the question of what is
meant by the word 'capacity.'"
He continued, "Because this is an issue of heightened importance
in light of the 2015 FCC ruling, and the district court did not
previously have the benefit of the FCC's ruling in addressing the
issue, remand is appropriate to allow that court to address more
fully in the first instance whether Yahoo's equipment meets the
statutory definition."
Mr. Dominguez's lawyer, James A. Francis of Francis & Mailman in
Philadelphia, did not return a call seeking comment. Ian C.
Ballon -- Ballon@gtlaw.com -- of Greenberg Traurig in Los Angeles
represented Yahoo and did not return a call seeking comment.
ZYNGA INC: Final Settlement Fairness Hearing on Jan. 28
-------------------------------------------------------
Katherine Proctor, writing for Courthouse News Service, reported a
federal judge in San Francisco gave preliminary approval to a
class action settlement of claims that video game developer Zynga
artificially inflated its share prices.
Lead plaintiff David Fee claimed in the 2012 lawsuit that Zynga
executives, aware of the company's poor financial condition, sold
their shares of the company for hundreds of millions of dollars
-- allowing them to shift the company's revenue losses from the
first quarter to the second quarter of 2012, which artificially
inflated the price of Zynga stock during the first quarter. By
the time Zynga disclosed its true financial status, its stock
price had fallen 37 percent in a single day, according to U.S.
Magistrate Judge Jacqueline Corley's order.
Corley preliminarily approved a $23 million settlement fund.
Deducted from the fund will be taxes, attorneys' fees, litigation
costs and notice and claims-administration expenses.
The plaintiff class consists of Zynga shareholders who purchased
their stock between Dec. 15, 2011 and the close of trading on Feb.
14, 2012. If all class members make claims, they will receive
$0.15 per share purchased, the order said.
Jeffrey Norton, who represents the plaintiffs, said in a telephone
interview that he expects about 100,000 claimants.
Corley said in her ruling that the settlement "appears to be the
product of serious, informed, non-collusive negotiation." She set
a final fairness hearing for Jan. 28, 2016.
Norton said that he was very pleased with the settlement's terms.
"We feel confident that it will get final approval, and we think
it's a fantastic settlement for the class," he said.
The defendants' counsel did not respond to request for comment.
Norton is with Newman Ferrara, in New York City.
The defendants are represented by Anna White, with Morrison &
Foerster in San Francisco.
* FCRA Class Action Suits Surge, SCOTUS Ruling May Slow Trend
-------------------------------------------------------------
Charles Toutant, writing for Law.com, reports that plaintiffs
lawyers have been filing a profusion of suits over pre-employment
background checks, which some observers attribute to a renewed
interest in applicants' rights during the hiring process, but an
upcoming U.S. Supreme Court case could slow the trend.
In the U.S. District Court for the District of New Jersey alone,
Amazon.com, Uber and Michaels Stores are facing putative class
actions over their research into job applicants' criminal and
financial records, and lawyers said the picture is similar across
the nation. The suits claim violations of the Fair Credit
Reporting Act, which sets rules for use of background checks in
hiring.
The FCRA has been around since 1970, and paying a third party to
provide a dossier on a job applicant is not a new custom-so why so
many suits all of a sudden?
Some lawyers tied the upswing to the spread of "ban the box"
legislation on the city, state and federal level, which bars
employers from asking employees about their criminal histories
before making a job offer. A series of Equal Employment
Opportunity Commission suits related to background checks around
the country also stirred interest, according to some attorneys.
The strict requirements of the FCRA, employment lawyers said,
combined with the high volume of job applications large companies
receive, make background checks an ideal subject for class
actions.
"There has been a lot of attention to background checks in hiring
generally, but these types of claims lend themselves to class
actions because it's common for employers to use the same form
with job applicants, so if the form doesn't comply with the
statute, there is a large potential class," according to
Adam Saravay, a lawyer at McCarter & English in Newark who has
defended FCRA background check suits.
Joseph O'Keefe, an employment lawyer at Proskauer Rose in Newark,
suggests the rise in suits over background checks is a corollary
of "ban the box" legislation. New Jersey enacted its own version
of that legislation last year.
"There's so much action on the legislative front, it's possible
that has cast a spotlight on the issue," O'Keefe said. "What the
plaintiffs bar seems to be doing is capitalizing on the technical
requirements under the federal law."
In Feldstein v. Amazon.com, filed Oct. 5, the online retailer was
accused of turning down a job applicant at its Robbinsville
warehouse based on a background check without allowing him to see
a copy of the report. Another background case, Cuccinello v. Uber,
filed Sept. 2, claims the transportation company failed to comply
with notice requirements under the FCRA for job applicants. And
two cases in multidistrict litigation in federal court in Newark
claim crafts retailer Michaels Stores failed to properly notify
job applicants that it was obtaining their credit reports.
But the U.S. Supreme Court could change the face of FCRA
litigation on behalf of job applicants in the coming term when it
hears the case of Spokeo v. Robins, which poses the question of
whether plaintiffs have standing to bring FCRA cases without
actual damages.
"If the Supreme Court rules that the FCRA's statutory damages
violate Article III's standing requirement, that could
significantly diminish the current surge in FCRA class action
suits," Mr. Saravay said.
For the time being, however, there's no sign of slowing, lawyers
said.
"It's a very current issue. More and more employers are requiring
background check information," said Maurice Emsellem, program
director at the National Employment Law Project in Oakland,
California. He said more than 90 percent of employers conduct
criminal background checks on job applicants, while one in three
adults has some kind of arrest record, often minor offenses.
"People are way more sensitive now than they ever have been to
their rights. You're seeing more efforts to enforce their basic
rights," Mr. Emsellem said.
A few employers have paid significant sums to settle background
check suits. The Publix supermarket chain agreed to a $6.8 million
settlement of a class action in federal court in Tennessee in
2014. And another chain, Dollar General, agreed to a $4 million
settlement in 2014 of a Virginia background check suit. Similar
suits against Whole Foods and restaurant chain Panera Bread were
dismissed.
The EEOC, meanwhile, has filed suits alleging employers'
background check policies disparately impact black applicants. In
September, BMW agreed to pay $1.6 million to settle a claim that
its exclusion of workers at a South Carolina plant due to criminal
convictions disproportionately affected African-Americans. But a
similar suit brought by the EEOC in Maryland against convention
management firm Freeman Co. was dismissed in 2013, and the U.S.
Court of Appeals for the Fourth Circuit affirmed the dismissal in
February.
Failure to comply with the FCRA when conducting pre-employment
background checks appears to be a particular minefield for large-
scale employers, who must make sure everyone in the organization
knows and follows the rules, said Claudia Costa of Marshall
Dennehey Warner Coleman & Goggin in Roseland.
"If you look at many of the class actions, they are often against
entities that have very large hiring practices. For some, it may
be an issue of becoming familiar with the laws while others may
have such volume that required procedures are just not being
followed," Costa said.
The FCRA provides plenty of chances for an employer to commit a
violation. Mr. Saravay said one of the most common claims in such
cases is that the employer failed to provide job applicants with a
"standalone" document notifying them of its intent to obtain and
use a credit report.
"Many of the recent crop of FCRA class actions have alleged that
an employer used a form that contains other provisions besides the
notice and therefore does not meet the standalone requirement. So
far, to the extent courts have ruled on this, they have issued
some conflicting decisions on whether provisions like that violate
the FCRA," Mr. Saravay said.
The failure to have a standalone disclosure form is common,
especially among employers that accept applications online, Costa
said.
The second type of common claim in the current group of cases is
that the employer fails to provide notice of the applicant's
rights under the FCRA and a copy of the background check report
before making an adverse hiring decision, according to Mr.
Saravay.
"The FCRA says employers have to give a copy of a report [to the
applicant] so the applicant can dispute its accuracy with the
reporting agency, not the employer. But courts have issued
conflicting opinions on whether there is also a duty on the
employer and how much time is considered a reasonable time for an
applicant to dispute an inaccuracy in a background check,"
Mr. Saravay said.
O'Keefe called background check violations under the FCRA "a very
complicated field that is subject to numerous technicalities, and
employers would be wise to consult with their internal law
departments or their outside counsel" to make sure their forms and
procedures are in compliance.
Mr. Saravay, noting the settlements in the millions in class
action suits by job applicants, said that "reviewing the
background check notice and authorization forms is one of the
simplest and most cost-effective litigation avoidance steps an
employer can take."
* Plaintiffs in Case v. Georgia's EMCs Balk at Judge's Report
-------------------------------------------------------------
Alyson M. Palmer, writing for Daily Report, reports that lawyers
for the plaintiffs in a high-stakes lawsuit against some of
Georgia's power cooperatives have asked that a retired federal
judge be removed as special master because he lifted large chunks
of the defendants' legal writings in recommending the plaintiffs'
case be dismissed.
The plaintiffs are former customers of a few Georgia electrical
membership corporations (EMCs), suing for what they claim is their
share of the companies' profits. In asking a DeKalb Superior
Court judge to toss from the case retired Judge Stanley Birch of
the U.S. Court of Appeals for the Eleventh Circuit, the
plaintiffs' lawyers say that more than 93 percent of the legal
analysis found in a recent order by Birch is lifted verbatim from
the defendants' briefs. Some instances include the defendants'
typographical errors and page cross-references, they add.
Birch responded in an interview that the plaintiffs "just didn't
get the result that they had hoped for, so now they're complaining
about it."
A defense lawyer, James Orr -- james.orr@sutherland.com -- said,
"It's sort of a shame that he's been personally attacked for
simply doing his job."
The dispute concerns a lot more than how much of a party's legal
briefs a judge should use in crafting a decision. In the lawsuit,
the plaintiffs say the "patronage capital" they seek to recover
for a class of former members of the EMCs is worth more than $600
million. Last year, a similar lawsuit brought by members of the
Cobb Electric Membership Corp. resulted in a $100 million
settlement.
The motion to remove Birch is brazen in its critique of a former
federal judge, who retired in 2010 after 20 years on the bench.
Noting Judge Birch already has billed the parties more than
$167,000 for his work on the case since May, at $700 per hour, the
plaintiffs' lawyers say Birch's 59-page proposed order is "a cut-
and-pasted collage" of passages from the defendants' briefs. They
say he has "abdicated his judicial role" and failed to prepare a
report "that bears the intellectual fingerprints of a judge."
They even took a swipe based on Birch's expertise in copyright
law, noting an anecdote in which Birch said he once urged a lawyer
friend whose work had been copied by another firm to "sue the
bastards." (The judge had recounted the story in a 2003 legal
journal article, in which he said that his older self would
counsel mediation and settlement.)
Judge Birch told the Daily Report that the plaintiffs' claims lack
merit and that they are just attacking the messenger. "They want
another bite at the apple with a new special master, it's pretty
clear," he said.
Judge Birch acknowledged that he used passages from the
defendants' briefs. But he added that he also read each of the
hundreds of pages of briefing from all sides, plus all of the
cases cited, and heard more than nine hours of oral argument in
the case along with a companion case. He said he saw no reason to
rewrite well-stated, well-reasoned explanations from the
defendants, which would have upped his bills to the parties
further.
The lawyers who have asked Birch be removed include a host of
attorneys inside and outside of the state. Two lead lawyers,
Kenneth Canfield -- kcanfield@dsckd.com -- of Doffermyre, Shields,
Canfield & Knowles in Atlanta and W. Paul Lawrence II of the
Washington, D.C.-area office of Waters, Kraus & Paul, declined to
comment.
Judge Birch has also recommended that the companion case, brought
by a separate group of current EMC members, be dismissed. Those
plaintiffs also have asked Judge Linda Hunter of DeKalb Superior
Court to overrule Judge Birch's recommendation, but they have not
asked for Birch's removal. Their lawyer, Michael Schrag of
Oakland, California, declined to comment.
In the two lawsuits, filed in 2014, the plaintiffs sued Oglethorpe
Power Corp., Georgia Transmission Corp., Walton EMC and Jackson
EMC. The former EMC members sued Sawnee EMC, as well. Ogle-thorpe
produces electricity, GTC transmits it, and the three other EMCs
(just a handful of the 38 EMCs in the state) distribute it to
homes and businesses.
Oglethorpe and GTC are represented by Mr. Orr at Sutherland Asbill
& Brennan, and the retail EMCs are represented by T. Joshua Archer
at Balch & Bingham.
Mr. Orr said their responses are due this month, but he noted now
that Birch "engaged in the routine judicial practice of
incorporating portions of the prevailing parties' submissions."
Mr. Archer summed up his clients' position on the case: "The law
just does not support the plaintiffs' theories. They are wrong on
the law."
Under the plaintiffs' theories, the EMCs owe them withheld
profits, or "patronage capital." They recounted that the EMCs are
a creation of President Franklin Roosevelt's desire to reduce his
power bills at Warm Springs, Georgia, while expanding power
availability to other rural areas. Accordingly, the plaintiffs
say, the EMCs were given tax breaks to organize as cooperatives,
whereby they would return their earnings to their members.
The plaintiffs say that the defendants embraced these cooperative
principles in their bylaws and public statements but have strayed
from those principles by wrongfully withholding their earnings in
excess of operating costs and expenses, either indefinitely or for
unreasonably long periods of time. Their lawsuits include claims
for breach of contract, breach of fiduciary duty, unjust
enrichment and constructive trust.
The cases were assigned to Hunter in DeKalb, who appointed Birch
as special master to work on them. A statewide court rule says a
superior court judge can appoint a special master under a host of
circumstances, including when there are pretrial matters "that the
court cannot efficiently, effectively or promptly address."
Under the rule, the parties can be ordered to pay for the special
master's time. In the DeKalb case, the parties agreed to the
selection of Judge Birch as the special master, though the former
members seeking his removal claim that his duties were only later
expanded to include making recommendations on dispositive motions.
Birch has served as special master on another high-stakes DeKalb
dispute, that between the county school district and a
construction firm. Judge Birch issued rulings that benefited both
sides, and the case settled.
In September, Judge Birch recommended that Hunter dismiss the two
EMC cases in their entirety. He said the plaintiffs didn't have
standing to sue Oglethorpe and GTC, because the plaintiffs have
never been members of either entity, and that individual
plaintiffs and class members don't have standing to sue the other
EMCs to the extent that they haven't been members of them. He
also rejected the legal basis for all of the plaintiffs' claims,
saying the law does not require the distribution of patronage
capital, leaving that to the EMCs' discretion.
The plaintiffs objected to Birch's recommendations. On the
standing issue, they argue that Georgia law does not require
privity -- in this case, membership in the EMCs -- in order to
have standing to sue. On other issues, they say that a Georgia
statute allows the EMCs to maintain only "reasonable reserves" and
that whether the defendants are retaining money in excess of that
is a question of fact that can't be resolved on a motion to
dismiss.
In addition to taking issue with Birch's legal analysis, they
question his diligence on the matter -- complaining that Birch's
order in their case was "copied virtually verbatim from
defendants' briefs" in the two cases.
"The special master's recommendation to dismiss all of plaintiffs'
claims in both cases should be rejected by this court because it
does not reflect serious consideration of plaintiffs' arguments,"
lawyers for the current EMC members tell Hunter.
The lawyers for the former EMC members have gone a step further,
asking Hunter to appoint a new special master to analyze the
motions to dismiss. They cite case law from various courts for
the proposition that judges shouldn't adopt parties' filings
verbatim or with only minor changes. They say this practice
impedes good appellate review by "obscuring the trial judge's
reasoning from the eyes of the reviewing court."
"Having abdicated his judicial role by simply copying the defense
briefs in lieu of conducting any sort of reasoned analysis of the
parties' positions, Judge Birch has effectively become an advocate
for the defense," they write.
Judge Birch said the case law cited by the former EMC members is
not relevant because it involves a judge accepting a party's
proposed findings of fact, while his rulings were at the motion to
dismiss stage where the parties make legal arguments based on
undisputed facts. He said the problem is that superior court
judges, with one law clerk and a busy criminal docket, don't have
time to sink their teeth into a case with hundreds of pages of
briefing. "Assigning cases like this to a special master can move
a case along fast, which is what the plaintiffs wanted," he said.
"These people all agreed to me and they all agreed to the hourly
rate," he added, calling their move "just a shame."
Cary Ichter -- cichter@ichterkresky.com -- of Atlanta's Ichter
Kresky & Associates, who was involved in drafting Georgia's rules
allowing use of special masters and is now president of the
Academy of Court Appointed Masters, said it shouldn't surprise
anyone that Judge Birch used much of the defendants' language in
his proposed orders. "If you have adopted one party's outcome,
it's hardly surprising that you're fond of their language and
their rationale," said Ms. Ichter.
Asbestos Litigation
ASBESTOS UPDATE: NY App. Div. Affirms USF & G Allocation Ruling
---------------------------------------------------------------
In an opinion dated Oct. 29, 2015, the Appellate Division of the
Supreme Court of New York, First Department, affirmed the order of
the Supreme Court, New York County, entered on or about June 3,
2015, which denied defendants American Re-Insurance Company, Ace
Property & Casualty Insurance Company and Century Indemnity
Company's motion for a ruling that the reasonableness of plaintiff
United Stated Fidelity & Guaranty Company's allocation of all
settlement dollars to asbestos-insurance claims is properly the
subject of evidence at trial.
The case is UNITED STATES FIDELITY & GUARANTY COMPANY, ET AL.,
Plaintiffs-Respondents, v. AMERICAN RE-INSURANCE COMPANY, ET AL.,
Defendants-Appellants, EXCESS CASUALTY REINSURANCE ASSOCIATION, ET
AL., Defendants, 16028N, 604517/02 (N.Y. App. Div.). A full-text
copy of the Decision is available at http://is.gd/jFQA3Zfrom
Leagle.com.
Patterson Belknap Webb & Tyler LLP, New York (Stephen P. Younger,
Esq. -- spyounger@pbwt.com -- of counsel), for American Re-
Insurance Company, appellant.
Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York (John F.
Baughman, Esq. -- jbaughman@paulweiss.com -- of counsel), for ACE
Property & Casualty Insurance Company and Century Indemnity
Company, appellants.
Simpson Thacher & Bartlett LLP, New York (Mary Kay Vyskocil, Esq.
-- mvyskocil@stblaw.com -- of counsel), for respondents.
ASBESTOS UPDATE: EPA Wins Access to Fibro-Contaminated Property
---------------------------------------------------------------
The United States filed a Complaint against Donna Gearing and
Larry Thomason pursuant to Section 104(e) of the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C.
Section 9604(e). It seeks access to property that houses the
remains of a burned-down former school building so that the United
States Environmental Protection Agency can test for the presence
of certain hazardous substances, including asbestos, and remove
hazardous substances that it knows are currently present on the
Site.
In an order and opinion, dated Oct. 30, 2015, Senior District
Judge Joe Billy McDade of the United States District Court for the
Central District of Illinois, Peoria Division, grants the United
States' Motion for order in aid of immediate access, a decision
that is dispositive of the case.
The case is UNITED STATES OF AMERICA, Plaintiff, v. DONNA GEARING
and LARRY THOMASON, Defendants, CASE NO. 15-CV-1333 (C.D. Ill.).
A full-text copy of Judge McDade's Decision is available at
http://is.gd/AcIeVKfrom Leagle.com.
United States of America, Plaintiff, represented by Nicholas Adam
McDaniel, UNITED STATES DEPARTMENT OF JUSTICE & Gerard A Brost, US
ATTY.
ASBESTOS UPDATE: L&P's Counterclaims in "Taylor" Dismissed
----------------------------------------------------------
L&P Building Supply of Las Cruces Inc., filed a motion for default
or Rule 1-102(C) motion for judgment on the pleadings or in the
alternative summary judgment and for counterclaim damages, and
motion for summary judgment against asbestos plaintiffs Melvin
Taylor and Diana K. Taylor, and dismissal.
Judge James O. Browning of the United States District Court for
the District of New Mexico, in a memorandum opinion and amended
order dated Oct. 27, 2015, concludes that it lacks subject-matter
jurisdiction over L&P Supply's counterclaim, because the
counterclaim and Plaintiff Diana E. Taylor's underlying claims do
not arise from the same common nucleus of operative facts.
Because the Court cannot remand the Counterclaim to state court
without remanding the entire case, it dismisses L&P Supply's
Counterclaim without prejudice to allow L&P Supply to raise it in
state court.
The case is MELVIN TAYLOR and DIANA E. TAYLOR, Plaintiffs, v. L&P
BUILDING SUPPLY OF LAS CRUCES, INC., individually and as
successor-in-interest to L&P Building Supply; AMERICAN OPTICAL
CORPORATION; CERTAINTEED CORPORATION; GEORGIA PACIFIC CORPORATION;
HONEYWELL INTERNATIONAL, INC., f/k/a Allied Signal Inc.,
individually and as successor-in-interest to the Bendix
Corporation; KAISER GYPSUM COMPANY, INC.; UNION CARBIDE
CORPORATION; and KEENAN SUPPLY DIVISION, Defendants, NO. CIV 14-
0989 JB/CG (D.N.M.). A full-text copy of Judge Browning's
Decision is available at http://is.gd/47ez1Ufrom Leagle.com.
Zackeree S. Kelin, Albuquerque, New Mexico, and Jeffrey A. Kaiser,
Joshua O. Reed, Kaiser Gornick LLP, Walnut Creek, California,
Attorneys for the Plaintiffs.
Gilbert Houston Frith, Trace L. Rabern, The Frith Firm, Santa Fe,
New Mexico, Attorneys for Defendant L&P Building Supply of Las
Cruces, Inc.
Spencer L. Edelman, Esq. -- spencer.edelman@modrall.com --
Michelle A. Hernandez, Esq. -- michelle.hernandez@modrall.com --
Modrall Sperling Roehl Harris & Sisk, PA, Albuquerque, New Mexico,
and Mary Price Birk, Esq. -- mbirk@bakerlaw.com -- Ronald L.
Hellbusch, Esq. -- rhellbusch@bakerlaw.com -- Baker & Hostetler,
LLP, Denver, Colorado Attorneys for Defendant Certainteed
Corporation.
Tonn K. Petersen, Esq. -- TKPetersen@perkinscoie.com -- Perkins
Coie LLP, Boise, Idaho, Attorneys for Defendants Georgia Pacific
Corporation and Honeywell International, Inc.
ASBESTOS UPDATE: 9th Cir. Affirms Lockheed Judgment in "Sequira"
----------------------------------------------------------------
The United States Court of Appeals for the Ninth Circuit, in an
opinion dated Oct. 27, 2015, affirmed a lower court's decision
holding that the district court did not err in granting summary
judgment to Lockheed Martin Corporation based on the government
contractor defense.
The cases are JONI SEQUIRA, successor-in-interest to PAUL OLDS,
Plaintiff-Appellant, v. 3M COMPANY, AKA Minnesota Mining and
Manufacturing Company, Defendant, and LOCKHEED MARTIN CORPORATION,
DBA Lockheed Martin Aeronautics, FKA Lockheed Martin Tactical
Systems, Defendant-Appellee. JONI SEQUIRA, successor-in-interest
to PAUL OLDS, Plaintiff-Appellant, v. 3M COMPANY, AKA Minnesota
Mining and Manufacturing Company, Defendant, and UNITED
TECHNOLOGIES CORPORATION, sued individually and as successor-in-
interest to Pratt and Whitney, Defendant-Appellee, NOS. 13-56921,
14-55383 (9th Cir.).
A full-text copy of the Ninth Circuit's Decision is available at
http://is.gd/Sk6GMGfrom Leagle.com.
ASBESTOS UPDATE: Experts Can't Offer Specific Causation Opinion
---------------------------------------------------------------
In the asbestos-related case captioned LEROY J. MORTIMER, ET AL.,
v. A.O. SMITH CORP., ET AL., CONSOLIDATED UNDER MDL 875, CIVIL
ACTION NO. 2:13-04169-ER (E.D. Pa.), Judge Eduardo C. Robreno of
the United States District Court for the Eastern District of
Pennsylvania partially denied the motions of defendant Ford Motor
Co. to exclude the expert testimony of Arthur Frank, M.D., Ph.D.,
and Scott A. Bralow, D.O. Although each of the experts will be
permitted to offer an opinion as to general causation, the Court
determines that they will not be permitted to offer an opinion as
to specific causation.
A full-text copy of Judge Robreno's Memorandum dated October 23,
2015, is available at http://is.gd/FrjUnzfrom Leagle.com.
LEROY J. MORTIMER, Plaintiff, represented by ROBERT E. PAUL, PAUL
REICH & MYERS, PC.
CHERYL MORTIMER, Plaintiff, represented by ROBERT E. PAUL, PAUL
REICH & MYERS, PC.
ALLEN-BRADLEY COMPANY, Defendant, Cross Claimant, Cross Defendant,
represented by G. DANIEL BRUCH, JR., Esq. --
gdbruch@swartzcampbell.com -- SWARTZ CAMPBELL, LLC & KNIGHT S.
ANDERSON, TUCKER ELLIS LLP.
BBC BROWN BOVERI, Defendant, Cross Defendant, represented by OLEH
BILYNSKY, V., O'BRIEN FIRM & WILLIAM J. O'BRIEN, O'BRIEN FIRM.
BECK/ARNLEY WORLDPARTS, INC., Defendant, represented by
BECK/ARNLEY WORLDPARTS, INC., PRO SE.
BELDEN MANUFACTURING CO., Defendant, Cross Defendant, represented
by DAWN DEZII, Esq. -- ddezii@margolisedelstein.com -- MARGOLIS &
EDELSTEIN, JEANINE D. CLARK, Esq. -- jclark@margolisedelstein.com
-- MARGOLIS EDELSTEIN & RYAN C. BUCHANAN, MARGOLIS EDELSTEIN.
BORG-WARNER CORPORATION, Defendant, Cross Defendant, Cross
Claimant, represented by A. KAI SEELAUS, BARNARD MEZZANOTTE PINNIE
& SEELAUS.
BRAKE & CLUTCH CO. OF PHILA., Defendant, represented by BRAKE &
CLUTCH CO. OF PHILA., PRO SE.
BRIDGESTONE AMERICA TIRE OPERATIONS, LLC, Defendant, Cross
Defendant, represented by EDWARD R. PAUL, PAUL, FLANDREAU &
BERGER, LLP.
CBS CORPORATION, FORMERLY WESTINGHOUSE ELECTRIC CORPORATION,
Defendant, Cross Defendant, represented by JOHN P. MCSHEA, MCSHEA
LAW FIRM PC.
CERTAIN-TEED CORPORATION, Defendant, represented by CERTAIN-TEED
CORPORATION, PRO SE.
CLARK CONTROLLER CO., (A DIVISION OF INGERSOLL RAND), Defendant,
represented by EDWARD T. FINCH, Esq. -- efinch@lavin-law.com --
LAVIN, O'NEIL, RICCI, CEDRONE & DISIPIO.
CRANE CO., Defendant, represented by G. DANIEL BRUCH, JR., SWARTZ
CAMPBELL, LLC & MICHAEL J. ZUKOWSKI, K&L GATES.
CROUSEHINDS, Defendant, represented by TIFFANY GIANGIULIO, Esq. --
giangiuliot@ggmfirm.com -- GERMAN GALLAGHER & MURTAGH & ROBERT P.
CORBIN, Esq. -- corbinr@ggmfirm.com -- GERMAN GALLAGHER & MURTAGH.
DAIMLER AG, Defendant, represented by DAIMLER AG, PRO SE.
DAP INC., Defendant, represented by BARBARA J. BUBA, WILBRAHAM
LAWLER & BUBA.
FORD MOTOR CO., Defendant, represented by ALYSON WALKER LOTMAN,
DUANE MORRIS LLP, LAWRENCE E. CURRIER, KILCOYNE & NESBITT, LLC,
SAMUEL L. TARRY, JR., MCGUIRE WOODS LLP, SHARON L. CAFFREY, DUANE
MORRIS LLP, SHEPHERD D. WAINGER, MCGUIRE WOODS LLP, CHAUVRON S.
REGIS, DUANE MORRIS LLP & DAWNN E. BRIDDELL, DUANE MORRIS LLP.
GENUINE PARTS CO., Defendant, represented by WALTER S. JENKINS,
MARON MARVEL BRADLEY & ANDERSON LLC.
GOULDS PUMPS INC., Defendant, represented by JOSHUA D. SCHEETS,
MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN & MICHAEL L. TURNER,
MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN.
GTE PRODUCTS OF CONNECTICUT CORPORATION, Defendant, represented by
CHRISTINE O. BOYD, LAVIN O'NEIL RICCI CEDRONE & DISIPIO & EDWARD
T. FINCH, LAVIN, O'NEIL, RICCI, CEDRONE & DISIPIO.
GOULD ELECTRONICS INC., Defendant, represented by CHRISTOPHER H.
JONES, MCELROY DEUTSCH MULVANEY & CARPENTER.
INGERSOLL-RAND & CO., Defendant, represented by DANIEL J. RYAN,
JR., MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN & JOSHUA D.
SCHEETS, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN.
J.A. SEXAUER, Defendant, represented by CHRISTOPHER N. SANTORO,
MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN, JOSHUA D. SCHEETS,
MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN, MICHAEL L. TURNER,
MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN & TIMOTHY D. RAU,
MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN.
KELSEY-HAYES COMPANY, Defendant, represented by BARBARA J. BUBA,
WILBRAHAM LAWLER & BUBA.
METROPOLITAN LIFE INSURANCE CO., Defendant, represented by STEWART
R. SINGER, SALMON RICCHEZZA SINGER & TURCHI LLP.
MINNESOTA MINING AND MANUFACTURING, Defendant, represented by
BASIL A. DISIPIO, LAVIN O'NEIL CEDRONE & DISIPIO.
NAPA, Defendant, represented by WALTER S. JENKINS, MARON MARVEL
BRADLEY & ANDERSON LLC.
NAVISTAR INTERNATIONAL TRANSPORTATION CORP., Defendant,
represented by NAVISTAR INTERNATIONAL TRANSPORTATION CORP., PRO
SE.
OWNES-ILLINOIS, INC., Defendant, represented by BARBARA K.
GOTTHELF, MCCARTER & ENGLISH, GLENN P. CALLAHAN, MCCARTER ENGLISH
LLP & INGRID H. GRAFF, MCCARTER & ENGLISH, LLP.
PNEUMO ABEX LLC, Defendant, represented by PNEUMO ABEX LLC, PRO
SE.
QUAKER CITY MOTOR PARTS, Defendant, represented by WALTER S.
JENKINS, MARON MARVEL BRADLEY & ANDERSON LLC.
SQUARE D COMPANY, Defendant, represented by CHRISTINA M. RIDEOUT,
KELLEY JASONS MCGOWEN SPINELLI & HANNA & W. MATTHEW REBER, KELLEY
JASON MCGUIRE & SPINELLI & HANNA.
STAR MACHINE & TOOL, Defendant, represented by JOSEPH CAGNOLI,
JR., SEGAL, MCCAMBRIDGE SINGER & MAHONEY.
TEXACO, Defendant, represented by TEXACO, PRO SE.
TRIANGLE INDUSTRIES, Defendant, represented by TRIANGLE
INDUSTRIES, PRO SE.
ASBESTOS UPDATE: Cos.' Summary Judgment Bids in "Miller" Denied
---------------------------------------------------------------
In the asbestos-related case styled CREIGHTON E. MILLER,
(Administrator for Estate of Steve Oswald), Plaintiff, v. A-C
PRODUCT LIABILITY TRUST, et al., Defendants, CIVIL ACTION NO.
2:11-CV-33109-ER (E.D. Pa.), Judge Eduardo C. Robreno of the
United States District Court for the Eastern District of
Pennsylvania denied the Motion for Summary Judgment filed by
defendants A. W. Chesterton Co., Cosmopolitan Steamship Co., Gatke
Corporation, John Crane Inc., United Fruit Company, and Fibreboard
Corporation as to the arguments related to judicial estoppel and
denied, without prejudice, as to the arguments related to the real
party in interest/standing.
A full-text copy of Judge Robreno's Order dated Oct. 20, 2015, is
available at http://is.gd/8BErAVfrom Leagle.com.
CREIGHTON E MILLER, 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.
A. W. CHESTERTON CO., Defendant, represented by JOHN P. PATTERSON,
Esq. -- john.patterson@tuckerellis.com -- TUCKER ELLIS WEST.
COSMOPOLITAN STEAMSHIP CO., Defendant, represented by FRANK P.
DEGIULIO, Esq. -- fpd@pbh.com -- PALMER BIEZUP & HENDERSON LLP &
KEVIN G. O'DONOVAN, Esq. -- odonovan@pbh.com -- PALMER BIEZUP &
HENDERSON LLP.
GATKE CORPORATION, Defendant, represented by JOHN M. HERKE,
SPYRIDON PALERMO & DORNAN.
JOHN CRANE INC., Defendant, represented by STEPHEN H. DANIELS,
MCMAHON DEGULIS LLP.
UNITED FRUIT COMPANY, Defendant, represented by HAROLD W.
HENDERSON, Esq. -- Hal.Henderson@ThompsonHine.com -- THOMPSON,
HINE LLP, RICHARD C. BINZLEY, Esq. --
Dick.Binzley@ThompsonHine.com -- THOMPSON, HINE AND FLORY & SUSAN
K. DIRKS, Esq. -- Susan.Dirks@ThompsonHine.com -- THOMPSON HINE
LLP.
FIBREBOARD CORPORATION, Defendant, represented by DONA L. ARNOLD,
BENESCH FRIEDLANDER COPLAN ARONOFF & ERIC LARSON ZALUD, Esq. --
ezalud@beneschlaw.com -- BENESICH FRIEDLANDER COPLAN & ARONOFF.
ASBESTOS UPDATE: Cal. App. Affirms Jury Verdict in "Marteney"
-------------------------------------------------------------
Marty and Marie Marteney asserted claims for negligence, strict
liability, and loss of consortium against appellants Union Carbide
Corporation and Elementis Chemicals, Inc., alleging that asbestos
they marketed caused Marty Marteney's mesothelioma.
After the jury returned special verdicts in the Marteneys' favor
on their claim for strict liability, UCC and Elements filed
unsuccessful motions for judgment notwithstanding the verdict, and
a judgment was entered awarding the Marteneys compensatory
damages. The Appellants challenge the denial of their motions for
judgment notwithstanding the verdict.
The Court of Appeals of California, Second District, Division
Four, in a decision dated Oct. 28, 2015, rejected the Appellants'
contentions, and affirmed the jury verdict.
The case is MARIE MARTENEY, Plaintiff and Respondent, v. UNION
CARBIDE CORPORATION et al., Defendants and Appellants, NOS.
B252711 C/W B253265 (Cal. App.). A full-text copy of the Decision
is available at http://is.gd/Z7z4bNfrom Leagle.com.
ASBESTOS UPDATE: NY App. Div. Refuses to Stay Trial of "Sherer"
---------------------------------------------------------------
Smith Water Products Co., et al., moved for a stay of the trial in
Supreme Court pending the hearing and determination of the appeal
taken from an order of the Supreme Court entered in the Office of
the Clerk of the County of Erie on July 13, 2015.
Upon reading and filing the affirmation of Nicholas Hurzeler,
Esq., dated September 24, 2015, the notice of motion with proof of
service thereof, and the affirmation of Daniel P. Blouin, Esq.,
dated October 8, 2015, and due deliberation having been had
thereon, the Appellate Division of the Supreme Court of New York,
Fourth Department, denied the motion.
The case is IN RE: EIGHTH JUDICIAL DISTRICT ASBESTOS LITIGATION
relating to TIMOTHY SHERER AND BARRY SHERER, AS CO-ADMINISTRATORS
OF THE ESTATE OF KATHERINE C. SHERER, DECEASED, Plaintiffs-
Respondents, v. A.O. SMITH WATER PRODUCTS CO., ET AL., Defendants,
PEERLESS INDUSTRIES, INC., Defendant-Appellant, 2015 NY Slip Op
89028(U)(N.Y. App. Div.). A full-text copy of the Decision dated
Oct. 26, 2015, is available at http://is.gd/VGzOiFfrom
Leagle.com.
ASBESTOS UPDATE: "Hassebrock" to Proceed to Jury Trial
------------------------------------------------------
Before the United States District Court for the Western District
of Washington, at Seattle, is the issue of whether maritime law or
state law governs the remaining claims of asbestos plaintiffs, and
whether the plaintiffs have a right to a jury trial.
U.S. District Judge Ricardo S. Martinez, in an order dated October
21, 2015, finds that maritime law applies to the plaintiffs'
remaining claims and trial will be before a jury. Judge Martinez
also held that the plaintiffs have never invoked admiralty
jurisdiction, and they filed in state court, thus the plaintiffs
have clearly retained a right to a jury trial under Ghotra and the
relevant law cited by the plaintiffs.
The case is GLENN M. HASSEBROCK and BETTY HASSEBROCK, husband and
wife, Plaintiffs, v. AIR & LIQUID SYSTEMS CORPORATION, et al.,
Defendants, CASE NO. C14-1835RSM (W.D. Wash.).
A full-text copy of Judge Martinez's Decision is available at
http://is.gd/B4rLa4from Leagle.com.
Glenn M Hassebrock, Plaintiff, represented by Jessica Dean, Esq. -
- jdean@dobllp.com -- DEAN OMAR & BRANHAM, LLP.
Glenn M Hassebrock, husband and wife, Plaintiff, represented by
Kristin M Houser, Esq. -- houser@sgb-law.com -- SCHROETER GOLDMARK
& BENDER.
Glenn M Hassebrock, Plaintiff, represented by Thomas J. Breen,
Esq. -- breen@sgb-law.com -- SCHROETER GOLDMARK & BENDER.
Glenn M Hassebrock, Plaintiff, represented by William Joel
Rutzick, Esq., SCHROETER GOLDMARK & BENDER.
Betty Hassebrock, Plaintiff, represented by Jessica Dean, DEAN
OMAR & BRANHAM, LLP, Kristin M Houser, SCHROETER GOLDMARK &
BENDER, Thomas J. Breen, SCHROETER GOLDMARK & BENDER & William
Joel Rutzick, SCHROETER GOLDMARK & BENDER.
Air & Liquid Systems Corporation, Defendant, represented by Barry
Neal Mesher, SEDGWICK LLP, Brady L Green, WILBRAHAM LAWLER & BUBA,
Megan Maria Coluccio, SEDGWICK LLP & Rachel Tallon Reynolds,
SEDGWICK LLP.
CBS Corporation, Defendant, represented by Christopher S Marks,
SEDGWICK LLP & R Dirk Bernhardt, SEDGWICK LLP .
Crane Co, Defendant, represented by Michele C Barnes, K&L GATES
LLP, G William Shaw, K&L GATES LLP & Ryan J Groshong, K&L GATES
LLP.
Crown Cork & Seal Company Inc, Defendant, represented by Barry
Neal Mesher, SEDGWICK LLP, Megan Maria Coluccio, SEDGWICK LLP &
Rachel Tallon Reynolds, SEDGWICK LLP.
Foster Wheeler Energy Corporation, Defendant, represented by R
Dirk Bernhardt, SEDGWICK LLP.
Fraser's Boiler Service Inc, Defendant, represented by James
Edward Horne, GORDON THOMAS HONEYWELL.
General Electric Company, Defendant, represented by Christopher S
Marks, SEDGWICK LLP & R Dirk Bernhardt, SEDGWICK LLP.
IMO Industries, Inc, Defendant, represented by James Edward Horne,
GORDON THOMAS HONEYWELL & Michael Edward Ricketts, GORDON THOMAS
HONEYWELL.
Ingersoll Rand Company, Defendant, represented by Kevin J Craig,
GORDON & REES LLP & Mark B Tuvim, GORDON & REES.
Lockheed Shipbuilding Co., Defendant, represented by Brian Thomas
Clark, GLAZIER YEE LLLP, Guy Glazier, GLAZIER YEE, Robert Gregory
Andre, OGDEN MURPHY WALLACE PLLC, Geoff J M Bridgman, OGDEN MURPHY
WALLACE PLLC & Jeffrey D Dunbar, OGDEN MURPHY WALLACE PLLC.
Metropolitan Casualty Insurance Company, Defendant, represented by
Richard G Gawlowski, WILSON SMITH COCHRAN & DICKERSON.
Saberhagen Holdings Inc, Defendant, represented by Timothy Kost
Thorson, CARNEY BADLEY SPELLMAN.
Warren Pumps LLC, Defendant, represented by Allen Eraut, RIZZO
MATTINGLY BOSWORTH PC.
ASBESTOS UPDATE: "Brown" Remanded to State Court
------------------------------------------------
Judge Greg N. Stivers of the United States District Court for the
Western District of Kentucky, Louisville Division, in a memorandum
opinion and order dated October 26, 2015, severed all claims
between between General Electric Company and Tennessee Valley
Authority from the asbestos-related lawsuit captioned JIMMIE SUE
BROWN and CHASTITY BROWN, ANCILLARY CO-ADMINISTRATRICES OF THE
ESTATE OF GLEN DALE BROWN AND JIMMIE SUE BROWN, INDIVIDUALLY,
Plaintiffs, v. KENTUCKY UTILITIES COMPANY, et al., Defendants.
GENERAL ELECTRIC COMPANY Defendant and Third-Party, Plaintiff, v.
TENNESSEE VALLEY AUTHORITY, Third-Party Plaintiff, CIVIL ACTION
NO. 3:15-CV-352-GNS (W.D. Ky.), and remanded all claims between
the Plaintiffs and the Defendants to the Jefferson Circuit Court.
A full-text copy of Judge Stivers' Decision is available at
http://is.gd/xt1BiIfrom Leagle.com.
Jimmie Sue Brown, Plaintiff, represented by Joseph D. Satterley,
Esq. -- jsatterley@satterleylaw.com -- Satterley & Kelley PLLC,
Paul J. Ivie, Esq. -- pivie@satterleylaw.com -- Satterley & Kelley
PLLC & Paul J. Kelley, Esq. -- pkelley@satterleylaw.com --
Satterley & Kelley PLLC.
Chastity Brown, Plaintiff, represented by Joseph D. Satterley,
Satterley & Kelley PLLC, Paul J. Ivie, Satterley & Kelley PLLC &
Paul J. Kelley, Satterley & Kelley PLLC.
Kentucky Utilities Company, Defendant, represented by Douglas W.
Langdon, Frost Brown Todd LLC.
Louisville Gas & Electric Co., Defendant, represented by Douglas
W. Langdon, Frost Brown Todd LLC.
Triangle Enterprises, Inc., Defendant, represented by Casey Wood
Hensley, Frost Brown Todd LLC & Steven M. Crawford, Frost Brown
Todd LLC.
Ashland Oil, Inc., Defendant, represented by M. Trent Spurlock,
Dinsmore & Shohl LLP.
CBS Corporation, Defendant, represented by Albert F. Grasch, Jr.,
Grasch Law, PSC.
CBS Corporation, Defendant, represented by James L. Thomerson,
Grasch Law, PSC.
Foster Wheeler Energy Corporation, Defendant, represented by
William Alexander Hoback, II, Middleton Reutlinger.
Riley Stoker Corporation, Defendant, represented by Alice A.
Jones, Dinsmore & Shohl LLP & M. Trent Spurlock, Dinsmore & Shohl
LLP.
Fluor Enterprises, Inc., Defendant, represented by Rebecca F.
Schupbach, Napier Gault Schupach & Moore PLC.
Fluor Daniel Illinois, Inc., Defendant, represented by Rebecca F.
Schupbach, Napier Gault Schupach & Moore PLC.
Sargent & Lundy, LLC, Defendant, represented by Rebecca F.
Schupbach, Napier Gault Schupach & Moore PLC.
Rohm & Haas Company, Defendant, represented by Cynthia Blevins
Doll, Fisher & Phillips LLP.
American Electric Power, Defendant, represented by Kevin M.
McGuire, Jackson Kelly, PLLC & Margaret A. Moreman, Jackson Kelly,
PLLC.
Indiana-Kentucky Electric, Defendant, represented by Kevin M.
McGuire, Jackson Kelly, PLLC & Margaret A. Moreman, Jackson Kelly,
PLLC.
Duke Energy Kentucky, Inc., Defendant, represented by Casey Wood
Hensley, Frost Brown Todd LLC & Steven M. Crawford, Frost Brown
Todd LLC.
Meadwestvaco Corporation, Defendant, represented by Rebecca F.
Schupbach, Napier Gault Schupach & Moore PLC.
East Kentucky Power Cooperative, Inc., Defendant, represented by
David S. Samford, Goss Samford PLLC, L. Allyson Honaker, Goss
Samford PLLC & Mark David Goss, Goss Samford PLLC.
ISP Chemicals, LLC, Defendant, represented by M. Trent Spurlock,
Dinsmore & Shohl LLP.
Metropolitan Life Insurance Co., Defendant, represented by Jill F.
Endicott, Dinsmore & Shohl LLP.
General Electric Company, Defendant, represented by Gregory Scott
Gowen, Fultz, Maddox, Hovious & Dickens PLC, John David Dyche,
Fultz, Maddox, Hovious & Dickens PLC & Scott T. Dickens, Fultz,
Maddox, Hovious & Dickens PLC.
General Electric Company, ThirdParty Plaintiff, represented by
Gregory Scott Gowen, Fultz, Maddox, Hovious & Dickens PLC, John
David Dyche, Fultz, Maddox, Hovious & Dickens PLC & Scott T.
Dickens, Fultz, Maddox, Hovious & Dickens PLC.
Tennessee Valley Authority, ThirdParty Defendant, represented by
Edward C. Meade, Tennessee Valley Authority, Edwin W. Small,
Tennessee Valley Authority & James S. Chase, Tennessee Valley
Authority.
ASBESTOS UPDATE: Fla. High Court Remands "Aubin" to Appeals Court
-----------------------------------------------------------------
William P. Aubin contracted peritoneal mesothelioma -- an
incurable, terminal disease -- which he claimed was caused by his
exposure to SG-210 Calidria, an asbestos product designed and
manufactured by Union Carbide Corporation. The jury returned a
verdict for Aubin and determined that Union Carbide was liable for
Aubin's damages, in part, under theories of both negligence and
strict liability defective design and failure to warn.
In Union Carbide Corp. v. Aubin, 97 So.3d 886 (Fla. 3d DCA 2012),
the Third District Court of Appeal reversed the jury verdict and
$6,624,150 judgment in Aubin's favor, after making three key
holdings: (1) the trial court erred in failing to apply the
Restatement (Third) of Torts, which exclusively adopts the "risk
utility" test for a design defect claim and imposes on plaintiffs
the requirement of proving a reasonable alternative design; (2)
the design defect was not a cause of Aubin's damages; and (3) the
jury instructions given by the trial court regarding the failure
to warn were misleading because they failed to discuss Union
Carbide's learned intermediary defense -- a doctrine setting forth
the circumstances under which a manufacturer could discharge its
duty to warn the end user by reasonably relying on an
intermediary, who has received and has knowledge of the extent of
the danger.
In an opinion dated Oct. 29, 2015, the Supreme Court of Florida,
quashed the Third District's decision and also disapprove of the
Third District's prior cases of Kohler, 907 So.2d 596, and
Agrofollajes, 48 So.3d 976, as to the adoption and application of
the Third Restatement. The Florida Supreme Court further
disapprove the Third District's conclusion that no defective
design was demonstrated because Aubin failed to show causation.
As to the failure to warn claim, the Florida Supreme Court agree
with the Third District's discussion of the learned intermediary
defense, which is in accordance with the Fourth District's
decision in Kavanaugh. To the extent that the Fourth District's
opinion in McConnell could be construed to disallow any special
instruction on the learned intermediary defense, the Florida
Supreme Court disapprove that portion of the McConnell opinion.
In sum, the Florida Supreme Court concludes that the Third
District erroneously reversed the final judgment and remands the
case to the Third District with directions that the judgment be
reinstated.
The case is WILLIAM P. AUBIN, Petitioner, v. UNION CARBIDE
CORPORATION, Respondent, NO. SC12-2075 (Fla.). A full-text copy
of the Decision is available at http://is.gd/iX3kGEfrom
Leagle.com.
James Louis Ferraro and Juan Pablo Bauta, II of The Ferraro Law
Firm, P.A., Miami, Florida, for Petitioner.
Matthew John Conigliaro of Carlton Fields, P.A., Tampa, Florida,
and Dean Angelo Morande of Carlton Fields, P.A., West Palm Beach,
Florida, for Respondent.
Philip Mead Burlington of Burlington & Rockenbach, P.A., West Palm
Beach, Florida, and Larry Scott Stewart of Stewart Tilghman Fox
Bianchi & Cain, P.A., Miami, Florida, for Amicus Curiae Florida
Justice Association.
Gary M. Farmer of Farmer Jaffe Weissing Edwards Fistos & Lehrman,
Fort Lauderdale, Florida, for Amicus Curiae Florida Consumer
Action Network.
Christina Marie Martin, Palm Beach Gardens, Florida, for Amicus
Curiae Pacific Legal Foundation.
Frank Cruz-Alvarez of Shook Hardy & Bacon L.L.P., Miami, Florida,
for Amici Curiae The Chamber of Commerce of the United States of
America, Coalition for Litigation Justice, Inc., Pharmaceutical
Research and Manufacturers of America, and American Chemistry
Council.
ASBESTOS UPDATE: Judge Says Guam's Fibro Concerns Left Unanswered
-----------------------------------------------------------------
Gaynor Dumat-ol Daleno, writing for Pacific Daily News, reported
that Guam's Environmental Protection Agency hasn't addressed
health risks and other community concerns associated with Guam
EPA's proposal to allow the disposal of asbestos-tainted trash at
the Layon Landfill, a federal judge said.
The proposed change deviates from the decades-old ban on disposal
of asbestos-contaminated materials on the island.
U.S. District Court of Guam Chief Judge Frances Tydingco-Gatewood
said in an order that the court first asked questions about the
proposal in a March 5, 2015, hearing, but Guam EPA "has failed to
answer all of these questions."
"There are a number of unanswered questions about (Guam EPA's)
proposal," TydingcoGatewood stated, and asked the following:
How much waste will likely be put in the landfill if
asbestos-contaminated material is to be accepted?
How much landfill space will it consume?
What, if any, health hazards are posed by accepting
asbestos-tainted materials at the Layon Landfill?
Have the southern mayors and residents been consulted, or
briefed, given their concerns about possible environmental
contamination?
Since Guam EPA is proposing the disposal of asbestos-tainted waste
at the landfill, the judge said, Guam EPA "bears the
responsibility of producing a plan to the receiver and seeking a
special rate from the Public Utilities Commission, ... if the plan
is approved," the judge ordered.
Government of Guam authority over solid waste management had been
placed under a federal court-ordered receivership for years
because of what the judge called "garbage juice" that seeped from
the now-closed Ordot dump into Guam's ground, rivers and streams.
If Guam EPA were to push forward with its proposal, which
environmental agency Administrator Eric Palacios brought up at a
hearing in federal court, the court's approval will be required
for as long as the receivership is in place.
Residents of Inarajan, which hosts the landfill, are opposed to
Guam EPA's proposal.
Mayor Doris Flores Lujan said the village's residents already
suffer because of the foul odor that comes out of the landfill
when waste isn't covered quickly with dirt. In previous hearings,
experts stated one of the main causes of the foul smell is the
disposal of sludge from the sewer treatment plants.
The sludge from Guam Waterworks Authority's wastewater treatment
plants is supposed to be dry before it is transported to the
landfill, but that hasn't been the case, according to statements
in court.
A misting machine that functions as a deodorizer hasn't worked
recently, the mayor said.
No consultation
Guam EPA has never consulted Inarajan residents on the plan to
allow asbestos disposal at the landfill, Lujan said.
Guam EPA's administrator has told Pacific Daily News that when
properly sealed and buried, asbestos-contaminated materials don't
pose a health risk.
Palacios said allowing the proper burial of asbestos-contaminated
materials at the Layon Landfill would help the local construction
industry save costs, which could reduce the cost of building homes
and commercial and government structures.
Lujan said she found out about Palacios' plan only when she read
abour it recently in the Pacific Daily News.
"I am totally against it. Inarajan residents don't want it down
here," Lujan said. "Who is he to decide for the people of
Inarajan?"
Lujan said she's not convinced it's safe to bury asbestos at the
landfill because,f if it's accidentally dug up, or if an
earthquake compromises the site, Inarajan residents could be at
risk.
Asbestos can be found in older building materials, including vinyl
floor tiles and tile adhesives, roofing, textured paint and
patching compound, according to U.S. EPA.
In general, exposure may occur only when the asbestos-containing
material is disturbed or damaged in some way to release particles
and fibers into the air, U.S. EPA stated.
Three of the major health effects associated with asbestos
exposure, according to U.S. EPA, are:
-- lung cancer;
-- mesothelioma, a rare form of cancer that is found in the
thin lining of the lung, chest and the abdomen and heart;
and
-- asbestosis, a serious progressive, long-term, non-cancer
disease of the lungs.
Lujan said she's disappointed Guam's environmental administrator
touts the economic benefits of the plan for the construction
companies without hearing out concerns from the people who live
near the landfill.
"He needs to come down here, and he needs to face the public. He
needs to face the constituents," Lujan said.
The president of a company that specializes in hazardous waste
packaging, transportation, and brokerage of hazardous waste for
disposal, said asbestos-contaminated materials can be safely
disposed of at the Layon landfill.
LeRoy Moore, president of the company that does business as Unitek
Environmental, said once buried in the landfill, asbestos-
containing material poses no health risks to people.
Asbestos can only cause harm if solid items containing asbestos,
such as floor tiles, are repeatedly pounded and the dust becomes
airborne and is inhaled, Moore said.
Less cost
Roughly 100 tons of asbestos-containing materials are shipped off
Guam a year, Moore said. Unitek sends most of the asbestos
materials it disposes of for Guam clients to a U.S. EPA-approved
disposal site in Nevada, he said.
The cost of proper disposal on Guam could be about 70 percent more
cost-effective than packing and shipping the waste to Nevada, he
said. A cubic yard of asbestos-contaminated material could cost
about $3,000 to properly package, ship and dispose of off Guam, he
said.
On Palacios' proposal, Moore said, "I am all for it; I don't know
why they haven't done it."
Unitek has disposed of asbestos-tainted materials from some of the
island's schools, public facilities and the old roof of the
DulceNombrede Maria Cathedral-Basilica.
ASBESTOS UPDATE: Speaker Says Guam Dumping Fibro is Unsafe
----------------------------------------------------------
Clynt Ridgell, writing for PacificNewscenter.com, reported that
Speaker Judi Won Pat is also concerned about the Guam
Environmental Protection Agency's proposal to allow the dumping of
asbestos in the Layon landfill.
Guam EPA Administrator Eric Palacios said the proposal would allow
contractors and military construction projects to save money by
dumping asbestos in the Layon landfill instead of sending it off-
island. The Inarajan mayor has furiously voiced her strong
opposition to this plan telling PNC in an interview.
"The rich gets richer and the poor gets dumped on."
Solid waste oversight chairman Senator Tom Ada also expressed
concerns telling PNC previously that he would like to see proof
that dumping asbestos in the landfill would be safe. Now Speaker
Won Pat has weighed in.
"I agree with the mayor of Inarajan. I live in Malojloj and the
dump is right across the street from me and my neighbors you know
we're very concerned at the time about the landfill and now again
to burden the people of Malojloj and Inarajan to now take in toxic
waste you know hazardous waste, we were lead to believe that this
was strictly going to be household waste not hazardous waste and
EPA has to rethink this," said Won Pat. The Speaker says she is
not convinced that dumping asbestos in the landfill will be safe.
ASBESTOS UPDATE: Central Jr. High Preprares for Fibro Clean-up
--------------------------------------------------------------
Katie Lamb, writing for Southeast Missourian.com, reported that as
the Cape Girardeau School District prepares for construction and
renovations at Central Junior High School, a contract is being
negotiated with Midwest Environmental Studies to remove asbestos
at the school.
The school has several areas that contain asbestos in the floor
tile, mastic and coverings, and those areas will have to be
asbestos-free before construction begins, superintendent Jim
Welker said.
"It's not anything to get concerned about," Welker said. "It's
just what you have in older buildings, and you have to go through
a process of removing that before we can do construction."
The construction is part of a $20 million bond issue approved by
voters in April.
Projects at the junior high school include razing the school's old
gymnasium and replacing it with offices. A new practice gym will
be built, and science labs, doubling as a storm shelter, will be
built in the basement. The classrooms also will be renovated.
The school board voted to move forward with an estimated contract
amount of $64,000 with Midwest Environmental Studies for the
asbestos removal.
The removal work will be completed during Christmas break,
officials said, and the old gym will be closed early. Classrooms
will be renovated during the summer.
The board also approved negotiating a $39,900 contract with Secure
Data Technologies for storage equipment. It was the lowest of
three bids received by the district.
The Nimble CS 235 storage array will improve storage capacity,
performance and reliability of the district's data center,
officials said.
The upgrade is in response to a growing need for technology at the
district. The district's current server infrastructure is
partially outdated, at near-maximum capacity and causing
performance "bottlenecks" to servers, according to district
documents.
The improvement in storage, speed and capacity will increase
performance of the district's servers and allow for moderate
future expansion.
Before the regular meeting, the board also gathered for a special
work session where they discussed the high school's 11-point
grading scale and the percentages for grades.
An "A" on the district's scale is 96 to 100 percent and an "A-" is
92 to 95 percent. At some districts, Welker said, the "A-" begins
at 90 percent.
"Some of the board members were concerned it might hurt some of
our students in terms of when they apply for scholarships and
other things compared to students from other school districts,
because our grading scale was higher," Welker said.
A study of other districts was presented, he said, and most of the
discussion was regarding the percentages for grades.
"The biggest change, if we make a change, would be in terms of
those percentages," he said.
The high school's principal was asked to take information from the
discussion to his staff, review it and make a recommendation to
the board at a later meeting, Welker said.
The board also approved the vision insurance plan, as well as the
medical and dental insurance plans for 2016.
ASBESTOS UPDATE: NZ Post Renovations Halted, Leaving Fibro Inside
-----------------------------------------------------------------
Collette Devlin, writing for Stuff.co.nz, reported that Downsizing
at NZ Post has halted a $40 million refurbishment of its
headquarters, meaning asbestos will not be completely removed from
the building.
Argosy Property bought the 14-storey, 25,000 square metre building
on Wellington's Waterloo Quay for $60m in 2013.
The planned refit of the building included the replacement of its
air-conditioning systems and $1.5m on seismic strengthening.
A spokeswoman for NZ Post said the state-owned enterprise leased
New Zealand Post House and work on the floors it planned to occupy
would be completed later.
"We no longer have a business need for the top three floors and we
are working with Argosy to determine the best use for them."
There was still residual asbestos in the property, which was built
in the 1960s, but all steps had been taken to ensure it had been
managed appropriately during the refurbishment, she said.
Argosy chief executive Peter Mence said the fact NZ Post no longer
wanted to occupy the whole building was the primary reason for
stopping work.
The work was being undertaken to accommodate NZ Post, so it was no
longer appropriate to continue, he said.
"We are pausing work until we talk to them to find the right
answer."
Although construction had stopped on the last three floors, work
was continuing in the rest of the building.
Argosy awarded the contract to Hawkins Construction and it is
understood the halting of work has resulted in job losses.
Mence said he would not expect significant changes to jobs because
work still needed to be done, it was just a matter of when.
He confirmed there had been problems with asbestos in the
building, which was no surprise given its age.
"We made sure it was managed properly and no one was exposed," he
said.
ASBESTOS UPDATE: La. Man Sues Big Companies for Mesothelioma
------------------------------------------------------------
Nick Bartholomew, writing for Louisiana Record, reported that a
Louisiana man is suing several companies, alleging he contracted a
malignant condition from asbestos-containing products associated
with the job sites where he worked.
Julius David Bourke originally filed a lawsuit Aug. 25 in Civil
District Court for the Parish of Orleans against Exxon Mobil
Corporation, Eagle Inc. Georgia-Pacific, Taylor-Seidenbach Inc.
and Union Carbide Corporation, alleging bodily harm caused by
extended inhalation of asbestos-containing products.
According to the complaint, Bourke was exposed to asbestos causing
malignant mesothelioma at work sites where asbestos-containing
products either designed, tested, evaluated, manufactured,
packaged, furnished, stored, handled, transported, installed,
supplied, and/or sold by the defendants were present.
Exxon Mobil seeks to remove the case from civil district court to
federal court, alleging the former court doesn't have the proper
jurisdiction. This motion was filed Oct. 21 in U.S. District Court
Eastern District of Louisiana.
Bourke seeks unspecified damages, costs of suit and other relief
deemed applicable by the court. He is represented by attorneys J.
Burton LeBlanc IV, Denyse Finn Clancy, David R. Cannella,
Christopher C. Colley and Jeremiah S. Boling of Baron & Budd in
Baton Rouge.
ASBESTOS UPDATE: Chesham Care Fined Over Failure to Remove Fibro
----------------------------------------------------------------
Aaron Morby, writing for Construction Inquirer, reportd that the
unsafe working practices were revealed after a complaint last
spring from a member of the public living close to the former
hospital site on Hospital Hill, Chesham, Buckinghamshire.
HSE inspectors found the former Chesham Community Hospital
buildings had been partially demolished by a contractor. But
client, Chesham Care, which was legally acting as the 'principal
contractor', had failed to ensure asbestos containing materials
were removed prior to demolition.
High Wycombe Magistrates' Court, heard Chesham Care was acting as
the 'client' for the project, but as it had failed to appoint a
principal contractor/construction design and management co-
ordinator in writing, by law it had assumed the associated legal
duties and roles.
Inspectors found the works had been going on for around 2-3 months
and observed asbestos containing materials among demolished
building debris.
Among a catalogue of other failing, the firm had failed to record
demolition arrangements in writing, the site was not securely
locked and no welfare facilities were present on site.
In HSE's opinion there was also a serious risk of injury from
collapse of partially demolished buildings.
Chesham Care admitted multiple failures of the Construction
(Design & Management) Regulations 2007 and was fined a total of
GBP35,000 and ordered to pay costs of GBP1321.60.
After the hearing, HSE inspector Rauf Ahmed said: "Clients have a
key role in safely directing construction project.
"Effective arrangements at the start can have an amplified
positive impact down the various stages to completion. These
include making informed appointments, such as designers, principal
contractors/contractors using competent sources of health and
safety."
ASBESTOS UPDATE: Kalamazoo Woman Sentenced Over Fibro Case
----------------------------------------------------------
Rex Hall Jr., writing for MLive.com, reported that a Kalamazoo
woman who was behind a salvage operation that federal prosecutors
say led to the largest release of toxic asbestos in the state's
history will spend the next three years on probation, according to
court documents.
In February, LuAnne LaBrie, formerly known as LuAnne McClain,
pleaded guilty to failing to notify federal or state authorities
that asbestos material would be stripped and removed at the former
Consumers Energy power plant in Comstock Township.
In March, LaBrie also pleaded guilty in federal court to
misdemeanor charges of failing to timely file a tax return in 2011
and 2012 on income of more than $1.75 million in proceeds from the
salvage job.
LaBrie's two co-defendants, Cory Hammond, of Hastings, and Robert
"Mike" White," of Kalamazoo, who supervised the salvaging of scrap
metal at the power plant, pleaded guilty in February to failing to
adequately wet asbestos material during the operation.
Hammond and White, according to court documents, were sentenced by
Jonker on Oct. 6 and received the same probation term as LaBrie.
Each man was ordered to pay $154,604 in restitution.
Federal investigators have said previously that the dealings
between LaBrie, Hammond and White began in 2011 when the trio
agreed to salvage valuable materials from the former Consumers
facility at 6800 E. Michigan Ave. and share the proceeds.
Investigators said LaBrie controlled and supervised the facility
and visited the site and communicated with Hammond and White
regularly about the savage operation.
Despite knowledge that Hammond, White and other workers were
stripping and removing asbestos-laden insulation from pipes at the
former Consumers plant, prosecutors said LaBrie failed to notify
the U.S. Environmental Protection Agency or the State of Michigan
that the operation involved the removal of asbestos inside the
facility.
In a sentencing memorandum filed in September, federal prosecutors
sought prison for LaBrie and contended that the two cases against
her involved "the greedy pursuit of millions of dollars at the
expense of the health and safety of the community."
"Although Defendant did not personally handle the asbestos
material at the power plant, she knew from several prior asbestos
training courses -- and through frequent conversations with her
co-defendants Hammond and White -- that they were not properly
handling the asbestos at the facility during the salvage
operation," Assistant U.S. Attorney said in a 20-page sentencing
memorandum filed Sept. 30. "Defendant personally failed to take
the simple step of notifying anyone at the EPA or the State of
Michigan that the stripping and removal of asbestos would occur,
as she knew she was required to do. Had she completed even that
simple task, the ability of regulators to closely monitor the
operation may have prevented the resulting damage to the
environment and the substantial risk of future injury to those who
inhaled the airborne fibers.
"Defendant failed to notify the authorities of the asbestos
removal activities and failed to put an end to the operation
because she wanted to save money."
Prosecutors said a presentence investigation report filed in
LaBrie's case gave an advisory sentencing guideline range of 63
months to 78 months in prison.
Prosecutors said the salvage operation at the former Consumers
plant began in the spring of 2011 and lasted until April of 2012
"which resulted in an ongoing and repetitive emission of asbestos
into the environment."
EPA officials shut the site down in 2012 and what followed was a
cleanup that cost the federal agency more than $1 million,
according to court documents.
"As to the release of asbestos into the environment, there is
direct and circumstantial evidence of the illegal stripping and
removal of dry asbestos at the facility and the presence of
asbestos debris on the ground outside the building," prosecutors
said. "Specifically, the EPA seized samples of debris from the
ground immediately south of the power plant during the execution
of the federal search warrant."
In one instance, prosecutors said White described to them how a
salvage worker at the plant laid on the asbestos-covered floor and
then carried the residue into his automobile and was involved in
an automobile accident a short time later.
"White said he learned the police officer let this worker go
because he did not want to be exposed to the asbestos on the
worker's clothing," prosecutors said. "The totality of the
evidence demonstrates that asbestos debris was released onto the
ground and into ambient air during the salvage operation as a
result of the illegal asbestos removal at the facility."
Additionally, prosecutors said workers who took part in the
salvage operation were exposed to asbestos, a known carcinogen,
regularly and there was a "lack of consistent use of personal
protective equipment."
"The government does not dispute that defendants provided suits,
masks, and filters to some of the workers," prosecutors said in
court documents. "However, not everyone wore protective gear all
of the time inside of the plant. Some of the workers not removing
asbestos wore their street clothes at the facility, which means
any asbestos fibers that landed on their clothing and shoes would
be transported to their homes where they would expose others to
asbestos fibers ... One laborer said that workers who wore masks
were told to make a filter last an entire week rather than replace
them every day, presumably to save money."
In addition to prison time, prosecutors sought to have LaBrie pay
restitution of $1.03 million to the EPA and $394,033 to the
Internal Revenue Service.
Doing so, they contended, would hold LaBrie "accountable for what
investigators believe may be the largest illegal asbestos
disturbance in Michigan based on the volume of disturbed asbestos
and expense to remediate the site.
"The massive clean-up effort was funded by taxpayers, a fact
particularly galling in a case where Defendant has yet to file
accurate tax returns for 2011 and 2012 or pay what she fairly owes
on her substantial profit from the crime."
In addition to probation, Jonker ordered LaBrie on to pay $721,484
in restitution to the EPA Superfund in the asbestos case and
$175,841 to the IRS in the tax case.
ASBESTOS UPDATE: Fibro Issues Delay Courtroom Renovations
---------------------------------------------------------
Renee Jean, writing for Willston Herald, reported that there have
been a couple surprises along the way as Williams County works on
upgrading its facilities, but despite a few additional costs and
specific delays, the project remains both under budget and on
schedule overall.
The first surprise was the cost of moving utilities. MDU had
estimated it would be $60,000 for that in a phone quote. However,
when it came time to actually move the lines, the real cost turned
out to be closer to $132,000.
The other surprise was additional asbestos abatement. Money wasn't
the biggest factor here -- it only added $15,000 to the bottom
line -- but the schedule was thrown off a little for one part of
the project. The additional asbestos work means the courtrooms
cannot be finished just after Thanksgiving. The finish date is
more like mid-December now; that won't affect the timetable for
the rest of the work, however.
The rest of the facilities update for the $54 million project
brought out smiles and kudos during a recent county commission
meeting.
The contracts with the two architects, one to design the law
enforcement center and the other to design the new administration
building, are both finished and slightly under budget. The
construction contract, which was awarded to JE Dunn, is also under
budget. They are doing two projects at the same time from the same
field office and using the same subcontractors -- many of them
local.
"When we started at the beginning, I wanted to have a 10 percent
owner-controlled contingency when we get into actual construction
next May," Jim Steinmann said. He is managing the project for the
county. "Right now, I'm holding about 12 percent, so I'm well on
track to being able to fulfill my goal. We are in pretty happy
shape."
Steinmann was hired earlier to develop a master plan for the
county's projected facility needs after a previous firm's estimate
came in at $80 million. That particular bid didn't include the
additional courtrooms Steinmann was ultimately able to incorporate
into his $54 million plan, nor did it include any additional
growing room.
The courtrooms were an additional need that Steinmann identified
after he started developing his master plan.
"I went and talked to the court clerks and the state's attorney
and they said what about us? We have an increased caseload and all
these people stacked up in the jail cannot get court dates for
maybe up to a year," Steinmann recalled. "So we analyzed the court
statistics and projected a need for two additional judicial
positions over the next five or so years."
The county applied for the additional positions and was granted
one of them during this legislative session. That individual is
already on site, which put new courtrooms on a fast track.
"We went into a mode of building the two new courtrooms
immediately," Steinmann said. "One to replace a very tiny
courtroom on the third floor and one for the expansion."
The plan is for municipal court to move to the first floor, so it
is more available to citizens coming in for municipal infractions.
The third floor, which municipal is now sharing, will become a
fully jury capable district court.
"Essentially, the court will get two additional new courtrooms in
the future to support increased filings and make the time to get
into the courtroom after being arrested or whatever," Steinmann
explained.
For the Law Enforcement Center, there will be 110 additional beds
for the jail, bringing the total capacity to about 240.
"The current jail has a maximum capacity of about 130, and they've
had as many as 150 overnight sleeping on the floor, which is not
appropriate at all and doesn't meet standards of course,"
Steinmann said.
They'll also add office space to the center to accommodate about
30 additional officers -- 10 for Williston, 10 for the Sheriff's
Department and 10 or so for a joint task force that includes
state, federal and local law enforcement.
There will be some traffic calming measures taken to improve
safety for people who must cross the street from one complex to
the other, Steinmann said, and the county will be buying
additional property to add about 140 parking spaces.
The new administration center will house county offices other than
courts. It will reside across the street. For that, a three-story,
27,000-square-foot addition is being added onto the existing
20,000-square-foot facility.
The finished center will have an atrium so there is a lot of
natural light, and it will be designed so that offices can be
closed off after hours, allowing public meetings to take place
with better security.
"We're going to reuse existing furniture and some remodeling will
take place while it's still occupied," Steinmann said. "We want to
add natural lighting and flexibility and make it a good functional
building to support future operations."
The new center will also include some growing room for the future,
and that's even after the 2035 staff projections are met. These
spaces include 3,500 vacant square feet in the basement and
another empty space upstairs. The latter will be drywalled off
until needed.
The new commission hearing room will seat twice as many people in
its audience space, and will offer better acoustics, as well
state-of-the-art audio-visual services, to improve recording
capabilities. The commissioners will sit on a raised platform so
they are eye-level with speakers. There will also be a non-public
route into the commission chambers, so elected officials can more
easily come and go as needed.
The meeting space is going to be available for the city of
Williston or other community groups to use for large public
meetings.
Assuming no costly surprises, the facades of both buildings will
also be upgraded, so the entire complex will look like a family of
buildings done at the same time.
"We don't want the jail to look like a warehouse or a jail,"
Steinmann said. "It will look like office buildings. We want to be
a good downtown neighbor."
To that end, landscaping is being added as well, to improve the
look of the building downtown.
Both buildings are to be complete for occupancy by the end of
2017, with some internal phased rearrangements taking place
through March 2018.
ASBESTOS UPDATE: Ultimate Fibro Liability Totals Remain Unknown
---------------------------------------------------------------
Judy Greenwald, writing for Business Insurance, reported that
decades after it became a major issue, insurers' ultimate asbestos
liability remains unknown, according to a report by rating agency
A.M. Best Co. on asbestos and environmental losses issued.
"The continuing evolution of asbestos medical effectiveness
through improved therapies and emerging drug combinations and
early diagnosis, combined with ever-evolving litigation
strategies, continue to make it difficult to put finality to the
ultimate costs associated with asbestos for insurance companies,"
says the report by Oldwick, New Jersey-based Best.
"Despite more than $12 billion in asbestos loss payments over the
past five years, asbestos loss reserves have decreased by less
than $2 billion, says the report. "This reflects the industry's
uncertainty as to when, if ever, asbestos litigation will end and
a desire to maintain loss reserves at prudent levels."
The report says Best continues to maintain its estimate for net
asbestos losses for the U.S. property/casualty industry at $85
billion with net environmental losses estimated at $42 billion.
The industry paid out $3.5 billion in asbestos and environmental
claims in 2014, while funding $2.1 billion in losses, according to
the report.
The industry has paid out a cumulative $91.1 billion in combined
asbestos and environmental losses, and maintains a reserve of an
additional $27.3 billion to fund future payments of legacy
liabilities, according to the report.
ASBESTOS UPDATE: ExxonMobil Faces Fibro Suit for Man's Death
------------------------------------------------------------
David Yates, writing for Southeast Texas Record, reported that
ExxonMobil is being blamed for causing a past employee's death by
exposing him to asbestos dust and fibers.
Mary Albright, surviving spouse of Carl Albright, filed suit
against ExxonMobil and Mobil Oil on Oct. 20 in Jefferson County
District Court.
According to the lawsuit, Carl Albright was employed by Mobil Oil,
during which he was exposed to toxic materials, including asbestos
dust and fibers.
As a result, he developed an asbestos related disease,
mesothelioma, "for which he died a painful and terrible death on
July 18, 2015," the suit states.
The suit alleges the defendants knew for decades asbestos products
were dangerous but still allowed employees to work around and with
the products.
The suit further accuses the defendants of acting with gross
neglect, entitling the plaintiff to recover exemplary damages.
The plaintiff is represented by attorney Keith Hyde of the Provost
Umphrey Law Firm in Beaumont.
Judge Milton Shuffield, 136th District Court, has been assigned to
the case.
ASBESTOS UPDATE: Liverpool Council Investigates Fibro Allegations
-----------------------------------------------------------------
Saffron Howden, writing for The Sydney Morning Herald, reported
that an investigation is underway into allegations Liverpool City
Council knowingly supplied asbestos-contaminated soil and fill to
Casula High School and a number of parks, reserves and waterways
in the area.
The allegations were raised as a matter of urgency at a meeting of
the council on night in Sydney's south-west.
The councillor who raised the issue, Peter Ristevski, said 22
sites could be affected by contaminated fill if the allegations
proved correct.
He asked the council what monitoring and testing regimes had been
established to check the health of staff and residents who may
have been exposed -- and whether the school was notified -- but
his urgency motion was voted down.
"There could be a massive liability in terms of the health to the
public," Cr Ristevski said after the meeting.
He said the asbestos had been stored at the council's now-defunct
road base recycling facility, known as the western depot, and
later mixed in with soil and other materials and used as fill.
In a letter to the council dated October 27, the United Services
Union said there were at least seven locations at which
contaminated fill was used, including a local high school.
The letter stated that: "At the very minimum, the union is advised
that soil and fill contaminated with asbestos was used in works
located at:
-- Casula High School
-- Craig Park
-- Lt Cantelo [sic] Reserve
-- McLoud [sic] Park
-- Rickard Road
-- Across from Harvan Park
-- Along various waterways."
The NSW Environment Protection Authority told Fairfax Media it was
"currently investigating allegations that Liverpool Council has
unlawfully disposed [of] waste at a number of properties in the
Liverpool Council area".
The union further alleged that 30,000 tonnes of contaminated soil
or fill was sold by Liverpool Council to a developer working at
Gregory Hills.
"The union has serious concerns that council has put the health of
our members and the general community at risk of serious illness
or worse," the union's general secretary, Graeme Kelly, wrote.
Liverpool council said it was cooperating with the EPA
investigation into potentially contaminated fill at 22 sites.
"The tiny amount of asbestos located in stockpiles of material
means that now we must test and -- if appropriate -- rehabilitate
any sites where the fill may have been used for council works,"
council chief executive Carl Wulff said in a statement to Fairfax
Media.
He preempted the findings of the EPA investigation and claimed
there was no health risk to the public or council staff.
"Trace amounts of asbestos would not be airborne or pose a health
risk to members of the public and council workers," he said. Mr
Wulff said "only a few fragments of asbestos" had so far been
discovered across 10 sites.
Backfill used by the council as part of drainage works in open
space between Casula High School and Myall Road was yet to be
tested. "Again, this site is capped and does not pose an immediate
health risk to anyone," he said. "But the site will be tested as a
matter of priority."
A spokeswoman for the council said the accusation the asbestos was
distributed knowingly was 'scurrilous and unfounded'.
The NSW education department has confirmed asbestos was found on
school grounds over the last holiday period and that the EPA was
investigating its source.
"During the recent school vacation period a random contamination
audit was undertaken at Casula High School," a department
spokesman said. "Once the contamination had been confirmed, the
school site was cleared of contaminated material identified in the
inspection."
He said the school was declared safe by an hygienist the day
before classes resumed on October 6.
"The Department of Education continues to monitor the site in
order to ensure ongoing safety," the spokesman said.
Mr Wulff said the council would remediate any site where traces of
asbestos were found. But allegations that contaminated soil had
been sold to a developer were not correct, he said.
Liverpool council was one of 29 Sydney councils deemed "unfit for
the future" under an Independent Pricing and Regulatory Tribunal
review released.
ASBESTOS UPDATE: State Fines Fibro Work at Worcester Care Center
----------------------------------------------------------------
Lisa Eckelbecker, writing for Telegram.com, reported that a
Rowley company will pay up to $75,000 to settle allegations that
workers mishandled asbestos during renovations at West Side House,
a long-term care center at 35 Fruit St., the office of state
Attorney General Maura Healey reported.
West Side Corp. and the state agreed to the settlement under a
consent judgment approved in Suffolk Superior Court.
The state had alleged that West Side's workers improperly removed
demolition debris from the center while renovating a human
resource office in April 2014. The state said workers failed to
notify state environmental authorities about the work and then
used improper removal procedures, including rolling debris through
the center in open trash barrels and dumping the debris in an
outdoor trash compactor.
Under the consent judgment, West Side has agreed to have a
licensed asbestos inspector check its facilities, including West
Side House, for asbestos that may need to be removed, the state
reported.
Ms. Healey's office reported that $25,000 of the penalties could
be waived if West Side complies with all terms of the agreement.
ASBESTOS UPDATE: Toxic Dust Found at Christchurch Sports Park
-------------------------------------------------------------
Lois Cairns, writing for Stuff.co.nz, reported that parts of a
Christchurch sports park have been cordoned off following the
discovery of asbestos fibres in the soil.
The asbestos fibres were found at Kyle Park in Hornby by
Christchurch City Council contractors who were taking soil samples
to assess whether the park might be a suitable site for new
community facilities planned for the south-west of the city.
The sites where the asbestos fibres were found were located in
planted areas on the perimeter of the park and not in areas where
sporting activity takes place.
"The only testing so far in the sports field has shown no sign of
asbestos, but we are taking a precautionary and prudent approach
to testing to ensure we have full understanding of the park's soil
makeup. We currently have no evidence to justify full closure of
the park," said council parks unit manager Andrew Rutledge.
Further precautionary testing in the remaining areas of the park
would be carried out, he said.
In the areas where the asbestos had been found, immediate action
had been taken to safeguard the public.
"Temporary fencing has been erected around the sites to minimise
any soil disturbance. We are asking that all people adhere to this
fencing and refrain from entering these areas. Standard practice
when asbestos is identified in this situation is to secure the
site and cover it to prevent any movement or disturbance to the
soil. In this instance, this involves covering the affected area
with geotextile cloth. A thick layer of mulch will then be added
to return the area to a garden state," Rutledge said.
"We will be carrying out regular monitoring going forward to
ensure the quality of the mulch remains intact and no further
issues arise."
ASBESTOS UPDATE: High Court Denies Compensation to Pensioner
------------------------------------------------------------
Wales Online reported that a pensioner who developed asbestosis
after working in the boiler room of Cardiff Council's school meals
department will go without a penny in compensation after a High
Court ruling.
Glyn Jeffery Summers, 71, suffers acute shortness of breath and
pain which tightens like a metal band around his chest but was
told that he had left it too late to sue.
His claim was rejected, despite the City and County of Cardiff
admitting that he was exposed to asbestos whilst working for them
and that amounted to a "breach of duty".
Exposed over two years
Soon after leaving school in 1959, Mr Summers began work as a
playing fields groundsman for the council's predecessor, the
Cardiff Corporation, the court in London heard.
He was exposed to asbestos between 1971 and 1973 whilst working as
a boilerman in the centralised school meals department in
Clydesmuir Road, Tremorfa.
Mr Justice Hickinbottom said he worked in close proximity to
boilers "with asbestos lagging in very poor condition".
The judge added that the council was "not in a position to deny"
that Mr Summers suffered asbestos exposure and that this arose
from a breach of duty.
Mr Summers now suffers from asbestos-related pleural plaques
which, combined to problems related to his long-term smoking
habit, have left him seriously disabled.
'Lost interest' in claim
He launched his compensation claim in August but council lawyers
said that was far too late.
Agreeing with them, the judge said Mr Summers was aware that he
had suffered a "significant" asbestos-related injury as long ago
as 2000.
He underwent a biopsy that year, but "lost interest" when told
that he did not have malignant cancer.
Mr Summers was not greatly bothered by breathlessness or chest
pains at the time and did not think it would be worthwhile suing
the council.
A three-year time limit is normally applied to asbestosis and
other personal injury claims and Mr Summers's case fell foul of
that.
The judge concluded: "This claim thus fails and I shall direct
judgment to be entered for the council".
ASBESTOS UPDATE: Letcher County to Remove Fibro From Schools
------------------------------------------------------------
Angela Reighard, writing for WKYT.com, reported that a few months
ago, word got out that a former Letcher County school teacher was
diagnosed with Mesothelioma.
Roger Hall filed a lawsuit saying asbestos at the old high school,
now Letcher Elementary School, made him sick.
"I had plans," Hall said. "I'm 64-years-old and other than with
this, pretty good shape and really wanting to do some things and
enjoy a little bit of my life."
Now, the school system is taking action. They plan to remove
asbestos tile in three of its schools including Letcher, Fleming-
Neon, and Arlie Boggs.
"We were really tickled that is going to happen. Just to put
everyone's mind at ease," Letcher Elementary Principal Wendy
Rutherford said.
Superintendent Tony Sergent said the school system has had an
asbestos plan in place for many years. He said they've followed
protocol replacing and sealing tiles as necessary.
He said the removal project is a precaution.
"To make everyone feel better in the community, to give them that
peace of mind," Sergent said. "To make sure that we are doing all
that we can to make them feel good about their kids going to
school. We just decided we want to be an asbestos-free county. We
want to get rid of all of it."
The project it expected to take two years and could cost at least
$150 thousand dollars.
They will remove and replace the tile when students are not in the
building.
ASBESTOS UPDATE: Kaipara College Closed Due to Deadly Dust
----------------------------------------------------------
Sam Boyer, writing for Stuff.co.nz, reported that an Auckland
college has been forced to shut its doors to students after an
asbestos find in the school.
Kaipara College, in the Rodney district north of Auckland, was
closed "following the identification of potential asbestos on the
school site", principal John Grant said.
"The health and safety of out staff and students is of paramount
importance and we appreciate your support during this time," he
said in a statement to parents online.
Grant said the suspected asbestos was discovered while work was
being done around "weather tightness issues" at the school.
"Concerns were raised about the potential disturbance of asbestos
in an administrative block at our school. Further testing is being
carried out to give us more information," he said.
"Following discussions with the Ministry, we have decided to
temporarily close the school as a precautionary measure to ensure
the safety of our students and staff.
"We will make decisions about the length of the closure when we
have a better picture of the situation."
Contingency plans were being prepared, in case the school needed
to be closed for a long period.
Students, "especially those heading into NCEA exams", may need to
taught elsewhere.
"As a precaution, the whole school is being tested to determine if
there is a problem and what the possible extent of it may be,"
Grant said.
The school community would be advised with updates through the
school website, he said.
Kim Shannon, head of education infrastructure at the Ministry of
Education, said testing on night "showed there was some asbestos
present in swabs of dust in both the school hall and the
administration block".
It appeared the asbestos had come from the hall, which was an
older building, she said.
"Asbestos was a widely used building material up until the 1980s.
Handled correctly, asbestos presents no dangers to human health.
We always engage specialist removal experts when any hazardous
material is identified as being present," Shannon said.
"While it is the Board of Trustees' responsibility to maintain
property and ensure the school provides a safe environment for its
students and staff, we are supporting the school to help them get
back up and running."
WorkSafe confirmed it was working with the school.
"WorkSafe is aware of the situation at Kaipara College and is
providing support and advice to the college and the Ministry of
Education," a spokeswoman said.
"The Ministry of Education has experience dealing with asbestos
and has engaged suitably qualified asbestos specialists.
"WorkSafe is confident appropriate steps are being taken to manage
the situation and will monitor progress."
The Ministry of Health's website says asbestos is a health risk
when breathed in as dust. It may scar lung tissue or cause cancer.
ASBESTOS UPDATE: Fla. High Court Reinstates $6.6MM Fibro Verdict
----------------------------------------------------------------
Jessica Dye, writing for Reuters, reported that Florida's highest
court has reinstated a $6.6 million verdict for a man who said he
was sickened by Union Carbide's asbestos, after rebuffing a lower
court's attempt to impose a different standard for strict
liability claims.
In a 5-2 ruling, the Florida Supreme Court rejected the 3rd
District Court of Appeal's application of the risk-utility test to
William Aubin's asbestos lawsuit, saying it should have adhered to
the "consumer expectation" standard recognized by most Florida
appellate courts.
ASBESTOS UPDATE: AM Best Says A&E Losses Drop Sharply in 2014
-------------------------------------------------------------
Incurred losses for U.S. asbestos and environmental (A&E) losses
declined 33% in 2014, driven by a 38% drop in asbestos losses and
a 15% decrease in environmental losses, according to a new A.M.
Best report. Overall, A.M. Best is maintaining its estimate for
net asbestos losses for the U.S. property/casualty (P/C) industry
at $85 billion, with net environmental losses estimated at $42
billion. The Best's Special Report, titled, "Asbestos &
Environmental Losses Drop Sharply in 2014, But Funding Level
Concerns Remain," notes that given the consistent and high level
of paid and incurred losses, this unfunded estimate may be low.
According to the report, the industry has paid out a cumulative
$91.1 billion in combined A&E losses and maintains a reserve of an
additional $27.3 billion to fund future payments of legacy
liabilities. This brings the total funded liability to 93% of A.M.
Best's aggregate of $127 billion of ultimate liabilities.
A.M. Best utilizes a combination of three approaches when
evaluating an insurer's A&E reserve adequacy: historic premium
market share, post-1990 paid loss share (1991-2014) and three-year
survival ratios. Consistent with historical trends, the industry
has continued to pay out more losses than it has incurred (funded)
since 2006, paying out $3.5 billion for A&E claims in 2014, while
incurring $2.1 billion in losses.
Over the last five years, incurred losses have averaged 85% of
paid losses with total A&E reserves decreasing by just 8% over the
same time period. While reserves have not declined by a
significant amount, they have come down in eight of the past nine
years, including a 5% fall in 2014, due to a decrease in the much
larger asbestos reserves.
The industry has incurred $10.7 billion in asbestos losses since
2010 while paying out $12.3 billion. During the same time period,
environmental funding totaled $3.4 billion compared with paid
losses of $4.2 billion. The largest five-year percentage decline
in reserves comes from the environmental side as reserves have
declined 14% to $5.1 billion, while asbestos reserves have
declined nearly 7% over the last five years, to $22.2 billion.
With more than 80% of total industry A&E liabilities composed of
asbestos losses, asbestos continues to be the "main event" when
discussing A&E exposures. A.M. Best continues to monitor issues
related to asbestos litigation and insured exposures with an eye
toward a possible re-visiting of its $85 billion estimate of
ultimate industry losses during 2016.
To access a copy of this report, please visit
http://www3.ambest.com/bestweek/purchase.asp?record_code=243102.
A.M. Best Company is the world's oldest and most authoritative
insurance rating and information source. For more information,
visit www.ambest.com/
Contacts:
A.M. Best Company, Inc.
Gerard Altonji
Assistant Vice President
Tel: 908-439-2200, ext. 5626
Email: gerard.altonji@ambest.com
-- or --
Erik Miller, CFA
Senior Industry Research Analyst -
Credit Rating Criteria -
Research and Analytics
Tel: 908-439-2200, ext. 5187
Email: erik.miller@ambest.com
-- or --
Christopher Sharkey
Manager, Public Relations
Tel: 908-439-2200, ext. 5159
Email: christopher.sharkey@ambest.com
-- or --
Jim Peavy
Assistant Vice President, Public Relations
Tel: 908-439-2200, ext. 5644
Email: james.peavy@ambest.com
ASBESTOS UPDATE: Atty Disputes Status of Fibro Docket in News
-------------------------------------------------------------
Jon Campisi, writing for Legal Newsline, reported that, a national
legal reform group shed more light on an asbestos docket in
Virginia by downgrading Newport News to a "Judicial Hellhole,"
though an asbestos attorney there claims the report is propaganda.
The American Tort Reform Association's annual "Judicial Hellholes"
report highlights what it considers to be the least fair civil
court jurisdictions in the nation, and earlier ATRA moved Newport
News from its "Watch List" to its list of hellholes.
"Despite earlier warnings, Newport News has done nothing to end
its plaintiff-favoring bias in asbestos litigation," ATRA
President Tiger Joyce wrote in an August op-ed.
"In short, asbestos defendants in Newport News are denied
evenhanded justice with an extremely lax causation standard and
evidentiary hurdles that impose frightening double standards
designed to hamstring defense counsel and force quick
settlements."
The legal reform advocacy group points out in its report about
Newport News that asbestos plaintiffs in Virginia enjoy an 85
percent win rate at trial, the highest out of all major asbestos
jurisdictions in the nation.
ATRA claims that figure is not just due to good lawyering and
powerful evidence, but rather can be attributed to legal and
evidentiary rulings that lower the bar for plaintiffs and create
major barriers for asbestos defendants.
Robert Hatten, a plaintiffs attorney who is a major asbestos
player in the jurisdiction, says ATRA's report is without merit,
calling it a self-serving "obvious propaganda piece" put out to
serve special interest groups.
In a lengthy statement provided to Legal Newsline, Hatten takes
issue with the ATRA's report for a number of reasons, and says
that "the fact that they declare the entire state of California to
be Judicial Hellhole should make it hard to take their accusations
seriously.
"In reality, the only Hell Hole in Newport News is in the homes of
hundreds of families whose loved ones are dying or have died from
mesothelioma due to the negligent failure of the asbestos industry
to warn them that breathing asbestos can be fatal -- a fact
industry knew since the 1940s," he said.
According to figures provided by the ATRA, Hatten's law firm filed
a total of 259 asbestos cases in Newport News Circuit Court
between January 2009 and October 2014.
In his statement, Hatten said that an "inconvenient fact" left out
by the ATRA is that all but two defendants in Newport News
asbestos litigation have settled or been voluntarily dismissed
from every mesothelioma case set for trial in the city in the last
decade.
One defendant, John Crane, Inc., has a "no settlement policy"
required by its insurer, Hatten claims.
And Exxon, another defendant, the only other company to try a case
to verdict in Newport News in the past 10 years, won its first
case, and then appealed its second case, winning the appeal, and
subsequently settled with the plaintiff.
"Having repeatedly lost trials under nearly identical facts, big
business is now trying to intimidate the Judges, poison the jury
pool, and create a false impression of the legal climate so that
legislators will pass special bills to protect them," Hatten
claims.
"Ethical lawyers file an appeal, they don't impugn the integrity
of the court or try their case in the press."
In its report, ATRA tackles a number of areas it says contributes
to Newport News' perception as a jurisdiction unfair to
defendants, everything from a skewed causation standard to a
prohibition on "dose reconstruction," which has to do with the
amount of actual asbestos a worker was actually exposed to.
The group also offers a number of recommendations that would help
level the legal playing field in the Virginia city, a major one of
which would be to institute a requirement that plaintiffs file
asbestos bankruptcy trust claims before a case goes to trial in
the civil courts.
Alone, asbestos bankruptcy trust claims transparency laws were
enacted in Texas, West Virginia and Arizona. Similar laws were
earlier enacted in Ohio, Wisconsin and Oklahoma.
Traditionally, individuals alleging asbestos injuries can file
claims against companies that have established trusts in the
bankruptcy system, which is separate from the civil courts system.
The problem, legal reform advocates say, is that there is often an
element of "double dipping," namely due to the fact that there is
little transparency when it comes to who is getting money from the
asbestos trusts.
Congress is currently mulling over a proposed bill dubbed the FACT
Act, which stands for Furthering Asbestos Claim Transparency.
Legislative records show that the proposal was sent to the full
House of Representatives for debate earlier this spring.
A landmark 2014 ruling in Garlock Sealing Technologies' bankruptcy
said plaintiffs attorneys had delayed filing their clients' trust
claims in order to maximize settlements and verdicts in civil
courts.
This led Garlock to file four racketeering lawsuits against five
asbestos firms.
According to the ATRA, data indicates that millions of dollars in
asbestos bankruptcy trust payments have been recovered post-
verdict by Newport News asbestos plaintiffs.
It's not just the bankruptcy issue that irks those at the ATRA
where Newport News is concerned.
It's the fact that things like a lower causation standard and a
prohibition on defendants presenting scientific evidence showing
that lower levels of asbestos exposure may post no significant
health risk to workers seem to unfairly work against defendants.
"Of course, Newport News asbestos defendants can always appeal
their cases to Virginia's Supreme Court -- assuming they're not
forced into bankruptcy first," Joyce wrote in the op-ed.
"But such appeals add to defendants' legal costs, and the problems
of a stacked deck back in Newport News will stubbornly remain in
any case.
ASBESTOS UPDATE: Mesothelioma-Caused Deaths to Rise in Korea
------------------------------------------------------------
Alex Strauss, writing for Surviving Mesothelioma, reported that
asbestos containing products are expected to claim the lives of as
many as 3,400 people from mesothelioma and other asbestos-related
diseases in Korea by 2036.
The predicted mesothelioma deaths are being blamed on building
components or "slates" made of cement and chrysotile asbestos that
were used to construct thousands of homes and buildings in Korea.
Predicting Mesothelioma Mortality from Asbestos Containing
Products
Researchers in architecture and statistics at Kyungpook National
University in Daegu attempted to estimate the number of expected
mesothelioma deaths in the coming years by calculating the amount
of asbestos used in Korea and the amount of asbestos used in
making concrete slates.
They predict that a maximum of 3,476 people could die of
mesothelioma or another asbestos-related disease by 2036. More
than five hundred of those deaths by 2031 will likely be
attributable to asbestos-containing products like concrete.
Mesothelioma Death Rates Expected to Rise Despite Asbestos Ban
Although Korea banned the use and importation of asbestos and
asbestos-containing products in 2009, the new study predicts that
the number of mesothelioma deaths will continue to rise until it
peaks in 2021.
The mineral asbestos, once prized for its strength and resistance
to heat and corrosion, is the only known cause of mesothelioma.
Mesothelioma can be triggered when microscopic shards of asbestos
lodge in the lungs and work their way into the pleural lining.
Over time, the continual irritation and inflammation can trigger
changes on the cellular level that lead to mesothelioma or another
asbestos-related disease.
Responding to Asbestos-Related Disease
Because mesothelioma and other asbestos-related diseases are
almost always caused by lack of proper warning, training or
protection from asbestos, victims of these illnesses are often
entitled to compensation.
Writing in a journal called Science of the Total Environment, the
Korean research team predicts that their findings on the link
between mesothelioma and asbestos-containing products like cement
will have legal and financial repercussions.
"These findings are expected to contribute greatly to the Korean
government's policies related to the compensation for asbestos
victims," writes author Su-Young Kim.
ASBESTOS UPDATE: Ex-British Sugar Worker Dies Due to Mesothelioma
-----------------------------------------------------------------
Sam Russell, writing for Eastern Daily Press, reported that a
former employee of British Sugar died after he was exposed to
asbestos, an inquest heard.
David Wakefield, 72, of Fitton Road, Wiggenhall St Germans, near
King's Lynn, sought medical help in 2014 after his chest felt
tight and he suffered shortness of breath.
He was diagnosed with the industrial disease mesothelioma, lodged
a compensation claim against his former employers and made several
written statements before his death.
The father-of-two, who was employed by British Sugar at King's
Lynn for 36 years, stated he believed he was exposed to asbestos
dust.
He had worked as a sugar boiler, then as a welder and pipe fitter.
"I was exposed to asbestos dust as I would be taking down
asbestos-lagged pipes," said Mr Wakefield, in a written statement
read at Norfolk Coroners Court.
He added that he had been in good health for most of his life
until 2014.
"I can walk on the flat but find it very difficult walking up
inclines," he said in a statement made in May 2014. "I've lost a
stone in weight."
He died at his home address on October 21.
Assistant coroner Johanna Thompson concluded that Mr Wakefield
died of an industrial disease.
ASBESTOS UPDATE: EUR1.5MM Spent to Clean Fibro in Hal-Far Pipes
---------------------------------------------------------------
Tim Diacono, writing for Malta Today, reported that EU funds saved
through the renegotating of a contract for the Coast Road
regeneration will be allocated towards removing asbestos from Hal
Far, providing laptops to teachers, and purchasing apparatus for
MCAST to 'aid in social inclusion'
EUR1.5 million in EU funds are being spent to help remove asbestos
pipes that have lay discarded at Hal-Far for around 30 years.
EU funds parliamentary secretary Ian Borg told Malta Today that
the money will come out of EUR11 million saved by Transport Mata
through the renegotiation of a contract for the Coast Road
regeneration project.
"The government followed the European Commission's advice to carry
out a 25% financial correction from the original contract, and
reallocate the money to educational and environmental programmes
that the government would otherwise have spent public funds on
anyway"
Other than the removal of the asbestos, the money saved will also
be reallocated on purchasing new laptops for teachers, and on
apparatus at MCAST to "aid in social inclusion."
The asbestos pipes have lay discarded at Hal Far for decades and
have previously been used as shelter by irregular immigrants.
Works to remove the 1,500 tonnes of asbestos commenced in August
by waste handling company PT Matic.
The pipes will be packaged and shipped off to Portugal to be
buried in an underground landfill.
An as-yet-unpublished report by the European Court of Auditors
recommended that the government withdraw EUR11 million in funds
for the Coast Road project, because Transport Malta did not
respect public procurement rules.
Borg said that in February 2013, Transport Malta granted a EUR83
million contract to a tenderer for the Coast Road works, despite
it being some EUR30 million more expensive than the original
estimates.
Transport Malta re-entered negotiations with all contractors and a
final EUR53 million contract was finalised in April 2014.
ASBESTOS UPDATE: Weardale Flower Club Cancels Event Due to Fibro
----------------------------------------------------------------
The Norhter Echo reported that DALE flower lovers have been left
disappointed after they had to cancel their biggest event of the
year because of asbestos in their usual venue.
Weardale Flower Club, which has been running for 38 years, has had
to cancel its annual demonstration, usually held in November,
because it has been unable to find a suitable venue.
The event, which attracts up to 200 people from the dale, is
usually held at Wolsingham School. But the hall has had to shut
because of asbestos in the roof.
Club secretary Christine Robinson said: "We've had to cancel it
because they found asbestos in the roof of the school hall and we
just can't find anywhere else which is big enough. We have been
looking and we tried every hall in the area but none of them are
big enough because we need a good stage and good lighting.
"It's a real shame because it's a really good event. We always get
a national demonstrator and we were getting James Burnside, who
was travelling all the way from Ireland. It's always brilliant
because these people are real showmen. They do really beautiful
arrangements and the place looks fabulous at the end.
"We're all disappointed but it was no-one's fault and it should be
for one year only."
Durham County Council confirmed the presence of asbestos. John
Reed, head of technical services, said: "As the safety of staff
and pupils is paramount, it was decided, with the consent of the
school, to close the school hall as a precaution due to a leaking
roof. However, the school remains open as normal.
"As the school is due to move into a new building in April 2016
and the existing school building is to be demolished, it would not
be cost effective to carry out repairs."
The event is held to raise money for local charities, including
Weardale Community Hospital, the Great North Air Ambulance
Service, the women's refuge in Bishop Auckland and first
responders.
Mrs Robinson added: "This is our one and only fundraiser but we
will make every effort to make some donations to local charities,
even if we have to have a coffee morning."
The club meets on the third of every month in Wolsingham Town
Hall.
The next meeting on November 17 will be a practical workshop and
new members are welcome.
ASBESTOS UPDATE: Grandad Seeks Info on Asbestos-related Cancer
--------------------------------------------------------------
Ben Eccleston, writing for Coventry Telegraph, reported that
Robert Chetwynd, from Nuneaton, was diagnosed as suffering from
mesothelioma.
A grandad is appealing to former colleagues to come forward as he
seeks justice for his asbestos-related cancer.
Robert 'Bob' Chetwynd, from Nuneaton, began suffering with
breathlessness in May.
Doctors confirmed a couple of months later that he was suffering
from mesothelioma, a type of lung cancer caused by exposure to
asbestos.
The 67-year-old worked at premises owned by Birmingham City
Council at Cedar House, in William Street, Birmingham, from 1986
to 2006.
He was employed by the council to carry out programming and design
work and, at various times, was also outsourced to various
companies, including Knight Programming Support Limited & IT
Net, who were part of Cadbury Limited.
Cedar House was identified as containing asbestos in the early
1990s when Bob had already been working in that part of the
building for 18 months.
His case has been taken on by specialist industrial illness
lawyers at Irwin Mitchell.
The dad-of-two and grandad-of-two is appealing to his former work
colleagues to come forward with any potential information.
Bob said: "I was a fit man in good health prior to this illness. I
have undergone numerous investigations and treatment since my
symptoms developed, some of which have been very invasive,
including undergoing a biopsy and radiotherapy.
"I have a lot of support from my wife and the family; we are all
extremely frustrated that this could have been avoided if the
correct safety measures were in place.
"I would like to encourage anyone who worked at Cedar House,
William Street, in Birmingham between 1986 and 2006 to get in
touch with any information including employees and contractors who
may have worked in the building over the years."
Hayley Hill, a specialist asbestos lawyer at Irwin Mitchell, who
is representing Mr Chetwynd, said: "We hope to speak to any of
Bob's former colleagues or those who worked as contractors at
Cedar House who may hold vital information about the presence of
asbestos and the working conditions in this building."
ASBESTOS UPDATE: Toxic Dust Alert at Melbourne Primary School
-------------------------------------------------------------
The Age reported that the Environment Protection Authority has
launched an investigation into how fragments of old cement
sheeting containing asbestos ended up in soil used in landscaping
works at a Melbourne primary school.
The EPA inspected Syndal South Primary School in Mount Waverley
and took samples which tested positive to asbestos.
The department of education notified parents.
Visible fragments of the cement sheeting have been removed from
the site and the area remains fenced off to students.
The EPA says the remaining asbestos poses minimal risk if
undisturbed.
ASBESTOS UPDATE: Fibro Found on Former Glencairn Tower Site
-----------------------------------------------------------
Motherwell Times reported that North Lanarkshire Council says
construction work on the former Glencairn Tower site in Motherwell
will continue despite the discovery of asbestos in the ground.
Glencairn Tower was demolished is 2011 to make way for social
housing and work on the GBP2.6 million project to build 25
properties is due for completion.
The council believes the asbestos predates the construction of
Glencairn Tower in 1964 and is adamant the traces are so small
there is no health and safety risk and the work will be completed
on schedule.
Des Murray, the council's Head of Housing Property, said: "During
site investigation work, traces of asbestos were found buried on
the site which pre-dated the construction of Glencairn Tower in
the 1960s.
"This poses no safety risk to the public and we are working with
our specialist contractor to remove all traces of asbestos from
the area.
"In the meantime construction work on the site is still being
progressed."
ASBESTOS UPDATE: Former Smoker Blames Fibro for Cancer
------------------------------------------------------
Robert Hadley, writing for Cook County Record, reported that a
Cook County couple is suing more than two dozen companies,
alleging liability for the husband's asbestos exposure.
Mitchell and Irene Sivertson filed a lawsuit Aug. 31 in Cook
County Circuit Court against Owens-Illinois Inc., Commonwealth
Edison Co., United States Steel Corp., BP Products North America,
BP Corporation North America, BP Chemicals Inc., Amoco Chemical
Co., Amoco Corp., BP America, BP Amoco Chemical Co., BP Amoco
Corp., Union Oil Company of California, Exxon Mobil Corp., A.W.
Chesterton Co., John Crane, Inc., Ingersoll-Rand Co., Gardner
Denver Inc., General Electric Company, ITT Industries Inc.,
Spirax-Sarco Inc., Flowserve U.S. Inc., Foster Wheeler Energy
Corp., CBS Corp., Zurn Industries, Nagel Pumps Inc., FMC Corp. and
Gould Pumps Inc.
According to the complaint, Mitchell Sivertson, a smoker for 23
years, was exposed to asbestos during his work as a pipefitter at
the defendants' locations between 1954 and 2000. Although he was
first diagnosed with lung cancer in 2011, the suit says it was not
until 2013 that doctors linked his cancer to asbestos exposure.
The plaintiffs say the defendants' negligence led to his exposure
and subsequent illness.
The Sivertsons seek more than $50,000 in damages, plus court
costs. They are represented by attorneys Patrick F. Bradley and
James A. Bradley of Northbrook.
Cook County Circuit Court case number 2015-L-008900.
*********
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