/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/151120.mbx C L A S S A C T I O N R E P O R T E R Friday, November 20, 2015, Vol. 17, No. 232 Headlines 20/20 COMMUNICATIONS: Sued Over Failure to Pay Overtime Wages 660 OCEAN: Faces "Castillo" Suit Under Fair Labor Standards Act A.M.T. GROUP: "McNerney" Suit Alleges FLSA and NYLL Violations AAGJ INC: "Juarez" Suit Alleges FLSA and NYLL Violations ALLSTATE INSURANCE: Faces "Enger" Suit Over Cal. Home Insurance APPLE INC: Obtains Favorable Ruling in Bag Check Class Action ARYANNI LLC: "Lampley" Suit Seeks to Recover Overtime Wages BILL COSBY: New Hampshire Woman Files Defamation Suit BILOXI, MS: Faces Suit Over 14th Amendment Violation BLACK DIAMOND PROPERTIES: Order Awarding Attorney's Fees Reversed BULLDOG CONNECTION: "Jaso" Case Wins Conditional Certification BUMBLE BEE FOODS: "Ruiz" Suit Alleges Antitrust Violations C&J ENERGY: Faces "Benson" Suit Under Fair Labor Standards Act CBE GROUP: Faces "Szumilas" Suit in Cal. Over Automated Calls CITIMORTGAGE INC: Settlement in "Cowit" Has Final Approval CREDIT CONTROL: Illegally Collects Debt, "Mednick" Suit Claims DAN & GLENN: Faces "Rangel-Bustos" Suit Over Failure to Pay OT DODGE, KS: Faces "Martinez" Suit Over Due Process Violation DRAFTKINGS INC: NY AG Schneiderman Seeks Preliminary Injunction ECOSERV LLC: Doesn't Properly Pay Employees, "Berry" Suit Claims EQUITRUST LIFE: Summary Adjudication Order Affirmed EXPERIAN INFORMATION: Faces "Yoo" Suit for Data Security Breach FACEBOOK INC: Faces "Roche" Suit Over Alleged Text Spamming FANDUEL INC: Violates Consumer Protection Laws, Says "Moton" Suit FANDUEL INC: "Berg" Suit Alleges Consumer Protection Law Breach FANDUEL INC: NY AG Schneiderman Seeks Preliminary Injunction FEDEX CORP: Court Grants Attorneys' Fees & Costs in "Huhmann" FLOWERS FOODS: Faces Suit Over FLSA Violations FRANK M. JODZIO: Faces "Smith" Suit Over Loan Modification Fees GENERAL MOTORS: Plaintiffs Lawyers Seek "War Room" Details GOOGLE INC: Privacy Claims in Cookie Class Action Revived GORGEOUS LANDSCAPES: Rodriguez Suit Seeks to Recover Unpaid OT GROUP HEALTH: Sued Over Neurodevelopmental Services Plan Coverage HITACHI AUTOMOTIVE: May 4 Settlement Approval Hearing Set HOMEAWAY INC: Faces "Bonnema" Suit Over Theft of Customer Info HOMELAND SECURITY: "Brown" Suit Seeks to Recover Unpaid Overtime HOSPITAL CORP: Settles Securities Class Action for $215 Million IOVATE HEALTH: "Kline" Suit Alleges CLRA Violations J&Y CAFETERIA: Faces "Nunez" Suit Under Fair Labor Standards Act JANSSEN PHARMACEUTICALS: More Risperdal Trials Underway JANSSEN PHARMACEUTICALS: Seeks Consolidation of Xarelto Case JP MORGAN: Three Charged in Massive 2014 Computer Hacking KANSAS CITY ROYALS: Minor League Players Get Class Certification KAYNE ANDERSON: Order Denying Motion to Strike Affirmed KOHLER CO: Faces "Davis" Suit for Alleged FLSA Violation LG CHEM: Protective Order Modified in Antitrust Suit by Microsoft MARKWINS INTERNATIONAL: Sued in Cal. Over Failure to Pay OT MIDLAND CREDIT: Illegally Collect Debt, "Fekete" Suit Claims MUDTECH SERVICES: Faces "Richard" Suit Over Failure to Pay OT NATIONSTAR MORTGAGE: "Huffman" Suit Alleges TCPA Violation NBTY INC: Faces "Muir" Suit in Ill. Over Product Misbranding NEW BLISS: "Li" Suit Seeks to Recover Unpaid Minimum Wages NOBILIS HEALTH: "Hall" Suit Alleges Federal Securities Violations NOVARTIS PHARMACEUTICALS: Sued Over Generic Gleevac Drugs Delay NOVARTIS PHARMACEUTICALS: Sued Over Generic Gleevac Drugs Delay PACKERLAND WHEY: "Drevenchuk" Suit Alleges FLSA Violation PANERA LLC: Sued in E.D. Cal. Over Failure to Pay Minimum Wages PANERA LLC: Sued in E.D. Cal. Over Failure to Pay Minimum Wages PREMIERE MUSIC: Doesn't Properly Pay Workers, "Shah" Suit Claims PURE RESTAURANT: Faces "Ramirez" Suit Over FLSA Violations RES-CARE INC: "Tankam" Suit Seeks to Recover Unpaid Overtime RESCUE RANGERS: Faces "Vaughn" Suit for Alleged FLSA Violation SEBERT LANDSCAPING: Faces "Perez" Suit Under FLSA, Ill. Wage Law SKYWEST AIRLINES: Faces "Russell" Suit in Calif. Sup. Ct. SPEED SOLUTION: Faces "Carcamo" Suit for Labor Code Violation STARWOOD HOTELS: Faces "Serritiello" Suit Over Failure to Pay OT TALLADEGA INTERNATIONAL: "Miller" Suit Seeks to Recover Overtime TECO ENERGY: Faces "Kanarick" Suit Over Merger with Emera TMCD CORPORATION: Fails to Pay Employees OT, "McIntire" Suit Says TRUE LEAF FARMS: Must Defend Against "Gomez" Suit in N.D. Cal. TRUMP HOTEL: Denies Multiple Data Breach Allegations TYSON FOODS: Supreme Court Hears Arguments in Class Action UBER TECHNOLOGIES: Judge Chen to Look Into Arbitration Ruling UNITED STATES: Animal Rights Group Sues DA Over Foie Gras Label UNLIMITED RESTORATION: Faces "Beck" Suit for FLSA Violation VILLAGE OF PALATINE: "Murphy" Files Privacy Suit in Ill. VOLKSWAGEN GROUP: "Herrell" Suit Alleges Common Law Fraud VOLKSWAGEN GROUP: "Rosales" Suit Alleges Common Law Fraud VOLKSWAGEN GROUP: Faces "Jassem" Suit Over Defeat Devices VOLKSWAGEN GROUP: Faces "Santos" Suit Over "CleanDiesel" Vehicles * Worker Misclassification Problem Prevails Asbestos Litigation ASBESTOS UPDATE: Water Corp. Workers Exposed to Deadly Fibro ASBESTOS UPDATE: Nevada Health Agency Downplays Fibro Concerns ASBESTOS UPDATE: Govt Agency to Remove Fibro from Sydney Dumpsite ASBESTOS UPDATE: Silver Schemes Legal Fees from Fibro Victims ASBESTOS UPDATE: Broadlea Pupils Sent Home Due to Fibro Exposure ASBESTOS UPDATE: Liverpool Staff Exposed to Fibro Contamination ASBESTOS UPDATE: Concordia Won't Retract Fibro Report ASBESTOS UPDATE: Gateway Arch Museum Project Stopped Due to Fibro ASBESTOS UPDATE: School Fire Responders May be Exposed to Fibro ASBESTOS UPDATE: Contractor to Clean Fibro in Victoria School ASBESTOS UPDATE: Sri Lanka Fibro Industry Cries Foul Over Ban ASBESTOS UPDATE: Fibro Defendant Limited in Ways to Fight Suits ASBESTOS UPDATE: Man Fined for Illegal Dumping on Fibro Waste ASBESTOS UPDATE: Jungle 2 Camp Littered with Fibro Waste ASBESTOS UPDATE: Family Says Silver Cheated Them on Fibro Deal ASBESTOS UPDATE: Louisiana Court Remands Fibro Suit ASBESTOS UPDATE: DEP Fines Fitchburg Properties Over Fibro ASBESTOS UPDATE: Scores of Lisbon Bldgs Cleared of Fibro by 2017 ASBESTOS UPDATE: Damages Claim of Fibro Victim's Family Dismissed ASBESTOS UPDATE: 5th Cir. Says Ramsay Liable for Medical Expenses ASBESTOS UPDATE: $14 Million Awarded in Fibro Death Case ASBESTOS UPDATE: Cinema Owner Violates Fibro Laws ASBESTOS UPDATE: Rotherham Fly Tipper Fined for Fibro Dumping ASBESTOS UPDATE: Fibro Found in Older Marble Pools ASBESTOS UPDATE: Former Steelworker Dies of Fibro-related Disease ASBESTOS UPDATE: Appeals Court Upholds Dismissal of Mal Suit ASBESTOS UPDATE: Shipbuilders' Bid to Avoid Fibro Claims Denied ASBESTOS UPDATE: NY Court Clarifies Fibro Doc Production Order ASBESTOS UPDATE: Trial Set in Fibro Death Suits Against 3M ASBESTOS UPDATE: Law Firm Files RICO Counterclaim vs. Garlock ASBESTOS UPDATE: MetLife Had 2,022 New Claims at June 30 ********* 20/20 COMMUNICATIONS: Sued Over Failure to Pay Overtime Wages ------------------------------------------------------------- Charlie Smith, on behalf of himself and those similarly situated v. 20/20 Communications, Inc., Case No. 2:15-cv-00687-UA-CM (M.D. Fla., November 3, 2015) is brought against the Defendant for failure to pay overtime wages in violation of the Fair Labor Standard Act. 20/20 Communications, Inc. provides video production, video editing, duplication, and commercial photography services for corporate and industrial clients. The Plaintiff is represented by: Andrew Ross Frisch, Esq. MORGAN & MORGAN 12800 University Drive, Suite 600 Fort Myers, FL 33907 Telephone: (239) 433-6880 660 OCEAN: Faces "Castillo" Suit Under Fair Labor Standards Act --------------------------------------------------------------- Ernesto Castillo, and all others similarly situated under 29 U.S.C. 216(b), v. 660 Ocean Drive, LLC d/b/a ON Ocean 7 Cafe, Stefano Frittella, Case No. 1:15-cv-24106-MGC (S.D.Fla., Nov. 2, 2015), alleges overtime and minimum wage violations under the Fair Labor Standards Act. The Plaintiff is represented by: J.H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Phone: (305) 865-6766 Fax: (305) 865-7167 E-mail: ZABOGADO@AOL.COM A.M.T. GROUP: "McNerney" Suit Alleges FLSA and NYLL Violations -------------------------------------------------------------- Shane McNerney, and all others similarly-situated v. A.M.T. Group, Inc., Case No. 1:15-cv-01260 (N.D.N.Y., October 21, 2015), seeks to recover damages, unpaid wages, injunctive and declaratory relief pursuant to the Fair Labor Standards Act and the New York Labor Law. The Defendants provide banquet servers, bussers, expediters/runners and restaurant servers at Blu Stone Bistro, in Albany, New York. The Plaintiff is represented by: J. Nelson Thomas, Esq. THOMAS & SOLOMON LLP 693 East Avenue Rochester, NY 14607 Tel: (585) 272-0540 E-mail: nthomas@theemploymentattorneys.com AAGJ INC: "Juarez" Suit Alleges FLSA and NYLL Violations -------------------------------------------------------- Leonel Juarez, Salvador Martinez, Maximo Martinez Lopez, Gerzon Alonso Colalco and Bernardino Vargas, and all others similarly- situated v. AAGJ, Inc. dba Joya Restaurant, RayRay Thai, Inc. dba National Thai Kitchen, Rosko Holdings, Inc. dba Song Thai Restaurant, Andrew Jerro and Ariel Aparicio, Case No. 2:15-cv- 06050 (E.D.N.Y., October 21, 2015), seek to recover unpaid minimum wage and overtime premium pay pursuant to the Fair Labor Standards Act and the New York Labor Law. The Defendants own and operate three Thai restaurants in various neighborhoods in Brooklyn, New York. The Plaintiffs are represented by: Brent E. Pelton, Esq. PELTON & ASSOCIATES PC 111 Broadway, Suite 1503 New York, NY 10006 Tel: (212) 385-9700 E-mail: pelton@peltonlaw.com ALLSTATE INSURANCE: Faces "Enger" Suit Over Cal. Home Insurance --------------------------------------------------------- Linda Enger, an individual on behalf of herself and a class of similarly situated persons, v. Allstate Insurance Company, an Illinois Corporation, and Allstate Property And Casualty Company, an Illinois Corporation, Lauragallagher, Deanne Lashbrook, Warren Wood, and Does 1- 10, Case No. ClV536091 (Cal. Super., County of San Mateo, Nov. 2, 2015), was filed on behalf of a purported Class of All California residents insured under an Allstate home owners insurance policy who received a first party settlement, or offer for settlement, or an appraisal of a personal property claim containing personal property paid on an Actual Cash Value basis for less than the applicable policy limits between November 3, 2011 and the time of trial of this action. The Allstate Corporation is a holding company for Allstate Insurance Company. The Plaintiff is represented by: C. Brooks Cutter, Esq., John R. Parker Jr., Esq. KERSHAW, CUTTER & RATINOFF, LLP 401 Watt Avenue Sacramento, CA 95864 Phone: (916) 448- 9800 Fax: (916) 669- 4499 - and - Robert A. Buccola, Esq. Steven:M. Campora Esq. DREYER BABICH BUCCOLA CALLAHAM & WOOD, LLP 20 Bicentennial Circle Sacramento, CA 95826 Phone: (916) 379- 3500 Fax: (916) 379-3599 APPLE INC: Obtains Favorable Ruling in Bag Check Class Action ------------------------------------------------------------- Marisa Kendall, writing for The Recorder, reports that Apple Inc. bagged a victory Saturday against a class of retail employees who sought pay for time spent waiting in line for security screenings. Two years after workers sued over the off-the-clock searches, U.S. District Judge William Alsup of the Northern District of California granted Apple's motion for summary judgment, finding employees chose to submit to the anti-theft screenings by opting to bring bags and personal Apple products to work. "Our plaintiffs could all freely choose not to bring bags to work, thereby avoiding Apple's restrictions during exit searches," Judge Alsup wrote. "That free choice is fatal to their claims." Judge Alsup found the free-choice element doomed plaintiffs' claims in Frlekin v. Apple, 13-3451, even though the employees were subject to Apple's control while waiting for and undergoing the bag checks. Prior cases "plainly demonstrate" that bag checks must be mandatory as well as controlled by the employer to be compensable, Judge Alsup ruled, though he acknowledged there's no decision exactly on point. Instead, he relied heavily on decisions from the California Supreme Court and federal appeals courts involving employer-provided transportation. The ruling is a win for Apple lawyers at Littler Mendelson, led by shareholder Julie Dunne. Plaintiffs, represented by McLaughlin & Stern partner Lee Shalov, had argued Judge Alsup should look at employee choice as just one aspect of a five-factor test to determine whether an activity should be compensated. Judge Alsup rejected the proposed test, finding it hadn't been adopted in any prior decisions. Mr. Shalov also argued that Apple's logic would allow it to impose other extra work duties on employees as a consequence of their choices. For instance, Mr. Shalov offered at a Nov. 4 hearing, Apple might require employees to clean the bathroom without pay if they elected to wear red hats to work. But Judge Alsup found whereas cleaning the bathroom is work, and therefore is compensable, waiting in a security line is not. "Here, Apple's searches had no relationship to plaintiffs' job responsibilities; they were peripheral activities relating to Apple's theft policies," Judge Alsup wrote. "Moreover, the plaintiffs themselves did not conduct the searches, our plaintiffs passively awaited as their managers or security guards conducted the searches." Judge Alsup drew on last year's U.S. Supreme Court decision in Integrity Staffing Solutions v. Busk, which held that employees were not entitled to compensation for time spent in security screenings because the screenings were not "integral and indispensable" parts of the job. Plaintiffs were forced to abandon claims under the Federal Labor Standards Act and similar state laws after Busk but proceeded with a case under California state law. To facilitate class certification earlier this year, plaintiffs agreed to assume that class members who brought bags did so voluntarily and purely for personal convenience. Workers who required bags for special circumstances, for instance to carry prescription medicine, were permitted to opt out and pursue individual claims. However, none did so. With the question limited to personal convenience, Alsup sided with Apple. "There is no dispute as to the genuine nature of our plaintiffs' freedom to choose to avoid searches," Judge Alsup wrote. "It is undisputed that some employees did not bring bags to work and thereby did not have to be searched when they left the store." ARYANNI LLC: "Lampley" Suit Seeks to Recover Overtime Wages ----------------------------------------------------------- Sharonda Lampley, and all others similarly-situated v. Aryanni LLC dba Subway, Jili LLC and Ilish H. Patel, Case No. 1:15-cv-09332 (N.D. Ill., October 21, 2015), seek to recover overtime compensation and other relief under the Fair Labor Standards Act, Illinois Minimum Wage Law, the Illinois Wage Payment and Collection Act and the Chicago Ordinance of Minimum Wage. Defendant Aryaani LLC dba Subway is an Illinois limited liability company with its headquarters at 939 North Plum Grove Road, Suite A, Schaumburg, Illinois. Aryanni is a Subway franchisee which operates a Subway store at 5215 West Chicago Avenue, Chicago, Illinois. Defendant Jili LLC is an Illinois limited liability company with its headquarters at 939 North Plum Grove Road, Suite A, Schaumburg, Illinois. Jili LLC is a Subway franchisee which operates a Subway store at 5973 West Madison Street, Chicago, Illinois. Ilesh H. Patel owns Aryaani and Jili. The Plaintiff is represented by: David Fish, Esq. THE FISH LAW FIRM, P.C. 200 E. 5th Avenue, Suite 123 Naperville, IL 60565 Tel: (630) 355-7590 E-mail: dfish@fishlawfirm.com BILL COSBY: New Hampshire Woman Files Defamation Suit ----------------------------------------------------- Philip Marcelo, writing for The Associated Press, reports that a New Hampshire woman, Kristina Ruehli, on Nov. 9 filed a federal lawsuit saying Bill Cosby falsely accused her of lying when she came forward last year and said he raped her in 1965. "In making the false and defamatory statements, Mr. Cosby held Ms. Ruehli up to public scorn and ridicule, injured her good name and reputation and caused her severe emotional distress," her lawyers say in the complaint, filed in federal court in Springfield, near where Mr. Cosby has a home. The lawsuit, which seeks unspecified damages, follows similar civil actions by other Mr. Cosby accusers in California and Massachusetts, including another one in Springfield federal court. Like Ms. Ruehli, three other women -- Tamara Green, Therese Serignese and Linda Traitz -- say Mr. Cosby drugged them before having unwanted sexual contact with them. Mr. Cosby's lawyers asked a federal judge to dismiss the three women's case before it goes to trial, but the judge denied that request last month. The Associated Press generally doesn't identify people who say they're victims of sexual abuse, but the women have come forward to tell their stories. The women are among dozens who in recent years have accused Mr. Cosby of sexual impropriety spanning decades. Mr. Cosby, who played Dr. Cliff Huxtable on "The Cosby Show" from 1984 to 1992 and has been married for decades, has denied the women's accusations and has not been criminally charged. The statute of limitations has expired in most of the cases against him. His spokesman Andrew Wyatt had no comment on Nov. 9. Ms. Ruehli, who lives in Windham, near the Massachusetts state line, says in her lawsuit that she met Cosby while working as a secretary at a Los Angeles talent agency, Artists Agency Corp., when she was 22 years old. She says Mr. Cosby invited her and others to a party at his home but when she arrived there were few people there, his wife was out of town and a baby was asleep in a bedroom. Ms. Ruehli, who was named Donna Czapla at the time, says she took two drinks from Mr. Cosby and passed out, only to wake up naked and in Mr. Cosby's bed. She says Cosby was trying to force her to give him oral sex. She says she left the house after becoming nauseous and throwing up several times and she never saw or spoke to Mr. Cosby afterward. Ms. Ruehli told her story to Philadelphia magazine in November 2014. In her lawsuit, she says Mr. Cosby's then-lawyer responded to the accusation by issuing a "false and defamatory statement" in which he called her and Mr. Cosby's other accusers liars. Ms. Ruehli's lawyers did not immediately respond to requests for comment. BILOXI, MS: Faces Suit Over 14th Amendment Violation ---------------------------------------------------- Qumotria Kennedy, Richard Tillery, Joseph Anderson, and all others similarly-situated v. The City of Biloxi, Mississippi, John Miller, Judge James Steele, and Judicial Correction Services, Inc., Case No. 1:15-cv-00348 (S.D. Miss., October 21, 2015), seeks declaratory and injunctive relief for Defendants' violation of the due process and equal protection clauses of the Fourteenth Amendment of the U.S. Constitution. The City of Biloxi, Mississippi is a municipal governmental entity. Defendant John Miller is the chief of the Biloxi Police Department. Defendant Judge James Steele is a part-time judge of the Biloxi Municipal Court. Defendant Judicial Correction Services, Inc. provides misdemeanor probation services. The Plaintiffs are represented by: Charles Irvin, Esq. AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MISSISSIPPI 233 East Capitol Street Jackson, MI 39201 Tel: (601) 354-3408 Fax: (601) 355-6465 E-mail: cirvin@aclu-ms.org - and - Pieter Teeuwissen, Esq. SIMON & TEEUWISSEN PLLC 621 East Northside Drive Jackson, MI 39206 Tel: (601) 366-2292 Fax: (601) 362-8444 E-mail: pteeuwissen@bellsouth.net BLACK DIAMOND PROPERTIES: Order Awarding Attorney's Fees Reversed ----------------------------------------------------------------- Justice James A. Edwards of the District Court of Appeal of Florida, Fifth District, reversed an order awarding attorney's fees and costs to Defendants in the case captioned CHARLES S. HAINES, ET. AL, Appellants, v. BLACK DIAMOND PROPERTIES, INC., ET. AL., Appellees, Case Nos. 5D13-4417 AND, 14-1619, (Fla. App. Ct.) Plaintiffs Charles S. Haines, Kathy Haines, Richard Conboy, Jackson Randolph, Larry Laukka, Angelo Masut, Brenda Masut, and Tom Howell lodged the appeal. The Defendants are Black Diamond Properties, Inc., Black Diamond Realty, Inc., and Stanley Olsen. In siding with the Plaintiffs, the Court of Appeal said the ruling is reversed because Defendants' motions were not timely filed. The Appeals Court said the trial court erred in ordering the return of a cash supersedeas bond to Defendants because all Plaintiffs obtained money judgments, which were affirmed on appeal, against Defendant Stanley Olsen. In 2003, several of the Plaintiffs filed suit against the Black Diamond Defendants alleging false and misleading advertising in violation of section 817.41, Florida Statutes (2003), and for deceptive and unfair trade practices (FDUTPA) pursuant to chapter 501, Florida Statutes (2003), all of which concerned the sale of certain golf memberships purchased by Plaintiffs. Both statutory actions permit an award of attorney's fees and costs to prevailing parties. In the early stages of the proceedings, the case was being pursued and had been certified as a class action. Defendants appealed and the Fifth District Court of Appeal reversed the class certification, finding that significant individual issues predominated over common issues, given that each plaintiff would have to testify to establish individual contracts, misrepresentations and damages. By mid-2004, the remaining Plaintiffs had joined the lawsuit. At the end of 2007, Plaintiffs added the individual defendant, Olsen, to the suit and amended their complaint to include common law claims sounding in constructive fraud and breach of fiduciary duty against Defendants. The case proceeded to trial in December 2009. Because each Plaintiff's claims were distinct, a separate verdict form was used for each individual Plaintiff and for each of the married Plaintiffs, i.e., the Masuts and the Haines. The jury returned verdicts in favor of Plaintiffs Masuts, Haines, Conboy, and Howell on the misleading advertisement claims under section 817.41, against all Defendants. Additionally, the jury returned verdicts in favor of all Plaintiffs against Defendant Olsen, only, for breach of fiduciary duties and constructive fraud. Following trial, all Plaintiffs, except for Laukka and Randolph, moved for and were awarded attorney's fees as prevailing parties under section 817.41(6). A copy of Judge Edwards' Opinion dated October 23, 2015, is available at http://bit.ly/1KFqSJ8from Leagle.com. Steve A. Rothenburg and John C. Bell, Jr., Esq. -- john@bellbrigham.com -- of Bell & Brigham serve as counsel for Appellants Jack J. Aiello, Esq. -- jaiello@gunster.com -- and Edward A. Marod, Esq. -- emarod@gunster.com -- of Gunster, Yoakley & Stewart, P.A. serve as counsel for Appellees BULLDOG CONNECTION: "Jaso" Case Wins Conditional Certification -------------------------------------------------------------- Senior District Judge Hilda Tagle granted in part and denied in part the Plaintiffs' motion for conditional certification in the case captioned UAN JASO, JR., et al, Plaintiffs, v. BULLDOG CONNECTION SPECIALISTS LLC, Defendant, Civil No. 2:15-CV-269, (S.D. Tex.) From approximately January 2014 through June 2015, Jaso, Jr., worked for Bulldog, an oilfield services company, as a Thread Representative. Bulldog "provides its clients with connection solutions and employs Thread Representatives . . . to ensure certain pipe and casing connects properly while working at a well site/drilling location." The complaint describes Thread Representatives as "blue collar" workers who do not have management responsibilities. Bulldog disputes that characterization and denies those allegations. Bulldog paid, and pays, Jaso and Thread Representatives a salary plus a nondiscretionary bonus for hours worked at a job site. Plaintiffs aver that Bulldog used a "predetermined formula" with "specific criteria" to decide whether an employee receives a job bonus. As such, Plaintiffs claim that the job bonuses should have been included in the computation of their hourly pay rate before applying applicable overtime multipliers, but they were instead not paid for more than forty hours per week, even though they worked longer hours. Specifically, Plaintiff and the Potential Class Members regularly worked (and continue to work) more than 12 hours in a day, and more than 80 hours in a week."). Jaso filed his complaint on June 16, 2015. On July 7, 2015, two additional alleged Thread Representatives who work for Bulldog opted in as plaintiffs. Bulldog has answered the complaint and an additional individual, Larry Richardson, filed an opt-in notice on September 8, 2015, after the pending motion to certify was filed. A copy of Judge Tagle's Memorandum and Order dated October 15, 2015, is available at http://is.gd/qy3Djxfrom Leagle.com. William Clifton Alexander, Esq., and Austin W Anderson, Esq., of Phipps Anderson Deacon LLP; Craig M Sico, Esq. of Sico, White, Hoelscher, Harris & Braugh, LLP; and Timothy Dean Raub, Esq. of Raub Law Firm PC serve as counsel for Plaintiff Juan Jaso, Jr., Individually and on behalf of all others similarly situated Keith B Sieczkowski, Esq. -- ksieczkowski@branscombpc.com -- and Heather Marie Woods, Esq. of Branscomb, PC serve as counsel for Defendant Bulldog Connection Specialists LLC BUMBLE BEE FOODS: "Ruiz" Suit Alleges Antitrust Violations ---------------------------------------------------------- Raymon Ruiz, and all others similarly-situated v. Bumble Bee Foods LLC, StarKist Company, Tri-Union Seafoods LLC, and King Oscar, Inc., Case No. 3:15-cv-02379 (S.D. Calif., October 21, 2015), is brought against the Defendants for alleged conspiracy to raise, fix, stabilize or maintain prices as well as allocate customers, and restrict capacity within the market for the sale of packaged seafood products (PSPs) in violation of the Sherman Act, the Clayton Act, and state antitrust and unfair competition law. The Defendants are the three largest domestic manufacturers of packaged seafood products. Bumble Bee Foods LLC is a domestic limited liability company with its principal place of business located at 9655 Granite Ridge Drive, Suite 100, San Diego, CA 92123. Bumble Bee produces and sells PSPs throughout the United States, its territories and the District of Columbia. Bumble Bee is privately owned by Lion Capital LLP, based in the United Kingdom. StarKist Company is a domestic corporation with its headquarters at 225 North Shore Drive, Suite 400, Pittsburgh, PA 15212. StarKist produces and sells PSPs throughout the United States, its territories and the District of Columbia. StarKist is privately owned by Dongwon Industries, based in South Korea. Tri-Union Seafoods LLC, dba Chicken of the Sea International, is a domestic limited liability company with its principal place of business located at 9330 Scranton Road, San Diego, CA 92121. Tri- Union Seafoods LLC produces and sells PSPs throughout the United States, its territories and the District of Columbia. Unless otherwise indicated, Tri-Union Seafoods LLC will be referred to herein as "CoS." CoS is owned by Thai Union Frozen Products ("TUF"), a company based in Thailand. King Oscar, Inc. is a domestic corporation with its principal place of business at 3838 Camino Del Rio North, Suite 115, San Diego, California 92108. King Oscar produces and sells packaged seafood products throughout the United States, its territories and the District of Columbia. CoS and King Oscar are wholly owned by Thai Union Frozen Products, a public company headquartered in Thailand. The Plaintiff is represented by: Dennis Stewart, Esq. HULETT HARPER STEWART LLP 550 West C Street, Suite 1500 San Diego, CA 92101 Tel: (619) 338-1133 Fax: (619) 338-1139 E-mail: dennis@hulettharper.com - and - Richard B. Brualdi, Esq. THE BRUALDI LAW FIRM, P.C. 29 Broadway, Suite 2400 New York, NY 10006 Tel: (212) 952-0602 Fax: (212) 952-0608 C&J ENERGY: Faces "Benson" Suit Under Fair Labor Standards Act -------------------------------------------------------------- Richard Benson, individually and on behalf of all others similarly situated v. C&J Energy Services, Inc., Case No. 2:15-cv-00455 (S.D.Tex., Nov. 2, 2015), seeks to recover all back wages, liquidated damages, attorney fees, and costs under the Fair Labor Standards Act. C&J is a global company providing fracturing, coil tubing, wireline, pipe recovery, perforating, pressure pumping, and wellsite make-up and pressure testing services to the oil and gas industry. The Plaintiff is represented by: Michael A. Josephson, Esq. Jessica M. Bresler, Esq. Andrew Dunlap, Esq. Lindsay R. Itkin, Esq. FIBICH, LEEBRON, COPELAND, BRIGGS & JOSEPHSON 1150 Bissonnet Houston, TX 77005 Phone: 713-751-0025 Fax: 713-751-0030 E-mail: mjosephson@fibichlaw.com jbresler@fibichlaw.com adunlap@fibichlaw.com litkin@fibichlaw.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH, PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Phone: 713-877-8788 Fax: 713-877-8065 E-mail: rburch@brucknerburch.com CBE GROUP: Faces "Szumilas" Suit in Cal. Over Automated Calls ------------------------------------------------------------- Bogdan Szumilas, on behalf of himself and all others similarly situated v. The CBE Group Incorporated, Case No. 2:15-cv-08595-AB- GJS (C.D. Cal., November 3, 2015) is brought against the Defendant for negligently, knowingly, and willfully contacting Plaintiff and class members on their cellular telephones via an automatic telephone dialing system, without their prior express consent. The CBE Group Incorporated specializes in debt-collection services on behalf of third party creditors including businesses in the communications, financial, utility, education, and healthcare industries, and prides itself on outsourced call center solutions. The Plaintiff is represented by: L. Timothy Fisher, Esq. Annick M. Persinger, Esq. Yeremey O. Krivoshey, Esq. BURSOR & FISHER, P.A. 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-mail: ltfisher@bursor.com apersinger@bursor.com ykrivoshey@bursor.com CITIMORTGAGE INC: Settlement in "Cowit" Has Final Approval ---------------------------------------------------------- District Judge Timothy S. Black approved the Settlement Agreement and Release in the case captioned RAIG COWIT, et al., Plaintiffs, v. CITIMORTGAGE, INC., Defendant, Civil Action No. 1:12-CV-869, (S.D. Ohio) Craig Cowit, Ina N. Littrell and Ray Dickey, and Defendant CitiMortgage, Inc. entered into the Settlement Agreement and Release dated June 19, 2015. In his Order and Judgment dated October 21, 2015 available at http://is.gd/LSoVDTfrom Leagle.com, Judge Black approved the payment of Representative Plaintiff Awards in the following amounts: $20,000 for Cowit; and $10,000 for Littrell and $10,000 for Dickey (Litteral's spouse). The Court also approved an award to Class Counsel in the amount of $1,325,000.00 covering all of Class Counsel's reasonable fees, costs and expenses pursuant to Fed. R. Civ. P. 23(h). The Court overruled the single objection filed by Justin D. Hively because it lacks merit. The Settlement, the Court held, provides substantial benefits to the members of the Class. The Settlement requires one of the largest financial institutions in the country to improve and standardize the way it handles and accounts for Court Costs and Refunded Costs to ensure that Court Costs charged to borrowers in connection with foreclosure actions in Ohio and subsequently refunded in whole or in part to Defendant, as well as its agents and/or attorneys, are accurately and timely refunded to borrowers. Thus the objection that the Class could have obtained the same benefits had the lawsuit never been filed is wholly inaccurate. Moreover, the Settlement preserves the right of any member of the class to pursue an action for money damages. In addition, the Court ruled that Hively is not a Settlement Class Member under Fed. R. Civ. P. 23 (e)(5) because he does not fall within the class definition and therefore does not have standing to object to the Settlement, which is a further basis for overruling the objection. Colleen Marie Hegge, Esq. -- chegge@statmanharris.com -- Jeffrey Phillip Harris, Esq. -- jharris@statmanharris.com -- and Sylvie Derrien, Esq. of Statman, Harris and Eyrich LLC serve as counsel for Plaintiff Craig Cowit Kara Ann Czanik, Esq. of Graydon, Head and Ritchey, LLP; Debra Lee Bogo-Ernst, Esq. -- dernst@mayerbrown.com -- Joseph Snapper, Esq. -- jsnapper@mayerbrown.com -- Lucia Nale, Esq. -- lnale@mayerbrown.com -- and Thomas Panoff, Esq. -- tpanoff@mayerbrown.com -- of Mayer Brown LLP serve as counsel for Defendant CitiMortgage, Inc. CREDIT CONTROL: Illegally Collects Debt, "Mednick" Suit Claims -------------------------------------------------------------- Meira Mednick, on behalf of herself and all other similarly situated consumers v. Credit Control Services, Inc. d/b/a Credit Collection Services, Case No. 1:15-cv-06302 (E.D.N.Y., November 4, 2015) seeks redress for the illegal practices of the Defendant concerning the collection of debts, in violation of the Fair Debt Collection Practices Act Credit Control Services, Inc. is regularly engaged, for profit, in the collection of debts allegedly owed by consumers. The Plaintiff is represented by: Adam J. Fishbein, Esq. ADAM J. FISHBEIN, P.C. 483 Chestnut Street Cedarhurst, New York 11516 Telephone (516) 791-4400 Facsimile (516) 791-4411 DAN & GLENN: Faces "Rangel-Bustos" Suit Over Failure to Pay OT -------------------------------------------------------------- Cesar Rangel-Bustos and Sara Karina Ramos v. Dan & Glenn Investments, Inc. d/b/a Chios Peruvian Grill, Glenn O. Ramirez, Does 1 through 100, inclusive, Case No. BC598177 (Cal. Super. Ct., November 3, 2015) is brought against the Defendants for failure to pay overtime wages in violation of the California Labor Code. The Defendants own and operate a restaurant and eatery in Los Angeles, California. The Plaintiff is represented by: Jack D. Josephson, Esq. LAW OFFICES OF JACK D. JOSEPHSON, APC 3580 Wilshire Boulevard, Suite 1260 Los Angeles, CA 90010 Telephone: (213)738-5225 DODGE, KS: Faces "Martinez" Suit Over Due Process Violation ----------------------------------------------------------- Lawrence J. Martinez, and all others similarly-situated v. The City of Dodge City, and Ford County, Case No. 2:15-cv-09344 (D. Kans., October 21, 2015), seeks declaratory, injunctive, and compensatory relief against the Defendant for alleged violation of the due process and equal protection clauses of the constitution. Defendant City of Dodge City is a municipal corporation organized under the laws of the State of Kansas. The City operates the Dodge City Police Department and the Dodge City Municipal Court. Defendant Ford County operates the Ford County Jail. It instructs indigent arrestees such as Plaintiff that they must remain in jail unless they can pay the generically scheduled cash bond. The Plaintiff is represented by: Peter Antosh, Esq. GARCIA & ANTOSH, LLP 1401 Central Avenue Dodge City, KS 67801 Tel: (620) 225-7400 E-mail: pja22@yahoo.com DRAFTKINGS INC: NY AG Schneiderman Seeks Preliminary Injunction --------------------------------------------------------------- Attorney General Eric Schneiderman filed an enforcement action in New York State Supreme Court in the County of New York, seeking a preliminary injunction against DraftKings and FanDuel. The Attorney General's suit details alleged violations of law by DraftKings and FanDuel. The Attorney General's memorandum of law and complaint against DraftKings can be found at: http://www.ag.ny.gov/pdfs/DK_MOL.pdf http://www.ag.ny.gov/pdfs/DK_Complaint.pdf A copy of the memorandum of law and complaint against FanDuel can be found at: http://www.ag.ny.gov/pdfs/FD_MOL.pdf http://www.ag.ny.gov/pdfs/FD_Complaint.pdf The following are excerpts of the memorandum of law filed by the Office of the Attorney General: The New York State Constitution has prohibited bookmaking and other forms of sports gambling since 1894. Under New York law, a wager constitutes gambling when it depends on either a (1) "future contingent event not under [the bettor's] control or influence" or (2) "contest of chance." So-called Daily Fantasy Sports ("DFS") wagers fit squarely in both these definitions, though by meeting just one of the two definitions DFS would be considered gambling. DFS is nothing more than a rebranding of sports betting. It is plainly illegal. Yet FanDuel and DraftKings insist that DFS is not gambling because it involves skill. But this argument fails for two clear reasons. First, this view overlooks the explicit prohibition against wagering on future contingent events, a statutory test that requires no judgment of the relative importance of skill and chance -- they are irrelevant to the question. Second, the key factor establishing a game of skill is not the presence of skill, but the absence of a material element of chance. Here, chance plays just as much of a role (if not more) than it does in games like poker and blackjack. A few good players in a poker tournament may rise to the top based on their skill; but the game is still gambling. So is DFS. FanDuel and DraftKings' current denials about DFS constituting gambling are belied by how the sites depicted themselves in the past and how they portray themselves behind closed doors. FanDuel's DFS contests were designed by a veteran of the legal online betting industry in the United Kingdom, Nigel Eccles. The company admitted to an early investor that its target market is male sports fans who "cannot gamble online legally." DraftKings depicts itself to investors in a similar fashion. For example, in one investor presentation, DraftKings pitched itself to a prospective investor by noting the "Global opportunity for online betting," pointing to the massive revenue of the "global online poker market," and making direct comparisons throughout the presentation to poker and sports wagering. The CEO of DraftKings previously spoke openly about DraftKings as a gambling company. He called DFS a "mash[-]up between poker and fantasy sports," suggested that DraftKings operates in the "gambling space," and described its revenue model as "identical to a casino." The rejection of the gambling label by the DFS sites is particularly hard to square with the overt strategy of recruiting gamblers. For FanDuel, this has meant hiring a former top executive from Full Tilt, the online poker company, and affiliating with gambling industry stalwarts like "Vegas Insider" and BetVega, a sports betting and handicapping website. For DraftKings, this has meant aligning itself closely and negotiating sponsorships with other gambling ventures, like the World Series of Poker and the Belmont Stakes. DraftKings has also embedded gambling keywords into the programming code for its website. Some of these keywords include "fantasy golf betting," "weekly fantasy basketball betting," "weekly fantasy hockey betting," "weekly fantasy football betting," "weekly fantasy college football betting," "weekly fantasy college basketball betting," "Fantasy College Football Betting," "daily fantasy basketball betting," and "Fantasy College Basketball Betting." This increases the likelihood that search engines, like Google, will send users looking for gambling straight to the DraftKings site. FanDuel's advertisements commonly showcase testimonials from ostensibly ordinary DFS players (g.,"Zack from Fairfield, California"), and play up the ease of playing and of winning huge cash prizes . . . The reality is that like poker, blackjack, and horseracing, a small percentage of professional gamblers use research, software, and large bankrolls to extract a disproportionate share of DFS jackpots. With poker and DFS, professional players, known as "sharks," profit at the expense of casual players, known as "minnows." The numbers show that the vast majority of players are net losers, losing far more money playing on the sites than they win. DraftKings data show that 89.3% of DFS players had an overall negative return on investment across 2013 and 2014. While irresponsibly denying their status as gambling companies, the DFS Sites pose precisely the same risks to New York residents that New York's anti-gambling laws were intended to avoid. Experts in gambling addiction and other compulsive behaviors have identified DFS as a serious and growing threat to people at risk for, or already struggling with, gambling-related illnesses. Jeffrey L. Derevensky, Director of the International Centre for Youth Gambling Problems and High-Risk Behavior at McGill University, notes that, among other things, false or misleading representations of the skill involved in DFS "can lead players to a preoccupation with DFS, chasing of losses, and developing symptoms and behaviors associated with a gambling disorder." ECOSERV LLC: Doesn't Properly Pay Employees, "Berry" Suit Claims ---------------------------------------------------------------- Steve Mitchell Berry, individually and on behalf of others similarly situated v. Ecoserv, LLC, Case No. 6:15-cv-02632 (W.D. Lo., November 4, 2015) is brought against the Defendant for failure to pay overtime and minimum wages in violation of the Fair Labor Standard Act. Ecoserv, LLC operates an oilfield services company providing cleaning and waste disposal services to the oil and gas industry. The Plaintiff is represented by: Kenneth D. St. Pe, Esq. KENNETH D. ST. PE, LLC 311 West University Avenue, Suite A Lafayette, LO 70506 Telephone: (337) 534-4043 EQUITRUST LIFE: Summary Adjudication Order Affirmed --------------------------------------------------- Presiding Judge Dennis M. Perluss of the Court of Appeals of California, Second District, Division Seven, affirmed the trial court's order granting the motion by EquiTrust Life Insurance Company for summary adjudication of class action plaintiffs' contract claims, denying class certification of the plaintiffs' claim under the unfair competition law, and denying the plaintiffs' request to add individuals as class representatives. The appellate case is captioned DANIEL TABARES et al., Plaintiffs and Appellants, v. EQUITRUST LIFE INSURANCE COMPANY, Defendant and Respondent, No. B254409, (Cal. App. Ct.) The underlying class action was filed in 2008 by purchasers of EquiTrust's deferred equity-indexed annuities. Named plaintiffs Daniel and Rhodora Tabares, Judy L. Taylor, Elizabeth Young and Judith Gilbert appeal from orders granting EquiTrust's motion for summary adjudication of their contract claims, denying class certification of their claim under the unfair competition law (Bus. & Prof. Code, Section 17200 et seq.) (UCL) and denying their request to add Young and Gilbert as class representatives on the cause of action for declaratory relief. The named plaintiffs purchased different EquiTrust annuities. According to Daniel and Rhodora Tabares, they were approached by defendant Joseph Sackey at their worksite, the Los Angeles County Metropolitan Transportation Authority (MTA). Sackey held himself out as a financial planner and annuity specialist who had assisted more than 100 MTA retirees find profitable investments for their government pensions. In May 2006 Sackey convinced Daniel, a 23- year employee of the MTA, to retire early and roll his entire government pension of more than $395,000 into a MarketValue Index annuity issued by EquiTrust. Based on Sackey's representations, Daniel understood he would begin to receive monthly interest payments of $2,500 shortly after issuance of the annuity. Contrary to that representation, the annuity purchased by Daniel did not provide for commencement of distribution payments until 2061 when Daniel would be more than 100 years old. Further, instead of the high returns promised by Sackey, the annuity bore a minimum guaranteed interest rate ranging from 1.5 to 2 percent, and only 87.5 percent of Daniel's investment was guaranteed from loss. Any withdrawals from the annuity within the first 10 years of purchase were subject to substantial surrender charges of up to 12 percent. Daniel was never shown a sample contract before the sale. He never incurred a surrender charge or MVA. Plaintiffs moved for certification of two classes in December 2009: (1) all California residents who had purchased one of four specified deferred annuity insurance contracts from EquiTrust; and (2) all California residents over the age of 60 who had purchased one of the four annuities. On August 2, 2010 the court granted certification on two claims: (1) the contract cause of action on the theory EquiTrust had breached the covenant of good faith and fair dealing by manipulating renewal rates and caps to recoup the costs of commissions and bonuses; and (2) the declaratory relief cause of action for the second (senior) class based on the alleged violation of section 10127.13. The court denied certification of the fraud and UCL causes of action as to both classes on the ground there was no evidence either Tabares or Taylor, the only two named plaintiffs at this point, had actually relied on misrepresentations made by EquiTrust and thus lacked standing under the UCL. With respect to Taylor, the court also found she was an inadequate class representative because of discrepancies between her deposition testimony and her signed declaration: Taylor remembered virtually nothing about the provisions of the annuity she had purchased or disclosures made to her about its provisions. Because Taylor was at the time the only named plaintiff aged 60 or older, the senior class was left without a named class representative. Plaintiffs contend the trial court erred as a matter of law (1) by concluding EquiTrust had not breached the annuity contracts or violated the implied covenant of good faith and fair dealing by setting rates at levels that negated its promise of bonuses and imposing the burden of high commissions on policyholders; and (2) by refusing to certify the UCL "unlawful" prong claim based on the class representatives' failure to demonstrate reliance. Further, plaintiffs contend the court abused its discretion by refusing to allow a former annuity holder who had surrendered her contract to serve as the class representative for the declaratory relief claim. In his Order dated October 9, 2015 available at http://is.gd/HXJ6zLfrom Leagle.com, Judge Perluss affirmed the trial court's orders. EquiTrust is to recover its costs on appeal. Judge Perluss explained that the integrated contract identifies a premium bonus that is defined only with reference to the annuity's Accumulation Value. The purchasers received the premium bonuses promised in the contracts. That the individual annuities varied in ultimate credit accumulation based on whether a particular annuity included an upfront premium bonus or lower credits over time does not constitute a breach of contract; to the contrary, the rates were disclosed, as was the range of discretion afforded to EquiTrust by the contract. According to Judge Perluss, the perception by some purchasers they would receive a 10 percent bonus (with no cost to them or tradeoff in the promised return credits) reflects more than anything the lack of sophistication of those purchasers and their vulnerability to misleading sales tactics. It does not, however, give rise to a contract claim and, indeed, is inadmissible to vary the express language of the contract. Plaintiffs failed to satisfy the standing requirement applicable to their UCL cause of action. There was no breach of the implied covenant of good faith and fair dealing as a matter of law. Robert S. Gerstein, Esq. -- robert.gerstein1@verizon.net -- of Law Offices of Robert S. Gerstein; and Robert S. Gianelli, Esq. Gianelli & Morris serve as counsel for Plaintiffs and Appellants Margaret M. Grignon, Esq., Robert D. Phillips, Jr., Esq. -- rphillips@reedsmith.com -- James C. Martin, Esq. -- jcmartin@reedsmith.com -- Zareh A. Jaltorossian, Esq. -- zjaltorossian@reedsmith.com -- Kathy J. Huang, Esq. -- khuang@reedsmith.com -- and Thomas A. Evans, Esq. -- tevans@reedsmith.com -- of Reed Smith serve as counsel for Defendant and Respondent EXPERIAN INFORMATION: Faces "Yoo" Suit for Data Security Breach --------------------------------------------------------------- Charles Yoo, individually and on behalf of all others similarly situated, v. Experian Information Solutions, Inc., Case No. 1:15- cv-09787 (N.D.Ill., Nov. 2, 2015), claims monetary damages, statutory damages, and all other relief authorized in equity or by law on behalf of persons whose private personal information was alleged compromised by Experian's lax cybersecurity. Experian is a consumer reporting agency, which regularly engages in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of providing consumer reports to third parties. The Plaintiff is represented by: Joseph J. Siprut, Esq. Michael L. Silverman, Esq. John S. Marrese, Esq. SIPRUT PC 17 North State Street, Suite 1600 Chicago, IL 60602 Phone: 312.236.0000 Fax: 312.878.1342 Email: jsiprut@siprut.com msilverman@siprut.com jmarrese@siprut.com FACEBOOK INC: Faces "Roche" Suit Over Alleged Text Spamming ----------------------------------------------------------- Ross Todd, writing for The Recorder, reports that Facebook Inc. was hit with a lawsuit accusing the company of violating restrictions on telemarketing by sending "unwanted and annoying" text messages. Florida resident Deborah Roche accuses Facebook of sending her repetitive texts over the past two years using an automatic telephone dialing system in violation of the Telephone Consumer Protection Act. The suit filed in the Northern District of California by Lemberg Law's Trinette Kent claims that Roche was "bombarded" with texts inviting her to visit facebook.com and sign up for its service. Roche is asking for trebled statutory damages of up to $1,500 per text. The suit is the second Kent and her firm have filed this year against Facebook in the Northern District. In March, Lemberg Law filed a class action claiming that Facebook violates the TCPA by sending unsolicited text messages via its "login notifications" alerts. The suit claims that people who have not signed up for the alerts -- including non-Facebook users -- have been sent spam text messages by the feature. Lawyers from Kirkland & Ellis represent Facebook in that case, which is pending before U.S. District Judge Jon Tigar. A Facebook spokesperson declined to comment on the newly filed suit. FANDUEL INC: Violates Consumer Protection Laws, Says "Moton" Suit ----------------------------------------------------------------- Michael Moton and Jeffrey Wright, individually and on behalf of all others similarly situated, v. Fanduel, Inc., a Delaware corporation, and Draftkings, Inc., a Delaware corporation, Case No. 2:15-cv-08557-JFW-PLA (C.D.Cal., Nov. 2, 2015), alleges that Defendants operate daily fantasy sports ("DFS") websites in a manner that violates California and Ohio law, as well as analogous common and consumer protection laws in each state in which they operate. The Defendants operate daily fantasy sports websites. DFS is a non-regulated industry where individuals compete against other individuals in fantasy sports games. Defendant FanDuel, Inc., is a Delaware corporation with its principal place of business in New York, New York. The Plaintiffs are represented by: Bradley K. King, Esq. AHDOOT & WOLFSON, PC 1016 Palm Avenue West Hollywood, CA 90069 Phone: (310) 474-9111 Fax: (310) 474-8585 E-mail: rahdoot@ahdootwolfson.com bking@ahdootwolfson.com FANDUEL INC: "Berg" Suit Alleges Consumer Protection Law Breach --------------------------------------------------------------- Thomas Berg, Individually And On Behalf of All Others Similarly Situated, v. Fanduel, Inc., a Delaware corporation, and Draftkings, Inc. a Delaware corporation, Case No. 1:15-cv-08612 (S.D.N.Y., Nov. 2, 2015) alleges that Defendants violate New York law, as well as analogous common and consumer protection laws in each state in which they operate. The Defendant companies operate daily fantasy sports websites. The Plaintiff is represented by: Paul C. Whalen, Esq. LAW OFFICE OF PAUL C. WHALEN, P.C. 768 Plandome Road Manhasset, NY 11030 Phone: (516) 426-6870 Fax: (212) 658-9685 E-mail:pcwhalen@gmail.com - and - John G. Emerson, Esq. EMERSON SCOTT LLP 830 Apollo Lane Houston, TX 77058 Phone: (281) 488-8854 Fax: (281) 488-8867 E-mail:jemerson@emersonfirm.com - and - David G. Scott, Esq. EMERSON SCOTT LLP 1301 Scott Street Little Rock, AR 72202 Phone: (501) 907-2555 Fax: (501) 907-2556 E-mail:dscott@emersonfirm.com - and - Christopher D. Jennings, Esq. JOHNSON VINES ATTORNEYS 2226 Cottondale Lane, #210 Little Rock, AR 72202 Phone: (501) 408-2623 E-mail: cjennings@johnsonvines.com FANDUEL INC: NY AG Schneiderman Seeks Preliminary Injunction ------------------------------------------------------------ Attorney General Eric Schneiderman filed an enforcement action in New York State Supreme Court in the County of New York, seeking a preliminary injunction against DraftKings and FanDuel. The Attorney General's suit details alleged violations of law by DraftKings and FanDuel. The Attorney General's memorandum of law and complaint against DraftKings can be found at: http://www.ag.ny.gov/pdfs/DK_MOL.pdf http://www.ag.ny.gov/pdfs/DK_Complaint.pdf A copy of the memorandum of law and complaint against FanDuel can be found at: http://www.ag.ny.gov/pdfs/FD_MOL.pdf http://www.ag.ny.gov/pdfs/FD_Complaint.pdf The following are excerpts of the memorandum of law filed by the Office of the Attorney General: The New York State Constitution has prohibited bookmaking and other forms of sports gambling since 1894. Under New York law, a wager constitutes gambling when it depends on either a (1) "future contingent event not under [the bettor's] control or influence" or (2) "contest of chance." So-called Daily Fantasy Sports ("DFS") wagers fit squarely in both these definitions, though by meeting just one of the two definitions DFS would be considered gambling. DFS is nothing more than a rebranding of sports betting. It is plainly illegal. Yet FanDuel and DraftKings insist that DFS is not gambling because it involves skill. But this argument fails for two clear reasons. First, this view overlooks the explicit prohibition against wagering on future contingent events, a statutory test that requires no judgment of the relative importance of skill and chance -- they are irrelevant to the question. Second, the key factor establishing a game of skill is not the presence of skill, but the absence of a material element of chance. Here, chance plays just as much of a role (if not more) than it does in games like poker and blackjack. A few good players in a poker tournament may rise to the top based on their skill; but the game is still gambling. So is DFS. FanDuel and DraftKings' current denials about DFS constituting gambling are belied by how the sites depicted themselves in the past and how they portray themselves behind closed doors. FanDuel's DFS contests were designed by a veteran of the legal online betting industry in the United Kingdom, Nigel Eccles. The company admitted to an early investor that its target market is male sports fans who "cannot gamble online legally." DraftKings depicts itself to investors in a similar fashion. For example, in one investor presentation, DraftKings pitched itself to a prospective investor by noting the "Global opportunity for online betting," pointing to the massive revenue of the "global online poker market," and making direct comparisons throughout the presentation to poker and sports wagering. The CEO of DraftKings previously spoke openly about DraftKings as a gambling company. He called DFS a "mash[-]up between poker and fantasy sports," suggested that DraftKings operates in the "gambling space," and described its revenue model as "identical to a casino." The rejection of the gambling label by the DFS sites is particularly hard to square with the overt strategy of recruiting gamblers. For FanDuel, this has meant hiring a former top executive from Full Tilt, the online poker company, and affiliating with gambling industry stalwarts like "Vegas Insider" and BetVega, a sports betting and handicapping website. For DraftKings, this has meant aligning itself closely and negotiating sponsorships with other gambling ventures, like the World Series of Poker and the Belmont Stakes. DraftKings has also embedded gambling keywords into the programming code for its website. Some of these keywords include "fantasy golf betting," "weekly fantasy basketball betting," "weekly fantasy hockey betting," "weekly fantasy football betting," "weekly fantasy college football betting," "weekly fantasy college basketball betting," "Fantasy College Football Betting," "daily fantasy basketball betting," and "Fantasy College Basketball Betting." This increases the likelihood that search engines, like Google, will send users looking for gambling straight to the DraftKings site. FanDuel's advertisements commonly showcase testimonials from ostensibly ordinary DFS players (g.,"Zack from Fairfield, California"), and play up the ease of playing and of winning huge cash prizes . . . The reality is that like poker, blackjack, and horseracing, a small percentage of professional gamblers use research, software, and large bankrolls to extract a disproportionate share of DFS jackpots. With poker and DFS, professional players, known as "sharks," profit at the expense of casual players, known as "minnows." The numbers show that the vast majority of players are net losers, losing far more money playing on the sites than they win. DraftKings data show that 89.3% of DFS players had an overall negative return on investment across 2013 and 2014. While irresponsibly denying their status as gambling companies, the DFS Sites pose precisely the same risks to New York residents that New York's anti-gambling laws were intended to avoid. Experts in gambling addiction and other compulsive behaviors have identified DFS as a serious and growing threat to people at risk for, or already struggling with, gambling-related illnesses. Jeffrey L. Derevensky, Director of the International Centre for Youth Gambling Problems and High-Risk Behavior at McGill University, notes that, among other things, false or misleading representations of the skill involved in DFS "can lead players to a preoccupation with DFS, chasing of losses, and developing symptoms and behaviors associated with a gambling disorder." FEDEX CORP: Court Grants Attorneys' Fees & Costs in "Huhmann" ------------------------------------------------------------- District Judge Cynthia Bashat granted in part and denied in part Plaintiff's motion for attorneys' fees, costs and pre-and post- judgment interest in the case captioned DALE HUHMANN, Plaintiff, v. FEDEX CORPORATION, ET AL., Defendants, Case No. 13-CV-00787- BAS(NLS), (S.D. Cal.) In her Order dated October 16, 2015 available at http://is.gd/olOuIufrom Leagle.com, Judge Bashant granted in part and denied in part Plaintiff's motion for attorneys' fees, costs and pre- and post-judgment interest. Defendant is ordered to pay $227,585.00 in attorney's fees, $75.76 in costs, $217.52 in pre- judgment interest, and post-judgment interest at a rate of 0.25% compounded annually. Brian J Lawler, Esq. -- blawler@pilotlawcorp.com -- of Pilot Law PC serves as counsel for Plaintiff Dale Huhmann, an individual Craig E. Lindberg, Esq. -- craig.lindberg@fedex.com -- of FedEx Express; David Porter Knox, Esq. and Jane M. Flynn, Esq. of Federal Express Corporation serve as counsel for Defendant Federal Express Corporation, a Delaware Corporation, inclusive doing business as FedEx Express FLOWERS FOODS: Faces Suit Over FLSA Violations ---------------------------------------------- Antoine Richard, Darrell Richard, Chris Meche, Derby Doucet, Sr., Kevin Rabeaux, Mark Louviere, and all others similarly-situated v. Flowers Foods, Inc.; Flowers Baking Company of Lafayette, LLC; Flowers Baking Company of Baton Rouge, LLC; Flowers Baking Company of Alexandria, LLC; and Flowers Baking Company of New Orleans, LLC, Case No. 6:15-cv-02557 (W.D. La., October 21, 2015), is brought against the Defendants for violations of the federal Fair Labor Standards Act and the Louisiana Payment of Employees law. Flowers Foods, headquartered in Thomasville, Georgia, is a producer and marketer of packaged bakery foods in the United States. The company operates 46 bakeries that produce breads, buns, rolls, snack cakes, pastries, and tortillas. The Plaintiffs are represented by: Ryan M. Goudelocke, Esq. DURIO, MCGOFFIN, STAGG & ACKERMANN 220 Heymann Boulevard Post Office Box 51308 Lafayette, LA 70505-1308 Tel: (337) 233-0300 Fax: (337) 233-0694 E-mail: ryan@dmsfirm.com FRANK M. JODZIO: Faces "Smith" Suit Over Loan Modification Fees --------------------------------------------------------------- Julian Smith and Maribel Smith, individually and on behalf of all persons similarly situated v. Frank M. Jodzio d/b/a Midpoint Law Group, Does 1 Through 100, Inclusive, Case No. BC599724 (Cal. Super. Ct., November 2, 2015) is brought on behalf of all California consumers who were charged and paid advance fees and other compensation for loan modification services by the Defendants. The Defendants own and operate a law firm located at 8200 Wilshire Blvd., Suite 200, Beverly Hills, California. The Plaintiff is represented by: John M. Boyko, Esq. LAW OFFICES OF JOHN M. BOYKO 3655 Torrance Blvd., Suite 240 Torrance, CA 90503-4842 Telephone: (310) 316-9797 Facsimile: (310) 943-2188 GENERAL MOTORS: Plaintiffs Lawyers Seek "War Room" Details ---------------------------------------------------------- Amanda Bronstad, writing for The National Law Journal, reports that amid a ruling on Nov. 9 that General Motors Co. could face punitive damages over its ignition-switch defect, plaintiffs lawyers poised for the first trial are demanding details about what they say was a "war room" the automaker created in the recalls' aftermath. The decision by U.S. Bankruptcy Judge Robert Gerber of the Southern District of New York allowing for punitive damages raised the prospects for a bigger verdict against GM and clarifies his April 15 ruling that barred lawsuits over injuries and deaths occurring prior to the automaker's bankruptcy filing in 2009. In his latest decision, Judge Gerber found that GM could be liable for punitive damages even if its actions involved knowledge of the defect it inherited prior to its bankruptcy -- such as old documents or employees who stayed with the company. Both sides were scheduled to meet to discuss the impact of Judge Gerber's ruling on six bellwether trials over injuries and deaths associated with the defect, the first of which starts Jan. 11. In preparation for that trial, plaintiffs lawyers filed a motion this month to fly an employee from Detroit to Seattle for a Nov. 19 deposition about a "war room" the automaker allegedly created last year to deal with fallout from the defect that involved recalling 2.6 million cars and trucks worldwide. The war room contained "death charts" of cases hung in a row on the wall and pictures of the ignition switch and steering column, argues Steve Berman, co-lead plaintiffs counsel in the ignition- switch litigation. Mr. Berman said plaintiffs attorneys first heard of the room, where meetings among engineers and lawyers took place, when GM senior engineer Dwayne Davidson mentioned it at a deposition six months ago. "We thought, 'Wow, this is useful -- getting inside their head as to how they put all this together,'" Mr. Berman said. GM has since dismantled the room, according to the plaintiffs' motion. So Mr. Berman's firm, Hagens Berman Sobol Shapiro, has used photographs and other materials obtained through discovery to convert one of its conference rooms in Seattle into a mockup of the "war room." Now, plaintiffs lawyers want a GM employee to sit in the room as part of a videotaped deposition to demonstrate what GM used it for. GM has resisted the request, which it called a "stage show" and contrary to a previous order that its representatives be deposed in Detroit or New York, according to a court paper filed on Nov. 9. Regardless of where it takes place, the testimony of the GM employee about the war room will join more than 240 people who have been deposed ahead of the first trial, including former GM general counsel Michael Millikin and chief executive officer Mary Barra. With Gerber's ruling, plaintiffs lawyers hope to convince jurors to award punitive damages in the case. "We're going to prove that GM knew of the ignition-switch effect and concealed that defect," Mr. Berman said, "and that it can be held responsible for both compensatory and punitive damages for that conduct." Plaintiffs lawyers, in trying to prove GM's knowledge of the defect, point to a $900 million deferred-prosecution agreement that GM reached on Sept. 17 with the U.S. Justice Department in which it admitted that it failed to adequately disclose the defect from federal regulators. GM disputed the significance of the ruling. In an email, spokesman James Cain noted that Gerber also found GM didn't automatically assume liability for punitive damages for pre-2009 injuries and deaths. The judge also stayed bellwether cases that "improperly rely on Old GM conduct." "Although it is true that the Court also held that New GM could be liable for punitive damages for 'independent claims' based solely on New GM's conduct, plaintiffs to date have not established any such independent claims against New GM," Mr. Cain wrote. To date, GM has settled much of the litigation over the ignition- switch defect. On Sept. 17, GM paid $575 million to settle about 1,380 lawsuits -- all personal injury and wrongful death cases, plus one shareholder action. GM also has estimated $625 million in payments went to victims who submitted claims through a compensation fund. But hundreds of cases are pending in multidistrict litigation before U.S. District Judge Jesse Furman of the Southern District of New York and in state courts across the country. Most of the remaining cases are consumer class actions by consumers seeking economic damages, like the diminished value of their cars, but hundreds involve injuries and deaths. The first trial, which will take place in New York, comes in a case brought by Robert Scheuer, who was injured in a 2014 crash in Oklahoma, involving his 2003 Saturn Ion. According to his complaint, Mr. Scheuer, 47, suffered neck pain and was hospitalized after the ignition switch slipped into the accessory position, disabling the air bags when he crashed into a tree at 60 miles per hour to avoid another vehicle. GOOGLE INC: Privacy Claims in Cookie Class Action Revived --------------------------------------------------------- Tom McParland, writing for Law.com, reports that the U.S. Court of Appeals for the Third Circuit has said Google's "broad" and "surreptitious" practice of overriding cookie blockers to access users' Internet history information raised serious concerns under California privacy laws, vacating a lower court's dismissal of two claims in a class action lawsuit. The court, meanwhile, upheld the dismissal of all other counts against Google, including claims under federal law that the company violated federal wiretap and computer fraud laws. The case, captioned In re Google Cookie Placement Consumer Privacy Litigation, came out of the U.S. District Court for the District of Delaware, where U.S. District Judge Sue L. Robinson tossed the claims. Judge Julio M. Fuentes wrote for the appellate panel. His decision was joined by Judges D. Michael Fisher and Cheryl Ann Krause. The claims were initially thrown out for failing to show a serious privacy invasion or an egregious breach of social norms. But on appeal, the court found Google may have intruded on a reasonable right to privacy under state law. "Based on the pled facts, a reasonable fact-finder could indeed deem Google's conduct 'highly offensive' or 'an egregious breach of social norms,'" the 60-page opinion read. "A reasonable jury could conclude that Google's alleged practices constitute the serious invasion of privacy contemplated by California law." The privacy claims were contained in counts IV and V of a class action lawsuit brought by users of Apple's Safari and Microsoft's Internet Explorer Web browsers, who made putative claims against Google and three Internet advertising companies. The complaint followed a revelation from Stanford University graduate student Jonathan Mayer that Google and its three co- defendants, Vibrant Media, Media Innovation Group and WPP, were exploiting loopholes in both browsers' cookie blockers, despite public assurances to the contrary. Cookies enable websites and advertisers to track users' Internet history, allowing them to create detailed user profiles and deliver highly-targeted advertisements. A Wall Street Journal article detailing Mr. Mayer's report touched off an investigation by the Department of Justice that resulted in a $22.5 million civil penalty for Google, which admitted no wrongdoing. Google also reached a $17 million settlement with 38 state attorneys general. The flurry of attention triggered the filing of a series of lawsuits in district courts across the country. Those were consolidated into one class action before Judge Robinson in the District of Delaware, where the court dismissed all nine counts for failure to state a claim. On appeal, Judge Fuentes reversed the lower court's dismissal of parallel privacy claims under the California Constitution and the state's tort law. Google argued the plaintiffs voluntarily sent the company their Internet history information, and that the use of tracking cookies is commonplace. Courts "routinely" find no actionable privacy invasion in such cases, the company said. Judge Fuentes rejected Google's stance, saying its emphasis on tracking and disclosure "amounts to a smokescreen." "What is notable about this case is how Google accomplished its tracking," he said. "Allegedly, this was by overriding the plaintiffs' cookie blockers, while concurrently announcing in its privacy policy that Internet users could 'reset your browser to refuse all cookies.'" Under California tort law, accessing data is considered actionable when it is an unwanted violation of the law or social norms by electronic or covert means, and the state's constitution provides for an opportunity to be notified and consent to intrusion. "As the activated cookie blocker equates, in our view, to an express, clearly communicated denial of consent for installation of cookies, we find Google 'intru[ded] upon reasonable expectations of privacy,'" Judge Fuentes said. The two claims were the only counts to survive on appeal. Fuentes agreed with the district court in tossing four other claims under state law and three under federal law, which alleged violations of the Wiretap Act, Stored Communications Act and Computer Fraud and Abuse Act. Google did not return a request for comment. The company was represented by Colleen Bal -- cbal@wsgr.com -- of Wilson Sonsini Goodrich & Rosati in San Francisco. She did not return a call seeking comment. Jason O. Barnes -- law@mobarneslaw.com -- of Barnes & Associates in Jefferson City, Missouri, argued for the plaintiffs. He was not available for comment. GORGEOUS LANDSCAPES: Rodriguez Suit Seeks to Recover Unpaid OT -------------------------------------------------------------- Luis H. Rodriguez and other similarly-situated individuals v. Gorgeous Landscapes & Lawns, Inc. and Jesus L. Rodriguez, Case No. 4:15-cv-10203-JLK (S.D. Fla., November 3, 2015) seeks to recover unpaid overtime wages and damages pursuant to the Fair Labor Standard Act. The Defendants own and operate a landscaping and lawn care company. The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 E-mail: zep@thepalmalawgroup.com GROUP HEALTH: Sued Over Neurodevelopmental Services Plan Coverage ----------------------------------------------------------------- M.R., by and through her parents and guardians, Mi.R. and C.R., individually, on behalf of Puget Sound Energy, Inc. Health Benefit Plan, and on behalf of similarly situated individuals and plans v. Group Health Cooperative, Case No. 2:15-cv-01729 (W.D. Wa., November 3, 2015) arises out of the Defendant's refusal to provide coverage for these neurodevelopmental mental health services under the Mental Health Benefit of the large group self-funded Plans it administers. Group Health Cooperative owns and operates a medical center in King County, Washington The Plaintiff is represented by: Richard E. Spoonemore, Esq. Eleanor Hamburger, Esq. SIRIANNI YOUTZ SPOONEMORE HAMBURGER 999 Third Avenue, Suite 3650 Seattle, WA 98104 Telephone: (206) 223-0303 Facsimile: (206) 223-0246 E-mail: rspoonemore@sylaw.com ehamburger@sylaw.com HITACHI AUTOMOTIVE: May 4 Settlement Approval Hearing Set --------------------------------------------------------- If You Bought or Leased a New Motor Vehicle, or Bought Certain Replacement Parts in the U.S. Since 2000, You Could Get Money from Settlements. You Could Get Money Settlements Totaling Approximately $54 Million Two Defendants and their affiliates ("Settling Defendants") have agreed to Settlements resolving claims that they fixed the price of certain motor vehicle components. This may have caused individuals and businesses to pay more for new motor vehicles and certain replacement parts. The Settling Defendants deny any claims of wrongdoing. The Settling Defendants are: Hitachi Automotive Systems, Ltd. ("HIAMS"), and T.RAD Co., Ltd. and T.RAD North America, Inc. (together, "T.RAD"). Am I included? You may be included if, from 2000 to 2015, you: (1) bought or leased an eligible new vehicle in the U.S. (not for resale), or (2) indirectly paid for an eligible motor vehicle replacement part. Indirectly means you bought the replacement part from someone other than the manufacturer of the part. Eligible new motor vehicles include automobiles, light trucks, vans, mini-vans, and sport utility vehicles. What do the Settlements provide? The Settlements provide money for consumers in 30 states and the District of Columbia as well as non-monetary relief, including cooperation, and an agreement by Settling Defendants not to engage in certain conduct for a period of 24 months. The 30 states are: Arizona, Arkansas, California, Florida, Hawaii, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, West Virginia, and Wisconsin. How can I get payment? No money will be distributed yet. Class Counsel will pursue the lawsuits against the Non-Settling Defendants. All funds received in this case will be distributed at the conclusion of the lawsuits or as ordered by the Court. You will need to file a valid claim to receive a payment. Notice about the claims process will be provided at a later date. If you want to receive the notice about the claims process or future settlements, you should register at www.AutoPartsClass.com What are my rights? Even if you do nothing, you will be bound by the Court's decisions concerning these Settlements. If you want to keep your right to sue the Settling Defendants regarding a particular component part, you must exclude yourself from that Settlement Class by March 28, 2016. If you stay in a Settlement Class, you may object to one or more of the settlements by March 28, 2016. The Court will hold a hearing on May 4, 2016, to consider whether to approve the Settlements and approve Class Counsel's request that up to $2 million be set aside for future litigation costs and expenses. Class Counsel will also request at the hearing, or at a later date, attorneys' fees of up to one-third of the Settlement funds, plus reimbursement of costs and expenses. You or your own lawyer may appear and speak at the hearing at your own expense. If the cases are not dismissed or settled, Class Counsel will have to prove their claims against the Non-Settling Defendants at trial. Trial has not been set yet. For More Information or to Register: 1-877-940-5043 www.AutoPartsClass.com HOMEAWAY INC: Faces "Bonnema" Suit Over Theft of Customer Info -------------------------------------------------------------- Christopher Bonnema, individually and on behalf of all others similarly situated, v. Homeaway, Inc., and Yapstone, Inc. d/b/a Vacationrentpayment, Case No. 4:15-cv-05023-DMR (N.D.Cal., Nov. 2, 2015), seeks sdamages, restitution, and injunctive relief for Defendant's alleged failure to safeguard Plaintiff's personally identifiable information and bank account information; to provide timely and adequate notice to Plaintiff that the information had been stolen and of the scope and the extent of the breach, which translates to alleged negligence, breach of implied contract, unjust enrichment, and violations of the California Unfair Competition Law, Business & Professions Code, and the California Data Breach Law, California Civil Code. HomeAway is a vacation rental company with websites representing over one million listings of vacation rental homes in 190 countries. The Plaintiff is represented by: John H. Donboli, Esq. JL Sean Slattery, Esq. DEL MAR LAW GROUP 12250 El Camino Real, Suite 120 San Diego, CA 92130 Phone: (858) 793-6244 Fax: (858) 793-6005 Email:jdonboli@delmarlawgroup.com sslattery@delmarlawgroup.com - and - Shannon L. Hopkins, Esq. Shane Rowley, Esq. Nancy A. Kulesa, Esq. Andrea Clisura , Esq. LEVI & KORSINSKY, LLP 30 Broad Street, 24th Floor New York, NY 10004 Phone: (212) 363-7500 Fax: (866) 367-6510 Email: shopkins@zlk.com srowley@zlk.com nkulesa@zlk.com aclisura@zlk.com HOMELAND SECURITY: "Brown" Suit Seeks to Recover Unpaid Overtime ---------------------------------------------------------------- Andrew Brown, on his own behalf and on behalf of those similarly situated v. Homeland Security, LLC, Case No. 8:15-cv-02590-CEH-EAJ (M.D. Fla., November 4, 2015) seeks to recover unpaid overtime wages and damages pursuant to the Fair Labor Standard Act. Homeland Security, LLC provides security system installation and repair services. The Plaintiff is represented by: Carlos V. Leach, Esq. MORGAN & MORGAN, PA 20 N. Orange Ave., 14th Floor P.O. Box 4979 Orlando, FL 32802-4979 Telephone: (407) 420-1414 Facsimile: (407) 245-3341 E-mail: CLeach@forthepeople.com HOSPITAL CORP: Settles Securities Class Action for $215 Million --------------------------------------------------------------- Jenna Greene, writing for Law.com, reports that for the first six months of the year, it looked like securities class actions were in the doldrums. Between January and June, the median settlement was a mere $5.2 million, the lowest in a decade, according to a midyear report by Gibson, Dunn & Crutcher. New filings were down too, whether compared with the preceding six months or the 15-year historical average, another study found. But since June 30, there have been a series of big-ticket settlements in securities class actions brought by Robbins Geller Rudman & Dowd. Among them: a pending $388 million settlement by JP Morgan Chase & Co., and a $272 million settlement by Goldman Sachs. On Nov. 4, the firm struck again, when Hospital Corporation of America agreed to pay $215 million to settle a securities class action stemming from its initial public offering in 2011. The case is a bit different from the parade of suits against banks based on residential mortgage-backed securities. Filed in Nashville federal court in 2011, the suit pitted the class action specialists against counsel from Latham & Watkins for HCA and Davis Polk & Wardwell for the underwriters. By way of background: HCA is the largest for-profit hospital chain in the country. In 2000, it paid $1.7 billion to settle Medicare fraud charges by the Justice Department., and in 2012 was slammed in a New York Times article for performing medically unnecessary procedures. At a crucial hearing in the class action -- a motion to dismiss before Chief Judge Kevin Sharp of the U.S. District Court for the Middle District of Tennessee in 2013 -- the big dogs were out. Robbins Geller name partner Darren Robbins argued for the plaintiffs, and Everett "Kip" Johnson Jr., at the time the chair of Latham's litigation department, made the case for the defense. The key point of contention: Did the hospital giant fail to disclose material facts before it went public on March 9, 2011? At the time, it was the largest ever private equity-backed IPO in the U.S., with $4.3 billion in securities issued. Mr. Johnson called the allegations "typical rearview mirror, fraud by hindsight. You disclosed it on Tuesday; you must have known it on Monday. It was fraud not to disclose it on Monday. That's what this case is about," he said, according to a transcript of the proceedings. "In this case, the only thing that's in dispute is whether HCA failed to disclose certain known trends that it was aware of before March 9, 2011, and which it reasonably believed would have an unfavorable -- material unfavorable -- impact on its revenues," he said. The trends included a decline in Medicaid revenue per admission and movement away from cardiac surgical treatment into less expensive medical treatment. "Those things are constant in medicine," Mr. Johnson argued. "There is always movement from one treatment to another. Every time somebody invents a drug or a device, there is movement. But this is like counting nosebleeds, your honor. These kinds of movements don't have any real significant effect until they become very significant over a very long period of time." When it was Mr. Robbins' turn, he responded, "These aren't nosebleed treatments or earaches. We're talking about, you know, implants into people's hearts and cardiothoracic surgeries that were being done and were not medically necessary." Mr. Robbins continued, "We heard a broad-brush presentation. But when you look and drill down into the cases supporting this, they don't support the law as articulated by the defendants." He pointed to Item 303 of Regulation S-K, which requires a registrant to disclose "any known trends or uncertainties" that could affect its revenue or profits. "This is a strict liability claim," he said. "And, in fact, that strict liability claim applies to HCA for any misrepresentation." He continued, "Would a reasonable shareholder care that in your largest market over a quarter of your hospitals are now dramatically reducing unnecessary -- medically unnecessary -- procedures?" The judge let the case, which was brought by the New England Teamsters & Trucking Industry Pension Fund and individual plaintiff Karsten Schuh, go forward, though he trimmed some of the claims. Last year, he certified it as a class. With a January trial date looming, the parties moved to settle. Robbins in an interview said that negotiations took a year. "It was either trial or a substantial premium recovery," Mr. Robbins said, adding that the settlement "represents one of the largest percentage recoveries" for investors. Still, there was a bittersweet element to the win for Mr. Robbins. In 1997, he tried his first case in Nashville -- another suit against HCA, which is based there -- teaming up with local counsel George Barrett. He continued to work with Barrett many times over the years and counted him as "my dear friend." A lion of the bar and civil rights crusader who led the fight to desegregate Tennessee universities, Mr. Barrett was a name partner at Barrett Johnston Martin & Garrison. He and Mr. Robbins appeared in court together on Aug. 7, 2014, successfully convincing Sharp to certify the class. The next day, Mr. Barrett checked into a hospital (St. Thomas, not a HCA facility). He died on Aug. 26, 2014, of acute pancreatitis. He was 86. "George Barrett was instrumental to the prosecution of this case and the incredible result we ultimately achieved for shareholders. George Barrett was truly a great American," Mr. Robbins said. IOVATE HEALTH: "Kline" Suit Alleges CLRA Violations --------------------------------------------------- Ronald Patrick Kline, Yamil Caraballo, and all others similarly- situated v. Iovate Health Sciences U.S.A. Inc., Case No. 3:15-cv- 02387 (S.D. Calif., October 21, 2015), is brought against the Defendant for using false, misleading and/or deceptive packaging and labeling in violation of the California's Consumer Legal Remedies Act. Iovate Health Sciences USA Inc. offers muscle builders, fat burners/thermogenics, and stacks. It sells its products through retailers, health clubs, gyms, and health food stores. The company was incorporated in 2003 and is based in Blasdell, New York. The Plaintiffs are represented by: Abbas Kazerounian, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Avenue, Suite D1 Costa Mesa, CA 92626 Tel: (800) 400-6808 Fax: (800) 520-5523 E-mail: ak@kazlg.com - and - Joshua B. Swigart, Esq. HYDE & SWIGART 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Tel: (619) 233-7770 Fax: (619) 297-1022 E-mail: josh@westcoastlitigation.com J&Y CAFETERIA: Faces "Nunez" Suit Under Fair Labor Standards Act ---------------------------------------------------------------- Pegui Nunez and other similarly situated waitress, v. J&Y Cafeteria, Inc., a Florida Profit Corporation d/b/a La Palapa Hondurena and Judy Nunez, Individually, Case No. 33928090 (Fla. Cir., 11th Judicial Circuit in and for Miami Dade County, Nov. 2, 2015), seeks damages exceeding $15,000 excluding attorneys' fees or costs pursuant to the Fair Labor Standards Act and to recover unpaid overtime and/or minimum wages, an additional equal amount as liquidated damages; obtain declaratory relief, and reasonable attorneys' fees and costs. J & Y Cafeteria, Inc. is a Florida Corporation based in Miami. 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 Phone: (305) 416-5000 Fax: (305)416-5005 JANSSEN PHARMACEUTICALS: More Risperdal Trials Underway ------------------------------------------------------- Max Mitchell, writing for The Legal Intelligencer, reports that the recent verdict in a Risperdal-related case may have tipped the ongoing mass-tort litigation in the plaintiffs' favor, but attorneys are not expecting a global settlement any time soon. A Philadelphia jury on Nov. 9 awarded plaintiff Nicholas Murray $1.75 million on claims that the antipsychotic drug Risperdal caused gynecomastia, a condition in which boys grow excessive breast tissue. Mr. Murray, who has Asperger's syndrome, had been prescribed the drug for his attention deficit hyperactivity disorder. The verdict came several months after a jury awarded $2.5 million to plaintiff Austin Pledger in the first Risperdal-related case to hit trial in Philadelphia. But the following month, another jury determined Risperdal had not caused plaintiff William Cirba's breast growth, and rendered a defense verdict. At this point, attorneys agreed the ball is in Risperdal maker Janssen Pharmaceuticals' court when it comes to settling the mass tort. According to Kline & Specter attorney Thomas R. Kline, who is handling numerous Risperdal cases along with Sheller P.C. and Houston firm Arnold & Itkin, there are currently no settlement talks with Janssen. But, Mr. Kline said the recent plaintiffs verdict is encouraging for the plaintiffs' cases. "While the cases are not formally designed to be bellwether cases, the fact of the matter is everyone has viewed the initial cases as bellwether and instructive for the future," Mr. Kline said. "It doesn't take a degree in meteorology to see where the wind is blowing." Mr. Kline is currently trying a Risperdal case for plaintiff Tim Stange. That case is expected to end this week. Many more are scheduled to hit trial early next year. Jason Itkin, who tried the Murray case, said that, while Janssen "can afford to be involved in this litigation as long as they want," trying cases can be expensive both in terms of verdicts and attorney fees. "The ball is in Janssen's court," Mr. Itkin said. "As of now, we're just preparing for trials." A spokeswoman for Janssen said it will continue trying cases. "Janssen will continue to defend this litigation and will try cases where appropriate," spokeswoman Robyn Frenze said in an emailed statement. Duane Morris attorney Alan Klein -- AKlein@duanemorris.com -- who often represents generic drug companies, said it is impossible to know how long a company may want to extend litigation, but "the more plaintiffs verdicts you're able to secure in a mass tort, the more likely you can settle more globally." "It's always an interesting question of how many verdicts will a company sustain," Mr. Klein said, noting there were dozens of verdicts in the Vioxx-related cases before there was a global settlement. "It's up to the company to decide." Mr. Klein said mass tort litigation often requires a "critical mass" of verdicts before the parties begin any serious settlement talks. "I don't know if this is the point, or if it's a couple of cases from now," Mr. Klein said. While some compared the Risperdal litigation to similar litigation involving Vioxx and Accutane, attorneys agreed that each mass tort has its own unique set of determinative factors that must be decided before the parties can begin to have a grasp of what a global settlement could look like. In the Risperdal litigation, causation, which was the key factor in the Cirba defense verdict, has become a key issue in the litigation, along with arguments about whether the treating doctors had been given enough information when prescribing the drug. So far, juries have consistently sided with the plaintiffs on the failure-to-warn claims. In the defense verdict, while the jury did not find causation, it determined Janssen failed to warn. Messrs. Itkin and Kline also both noted that, although the Risperdal label -- which is central to the failure-to-warn arguments -- was amended to provide more information about gynecomastia in 2006, the plaintiff wins have involved claims related to both pre- and post-2006 use of the drug. Mr. Klein said the consistency of the jury findings on the failure-to-warn claims "should be a cause of concern for a defendant," and will likely be significant in terms of trying to broker a global settlement. Another issue affecting a global settlement is that numerous appeals are ongoing in the mass tort. Possibly the most important dispute is whether plaintiffs will be able to seek punitive damages. So far, plaintiffs in the mass tort have not. But, on appeal, plaintiffs are pointing to conflicting case law from the U.S. District Court for the Eastern District of Pennsylvania that they argue supports their claims. Mr. Klein said the pending appeals might not factor as much into the timing of the settlement as it would the terms of the settlement itself. "I don't think it would prevent the talks from occurring," Mr. Klein said. "That may be packaged in as part of the settlement." Another factor weighing into the future of the litigation is the fact that one case is on trial and a wave of 10 cases is set to hit the Philadelphia courts early next year. Mr. Kline also noted that together -- his firm, Sheller P.C. and Arnold & Itkin -- are representing about 8,000 clients with Risperdal-related claims. Some of the cases are expected to be tried simultaneously, like the Stange and Murray cases, which were tried only a few rooms away from each other in Philadelphia City Hall. "When you have a litigation this large, it's customary for strong law firms to bind together. And the combined resources are important in the ability to discover multiple cases at one time and to try cases at one time," Mr. Kline said. "The plan is for me, Jason Itkin and other trial lawyers to continue to try these cases, and we're convinced that we'll continue to be successful." JANSSEN PHARMACEUTICALS: Seeks Consolidation of Xarelto Case ------------------------------------------------------------ Max Mitchell, writing for The Legal Intelligencer, reports that Janssen Pharmaceuticals is fighting to consolidate a novel Xarelto case into an existing mass-tort program in Philadelphia that, so far, has focused on claims the drug led to excessive bleeding. Late last month, drugmaker Janssen filed a petition to enforce a case management order from the Xarelto mass-tort program that would consolidate Mothena v. Janssen Research & Development LLC into the existing mass tort in Philadelphia. Plaintiff David Mothena, who is alleging once-daily dosing fails to protect against stroke for 24 hours, responded with arguments that his claims do not stem from the same injury, and therefore the case should not be consolidated. "The underlying theory and injuries alleged by plaintiffs in the instant action differ greatly from the injuries and theories regarding the mechanism of injury alleged in the Philadelphia Xarelto mass-tort litigation," Mr. Mothena's opposition filing said. "Specifically, plaintiffs in the instant case claim that Xarelto was ineffective for its intended purpose of preventing strokes in patients with nonvalvular atrial fibrillation." Mr. Mothena, who has nonvalvular atrial fibrillation and allegedly suffered a stroke four days after starting on the medication, filed his suit Oct. 8 in the Philadelphia Court of Common Pleas' Day Forward Program. The 74-page complaint, filed by Brian J. McCormick of Ross Feller Casey, alleged strict liability for defective design and warnings, as well as negligence, breach of warranty, fraudulent concealment and deceptive trade practices. The complaint also heavily references the marketing campaign that focuses on once-a-day use, and recommends the pill as an alternative to rival drugs that required users to take multiple doses a day and undergo monitoring. Albert G. Bixler -- abixler@eckertseamans.com -- of Eckert Seamans Cherin & Mellott filed the petition to join Mr. Mothena's case with the mass tort program Oct. 26. The filing specifically asked Complex Litigation Center Coordinating Judge Arnold New to "enforce case management order 1." The order governs "each Xarelto case" and was entered into in February to "eliminate duplication of effort, prevent unnecessary paperwork and promote judicial economy." In the filing, Janssen contended Mr. Mothena's claims are already asserted in the Xarelto mass-tort program. Specifically, both the mass-tort master complaint and Mr. Mothena's complaint involve claims of severe injury as a result of taking Xarelto, and claims related to the marketing of the single daily-dose requirement. "The Mothena complaint names the same defendants as the master complaint, and contains the same allegations of liability and personal injury as those contained in the master complaint," Janssen's filing said. "There are cases in the Xarelto mass-tort program in which plaintiffs alleged clots as a result of using Xarelto." Janssen also said it anticipates discovery will be duplicative due to the overlapping issues. The stroke issue, Janssen contended, is immaterial, since the existing mass tort is composed of numerous types of claims. "Defendants anticipate that no factual issues will arise in the liability portion of the Mothena case that will not also be addressed in the Xarelto mass-tort program," the filing said. However, in their Nov. 2 response, the plaintiffs argued "the overlap between the claims is superficial." At the crux of Mr. Mothena's case are allegations that the once- daily dose of Xarelto does not effectively protect against strokes for a full 24 hours, and the master complaint in the mass tort program does not mention ischemic or embolic stroke, the plaintiffs said in the filing. "A review of the predicate facts and counts in the two complaints shows a vast difference in the theories and factual allegations underpinning those claims," Mr. Mothena's response said. JP MORGAN: Three Charged in Massive 2014 Computer Hacking --------------------------------------------------------- Ed Silverstein, writing for Legaltech News, reports that two men are in custody -- and one remains at large -- in connection with what federal officials describe as "massive computer hacking crimes against U.S. financial institutions, brokerage firms, and financial news publishers, including the largest theft of customer data from a U.S. financial institution in history." The two under arrest were identified as Gery Shalon and Ziv Orenstein. They are awaiting extradition from Israel. The third defendant, identified as Joshua Samuel Aaron, is still at large. The latest information links the trio to the massive 2014 hack of JP Morgan Chase & Co. "These three defendants perpetrated one of the largest thefts of financial-related data in history -- making off with the sensitive information of literally thousands of hard-working Americans," Attorney General Loretta E. Lynch said in a statement released on Nov. 10. A 23-count indictment charged the defendants with such crimes as: computer hacking, conspiracy in connection with money laundering, internet gambling, identity theft, securities fraud and wire fraud. In describing the far-reaching inquiry, Manhattan U.S. Attorney Preet Bharara said federal officials "exposed a cybercriminal enterprise that for years successfully and secretly hacked into the networks of a dozen companies, allegedly stealing personal information of over 100 million people, including over 80 million customers from one financial institution alone." "The charged crimes showcase a brave new world of hacking for profit," Mr. Bharara added. "It is no longer hacking merely for a quick payout, but hacking to support a diversified criminal conglomerate. This was hacking as a business model. The alleged conduct also signals the next frontier in securities fraud -- sophisticated hacking to steal nonpublic information, something the defendants discussed for the next stage of their sprawling enterprise." When asked about the charges, Brian Kudowitz, who is Bloomberg Law's commercial product director for privacy and data security, said, "Revelations from the indictments on the scope of these breaches, with the impact spanning numerous countries and sectors, drives home the increasing complexity and severity of cyber- incidents." "The practical result is that companies will have to adapt not only to greater security threats, but also intensifying attention from a growing list of regulators with skin in the game," he added. "Greater investment by boards in their privacy and security programs is absolutely essential, but realistically many companies have to bite the bullet and reshape their entire program, including adopting a bottom-up approach." The news comes shortly after a survey revealed that just 19 percent of banks were "highly prepared" for a cyberattack, Legaltech News has reported. Also, Ms. Lynch noted how the charges came after victims "came forward and worked with the Department of Justice to hold the perpetrators accountable." Specifically, the government alleges that between 2012 to the middle of 2015, Shalon, Aaron and other suspects stole the personal information of over 100 million customers. The defendants also artificially manipulated the price of U.S. stocks, while Shalon directed hacks and cyberattacks against several companies. Moreover, between 2007 and July 2015, Shalon owned and operated unlawful internet gambling businesses; multinational payment processors for illegal pharmaceutical suppliers, counterfeit and malicious software ("malware") distributors, and unlawful internet casinos; and controlled Coin.mx, an illegal United States-based Bitcoin exchange that operated in violation of federal anti-money laundering laws, the government claims. "Nearly all of these schemes . . . relied for their success on computer hacking and other cybercrimes committed by [Shalon] and his co-conspirators," the government adds. They allegedly earned hundreds of millions of dollars in illicit proceeds, of which at least $100 million was deposited in Swiss and other bank accounts. They also allegedly laundered their criminal proceeds, through at least 75 shell companies, and bank and brokerage accounts. Anthony Murgio was also arrested in connection with the case. When commenting on the case, Craig Newman, an attorney at Patterson Belknap Webb & Tyler, says the indictment reads "like a digital-era spy novel about how a global band of cybercriminals would stop at nothing to hack into the computer systems of top financial institutions." He adds how the government's case shows "that we all live in digital glass houses" -- even the most sophisticated organizations. KANSAS CITY ROYALS: Minor League Players Get Class Certification ---------------------------------------------------------------- Sid Steinberg, writing for The Legal Intelligencer, reports that the average Major League Baseball salary in 2015 was $4.2 million. Assuming that major-league players work (generously) 10 hours per day, six days per week for nine months (February through October), they earn, on average, $1,795 per hour -- well in excess of the $7.25 per hour minimum wage prescribed by the Fair Labor Standards Act. Some minor-league players, on the other hand, earn as little as $3,000 per year despite, according to a class action wage-and-hour suit filed in the Northern District of California, working between 50-70 hours per week. In addition to the five-month minor-league season (the only time they are paid), the minor-league players are required to work in the off-season, as well as during spring training -- all of which puts them well below the FLSA minimum wage and deprives them of overtime pay. SALARIES AS LOW AS $3K/YEAR In its recent decision in Senne v. Kansas City Royals Baseball, No. 14-cv-00608-JCS (N. D. Cal., Oct. 20, 2015), the U.S. District Court for the Northern District of California granted conditional certification to a class of all minor-league players who worked for Major League Baseball since February 2011 but who had not spent any time in the major leagues. The allegations are, as noted, that most of the (roughly 6,000) minor-league players gross only $3,000 to $7,500 over their five-month season, which is the only time during the year that they are paid. Although they work between 50 and 70 hours per week, arriving in the early afternoon and leaving sometimes as late as 11 p.m., with extensive work- related travel, they are not paid overtime, the plaintiffs alleged. Further, according to the complaint, the players work year-round, including mandatory attendance at spring training, instructional leagues and winter baseball. Plus, the players are expected to follow team-prescribed exercise regimens during the off-season without any compensation. It is important to note that the merits of the case and whether the players are even "employees" under the FLSA (or whether they should be considered as "amusement or recreational establishment" workers) was not considered in the court's conditional certification decision. Rather, the court focused on whether potential opt-ins are similarly situated to the representative plaintiffs "for the sole purpose of sending notice of the action to potential class members." At this early stage, the plaintiffs are required to show only that there is a "reasonable basis for their claim of class-wide conduct." 'SIMILARLY SITUATED' TEST The Senne court found two MLB documents provided the strongest evidence that the proposed class was "similarly situated." First, the MLB Rules provide that the 30 major-league franchises have what the court found to be "extensive control over minor league baseball, establishing rules . . . under which minor league players are selected and advance, the minor league playing schedule and travel." Further, the rules state that the major- league franchises employ all minor-league coaches, managers and trainers. Uniform Player Contract Even more importantly, the rules require that every minor-league player sign the same employment contract -- called the "Uniform Player Contract," which binds the player to the major-league club for seven years. All first-year players earn the same wages, although teams can give limited raises or require limited pay cuts in subsequent years. The UPC also provides that the players would be paid only during the course of the season when games were being played. The players submitted declarations that they did "off-season" work for which they were not paid -- which constituted "off-the-clock" work -- further reducing their hourly rate below minimum wage. The clubs argued that the nature and quantity of the work was idiosyncratic based upon both the individual player and his or her team's demands and, as such, the players were not "similarly situated" so as to form a class. The court rejected these arguments as more properly addressed at the merits stage of the case -- after conditional certification and discovery. LONG HOURS FOR LOW PAY The players also claimed that they worked in excess of 40 hours per week during the season and were not paid overtime. They argued for conditional certification based upon the contract -- providing that all first-year players would be paid the same salary and the fact that the rules "establish guidelines as to scheduling and travel [which] show that the players are similarly situated as to the long hours they are required to work." The court again rejected the clubs' defense that the players' hours may vary -- such that some may not have worked more than 40 hours in a week. This was found to be an argument best addressed "at a later stage of the case, on a fully developed record." Finally, the court granted conditional certification on the issue of whether, even during the season, the players did not receive minimum wage due to their long hours. Again, based upon the rules and the UPC, the court found that the players could be similarly situated. ALLEGATIONS ENOUGH The case speaks to the fact that at this preliminary stage -- before substantive discovery -- "courts require little more than substantial allegations, supported by declarations or discovery, that the putative class members were together victims of a single decision, policy or plan." Moreover, the court observed that competing declarations "will not, as a general rule, preclude conditional certification." The most significant defense to the case will likely be that the FLSA simply does not apply to professional athletes under the "amusement or recreational establishment" exception to the FLSA (29 U.S.C. Section 213(a)(3)). The exception applies (in part) if the "establishment . . . does not operate for more than seven months in any calendar year." Even here, however, the case law is mixed, as the U.S. Court of Appeals for the Eleventh Circuit has applied the exception to find that a minor-league groundskeeper was not entitled to overtime (Jeffery v. Sarasota White Sox, 64 F.3d 590 (11th Cir. 1995), while the Sixth Circuit held that the Cincinnati Reds could not take advantage of the exception because they were a year-round operation (Bridewell v. Cincinnati Reds, 68 F.3d 136 (6th Cir. 1995). While it seems unlikely that we will see time clocks next to batting cages at minor-league parks across America, the case bears watching for either its settlement or for a long-term impact on the business of minor-league baseball. KAYNE ANDERSON: Order Denying Motion to Strike Affirmed ------------------------------------------------------- In the appellate case captioned KAYNE ANDERSON CAPITAL ADVISORS, LP et al., Plaintiffs and Respondents, v. DAN GHAMMACHI et al., Defendants and Appellants, No. B256236, (Cal. App. Ct.), Justice Tricia A. Bigelow of the Court of Appeals of California, Second District, Division Eight, affirmed the trial court order denying a special motion to strike the Kayne Parties' complaint pursuant to the anti-SLAPP statute. The appeal arises from a malicious prosecution action filed by two limited partnership investment firms -- Kayne Anderson Private Investors, LP (KAPI) and Kayne Anderson Capital Advisors, LP (KACA). In March 2009, Kayne Anderson Private Investors, LP (KAPI) and five individuals entered a written limited liability company operating agreement for Media Solutions Holdings, LLC. Media Solutions was a printer toner cartridge supply business. The 2009 operating agreement identified two classes of members -- Class A and Class B -- and allotted each member of Media Solutions a specified "unit" interest in the company, with associated rights to allocations of profits, to elect persons to the company's board of managers, and to the redemption of the member's unit interest. Under the terms of the agreement, upon the termination of a member's employment with Media Solutions, the company and Class A members had the "right and/or obligation" to purchase the terminated member's unit interest, as set forth in the agreement. KACA was not a member of Media Solutions, but had a connection to events because it is the general partner of another entity, Kayne Anderson Private Advisors, L.P., which is the manager of KAPI. KAPI owned a significant majority of the membership units of Media Solutions and was its managing director. One of the eventual anti- SLAPP movants, Dan Ghammachi, was an individual Class B member of Media Solutions. Ghammachi sued Media Solutions and the Kayne Parties. He was represented by the law firm of Mixon Jolly. Ghammachi also filed an arbitration claim with the American Arbitration Association (AAA) in accord with a contractual arbitration clause in his September 2009 employment agreement with Media Solutions (ante). The demand identified only Media Solutions as the respondent. The claim description read: "The claims against Media Solutions Holdings, LLC are stated in the attached complaint which is to be filed in the Los Angeles Superior Court." Although the attached complaint named the Kayne Parties as defendants in addition to Media Solutions, the claim description did not mention them. The complaint alleged that in April 2011, Ghammachi advised the defendants of his desire to leave Media Solutions. According to the complaint, the defendants informed him they did not want him to leave Media Solutions to work with a former KACA employee who was engaged in the investment industry, not the printer cartridge supply industry. The complaint alleged that following negotiations, the parties reached an oral agreement in which the defendants promised Ghammachi he would be allowed to continue work on a limited basis to increase his exit bonus, and that Media Solutions would repurchase all of his member units for $240,000. However, the complaint alleged the resulting document purporting to memorialize the agreement contained unlawful restraints of trade in violation of Business and Professions Code section 16600, which sought to prevent Ghammachi from competing in the printer cartridge supply and private investment industries. When Ghammachi refused to sign, Media Solutions terminated his employment without cause. The complaint further alleged the defendants refused to purchase his unit interest as required under the operating agreement. As to KAPI, the complaint asserted a claim for breach of contract based on the alleged refusal to repurchase his unit interest. As to both Kayne Parties, the complaint asserted claims for interference with contractual relations and interference with prospective economic relations based on alleged interference with Ghammachi's employment agreement with Media Solutions; declaratory relief with respect to the non-compete and non-solicitation provisions; and unfair competition based on the alleged illegal restraints of trade and defendants' termination of Ghammachi and refusal to pay money due to him. A copy of the Court's Opinion dated October 19, 2015, is available at http://is.gd/n8UrKxfrom Leagle.com. Cameron M. Jolly, Esq. -- cjolly@mixonjollylaw.com -- of Mixon Jolly -- Douglas G. Benedon, Esq. -- douglas@benedonserlin.com -- and Wendy S. Albers, Esq., Benedon & Serlin serve as counsel for Defendant and Appellant Dan Ghammachi Lawrence H. Nagler, Esq. -- LNagler@Nagler.com -- Charles Avrith, Esq. -- cavrith@nagler.com and David F. Berry, Esq. -- dberry@nagler.com -- of Nagler & Associates serve as counsel for Plaintiffs and Respondents KOHLER CO: Faces "Davis" Suit for Alleged FLSA Violation -------------------------------------------------------- Richard Davis and Matt Hoffman, Individually, and on behalf of others similarly situated, v. Kohler Co., a Wisconsin Corporation, Case 1:15-cv-01263 (W.D.Tenn., Nov. 2, 2015) seeks claims for "off-the-clock" and overtime violations pursuant to the Fair Labor Standards Act. The Kohler Co. is known for its plumbing products, but the company also manufactures furniture, cabinetry, tile, engines, and generators. The Plaintiffs are represented by: Gordon E. Jackson, Esq. James L. Holt, Jr., Esq. J. Russ Bryant, Esq. Paula R. Jackson, Esq. JACKSON, SHIELDS, YEISER & HOLT 262 German Oak Drive Memphis, TN 38018 Phone: (901) 754-8001 Fax: (901) 754-8524 E-mail: gjackson@jsyc.com jholt@jsyc.com rbryant@jsyc.com pjackson@jsyc.com LG CHEM: Protective Order Modified in Antitrust Suit by Microsoft ----------------------------------------------------------------- Magistrate Judge Donna M. Ryu signed off on a modified Stipulated Protective Order to govern discovery and sharing of information in the antitrust complaint filed by Microsoft entities against LG Chem America, Inc., et al. The Stipulation provides that the "Microsoft Action Protective Order" is meant to apply only to documents and information produced (i) by the Stipulating Defendants to Microsoft, and (ii) by Microsoft to the Stipulating Defendants. All other discovery, including productions made to and by class plaintiffs, continues to be governed by the Class Action Protective Order in the umbrella case, IN RE LITHIUM ION BATTERIES ANTITRUST LITIGATION, MDL NO. 2420, (N.D. Cal.) The Microsoft case is, Microsoft Mobile Inc. and Microsoft Mobile Oy v. LG Chem America, Inc., et al., Case No. 4:13-MD-02420-YGR (DMR)(N.D. Cal.). A copy of the Court's Order dated October 16, 2015, is available at http://is.gd/a54T9gfrom Leagle.com. Lance A. Termes, Esq. -- lance.termes@alston.com -- and Ryan W. Koppelman, Esq. -- ryan.koppelman@alston.com -- of ALSTON & BIRD serve as counsel for Microsoft Mobile, Inc. and Microsoft Mobile Oy Reginald Steer, Esq. -- rsteer@akingump.com -- of AKIN GUMP STRAUSS HAUER & FELD serves as counsel for LG Chem America, Inc. and LG Chem, Ltd. MARKWINS INTERNATIONAL: Sued in Cal. Over Failure to Pay OT ----------------------------------------------------------- Theordore Selvey v. Markwins International, Corp., Markwins Beauty Products, Inc., and Does 1 through 100, Inclusive, Case No. BC599854 (Cal. Super. Ct., November 2, 2015) is brought against the Defendants for failure to pay overtime wages in violation of the California Labor Code. The Defendants manufacture beauty products under a variety of brand names including Wet n Wild, Black Radiance, Bonne Bell, Lipsmackers, and Black Radiance. The Plaintiff is represented by: Michael T. Carr, Esq. LAW OFFICE OF MICHAEL T. CARR, APC 2670 South Myrtle Avenue, Suite 106 Monrovia, CA 91016-5077 Telephone: (626) 254-8901 Facsimile: (626) 254-8921 E-mail: mike@michaelcarrlaw.com MIDLAND CREDIT: Illegally Collect Debt, "Fekete" Suit Claims ------------------------------------------------------------ Hershel Fekete, on behalf of himself and all other similarly situated consumers v. Midland Credit Management, Inc., et al., Case No. 1:15-cv-06000 (E.D.N.Y., October 20, 2015) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. Midland Credit Management, Inc. operates a financial service company in New York. The Plaintiff is represented by: Adam Jon Fishbein, Esq. ADAM J. FISHBEIN, ATTORNEY AT LAW 483 Chestnut Street Cedarhurst, NY 11516 Telephone: (516) 791-4400 Facsimile: (516) 791-4411 E-mail: fishbeinadamj@gmail.com MUDTECH SERVICES: Faces "Richard" Suit Over Failure to Pay OT ------------------------------------------------------------- Curtis Richard, individually and on behalf of all others similarly situated v. Mudtech Services, L.P., Case No. 4:15-cv-03239 (S.D. Tex., November 3, 2015) is brought against the Defendant for failure to pay overtime wages for hours worked in excess of 40 hours in a single workweek. Mudtech Services, L.P. provides oil field personnel to operators and other oil field services companies in need of alternative project staffing for mud operations. The Plaintiff is represented by: Michael A. Josephson, Esq. Lindsay R. Itkin, Esq. Andrew W. Dunlap, Esq. Jessica M. Bresler, Esq. FIBICH, LEEBRON, COPELAND, BRIGGS&JOSEPHSON 1150 Bissonnet St. Houston, TX 77005 Telephone: (713) 751-0025 Facsimile: (713) 751-0030 E-mail: mjosephson@fibichlaw.com litkin@fibichlaw.com adunlap@fibichlaw.com jbresler@fibichlaw.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH, P.L.L.C. 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: (713) 877-8788 Facsimile: (713) 877-8065 E-mail: rburch@brucknerburch.com NATIONSTAR MORTGAGE: "Huffman" Suit Alleges TCPA Violation ---------------------------------------------------------- Kristi Huffman, and all others similarly-situated v. Nationstar Mortgage Holdings, Inc., Case No. 3:15-cv-01252 (M.D. Fla., October 21, 2015), seeks treble damages and injunctive relief pursuant to the Telephone Consumer Protection Act. The Defendant is a residential mortgage services company headquartered in Dallas, Texas. The Plaintiff is represented by: Max Story, Esq. 328 2nd Avenue, North Jacksonville Beach, FL 32250 Tel: (904) 372-4109 Fax: (904) 758-5333 E-mail: max@storylawgroup.com NBTY INC: Faces "Muir" Suit in Ill. Over Product Misbranding ------------------------------------------------------------ Michael Muir, individually and on behalf of all others similarly situated v. NBTY, Inc., et al., Case No. 1:15-cv-09835 (N.D. Ill., November 3, 2015) is brought on behalf of all the who purchased the dietary supplements St. John's Wort Standardized Extract from Defendants, that did not contain consistent amounts of the sole active ingredient Standardized Extract Hypericin listed on their labels. NBTY, Inc. is a manufacturer of vitamins and nutritional supplements which are distributed under many third party brands in the United States and internationally. The Plaintiff is represented by: Joseph J. Siprut, Esq. SIPRUT PC 17 N. State Street, Suite 1600 Chicago, IL 60602 Telephone: (312) 236-0000 Facsimile: (312) 878-1342 E-mail: jsiprut@siprut.com - and - Nick Suciu III, Esq. BARBAT, MANSOUR & SUCIU PLLC 434 West Alexandrine, Suite 101 Detroit, MI 48201 Telephone: (313) 303-3472 E-mail: nicksuciu@bmslawyers.com NEW BLISS: "Li" Suit Seeks to Recover Unpaid Minimum Wages ---------------------------------------------------------- Bei Li, and all others similarly-situated v. New Bliss Nail Inc., dba New Bliss Nails, Bijou Nails Corp., dba Bijou Nails, Yeun Jeong An, and John Doe and Jane Doe #1-10, Case No. 2:15-cv-06059 (E.D.N.Y., October 21, 2015), seeks to recover unpaid minimum wages, unpaid overtime wages, liquidated damages, declaratory relief, costs, interest and attorneys' fees pursuant to the Fair Labor Standards Act. The Defendants provide a variety of manicure, pedicure, gel and waxing treatments. The Plaintiff is represented by: Jian Hang, Esq. HANG & ASSOCIATES, PLLC 136-18 39th Ave., Suite 1003 Flushing, NY 11354 Tel: (718) 353-8588 E-mail: jhang@hanglaw.com NOBILIS HEALTH: "Hall" Suit Alleges Federal Securities Violations ----------------------------------------------------------------- Shawn M. Hall, and all others similarly situated v. Nobilis Health Corp., Christopher H. Lloyed and Kenneth J. Klein, Case No. 4:15- cv-03098 (S.D. Tex., October 21, 2015), seeks to recover damages caused by the Defendants' violations of the federal securities laws pursuant to the Securities Exchange Act of 1934. The federal securities class action is on behalf of a class consisting of all persons other than defendants who purchased or otherwise acquired Nobilis securities between April 2, 2015 and October 8, 2015. Nobilis, together with its subsidiaries, acquires and manages ambulatory surgical centers (ASCs) and healthcare facilities in the United States. Its ASCs are licensed ambulatory surgery centers that provide scheduled surgical procedures in clinical specialties, including orthopedic surgery, podiatric surgery, ENT, pain management, gastro-intestinal, gynecology, and general surgery. Defendant Christopher H. Lloyd has served at all relevant times as the Company's Chief Executive Officer. Defendant Kenneth J. Klein has served at all relevant times as the Company's Chief Financial Officer and Chief Accounting Officer. The Plaintiff is represented by: Sammy Ford IV, Esq. ABRAHAM, WATKINS, NICHOLS, SORRELS, AGOSTO & FRIEND 800 Commerce Street Houston, TX 77002 Tel: (713) 222-7211 Fax: (713) 225-0827 E-mail: sford@abrahamwatkins.com - and - Jeremy A. Lieberman, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Tel: (212) 661-1100 Fax: (212) 661-8665 E-mail: jalieberman@pomlaw.com NOVARTIS PHARMACEUTICALS: Sued Over Generic Gleevac Drugs Delay --------------------------------------------------------------- Minnesota Laborers Health and Welfare Fund, on behalf of themselves and others similarly situated v. Novartis Pharmaceuticals Corp., Novartis AG, and Novartis Corporation, Case No. 1:15-cv-13725-ADB (D. Mass., November 3, 2015) seeks monetary damages to remedy the effects of the unlawful delay of generic entry into the U.S. market for Gleevec (imatinib mesylate), an FDA-approved prescription drug that radically improves the lives of the thousands of patients suffering chronic myeloid leukemia (CML), a cancer of the blood and bone marrow. The Defendants operate a pharmaceutical company at 59 Route 10, East Hanover, New Jersey 07936. The Plaintiff is represented by: Thomas G. Shapiro, Esq. Adam M. Stewart, Esq. SHAPIRO HABER & URMY LLP Seaport East 2 Seaport Lane Boston, MA 02210 Telephone: (617) 439-3939 Facsimile: (617) 439-0134 E-mail: tshapiro@shulaw.com astewart@shulaw.com - and - Jeffrey L. Kodroff, Esq. William G. Caldes, Esq. John A. Macoretta, Esq. SPECTOR ROSEMAN KODROFF & WILLIS, P.C. 1818 Market Street, Suite 2500 Philadelphia, PA 19103 Telephone: (215) 496-0300 Facsimile: (215) 496-6611 E-mail: jkodroff@srkw-law.com bcaldes@srkw-law.com jmacoretta@srkw-law.com - and - Karen Hanson Riebel, Esq. Heidi M. Silton, Esq. LOCKRIDGE GRINDAL NAUEN PLLP 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401 Telephone: (612) 339-6900 Facsimile: (612) 339-0981 E-mail: khriebel@locklaw.com hmsilton@locklaw.com - and - William H. London, Esq. FREED KANNER LONDON & MILLEN LLC 2201 Waukegan Road, Suite 130 Bannockburn, IL 60015 Telephone: (224) 632-4500 Facsimile: (224) 632-4521 E-mail: blondon@fklmlaw.com - and - Christian M. Sande, Esq. CHRISTIAN SANDE LLC 310 Clifton Avenue, Suite 300 Minneapolis, MN 55403 Telephone: (612) 387-1430 Facsimile: (612) 677-3078 E-mail: christian@christiansande.com NOVARTIS PHARMACEUTICALS: Sued Over Generic Gleevac Drugs Delay --------------------------------------------------------------- Pennsylvania Employees Benefit Trust Fund, on behalf of themselves and others similarly situated v. Novartis Pharmaceuticals Corp., Novartis AG, and Novartis Corporation, Case No. 1:15-cv-13726-ADB (D. Mass., November 3, 2015) seeks monetary damages to remedy the effects of the unlawful delay of generic entry into the U.S. market for Gleevec (imatinib mesylate), an FDA-approved prescription drug that radically improves the lives of the thousands of patients suffering chronic myeloid leukemia (CML), a cancer of the blood and bone marrow. The Defendants operates a pharmaceutical company at 59 Route 10, East Hanover, New Jersey 07936. The Plaintiff is represented by: Thomas G. Shapiro, Esq. Adam M. Stewart, Esq. SHAPIRO HABER & URMY LLP Seaport East 2 Seaport Lane Boston, MA 02210 Telephone: (617) 439-3939 Facsimile: (617) 439-0134 E-mail: tshapiro@shulaw.com astewart@shulaw.com - and - Jeffrey L. Kodroff, Esq. William G. Caldes, Esq. John A. Macoretta, Esq. SPECTOR ROSEMAN KODROFF & WILLIS, P.C. 1818 Market Street, Suite 2500 Philadelphia, PA 19103 Telephone: (215) 496-0300 Facsimile: (215) 496-6611 E-mail: jkodroff@srkw-law.com bcaldes@srkw-law.com jmacoretta@srkw-law.com PACKERLAND WHEY: "Drevenchuk" Suit Alleges FLSA Violation --------------------------------------------------------- Pavel Drevenchuk, individually and on behalf of all others similarly situated, v. Packerland Whey Products, Inc. d/b/a Fermented Nutrition Corporation, Case No. 2015-cv-1298 (E.D.Wis., Nov. 2, 2015), seeks relief under the Fair Labor Standards Act for unpaid minimum wages, unpaid overtime compensation, liquidated damages, costs, attorneys' fees, and/or any such other relief the Court may deem appropriate. Packerland Whey Products, Inc. is based in Luxemburg, Wisconsin and has been manufacturing high protein/high energy dairy & beef feed ingredients for over 30 years. The Plaintiff is represented by: Larry A. Johnson, Esq. Summer Murshid, Esq. Timothy P. Maynard, Esq. HAWKS QUINDEL, S.C. 222 East Erie Street Suite 210 P.O. Box 442 Milwaukee, WI 53201-0442 Phone: 414-281-8650 Fax: 414-281-8442 E-mail: ljohnson@hq-law.com smurshid@hq-law.com tmaynard@hq-law.com PANERA LLC: Sued in E.D. Cal. Over Failure to Pay Minimum Wages --------------------------------------------------------------- Clara Manchester, an individual, on behalf of herself and all others similarly situated v. Panera, LLC, Case No. 1:15-at-00886 (E.D. Cal., November 3, 2015) is brought against the Defendants for failure to pay minimum wages in violation of the California Labor Code. Panera, LLC operates a large retail bakery chain that has hundreds of locations within California. The Plaintiff is represented by: Michael L. Tracy, Esq. LAW OFFICES OF MICHAEL TRACY 2030 Main Street, Suite 1300 Irvine, CA 92614 Telephone: (949) 260-9171 Facsimile: (866) 365-3051 E-mail: MTRACY@MICHAELTRACYLAW.COM PANERA LLC: Sued in E.D. Cal. Over Failure to Pay Minimum Wages --------------------------------------------------------------- Clara Manchester, an individual, on behalf of herself and all others similarly situated v. Panera, LLC, Case No. 1:15-cv-01677-- -SAB (E.D. Cal., November 3, 2015) is brought against the Defendants for failure to pay minimum wages in violation of the California Labor Code. Panera, LLC operates a large retail bakery chain that has hundreds of locations within California. The Plaintiff is represented by: Michael L. Tracy, Esq. LAW OFFICES OF MICHAEL TRACY 2030 Main Street, Suite 1300 Irvine, CA 92614 Telephone: (949) 260-9171 Facsimile: (866) 365-3051 E-mail: MTRACY@MICHAELTRACYLAW.COM PREMIERE MUSIC: Doesn't Properly Pay Workers, "Shah" Suit Claims ---------------------------------------------------------------- Imran Shah v. Premiere Music and Film Systems, Inc., Case No. 1:2014cv03669 (Ill. Cir. Ct., November 2, 2015) is brought against the Defendant for failure to pay overtime and minimum wages in violation of the Illinois Minimum Wage Law, Illinois Wage Payment and Collection Act, and Illinois Workers' Compensation Act. Premiere Music and Film Systems, Inc. offers home automation, low- voltage lighting control, invisible technology, distributed audio, and integrated home theater systems. The Plaintiff is represented by: Uche O. Asonye, Esq. John A. Singer, Esq. ASONYE & ASSOCIATES 100 North LaSalle Street, Suite 2115 Chicago, IL 60602 Telephone: (312) 795-9110 Facsimile: (312) 795-9114 E-mail: jsinger@aa-law.com PURE RESTAURANT: Faces "Ramirez" Suit Over FLSA Violations ---------------------------------------------------------- Simon Cortez Ramirez, on behalf of himself and FLSA Collective Plaintiffs, v. Pure Restaurant Corp. d/b/a Pure Bistro, Peter Matheos and Giuseppe Mitilis, Case No:CV 15-6273 (E.D.N.Y., Nov. 2, 2015), alleges that pursuant to the Fair Labor Standards Act, Plaintiffs are entitled to recover from Defendants: (1) unpaid overtime, (2) liquidated damages and (3) attorneys' fees and costs. The Plaintiff further alleges that, pursuant to the New York Labor Law, he and others similarly situated are entitled to recover from Defendants: (1) unpaid overtime, (2) unpaid "spread of hours" premium, (3) statutory penalties, (4) liquidated damages and (5) attorneys' fees and costs. The Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. Shin Hahn, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, Second Floor New York, NY 10016 Phone: 212-465-1188 Fax: 212-465-1181 RES-CARE INC: "Tankam" Suit Seeks to Recover Unpaid Overtime ------------------------------------------------------------ Robertson Tankam, and all others similarly-situated v. Res-Care, Inc. and Res-Care Kansas, Inc., Case No. 2:15-cv-09343 (D. Kans., October 21, 2015), seeks to recover unpaid overtime compensation, prejudgment interest, liquidated damages, attorneys' fees and costs pursuant to the Fair Labor Standards Act of 1938. The Defendants provide residential, training, educational, and support services to populations with special needs. The Plaintiff is represented by: Anthony E. LaCroix, Esq. LACROIX LAW FIRM, LLC 406 West 34th Street, Suite 810 Kansas City, MO 64111 Tel: (816) 399-4380 Fax: (816) 399-4380 E-mail: tony@lacroixlawkc.com RESCUE RANGERS: Faces "Vaughn" Suit for Alleged FLSA Violation -------------------------------------------------------------- Dwayne Vaughn, Tammy Vaughn, and Tyler Wright, individually and on behalf of all others similarly situated, v. Rescue Rangers LLC, Case No. 3:15-cv-00656-JAG (E.D.Va., Nov. 2, 2015), alleges that Defendants unlawfully misclassified road service drivers as "independent contractors" when they are properly classified as employees under the Fair Labor Standard Act. Rescue Rangers provides service to customers in a number of major cities in the United States who have been locked out of their car, run out of gas, or suffered a flat tire. The Plaintiff is represented by: Nicholas Woodfield, Esq. The Employment Law Group, P.C. 888 17tn Street, NW 9th Floor Washington, DC 20006 Phone: (202) 331-3911 E-mail: nwoodfield@employmentlawgroup.com - and - Harold L. Lichten, Esq. Thomas P. Fowler, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Phone: (617) 994-5800 E-mail: hlichten@llrlaw.com tfowler@llrlaw.com SEBERT LANDSCAPING: Faces "Perez" Suit Under FLSA, Ill. Wage Law ---------------------------------------------------------------- Francisco J. Perez, on behalf of himself, and all other plaintiffs similarly situated, known and unknown, v. Sebert Landscaping Company D/B/A Great Impressions, Inc. And Jeffrey A. Sebert, individually, Case No: 1:15-cv-09786 (N.D.Ill., Nov. 2, 2015), was filed under the Fair Labor Standards Act, the Portal-to-Portal Act, and the Illinois Minimum Wage Law. Sebert Landscaping Company d/b/a Great Impressions, Inc., provides landscaping and maintenance services. The Plaintiff is represented by: John W. Billhorn, Esq. BILLHORN LAW FIRM 53 W. Jackson Blvd. Suite 840 Chicago, IL 60604 Phone: (312) 853-1450 - and - Meghan A. VanLeuwen, Esq. FARMWORKER AND LANDSCAPER ADVOCACY PROJECT 33 N. LaSalle Street, Suite 900 Chicago, IL 60602 Phone: (312) 784-3541 SKYWEST AIRLINES: Faces "Russell" Suit in Calif. Sup. Ct. --------------------------------------------------------- Donald Russell, on behalf of himself and others similarly situated, v. Skywest Airlines, Inc., and DOES 1 to 100, Case No: BC599915 (Cal. Super., County of Los Angeles, Nov. 2, 2015), alleges that individuals who worked for the Defendants at the Los Angeles International Airport are owed the Living Wage Ordinance difference, in addition to penalties, interest, and attorney fees. Skywest, Inc. is a holding company for two North American regional airlines. The Company, through its subsidiaries, SkyWest Airlines, Inc. and ExpressJet Airlines, Inc., offers scheduled passenger service with approximately 3,600 daily departures to destinations in the United States, Canada, Mexico and the Caribbean. The Plaintiff is represented by: Robert L. Starr, Esq. Adam M. Rose, Esq. LAW OFFICE OF ROBERT L. STARR 23277 Ventura Boulevard Woodland Hills, CA 91364 Phone: (818) 225-9040 Fax: (818) 225-9042 E-mail: robert@starrlaw.com adam@starrlaw.com SPEED SOLUTION: Faces "Carcamo" Suit for Labor Code Violation ------------------------------------------------------------- Mario Carcamo, an individual, v. Speed Solution International, Inc.; and DOES 1 through 100, Inclusive, Case No. BC 599855 (Cal. Super., County of Los Angeles, Nov. 2, 2015), seeks to recover all penalties, attorney's fees, costs and other damages and/or relief available thereunder based on Defendants' alleged violation of California Labor Code, wrongful termination in violation of public policy and intentional infliction of emotional distress. Speed Solution International is a market leading distributor of OE quality import replacement parts. The Plaintiff is represented by: Michael T. Carr, Esq. LAW OFFICE OFMICHAEL T. CARR, APC 2670 South Myrtle Avenue, Suite 106 Monrovia, CA 91016-5077 Phone: 626.254.8901 Fax: 626.254.8921 E-mail: mike@michaelcarriaw.com STARWOOD HOTELS: Faces "Serritiello" Suit Over Failure to Pay OT ---------------------------------------------------------------- Pedro C. Serritiello, and other similarly situated individuals v. Starwood Hotels & Resorts Worldwide, Inc. d/b/a The St. Regis Bal Harbour Resort, et al., Case No. 1:15-cv-24122-KMW (S.D. Fla., November 4, 2015) is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standard Act. Starwood Hotels & Resorts Worldwide, Inc. operates a hotel and leisure company in Miami-Dade County, Florida. The Plaintiff is represented by: R. Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 NE 30th Avenue, Ste. 800 Aventura, FL 33180 Telephone: (305) 503-5131 Facsimile: (888) 270-5549 E-mail: msaenz@saenzanderson.com TALLADEGA INTERNATIONAL: "Miller" Suit Seeks to Recover Overtime ---------------------------------------------------------------- Michele Miller, and all others similarly-situated v. Talladega International Truck & Tractor Company, Inc., Case No. 1:15-cv- 01845 (N.D. Ala., October 21, 2015), is brought against the Defendant for failure to compensate overtime in violation of the Fair Labor Standards Act. The Defendant sells tractor and mowing equipment since 1964. The Plaintiff is represented by: Michael A. Chester, Esq. SCHWARTZ ROLLER & ZWILLING 600 Vestavia Parkway, Suite 251 Birmingham, AL 35216 Tel: (205) 822-2701 Fax: (205) 822-2702 E-mail: mchester@szalaw.com TECO ENERGY: Faces "Kanarick" Suit Over Merger with Emera ----------------------------------------------------------- Leonard Kanarick, individual and on Behalf of all Others Similarly Situated, v. TECO Energy, Inc., Sherrill W. Hudson, James L. Ferman, Jr., Evelyn V. Follit, Joseph P. Lacher, Loretta A. Penn, John B. Ramil, Tom L. Rankin, William D. Rockford, Paul L. Whiting, Emera Inc., And Emera Us Inc., Case No. 8:15-cv-02571- MSS-JSS (M.D.Fla., Nov. 2, 2015) alleges breaches of fiduciary duties by the Board of Directors of TECO in connection with the plan to sell TECO Energy to Emera Inc., and Emera US Inc. as well as violations of the Securities and Exchange Act. TECO Energy is an energy-related holding company with regulated electric and gas utilities in Florida and New Mexico. The Plaintiff is represented by: Evan J. Smith, Esq. Marc L. Ackerman, Esq. Two Bala Plaza, Stc. 510 Bala Cynwyd, PA 19004 Phone: (610) 667-6200 Fax: 561.320.0285 E-mail: cullin@cullinobrienlaw.com TMCD CORPORATION: Fails to Pay Employees OT, "McIntire" Suit Says ----------------------------------------------------------------- Rebecca McIntire, and all others similarly situated under 29 USC 216(B) v. TMCD Corporation d/b/a The Men's Club Of Dallas, et al., Case No. 3:15-cv-03554-D (N.D. Tex., November 3, 2015) is brought against the Defendants for failure to pay overtime wages for work in excess of 40 hours during any workweek. TMCD Corporation operates gentleman's clubs locations in Dallas, Texas; Houston, Texas; and Charlotte, North Carolina. The Plaintiff is represented by: J. Derek Braziel, Esq. J. Forester, Esq. LEE & BRAZIEL, L.L.P. 1801 N. Lamar St. Suite 325 Dallas, TX 75202 Telephone: (214) 749-1400 Facsimile: (214) 749-1010 E-mail: info@L-B-Law.com - and - Jack Siegel, Esq. SIEGEL LAW GROUP PLLC 10440 N. Central Expy., Suite 1040 Dallas, TX 75231 Telephone: (214) 706-0834 E-mail: Jack@siegellawgroup.biz TRUE LEAF FARMS: Must Defend Against "Gomez" Suit in N.D. Cal. -------------------------------------------------------------- District Judge Ronald M. Whyte denied the motion to dismiss and the motion for sanctions, but granted the motion for stay only as to Plaintiffs' state law claims in the case captioned RAFAEL GOMEZ, et al., Plaintiffs, v. TRUE LEAF FARMS, LLC, et al., Defendants, Case No. 5:15-CV-02928-RMW, (N.D. Cal.) Plaintiffs Rafael Gomez, Cesar Ruelas, and Brenda Acevedo filed a wage and hour class action complaint on June 23, 2015. The complaint alleges that Defendant Steve Church is "Chief Executive Officer or other officer" of Church Brothers, LLC; that Tom Church is "President or other officer" of Church Brothers; and that David Gill is "Partner or other shareholder or officer" of True Leaf Farms. Plaintiffs commenced suit on June 23, 2015 alleging that Defendants failed to pay them minimum wage, compensate them for all hours worked (including overtime payments), provide them with legally compliant meal and rest periods, and comply with various record keeping requirements, among other alleged violations. Plaintiffs allege eight claims under California state law and two claims based on federal statutes, the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker Protection Act (MWPA). On August 4, 2015, the Defendants filed a motion to dismiss or, in the alternative, to stay this action under the Colorado River doctrine pending the outcome of a separate class action that a different plaintiff filed in state court against True Leaf Farms. Individual Defendants Tom Church, Steve Church, and David Gill also move to dismiss the Fair Labor Standards Act claims against them under Rule 12(b)(6). Separately, Defendants move for sanctions against Plaintiffs pursuant to Rule 11(b)(1) and the court's inherent authority. In his Order dated October 16, 2015 available at http://is.gd/IYeY5yfrom Leagle.com, Judge Whyte denied the motion to dismiss and the motion for sanctions, but granted the motion for stay only as to Plaintiffs' state law claims. Defendants' motions to dismiss and motion for sanctions are denied. Defendants' motion to stay Plaintiffs' state law claims is granted. Plaintiffs' federal claims will proceed. The court expects and anticipates that the parties will coordinate discovery in this action and the case, Norzagaray v. True Leaf Farms, LLC, et al., Case No. CU-14-00160, which was filed in San Benito County Superior Court on December 5, 2014. The Court noted that Plaintiffs' allegations against the Individual Defendants are thin, but in light of the Individual Defendants' positions within the companies and Plaintiffs' allegations regarding the actions of all Defendants, the Court said Plaintiffs have stated at least a plausible claim. Defendants' position appears to be that sanctions are warranted if a law firm represents a class action plaintiff in federal court after a state court stays a proceeding filed by a different, named class action client against the same defendant. Defendants' argument is meritless, the Court ruled, saying the authorities Defendants cite in support of their motion for sanctions do not support the relief Defendants have requested, and the court is unaware of any authority that supports Defendants' position. Eric Daniel Rouen, Esq. -- rouenlaw@att.net -- of The Downey law Firm LLC and Stuart Rowe Chandler, Esq. -- stuart@chandlerlaw.com -- serve as counsel for Plaintiff Rafael Gomez, on behalf of themselves and on behalf of all other similarly situated individuals Jennifer Michelle Schermerhorn, Esq. -- jschermerhorn@laborcounselors.com -- Michael Christopher Saqui, Esq. -- mcs@laborcounselors.com -- and Helen Igorevna Braginsky, Esq. of The Saqui Law Group serve as counsel for Defendant True Leaf Farms, LLC, A California Limited Liability Company TRUMP HOTEL: Denies Multiple Data Breach Allegations ---------------------------------------------------- Ed Silverstein, writing for Legaltech News, reports that Donald Trump's hotel chain is denying mutiple allegations detailed in a recent lawsuit following the hacking of its computer network. Attorneys representing the lead plaintiff -- John Driscoll of Illinois -- want to turn the federal case into a class action because of possible damages suffered by the guests. The lawsuit claims the defendants violated state consumer protection laws and state data breach notification laws, as well as violations of negligence, implied contract, and unjust enrichment laws. The plaintiffs want injunctive and declaratory relief, as well as monetary and statutory damages in connection with the breach, which took place between May 19, 2014, and June 2, 2015. "The allegations in the lawsuit filed by Mr. Driscoll are completely without merit and we are confident that the case will be dismissed," Jill A. Martin, assistant general counsel for The Trump Organization, said in a statement released to Legaltech News on Nov. 5. "Like virtually every other company these days, we may have been the target of a cybersecurity threat," she added in the statement. "Upon notification, we immediately engaged independent forensic experts," the statement noted. "Although the forensic experts did not find that any customer information was removed from our systems, out of an abundance of caution we provided notice of the incident to our clients. We are also working with the U.S. Secret Service and the FBI to help catch these criminals and prosecute to the full extent of the law. We are committed to safeguarding all guests' personal information and will continue to do so vigilantly." While the investigation did not find evidence that information was taken from the hotel's systems, "it appears that there may have been unauthorized malware access to payment card information as it was inputted into the payment card systems," according to an earlier statement from the Trump organization. But the lawsuit says the defendants failed "to secure and safeguard . . . personal financial data." It may have included names, account numbers, expiration dates, PINs, security codes and other information. Trump Hotel Collection was named as a defendant in the suit. It operates or owns impacted hotels including: Trump SoHo New York, Trump National Doral, Trump International New York, Trump International Chicago, Trump International Waikiki, Trump International Hotel & Tower Las Vegas, and Trump International Toronto. Potential class members, who the Hipskind & McAninch law firm wants to represent, include "thousands" of those who made purchases at the hotels through payment cards, the lawsuit says. Moreover, the "root cause" of the data breach was the defendants' "failure to fix elementary deficiencies in their security systems, abide by industry regulations, and respond to other similar data breaches directed at retailers," the lawsuit claims. The defendants also failed to follow "best practices and industry standards." If the defendants "acted competently," the criminals "would have been unable to access the PII [personal identifiable information]." The lawsuit claims the defendants failed to have in place: Appropriate antivirus and malware detection software. Adequate lockout controls and two-factor authentication. Firewalls and appropriate network segmentation. Appropriate network intrusion detection and monitoring. And sophisticated usernames and passwords. The suit further claims the defendants failed to timely disclose the extent of the breach and failed to properly notify plaintiffs and possible class members in a timely manner. "[The] defendants' security failures enabled the hackers to access . . . PII from within [the] defendants' computer systems and put the . . . plaintiffs' . . . financial information at serious, immediate, and ongoing risk," the lawsuit claims. "The practice with such data breaches is that hackers will continue to use the information they obtained as a result of inadequate security, . . . to exploit and injure consumers by selling the PII to third parties and otherwise using the PII for illicit purposes." The case was assigned to U.S. District Court Judge David R. Herndon of the Southern District of Illinois. It is not clear what the next step in the case will be, according to information from the court clerk's office. Meanwhile, Brian Krebs has reported that Trump hotels are just one of several upscale hotel chains that experienced recent breaches. TYSON FOODS: Supreme Court Hears Arguments in Class Action ---------------------------------------------------------- Tony Mauro, writing for The National Law Journal, reports that a majority of U.S. Supreme Court justices appeared unsympathetic toward Tyson Foods Inc. on Nov. 10 in the company's quest to torpedo a class action brought by employees seeking payment for time spent donning and doffing protective gear. If the court's liberal members and Justice Anthony Kennedy end up voting against Tyson, it would be a rare win for the class action bar from a court that has been making such lawsuits incrementally harder to maintain in recent years. Arguments on Nov. 10 in Tyson Foods v. Bouphakeo represented the third time the court's young term that the justices have heard class action arguments. It is also the third or fourth Supreme Court case in recent years that's dealt with "donning and doffing," and whether the time used for putting on or taking off work clothes is compensable. At stake in the Tyson case is a nearly $6 million verdict in favor of workers at an Iowa pork processing plant who joined in a class action to challenge the underpayment. The U.S. Court of Appeals for the Eighth Circuit upheld the class action. Carter Phillips -- cphillips@sidley.com -- of Sidley Austin, arguing on behalf of Tyson, told the justices that the class was invalid because of the "widely differing" amounts of time workers at the plant take -- from 30 seconds to 15 minutes -- with the protective and sanitary gear needed for a wide range of tasks. "Small differences make a big difference," Mr. Phillips said. He banked on the 2011 high court decision in Wal-Mart Stores v. Dukes in arguing that the Tyson employees do not have enough in common to be certified as a class, and that the statistical averaging offered in the case could not be used. But several justices pounced on Mr. Phillips, with Justice Ruth Bader Ginsburg stating that, from the record, "it did not seem like that wide a disparity." Other justices questioned poor record-keeping and opportunities missed by Tyson at earlier stages of the case that could have weakened the plaintiffs' case. They also wondered whether disparities in compensation could be taken care of when the case returns to lower courts on remand. "I just don't understand your argument," Justice Kennedy said, and Justice Sonia Sotomayor echoed the sentiment. "I'm completely at a loss as to what you're complaining about," she told Mr. Phillips. David Frederick -- dfrederick@khhte.com -- of Kellogg, Huber, Hansen, Todd, Evans & Figel represented the Tyson plaintiffs. He argued that "the variations were very minor" between the donning and doffing times of the affected employees, no matter what their specific job was. Mr. Frederick added that the jury and the district court in the case also agreed that the time differences among workers were minor. UBER TECHNOLOGIES: Judge Chen to Look Into Arbitration Ruling ------------------------------------------------------------- Marisa Kendall, writing for The Recorder, reports that the scene in U.S. District Judge Edward Chen's courtroom would have been unacceptable to some judges. Arguments veered off course and left the briefs far behind -- at one point neither Chen nor the lawyers could tell which motion was being argued. The lawyers delved into brand-new arbitration case law, some of which threatened to undermine a prior ruling from Chen and force him to reverse himself. Surprisingly, the judge looked pleased. In fact, Chen instigated some of the chaos himself. He kicked off the Nov. 4 hearing by announcing he was taking "a second look" at his decision invalidating Uber Technologies Inc.'s 2014 arbitration agreement in light of an August ruling from the California Supreme Court. His reconsideration could have major consequences for the class action challenging Uber's classification of drivers as independent contractors -- a case that has pointed a national spotlight on Chen's courtroom and, fairly or not, will be the crucible that forges his reputation as an Article III judge. Depending on who you talk to, 62-year-old Chen is an open-minded jurist committed to the right result or a liberal-leaning judge who still wears the American Civil Liberties Union badge that nearly wrecked his prospects for a judicial appointment. His decisions in the Uber case, which forces Chen into the politically charged position of balancing workers' rights against innovative business practices in an imperfect legal framework, offer fuel for both narratives. While Judge Chen already has drawn criticism for some of his rulings that sided with drivers against Uber, lawyers who actually argue in Chen's courtroom tend to describe him as even-handed, commending him for showing up to hearings exceptionally well prepared and with no built-in bias. Judge Chen declined to be interviewed or to answer questions by email. Conversations with more than two dozen of his close friends and colleagues, lawyers who have appeared before him and those that know him by reputation only -- as well as a look at Judge Chen's background and his history on the bench -- suggest there's more to the judge than what one Republican critic famously decried as the "ACLU chromosome." Judge Chen's willingness to admit a mistake, which he's already done once before in the Uber case, speaks to the pains he takes to reach decisions that are both just and legally sound, lawyers said. "It's a rare thing for a judge unilaterally to do that," said defense-side employment attorney Stephen Hirschfeld -- shirschfeld@HKemploymentlaw.com -- of Hirschfeld Kraemer in San Francisco. "It goes to show that this is a judge who is extremely thoughtful." It may also signal Chen is taking a meticulous approach to the case that could define him, acutely aware that whatever he decides ultimately will be closely reviewed on appeal. "He knows this is a high-profile case," said Mr. Hirschfeld. "He wants to get it right." YOUTH AND CONSEQUENCES Judge Chen, an Oakland native born to Chinese immigrant parents, started his career as a passionate civil rights advocate. He specialized in discrimination cases, drawn in particular to issues that affected the Asian-American community. After graduating from UC-Berkeley School of Law, Judge Chen worked briefly at the firm now known as Coblentz Patch Duffy & Bass before starting a 16-year stretch with the American Civil Liberties Union. "Ed was just somebody who was sensitive to people's rights and the needs of ordinary people," said retired U.S. District Judge Charles Renfrew, for whom Chen clerked from 1979 to 1980. (Chen went on to clerk for Judge James Browning of the U.S. Court of Appeals for the Ninth Circuit from 1981 to 1982.) While at Coblentz, Judge Chen had a hand in reopening the Supreme Court's landmark 1944 ruling in Korematsu v. United States that approved the internment of Japanese Americans in internment camps during World War II. San Francisco attorney Dale Minami, who led the effort to overturn the conviction of Fred Korematsu, said Judge Chen was the team's "go-to guy" for researching tough questions. Today Judge Chen comes across as brainy in a low-key way. But he hadn't always seemed destined for a position of influence, said Minami, founder of Minami Tamaki. As an undergrad at UC-Berkeley in the 1970s Judge Chen was "pretty dorky," recalled Minami, his Asian-American studies professor. "When he wrote his first papers, I said 'Who wrote these?'" said Minami. "They were brilliant." Judge Chen joined the Northern District of California's bench as a magistrate judge in 2001 at the prodding of U.S. District Judge Charles Breyer, a former Coblentz partner. He was the court's first Asian-American judge. Eight years later, Judge Chen's ACLU background became the political equivalent of a scarlet letter as he pursued confirmation to a district court seat. Sen. Jeff Sessions, R- Alabama, famously worried Chen carried the "ACLU chromosome." After a bruising fight, Judge Chen finally was confirmed in May 2011. Judge Chen kept his sense of humor throughout the ordeal, according to his friends, who say he's never been one to take himself too seriously. Consider "The Recusals," a goofy rock band of glitter bow-tie- wearing judges that Judge Chen organized to perform at this year's Northern District judicial conference. While the gig was purely for fun, Judge Chen's friends swear he's really a brilliant musician. ("Thanks to him we actually weren't terrible," Judge Breyer said.) INTELLECTUAL SPARRING On the bench, Judge Chen is known for putting counsel through their paces. Lawyers who have spent time in his San Francisco courtroom described the experience as "fun," as well as intellectually rigorous. One lawyer who recently appeared in Chen's courtroom said the judge allowed arguments to flow like a freewheeling debate, encouraging the lawyers to butt in and interrupt. "The oral argument was more like a television oral argument than a traditional oral argument," said the lawyer, who asked not to be named. He added, "I found myself having to fight to get in to respond to some of the points [opposing counsel] would make." Steve Berman of Hagens Berman Sobol Shapiro, who represented plaintiffs in privacy litigation over tracking software in cellphones, said Chen came to court impeccably prepared. "The other side was quoting a few cases they thought were key, and several times Judge Chen interrupted them and said 'Wait you need to read the rest of the sentence, because that changes the meaning,'" Mr. Berman wrote in an email. "So he has the key cases nailed." Mark Burton of the plaintiffs firm Audet & Partners remembers Judge Chen carefully scrutinizing a $228 million settlement FedEx Corp. reached with drivers in a wage-and-hour suit earlier this year. Chen's concerns that class members were being shortchanged prompted the parties to amend the agreement and provide drivers additional compensation. "He definitely didn't just accept what the parties presented to him initially," said Mr. Burton. Judge Richard Seeborg, who sits down the hall from Judge Chen on the 17th floor of the San Francisco federal courthouse, said he pays attention if a lawyer cites one of Chen's decisions. "I may not agree with it," Judge Seeborg said. "But I know it is really thoughtful and thoroughly researched, so it is one that behooves you as a judge to read." Not everyone has been pleased with Chen's rulings, however, and those on the political right are usually the ones aggrieved. In a September blog post, the conservative Washington Legal Foundation criticized Chen's decision in a case that pit cellphone retailers against the city of Berkeley. J udge Chen's order upholding a Berkeley statute that required retailers to warn customers of the radiation dangers of cellphones, the blog post stated, is part of a "disturbing trend" that threatens constitutional protections against compelled government speech. 'NOT KNEE-JERK' In the Uber case, Chen has been tough on the company from the start. He twice foiled Uber's attempts to block the employment suit. He's rejected one of Uber's central arguments -- that it's a technology company that markets an app, not a transportation business that employs drivers. And he was unimpressed with the 400 declarations Uber submitted from drivers who said they don't want to be employees. In September, he certified a portion of plaintiffs' prospective class. Some court watchers say they've spotted a pattern -- and it doesn't look good for Uber. UC-Berkeley law professor Steven Davidoff Solomon is among them. He said Judge Chen seems "favorably disposed" to the plaintiffs. "He is giving plaintiffs the benefit of the doubt in almost every circumstance," Mr. Solomon said. Mark Chenoweth, general counsel for the Washington Legal Foundation, called Judge Chen's class certification order "troubling." Uber's own claim that all workers are independent contractors suggested that common issues predominate the case, Judge Chen wrote, finding that factor weighed in favor of class certification. "Every defendant in Uber's shoes will claim that the plaintiff- workers are independent contractors," Mr. Chenoweth wrote in an email. "By the court's strained logic, this contested fact would always make class certification appropriate, regardless of other relevant and significant differences among putative class members." In October the U.S. Chamber of Commerce accused Judge Chen of viewing Uber's arbitration agreements through an overly harsh "anti-arbitration lens." His finding that Uber's arbitration agreements are unenforceable "reflects the very judicial hostility to arbitration that Congress enacted the [Federal Arbitration Act] to prevent," the Chamber's lawyers wrote in an amicus curiae brief backing Uber before the Ninth Circuit. "If allowed to stand, the ruling would potentially unsettle many millions of arbitration agreements." But Boston-based attorney Shannon Liss-Riordan, who represents Uber drivers, hasn't always been happy with Judge Chen's decisions either. Last year he nixed plaintiffs' bid for a nationwide class action, instead allowing them to bring claims only on behalf of California drivers. And he denied certification to a large chunk of plaintiffs' proposed class -- a cut Uber claimed reduced the class size by as much as 90 percent. Before rejecting the nationwide class action, however, Judge Chen had approved it. Last year, after reviewing a second judge's ruling on a nearly identical question, he acknowledged he'd erred by allowing out-of-state Uber drivers to pursue claims under California law. Judge Chen owned up to another possible mistake when he agreed to rethink his ruling tossing out Uber's 2014 arbitration agreement. In light of the California Supreme Court's August opinion in Sanchez v. Valencia, Judge Chen conceded that he may have judged Uber's agreement too harshly. To Mr. Liss-Riordan that proves critics taking shots from afar don't appreciate the care Judge Chen takes in reaching the right decisions. "He's certainly not knee-jerk ruling for the plaintiffs on anything." UNITED STATES: Animal Rights Group Sues DA Over Foie Gras Label --------------------------------------------------------------- Amanda Brontad, writing for Law.com, reports that The Animal Legal Defense Fund has waged another battle to ban foie gras from America's dinner menus. On Nov. 5, the group filed a lawsuit alleging the U.S. Department of Agriculture's failure to respond to its petition to add warning labels to foie gras violates the Administrative Procedure Act. The case is the second the ALDF has brought against the USDA over foie gras, a controversial French delicacy that comes from the livers of force-fed ducks and geese -- typically using a tube in a method called gavage. It's also one of several challenges across the country over the production of foie gras in the United States. "We focus on foie gras because it's in many ways the perfect example of everything that's wrong with factory farming," said Carter Dillard, director of litigation at the Animal Legal Defense Fund, which is based in Cotati, California. "It is barbaric in terms of how cruel it is to the animals. It creates a food product that violates every food safety standard by inducing disease in the animals." A USDA spokeswoman did not respond to a request for comment. The ALDF's latest case comes after the USDA's Food Safety and Inspection Service has failed to respond to its 2011 petition to put a label on foie gras warning consumers that it is "derived from diseased birds," citing liver disease and other ailments. By not adding that warning, the USDA runs afoul of the U.S. Poultry Products Inspection Act's requirement to assure consumers that products aren't made from "dead, dying, disabled or diseased" poultry, according to the suit, which was filed in U.S. District Court for the Northern District of California. In 2012, a coalition of animal protection groups joined ALDF in a separate case filed after the USDA's Food Safety and Inspection Service denied an earlier petition to ban foie gras altogether as an "adulterated" product under the U.S. Poultry Products Inspection Act. U.S. District Judge Otis Wright of the Central District of California, ruling on jurisdictional ground, found that the plaintiffs' challenge of the science behind foie gras raised "an issue falling squarely under the USDA's discretion." Oral arguments in that case took place before the U.S. Court of Appeals for the Ninth Circuit on Nov. 3 at the University of California at Los Angeles School of Law. In the USDA's appeal brief, U.S. Justice Department lawyers challenged the scientific claims of the Animal Legal Defense Fund and the standing of all the plaintiffs, which include four consumers. Morgan Hector, an attorney in the Los Angeles office of Steptoe & Johnson, presented oral arguments for the Animal Legal Defense Fund and the other plaintiffs. The Animal Legal Defense Fund and other animal rights groups also have filed an amicus brief in another case before the Ninth Circuit seeking to overturn a Jan. 7 ruling by U.S. District Judge Stephen Wilson of the Central District of California striking down California's ban on foie gras as preempted by the Poultry Product Inspection Act. UNLIMITED RESTORATION: Faces "Beck" Suit for FLSA Violation ----------------------------------------------------------- Christopher Beck, on his own behalf and on behalf of those similarly situated, v. Unlimited Restoration Specialist, Inc., a Florida for Profit Corporation, Case No. 8:15-cv-02572-EAK-TGW (M.D.Fla., Nov. 2, 2015), seeks overtime compensation, liquidated damages, reasonable attorney's fees, declaratory relief and other relief under the Fair Labor Standards Act. Unlimited Restoration Specialist, Inc. provides emergency restoration services for commercial, industrial, institutional, residential and multi-residential properties. The Plaintiff is represented by: Carlos V. Leach, Esq. MORGAN & MORGAN, P.A. 20 N. Orange Ave., 14th Floor P.O Box 4979 Orlando, FL 32802-4979 Phone: (407) 420-1414 Fax: (407) 245-3341 E-mail: cleach@forthepeople.com VILLAGE OF PALATINE: "Murphy" Files Privacy Suit in Ill. -------------------------------------------------------- Martin Murphy on behalf of himself and all other persons similarly situated v. The Village Of Palatine, Illinois a municipal corporation, Case No: 1:15-cv-09800 (N.D.Ill., Nov. 2, 2015), is a successor complaint to Case 10 cv 5434 (Senne v. Village of Palatine, Illinois) in which District Court Judge Matthew F. Kennelly granted summary judgment in favor of the Village and against Senne only without first ruling on class certification. The complaint seeks damages and other relief under the Driver's Privacy Protection Act. Palatine is a village in Cook County, Illinois, United States. It is a northwestern residential suburb of Chicago. The Plaintiff is represented by: Martin J. Murphy, Esq. 1222 W. Arthur Chicago, IL 60626 Phone: (312) 933-3200 E-mail: mjm@law-murphy.com VOLKSWAGEN GROUP: "Herrell" Suit Alleges Common Law Fraud --------------------------------------------------------- Jack Herrell, Sandra Herrell, Brett Alters, John Costello, Melissa Costello, Susan Sherman, and all others similarly-situated v. Volkswagen Group of America, Inc. and Volkswagen AG, Case No. 2:15-cv-13734 (E.D. Mich., October 21, 2015), is brought against the Defendants for common law fraud, unjust enrichment, breach of express warranty, violation of the Magnuson-Moss Act and the Racketeer Influenced and Corrupt Organizations Act. The Defendants are automobile design, manufacturing, distribution, and service corporations doing business within the United States. The Plaintiffs are represented by: Tana Lin, Esq. KELLER ROHRBACK LLP 1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052 Tel: (206) 623-1900 Fax: (206) 623-3384 E-mail: tlin@kellerrohrback.com - and - Elizabeth J. Cabraser, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Tel: (415) 956-1000 Fax: (415) 956-1008 E-mail: ecabraser@lchb.com VOLKSWAGEN GROUP: "Rosales" Suit Alleges Common Law Fraud --------------------------------------------------------- Jennifer Rosales, Philip Satchell, and all others similarly- situated v. Volkswagen Group of America, Inc., Volkswagen AG and Audi AG Case No. 2:15-cv-08259 (C.D. Calif., October 21, 2015), is brought against the Defendants for common law fraud, breach of implied warranty, breach of express warranty and violation of Magnuson-Moss Warranty Act. The Defendants are automobile design, manufacturing, distribution, and service corporations doing business within the United States. The Plaintiffs are represented by: Joseph W. Cotchett, Esq. COTCHETT, PITRE & McCARTHY, LLP 840 Malcolm Road Burlingame, CA 94010 Tel: (650) 697-6000 Fax: (650) 697-0577 E-mail: jcotchett@cpmlegal.com - and - Joseph C. Wilson, Esq. CURIALE WILSON LLP One Maritime Plaza, Suite 1000 San Francisco, CA 94111 Tel: (415) 908-1001 E-mail: jwilson@curialewilson.com VOLKSWAGEN GROUP: Faces "Jassem" Suit Over Defeat Devices --------------------------------------------------------- Harvey Jassem, and Nathan Wheeler, individually and on behalf of all others similarly situated v. Volkswagen Group Of America, Inc., Volkswagen AG, Audi AG, Audi Of America LLC, Audi Of America, Inc., Porsche AG and Porsche Cars North America, Inc., Case no: 2:15-cv-13865-DML-MJH (E.D.Mich., Nov. 2, 2015), alleges that Defendants deceived its customer when it installed "defeat devices" on vehicles and called these environmentally-friendly cars. Volkswagen Group Of America, Inc. is a global auto manufacturer. The Plaintiffs are represented by: Matthew Preusch, Esq. KELLER ROHRBACK L.L.P. 1129 State Street Suite 8 Santa Barbara, CA 93101 Phone: (805) 456-1496 Fax: (805) 456-1497 E-mail:mpreusch@kellerrohrback.com VOLKSWAGEN GROUP: Faces "Santos" Suit Over "CleanDiesel" Vehicles ----------------------------------------------------------------- Michael Santos, individually and on behalf of all others similarly situated v. Volkswagen Group Of America, Inc., a New Jersey Corporation, Volkswagen Ag, and DOES 1 through 50, inclusive, Case No. 2:15-cv-13864-NGE-DRG (E.D.Mich., Nov. 2, 2015), was filed over the sale of more than 482,000 Volkswagen vehicles that Volkswagen touted as "CleanDiesel" and "eco- conscious" despite knowing allegedly that the vehicles fail to satisfy even the baseline state and federal emission standards. Volkswagen AG is the parent corporation and sole owner of Volkswagen Group of America, Inc. Volkswagen AG is based in Germany and directly controls and directs the actions of Volkswagen Group of America, Inc., which acts as its agent in the United States. As a result, the Court has specific jurisdiction over Volkswagen AG. The Plaintiff is represented by: David J. Shea, Esq. Claudia C. Boonenberg, Esq. SHEA AIELLO, PLLC 26100 American Drive, Second Floor Southfield, MI Phone: (248) 354-0224 - and - William C. Carmody, Esq. SUSMAN GODFREY L.L.P. 560 Lexington Avenue, 15th Floor New York, NY 10022 Phone: (212) 336-8330 Fax: (212) 336-8340 E-mail: bcarmody@susmangodfrey.com - and - Marc M. Seltzer, Esq. Steven G. Sklaver, Esq. SUSMAN GODFREY L.L.P. 1901 Avenue of the Stars, Suite 950 Los Angeles, CA 90067-6029 Phone: (310) 789-3100 Fax: (310) 789-3150 E-mail: mseltzer@susmangodfrey.com ssklaver@susmangodfrey.com - and - Vineet Bhatia, Esq. SUSMAN GODFREY L.L.P. 1000 Louisiana, Suite 5100 Houston, TX 77002 Phone: (713) 651-9366 Fax: (713) 654-6666 E-mail: vbhatia@susmangodfrey.com * Worker Misclassification Problem Prevails ------------------------------------------- Catherine L. Fisk, writing for The National Law Journal, reports that Companies often hire workers as independent contractors to avoid minimum wage and overtime laws and because workers can be terminated without liability for discrimination, retaliation or harassment, and the employer need not pay its share of payroll taxes to fund unemployment, disability and Social Security insurance. But an employer that maintains control over its workforce while avoiding compliance with employment laws has misclassified its employees. Federal, state and local governments object to misclassification when the public must foot the bill for unemployment or other benefits -- an annual tax shortfall that the Congressional Research Service estimated at $290 billion in 2011. The misclassification problem is so endemic in some industries, especially ridesharing, that states should consider adopting a model pioneered in Minnesota and presume that all workers in certain sectors are employees unless the employer proves to a regulatory agency that workers are genuinely independent contractors. When a company offering services controls how the services are provided to ensure a steady supply of labor of uniform quality and price, the company is the employer. When ordering an Uber, the user has little choice in picking the driver, and Uber gives the driver no control over price or whether to accept a ride. Some companies in the "sharing" economy serve only as a hub (like online classified ads) for consumers and providers and do not control the people who offer services. But Uber is not one of them. FedEx regulates the kind of truck drivers use, the routes they drive, when they pick up packages from the warehouse, and what drivers are paid. As a consequence, FedEx drivers have no real ability to use their truck for other jobs or to make a larger profit by working harder or more efficiently. For this reason, the National Labor Relations Board has consistently rejected FedEx's claim that its drivers are independent contractors. Uber claims they give drivers a fair amount of discretion in how to provide transportation service, but it issues "recommendations," which can be as specific as the type of music the driver should play in the car, and gives drivers no freedom to negotiate fares or to choose clients based on the length or the trip or the destination. True independent contractors are free to hire assistants, but ridesharing companies do not allow it. Courts and state agencies in California and Oregon have preliminarily rejected ridesharing company arguments that they are technology companies that simply provide a platform for drivers and passengers to meet. In O'Connor v. Uber Technologies, a federal judge in the Northern District of California denied Uber's motion for summary judgment, reasoning that Uber would not function without drivers giving rides and Uber exercises substantial control over fares and selection of drivers. In Cotter v. Lyft, the Central District of California denied summary judgment for another ridesharing company, Lyft, which at the time only recommended a fare, leaving passengers to choose to pay a greater or lesser amount, of which Lyft would take a 20 percent cut. (Lyft has since switched to the standard practice of not giving passengers fare discretion beyond the gratuity.) Nearly half the states have simplified their law to focus on only three criteria to distinguish employees from contractors. This streamlined "ABC" test considers: (A) whether the worker is free from control or direction; (B) whether the work is done outside the usual course of business of the person or entity that hires the worker; and (C) whether the worker is customarily engaged in an independent trade or business of the same nature as that involved in the work performed for the hiring entity. Yet misclassification still occurs. Some companies attempt to maintain effective control over their workforce without being employers by requiring workers to form business entities, typically LLCs or franchises. In Awuah v. Coverall North America, the Massachusetts federal district court held that janitors who were nominally franchisees of Coverall were actually employees. The court applied the three-prong ABC test of Massachusetts and granted summary judgment to the workers on the ground that their service was the usual course of business of the employer. The court found that, since Coverall trained staff, contracted with and billed customers and kept a percentage of cleaning revenue, its janitors were employees. New York has enacted legislation attempting to prevent misclassification of construction workers as business entities by saying that a worker operating as a separate business entity is an employee unless he has substantially invested capital in the entity beyond equipment and a vehicle, regularly making services available to the general public when the worker chooses. Oregon law provides that business entities may be employees. In addition, at least one court has found that a company that offers the service of helping other companies and their employees set up separate business entities is aiding and abetting misclassification. To end the cat-and-mouse game, states should create a presumption of employee status. Washington state considered and Minnesota enacted laws classifying workers as employees by default unless employers first show that they are independent contractors. Minnesota provides that any construction industry company wishing to hire workers as contractors must petition to obtain independent contractor status for its labor. The Minnesota system is narrowly tailored to target specific industries where misclassification is rife, without imposing additional regulation in industries where misclassification is not an issue. Asbestos Litigation ASBESTOS UPDATE: Water Corp. Workers Exposed to Deadly Fibro ------------------------------------------------------------ ABC News reported that fifty more people than first thought were potentially exposed to asbestos while working on a Water Corporation maintenance project in Western Australia's Wheatbelt, the State Government has said. Water Minister Mia Davies confirmed in State Parliament, 138 people were potentially exposed to asbestos from a tank at a reservoir near Wyalkatchem earlier. At first it was thought 88 people may have been exposed to the asbestos, a number that included both corporation staff and contractors, but Ms Davies said that number had grown after further investigations. The Water Corporation ordered an investigation when the problem first came to light. That is continuing, but the corporation said the health risk to workers was "relatively low". Ms Davies said the additional affected people were now being looked after. "We have taken time to make sure we have cast a very broad net to ensure everyone that may have had an involvement or interaction in that site is availed of the information the Corporation is providing and that they are offered assistance," Ms Davies told Parliament. "There is unfortunately an increase in the numbers from when we first spoke about this in this place but it has been a result of a very thorough and ongoing investigation into how this came about. "In the interim [while the investigation is ongoing] the Water Corporation is looking at their other sites, making sure they are putting in place mechanisms to prevent this from happening again." Asked for details about the investigation, a Water Corporation spokeswoman said preliminary outcomes showed the utility's processes for managing asbestos on the site were "not adequate". "It has also identified opportunities to deliver improvements in the management of asbestos across its business," the spokeswoman said. ASBESTOS UPDATE: Nevada Health Agency Downplays Fibro Concerns -------------------------------------------------------------- George Knapp and Matt Adams, writing Las Vegas Now, reported that for Nevada's Department of Health and Human Services might be facing tough questions once the governor learns about the content of their internal emails. Messages obtained from state computers show high-ranking officials displayed contempt for those who disagreed with them about asbestos issues. The 8 News NOW I-Team requested all emails to or from the two top officials at the health agency. Those officials have insisted the public has nothing to worry about because of natural asbestos deposits in southern Nevada, even though other state agencies and outside experts strongly disagree. The emails spell out how far these officials would go to make sure their opinions prevailed. State health officials latched onto one viewpoint about asbestos, right in the beginning, and have since rejected all other opinions or input. They've declined requests to study asbestos issues side by side with university professors. Their emails contain snarky potshots aimed at media members, and they worked in unison to avoid outside accountability, even when asked to do so by the governor of Nevada. It's probably fortunate that Nevada Governor Brian Sandoval never granted any interviews about asbestos issues, because if he had relied on the talking points provided to his office by state health officials, it could have been a major embarrassment. The talking points are rife with errors and spin. Ever since naturally occurring asbestos was discovered in southern Nevada in 2012, state health officials have struggled to control the narrative. Never once, in the scores of emails obtained by the I-Team, do state officials ask themselves whether they might be wrong about the risk posed by asbestos. Instead they focused almost exclusively on how to convince everyone else that they were right. From the beginning, they developed an ever-changing list of talking points. From the earliest version of an email to a 2015 edition of the email which was written for the governor a few days after a series of stories by the I-Team aired. The talking points email blasted the I-Team stories. "The media coverage of the issue -- most acutely George Knapp -- is sensational, biased and incomplete." It also attacked the two UNLV professors for creating panic and hysteria while being outside their area of expertise. "When geologists step outside their field ... and that engender alarm, panic and hysteria." Earlier, Chief Medical Officer Dr.Tracey Green on May 5, 2105 opined that she and her staff looked solid in the news stories, while the "reporter looked crazy." That same day, Green got an email from her boss Mike Willden telling her, "As you can read below ... the governor wants a follow up with reporter George Knapp." But Green defied the governor, saying, "We spent over an hour with him ... I do not feel more time with Mr. Knapp would be productive." It wasn't the only time she, and her staff, blew off a directive from the boss. Governor Sandoval has shown a keen interest in the asbestos flap since early on. After all, he's been a strong proponent of building the I-11 bypass, which -- it turns out -- plows right through the heart of the asbestos fields discovered by UNLV medical geologists Brenda Buck and Rod Metcalf. When the state heard that Buck and Metcalf were working on a paper suggesting a possible link between the asbestos in the desert and elevated levels of disease, state officials shut them down, forbid the team from talking about their findings, and barred them from ever accessing the Nevada Cancer Registry again. Even though state health officials intimated in emails that Buck and Metcalf might be engaged in scientific fraud comparable to disgraced vaccine researcher Andrew Wakefield, the same opinion wasn't shared by another state agency. The Department of Transportation, NDOT, which hired the two to study asbestos for the I-11 project. "We were surprised that this segment of the state was interested in the asbestos and the other segment, you know, said cease working on it," Buck said. Unlike its counterparts in the health agencies, NDOT took the asbestos issue very seriously, which is why it suspended the highway project for a year and spent millions of dollars to protect workers from asbestos exposure during construction. Health officials, who had told the public many times that the asbestos posed no risk, reluctantly had to change their stance. "We never said the occupational workers or construction workers could not be at increased risk. We have never said that," said Green. "But you are saying there is no risk, no increased risk?" I-Team George Knapp asked. "To the community," Green answered. It wasn't the only time words were parsed by health officials, which might explain why in January 2014 the governor said he wanted to see an independent agency to review the asbestos data. The request caused a bit of a tizzy. "Not sure why the governor is requesting this," one email remarked. But, they quickly came up with an idea for sidestepping the boss again ... get Paulo to do it. That first name appears throughout the health agency emails, so familiar to his colleagues that there was no need to mention his last name. Dr. Paolo Pinheiro is a UNLV epidemiologist who has repeatedly been touted by health officials an independent investigator not affiliated with state health, Green told the I-Team. But as the I-Team discovered, Dr. Pinheiro has accepted tens of thousands of dollars in grants from Green's agency and he is listed as the official epidemiologist for the Nevada Cancer Registry, which Green oversees. Back in 2012, when the state first learned that Dr. Francine Baumann was working on a paper about asbestos an email went out Oct. 14, 2012 to all senior staff at the agency, including Dr. Pinheiro. "Probably we need to discuss again our next step in dealing with this doctor (Dr. Baumann) especially that she did not previously respect our rules and regulations." That next step turned to be the cease and desist order. Pinherio became the go-to guy when state health needed something written to counter the idea that natural asbestos might be a danger to public health. In February, Pinherio exchanged multiple emails in which he was asked to write to a medical journal to rebut an article by Baumann. Still, the agency pretended it was all done independently ... "if he would like to, it needs to be initiated and done by him, not at our request," Green wrote. ASBESTOS UPDATE: Govt Agency to Remove Fibro from Sydney Dumpsite ----------------------------------------------------------------- Yahoo News, reported that the NSW road authority has been given less than a month to start removing piles of asbestos from Sydney's inner-west. The Environment Protection Authority (EPA) has told the Roads and Maritime Services (RMS) to start shifting stockpiles of asbestos- laden soil from a former St Peters landfill site by December 7. RMS has been given until May to clear the deadly fibres from the site. The maximum penalty for not complying with the clean-up notice is $1 million, and $120,000 every day the offence continues. ASBESTOS UPDATE: Silver Schemes Legal Fees from Fibro Victims ------------------------------------------------------------- Josh Saul and Bruce Golding, writing for New York Post, reported that Sheldon Silver was so eager to get his hands on legal fees paid by asbestos victims that a top lawyer at his firm had to personally deposit the checks into the pol's bank account to speed up the process, a witness testified at the former Assembly speaker's corruption trial. Prosecution witness Gary Klein, managing attorney of asbestos- litigation firm Weitz & Luxenberg, said Silver pitched a fit when he thought he wasn't receiving his money quickly enough. "He said that he was upset or angry that it took a couple of weeks from when a check was issued to when it reached his mail," Klein told jurors in Manhattan federal court. In an effort to placate the powerful politician, Klein told the firm's accounting department to deliver Silver's checks to the speaker's secretary at the firm, but they just "sat in a drawer" waiting for Silver to pick them up, he testified. Klein said he then had Silver supply him with a custom-made rubber stamp so Klein could endorse Silver's checks and take them to the bank himself -- even if it required a special trip "to make sure the deposits were more timely." "I would go to HSBC Bank. I would deposit the check with a teller," Klein said. Upon completing the errands, the high-powered lawyer would send Silver a "text or e-mail, or I would leave a deposit slip on his chair," Klein testified. According to previous testimony, Silver pocketed more than $3.3 million by bringing dozens of asbestos victims to Weitz & Luxenberg, which specializes in litigation over asbestos-related cancer. The feds say Columbia University cancer doctor Robert Taub steered patients to Silver as part of an illegal quid pro quo in which Silver funneled Taub $500,000 in taxpayer-funded research grants. Taub ratted out Silver to avoid prosecution in the alleged scheme and spent two days on the witness stand. In addition to asbestos-related income, Silver collected $804,000 for bringing Weitz & Luxenberg negligence claims involving friends and neighbors. He would have made even more, but the firm rejected 22 cases he referred to it between 2003 and 2014, according to internal documents presented by prosecutors. Silver was also paid $120,000 a year by Weitz & Luxenberg, with Klein testifying that the Manhattan Democrat was the firm's only lawyer who got a salary without having "to work on any case files." Klein said the personal services he performed for Silver also include upgrading the pol's cellphone and taking care of the costs. "[Firm co-founder] Arthur Luxenberg and I were kidding around that Shelly had to come out of the Dark Ages because he had a flip phone," Klein said. "So I had Aaron Zuckerman go out to Verizon to pick him up a BlackBerry." Klein said he had the phone added to his personal account, noting, "I paid the bill, and the firm reimbursed me." Also, Luxenberg testified that Silver was hired based on the belief that he "would bring prestige to the firm and help the name of the firm." "We didn't think he would use his position at all to bring cases to the firm," Luxenberg said. Luxenberg also said that throughout Silver's time there, the firm refused to handle any cases involving state government, to avoid the "appearance of impropriety." Following Silver's January arrest, Weitz & Luxenberg announced that he was taking a leave of absence pending resolution of the charges against him, with Silver saying he didn't want "to be a distraction, especially since there was no wrongdoing by the firm." Silver also stepped down from his longtime Assembly leadership post but held on to his seat. ASBESTOS UPDATE: Broadlea Pupils Sent Home Due to Fibro Exposure ---------------------------------------------------------------- Island Echo reported that parents and guardians were requested to collect their children 'as soon as possible' shortly before midday with a vague explanation of 'due to work near the kitchen area', which left many confused as to what was going on. Rumours of something more sinister than a gas or water leak began to circulate, with fears exacerbated after Emscar asbestos removal vans were spotted parked outside the school last night. Parents need not worry though -- it has now been confirmed that asbestos has indeed been found at the school during work to fix a water leak, however the risk of contamination 'was extremely low at all times'. A spokesperson for the Isle of Wight Council, the Local Education Authority, has told Island Echo: "During work to detect a water leak and reinstate hot water and heating in the kitchen area, a small amount of asbestos was discovered when removing part of the floor. This is very common in the fabric of older buildings. "Although the risk of contamination was extremely low at all times, the area was closed as a precaution and the school management team contacted the council for advice. "Because the school was therefore unable to provide meals, either on site or using external caterers, the school closed at midday as a precaution and parents were contacted in advance. "Work is already underway to remove the small amount of asbestos that was discovered and it is expected this will be completed by (11 November). A thorough clean of the affected area will then be undertaken. "The school opened as normal (10 November). Children who usually receive school dinners will instead be provided with a packed lunch." ASBESTOS UPDATE: Liverpool Staff Exposed to Fibro Contamination --------------------------------------------------------------- Mohamed Taha, writing for ABC News, reported that Liverpool councillors passed the motion unanimously in an extraordinary meeting on night after initial concerns about contaminated soil were raised. Asbestos is a notorious carcinogen and more than 10,000 Australians have died from mesothelioma since the 1980s. The disease is caused by exposure, and strict laws over asbestos removal and disposal apply nationwide. Councillor Peter Ristevski first raised the issue at a meeting on November 3 after he received information from the United Services Union about 22 sites which could be affected by the contaminated fill, including parks, reserves and waterways, some of which are near schools. "I do believe council was fined about two years ago by the Environment Protection Authority (EPA) for $150,000 for not following process [asbestos-related records]," he said. "Here we are two years later and the EPA is back with a fine I believe in the $4-million mark, that doesn't include the clean-up cost. "The contingent liability to ratepayers could be $20-million plus. That's unacceptable." Councillor Ristevski said there was a potential health risk to council workers and residents who might come across the contamination. "A lot of the footpaths that have been built by us in the last 18 months to two years have used this asbestos-contaminated backfill," he said. "If a council worker mows across this material, that then becomes airborne. "That will affect not only council workers but residents that live around the local area." Councillor Ristevski said he was concerned that council's management did not act on the matter sooner. "The mayor and the CEO have known about this for months, for them to not act upon it, but more importantly stifle debate when I raised the motion is concerning," he said. Council first told about contamination earlier in 2015 Liverpool Council CEO Carl Wulff said the council was first told about the contamination earlier. "The alleged contamination probably earlier in a general sense, we didn't have a significant idea of the totality of it," he said. "It's fair to say what we found in the testing program is very minuscule in terms of asbestos contamination overall." Mr Wulff said the council had not acted on the information earlier as the contamination was small and it was waiting for direction from the NSW EPA. "There wasn't an urgency because the extent of the contamination in terms of asbestos is very small," he said. "It's in solid form and, as most people would know, asbestos is only a problem if it's in airborne form so it's not a public hazard at the moment. "So there wasn't a need to do dramatic things when we did find out there was some contamination in the material." Mr Wulff said the council's soil storage facility, the Western Depot in Kemps Creek, was one of the potential sources for the contamination. "The whole site has been fenced off, it's not excluded," he said. "None of the workers are going on those sites. "It'll be one of the sites we remediate in consultation with the EPA." Mr Wulff said the council was now working closely with the EPA to address the 22 sites under investigation. "We've gone through an audit process," he said. "We're now providing them with a statement about how we anticipate remediating those sites." The EPA told the ABC it had begun an investigation into sites of potential contamination. "The NSW Environment Protection Authority is currently investigating allegations that Liverpool Council has unlawfully disposed waste at a number of properties in the Liverpool Council area," a spokesperson said. Residents and workers concerned about sites, union says Hammondville resident John Davis has lived in his Sligar Avenue home for 45 years. He lives with his wife Joan and is currently being treated for oesophageal cancer. Mr Davies said he received a letter from the council in September stating a tree hedge in front of his home had asbestos- contamination in the soil and the clean up would take five days. He said the site still had not been completed and he was concerned about his health. "So when the wind blows ...we have to put up with more of it," he said. "We thought Council would be more responsible to allow this to happen without testing the soil." Mr Davies said he wanted the council to finish the site immediately. "Get something done with it, get off your arse and put us a decent nature strip there, instead of a dust ball that's probably full of asbestos." General secretary of the United Services Union Graeme Kelly, which represents council workers, said the union found out about the contamination from workers in late October. "We raised those concerns with Council on the 27th of October and got it sent to a Council meeting on the 29th of October," he said. "The council rejected the union's claims." Mr Kelly said many of the union's members were concerned about their health. "We've had members crying because they know the affects of contamination by asbestos is long-term, it's a very debilitating death," he said. "To have a council that has taken a blaze attitude to workers' health is nothing short of a disgrace." He said the union would meet with the Minister for Local Government Paul Toole to take the issue further. "If they've [the council] known about it for five months and they've breached EPA regulations and directions from a previous event then they need to be dealt with," he said. "We're calling on the Minister for Local Government to take a very strong look at Liverpool City Council, at their failure to notify the community of the dangers in their area." ASBESTOS UPDATE: Concordia Won't Retract Fibro Report ----------------------------------------------------- Jesse Feith, writing for Montreal Gazette, reported that despite acknowledging an "oversight" by failing to notice a conflict of interest before commissioning and publishing a report on Quebec's asbestos industry, Concordia University does not plan to officially retract the report in question. "The university believes that the actions that have been taken are appropriate given the circumstances. That further investigation or any other action is not necessary or warranted," said spokesperson Chris Mota. "We are not considering retracting the report." The report, published in July, on public relations lessons that can be learned from Quebec's asbestos industry was written by John Molson School of Business lecturer John Aylen. It aimed to answer whether or not "there can be meaningful dialogue and consensus when facts come up against feelings." Aylen argues facts will never trump feelings when it comes to public opinion, and attempts to prove as much by using events in the two years leading up to the Quebec government cancelling the $58-million loan planned for the Jeffrey Mine as an example. Kathleen Ruff, a senior adviser with the Ottawa-based Rideau Institute, took issue with the report for not disclosing that Aylen has repeatedly spoken and written in favour of the asbestos industry. Aylen had in the past been a paid spokesperson for Baljit Chadha, who was the lead proponent of the Jeffrey Mine expansion, and thanks him under a pseudonym in the acknowledgments section of the report. A letter Ruff and a group of scientists and human-rights advisers wrote to Concordia sparked a review of the report, which led to the university removing it from its website on July 24. In a response sent to Ruff on Oct. 26, Concordia president Alan Shepard wrote that "a formal inquiry was conducted into this matter." "The inquiry revealed that the analysis and disclosure of the author's previous involvement with the asbestos industry was dealt with inadequately and that a review of some of the process of the Luc Beauregard Centre of Excellence in Communications Research should and will be undertaken," Shepard's response reads. Motta said the university will be assessing the process that allowed the report to be published in the first place. "We're going to have someone look into this and see what we can do to make sure something like this doesn't happen again," she said. But Ruff said she feels that isn't enough. "The reality is that it's an official report endorsed by Concordia University," she said. "A report that's full of false information that will help sell asbestos and promote the misinformation that asbestos is safe." "We're glad they're not promoting it on their website," she added, "But they have not retracted it." The university has not released any statement or press release about the issue since removing the report from its website. Ruff wants Concordia to officially retract the report, and explain how it was allowed to be published in the first place. "This is what reputable scientific publications do, what reputable scientific and academic organizations do," she said. "When they find there has been wrongdoing, that false information has been published in their name, they take responsibility for it and they make it clear that it is no longer an official report that represents (them)." ASBESTOS UPDATE: Gateway Arch Museum Project Stopped Due to Fibro ----------------------------------------------------------------- Andy Banker, writing for Fox2Now.com, reported that a work zone at the Gateway Arch has been shut down until further notice because of asbestos. This is in the museum work zone, under the Arch. Tests came back positive for the cancer-causing material, but neither the contractor nor the National Park Service informed the public. There was no public alert; workers told Fox 2 News that insulation on a steam pipe in their demolition zone was exposed for a month or more before it was finally tested. According to a statement from the National Park Service, prior to the work starting, all materials known to contain asbestos were safely removed. However, the pipe in question was in an area that was inaccessible until after the demolition began. And while the work area is sealed off from where visitors catch tram rides to the top of the Arch, there are no signs anything about an asbestos exposure. Workers have gotten the initial test results and letters offering them lung testing, chest x-rays, and a doctor consultation at the contractor's expense. The NPS said the museum work zone will remain closed until final test results come back negative for any airborne asbestos. ASBESTOS UPDATE: School Fire Responders May be Exposed to Fibro --------------------------------------------------------------- Lisa Demer, writing for Alaska Dispatch News, reported that as many as 50 city workers and volunteers may have been exposed to asbestos or other hazardous materials while responding to the Nov. 3 school fire in Bethel, City Manager Ann Capela. It's unlikely that any exposure was long enough to cause health issues, which can take decades to materialize, a state public health official said. Capela said the city still is obligated by worker safety rules to notify employees and volunteers of possible exposure so they can decide whether any testing or treatment is needed. The group includes city fire crews, volunteer firefighters, city water truck drivers who delivered water to holding tanks at the scene and private operators of heavy equipment that cut the school in two to make a firewall, she said. More than 250,000 gallons of water were used, all delivered to the fire scene by truck since that part of Bethel doesn't have piped water. The city is identifying the affected workers and volunteers and intends to set up a meeting with an environmental specialist so they can get questions answered quickly, Capela said. But they may not have reason to worry, said Ali Hamade, a state environmental public health program manager. "To put things into perspective, we do not believe the short-term exposure . . . would be associated with any adverse long-term risks," he said. The city and the Lower Kuskokwim School District on took part in a fire aftermath teleconference that involved various local, state and federal agencies offering assistance. The school district intends to bring in an environmental specialist to test the site for asbestos and other containments, a necessary step before the district can enter the building and evaluate whether any part of it is salvageable, Superintendent Dan Walker said. The district knew there was asbestos in the building, which was built in 1962 and housed two schools, he said. There is asbestos in many schools and other structures from that era and into the early 1980s, Walker said. It isn't considered problematic as long as it isn't disturbed, environmental experts say. The district had done a survey of the asbestos, as required by the U.S. Environmental Protection Agency. But the district, scurrying to make sure students were safe, may not have flagged its presence to the city as the fire raged. Fire crews (including volunteers) wore protective breathing apparatuses, which virtually eliminates the risk of inhaling asbestos when done correctly, Fire Chief Bill Howell said. But water truck drivers and heavy equipment operators didn't have that gear, Capela said. Had the asbestos been flagged, it's hard to know what could have been done differently, she said. Nearby residents may have been warned to stay indoors. Two investigators from the state fire marshal's office spent just a day in Bethel investigating the fire. They cut short their work once they learned of the asbestos. The state office said it is not equipped to investigate a fire involving asbestos. Its investigators are not certified in hazardous materials and they lack the proper protective equipment, according to the office. The school district said it is working to keep the site safe. It ordered fencing from Anchorage to secure the site because there weren't enough materials in Bethel, the superintendent said. The district intends to dismantle the school playground equipment so children aren't lured to the debris field. The EPA recommends that debris in this situation be kept wet and covered so it doesn't go airborne. The weather is helping. Rain has kept the site wet and fresh snow now is covering it. The big debris pile won't end up in the city of Bethel's landfill, Capela said. The landfill is not approved for toxic waste, she said. ASBESTOS UPDATE: Contractor to Clean Fibro in Victoria School ------------------------------------------------------------- Yahoo News reported that a contractor who contaminated a Melbourne primary school with asbestos has been ordered to perform a detailed clean-up. The unnamed contractor carted truckloads of soil strewn with asbestos fragments into Syndal South Primary School in Mt Waverley as part of landscape gardening works in October. The soil was sourced from a former industrial site. The education department has hired an occupational hygienist to study the soil to determine the spread and depth of any asbestos. Visible fragments have been removed and any remaining asbestos poses minimal risk if left undisturbed, the education department says. The Environmental Protection Authority has ordered the contractor to preform a clean-up, and it's been given until December 4 to specify how the clean up and ongoing management of the school will be carried out. ASBESTOS UPDATE: Sri Lanka Fibro Industry Cries Foul Over Ban ------------------------------------------------------------- Induli Hewahe, writing for Daily News, reported that the Fibre Cement Products Manufacturers Association in Sri Lanka claimed that government's decision to ban the use and import of asbestos cement roofing sheets by 2018 has created an unnecessary 'scare' with negative information reaching society. "Though there are many forms of asbestos, Sri Lanka imports only the white variety of asbestos (Chrysotile) for production of roofing and ceiling sheets,where asbestos is mixed with cement acting as a binding agent reducing fiber escape. "Though,it has been scientifically proven that only blue and brown asbestos fibre can cause cancer, it has been accepted that white asbestos has no adverse impact on human health.The decision of the government to ban asbestos roofing sheets will be highly controversial here,"Fibre Cement Products Manufacturers' Association Coordinator Anton Edema said. Compared to Asbestos Blue form, the dangers from Chrysotile products are arguably zero because its soft magnesium silicate fibers rapidly dissolve in the human lung. Chrysotile is currently used in 152 countries across the world including the USA,Edema said. This decision has been made without conducting a proper scientific study to prove health hazards linked to asbestos. For more than 60 years Sri Lanka imported white asbestos mainly from various countries.There is no concrete evidence to prove that inhaling white asbestos fibres causes lung cancers .Although the cancer is considered as one of the leading causes of deaths in Sri Lanka, not even a single case of asbestos-related lung cancer has been reported . "The government decision to ban the use of asbestos roofing sheets would directly affect the poor and middle class who struggle to put up a house of their own.Many people are so confused and they are bombarded with negative information convincing that a harmless asbestos roof might somehow pose a lethal danger. The organization has already come up with a proper marketing campaign to build a genuine confidence with the product. We have tried our best to communicate with the relevant authority in this regard. However we haven't been invited to discuss the issue at length." Rhino Roofing Products Limited Marketing Manager Priyantha Jayasinghe said. The importation and the use of Blue and Brown asbestos has been banned under the Consumer Protection Act and Imports Regulation Act in Sri Lanka since 1970. Relevant government authorities have allowed themselves to be talked into confusing the genuinely dangerous forms of asbestos with those that pose no risk -- simply because they share the same general name, asbestos. ASBESTOS UPDATE: Fibro Defendant Limited in Ways to Fight Suits --------------------------------------------------------------- Jon Campisi, writing for Legal Newsline, reported that rulings in the Newport News, Va., asbestos docket are handcuffing defendants that attempt to fight lawsuits, a national legal reform group feels. In asbestos cases playing out before judges in Newport News, plaintiffs routinely call an industrial hygienist to testify about controls and protections that are necessary to protect an industrial worker from harm. "As such, evidence of an employer's knowledge of hazards, along with what safety procedures the employer did (or did not) observe, is relevant to a number of issues in the litigation," reads a report from the American Tort Reform Association condemning the jurisdiction as a "Judicial Hellhole." And one of those issues is causation. Defendants, however, are not allowed to offer such evidence while plaintiffs experts are immune from cross-examination concerning the knowledge of employers -- i.e. the U.S. Navy or a shipyard -- about the hazards of asbestos-containing products being used and their failure to implement safety procedures, ATRA says. ATRA's annual report pegs what it feels are the least fair jurisdictions in the country as "Judicial Hellholes." It issued a mid-year report to add Newport News to that list. In an op-ed he wrote for the Newport News Daily Press, Robert Hatten, a plaintiffs attorney who brings most of the asbestos cases in that city, states that the refusal of all judges to permit evidence of an employer's knowledge or negligence in failing to warn their workers about the dangers of asbestos is not improper. Virginia laws and federal statutes prohibit negligence lawsuits against employers for work-related injuries, and maritime law prohibits the "sophisticated purchaser defense," Hatten wrote. Asbestos cases in Newport News are litigated under maritime law, not Virginia state law, a decision of the United States Supreme Court. "In plain English, the law requires manufacturers of deadly asbestos products to directly warn workers with a warning label on the product. If the manufacturer fails to warn, the law does not allow the manufacturer to blame the employer," Hatten stated. ATRA also singled out the jurisdiction's prohibition on a "dose reconstruction" defense. The term refers to a process of recreating a plaintiff's exposure history to a product based upon existing evidence. Because development of disease is often attributed to dose and not simply the product itself (think Aspirin, which could be harmless in small doses, but dangerous in large ones), defendants in asbestos cases seek to explore dose as it relates to the litigants' asbestos-related diseases. In Newport News, however, judges, rely upon Virginia common law that prohibits accident reconstruction evidence and disallow defendants' dose reconstruction evidence in asbestos cases, according to ATRA. Defense experts in Newport News also cannot express opinions of a numerical threshold of exposure below which mesothelioma does not occur, even though such opinions come from peer-reviewed scientific literature that is often used in asbestos trials in other jurisdictions, ATRA's report states. "In the face of such evidentiary limitations, a defendant can mount no effective counter to the plaintiff's causation theory," the report says. ATRA claims that the prohibition on dose reconstruction evidence is not equally applied to plaintiffs, who are allowed to offer evidence of "work practice simulations," which involve videotaped testing of a given product manipulated in various ways, the report states. ATRA claims that this is basically dose reconstruction testimony going by a different name. This issue of dose reconstruction and another issue concerning a lower-than-typical causation standard threshold are handled at the judicial level, and in Newport News it's often the same judges who are presiding over those matters. According to ATRA, out of five Newport News judges, it is often the same two judges who have presided over asbestos cases. They are Judge David Pugh and former Judge Aundria Foster. ATRA provided Legal Newsline with a number of pretrial orders from asbestos cases in which Pugh, a majority of the times, Foster on one occasion, and one other jurist ruled against defendants, often for the same reasons. In most of these cases, the judges granted the plaintiffs' motions to strike the "sophisticated user defense," limit testimony of industrial hygiene and medical experts, and prohibit dose reconstruction testimony. ATRA maintains that it is simply unfair to prohibit dose reconstruction evidence from the defense while permitting plaintiffs to offer evidence of "workplace simulations," often through a materials science expert named William Longo. Longo's studies typically show results that are said to be representative exposure levels that an individual may experience in a given activity, according to ATRA's report on Newport News. Longo is then allowed to offer testimony in court regarding the volume of air one breathes in a given period of time and explain to jurors how many asbestos fibers a person may experience throughout the span of a career. "To any reasonable observer," the ATRA states in its report, "this appears to be dose reconstruction testimony." Furthermore, ATRA claims that defense experts in Newport News asbestos cases are not allowed to introduce numerical evidence comparing the potency or toxicity of different asbestos fibers. Because of the limitations, ATRA claims attorneys representing asbestos defendants cannot mount an effective defense that counters plaintiffs' causation theories. Hatton wrote in his op-ed that this isn't the case. "(L)ocal judges routinely permit defense experts to testify that low exposure to the defendant's product was not a significant cause of the plaintiff's mesothelioma," he wrote. "The juries have never believed their testimony because it is contradicted by well accepted science that low exposures do cause mesothelioma." ASBESTOS UPDATE: Man Fined for Illegal Dumping on Fibro Waste ------------------------------------------------------------- Dave Doyle, writing for Rotherham Advertiser, reported that a sunnyside man has been charged over GBP1,000 for fly-tipping a "large amount" of asbestos. Christopher Rowlands, of The Wellway, was fined GBP750 and ordered to pay GBP634.86 in costs after admitting the offence at Rotherham Magistrates' Court. Rowlands dumped the cancer-causing substance and other construction waste at Laudsdale Road, East Herringthorpe on February 5. A witness saw the dumping happen and noted down the registration of a Ford Transit van. Council officers interviewed Rowlands, who initially denied being responsible. He then failed to attend two further interviews, so Rotherham Council referred the case to magistrates. Rowlands pleaded guilty to fly tipping in court on November 4. Cllr Kath Sims, cabinet member for waste and enforcement, said: "We are committed to doing all we can to stop fly tipping. "I hope this case sends out a strong message that these crimes are serious and we will do all we can to secure convictions on behalf of the borough's residents." Illegal dumping costs the council GBP87,600 to clear up every year, with money coming out of the street-cleaning budget. The authority collects furniture and appliances for disposal -- the charge is just GBP21 for up to three items, with 50 percent off for Rothercard holders. Cllr Sims added: "There is absolutely no excuse for fly tipping, especially in cases like this when what was dumped was corrugated asbestos sheeting. "This type of waste needs to be handled and disposed of correctly to avoid it becoming a health hazard. "I would urge anyone who sees any fly tipping to report it to us so that we can take action against the culprits." ASBESTOS UPDATE: Jungle 2 Camp Littered with Fibro Waste -------------------------------------------------------- James Dunn, writing for Daily Mail, reported that the Jungle 2 camp is littered with asbestos that could pose a cancer risk to thousands of migrants at the infamous Calais site, it has been revealed Many migrants are using dangerous white asbestos blocks to hold down plastic sheeting on their makeshift homes in the Jungle 2 camp, which is home to around 6,000 migrants. The sand in the infamous camp is also scattered with small pieces of the banned substance, and health experts say the fact they are fractured makes them even more dangerous. The samples were gathered from an area of the site -- mainly occupied by Sudanese migrants -- and taken to a UKAS accredited laboratory in Tyneside which confirmed they are carcinogenic. One group of young Sudanese men invited Channel 4 News, which found the substance, into to their temporary home and said it is almost impossible to avoid treading in asbestos fragments while walking around the camp. Dr Surindar Dhesi, an expert in Occupational Health, Safety and the Environment at the University of Birmingham, said: 'All forms of asbestos are known to increase the risk of cancer and the mechanism for that is asbestos is made up of fibres and these fibres can get deep into the lungs.' He added: 'Once that material is broken, there's a potential for the fibres to escape and then they can be inhaled and that's where the risk is.' The Tyneside laboratory confirmed that the substance is a form of asbestos called Chrysotile, which is designated a highly carcinogenic substance by the International Agency for Research on Cancer and is a main cause of Pleural Mesothelioma. The French government, which is responsible for building accommodation at the site, banned the importation and sale of all forms of asbestos for public health reasons in 1996. The discovery of deadly asbestos at the camp is the latest health hazard to be identified at the camp, which reportedly was previously a landfill site. The site is just across the road from two large chemical plants which are covered by the European Union's Seveso III directive as sites which contain dangerous substances and which could pose serious health hazards in the event of an accident. A French government emergency plan shows an accident at the site could lead to the 'risk of intoxication, fire and explosions' because the chemicals used at the plant are 'inflammable, toxic to humans and toxic to the environment.' Joe Murphy and Joe Robertson run the Good Chance Theatre at the camp for those who pass through here or stay longer, trying in the main, to get into Britain. They came across the asbestos and once found in one place, they quickly realised it is all over the camp. 'We didn't know what it was until it was pointed out to us but it is everywhere and nobody seems quite sure how it got here,' said Joe Robertson. ASBESTOS UPDATE: Family Says Silver Cheated Them on Fibro Deal -------------------------------------------------------------- Josh Saul, Lia Eustachewich and Bruce Golding, writing for New York Post, reported that relatives of an asbestos-cancer victim steered to former Assembly Speaker Sheldon Silver's law firm in what the feds called an "illegal quid pro quo" say the disgraceful deal-making cheated them out of a rightful settlement. Andrea Rega of Cape Cod, Mass. -- whose late father, Aniello, was one of scores of cancer patients sent to Silver's law firm, Weitz & Luxenberg, by a doctor allegedly in exchange for New York state research grants -- told The Post that the Manhattan Democrat's fee from the deals cheated the family out of money. "I'm convinced the law firm would've worked much harder for my father's case if they weren't giving Sheldon Silver the 33 percent," Rega said. "That's why the law firm wasn't working as hard as they could -- because somebody else was taking the money." Aniello Rega, an Italian-immigrant who lived in Valley Cottage, NY, was diagnosed in 2011 with mesothelioma that his family blames on his work as a barber at the Nanuet Mall, where asbestos was removed during a 2012 reconstruction project. He died in 2013. Andrea Rega specifically faulted Weitz & Luxenberg for not suing the mall owners. Another woman said her granddad was affected by Silver's alleged shenanigans. "It's really disappointing to know that my grandfather was taken advantage of when he was so vulnerable," Moriah Nutter said of Robert McKinley, who died in 2009. "That doesn't sit with me too well, that somebody would use him in that way just to get money," she said. McKinley and Aniello Rega were among dozens of mesothelioma patients sent to Silver by Columbia University cancer doctor Robert Taub in exchange for $500,000 in taxpayer-funded research grants, prosecutors say. Silver made more than $3.3 million from the scheme, the feds say, while Taub turned rat to avoid getting charged as a co-defendant and spent two days on the witness stand. Silver's defense lawyers didn't respond to requests for comment, but a Weitz & Luxenberg spokeswoman said: "In mesothelioma cases, we vigorously pursue any company responsible for exposing the victim to asbestos, to try and seek restitution for the immeasurable suffering of victims and their families. "However, the law in New York prohibits plaintiffs from pursuing a direct cause of action against their employers . . . Victims are only able to seek justice from the companies responsible for their exposure to asbestos." ASBESTOS UPDATE: Louisiana Court Remands Fibro Suit --------------------------------------------------- HarrisMartin.com reported that a Louisiana federal court has remanded an asbestos exposure lawsuit, saying that a bankrupt defendant's citizenship is still relevant for the purposes of determining whether diversity jurisdiction exists. In the Nov. 10 opinion, the U.S. District Court for the Eastern District of Louisiana rejected Foster Wheeler's position that since it was the only remaining defendant in the case against which claims could actively be pursued, federal jurisdiction was proper. The plaintiffs asserted the claims on behalf of Paul Poche, contending that he developed mesothelioma as a result of exposure to asbestos-containing products. ASBESTOS UPDATE: DEP Fines Fitchburg Properties Over Fibro ---------------------------------------------------------- Sentinel & Enterprise News reported that the Massachusetts Department of Environmental Protection has assessed Fitchburg Properties LLC a $35,625 penalty for violation of state asbestos regulations that occurred at its facility located at 32 Oak Hill Road in Fitchburg. In September 2013, MassDEP inspectors observed that asbestos- containing pipe insulation had been improperly removed from a decommissioned heating system. Pieces of dry, friable asbestos-containing insulation were observed on the floor throughout the facility, on a loading dock and on the ground outside the building at the site. MassDEP required Fitchburg Properties to retain an asbestos contractor licensed by the Massachusetts Department of Labor Standards to clean up and decontaminate all affected parts of the facility. MassDEP regulations require asbestos-containing materials to be removed wet, and to be sealed while wet into leak-tight containers with appropriate warning labels. Areas where asbestos removal will occur must be sealed off and air-filtration equipment must be operated during the abatement work. Under the terms of a consent order, the company will pay $15,000 of the penalty, and the remaining $20,625 will be suspended providing it has no further violations for one year. The company must also follow all asbestos regulations on future projects. "Before starting demolition or renovation, property owners must identify asbestos-containing materials so they can be properly removed and handled in accordance with the regulation. Asbestos is a known carcinogen, and following the required work practices protects workers as well as the general public," said Mary Jude Pigsley, director of MassDEP's Central Regional Office in Worcester. "Failure to do so will result in penalties, as well as escalated cleanup, decontamination and monitoring costs." MassDEP is responsible for ensuring clean air and water, safe management and recycling of solid and hazardous wastes, timely cleanup of hazardous waste sites and spills and the preservation of wetlands and coastal resources. ASBESTOS UPDATE: Scores of Lisbon Bldgs Cleared of Fibro by 2017 ---------------------------------------------------------------- The Portugal News Online reported that Lisbon Town Hall has said that over the next three years it intends to take care of the 42 municipal buildings that have been identified by council services as containing asbestos, and rid them of the hazardous material. Manuel Salgado, Councillor for Urbanism, said that council services last October flagged 42 municipal buildings as having asbestos in them. "By 2017 it will be removed from all of them," Salgado said at a municipal assembly, in response to a question posed by the PEV green party. Of the 42 buildings identified by the council, 13 are used for municipal services, five are used by local fire-fighters and municipal police, 14 are schools, four are sports facilities and two are cemeteries. The councillor also said that of the private buildings that have been identified, two in Benfica "have already been demolished." ASBESTOS UPDATE: Damages Claim of Fibro Victim's Family Dismissed ----------------------------------------------------------------- Scottish Legal News reported that the relatives of a mechanical fitter who died as a result of exposure to asbestos have had an action for damages against his former employers for alleged wrongdoings that occurred in England dismissed as "irrelevant" by a judge in the Court of Session. Lord Boyd of Duncansby heard that the 24 pursuers, all relatives of the late James Docherty, had brought a personal injury action against the Secretary of State for Business Innovation and Skills, the first defender, as successor to the rights and liabilities of Scott's Shipbuilding and Engineering Company Limited, and Imperial Chemical Industries Limited, the second defender. The first pursuer Louise Docherty, the widow and executrix nominate on the deceased's estate, along witht the 23 other pursuers, sought damages from the defenders jointly and severally under the Damages (Scotland) Act 2011. The pursuers averred that the deceased was a mechanical fitter and served an apprenticeship as a marine engineer with the first defenders in or about 1941 to 1947, and that in the course of that employment he was exposed to asbestos dust. Then from in or about 1954 to 1979 the deceased was employed as a maintenance fitter by the second defenders at a plant in Wilton on Teesside, during which time he was exposed to further substantial quantities of asbestos dust. It was said that as a result of these exposures he developed asbestosis and pleural plaques and died on 30 September 2011. However, the second defender's argued that the case against them was "irrelevant" on the basis that the "wrongs complained of occurred exclusively in England". The deceased had worked for the first defenders in Scotland for a few years in the 1940s, but otherwise he had lived and died all his life in Teesside and none of the pursuers had any connection with Scotland. It was submitted that the issue fell to be decided at common law, as any alleged wrongdoing occurred before the coming into effect of the Private International Law (Miscellaneous Provisions) Act 1995 or the Rome II Regulations. On behalf of the second defenders, Roddy Dunlop QC said the remedy which was sought in this case was under the 2011 Act, which had "no applicability" in England. The claim that could be sought in English law was under the the Fatal Accidents Act 1976, but the only person who would be entitled to an award of damages was the first pursuer, the widow of the deceased. It was not disputed that the Scottish court had jurisdiction, but it was "wrong in principle" that the pursuer should be able to claim damages in Scotland, available under Scottish law for a wrong committed in England simply because jurisdiction was established in Scotland. The pursuers argued that liability was at common law, which was essentially the same in Scotland and in England, and the heads of damage, although expressed in different terms in different jurisdictions, were also essentially the same. If the deceased had raised an action while still alive he could have pursued both defenders in Scotland or England. Liability could have been established against both defenders on the basis of a joint and several liability or apportioned against the defenders, it was argued. It was competent to proceed against both defenders as joint wrongdoers where the disease, as here, was a cumulative one and each contributed to a single result. In Scotland and England the claims available on death were governed by statute and although differently expressed, section 4(3)(b) of the 2011 Act and section 1A(1) of the 1976 Act were "essentially the same". Solcitor advocate Tom Marshall for the pursuers invited the court to consider the issue from the perspective of the deceased, but the judge considered that to be the "wrong approach". In a written opinion, Lord Boyd said: "A claim under section 4 of the 2011 Act is one that vests in the relative of the deceased. They are the pursuers. This is of course in contrast to the position in England under the 1976 Act where the right to bring an action is at the hands of the executor or administrator of the deceased. "The number of people who may bring a claim in England is much more limited; section 1A of the 1976 Act. If Mr Marshall was correct then it would mean that the second to twenty-third pursuers who have no claim in England for a tort committed in England can not only bring an action for damages in Scotland but seek a remedy not available under English law." He added: "Accordingly in my opinion the action as drafted against the second defenders is irrelevant. I intend to dismiss the action insofar as it is brought by the second to twenty-fourth pursuers against the second defenders. "I would also propose dismissing the action against the second defenders at the instance of the first pursuer. However before doing so I shall put the case out by order to enable Mr Marshall to consider a minute of amendment to bring a claim under the 1976 Act and to deal with the question of expenses. ASBESTOS UPDATE: 5th Cir. Says Ramsay Liable for Medical Expenses ----------------------------------------------------------------- Michelle Casady, writing for Law360, reported that transportation company Ramsay Scarlett & Co. must cover the medical expenses of a former employee who was diagnosed with asbestosis, the Fifth Circuit ruled, upholding a lower court's opinion. Ferdinand Fabre, 64, worked for the cargo unloading company from 1969 to 1991 and was exposed to asbestos on the job, making the company liable under the Longshore Harbor Worker's Compensation Act to cover the costs of his treatment, the court ruled, rejecting the company's argument that it could have been contracted elsewhere. ASBESTOS UPDATE: $14 Million Awarded in Fibro Death Case -------------------------------------------------------- Heidi Turner, writing for LawyersandSettlements.com, reported that the family of a man who died of mesothelioma has reportedly been awarded $14 million in their asbestos lawsuit, which alleged that the man's mesothelioma was linked to his time working at a polyester plant. In awarding the $14 million, the jury reportedly found that the owner of the polyester fiber plant, Celanese Corp., was negligent in neither posting warnings about, nor providing protection from, asbestos exposure. According to a news release, Dennis Seay died in 2014 at age 70. He was diagnosed with mesothelioma in 2013 after having worked at a Celanese factory from 1971 to 1980. An attorney for Seay's family said that in his of life, Seay's lungs collapsed 10 times and were drained 11 times causing immense suffering. The lawsuit alleged Seay did not know about the dangers associated with asbestos and received no warnings or protections from it. The jury in the lawsuit ultimately agreed with the plaintiffs that Celanese should have provided proper warnings about or protection from asbestos, and awarded $12 million in actual damages and $2 million in punitive damages. A spokesperson for Celanese indicated the company planned to appeal the jury's decision. The lawsuit also named John Crane -- a company that made asbestos-containing gaskets -- as a defendant. The jury, however, found John Crane not liable for Seay's injuries. Asbestos is linked to serious health problems including mesothelioma, asbestosis and lung cancer, all of which are fatal. In many cases, however, the onset of symptoms does not occur until decades after asbestos exposure. That can make it difficult to determine which companies are responsible for a plaintiff's asbestos exposure, particularly if there are many possible incidents in which the plaintiff was exposed. Lawsuits have been filed against various companies alleging they knew or should have known about the dangers associated with asbestos exposure but failed to adequately protect workers or consumers. In April, as reported by Gordon Gibb, Colgate-Palmolive lost an asbestos lawsuit after the plaintiff alleged the company's talcum powder -- Cashmere Bouquet -- was contaminated with asbestos and caused her mesothelioma. The plaintiff in that case, Judith Winkel, was awarded $13 million when the jury found that Colgate- Palmolive acted with malice. Colgate-Palmolive was found 95 percent responsible for Winkel's mesothelioma, with four other companies responsible for the remaining five percent. ASBESTOS UPDATE: Cinema Owner Violates Fibro Laws ------------------------------------------------- St. Alban and Harpenden Review reported that the owner of an independent cinema in St Albans is believed to have broken asbestos regulations and will be appearing in court later. James Hannaway from Berkhamsted will appear at Stevenage Magistrates' Court on November 26 for three charges made by the Health and Safety Executive. The first, is for breaking Section 3 of the Health and Safety at Work Act 1974 and the second is for breaking regulation 5 of Control of Asbestos Regulations 2006. The third is breaking regulation 16 of the same act but the 2012 revision. The Health and Safety Executive has alleged that work had been undertaken at the cinema which exposed or was liable to expose employees to asbestos. ASBESTOS UPDATE: Rotherham Fly Tipper Fined for Fibro Dumping ------------------------------------------------------------- The Star reported that a fly tipper has been fined GBP750 after he was spotted dumping asbestos and construction waste at the side of a Rotherham road. Christopher Rowlands, of The Wellway, Sunnyside, was seen dumping the waste on Laudsdale Road, East Herringthorpe, and his registration number was passed on to the authorities. He denied the offence when interviewed by council officers but was found guilty in his absence when he failed to attend his court hearing. Rowlands was ordered to pay court costs of GBP634.86. Councillor Kath Sims, of Rotherham Council, said: "We are committed to doing all we can to stop fly tipping. I hope this case sends out a strong message that these crimes are serious." ASBESTOS UPDATE: Fibro Found in Older Marble Pools -------------------------------------------------- PoolandSpareview.com.au reported that according to information from WorkCover NSW via SPASA, a small number of older Australian swimming pools -- dating pre-1980 -- may have had minute levels of asbestos added to the marble sheen interior when it was first applied. The addition of asbestos to the marble sheen may have been done to provide for a more pliable interior during the application process as well as delivering a smoother finish to the end product. Many older pools are nearing the time where home owners are now looking to have their pools renovated. SPASA says members may have identified, or be concerned about how to identify, a swimming pool containing asbestos. In addition, asbestos not directly associated with swimming pools may still be dug up during the excavation of a new pool or as part of a more comprehensive project, not limited to landscaping and outdoor rooms. Swimming pool builders and pool and spa technicians should approach older marble sheen swimming pools and surrounds with a view that asbestos may have been used. If unsure, seek expert advice from a licensed asbestos practitioner. Builders and technicians need not worry if they do not disturb the interior or the surrounding environment. If the pool and/or its surroundings require renovation or some other minor works, then the pool builder or technician should seek the opinion of a licensed asbestos practitioner. Some pool builders have advised SPASA that they have sent samples to National Association of Testing Authorities (NATA)-approved laboratories for testing. These tests are approximately $100 and results are generally available in 24 hours. ASBESTOS UPDATE: Former Steelworker Dies of Fibro-related Disease ----------------------------------------------------------------- Scunthorpe Telegraph, reported that a former steelworker died of industrial disease years after being exposed to asbestos, a coroner ruled. Robert Spencer, 93, died on June 22 after being diagnosed with mesothelioma in April this year. An inquest into his death held at the Civic Centre heard Mr Spencer worked at the Appleby-Frodingham works from 1937 as an apprentice boilermaker, before moving to the loco repair shop, stripping down motors. He joined the navy and returned to the steelworks in 1945 as an engineer before he moved to Redpath Dorman Long repairing blast furnaces. In a statement Mr Spencer wrote before he died, which was read to the court, he said he was exposed to it on a regular basis over the years. Of his time repairing blast furnaces, he said: "It was extremely dusty work and our hair and clothes would be covered. We would shower after work." Mr Spencer said his health was good until he reached his 80s when he suffered two large heart attacks. His wife Barbara Spencer said in a statement her husband showed no symptoms until his 90s. Mrs Spencer said: "Robert had been made aware of many of his former steel workmates suffering and dying due to asbestos disease. "As he reached his 90s he thought he had been one of the lucky ones and would see out the rest of his days without being affected by this awful condition. "He had always been such a fit and strong man in his younger days and to see him bedridden by this condition was awful." Coroner Mark Kendall ruled his death was due to industrial disease after a report found the cause to be "malignant mesothelioma". Asbestos fibres were in both his lungs. ASBESTOS UPDATE: Appeals Court Upholds Dismissal of Mal Suit ------------------------------------------------------------ Dan Churney, writing for Cook County Record, reported that a state appeals panel kept the door shut on a legal malpractice action brought by a family whose legal action over asbestos exposure was tossed, saying a circuit court was correct in finding that, no matter how plaintiffs juggled the calendar, they still brought their lawsuit too late. Vernon Nelson and John Q. Nelson filed suit two years ago, as administrators of Eva Nelson's estate, against Cascino Vaughan Law Offices. The firm has offices in Chicago and Milwaukee, and focuses on asbestos suits. The case stems from a wrongful death suit the Nelsons filed in 2005, in which they were represented by Cascino Vaughan. The 2005 suit targeted several companies for allegedly causing Eva's death through asbestos exposure. Two of the companies were Aurora Equipment Company and Plastics Engineering Company. In May 2007, discovery was closed in the asbestos suit, and six months later, the cases against the two companies were dismissed. The overall suit continued, with the Nelsons hiring new attorneys about July 2011, who made a motion to reopen discovery. The motion was denied Dec. 1, 2011. In November 2013, the Nelsons brought their action against Cascino Vaughan, alleging, after hiring their new attorneys, they learned Cascino Vaughan had failed to obtain "essential" evidence prior to the close of discovery -- evidence which they believed would have won them their original suit against the two companies. The Nelsons further claimed Cascino Vaughan never told them discovery closed in 2007 or that the case against the two companies had been dismissed. In spring 2014, Cook County Associate Judge William E. Gomolinski tossed the malpractice suit. The Nelsons then took the case to the Illinois First District Appellate Court. A three justice panel of that court signed off on Gomolinski's decisions in an unpublished order Nov. 10. Gomolinski had ruled the starting date for the suit was May 15, 2007, when discovery was shut down, which gave the Nelsons, under the statute of repose, until May 15, 2013, to bring action against Cascino Vaughan. However, the Nelsons did not file until six months after that date. Gomolinski added that even if Nov. 13, 2007, was used as the starting date -- the date the suit against the two companies was tossed -- more than six years had still elapsed. The Nelsons also contended Cascino Vaughan fraudulently concealed its alleged dereliction in the case, which prevented the alleged malpractice from coming to light until about July 2011. The Nelsons claimed the concealment should have triggered a five-year statute of limitations, beginning in July 2011. Gomolinski discounted this argument and the appellate court backed him up. The appellate court noted courts have shied away from applying the five-year concealment doctrine. To illustrate the point, the appellate decision cited a 1987 Third District Appellate Court opinion stating the six-year statute of repose should still apply if a "reasonable time remains within the remaining limitations period." The appellate court found 22 months were left to run on the statute of repose in the Nelsons' case -- an ample amount of time, in the court's view. Failing their other arguments, the Nelsons contended they learned of the alleged malpractice in December 2011, when their motion to reopen discovery was refused and the suit was dismissed. Under this scenario, the statute of limitations would have provided them two years from that date to bring a lawsuit, and they would have ended up filing with two weeks to spare. Gomolinski throttled this argument, however, by pointing out the clock would have begun ticking around July 2011, when plaintiffs belatedly learned of the May 2007 discovery cut-off, which again made them tardy in lodging their suit by four months. The appellate court drew attention to one of its rulings from earlier in 2015, saying the statute of limitations launches when a plaintiff discovers their alleged cause of action, even if they did not know exactly what harm they may have suffered until later. The Spellmire Law Firm, of Chicago, represented the Nelsons in the malpractice lawsuit. Cascino Vaughn was defended by Hinshaw & Culbertson, of Chicago. The appellate order was authored by Justice John B. Simon with justices Daniel J. Pierce and Michael B. Hyman concurring. The appellate court filed the order under Supreme Court Rule 23, which means the order may not be cited as precedent, except in the limited circumstances allowed by the rule. ASBESTOS UPDATE: Shipbuilders' Bid to Avoid Fibro Claims Denied --------------------------------------------------------------- Terri Oppenheimer, writing for Mesothelioma.net, reported that it is not at all unusual or even unexpected for a company that is being accused of exposing their employees to asbestos to use every legal maneuver available to them to avoid litigation. This happened recently in the Eastern District of Pennsylvania, where U.S District Judge Eduardo C. Robreno heard the case of Tesseer v. A-C Product Liability Trust, in which the defendant, a shipowner being sued by multiple plaintiffs harmed by their exposure to asbestos, attempted to bar the cases because the plaintiffs had failed to disclose their pending litigation as assets in previous bankruptcy proceedings. There were a total of eleven individual cases for which the shipbuilder's law firm attempted to get summary judgment. In each case the plaintiffs had originally been party to a multi district litigation asbestos case that had been dismissed in 1997. Following the dismissal they each then filed their own separate bankruptcy litigations, and their cases were all reinstated in 2009 following the ending of the bankruptcy litigation against the company. The company's lawyer now claimed that because the plaintiffs had not disclosed the fact that they had litigation pending against the company as part of their bankruptcy filings, they had waived their rights to file the lawsuit. The attorneys for the plaintiffs argued that because their original claims had been dismissed for about seven years when they filed the bankruptcy filing, they were no longer to be considered assets and that it would not have been possible for them to have anticipated that their cases would have been reinstated. They additionally noted that even if those items should have been considered assets, the mistakes were honest and not made in bad faith. Ruling on the case, Judge Robreno agreed with the plaintiffs' attorneys, saying that even though it might have made sense to an expert in the field that the dismissal orders in the multi district litigation might have eventually led to reinstatement, "Subject to certain conditions, none of the cases that were administratively dismissed was ever reinstated from 1997 to 2009, until this court, sua sponte, did so en masse. That a layman would have had the foresight to know in 2007 when he filed for Chapter 7 bankruptcy that two years later a new presiding judge of the MDL would reopen his asbestos case, albeit nine years after it was filed, would have required unrealistic powers of prescience." ASBESTOS UPDATE: NY Court Clarifies Fibro Doc Production Order -------------------------------------------------------------- HarrisMartin.com reported that a New York appellate court has entered an order clarifying parameters under which an asbestos plaintiff can seek access to documents from boiler defendant Cleaver-Brooks. In the Nov. 12 order, the New York Supreme Court, Appellate Division, First Department, stated that while the defendant must produce all documents that reference asbestos or asbestos- containing products, but not "the entirety of its commercial files." Cleaver-Brooks Inc. moved to vacate a set of orders in which it was directed to produce documents, including commercial files, that reference or mention asbestos or asbestos-containing products used in conjunction with its boilers. ASBESTOS UPDATE: Trial Set in Fibro Death Suits Against 3M ---------------------------------------------------------- Bruce Kaufman, writing for BNA.com, reported that trial will begin Feb. 16 against 3M in a consolidated suit asking whether the respirator manufacturer should have done more to prevent the deaths of several workers allegedly exposed to asbestos at a Wisconsin door manufacturing plant owned by Weyerhaeuser. A Nov. 9 order set the trial date for 3M Co. in this complex litigation against Weyerhaeuser Co. and 3M in the U.S. District Court for the Western District of Wisconsin. The February trial involving 3M will be bifurcated, court documents show. The first phase will cover common claims concerning liability, while the second phase will address individual issues of causation and damages, including punitive damages A review of court filings shows the trial judge is struggling with complex multiparty causation issues, including whether the plaintiffs' medical experts can separate the plaintiffs' possible exposure to asbestos in their respective communities and households from the "very significant" occupational exposure at the plant alleged in the complaints. The seven suits contend asbestos was used for decades at the Marshfield, Wis., facility as a fireproofing or insulating material in the production of doors. The claims against 3M contend the manufacturer defectively designed the model 8710 respirator that was provided to employees, and failed to warn of the known risks. Separate Trials Eyed The suit by the sole living plaintiff, Milton Boyer, was consolidated for pre-trial purposes with claims on behalf of six other workers who died from mesothelioma: Richard Masephol, Urban Pecher, Valmore Prust, Roger Seehafer, Sharon Heckel and Rita Treutel. Court orders by Judge William M. Conley are paving the way for separate trials against 3M and Weyerhaeuser by overlapping groups of plaintiffs. The Feb. 16 trial date only applies to claims against 3M by Boyer and the families of former workers Masephol, Pecher and Seehafer. The causes of action also differ among the plaintiffs, but generally include counts in negligence, strict liability and nuisance. In June, the court ruled that airborne asbestos allegedly released from the plant into the surrounding community provided a sufficient basis for private and public nuisance claims (2015 BL 173375) (30 TXLR 575, 6/11/15). The claims, however, were preempted by the Clean Air Act to the extent they relied on federal clean air regulations. Expert Ordered to Appear at Deposition The Nov. 9 ruling also ordered the plaintiffs to make Dr. Daniel Brody available to 3M for a deposition by Dec. 31. The plaintiffs contended Brody -- who plans to testify on the physiological design and function of the lungs, how asbestos fibers migrate through the body and the science of asbestos- related diseases -- was already questioned by the same defendant in an earlier case. But the court said the plaintiffs' position was "untenable." Regardless of "3M's familiarity with Brody, it has a right under Rule 26 to depose Dr. Brody," the court said. The plaintiffs' failure to produce Brody for a deposition by Dec. 31 will result in "plaintiffs being prevented from offering his testimony at the trial against 3M," the court warned. The court also set Dec. 7 for a hearing to determine whether the testimony of additional plaintiffs' experts-including Drs. Frank M. Parker III, Henry A. Anderson and Jerrold L. Abraham-meet the admissibility standards set forth by the U.S. Supreme Court in Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993). Summary judgment motions by each of the remaining defendants are pending. The court noted in the Nov. 9 order that the negligence claim against 3M, and "perhaps" even the strict liability claim, "appear likely to survive the motion." Three other companies were dismissed as defendants: Donaldson Co. and Gardner Denver Inc. in 2014; and Owens-Illinois Inc. in June. Plaintiffs' attorneys include Cascino Vaughan in Chicago, and Motley Rice in Washington. Forman Watkins & Krutz in Jackson, Miss., represents Weyerhauser. Segal McCambridge Singer & Mahoney in Chicago represents 3M. ASBESTOS UPDATE: Law Firm Files RICO Counterclaim vs. Garlock ------------------------------------------------------------- The law firm Simon Greenstone Panatier Bartlett, PC, filed a counterclaim today in federal court alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) and other claims against asbestos gasket manufacturer Garlock Sealing Technologies LLC. The counterclaim is asserted in response to a January 2014 RICO claim filed by Garlock against the Dallas-based law firm, which represents victims and their families in cases involving mesothelioma, a deadly form of cancer caused by exposure to asbestos. In its counterclaim, Simon Greenstone alleges that Garlock and Garrison Litigation Management Group, which manages Garlock's asbestos litigation, "made and caused others to make false and fraudulent misrepresentations in asbestos personal injury and wrongful death litigation and knowingly withheld evidence of the dangers of Garlock's products, and Garlock's knowledge of those dangers, in order to depress verdicts and settlements obtained by individuals represented by Simon Greenstone." Among the highlights of the counterclaim filed in Garlock Sealing Technologies LLC, et al. v. Simon Greenstone Panatier Bartlett, et al., No. 3:14-CV-00116: In its lawsuit against Simon Greenstone, Garlock and Garrison claim that "plaintiffs dying of mesothelioma, at their lawyers' urging, concealed the existence of plaintiff's historical exposure to asbestos-containing thermal insulation. Yet, in each case, there is clear testimony from the plaintiff of his exposure to thermal insulation that Garlock and Garrison simply ignore for the purpose of contriving fraudulent claims against Simon Greenstone. It is Garlock and Garrison, not Simon Greenstone, that have engaged in a startling pattern of misrepresentation." (p. 64) Garlock showed every desire to settle and little inclination to take mesothelioma cases to trial. In one case, even when the plaintiff and the plaintiff's experts had testified to exposure to amphibole insulating products, "Garlock and Garrison's attorney agreed to a settlement figure 42 minutes after [Garlock's lawyer's] initial email seeking to settle the case." (p. 75) "Garlock and Garrison's ulterior purpose in bringing the RICO Lawsuit against Simon Greenstone was to gain improper leverage against Simon Greenstone in the Garlock Bankruptcy by putting Simon Greenstone at financial risk with threats of economic harm through the damages pled in the RICO Lawsuit and by damaging Simon Greenstone's reputation." (p. 64) The counterclaim alleges that, in the underlying lawsuits, Garlock, rather than Simon Greenstone, gave false answers to sworn interrogatories and failed to produce evidence in its possession that contradicted its claims: Garlock claimed that it did not learn of the relationship between exposure to asbestos fibers and lung cancer until the "early 1970's," "But in truth, Garlock learned no later than March of 1956, at a meeting of the Asbestos Textile Institute, that exposures to asbestos as short as six months cause lung cancer." In the underlying lawsuits, Garlock repeatedly claimed that there was no "competent scientific or medical evidence" that Garlock's asbestos-containing products posed a health hazard -- even though Garlock's own documents state that the products can be hazardous when "subjected to mechanical actions that would cause the asbestos fibers to be released," such as occurred during removal of the gaskets. During discovery in the underlying lawsuits, while still claiming that no precautions were necessary when working with asbestos gaskets, Garlock withheld a 1980 "Garlock Gasketing Materials Manual" in which Garlock admitted the need to "Avoid creating dust. Breathing asbestos dust may cause serious bodily harm." Simon Greenstone did not know about this document until it found a copy on eBay. ASBESTOS UPDATE: MetLife Had 2,022 New Claims at June 30 -------------------------------------------------------- Metropolitan Life Insurance Company received 2,022 new asbestos- related claims, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2015. Metropolitan Life Insurance Company is and has been a defendant in a large number of asbestos-related suits filed primarily in state courts. These suits principally allege that the plaintiff or plaintiffs suffered personal injury resulting from exposure to asbestos and seek both actual and punitive damages. Metropolitan Life Insurance Company has never engaged in the business of manufacturing, producing, distributing or selling asbestos or asbestos-containing products nor has Metropolitan Life Insurance Company issued liability or workers' compensation insurance to companies in the business of manufacturing, producing, distributing or selling asbestos or asbestos-containing products. The lawsuits principally have focused on allegations with respect to certain research, publication and other activities of one or more of Metropolitan Life Insurance Company's employees during the period from the 1920's through approximately the 1950's and allege that Metropolitan Life Insurance Company learned or should have learned of certain health risks posed by asbestos and, among other things, improperly publicized or failed to disclose those health risks. Metropolitan Life Insurance Company believes that it should not have legal liability in these cases. The outcome of most asbestos litigation matters, however, is uncertain and can be impacted by numerous variables, including differences in legal rulings in various jurisdictions, the nature of the alleged injury and factors unrelated to the ultimate legal merit of the claims asserted against Metropolitan Life Insurance Company. Metropolitan Life Insurance Company employs a number of resolution strategies to manage its asbestos loss exposure, including seeking resolution of pending litigation by judicial rulings and settling individual or groups of claims or lawsuits under appropriate circumstances. Claims asserted against Metropolitan Life Insurance Company have included negligence, intentional tort and conspiracy concerning the health risks associated with asbestos. Metropolitan Life Insurance Company's defenses (beyond denial of certain factual allegations) include that: (i) Metropolitan Life Insurance Company owed no duty to the plaintiffs -- it had no special relationship with the plaintiffs and did not manufacture, produce, distribute or sell the asbestos products that allegedly injured plaintiffs; (ii) plaintiffs did not rely on any actions of Metropolitan Life Insurance Company; (iii) Metropolitan Life Insurance Company's conduct was not the cause of the plaintiffs' injuries; (iv) plaintiffs' exposure occurred after the dangers of asbestos were known; and (v) the applicable time with respect to filing suit has expired. During the course of the litigation, certain trial courts have granted motions dismissing claims against Metropolitan Life Insurance Company, while other trial courts have denied Metropolitan Life Insurance Company's motions. There can be no assurance that Metropolitan Life Insurance Company will receive favorable decisions on motions in the future. While most cases brought to date have settled, Metropolitan Life Insurance Company intends to continue to defend aggressively against claims based on asbestos exposure, including defending claims at trials. Metropolitan Life Insurance Company received approximately 4,636 asbestos-related claims in 2014. During the six months ended June 30, 2015 and 2014, Metropolitan Life Insurance Company received approximately 2,022 and 2,569 new asbestos-related claims, respectively. The number of asbestos cases that may be brought, the aggregate amount of any liability that Metropolitan Life Insurance Company may incur, and the total amount paid in settlements in any given year are uncertain and may vary significantly from year to year. The ability of Metropolitan Life Insurance Company to estimate its ultimate asbestos exposure is subject to considerable uncertainty, and the conditions impacting its liability can be dynamic and subject to change. The availability of reliable data is limited and it is difficult to predict the numerous variables that can affect liability estimates, including the number of future claims, the cost to resolve claims, the disease mix and severity of disease in pending and future claims, the impact of the number of new claims filed in a particular jurisdiction and variations in the law in the jurisdictions in which claims are filed, the possible impact of tort reform efforts, the willingness of courts to allow plaintiffs to pursue claims against Metropolitan Life Insurance Company when exposure to asbestos took place after the dangers of asbestos exposure were well known, and the impact of any possible future adverse verdicts and their amounts. The ability to make estimates regarding ultimate asbestos exposure declines significantly as the estimates relate to years further in the future. In the Company's judgment, there is a future point after which losses cease to be probable and reasonably estimable. It is reasonably possible that the Company's total exposure to asbestos claims may be materially greater than the asbestos liability currently accrued and that future charges to income may be necessary. While the potential future charges could be material in the particular quarterly or annual periods in which they are recorded, based on information currently known by management, management does not believe any such charges are likely to have a material effect on the Company's financial position. The Company believes adequate provision has been made in its consolidated financial statements for all probable and reasonably estimable losses for asbestos-related claims. Metropolitan Life Insurance Company's recorded asbestos liability is based on its estimation of the following elements, as informed by the facts presently known to it, its understanding of current law and its past experiences: (i) the probable and reasonably estimable liability for asbestos claims already asserted against Metropolitan Life Insurance Company, including claims settled but not yet paid; (ii) the probable and reasonably estimable liability for asbestos claims not yet asserted against Metropolitan Life Insurance Company, but which Metropolitan Life Insurance Company believes are reasonably probable of assertion; and (iii) the legal defense costs associated with the foregoing claims. Significant assumptions underlying Metropolitan Life Insurance Company's analysis of the adequacy of its recorded liability with respect to asbestos litigation include: (i) the number of future claims; (ii) the cost to resolve claims; and (iii) the cost to defend claims. Metropolitan Life Insurance Company reevaluates on a quarterly and annual basis its exposure from asbestos litigation, including studying its claims experience, reviewing external literature regarding asbestos claims experience in the United States, assessing relevant trends impacting asbestos liability and considering numerous variables that can affect its asbestos liability exposure on an overall or per claim basis. These variables include bankruptcies of other companies involved in asbestos litigation, legislative and judicial developments, the number of pending claims involving serious disease, the number of new claims filed against it and other defendants and the jurisdictions in which claims are pending. Based upon its reevaluation of its exposure from asbestos litigation, Metropolitan Life Insurance Company has updated its liability analysis for asbestos-related claims through June 30, 2015. 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