/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/160422.mbx C L A S S A C T I O N R E P O R T E R Friday, April 22, 2016, Vol. 18, No. 81 Headlines 56 THIRD: "Eslava" Suit Seeks Unpaid Minimum Pay, OT Under FLSA ALLIANCE RESOURCE: Faces "Guill" Suit Over Termination Notice ALLSTATE INSURANCE: Court Ruling Addresses Campbell-Ewald Issue ALLSTATE INSURANCE: Loses Bid to Dismiss Class Action AMERICAN MEDIA: Sued Over Subscribers' Information Disclosure ANDERSON, IN: Housing Authority Faces Class Action ASHLEY MADISON: Judge Wants Plaintiffs to Use Real Name in Suit ASTRAZENECA: Del. Supreme Court Upholds Dismissal of Class Action AUSTRALIA: Oberon to Join Class Action Against Forced Mergers BANK OF NOVA SCOTIA: Sued Over Alleged Silver Price Manipulation BAYER INC: Xarelto Blood Thinner Drug Class Action Piles Up BIG TEN: May 3 Trial Scheduled in Tenants' Project Class Action BELL MOBILITY: Wins Bid to Dismiss Prepaid Wireless Class Action BOFI HOLDING: Amendment Filed to Securities Class Action BON SECOURS: Faces "Miller" ERISA Class Action in Maryland BOSTON SCIENTIFIC: Recalls Fetch(TM) 2 Aspiration Catheters CANADA: Church Off Hook for Residential Schools Compensation CARNIVAL CORP: Allows Cuban-Americans to Sail Following Lawsuit CERTIFIED RECOVERY: Faces "Herrmann" Suit in W.D. Wisconsin CHARLESTON MEDICAL: Sued Over Medical Record Overcharges CHEMOURS COMPANY: Sued Over Failure to Pay Employees Benefits CONNECTICUT: Settlement Leads to Improved Children's Oral Health DENTAL EQUITIES: Has Sent Unsolicited Fax Ads, Action Claims DIAGEO PLC: Court Dismisses Red Stripe Labeling Class Action EOS RENTALS: "Gruver" Seeks to Recover Unpaid Wages and Damages EVER-GREEN EXPRESS: "Rhodes" Suit Seeks to Recover Unpaid OT FAIR COLLECTIONS: "Simon" Suit Seeks Damages Over FDCPA Breach FLINT, MI: Wants Water Crisis Suit Dismissed on Immunity Grounds FLINT, MI: Plaintiffs' Lawyers Face Challenge in Water Suits FLINT, MI: Judge Dismisses $150MM Water Crisis Class Action FLORIDIAN HOTEL: "Mejia" Suit Seeks Damages Under FLSA G. WILLI: Faces Class Action, April 29 Lead Plaintiff Deadline GENERAL MOTORS: Two Ignition-Switch Cases Settled GOPRO: Investors Mull Class Action Over Misrepresentations GOOD CHOWS: Fails to Pay Employees Overtime, "Chan" Suit Claims GOOGLE INC: Supreme Court Refuses to Hear Book Scanning Case GRANNA'S LLC: Recalls French Toast Products Due to Milk GVC HOLDINGS: Faces Class Action Over Failed Joint Venture HARRIS TEETER: Faces "Hanson" Suit Over Failure to Pay Overtime ILLINOIS: Governor Faces Class Action Over Health Insurance INNOVAK INTERNATIONAL: Faces "Bohannan" Suit in M.D. Alabama INVISIBLU INTERNATIONAL: Recalls Continuum Labs LGD-Xtreme KAUFMAN ENGLETT: Faces "Cadwell" Suit in Middle Dist. of Florida KOUROS RESTAURANT: Fails to Pay Workers OT, "Diaz" Suit Claims LENDINGCLUB: Faces Class Action Over Usury Law Violations M-I LLC: Hearing on Class Cert. Bid in "Syed" Moved to Dec. 6 MARRIOTT HOTEL: "McCarthy" Suit Seeks Damages Under Labor Code MCCORMICK: Sued Over Too Much Empty Space in Pepper Tin MIAMI BEACH: Faces "Brush" Suit in Southern District of Florida MICHEL ET AUGUSTIN: Recalls Butter Cookies Due to Hazelnut MIDLAND CREDIT: "Digiacomo" Class Suit Moved to E.D.N.Y. MISSOURI: April 25 Class Action Status Report Hearing Set NAT'L FOOTBALL: Appeals Court Affirms Concussion Settlement NAT'L FOOTBALL: Ruling Paves Way for Personal Injury Class Suits NETSOL TECHNOLOGIES: June 27 Settlement Fairness Hearing Set NESHAMINY ELECTRICAL: Faces "Roth" Suit Over Failure to Pay OT NII HOLDINGS: Labaton Recovers $41.5MM in Securities Class Action NIKE: Faces Class Action Over False "Suggested Retail Price" PF CHANG: 7th Cir. Reverses Data Breach Class Action Dismissal PJT PARTNERS: June 14 Class Action Lead Plaintiff Deadline Set PREMIER NUTRITION: Judge Certifies Class in Supplement Suit PRIME AID: Faces "Reyes" Suit Over Failure to Pay Overtime PROGRESSIVE GOURMET: Recalls Frozen Edamame Due to Shellfish R.J. REYNOLDS: Fee Dispute Hampers $3.5MM Award Distribution ROBERT HALF: Supreme Court to Decide on Legal Team's Compensation S. CARTER ENTERPRISES: Sued in N.D. Cal. Over Tidal Subscription SAFEWAY INC: Finkelstein Named as Interim Class Counsel SAMSUNG ELECTRONICS: Falsely Marketed LED TVs, "Nance" Suit Says SAMSUNG ELECTRONICS: Antitrust Class Action Settlement Challenged SANTA FE NATURAL: "Sproule" Suit Transferred to D. New Mexico SCANDRILL INC: Faces "Jones" Suit Over Failure to Pay Overtime SELECT ONE: Embezzler at Center of Class Action SERVERGY INC: SEC Files Securities Fraud Suit v. Texas AG SOCAL GAS: Save Porter Ranch and 24 Residents File Class Action SONY PICTURES: Court Approves $2.5MM in Attorneys Fees SPROUTS FARMERS: Faces Class Action Over Data Breach SPROUTS FARMERS: Faces "Price" Suit Over Alleged Data Breach STATE FARM: "Madison" Suit Seeks OT & Unpaid Wages Under FLSA SYNTHES USA: Employees' Labor Suit Can Proceed as Class Action TD BANK: Faces Class Action Over Coin-Counting Machines TIDAL: Faces Class Action Over "The Life of Pablo" Exclusivity UBER TECHNOLOGIES: Steve Wozniak Denounces Labor Practices UBS AG: July 8 Class Action Settlement Fairness Hearing Set UNIVERSITY OF SYDNEY: Discrimination Class Action Mulled v. Tutor VALEANT PHARMACEUTICALS: Says Cold-FX Suit Lawyer-Driven Action VASCULAR SOLUTIONS: Recalls Guardian II Hemostasis Valves WD IMPORT: Recalls Dried Yellow Fish Products Due to Clostridium YOUNGSTOWN, OH: Seeks Dismissal of Water Funds Class Action * Abolishing Tips Won't Benefit Restaurants, Owners, Servers * Garden City Recognized as Top Securities Claims Administrator * Judges More Vocal in Scrutinizing Class Action Settlement * Accounting-Related Securities Class Action Filings Up in 2015 Asbestos Litigation ASBESTOS UPDATE: CNA Fin'l Loss Portfolio Transfer $2.6-Bil. ASBESTOS UPDATE: AO Smith Continues to Defend Asbestos Suits ASBESTOS UPDATE: Huntington Still Faces PI Cases at Dec. 31 ASBESTOS UPDATE: Colgate Settled 15 Talc Cases as of Dec. 31 ASBESTOS UPDATE: DCLLC Had 25K Active PI Claims at Dec. 31 ASBESTOS UPDATE: Flowserve Still Faces PI Suits at Dec. 31 ASBESTOS UPDATE: Minerals Technologies Had 13 Cases at Dec. 31 ASBESTOS UPDATE: AT&T Unit Subject to Inquiry Over Removal ASBESTOS UPDATE: EPA Probes Dumping from Mill West Building ASBESTOS UPDATE: Council Leader Wants EPA Probe of Music Hall ASBESTOS UPDATE: Ind. High Court Ruling Opens Door to More Suits ASBESTOS UPDATE: Asbestos Victim Helps Lobby for Funding ASBESTOS UPDATE: Electrician Dies After Asbestos Exposure ASBESTOS UPDATE: W. Va. DEP Satisfied with City's Response ASBESTOS UPDATE: Criminal Probe Possible at Brady Sullivan Site ASBESTOS UPDATE: Man Fined $24,000 for Unsafe Removal ASBESTOS UPDATE: Mesothelioma Victim's Family Appeals for Info ASBESTOS UPDATE: Client Fined Over Pre-Construction Info ASBESTOS UPDATE: Court Says Saleman Wasn't "Sophisticated User" ASBESTOS UPDATE: Dying Kiwi Wins Payouts for Exposure ASBESTOS UPDATE: Court Grants 24 Unopposed Bids to Dismiss Suit ASBESTOS UPDATE: Sonoma State University Focus of Lawsuit ASBESTOS UPDATE: Exposure Tied to Colon Cancer Diagnosis ASBESTOS UPDATE: Garlock Agrees To Create $480MM Trust ASBESTOS UPDATE: Exposure Suit Filed Against Amchem, et al. ASBESTOS UPDATE: Massachusetts Case vs. Rapid-American Stayed ASBESTOS UPDATE: Trane Wins Summary Judgment in "Moss" ASBESTOS UPDATE: Three Cos. Win Summary Judgment in "Holland" ASBESTOS UPDATE: NY Court Consolidates 9 Cases for Trial ASBESTOS UPDATE: Rowan Loses Bid to Sever in "Garza" ASBESTOS UPDATE: 5 Cos. Win Summary Judgment in "Pace" ASBESTOS UPDATE: Court Grants DuPont's Bid to Dismiss "Dean" ********* 56 THIRD: "Eslava" Suit Seeks Unpaid Minimum Pay, OT Under FLSA --------------------------------------------------------------- Juan Maldonado Eslava and Felipe Meza, individually and on behalf of others similarly situated, the Plaintiffs, v. 56 Third Food Corp. (d/b/a Sherwood To Go), Sher Third Food Corp. (d/b/a Sherwood To Go), Basilex Food Corp. (d/b/a Fresh Basil Trattoria), Nick Katos, Kassiam Katos and Chris Katos, the Defendants, Case No. 1:16-cv-02879 (S.D.N.Y., April 18, 2016), seeks to recover unpaid minimum pay, overtime wages, liquidated damages, interest, attorneys' fees and costs, pursuant to the Fair Labor Standards Act of 1938 (FLSA) and N.Y. Labor Law. According to the complaint, the Plaintiffs worked for Defendants as delivery workers, rendering in excess of 40 hours per week, without appropriate minimum wage or overtime compensation for the hours that they worked. Defendants allegedly failed to maintain accurate recordkeeping of the hours worked and failed to pay Plaintiffs for any hours worked over 40 hours. Defendants own, operate, or control two sandwich shops/catering services located at 930 Third Ave., Second floor, New York, New York 10022 under the names Sherwood To Go and Fresh Basil Trattoria respectively. The Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 2540 New York, NY 10165 Telephone: (212) 317 1200 Facsimile: (212) 317 1620 E-mail: Faillace@employmentcompliance.com ALLIANCE RESOURCE: Faces "Guill" Suit Over Termination Notice ------------------------------------------------------------- Hulett Guill, Jr., individually and on behalf of all others similarly situated v. Alliance Resource Partners, L.P., Hamilton County Coal, LLC, and Does 1-10, inclusive, Case No. 3:16-cv-00424 (S.D. Ill., April 14, 2016), is brought against the Defendants for failure to provide their workers with the 60-day advance notification of termination. The Defendants own and operate a mining company with its principal place of business at 1717 South Boulder Avenue, Tulsa, Oklahoma 74119. The Plaintiff is represented by: Emily J. Kirk, Esq. McCUNEWRIGHT LLP 2068 Orange Tree Lane, Suite 216 Redlands, CA 92374 Telephone: (909) 557-1250 Facsimile: (909) 557-1275 E-mail: ejk@mccunewright.com - and - Joseph G. Sauder, Esq. Matthew D. Schelkopf, Esq. Joseph B. Kenney, Esq. McCUNEWRIGHT LLP 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Telephone: (610) 200-0580 E-mail: jgs@mccunewright.com mds@mccunewright.com jbk@mccunerwright.com - and - Katrina Carroll, Esq. Kyle A. Shamberg, Esq. LITE DEPALMA GREENBERG, LLC Chicago Office 211 West Wacker Drive Suite 500 Chicago, IL 60606 Telephone: (312) 750-1265 E-mail: kcarroll@litedepalma.com kshamberg@litedepalma.com ALLSTATE INSURANCE: Court Ruling Addresses Campbell-Ewald Issue --------------------------------------------------------------- ACA International on April 18 disclosed that the Ninth Circuit addressed an issue the U.S. Supreme Court left unresolved in Campbell-Ewald v. Gomez. On April 12, 2016, the Ninth Circuit Court of Appeals rejected Allstate Insurance Company's attempt to end a Telephone Consumer Protection Act class action by depositing in a bank escrow account $20,000 -- an amount Allstate asserted would moot the named plaintiff's individual monetary and injunctive relief claims. In the case Chen, et al. v. Allstate Insurance Company, No. 13-16816, 2016 WL 1425869 (9th Cir., April 12, 2016), the Ninth Circuit affirmed the district court's denial of the defendant's motion to dismiss the case, ruling that a class action is not moot even where the defendant deposits full settlement funds into an escrow account for the plaintiff's benefit. The Ninth Circuit also held that even if the plaintiff's individual claim was mooted, a class action cannot be dismissed until the plaintiff has an opportunity to obtain class certification. The decision represents an early response by a federal court of appeals to a question the United States Supreme Court left open in January's decision in Campbell-Ewald Co. v. Gomez, 2016 WL 228345 (U.S. Jan. 20, 2016) -- which is whether a defendant may moot a case by actually providing, rather than merely offering, complete relief to a plaintiff. The Chen case was filed as a proposed class action seeking statutory damages for alleged violations of the TCPA, which amount to $500 per unlawful call, or up to $1,500 per unlawful call for knowing/willful violations. The complaint claimed that Allstate Insurance Company engaged in unlawful activities by contacting Richard Chen, Florencio Pacleb and the members of the proposed class on their cell phones using an "automatic telephone dialing system" without their consent in an attempt to solicit the purchase of insurance policies. Allstate made an offer of judgment to Chen and Pacleb pursuant to Federal Rule of Civil Procedure 68. Chen accepted the offer, but Mr. Pacleb did not. Then, shortly after the Supreme Court issued the Campbell-Ewald decision, while the Chen appeal was pending before the Ninth Circuit, Allstate deposited $20,000 in escrow "pending entry of a final District Court order or judgment directing the escrow agent to pay the tendered funds to Mr. Pacleb, requiring Allstate to stop sending non-emergency telephone calls and short message service messages to Mr. Pacleb in the future and dismissing this action as moot." In Campbell-Ewald, the Supreme Court ruled that the named plaintiff's proposed class action is not rendered moot when the defendant makes a settlement offer or a Rule 68 offer of judgment that would satisfy the plaintiff's individual claim but the plaintiff refuses to accept the offer. Justice Ginsburg's majority opinion specifically noted, however, that the Court was not deciding whether a case would be mooted if a defendant goes one step further and actually "deposits the full amount of the plaintiff's individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount" -- because that had not happened in the Campbell- Ewald case. In Chen, Allstate took that extra step. From the various opinions in Campbell-Ewald, it appeared that at least three justices had already expressed their views on the question the majority reserved for a future case. Chief Justice Robert's dissent, joined by Justices Scalia and Alito, would have held an unaccepted offer sufficient, suggesting" the majority's analysis may have come out differently if Campbell had deposited the offered funds with the District Court." And while Justice Thomas concurred in the judgment that an unaccepted offer was not enough, he wrote that he would construe Article III's case-or-controversy requirement by looking to the common-law rules of tender -- which he concluded required that a defendant actually produce the sum of money being offered. In Chen, the Ninth Circuit appellate panel gave two reasons for hold that the case was not moot. First, the panel explained that even if the district court entered judgment affording the plaintiff complete relief on his individual claims for damages and injunctive relief, mooting those claims, he would still be able to seek class certification. Second, the panel pointed out that even if the defendant could moot the entire action by mooting the plaintiff's individual claims, the individual claims were not yet moot because the plaintiff had not yet actually received relief. Therefore, the panel ruled that it would not direct the district court to enter judgment, over the plaintiff's objections, on his individual claims, because he had not yet had fair opportunity to move for class certification. It seems clear that the Supreme Court's decision has spawned "round two" of Gomez-like litigation. Ultimately, it looks like the Supreme Court will have to address the situation where a defendant actually deposits the funds into an account payable to the plaintiff or sends the plaintiff a cashier's check and then asks the court to enter judgment accordingly. ALLSTATE INSURANCE: Loses Bid to Dismiss Class Action ----------------------------------------------------- Jessica Karmasek, writing for Legal Newsline, reports that a federal appeals court ruled that defendant Allstate Insurance Company cannot put an end to a class action lawsuit by depositing $20,000 in a court-controlled, bank escrow account. Allstate argued the amount would moot the named plaintiff's claims. The U.S. Court of Appeals for the Ninth Circuit affirmed an order by the U.S. District Court for the Northern District of California denying Allstate's motion to dismiss. "Under Supreme Court and Ninth Circuit case law, a claim becomes moot when a plaintiff actually receives complete relief on that claim, not merely when that relief is offered or tendered," Circuit Judge Raymond C. Fisher wrote in the panel's 27-page ruling. Judges Barry G. Silverman and Richard C. Tallman joined in the April 12 opinion. "Where, as here, injunctive relief has been offered, and funds have been deposited in an escrow account, relief has been offered, but it has not been received." Judge Fisher said plaintiff Florencio Pacleb's individual claims are not now moot. The appeals court, in its opinion, also declined to direct the district court to moot them. "Because Pacleb has not yet had a fair opportunity to move for class certification, we will not direct the district court to enter judgment, over Pacleb's objections, on his individual claims," Fisher wrote for the panel. In 2013, Mr. Pacleb and Richard Chen filed a class action complaint against Allstate, alleging they received unsolicited automated telephone calls to their cell phones in violation of the Telephone Consumer Protection Act. The TCPA restricts telephone solicitations, i.e. telemarketing, and the use of automated telephone equipment. In particular, the law limits the use of automatic dialing systems, artificial or prerecorded voice messages, SMS text messages and fax machines. It also specifies several technical requirements for fax machines, autodialers and voice messaging systems -- principally with provisions requiring identification and contact information of the entity using the device to be contained in the message. Generally, the act makes it unlawful "to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party" except in emergencies or in circumstances exempted by the Federal Communications Commission. The law permits any "person or entity" to bring an action to enjoin violations of the statute and/or recover actual damages or statutory damages ranging from $500 to $1,500 per violation. In this case, Mr. Chen alleged he received eight calls from Allstate, while Mr. Pacleb alleged he received five such calls. In Mr. Pacleb's case, the automated calls asked for an individual named Frank Arnold. Before any motion for class certification had been made, Allstate, in April 2013, made an offer of judgment to both Mr. Chen and Mr. Pacleb: the company offered to allow judgment to be taken against it by Messrs. Chen and Pacleb on their individual claims in the amount of $15,000 and $10,000, respectively, together with reasonable attorneys' fees and costs. Messrs. Chen and Pacleb declined the offer. At that time, Allstate sent plaintiffs' counsel a letter extending the offer of judgment "until such time as it is accepted by plaintiffs or Allstate withdraws the offer in writing." The next day, the company moved to dismiss the complaint for lack of subject matter jurisdiction. It argued the plaintiffs' claims are moot because it made an offer of judgment "more than sufficient" to satisfy the plaintiffs' damages and requests for relief. While the motion to dismiss was pending, Mr. Chen accepted Allstate's offer; Mr. Pacleb did not. The district court denied Allstate's motion to dismiss, and then granted the company's motion to certify an order for interlocutory appeal. The court said it "would welcome" an opinion from the Ninth Circuit on the matter. While the appeal was pending, the U.S. Supreme Court decided Campbell-Ewald Co. v. Gomez. The high court, in its January ruling, confirmed that an unaccepted settlement offer has no force. The court, in a 6-3 ruling, upheld the Ninth Circuit's 2014 decision in Gomez v. Campbell-Ewald Co. The Ninth Circuit vacated and remanded a summary judgment ruling in favor of the defendant in a case brought under the TCPA. However, Justice Ruth Bader Ginsburg, in the majority decision, noted that the court would not decide whether the result would be different if a defendant deposits the full amount of the plaintiff's individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount -- as in Mr. Pacleb's case. "That question is appropriately reserved for a case in which it is not hypothetical," Ginsburg wrote in the Jan. 20 opinion. Shortly after the Supreme Court issued its decision in Gomez -- no doubt taking a cue from the Supreme Court case -- Allstate deposited $20,000 in escrow "pending entry of a final district court order or judgment directing the escrow agent to pay the tendered funds to Pacleb, requiring Allstate to stop sending non- emergency telephone calls and short message service messages to Pacleb in the future and dismissing this action as moot." The company, pointing to their actions, argued the Ninth Circuit should reverse the denial of its motion to dismiss and remand the case to the district court to order disbursement of the tendered funds to Mr. Pacleb, the entry of judgment in favor of Mr. Pacleb and the dismissal of the class action as moot. The Ninth Circuit disagreed. "In Allstate's view, if it is able to fully satisfy Pacleb's individual claims, the action as a whole will also be moot," Judge Fisher wrote. "We disagree. "Even if, as Allstate proposes, the district court were to enter judgment providing complete relief on Pacleb's individual claims for damages and injunctive relief before class certification, fully satisfying those individual claims, Pacleb still would be entitled to seek certification." Among those representing the plaintiffs: national public interest law firm Public Justice and the Law Offices of Todd M. Friedman PC. Friedman, a Beverly Hills-based consumer protection attorney, is known for frequently filing lawsuits over unwanted telephone solicitations. Attorneys with Ballard Spahr LLP represented Allstate. They declined to comment on the Ninth Circuit's ruling or plans for an appeal. AMERICAN MEDIA: Sued Over Subscribers' Information Disclosure ------------------------------------------------------------- Elizabeth Moeller and Nicole Brisson, individually and on behalf of all others similarly situated v. American Media, Inc., and Odyssey Magazine Publishing Group, Inc., Case No. 2:16-cv-11367- JEL-EAS (E.D. Mich., April 14, 2016), arises out of the Defendants' intentional and unlawful disclosure of their subscribers' Personal Reading Information. The Defendants operate an International media company that publishes some of the most widely circulated magazines in the United States, including National Enquirer, Star, Muscle & Fitness, and Flex. The Plaintiff is represented by: Ari J. Scharg, Esq. Benjamin S. Thomassen, Esq. EDELSON PC 350 North LaSalle Street, 13th Floor Chicago, IL 60654 Telephone: (312) 589-6370 Facsimile: (312) 589-6378 E-mail: ascharg@edelson.com bthomassen@edelson.com - and - Henry M. Scharg, Esq. LAW OFFICE OF HENRY M. SCHARG 718 Ford Building Detroit, MI 48226 Telephone: (248) 596-1111 Facsimile: (248) 671-0335 E-mail: hmsattyatlaw@aol.com - and - Scott A. Bursor, Esq. Joseph I. Marchese, Esq. Philip L. Fraietta, Esq. BURSOR & FISHER, PA 888 Seventh Avenue New York, NY 10019 Telephone: (646) 837-7150 Facsimile: (212) 989-9163 E-mail: scott@bursor.com jmarchese@bursor.com pfraietta@bursor.com ANDERSON, IN: Housing Authority Faces Class Action -------------------------------------------------- Ken de la Bastide, writing for The Herald Bulletin, reports that the city of Anderson is willing to provide $42,000 immediately to the Anderson Housing Authority if certain conditions are complied with, Mayor Thomas Broderick Jr. said. The Housing Authority was named in a class-action lawsuit filed April 11 by the Fair Housing Center of Central Indiana and two tenants, alleging sexual harassment, racial discrimination and health problems related to conditions that the management of the government-subsidized complex failed to address. Among the common complaints, according to the lawsuit: Water leaks, mold, pests and inadequate maintenance of the apartments. Mr. Broderick said on April 15 that in 2014 the Anderson Housing Authority (AHA) requested $60,000 in Community Development Block Grant funds for repairs to Westvale Manor. "There is a cover letter and an application, but no award letter," Mr. Broderick said of the 2014 request. He said there is a Block Grant ledger entry in the amount of $42,000 for rehabilitation and repairs but no indication as to what agency was to receive the funding. "We believe the $42,000 was set aside for the Housing Authority," Mr. Broderick said. "There is no award letter." Charles Weatherly Jr., executive director of the agency, said on April 15 he has not been in communication with the mayor since the lawsuit was filed. "Any help from the city would be greatly appreciated," he said. Mr. Weatherly said the six-member AHA Board of Commissioners has scheduled an executive session meeting on April 19 to discuss the lawsuit and to develop a plan of action. "I didn't know about it until now," he said of the $42,000. "We would probably use the money at Westvale Manor, but it will depend on what the city will require." Mr. Broderick said the Community Development Block Grant files from the previous administration were not well maintained. He said the Anderson Community Development Department, which is currently reviewing applications for $834,555 in CDBG money for 2016 from the U.S. Department of Housing and Urban Development, makes the decision on the grant awards. Mr. Broderick said the Housing Authority has to receive an award letter from the Community Development Department and sign a contract on how the funds are to be used. The city monitors how the funds are spent and AHA will be required to pay the costs and then seek reimbursement from the city. "From our viewpoint, the money has been set aside," Mr. Broderick said. "I will discuss the funding with the AHA board." He didn't know if the agency was in the financial position to spend the money for repairs and then seek reimbursement. Weatherly said AHA would be willing to approach the city about the available funding and would be willing to sign a contract. "We will have the funds available once we get our money from HUD," he said. The Housing Authority is slated to receive $163,101 grant from the U.S. Department of Housing and Urban Development for repairs and maintenance of the 134 units it manages. Weatherly said those funds have not been received. "We get approximately $160,000 per year," he said. "Most of the money has been spent on roof repairs at Westvale." Concerning the lawsuit, Weatherly said there are a lot of lies and misinformation. "They want to compare Westvale Manor with Lynwood Village," Mr. Weatherly said. "There is no comparison. Lynwood Village is three-bedroom apartments and Westvale Manor is one- and two- bedroom apartments." In practical terms, the Housing Authority is considered the landlord of Westvale. The local authority operates both single- family and multifamily dwellings. Multifamily complexes are at Lynwood Village and Westvale Manor. ASHLEY MADISON: Judge Wants Plaintiffs to Use Real Name in Suit --------------------------------------------------------------- David Kravets, writing for arstechnica, reports that we all remember last year's hype surrounding the Ashley Madison dating site's data breach. Hackers exposed identifying information about millions of users of the site that has the tagline, "Life is short. Have an affair." Then came the lawyers smelling blood in the water -- filing proposed class-action suits targeting the cheating site's not-so- perfect "Full Delete" option that was supposed to, and didn't, remove all identifying information from the service for a $19 fee per user. Then it surfaced that the site perhaps made phony profiles of women to attract more men to the site. The massive litigation has been co-mingled in Missouri, and there are some interesting elements at play. For starters, the judge presiding over the case says that if you want to be a named plaintiff in the litigation, you can't use a pseudonym like "John Doe," and instead you have to use your real name. The judge, in agreeing with Ashley Madison's owners, ruled that only in extraordinary circumstances may civil litigation proceed under fake names, like in cases such as sex crimes and suits about juveniles. "The disclosure of Plaintiffs' identities could expose their sensitive personal and financial information -- information stolen from Avid when its computer systems were hacked -- to public scrutiny and exacerbate the privacy violations underlying their lawsuit," US District Judge John Ross ruled (PDF) earlier this month. "At the same time, there is a compelling public interest in open court proceedings, particularly in the context of a class action, where a plaintiff seeks to represent a class of consumers who have a personal stake in the case and a heightened interest in knowing who purports to represent their interests in the litigation." Days ago, a "John Doe" plaintiff removed (PDF) himself from the case. The judge has given the class, so far using unnamed plaintiffs, until June 3 to lodge their official class-action complaint and to allow those suing to determine whether they wish to be named plaintiffs or drop out. The advantages of being a named plaintiff are largely monetary. Those named in class-action cases are usually rewarded with tens of thousands of dollars in a settlement. However, data breach cases traditionally bring little financial reward to class members, yet they give large payouts to prevailing plaintiffs' attorneys. There's also a big wrinkle that could affect the upcoming class- action filing. Attorneys want to use confidential communications between Ashley Madison executives and their attorneys as part of their lawsuit in a bid to establish that the company made fake female profiles to induce people to become one of the site's 39 million members. Obviously, Avid Life Media, the site's operator, is opposed. Plaintiffs' lawyers say the data is not protected by attorney-client privilege and can be part of the case because of the "crime-fraud" exception. That exception means that a client and their attorney's back-and-forth communications are not protected if the communications were made "with the intention of committing or covering up a crime or fraud." The plaintiffs' lawyers noted a story in Gizmodo citing the hacked data in which Avid Life attorneys are discussing "fictitious" profiles on the Ashley Madison site. Judge Ross has not ruled on the request but is expected to do so before the June 3 filing deadline. ASTRAZENECA: Del. Supreme Court Upholds Dismissal of Class Action ----------------------------------------------------------------- Tom McParland, writing for Delaware Law Weekly, reports that the Delaware Supreme Court upheld the dismissal of a 12-year-old class action accusing AstraZeneca of consumer fraud, saying the group of third-party payor health insurers could not claim injury under applicable state laws. In Teamsters Local 237 Welfare Fund v. AstraZeneca Pharmaceuticals, the class of union health care funds alleged that AstraZeneca falsely advertised its prescription heartburn drug Nexium as superior to the less-expensive generic Prilosec, causing them to overpay for Nexium when the less-costly generic would have sufficed. However, the third-party payors -- or TPPs -- continued to list Nexium on their formularies, and they reimbursed members for the drug, even as the case sat pending in Delaware court and a similar class action unsuccessfully worked its way through federal court. The Superior Court dismissed the case, with prejudice, in 2015 for failure to allege sufficient causation under New York's consumer fraud statute. The plaintiffs appealed to the state's high court, contesting the Superior Court's causation analysis and arguing that Delaware law governed the claims. In a 17-page opinion issued April 12, the state Supreme Court eschewed the specific issues the TPPs raised on appeal, and focused instead on the "common sense notion" that the appellants' conduct precluded them from pleading injury, a necessity under both states' laws. "Under any reasonable interpretation of the statutes, TPPs who continue to pay or reimburse for Nexium, while claiming they were harmed by allegedly false advertising, are neither 'victims' of the allegedly false advertising nor were they injured by reason of or as a result of it," Justice Collins J. Seitz Jr. wrote for a three-member panel of the court. "They were injured by their own conduct." The roots of the dispute can be traced back to 2001, when AstraZeneca introduced Nexium to combat generic competition with its top-selling Prilosec drug. Nexium was therapeutically identical to the Prilosec's chemical compound but contained twice the amount of the active ingredient, according to court documents. Yet, AstraZeneca launched an aggressive marketing campaign, touting Nexium as the better drug in the hope that it would replace Prilosec in the market. As a result of the "false marketing campaign," the TPPs said, AstraZeneca gained "unlimited access to TPPs' treasuries, who paid billions of dollars for Nexium rather than the cheaper and therapeutically equivalent generic Prilosec." The plaintiffs filed the Superior Court action in 2004 on behalf of themselves and a putative nationwide class of TPPs, but the class action languished under a stipulated stay while a substantially identical consolidated class action proceeded in the U.S. District Court for the District of Delaware. The federal court applied New York's consumer fraud law over the Delaware statute, finding that state had the more significant connection to the claims. But the court found the plaintiffs failed to plead requisite awareness of the supposed false representations prior to purchasing Nexium, and dismissed the case with leave to amend. The plaintiffs instead chose to proceed in Delaware Superior Court, and after an administrative error further delayed the case, the court finally lifted its stay in February 2014. The TPPs, in their second amended complaint, alleged violations of the Delaware Consumer Fraud Act and breaches of similar laws in 14 other states, along with claims of unjust enrichment and negligent misrepresentation. Just as in the federal court, Superior Court Judge Vivian L. Medinilla applied the New York law and dismissed the case for failure to state a claim. According to Judge Medinilla, the "purported chain of causation that runs from the allegedly deceptive advertisements that may have influenced the decisions of individual doctors to prescribe a drug to their patients to causally affect the payer unions in this case is simply too attenuated." AUSTRALIA: Oberon to Join Class Action Against Forced Mergers ------------------------------------------------------------- Oberon Review reports that the Oberon Council will take its opposition to forced amalgamations all the way to the Land and Environment Court after joining a legal battle to fight the state government's plans. A proposal handed down by Local Government Minister Paul Toole late last year would see Oberon Council forced to merge with Bathurst Regional Council as part of a program of forced amalgamations being rolled out across the state. Oberon residents -- and councillors -- have vehemently opposed the plan, which is now being considered by the state's Boundaries Commission. In the meantime, Oberon Council has accepted an offer to join a class action against forced mergers being led by Sydney's Woollahra Council in the Land and Environment Court. Oberon mayor Kathy Sajowitz said an approach had come from Walcha Council for Oberon and other small councils, including Cabonne, to support Woollahra's action. Cr Sajowitz said the challenge, which is scheduled to be heard on April 21, was based around the claim that the Minister for Local Government misused Sections 218F of the Local Government Act to implement proposed forced amalgamations and that the subsequent Boundaries Commission process was procedurally unfair. "Eminent Sydney barrister Peter King has offered to act for Walcha and associated rural councils, an extremely generous commitment," Cr Sajowitz said. "As a result, legal costs for Oberon to join will be minimal. Should other rural councils decide to also join the action costs could be further reduced. "After seeking our own legal advice a recommendation was put to an extraordinary council meeting held on April 13 that Oberon Council join with the Walcha Council action. This recommendation was passed unanimously by council." Cr Sajowitz said Mr. Toole had been reluctant to speak to council or visit Oberon to discuss why he thinks a merger with Bathurst Regional Council would have any benefit for Oberon, leaving council with few options. "The concerns of the Oberon community are neither being heard nor acknowledged, to be treated with such disdain by our elected representatives is demeaning," she said. "Our community has overwhelmingly and consistently indicated its opposition to a merger with Bathurst Regional Council and, as such, council feels comfortable with endorsing this course of action. "Walcha has the support of its Federal Member Barnaby Joyce and Local Member Kevin Anderson in this action. "Although this is a NSW State Government issue, many Federal MPs are realising that the fallout has the real potential to impact strongly in the upcoming federal election. "This was apparent to me while chatting with the Federal MPs that were part of the Pollie Pedal Group who visited Oberon recently." Meanwhile, the deadline for councillors and mayors to express an interest in joining an interim council in their areas if forced amalgamations go ahead was on April 7. BANK OF NOVA SCOTIA: Sued Over Alleged Silver Price Manipulation ---------------------------------------------------------------- Barbara Shecter, writing for Financial Post, reports that a trio of Canadian law firms is seeking to certify a second class action lawsuit involving alleged manipulation of precious metals pricing over 15 years by large financial institutions including Bank of Nova Scotia. Lawyers at Sotos LLP, Koskie Minsky LLP and Camp Fiorante Matthews Mogerman, who filed a lawsuit in Ontario Superior Court of Justice in December alleging manipulation of the gold price, filed a similar action alleging that Scotia and the other banks "conspired to manipulate prices in the silver market under the guise of the benchmark fixing process, known as the London Silver Fixing." At this point, neither Canadian lawsuit, each of which is seeking up to $1 billion in damages or compensation on behalf of investors, has been certified to move forward. The Canadian lawsuits mirror actions filed earlier in the United States. The U.S. suits, which name Scotia and a handful of international banks including HSBC Holdings PLC and UBS AG, allege manipulation of key benchmarks based on the prices of gold and silver. There was a development in one of those cases. According to media reports, Deutsche Bank AG is attempting to settle U.S. litigation in exchange for a monetary payment and potential aid to the plaintiffs in pursuing other claims. A spokesperson at Bank of Nova Scotia declined to comment on the development south of the border, citing the fact that the cases against Scotia remain before the courts. The U.S. and Canadian cases are distinct from one another. The most recent Canadian lawsuit was filed on behalf of anyone in Canada who transacted in a silver market instrument, either directly or indirectly, between Jan. 1, 1999 and Aug. 14, 2014. The filing says this includes investors who participated in an investment or equity fund, mutual fund, hedge fund, pension fund or any other investment vehicle that transacted in a silver market instrument. Among the claims in the recent filing is an allegation that the defendants, including Bank of Nova Scotia, "manipulated the bid- ask spreads of silver market instruments throughout the trading day in order to enhance their profits at the expense of the class." As a result, the lawsuit claims, the alleged conduct affected both investors who bought and sold physical gold, and those who bought and sold silver-related financial instruments. According to the firms behind the lawsuits filed in Canada, law enforcement and regulatory authorities in the United States, Switzerland, and the United Kingdom, are investigating conduct in the precious metal market. BAYER INC: Xarelto Blood Thinner Drug Class Action Piles Up ----------------------------------------------------------- BloodThinnerHelp.com comments on recent reports from a Calgary Sun article which note the formation of a class action lawsuit in Calgary, Canada which has been filed against Bayer Inc., in relation to the new-generation blood thinner they manufacture, Xarelto. The lead plaintiff in this Canada class action lawsuit alleges that the anticoagulant drug caused her to suffer from an uncontrollable bleeding event which nearly led her to cardiac arrest. This Canadian class action lawsuit closely follows the formation of Multidistrict Litigation number 2592 in the United States by the U.S. Judicial Panel on Multidistrict Litigation. This MDL consolidated and transferred over 2,800 lawsuits filed in reference to Xarelto by plaintiffs who allege much the same. These lawsuits are additionally joined by another group of 620 Xarelto lawsuits which have been formed into a mass tort program by the Court of Common Pleas in Philadelphia, Pennsylvania. Lawsuits in these groupings have been filed against defendant Bayer AG as well as Janssen Pharmaceuticals, a subdivision of Johnson & Johnson corporation. According to reports published in the Calgary Sun, as of March 2015, Health Canada had received an estimated 1,100 adverse event reports from patients taking Xarelto. The article indicates that, according to a lawyer from Toronto, if the class action is successful, ". . . it would be in the millions of dollars." The Calgary Sun report also discussed the likely formation of another class action suit in Ontario at this time. In America, Xarelto gained approval from the U.S. Food and Drug Administration in 2011. The anticoagulant was approved to treat patients suffering from a pulmonary embolism, deep vein thrombosis, and atrial fibrillation, as well as those recovering from knee or hip replacement surgeries, who may be at heightened risk for the development of blood clots. In just five year's time, Xarelto has become the topic of increasing controversies and mounting lawsuits, which continue to grow in number today. The FDA has also given the blood thinner two "black box" warnings, which are the most strict warnings a product can receive before it is removed from the market for public sale. In the thousands of lawsuits now surrounding the drug, plaintiffs commonly report experiencing side effects such as pulmonary embolisms (blood clots in the lung), epidural hematoma, rectal bleeding, stroke, heart attack, internal bleeding episodes, eye bleeds, gastrointestinal bleeding, and brain hemorrhages, some of which have proven fatal. As thousands of Xarelto lawsuit plaintiffs await early 2017 bellwether trials, and other complaints continue to be filed, Attorney Joseph Osborne is working to help others who have used the blood thinner and who feel that it has negatively impacted their health. He wants to help ensure that affected patients will be provided with the important opportunity to investigate their legal rights in full. These individuals could be entitled to substantial compensation gained through legal action. BIG TEN: May 3 Trial Scheduled in Tenants' Project Class Action --------------------------------------------------------------- Andy Davis, writing for Iowa City Press-Citizen, reports that less than a month after filing a joint proposed settlement with Apartments Downtown, a class-action tenant lawsuit brought by the Iowa City Tenants' Project against landlord Tracy Barkalow has been cleared for trial. The case challenges illegal provisions in leases used by TSB and Big Ten Property Management -- Mr. Barkalow's property ownership and management companies -- over two lease terms from 2010 to 2012. A March 22 ruling by 6th District Court Judge Mitchell Turner sets the trial for May 3 and names Brooke Staley and Tyler Lammer, who were student renters, as class representatives. Chris Warnock, the attorney with the Iowa City Tenants' Project who represents the tenants, said the trial will determine what damages are owed to the tenants. "This is really significant, because this is the first of any of these class actions that have gone to trial," Mr. Warnock said. "All these lease clauses have been found to be illegal, so now we have to figure out what the actual and punitive damages are." In March 2014, Judge Douglas Russell granted the tenants' group class-action certification and ruled that several provisions in Mr. Barkalow's lease, including one that imposed an automatic fee for carpet cleaning when a tenant moved out, were illegal. Other illegal provisions included fees, fines, penalties and charges that go beyond actual, proven damages, and provisions that removed the landlord's liability in a number of areas, including for injuries and loss of property related to theft, fire or other circumstances. Mr. Barkalow on April 18 said he had no comment on the recent ruling. Warnock said the lease used by Mr. Barkalow was identical to leases used by Apartments Downtown and Apartments Near Campus during lease terms from 2010 to 2014. "You can see how provisions will pop up in other leases, like carpet cleaning -- that was all over the place. And the Apartments Downtown lease became sort of a popular model, but (Mr. Barkalow) was actually using the whole lease," Warnock said. "In this case, you've really got two faces. Apartments Downtown wants to settle this and work it out, and Mr. Barkalow is not willing to do that." Mr. Warnock said he estimates that fewer than 200 tenants were affected by the illegal leases but that damages could include up to $200 for wrongful withholding and up to three months of rent per tenant. As with the Apartments Downtown case, Mr. Warnock said tenants who rented from 2010 to 2012 can find more information and register to collect repayment online. Mr. Warnock said the aim of the class-action cases is not to receive large payments from landlords, but to ensure that renters have a right to legal leases and to defend themselves in court. "I think it really sends the message out to landlords that this is serious. So far, no one's had any consequences," Mr. Warnock said. "There have been all these illegal lease provisions, and nothing has happened. We'll see if there are consequences now." BELL MOBILITY: Wins Bid to Dismiss Prepaid Wireless Class Action ---------------------------------------------------------------- Bonny Murray, Esq., and Thomas Lipton, Esq., of Blake Cassels & Graydon LLP, in an article for Lexology, report that in Sankar v. Bell Mobility Inc., the Ontario Court of Appeal (Court) granted summary judgment dismissing a certified class action against Bell Mobility Inc. (Bell) related to prepaid wireless services credits. The Court found the plain meaning of the interrelated documents that formed each customer's prepaid phone contract with Bell was that unused prepaid funds expired at the end of the credits' active period. Any claims based on post-contractual statements Bell made to customers were essentially claims for misrepresentation or promissory estoppel, neither of which could be determined as a common issue. In addition, while the Court explicitly did not decide whether Ontario has legislative jurisdiction over prepaid phone cards, it held that, in any event, the prepaid contracts at issue would not have violated Ontario's regulations on gift cards because a customer's right to activate prepaid credits did not expire. PREPAID WIRELESS SERVICES CREDITS EXPIRE ON THE ACTIVE PERIOD'S LAST DAY Bell, through each of its brands, sold a variety of prepaid wireless services credits with active periods ranging from 30 days to a year. The relevant part of the Bell Mobility and Solo Mobile terms of service stated: "Value deposited into your prepaid account . . . will expire after a specified time period." The equivalent part of the Virgin Mobile terms of service stated: "Any Top Up balance on your account after the expiry date is forfeited and non-refundable." In addition to the terms of service, the prepaid cards some customers received and receipts given to some customers contained statements such as "$15 valid for 30 days" or "Funds expire, $15 - 30 days after activation." The key issue was whether the prepaid credits expired at the end of the last day of their active periods, or the day after. The Court agreed with Bell that the credits expired on the last day of their active periods. In reaching this conclusion, it looked not only at each customer's initial agreement, but also at other documents that formed part of the contractual relationship between the parties, including the terms on the phone cards and certain receipts some customers received. The Court held that modern contracts are often found in several documents, including both paper and internet documents. These interrelated documents must be read together to interpret the parties' contract. These interrelated documents did not form part of the factual matrix around each contract, but rather contained the contractual terms themselves that were common to all class members. The Court further found the factual matrix applicable to each individual customer's dealings with Bell played no role in the interpretation of the contracts at issue. The Court stated that if the factual matrix played a role, then contractual interpretation would not be a suitable common issue because individual facts could vary the Court's interpretation. The Court rejected the plaintiff's attempt to rely on text messages and other communications Bell made to its customers after the prepaid credits were purchased and prior to the expiry of the credits' active periods. These communications were made after the contracts were formed and so were not part of the contracts' factual matrixes. Instead, they were post-contractual communications. This issue could not be resolved commonly because it involved claims for misrepresentation or promissory estoppel, both of which require individual determination. ONTARIO GIFT CARD REGULATIONS NOT VIOLATED The Court stated it was not deciding whether Ontario has legislative jurisdiction over prepaid phone cards or whether such cards are subject to Ontario's regulations on gift cards (the regulations). Nonetheless, it found that if the regulations applied to the prepaid phone contracts, the regulations did not invalidate the time limit on Bell's prepaid wireless services credits. The regulations, made under the Consumer Protection Act, state in part that "[n]o supplier shall enter into a gift card agreement that has an expiry date on the future performance of the agreement." Bell's prepaid wireless credits did not violate the regulations for two reasons. First, the regulations prohibit only an expiry date on the future performance of gift card agreements; they do not generally prohibit agreements with a limited duration. Here, the prepaid credits could be activated whenever the customer chose and so there was no expiry date in violation of the regulations. Once the credits were activated, they became legally permissible time-limited contracts. Second, once the prepaid credits were activated, Bell had fully performed its obligations under these agreements by providing customers with access to its wireless services for the agreed time-limited period. Thus, there was no longer any future performance that could expire. CONTRACTS FORMED FROM GROUP OF DOCUMENTS Companies should be aware that courts will look to multiple sources that constitute a contract, even if some of those sources are found in different places and in different types of media. Careful consideration should be given to the content of each document in a contract and how they interrelate. This ruling also affirms that class action contract claims can still be decided on summary judgment despite courts' ability to consider the factual matrix surrounding individual contracts where appropriate. BOFI HOLDING: Amendment Filed to Securities Class Action -------------------------------------------------------- BofI Holding, Inc. provided comments on recent volatility in its stock price. The Company continues to be the target of anonymous short-seller hit pieces designed to manipulate the market in a veiled effort to benefit themselves at the expense of BofI's shareholders. Upon a closer examination, these anonymous pieces are based on s peculation, innuendo, and outright misrepresentations. The latest hit piece, posted on a blog, claims that a "recent" lawsuit raised new allegations against BofI. In fact, this lawsuit is old news. Back on October 15, 2015, known "repeat player" strike suit attorneys filed a securities class action against BofI. An amendment to this old lawsuit has now been filed. After months of harassing our ex- employees, the lawyers' amendment fails to raise any credible or systemic problems at BofI. The amendment adds some unsubstantiated stories from "confidential" ex-employees mostly criticizing and complaining about the alleged lack of manners of their managers. The amended complaint also incorporates the anonymous blog posts of admitted short sellers, referring to them as "articles", as if they were factual and unbiased. Just like the initial complaint, the amended complaint is riddled with numerous and material factual inaccuracies, erroneous conclusions, and mistaken applications of legal standards, which will be addressed in court. What the anonymous short-sellers and the strike suit attorneys fail to highlight is that BofI, like other banks, is regularly examined by its federal regulators, external auditors, and internal auditors. The absence of public enforcement actions highlight how disconnected these allegations are from the reality of BofI's highly compliant and top-performing business. Additionally, the Audit Committee of the Board of Directors engaged one of the largest law firms in the world to conduct an independent investigation to determine whether there is support for the factual allegations and the conclusions contained in the employment action that formed the basis for the initial class action. After an extensive investigation, the outside law firm advised the Audit Committee that, based on its investigation, it found no support for the conclusions in the employment complaint that the Bank or management engaged in wrongdoing or acts of fraud or impropriety. Moreover, BofI's continued best-in-class asset quality metrics, including industry leading charge-off ratios, and low non-accrual loans are indicative of BofI's strong underwriting standards. BofI will vigorously defend itself and will continue to focus on delivering positive earnings growth and maintaining our strong regulatory relationships and risk-focused culture. BON SECOURS: Faces "Miller" ERISA Class Action in Maryland ---------------------------------------------------------- Carolyn Miller, 1333 North Woodyear Street Baltimore, Maryland 21217, individually and on behalf of herself and all others similarly situated, the Plaintiff, v. Bon Secours Health System, Inc., 1505 Marriottsville Road, Marriottsville, Maryland 21104, and John Does 1-20, the Defendants, Case No. 1:16-cv-01150-JKB (D. Md., April 18, 2016), seeks to require Defendants to comply with all of the requirements, and to pay damages and penalties as a result of their past failures in managing/administering the Employees' Retirement Plan of Bon Secours Baltimore Health Corporation (the Bon Secours Plan) and all the other defined benefit pension plans established and/or maintained by Bon Secours. According to the complaint, as of August 31, 2013, August 31, 2014 and August 31, 2015, the Plans were underfunded by $290.227 million, $314.225 million, and $390.094 million respectively. The Defendants allegedly excuse the severe underfunding on the grounds that the Plans are "church plans" and therefore are exempt from the Employee Retirement Income Security Act of 1974 (ERISA). To the contrary, as described, the Plans do not meet ERISA's requirements for the "church plan" exemption, because they were not "established", and not "maintained" by a church. Rather, the Plans were established and are maintained by Bon Secours Health System, Inc., which is a business -- not a church or a convention or association of churches. Bon Secours based in Marriottsville, Maryland, is a $3 billion dollar not-for-profit Catholic health system that owns, manages or joint ventures 18 acute care, 5 long term care, 4 assisted living, 6 retirement communities/senior housing, 14 home care and hospice services, and other facilities, primarily on the East Coast. The Plaintiff is represented by: Robert K. Jenner, Esq. Justin A. Browne, Esq. Kimberly A. Dougherty JANET, JENNER & SUGGS, LLC 1777 Reisterstown Road, Suite 165 Baltimore, MD 21208 Telephone: (410) 653 3200 Facsimile: (410) 653 9030 E-mail: rjenner@myadvocates.com Jbrowne@Myadvocates.com - and - Edward W. Ciolko, Esq. Mark K. Gyandoh, Esq. Julie Siebert-Johnson, Esq. KESSLER TOPAZ MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667 7706 Facsimile: (610) 667 7056 E-mail: eciolko@ktmc.com mgyandoh@ktmc.com jsjohnson@ktmc.com - and - Robert A. Izard, Esq. Mark P. Kindall, Esq. IZARD NOBEL LLP 29 South Main Street, Suite 305 West Hartford, CT 06107 Telephone: (860) 493 6292 Facsimile: (860) 493 6290 E-mail: rizard@izardnoble.com mkindall@izardnoble.com BOSTON SCIENTIFIC: Recalls Fetch(TM) 2 Aspiration Catheters ----------------------------------------------------------- Boston Scientific (NYSE: BSX) has initiated a global, voluntary recall of all models of its Fetch(TM) 2 Aspiration Catheter, a thrombectomy catheter used during procedures to remove small blood clots from coronary arteries. The Fetch 2 catheters were recalled on March 22, 2016, due to complaints of shaft breakage. The U.S. Food and Drug Administration (FDA) classified the action as a Class 1 recall. This recall designation means that the use of the device exposes the patient to a reasonable chance of a serious adverse health consequence or death. There have been no reports of patient injury or death, and there is no risk to patients who previously underwent a thrombectomy procedure with the Fetch 2 catheter. All reports of shaft breakage happened during the procedure, and the broken section was either removed while still partially attached to the catheter shaft or retrieved with a snare, without further patient complications. While unreported, the most severe potential outcome of this breakage is embolism of device fragments, which could lead to obstruction of blood flow or additional intervention to remove a device fragment surgically. As part of the recall, all affected healthcare facilities were advised to discontinue use of all Fetch 2 catheters immediately and return unused product to Boston Scientific. Because Boston Scientific acquired the Fetch 2 catheter product line from Bayer Medical Care Inc., all recalled inventory is packaged and labeled as Bayer product. This device was manufactured between June 11, 2014 and February 19, 2016. There are currently 21,155 devices on the market subject to this recall. Fetch 2 Catheter UPNs: --- FETCH2 US 109400-001 --- FETCH2 OUS 109400-002 --- FETCH2 Canada 109400-003 --- FETCH2 Japan 109400-004 --- FETCH2 EU 109400-005 Physicians and healthcare facilities can direct questions to their Boston Scientific representative or, call 1-800-811-3211. Adverse reactions or quality problems experienced with the use of this product may be reported to the FDA MedWatch Adverse Event Reporting program either online, by regular mail or by fax. Complete and submit the report Online: www.fda.gov/medwatch/report.htm Regular Mail or Fax: Download form www.fda.gov/MedWatch/getforms.htm or call 1-800-332-1088 to request a reporting form, then complete and return to the address on the pre-addressed form, or submit by fax to 1-800-FDA-0178 or Health care professionals and consumers may report serious adverse events or product quality problems with the use of this product to Boston Scientific by calling 1-800-811-3211 and to the FDA's MedWatch Adverse Event Reporting program either online, by regular mail, fax or phone. CANADA: Church Off Hook for Residential Schools Compensation ------------------------------------------------------------ Glora Galloway, writing for The Globe and Mail, reports that a miscommunication by a federal lawyer allowed the Catholic Church to renege on its obligation to try to raise $25-million to pay for healing programs for the survivors of Indian residential schools. Of that amount, the Church raised only $3.7-million, and a financial statement suggests less than $2.2-million of that was actually donated to help former students cope with the trauma inflicted by the residential schools. The legal misstep occurred when Ottawa was pressing the Church to pay the entirety of a related cash settlement stemming from the Indian Residential Schools Settlement Agreement, the largest class-action deal in Canadian history. The failing fundraising effort by the Church, which represented almost a third of its obligation under the settlement, was playing out as the Truth and Reconciliation Commission was travelling the country hearing gut-wrenching stories about what occurred behind the walls of the institutions that operated in Canada for more than 100 years. The landmark settlement agreement required 50 Catholic groups that ran the schools, known in court documents as the Catholic entities, to pay a combined $79-million for their role in the abuse. Of that, $29-million was to be paid in cash, most of which was to flow to a now-closed Aboriginal Healing Foundation. Another $25- million was to be donated in unspecified "in kind" services. And an additional $25-million was to be raised for healing programs through the "best efforts" that the entities could make at fundraising. In an attempt to make the Catholic Church pay the full amount of the $29-million cash settlement, the government inadvertently released it from any obligation it might have had to continue with a dismal fundraising campaign. "When you have a deal, it needs to be implemented," said Bill Erasmus, the National Chief of the Dene Nation who handles the residential schools file for the Assembly of First Nations. "So the Church should be paying up. The church agreed there were harms. That's why people were to be compensated." But, as of last summer, the Catholic entities were legally off the hook. In a March 19 letter to Ron Kidd, a concerned citizen from British Columbia who has been following this case, Andrew Saranchuk, an assistant deputy minister within the Indigenous Affairs department, explained that a court settlement reached on July 16, 2015 "released the Catholic entities from all three of their financial obligations under the settlement agreement, including the 'best efforts' fundraising campaign, in exchange for a repayment of $1.2-million in administrative fees." This result, Mr. Saranchuk went on to explain, "was due to miscommunications between counsel regarding the nature and extent of the settlement being discussed." The problem arose when the government took the Catholic entities to court in late 2013 for coming up $1.6-million short on the millions they were required to pay to the Aboriginal Healing Foundation. Negotiations ensued between Gordon Kuski, the lawyer for the Catholic entities, and Alexander Gay, the lawyer for the government. According to court documents, Mr. Kuski wrote to Mr. Gay in June, 2014 and proposed that the Catholic entities pay $1.2- million in return for being released from "all matters between the parties" -- meaning all of the financial obligations in the residential schools settlement agreement that had yet to be met, including fundraising. The groups realized their fundraising was falling far short of the $25-million goal and they wanted to be freed from that responsibility. The court documents suggest there was some dispute over how that offer was received, but it appears that Mr. Gay's responses led Mr. Kuski to believe they had a deal, even though the government had no intention of allowing the Church to walk away from the fundraising obligations. In reviewing the matter, Neil Gabrielson, a judge with the Court of Queen's Bench for Saskatchewan, determined that Mr. Kuski had reason to believe that the proposal had been accepted and that it therefore was binding. A spokesman for the Indigenous Affairs department said in an e-mail that the government pressed the matter when it was clear that a mistake had occurred but ultimately it respects the court's decision. Pierre Baribeau, a lawyer for the Catholic entities, says his clients did all they could to meet their fundraising commitments under the residential schools settlement agreement. But, in the end, said Mr. Baribeau, it was "a fiasco." Although much money was spent on the campaign, he said, corporations could not be persuaded to donate because it was a religious matter and many parishes were not in a financial position to hand over large sums. "So we were not successful," said Mr. Baribeau. "We did our best efforts, that's for sure." But Charlie Angus, the indigenous affairs critic for the New Democrats, said the residential schools settlement agreement was supposed to provide justice for the survivors. "Instead, we see time and time again that it has been a travesty of injustice by the defendants for the benefit of the defendants," said Mr. Angus. "I am looking at communities where we have people dying because of a lack of mental-health services and we have the Catholic Church trying to sneak out of its obligations." CARNIVAL CORP: Allows Cuban-Americans to Sail Following Lawsuit --------------------------------------------------------------- Curt Anderson and Michael Weissenstein, writing for The Associated Press, report that faced with protests, political pressure and a lawsuit, Carnival Corp. announced on April 18 it will allow Cuban- born passengers to book cruises to the island but will delay the trips if Cuba does not change its policy barring nationals from returning by sea. Carnival CEO Arnold Donald said in a written statement that the cruise line is continuing negotiations with Cuba aimed at resolving the issue prior to a scheduled May 1 cruise by its Fathom brand from Miami to Cuba -- the first such sail in more than 50 years that is part of the ongoing thaw in U.S.-Cuba relations. The 704-passenger Adonia plans to sail every other week to three Cuban ports: Havana, Cienfuegos and Santiago de Cuba. "We want everyone to be able to go to Cuba with us," Mr. Donald said. "We remain excited about this historic opportunity to give our guests an extraordinary vacation experience in Cuba." The decision follows protests by Cuban-Americans outside Carnival's headquarters in the suburb of Doral. Miami-Dade County Mayor Carlos Gimenez -- who was born in Cuba -- also suggested in a letter that Carnival might be violating the county's human rights ordinance by discriminating against a specific class of people. In addition, two Cuban-Americans who were prevented from buying tickets on the May 1 cruise because they were born in Cuba filed a potential class-action civil rights lawsuit in Miami federal court. And Secretary of State John Kerry said during a visit to Miami on April 15 that Cuba should change its policy and that Carnival nevertheless should allow anyone to travel on its ships. U.S. cruise ships stopped sailing to Cuba shortly after its 1959 revolution. Restarting them was an important element of the Obama administration's attempt to increase tourism to Cuba after the Dec. 17, 2014, decision to restore diplomatic relations and move toward normalization. Cruises were seen by Cuban authorities as an easy way of bringing American visitors to spend badly needed dollars in Cuba without further straining the island's overbooked often decrepit hotels. However, the idea of massive, gleaming cruise ships discharging thousands of Americans into the streets of Havana has provoked negative reactions from some Cuban officials who fear that the U.S. is trying to re-exert control of the island through a new strategy of building closer economic ties. The idea of Cubans moving back and forth between the two countries by sea also is particularly charged, given Cuban exiles' history of returning to attack the government, and Cubans crossing the Florida Straits in the other direction on rafts to emigrate to the U.S. Cuba does permit Cuban-born people to arrive by air to the island. Mr. Donald said Carnival was continuing discussions so that travel on its ships would "be on a level playing field" with airlines and air charters. "Again, we remain confident that we will reach a positive outcome and we continue to work full speed ahead in preparing for our every-other-week sailings from PortMiami to Cuba," he said. Carnival, the world's largest cruise line, operates 10 cruise brands around the world with 100 ships that visit some 700 ports, according to the company statement. CERTIFIED RECOVERY: Faces "Herrmann" Suit in W.D. Wisconsin ---------------------------------------------------------- A lawsuit has been filed against Certified Recovery, Inc. The case is captioned Paul Herrmann and Kelsey Herrmann, on behalf of themselves and others similarly situated, the Plaintiffs, v. Certified Recovery, Inc., the Defendant, Case No. 3:16-cv-00247 (W.D. Wisc., April 18, 2016). Certified Recovery is a collection agency which engages in providing financial and insurance service. The Plaintiffs are represented by: James Davidson, Esq. GREENWALD DAVIDSON RADBIL PLLC 5550 Glades Road, Suite 500 Boca Raton, FL 33431 Telephone: (561) 826 5477 E-mail: jdavidson@gdrlawfirm.com - and - Matthew Curtiss Lein, Esq. LEIN LAW OFFICES 15692 US Hwy. 63 P.O. Box 761 Hayward, WI 54843 Telephone: (715) 634 4273 Facsimile: (715) 634 5051 E-mail: mlein@leinlawoffices.com CHARLESTON MEDICAL: Sued Over Medical Record Overcharges -------------------------------------------------------- Kyla Asbury, writing for West Virginia Record, reports that a man is suing Charleston Area Medical Center after he claims it overcharged him for a copy of his medical records. Healthport Technologies LLC was also named as a defendant in the suit. On Sept. 28, Basil Crookshanks sent a letter to CAMC requesting copies of his medical records and medical bills, according to a complaint filed Oct. 28 in Kanawha Circuit Court and removed to federal court April 8. Mr. Crookshanks claims CAMC responded via letter on Oct. 20, stating that payment of $4,463.43 would be required before copies of his medical records and bills would be provided. The defendant demanded 55 cents per page to produce Mr. Crookshanks' medical records, which consisted of 7,518 pages, plus additional amounts for taxes and shipping, according to the suit. Mr. Crookshanks claims he was forced to pay the full $4,463.43 to obtain copies of the medical records and that by demanding this, the defendants violated West Virginia code. The plaintiff and other similarly-situated individuals suffered damages by being forced to pay more than the amount permitted by statute to obtain their medical records, according to the suit. Mr. Crookshanks claims the defendants violated public policy of the state by overcharging him and others to obtain copies of their personal medical records. The defendants' actions constitute fraud and violations of the West Virginia Consumer Credit and Protection Act, according to the suit. Mr. Crookshanks is seeking compensatory damages. He is being represented by David E. Goddard and Edmund L. Wagoner of Goddard & Wagoner PLLC. The defendants are represented by Jeffrey A. Holmstrand of Grove, Holmstrang & Delk PLLC. U.S. District Court for the Southern District of West Virginia case number: 2:16-cv-03508 CHEMOURS COMPANY: Sued Over Failure to Pay Employees Benefits ------------------------------------------------------------- Mark Girardot, Gerhard R. Wittreich, and Peter Butler, on behalf of themselves and others similarly situated v. The Chemours Company, Case No. 1:16-cv-00263-UNA (D. Del., April 14, 2016), is brought against the Defendant for failure to pay former employees a lump sum severance benefit of one week of base pay for each full year of service, with both a minimum benefit of two weeks of base pay and a cap of 26 weeks base pay, and additional sum payment equal to the costs of 3 months of COBRA medical coverage. The Chemours Company operates a chemical company headquartered in Wilmington, Delaware. The Plaintiff is represented by: Robert K. Beste Jr., Esq. COHEN SEGLIAS PALLAS GREENHILL & FURMAN PC Nemours Building, Suite 1130 1007 North Orange Street Wilmington, DE 19801 Telephone: (302) 425-5089 E-mail: rbeste@cohenseglias.com CONNECTICUT: Settlement Leads to Improved Children's Oral Health ---------------------------------------------------------------- Arielle Levin Becker, writing for the ctmirror, reports that Connecticut leads the nation in the percentage of kids covered by Medicaid who go to the dentist -- a dramatic change from a decade ago, when the state ranked near the bottom, according to a national report. Other studies have found significant improvements in poor children's oral health over that time. But dentists and advocates say that progress could be set back under a proposal by Gov. Dannel P. Malloy to cut by 10 percent the Medicaid payment rates for children's dental care. "It's going to have a huge impact, I think," said Patricia Baker, president and CEO of the Connecticut Health Foundation, which has funded studies on access to dental care. "This can erode fundamental building blocks for kids." "This is a pretty significant step backward," said Mary Alice Lee, a senior policy fellow at Connecticut Voices for Children who has been monitoring Medicaid oral health data for more than a decade. Dr. William Nash, president of the Connecticut State Dental Association, said the cut PROBABLY would mean the difference between dentists making a marginal profit from treating children covered by Medicaid and taking a loss. He predicted that if the cut takes effect, fewer dentists will treat Medicaid patients. "The whole thing's going to break down," Dr. Nash said. But a spokesman for the state Department of Social Services said the administration doesn't think that will happen. "When surveyed in 2015, nearly all of our provider reimbursement rate schedule for children was significantly higher than other New England states, New York and Pennsylvania," DSS spokesman David Dearborn said. "We don't believe this rate adjustment would affect continued access by children to excellent care by the many dedicated practitioners enrolled in the program." Between 2005 and 2013, the percentage of Connecticut children covered by Medicaid who visited a dentist in the previous year more than doubled, from 31.9 percent to 64.3 percent, according to a report by the American Dental Association's Health Policy Institute. The turnaround followed a 2008 settlement to a class-action lawsuit that led to significant increases in the rates Connecticut's Medicaid program paid for the 60 most common children's dental services. That coincided with outreach work to get more dentists to take Medicaid patients and efforts to streamline the program. Multiple studies found that those changes were followed by improvements in both access to care and children's oral health, including a drop in the percentage of poor children with dental decay. After the settlement, Medicaid rates for pediatric dental care were set at the 70th percentile of private insurance fees paid in 2005. The rate for a periodic oral evaluation is now $35, up from $18.80 before the settlement, while payment for a comprehensive oral evaluation is $65, up from $24.58 before 2008. The rates have not changed since then. A 10 percent cut would save $5.3 million, according to Gov. Malloy's budget proposal. Gov. Malloy suggested the cut as part of a plan to address a projected $930 million deficit in the upcoming fiscal year, something the governor has said reflects a "new economic reality" that demands changes in how the state spends its money. Gov. Malloy's initial budget plan, proposed in February, largely avoided cuts to Medicaid, which, at close to $2.5 billion, represents one of the largest line items in the state budget. The administration exempted Medicaid from a proposed across-the-board 5.75 percent cut to most areas of the budget. But the governor's revised proposal, issued to address more recent growth in deficit projections, included more cuts to the program, including scaling back eligibility for parents of minor children, reducing rates paid for ambulance transportation and a larger cut to hospital funding. A major turnaround The 2008 settlement followed a 2000 lawsuit on behalf of children covered by the state's Medicaid program -- known as HUSKY -- who struggled to get dental care. It was followed by a surge in the number of dentists accepting HUSKY, from 349 in 2008 to 1,855 at the end of 2013. The rate hike wasn't the only change. The state switched from having the dental program handled by multiple managed care companies -- each had a separate claims process and procedures for becoming part of the network -- to one run by a single administrative organization. There was also a significant effort to recruit more dentists to the program. "Raising reimbursement rates is necessary but not sufficient for increasing dental care access for kids in the Medicaid program," Ms. Lee said. Similarly, the Health Policy Institute's report linked Connecticut's gains to "comprehensive, multi-pronged reforms," including outreach to providers and clients, payment increases and streamlined administrative procedures. And data indicate the changes have been significant. A 2010-2011 study by the state Department of Public Health that examined 750 low-income children aged 3 to 5 in Head Start programs found that 19 percent had experienced dental decay, down from 31 percent in a study four years earlier. The rate of untreated decay fell from 20 percent to 10 percent in that time, while the rate of young children with rampant decay -- five or more decayed teeth -- fell from 14 percent to 6 percent. Seven percent of the Head Start children needed oral health treatment, compared to 18 percent four years earlier. DENTAL EQUITIES: Has Sent Unsolicited Fax Ads, Action Claims ------------------------------------------------------------ Econo-Med Pharmacy, Inc., on behalf of itself and all others similarly situated v. Dental Equities, LLC; PeerUnited, LLC; and Peer Equities, LLC, Case No. 2:16-cv-02579 (C.D. Cal., April 14, 2016), seeks to stop the Defendants' practice of sending unsolicited advertisements via fax without providing detailed information in the margins of the fax. The Defendants operate a company that sells credit card memberships, among other things, to medical professionals nationwide. The Plaintiff is represented by: Christopher P. Ridout, Esq. Hannah Belknap, Esq. ZIMMERMAN REED, LLP 2381 Rosecrans Avenue, Suite 328 Manhattan Beach, CA 90245 Telephone: (877) 500-8780 E-mail: Christopher.Ridout@zimmreed.com Hannah.Belknap@zimmreed.com - and - Randy K. Pulliam, Esq. CARNEY BATES & PULLIAM, PLLC 2800 Cantrell Rd., Suite 510 Little Rock, AR 72202 Telephone: (501) 312-8500 Facsimile: (501) 312-8505 E-mail: rpulliam@cbplaw.com DIAGEO PLC: Court Dismisses Red Stripe Labeling Class Action ------------------------------------------------------------ Marc Sorini, Esq., of McDermott Will & Emery, in an article for The National Law Review, reports that a decision has been made in the ongoing Red Stripe false advertising/labeling class actions. This case involves allegations that the labeling and marketing of Red Stripe Beer misleads consumers into thinking they are purchasing beer made in Jamaica from Jamaican ingredients. In fact, production of Red Stripe for the US market moved to the US in 2012. The Southern District of California's Dumas v. Diageo PLC decision to dismiss the plaintiffs' case gives hope that companies with alcohol beverage brands originating overseas can produce those brands in the US without facing significant litigation risk. The plaintiffs brought their case under several California statues and also alleged negligent and intentional misrepresentation. Central to the plaintiffs' allegations were statements on Red Stripe's secondary packaging and labeling that the beer was a "Jamaican Style Lager" and contained "The Taste of Jamaica." The plaintiffs also pointed to the labeling and packaging's continued display of the original Jamaican brewer's logo as evidence of deception. Finally, the plaintiffs pointed to the label's statement that the beer "embodied the spirit, rhythm and pulse of Jamaica and its people." Of course, the labels and secondary packaging did disclose that the US market beer was brewed and bottled in Latrobe, Pennsylvania. Looking only at the complaint and before any discovery, the court dismissed the case, concluding that "no reasonable consumer would be misled into thinking that Red Stripe is made in Jamaica with Jamaican ingredients based on the wording of the packaging and labeling." More specifically: The mere fact that the words "Jamaica" and Jamaican" appear on the packaging does not support a conclusion that consumers would be confused about the origin and ingredients of the beer. The statements on Red Stripe were similar to those made with respect to a "Swiss Army knife" -- just as "Swiss" modified "Army," in this case "Jamaican" modifies "Style" and does not connote the actual place of production. Red Stripe's display of "Jamaican Style" and similar claims are similar to Blue Moon making a "Belgian-Style Wheat Ale" and Harpoon making a "Belgian Style Pale Ale." "Taste of Jamaica" is too vague and meaningless to form the basis of a false advertising claim. Red Stripe presents different facts from the facts that give rise to the false advertising case involving Beck's Beer, where the labeling and packaging stated "Originating in Germany," "brewed under the German Purity Law of 1516," and "German quality." Even though consumers may have already held an expectation that Red Stripe is brewed in Jamaica based on past production on the island, no legal authority places a duty on marketers to counter such pre-conceived notions. On the basis of this reasoning, the court dismissed the plaintiffs' complaint as a matter of law. It did, however, dismiss the case "without prejudice," which will give the plaintiffs 15 days (until April 21, 2016) to assert new claims that might survive dismissal. The Dumas opinion represents merely one battle won (at least temporarily) in what will no doubt prove a long war over alcohol beverage labeling in the United States. Nevertheless, it provides helpful reasoning that may eventually influence other courts and provide guidance to marketers in the future. EOS RENTALS: "Gruver" Seeks to Recover Unpaid Wages and Damages --------------------------------------------------------------- Jeffrey Gruver, individually and on behalf of all others similarly situated v. E.O.S. Rentals, LLC, Case No. 2:16-cv-00298-GJF-SM (D.N.M., April 14, 2016), seeks to recover unpaid overtime wages and other damages under the Fair Labor Standards Act. E.O.S. Rentals, LLC is an oil and gas service company providing services for the hydraulic fracturing process of oil and gas operations. The Plaintiff is represented by: Justin R. Kaufman, Esq. Rosalind B. Bienvenu, Esq. HEARD ROBINS CLOUD, LLP 505 Cerrillos Road, Suite A209 Santa Fe, NM 87501 Telephone: (505) 986-0600 Facsimile: (505) 986-0632 E-mail: jkaufman@heardrobins.com rbienvenu@heardrobins.com - and - Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. Lindsay R. Itkin , Esq. FIBICH, LEEBRON, COPELAND BRIGGS & JOSEPHSON 1150 Bissonnet St. Houston, Texas 77005 Telephone: (713) 751-0025 Facsimile: (713) 751-0030 E-mail: mjosephson@fibichlaw.com litkin@fibichlaw.com adunlap@fibichlaw.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH, P.L.L.C. 8 Greenway Plaza, Suite 1500 Houston, Texas 77046 Telephone: (713) 877-8788 Facsimile: (713) 877-8065 E-mail: rburch@brucknerburch.com EVER-GREEN EXPRESS: "Rhodes" Suit Seeks to Recover Unpaid OT ------------------------------------------------------------ Stephen Rhodes, on his own behalf and others similarly situated v. Ever-Green Express Service, Inc., Case No. 8:16-cv-00895-VMC-EAJ (M.D. Fla., April 14, 2016), seeks to recover unpaid overtime wages and damages pursuant to the Fair Labor Standards Act. Ever-Green Express Service, Inc. owns and operates a Trucking Company located at 9449 Benford Rd, Orlando, FL 32827. The Plaintiff is represented by: William John Gadd, Esq. W. JOHN GADD, ATTORNEY AT LAW Suite 250, 2727 Ulmerton Rd Clearwater, FL 33762 Telephone: (727) 524-6300 Facsimile: (727) 524-6330 E-mail: wjg@mazgadd.com FAIR COLLECTIONS: "Simon" Suit Seeks Damages Over FDCPA Breach -------------------------------------------------------------- Amy Simon, individually and on behalf all others similarly situated, the Plaintiff, v. Fair Collections & Outsourcing, Inc. (FCO), and CPF Mondial, LLC, the Defendants, Case No. 2016-CH- 05402 (Cook Cty. Cir. Ct, Ill., April 18, 2016), seeks to recover actual damages, statutory damages, and costs and attorney's fees as a result of Defendants' violation of the Fair Debt Collection Practices Act (FDCPA). The Defendants contacted persons other than the consumer who allegedly owed a debt more than once and stated the consumer owed a debt; made false, deceptive and misleading representations in connection with the alleged debt; continued to contact the consumer and others by telephone about the debt after receiving notice from the consumer that the debt was disputed; failed to send the consumer a written notice validating the debt within 5 days of Defendant's initial communication with the consumer; and failed to identify the current creditor or owner of the alleged debt. FCO is a collector agency in the multi housing industry. The Plaintiff is represented by: Samuel Shelist, Esq. SHELIST LAW FIRM LLC 29 E. Madison Street, Suite 1000 Chicago, IL 60602 Telephone (312) 644-3900 E-mail: www.shelistlawfirm.com - and - Jeffrey S Sobek, Esq. JS LAW 29 E. Madison Street, Suite 1000 Chicago, IL 60602 Telephone: (312) 756 1330 E-mail: jeffs@jsslawoffices.com FLINT, MI: Wants Water Crisis Suit Dismissed on Immunity Grounds ---------------------------------------------------------------- Tresa Baldas, writing for Detroit Free Press, reports that a group of Flint residents suing over the water crisis is dealing with the immunity argument again, this time in a challenge from local officials. In a court filing on April 18, the City of Flint asked a federal judge to dismiss a class-action against it on immunity grounds. The State of Michigan did the same thing two weeks ago in the same lawsuit. Flint residents are seeking to hold the city and state liable for allegedly exposing them to toxic water and causing a host of health issues. They want money and the water problem fixed -- though both defendants claim they're immune from liability under the U.S. Constitution. "The city is entitled to sovereign immunity under the 11th Amendment because it was an 'arm of the state' during the relevant times,'" attorneys for Flint argued in the April 18 filing. Moreover, the city said that it already is trying to fix the problem, as required by an emergency order that was issued under the federal Safe Drinking Water Act. That should be sufficient, the city argued, claiming the plaintiffs have no standing to challenge a government-mandated process that is already in the works. "Since these emergency declarations, the city, its state and federal partners . . . have dedicated significant resources toward addressing this crisis. Bottled water and water filters are distributed at multiple sites in the city, accelerated efforts to repair and/or replace damaged service lines are in motion and multiple investigations are ongoing. The city is committed to solving this crisis and preventing re-occurrence," Flint's lawyers wrote in the filing in U.S. District Court. The plaintiffs disagreed, claiming the defendants are just trying to get out of paying them for the wrong they caused. "We're trying to move them in the right direction. Lawsuits are like cattle-prods -- they move people in the right direction," said Michael Pitt, one of the attorneys who filed the lawsuit. Mr. Pitt also accused the defendants of misinterpreting the Safe Drinking Water Act (SDWA) to "try to deflect their responsibility." "Congress, in enacting the SDWA, did not intend to deprive injured water users of their right to obtain fair compensation for the egregious acts of these government employees responsible for the poisoning of an entire community," Mr. Pitt said. "Phony legal arguments will not protect them, and they will be held accountable." The lawsuit, which was filed in November, seeks to hold state and local authorities liable for allegedly endangering the health of Flint residents by exposing them to toxic water when Flint switched its drinking water from the Detroit system to the Flint River. It alleges that local and state officials unnecessarily exposed them to toxic public water for more than 18 months, resulting in physical and psychological injuries, including high levels of lead in their bloodstreams; skin lesions and hair loss; chemically induced hypertension; autoimmune disorders; seizure- like convulsions; depression, and chronic anxiety. The lawsuit seeks compensation for Flint residents' physical injuries and property damages and asks that the State of Michigan undertake future corrective action, including lifetime medical monitoring for all the children injured by the tainted water. FLINT, MI: Plaintiffs' Lawyers Face Challenge in Water Suits ------------------------------------------------------------ David Bailey, writing for Reuters, reports that Luke Waid drives 20 miles each day to shower at a relative's place, hauls bottled water back to his Flint, Michigan, home and worries about his 2- year-old daughter's irritability. "I don't know if that is a product of her being exposed to high lead levels, or her just being a child," he said. "I'm not sure." That uncertainty also presents a challenge to the lawyers who have enlisted as many as 1,800 residents, including Mr. Waid, as plaintiffs in lawsuits over contamination in the Flint's water supply. The problem began in April 2014 when the city, then under the control of a state-appointed emergency manager, switched its water source to the Flint River from Lake Huron as a cost-saving measure, and corrosive river water caused lead to leach into the water supply. Flint switched back in October after tests showing elevated lead levels in the blood of some children became public. In spite of the international outcry and the well-known toxic effects of lead, proving Flint's contaminated water actually caused any particular injury will be far from straightforward, lawyers with expertise in lead litigation said. The difficulty in showing a causal link adds to other legal hurdles. State and city officials are challenging the cases, arguing they are protected by sovereign immunity, a legal doctrine that shields most government officials and agencies from liability for their official actions. That powerful defense already has kept many major plaintiffs firms away from Flint, since the water supply is government-run. In an effort to overcome these potential obstacles, plaintiffs' lawyers are pursuing several strategies to seek redress for victims: individual lawsuits, class actions and a victims' compensation fund. Plaintiffs' lawyers claim that the alleged government misconduct rose to the level of gross negligence or violated residents' constitutional rights, two exceptions to immunity. Some lawsuits also target private companies that performed work or tests on Flint's water system. The companies have denied responsibility. It should be relatively easy to show in court that residents were exposed to lead, in part because government officials have publicly acknowledged the water is tainted, said Delaware Law School Professor Jean Eggen. But exposure is not enough to prove damages, Ms. Eggen said. Lead injuries may not be apparent for years. In addition, injuries associated with lead poisoning -- such as impaired brain development, reduced attention span and lower IQ -- all have many causes. New York law firm Napoli & Shkolnik said it has hired a Washington lobbyist to persuade Congress to create a compensation fund for Flint. Such funds may be set up to allow injured parties to receive compensation with a lower burden of proof than applicants would face in court. Napoli partner Hunter Shkolnik envisions such a fund paying for medical monitoring immediately, and possibly leaving the question of damages for later, putting money into people's pockets relatively quickly. But Ken Feinberg, who oversaw victim compensation funds for victims of the Sept. 11, 2001 attacks and the 2010 BP Deep Horizon oil spill, is skeptical such an approach would work with Flint residents. "How long do you monitor them?" asked Mr. Feinberg. "If they are deemed injured, are they injured by the water or by other means, other sources?" The Napoli firm also is pursuing a class action in Michigan federal court. It said it has signed up some 800 clients and represents Mr. Waid in an individual lawsuit. Corey Stern, a plaintiffs lawyer at New York's Levy & Konigsberg, said that he had filed individual cases in state court in Michigan on behalf of more than 100 children. He said the complexity of proving lead exposure caused specific injuries makes these cases better suited to individual lawsuits than class actions. In 2013, a judge in Washington, D.C. ruled that a case over alleged lead contamination in the district's water supply would be unmanageable as a class action and should proceed as an individual lawsuit. The case is still pending. Lead litigation in the U.S. to date has mostly involved children who have eaten chips of lead-based paint, or inhaled lead dust in the air or soil. The main defendants have been paint and lead manufacturers as well as landlords of properties containing lead paint. The most clearcut cases involve children who develop serious learning disabilities or a measured drop in IQ within a few years of lead exposure. In 2008, for example, Mr. Stern's firm won an $8.5 million verdict against New York building owners on behalf of a 15-year-old boy who was first exposed to lead paint and dust eight years earlier. His lawyers showed that he subsequently began failing all of his subjects and was classified as learning disabled, even though he had performed satisfactorily in kindergarten and first grade. While the courts sort out the claims, residents like Mr. Waid and his daughter live with uncertainty. Though blood tests have shown she had elevated lead levels, the girl so far has no clear signs of injury -- cold comfort for her father. "If we knew that this was just her being a child and she was never exposed to lead, I wouldn't be worried at all," Mr. Waid said. FLINT, MI: Judge Dismisses $150MM Water Crisis Class Action ----------------------------------------------------------- Julia Jacobo, writing for ABC News, reports that a federal judge in Detroit has dismissed a $150 million class-action lawsuit filed by Flint residents and one Flint business, suggesting the plaintiffs refile in a Michigan state court due to lack of jurisdiction. In a decision issued on April 19, Judge John Corbett O'Meara said because the plaintiffs didn't file a claim under the federal Safe Drinking Water Act, the case should be tried in state court. The case sought $150 million in damages for all Flint residents who paid water bills between April 2014 and November 2015. It also sought compensation to replace all waterlines damaged in every Flint home, according to a complaint filed on Jan. 31. The lawsuit was filed against the city of Flint, the state of Michigan and several key players in the Flint water crisis, including former Mayor Dayne Walling, Michigan Gov. Rick Snyder, former Emergency Managers Darnell Earley and Gerald Ambrose, the Michigan Department of Environmental Quality and the Michigan Department of Health and Human Services. "This was a procedural dismissal by the judge," the plaintiffs' lawyer, Valdemar L. Washington, told ABC News. "We think he's wrong in his decision, obviously, because the Safe Drinking Water Act does not contain pre-emption language" that would allow for damages to be awarded to those affected in the water crisis. The reason why the plaintiffs didn't file under the Safe Drinking Water Act is because the only relief it provides is prospective injunctive relief, Washington said, which would mean the plaintiffs would only get an injunction to stop the city of Flint from supplying contaminated waster to its residents. You can not be awarded damages under the act. The complaint alleged that the defendants deprived Flint residents of safe and potable water, failed to act for the welfare of the general public and acted in gross negligence by failing to address a dangerous environmental hazard -- the lead leaching from corroded pipes into the water supply. In addition, the complaint said the city "actively" discriminated against ordinary citizens and showed "preferential treatment" toward certain state employees, "who were specifically aware of the degradation of water quality" and were provided with safe, potable drinking water alternatives "not available to the general public." Complaints made by Flint residents regarding the health hazards in the water were ignored, according to the complaint, which also alleged the city of Flint misled residents on the dangers of the drinking water. "Instead, citizens were simply expected to pay their monthly public utility water bills, while being delivered lead-poisoned and Legionella-[infected] water by the public officials and entities named on the caption above," the complaint stated. On April 18, Gov. Snyder announced he would drink Flint's water for one month in an effort to show residents it is now safe, the Associated Press reported. The city is currently under a state of emergency. The lead contamination started when Flint switched its water source from the Detroit River and began drawing its drinking water from the Flint River in April 2014. FLORIDIAN HOTEL: "Mejia" Suit Seeks Damages Under FLSA ------------------------------------------------------ Juan J. Mejia, and other similarly-situated individuals, Plaintiff(s), v. Floridian Hotel, Inc., Richard Groh and Donald Groh, individually, the Defendants, Case No. 1:16-cv-21380-JLK (S.D. Fla., April 18, 2016), seeks to recover money damages for unpaid overtime wages, half-time overtime compensation, liquidated damages, and the costs and reasonably attorney's fees pursuant to the Fair Labor Standards Act (FLSA). According to the complaint, Plaintiff worked in excess of 40 hours, and was entitled to be paid for overtime hours at the rate of time and a half his regular rate. However, Plaintiff was allegedly paid for overtime hours at his regular rate. Floridian provides hotel/hospitality services. The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. Miami, FL 33156 Telephone: (305) 446 1500 Facsimile: (305) 446 1502 E-mail: zep@thepalmalawgroup.com G. WILLI: Faces Class Action, April 29 Lead Plaintiff Deadline -------------------------------------------------------------- Goldberg Law PC on April 19 disclosed that a class action lawsuit has been filed against G. Willi Food-International Ltd. ("G. Willi" or the "Company"). Investors who purchased or otherwise acquired shares between April 30, 2014 and February 18, 2016, (the "Class Period"), are encouraged to contact the firm in advance of the April 29, 2016, lead plaintiff motion deadline. In addition, we advise you to contact Michael Goldberg or Brian Schall, of Goldberg Law PC, 1999 Avenue of the Stars, Suite 1100, Los Angeles, CA 90067, at 800-977-7401, to discuss your rights without cost to you. You can also reach us through the firm's website at http://www.Goldberglawpc.comor by email at info@goldberglawpc.com The class in this case has not yet been certified, and until certification occurs, you are not represented by an attorney. If you choose to take no action, you can remain an absent class member. According to the complaint, the Company failed to disclose that Gregory Gurtovoy, along with others, is being investigated by the Israel Security Authority for illegally transferring money out of G. Willi-Food. Goldberg Law PC represents shareholders around the world and specializes in securities class actions and shareholder rights litigation. GENERAL MOTORS: Two Ignition-Switch Cases Settled ------------------------------------------------- Mark Hamblett, writing for New York Law Journal, reports that bellwether cases in the multi-district litigation over defective General Motors ignition switches are being cleared faster than trials can be held. On April 7 and April 8, two cases were resolved by plaintiffs' attorneys seeking a finding of liability -- and damages -- for ignition switches that can be bumped or jostled into the "accessory" or "off" position, cause cars to lose power brakes and steering, and prevent air bags from deploying, After agreeing on April 7 to settle the wrongful death case involving the 2013 fatality of motorist James Yingling in Pennsylvania (NYLJ, April 8), attorneys for the fourth plaintiff, Robert James Reid, an Alabama man who suffered injuries in a 2013 accident, filed a notice of voluntary dismissal on April 8. Mr. Reid and his attorneys were preparing for a July trial when the attorneys wrote Southern District Judge Jesse Furman that they were dropping In re: General Motors LLC Ignition Switch Litigation, 14-MD-2543. Of the six cases selected for bellwether status, three have been disposed of in GM's favor, one was settled and two are still pending. In all, there are some 235 cases remaining before Judge Furman. The company also is defending a scattered number of state cases and a much smaller multi-district litigation in Texas. GM is aggressively fighting the cases before Judge Furman, having already paid out some $2 billion in the controversy. The company paid $900 million as part of a deferred prosecution agreement with the Department of Justice and another $35 million to the National Highway Traffic Safety Administration. It paid $300 million to settle a securities class action for the drop in GM's stock price engendered by the scandal and, to date, it has paid another $275 million to settle 1,400 some cases in the MDL pool. The company also established the GM Ignition Compensation Claims Resolution Facility, run by Kenneth Feinberg, which has paid out some $595 million. Importantly, some of the cases now before Judge Furman were by plaintiffs who were rejected by Feinberg for compensation. GM spokesman James Cain said on April 11 the company "has acknowledged its mistakes" in dealing with the recall, and "part of our effort to do the right thing was to create settlement facility for people who suffered personal injury and to make it fair, to make it generous and to make it nonadversarial -- and we're very pleased with the way the program worked." He continued: "With respect to the bellwether process, it's a very efficient and helpful mechanism for settlement, and we believe the cases that were selected as bellwether candidates were broadly representative of the claims that remain in the bellwether pool." The first trial, chosen by the plaintiffs, fell apart when it was revealed plaintiffs Robert and Lisa Scheuer may have lied about the accident and Robert Scheuer's injuries (NYLJ, Jan. 25). The second, chosen by GM, ended with a jury finding there was a defective ignition switch but that it was not the cause of the accident in which plaintiffs Dionne Spain and Lawrence Bartelemy suffered minor injuries. GM lawyers, led by Mike Brock of Kirkland & Ellis, successfully argued to the jury that it was black ice that caused Spain's car to crash on a New Orleans bridge in 2014 (NYLJ, March 30). Both the Scheuer and Spain accidents happened after GM had issued a recall notice, but the third and fourth bellwether accidents occurred prior to the recall. GOPRO: Investors Mull Class Action Over Misrepresentations ---------------------------------------------------------- Seeking Alpha reports that another Wall Street darling turned disaster, GoPro has become the new definition of how not to be a savvy technology investor. The company brings new meaning to the phrase bamboozled according to investors who are currently in the process of filing a class action lawsuit against GoPro for materially mispresenting the business and its guidance. Aside from its legal woes, the company's revenues are in the process of plateauing and the lack of competitive advantage is starting to whittle away at the company's future prospects. Despite announcements of several new products and initiatives designed to alleviate pressure on shares, the future looks awfully bleak for the company even with recent news of high profile hires and endorsement deals that sent shares surging. Technology Stocks Losing Favor Amongst Investors 2016 is undoubtedly turning out to be the worst year for technology stocks since the 2008-2009 financial crisis. In the first quarter, there was not a single initial public offering for a technology company despite 22 companies filing, the first such instance since after the failure of Lehman Brothers. Troublesome volatility was named the culprit, but many investors are starting to believe the music has stopped. After countless IPO investors were burned over the last two years buying into the hype and sleek marketing of these companies that are not fundamentally sound, scrutiny has only increased. Since its IPO in 2014, GoPro has been a similar cautionary tale, especially now that its growth story is behind it and investors are placing increased emphasis on the fundamentals of the business. One of the earliest flashing warning signs for investors was clearly ignored, after the company reported the drop in year-over-year revenues before GoPro was listed. This was first noticed in the original SEC registration statement, with production delays related to deliveries of Hero 3 devices attributed to a substantial downshift in revenues and EBTIDA. After reporting $255 million in revenues in the first quarter of 2013, 2014 revenues for the same period slipped by -7.50%, with EBITDA plunging over -30% during the same period. Even though financial results were able to recover as evidenced by the 41.44% year-over-year sales growth over the course of 2014, revenue expansion continues to taper, potentially approaching a plateau after falling to 16.19% year-over-year growth in 2015. Aside from the ability to take a GoPro anywhere, whether attached to a jet airplane or traveling to deep sea depths, the camera market is saturated with a number of competitors that offer more sophisticated or cost effective solutions. GOOD CHOWS: Fails to Pay Employees Overtime, "Chan" Suit Claims --------------------------------------------------------------- Chuk On Chan, individually and on behalf of all other employees similarly situated v. Good Chows Inc. d/b/a "Land of Plenty", Cheng Tao Li, Michael Ngai, Xiao Feng Liao, Richard Qun Yao, "John Doe" and "Jane Doe" # 110, Case No. 2:16-cv-02794 (S.D.N.Y., April 14, 2016), is brought against the Defendants for failure to pay overtime compensation for all hours worked over 40 each workweek. The Defendants own and operate Land of Plenty Restaurant located at 204 East 58th St., New York, New York 10022. The Plaintiff is represented by: Jian Hang, Esq. HANG & ASSOCIATES, PLLC. 136-18 39th Ave., Suite 1003 Flushing, NY 11354 Telephone: (718) 353-8588 E-mail: jhang@hanglaw.com GOOGLE INC: Supreme Court Refuses to Hear Book Scanning Case ------------------------------------------------------------ Reuters reports that the Supreme Court on April 18 declined to hear a challenge by a group of authors who contend that Google's massive effort to scan millions of books for an online library violates copyright law. The Authors Guild and several individual writers have argued that the project, known as Google Books, illegally deprives them of revenue. The high court left in place an October 2015 ruling by the 2nd U.S. Circuit Court of Appeals in New York in favor of Google. A unanimous three-judge appeals court panel said the case "tests the boundaries of fair use," but found Google's practices were ultimately allowed under the law. The individual plaintiffs who filed the proposed class action against Google included former New York Yankees pitcher Jim Bouton, who wrote the acclaimed memoir "Ball Four." Several prominent writers, including novelist and poet Margaret Atwood and lyricist and composer Stephen Sondheim, signed on to a friend-of-the-court brief backing the Authors Guild. The authors sued Google, whose parent company is Alphabet, in 2005, a year after the project was launched. A lower court dismissed the litigation in 2013, prompting the authors' appeal. Google argued that the effort would actually boost book sales by making it easier for readers to find works, while introducing them to books they might not otherwise have seen. The company made digital copies of more than 20 million books, according to court papers. Some publishers agreed to allow Google to copy their works. Google Books allows users to search the content of the books and displays excerpts that show the relevant search results. Google says in court papers the service "gives readers a dramatically new way to find books of interest" and lets people know where they can buy them. Users cannot read "any substantial portion of any book," Google said. Google had said it could have faced billions of dollars in potential damages if the authors had prevailed. GRANNA'S LLC: Recalls French Toast Products Due to Milk ------------------------------------------------------- Granna's LLC is voluntarily recalling packages of item number 808 French Toast that may contain an undeclared milk allergen. People who have an allergy or severe sensitivity to milk run the risk of serious or life-threatening allergic reaction if they consume this product. Product was distributed in Oklahoma through senior nutritional sites by home delivery. The affected product, #808 French Toast, was labeled without milk ingredient in the ingredient statement. The issue was discovered by a FDA investigator during an inspection of the recalling firm. Granna's #808 French Toast with diced potatoes and mandarin oranges is a frozen dinner packaged in a black, three compartment heat sealed tray, with label located on top. Best by dates are printed on each label. Only the misprinted packages of #808 French Toast, with best by dates of 04/05/2016 to 04/05/2017, are included in this recall. No other Granna's products are affected. This product is a food safety concern for people who are allergic to milk. Consumers would have received the mislabeled product between April 2015 and April 2016. Affected packages should be discarded or returned to the place of purchase for a refund. There have been no illnesses as of April 5, 2016 reported in connection with this product. Consumers with questions on the recall may contact Granna's LLC at 1-580-337-6360. Phone will be answered between 8 AM and 3 PM Central Standard Time, Monday - Friday. Pictures of the Recalled Products available at: http://is.gd/WYPylD GVC HOLDINGS: Faces Class Action Over Failed Joint Venture ---------------------------------------------------------- Steven Stradbrooke, writing for Gambling News, reports that UK-listed online gambling operator GVC Holdings is facing a potential class action lawsuit in Canada stemming from the collapse of an alleged joint venture involving its Sportingbet brand. Ontario-based law firm Findlay McCarthy PC recently launched a website seeking submissions from Canadian sports bettors who registered with Sportingbet between 2005 and 2015. The firm says it is considering a class action "seeking reimbursement on behalf of betters [sic] of all bets placed by Canadian residents" with Sportingbet during the period in question. The law firm said it also intends to seek "substantial punitive damages" against GVC should the allegations against the company prove correct. The action is related to a suit filed last August by Doug Honeger, a Montreal-based sports and entertainment consultant, who claims his 37 Entertainment Inc (37E) entered into a joint venture with GVC to launch two Sportingbet-branded websites serving Canadian sports bettors. Mr. Honeger claims that he and his partner Barry Alter effectively ran Sportingbet's Canada-facing business between 2014 and 2015, during which time he had full access to Sportingbet customers' betting histories, personal data and banking details. GVC has publicly insisted that no formal agreement was ever reached between itself and 37E. Findlay McCarthy says that if GVC's claim is true, and Mr. Honeger's company was found to have had access to the Sportingbet customer data, then GVC would have broken Canadian law for not informing customers that their data would be shared with a third party. Findlay McCarthy is also believed to be looking into whether GVC ever conducted any background checks on 37E, Mr. Honeger or Mr. Alter. Mr. Honeger claimed the JV was aborted by GVC's pursuit of rival Bwin.party digital entertainment, which GVC paid around ú1.1b to acquire last September. GVC and 37E are believed to have a rendezvous with an arbitration hearing in London this July. The news didn't exactly shake GVC shareholders, who saw their shares improve 1.5% to 532.5p on April 19. HARRIS TEETER: Faces "Hanson" Suit Over Failure to Pay Overtime --------------------------------------------------------------- Karen Hanson, on her own behalf and others similarly situated v. Harris Teeter, LLC, Case No. 2:16-cv-00054-LGW-RS (S.D. Ga., April 14, 2016), is brought against the Defendant for failure to pay overtime wages in violation of the Fair Labor Standards Act. Harris Teeter, LLC is a Foreign Limited Liability corporation that is in the food chain services industry. This includes the distributing, packing and selling of food. The Plaintiff is represented by: Yolando A. Hewling, Esq. FARAH AND FARAH, P.A. 10 West Adams St Jacksonville, FL 32202 Telephone: (904) 396-5555 Facsimile: (904) 358-2424 E-mail: yhewling@farahandfarah.com ILLINOIS: Governor Faces Class Action Over Health Insurance ----------------------------------------------------------- Tamara Damante, writing for WAND, reports that Governor Bruce Rauner is being sued by state employees, as part of a class action lawsuit. Carrie Weeks Kinowski, a non-union employee, at Northern Illinois University says the on-going budget crisis has left employees without health insurance. The state stopped covering medical expenses, by not paying the insurance companies the non-union employees' insurance withholdings. According to the suit, the state continues to dock employees' paychecks even though they are not turning over their withholdings. INNOVAK INTERNATIONAL: Faces "Bohannan" Suit in M.D. Alabama ------------------------------------------------------------ A lawsuit has been filed against Innovak International, Inc. The case is captioned Melissa Bohannan, Cherissa Hall, Jolie Hall, Summer Lisenby, Maryellen Prophet, Jennifer Matheny, Tiffany McCoy, Ashley McGhee, Sherrie Salem, and Crystal Shelley, individually, and on behalf of a similarly situated class, the Plaintiffs, v. Innovak International, Inc., the Defendant, Case No. 1:16-cv-00272-WKW-WC (M.D. Ala., April 18, 2016). The assigned Chief Judge is Hon. William Keith Watkins. Innovak was founded in 1994. The company's line of business includes schools offering data processing courses or training in computer programming and in computer and computer peripheral equipment operation, maintenance, and repair. The Plaintiffs are represented by: Anil Ashok Mujumdar, Esq. ZARZAUR MUJUMDAR & DEBROSSE 2332 2nd Avenue North Birmingham, AL 35203 Telephone: (205) 983 7985 E-mail: anil@zarzaur.com - and - Diandra S. Debrosse, Esq. GENTLE, TURNER, SEXTON, DEBROSSE & HARBISON 501 Riverchase Pkwy East-Ste 100 Hoover, AL 35244 Telephone: (205) 716 3000 Facsimile: (205) 716 3010 E-mail: fuli@zarzaur.com - and - Jonathan Steven Mann, Esq. PITTMAN DUTTON & HELLUMS, P.C. 2001 Park Place Tower-Ste 1100 Birmingham, AL 35203 Telephone: (205) 322 8880 Facsimile: (205) 328 2711 E-mail: jonm@pittmandutton.com INVISIBLU INTERNATIONAL: Recalls Continuum Labs LGD-Xtreme ---------------------------------------------------------- Invisiblu International LLC is voluntarily recalling one lot of Continuum Labs LGD-Xtreme, 3 mg to the retail and consumer level. The product has been found to contain LGD-4033 Ligandrol. Risk Statement: The risks of using this product are unknown. Invisiblu International has not received any reports of adverse events related to this recall. LGD-Xtreme is marketed as a dietary supplement to promote gains of lean muscle mass. The product is packaged in a dark amber plastic bottle with ninety capsules. The affected LGD-Xtreme lot numbers are 21511166 with expiration dates of 11/2018.The product can be identified by its black label with gold trim and the Continuum Labs logo. LGD-Xtreme was sold to select end consumers in the United States via the Internet, and was exported to wholesalers in Brazil. Invisiblu International LLC is notifying its distributors and customers by this press release and e-mail, and is asking anyone in possessing of this product to stop using and discard any unused capsules. Consumers with questions regarding this recall can contact Invisiblu International LLC by calling (954) 233-2673, extension 1, Monday through Friday, from 9 AM to 5 PM EDT, or by sending an e-mail to: inquiry@continuum.com. Consumers should contact their physician or healthcare provider if they have experienced any problems that may be related to taking or using this drug product. Adverse reactions or quality problems experienced with the use of this product may be reported to the FDA's MedWatch Adverse Event Reporting program either online, by regular mail or by fax. Online:www.fda.gov/medwatch/report.htm1 Regular Mail: use postage-paid, pre-addressed Form FDA 3500 available at: www.fda.gov/MedWatch/getforms.htm. Mail to address on the pre-addressed form. Fax: 1-800-FDA-0178 This recall is being conducted with the knowledge of the U.S. Food and Drug Administration. Pictures of the Recalled Products available at: http://is.gd/ATdJ6a KAUFMAN ENGLETT: Faces "Cadwell" Suit in Middle Dist. of Florida ---------------------------------------------------------------- A lawsuit has been filed against Kaufman, Englett & Lynd, PLLC. The case is captioned Loyd P. Cadwell, individually and on behalf of all others similarly situated, the Plaintiff, v. Kaufman, Englett & Lynd, PLLC, the Defendant, Case No. 6:16-cv-00662-PGB- KRS (M.D. Fla., April 18, 2016). The assigned Judge is Hon. Paul G. Byron. Kaufman Englett is a full service, national law firm practicing in 20 states across the U.S. The Plaintiff is represented by: Bryan K. Mickler, Esq. MICKLER & MICKLER 5452 Arlington Expy Jacksonville, FL 32211 Telephone: (904) 725 0822 Facsimile: (904) 725 0855 E-mail: bkmickler@planlaw.com KOUROS RESTAURANT: Fails to Pay Workers OT, "Diaz" Suit Claims -------------------------------------------------------------- Isidoro Velazquez Diaz, individually and on behalf of others similarly situated v. Kouros Restaurant Corp. (d/b/a Kouros Bay Diner), Peter Giannakouros and Estate of George Giannakouros, Case No. 1:16-cv-01836 (E.D.N.Y., April 14, 2016), is brought against the Defendants for failure to pay overtime wages for work in excess of 40 hours per week. The Defendants own and operate a restaurant located at 3861 Nostrand Avenue, Brooklyn, NY 11235. The Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 2540 New York, NY 10165 Telephone: (212) 317-1200 E-mail: Michael@Faillacelaw.com LENDINGCLUB: Faces Class Action Over Usury Law Violations --------------------------------------------------------- Tracy Alloway, Noah Buhayar and Rebecca Spalding, writing for Bloomberg News, report that a proposed class action lawsuit against LendingClub filed in New York earlier this month by a borrower on the platform, alleging violations of the state's consumer usury laws, could add to the company's legal woes on this front. Ronald Bethune of Yonkers, N.Y., claims LendingClub charged him a 29.97 percent interest rate on a $33,250 loan, nearly double New York's 16 percent limit for individual lending and high enough, he argued, to trigger a criminal usury violation, according to the complaint. More than 100 other borrowers are also suing the company, many from other states, according to the complaint. The lawsuit also cites civil provisions under the Racketeer Influenced and Corrupt Organizations Act (RICO), most famously deployed in a criminal context by former New York Mayor Rudy Giuliani to put away mobsters. "Around June 2015, defendants funded a usurious loan to plaintiff after plaintiff applied for a loan through LCC. Defendants failed to inform plaintiff that WebBank would be a 'pass through' sham party to the transaction for the sole purpose of charging plaintiff an interest rate in excess of New York's usury law and that the loan plaintiff was receiving would be at an interest rate that was nearly double the interest rate cap for such a loan in New York," the lawsuit, filed by Lending Club borrower Ronald Bethune, alleges. A spokesman for LendingClub said the company does not comment on pending litigation. While upstart marketplace lenders employ a number of different methods of extending credit, LendingClub was a pioneer in the marketplace, or "peer-to-peer," lending model. The San Francisco- based company essentially serves as a middleman, matching borrowers with investors who want to fund them. To issue loans, LendingClub and some of its competitors rely on WebBank, a Utah-based financial services firm. LendingClub then buys the loan a few days later and parcels it out to investors who pledge to fund it. The arrangement was modified earlier this year in response to a decision in the lawsuit known as Madden v. Midland Funding LLC so that WebBank maintains a relationship with borrowers and has an ongoing economic interest in the loans. At an industry conference in San Francisco, several executives said their companies were slowing their expansion amid recent investor concerns. "If you're a management team in this business right now, and you're not considering slowing, you should exit," said David Klein, chief executive officer of student lender CommonBond. "Throttling growth is a tried-and-true" method to prove to the market that you have discipline, he said. The case is 1:16-cv-02578-NRB, U.S. District Court, Southern District of New York (Manhattan). M-I LLC: Hearing on Class Cert. Bid in "Syed" Moved to Dec. 6 ------------------------------------------------------------- District Judge Dale A. Drozd gave his stamp of approval on a Joint Stipulation for Continuance of Plaintiffs' Motion to Amend and Motion for Rule 23 Class Action Certification Deadlines and Hearing Dates to Allow for Mediation in the case, SARMAD SYED, individually, and on behalf of all others similarly situated, ASHLEY BALFOUR, individually, and on behalf of all others similarly situated, Plaintiffs, v. M-I, L.L.C., a Delaware Limited Liability Company, doing business as M-I SWACO; and, DOES 1 through 10, inclusive, Defendants, Case No. 1:12-cv-01718-DAD-MJS (E.D. Cal.). Specifically, these class certification deadlines are continued: (1) the deadline for Defendant's opposition to Plaintiffs' motion to amend is continued from April 19, 2016 to October 4, 2016; (2) the deadline for Plaintiffs to file a reply in support of their motion to amend is continued from April 26, 2016 to October 11, 2016; (3) the hearing on Plaintiffs' motion to amend is continued from May 3, 2016 to October 18, 2016 at 9:30 a.m.; (4) the deadline for Defendant's opposition to Plaintiffs' Motion for class certification is continued from June 7, 2016 to November 22, 2016; (5) the deadline for Plaintiffs to file a reply in support of their motion for class certification is continued from June 14, 2016 to November 29, 2016; and (6) the hearing on Plaintiffs' motion for class certification is continued from June 21, 2016 to December 6, 2016 at 9:30 a.m.. A copy of the Court's Order dated April 8 is available at http://is.gd/A4tablfrom Leagle.com. MARRIOTT HOTEL: "McCarthy" Suit Seeks Damages Under Labor Code -------------------------------------------------------------- Gavin McCarthy, Sandra Villanueva, and Yesenia Ortiz, individually, and on behalf of themselves and all others similarly situated, and on behalf of the general public, the Plaintiffs, v. Marriott Hotel Services, Inc., a Delaware corporation, Marriott International, Inc. a Delaware corporation, and Does 1-25, inclusive, the Defendants, Case No. 16CV293998 (Cal. Super Ct., April 18, 2016), seeks to recover all damages and/or penalties pursuant to Labor Code, including interest, attorneys' fees, and costs of suit under the Labor Code. According to the complaint, Defendants knew or should have known that Plaintiffs and the Class were entitled to timely payment of all wages earned upon termination. The Plaintiffs and the Class did not receive payment of all wages, including but not limited to, meal and rest break premiums, in violation of the Labor Code. Marriott Hotel provides hospitality and lodging facilities worldwide. The Plaintiffs are represented by: David R. Markham, Esq. Peggy Reali, Esq. Maggie K. Realin, Esq. THE MARKHAM LAW FIRM 750 B Street, Suite 1950 San Diego, CA 92101 Telephone: (619) 399 3995 Facsimile: (619) 615 2067 E-mail: dmarkham@markham-law.com preali@markham-law.com mrealin@markham-law.com - and - Debra L. Hurst, Esq. Kyle Van Dyke, Esq. Julie Corbo Ridley, Esq. HURST & HURST 701 B Street, Suite 1700 San Diego, CA 92101 Telephone: (619) 236 0016 Facsimile: (619) 236 8569 E-mail: dhurst@hurst-hurst.com kvandyke@hurst-hurst.com julie@hurst-hurst.com - and - Walter L. Haines, Esq. UNITED EMPLOYEES LAW GROUP, PC 5500 Bolsa Avenue, Suite 201 Huntington Beach, CA 92649 Telephone: (562) 256 1047 Facsimile: (562) 256 1006 E-mail: walter@whaines.com MCCORMICK: Sued Over Too Much Empty Space in Pepper Tin ------------------------------------------------------- Jacob Goldstein, writing for NPR, reports that a large spice company recently started putting less peppe r in its tins -- and leaving empty space at the top of the tin. There's a technical term for that empty space: "non-functional slack fill." The McCormick spice company has made a small change to its familiar tins of black pepper. Consumers may not have noticed, but some lawyers did. That change is now the basis of a class- action lawsuit. Elizabeth Fegan is one of the lead lawyers for the plaintiffs. The pepper company, McCormick, wouldn't talk to us for the story. But they have argued in court filings, hey, we put the correct amount of pepper right there on the front of the tin for everyone to see. Ms. Fegan says it doesn't matter. Ms. Fegan says "there's a specific law that prohibits what's called nonfunctional slack-fill". "Nonfunctional slack-fill, which means making a large package but only filling it with a small amount of product." Side note, there is such a thing as functional slack-fill. That is air that's in the package for a reason, like to keep potato chips from getting crushed. But Ms. Fegan argues there is no reason for it in the pepper case. And millions of consumers may be entitled to a few dollars each. If Ms. Fegan wins the case or negotiates a settlement, fees for her and the other lawyers involved could be over a million dollars. There has been a backlash to class actions. Businesses have started including clauses in contracts to make it harder for people to sue. And a bunch of class action challenges have gone to the Supreme Court, with mixed results. One of the people who helped create the modern class action is an NYU professor named Arthur Miller. And he says he understands the backlash. MIAMI BEACH: Faces "Brush" Suit in Southern District of Florida --------------------------------------------------------------- A lawsuit has been filed against Miami Beach Healthcare Group. The case is captioned Barbara Brush, individually and on behalf of all others similarly situated, the Plaintiff, v. Miami Beach Healthcare Group, Ltd., doing business as: Aventura Hospital and Medical Center, a Florida limited partnership, and HCA-EmCare Holdings, LLC, doing business as: Valesco Ventures, a Delaware limited liability company, the Defendants, Case No. 1:16-cv-21373- JAL (S.D. Fla., April 18, 2016). The Assigned Judge is Hon. Joan A. Lenard. Miami Beach Healthcare is a large-sized organization in the general medical and surgical hospitals industry located in Miami, Florida. The Plaintiff is represented by: Steven R. Jaffe, Esq. FARMER JAFFE WEISSING EDWARDS FISTOS & LEHRMAN PL 425 N Andrews Avenue, Suite 2 Fort Lauderdale, FL 33301 Telephone: (954) 524 2820 Facsimile: (954) 524 2822 E-mail: steve@pathtojustice.com MICHEL ET AUGUSTIN: Recalls Butter Cookies Due to Hazelnut ---------------------------------------------------------- Michel et Augustin Inc. of Brooklyn, NY, is recalling approximately 900 packages of its Petites baguettes butter cookies Dark Chocolate, 6 packs only, because they may contain undeclared hazelnuts. People who have an allergy to hazelnuts run the risk of serious or life-threatening allergic reaction if they consume this product. Michel et Augustin Petites baguettes butter cookies Dark Chocolate were distributed to retail stores throughout New York City. The product is packaged in a sealed polypropylene film inside a cardboard box (6 cookies per box), NET WT. 1.58 oz., UPC 812668020166, with a Best before date 07 2016 (located on back of the package). No illnesses or complaints have been reported to date. The recall was initiated after the firm discovered packages that had visible pieces of nuts on top of the butter cookies. Subsequent investigation by the firm and foreign manufacturer revealed that a small quantity of packages of the milk chocolate and hazelnut recipe were incorrectly packed into Dark chocolate packages, and hazelnuts are not listed on the label. Consumers who have purchased Michel et Augustin Petites baguettes butter cookies Dark Chocolate, 6 packs, with Best before date 07 2016 and are allergic to hazelnuts should not consume this product. Consumers are urged to return the product to the place of purchase for a full refund. Consumers with questions should contact the company at 1-646-820-0935, Monday - Friday, 9 am - 6 pm, EDT. Pictures of the Recalled Products available at: http://is.gd/NGhPHA MIDLAND CREDIT: "Digiacomo" Class Suit Moved to E.D.N.Y. -------------------------------------------------------- Danielle Digiacomo, on behalf of herself and all others similarly situated, and Encore Capital Group, Inc., the Plaintiffs, v. Midland Credit Management, Inc., and Midland Funding, LLC, the Defendants, Case No. 514385/2015, was removed from the Supreme Court of the State of New York, County of Kings, to the U.S. District Court for the Eastern District of New York (Brooklyn). The Eastern District Court assigned Case No. 1:16-cv-01875 to the proceeding. Midland Credit is a third-party asset recovery (debt collection) company. The Plaintiffs appear pro se. The Defendants are represented by: Matthew Brady Johnson MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN Wall Street Plaza 88 Pine Street, 21st Floor New York, NY 10005 Telephone: (212) 376 6433 Facsimile: (212) 376 6490 E-mail: mbjohnson@mdwcg.com MISSOURI: April 25 Class Action Status Report Hearing Set --------------------------------------------------------- Jesse Bogan, writing for St. Louis Post-Dispatch, reports that a federal judge ruled in a trial in September that Missouri's treatment of civilly committed sexually violent predators was not constitutional. In her opinion, U.S. District Judge Audrey G. Fleissig noted there was a "pervasive sense of hopelessness" at the Department of Mental Health's Sex Offender Rehabilitation and Treatment Services program, or SORTS, which has facilities in Farmington and Fulton. Seven months later, the remedy phase of the class-action lawsuit slogs on. A March 30 status report hearing didn't happen and has been extended to April 25. Attorneys on both sides of the case have been privately negotiating a resolution, with agreement from the court to do so. There are indications of a logjam between plaintiff attorneys and those for the state, which lost at trial. "Here are the losers at this stage telling us we are done negotiating," Eric Selig, a lead attorney for the plaintiffs, said March 31 in Kansas City at a Missouri Association of Defense Lawyers awards banquet. Nanci Gonder, a spokeswoman for the attorney general's office, said it wouldn't comment as the case is ongoing. The lawsuit started in 2009 as a complaint from patients who didn't think they should be charged for care and treatment at SORTS that they didn't want. The Eastern District of Missouri assigned the case on a pro-bono basis to a lead litigator at the Clayton-based law firm Armstrong Teasdale. The attorney, Richard Scherrer, who typically would bill clients more than $500 an hour, broadened the case to a class action lawsuit that accused SORTS of being a prison disguised as a mental health hospital because nobody was being released for completing treatment. Before the trial ended last April, Gov. Jay Nixon, a Democrat, supported the SORTS program as a needed public safety tool. He said judges weighed annual reports to determine when patients deserve to be released. But plaintiffs' attorneys, including the American Civil Liberties Union of Missouri, sifted through hundreds of thousands of pages of the program's documents and found a damning memo. The former chief of operations wrote in 2009 that 16 patients could be moved to the St. Louis Psychiatric Rehabilitation Center, a less restrictive facility at 5300 Arsenal Street. The patients weren't moved. Mr. Scherrer, who is no longer the lead litigator of the plaintiff's case, said at the recent awards banquet in Kansas City that Armstrong Teasdale intends to bill the state for its work. NAT'L FOOTBALL: Appeals Court Affirms Concussion Settlement ----------------------------------------------------------- Bill Chapell, writing for NPR, reports that a federal appeals court has affirmed an NFL settlement with retired players that could cost the league $1 billion to handle brain-injury claims over the next 65 years, rejecting appeals from players who disagreed with the terms of the deal. Covering more than 20,000 retired players, the settlement promises to end hundreds of lawsuits filed by athletes who say they suffered chronic traumatic encephalopathy, or CTE. In March, a senior NFL official made headlines for acknowledging that football has been linked to the degenerative brain disease -- something that league officials had previously refrained from saying in public. But that admission didn't open the NFL to increased penalties, according to the three judges who heard the case for the 3rd U.S. Circuit Court of Appeals. They also refused to reject the settlement on the basis of the appellants' other objections, including their claim that the deal isn't generous enough to cover all currently retired players for decades to come. "Though not perfect, it is fair," the judges wrote of the settlement in their opinion. They said that those appealing the deal "risk making the perfect the enemy of the good." The settlement does not cover players who are currently in the NFL. It was approved last April by U.S. District Judge Anita B. Brody. One of the lead plaintiffs in the class-action case against the NFL was Kevin Turner, who died in March at age 46. A former star at Alabama, Mr. Turner went on to an NFL career as a running back, playing for the Philadelphia Eagles and the New England Patriots. But for the last six years of his life, Turner suffered from amyotrophic lateral sclerosis, or ALS. That disease is covered by the settlement, along with Parkinson's, Alzheimer's and other neurocognitive conditions. The deal attaches a financial award to different serious conditions diagnosed in former players. Here is the overview of maximum payouts: Level 1.5 neurocognitive impairment: $1.5 million Level 2 neurocognitive impairment: $3 million Parkinson's disease: $3.5 million Alzheimer's disease: $3.5 million Death with CTE: $4 million ALS: $5 million In an information page about the settlement, "level 1.5 neurocognitive impairment" is described as "early dementia [with] moderate to severe cognitive decline." Level 2 is described as "moderate dementia [with] severe cognitive decline." In their appeal, the plaintiffs listed a range of effects of CTE, from headaches, depression and an increased risk of suicide to memory loss, dementia and language impairment. They also said the NFL sought to minimize the public's perception of the risk of head trauma as far back as 1994, when it created the Mild Traumatic Brain Injury Committee -- a body that the plaintiffs say was "at the forefront of a disinformation campaign that disseminated 'junk science,' " the appeals court notes. News of the NFL deal's confirmation comes months after thousands of former college athletes reached their own deal with the NCAA; a federal judge has given preliminary approval to that deal. NAT'L FOOTBALL: Ruling Paves Way for Personal Injury Class Suits ---------------------------------------------------------------- Alison Frankel, writing for Reuters, reports that the 3rd U.S. Circuit Court of Appeals opinion approving the National Football League's $1 billion class action settlement with more than 20,000 retired players devotes a lot of words to the U.S. Supreme Court's landmark 1997 decision in Amchem v. Windsor. Most of those words are intended to draw a line between Amchem and the NFL litigation, which addresses claims that retired players had suffered traumatic head injuries. In one place in the April 18 3rd Circuit ruling, Judge Thomas Ambro, who wrote the opinion for a panel that also included Judges Thomas Hardiman and Richard Nygaard, flat-out says, "Simply put, this case is not Amchem." The 3rd Circuit took such pains to discuss and ultimately distinguish Amchem because that case, along with the Supreme Court's 1999 followup, Ortiz v. Fibreboard, pretty much killed off the use of class actions to settle large swaths of personal injury cases. Amchem, as you probably remember, struck down a proposed class action settlement that would have resolved present and future claims against a few dozen asbestos defendants, holding that class members who have already been injured have an inherent conflict with absent class members who will suffer an injury in the future. (In Ortiz, the justices said a settlement cannot bar absent class members from opting out just because class counsel and the defendants agree to a limited fund deal.) Since Amchem and Ortiz, class action settlements of personal injury claims have been as rare as a 1933 Double Eagle. American Home Products (now Wyeth) spent billions in the early 2000s on a class action settlement in the fen-phen diet drug litigation. More recently, BP settled some personal injury claims in the Deepwater Horizon oil spill litigation through a class action. And that's about it, at least in high-profile litigation. Instead of class action settlements, mass torts are now resolved through consolidated multidistrict litigation, sometimes through piecemeal settlements between defendants and particular plaintiffs' firms, sometimes -- as in the Vioxx case -- through a global matrix that has many of the same features as a class action. The most recent statistics show 40 percent of all civil litigation in U.S. courts takes place in an MDL. Not all of those MDLs involve personal injuries, of course, but lots do. We can debate forever whether class actions or global MDL settlements are a fairer and more efficient way to resolve the claims of thousands of people. In MDLs, individual plaintiffs have their own lawyers, even though court-appointed lead counsel drive the litigation. In class actions, class counsel have obligations to everyone in the class and the court has oversight powers. But over the past 20 years, since Amchem, the personal injury class action v. MDL dialectic has been almost entirely hypothetical -- as, for example, in a concurrence by 3rd Circuit Judge Anthony Scirica in the court's 2011 en banc decision in the antitrust class action Sullivan v. DB Investments -- because Amchem and Ortiz seemed to have made class action personal injury settlements obsolete. The 3rd Circuit's NFL decision may have brought them back to life. In the NFL concussion case, as in the old Amchem case, some class members have already experienced horrible injuries but for others, symptoms haven't yet developed. To comply with Amgen, the judge overseeing the NFL case, U.S. District Judge Anita Brody of Philadelphia, made sure these claimants of the future had their own counsel in settlement discussions with the NFL (albeit one who had been serving on the plaintiffs' steering committee before the subclass was created). She also refused to allow the NFL to cap payouts under the settlement, although the settlement does include a maximum payout for each plaintiff based on factors such as diagnosis, age and years of play in the league. Objectors to the settlement argued that Judge Brody's structural protections hadn't adequately resolved the conflicting interests of present and future class members. The 3rd Circuit said they had. "Class counsel here took Amchem into account by using the subclass structure to protect the sometimes divergent interests of the retired players," the opinion said. "Moreover, the terms of the settlement reflect that the interests of current and future claimants were represented in the negotiations. The monetary award fund will start paying out claims immediately, providing relief to those currently living with injuries (but) the fund is uncapped and inflation adjusted, protecting the interests of those who worry about developing injuries in the future." The NFL case began as an MDL before both sides decided to settle via a class action, as the 3rd Circuit judges pointed out, so thousands of retired players had their own lawyers to look out for their interests and advise them whether to take the deal. The one percent opt-out rate, according to the 3rd Circuit, despite the "many sets of eyes reviewing the terms of the settlement," is a good indicator that plaintiffs' negotiators represented the interests of all of the retirees. The Supreme Court did not mean for Amchem to squelch all personal injury class action settlements, the 3rd Circuit said, quoting the Amchem court's insistence that "even mass tort cases arising from a common cause or disaster may, depending upon the circumstances, satisfy the predominance requirement." New York University law professor Samuel Issacharoff, who argued at the 3rd Circuit for plaintiffs in favor of the class action, told Ms. Frankel on April 19 that the court's opinion should embolden defendants and class counsel to once again use class actions to resolve mass personal injury litigation, even with the higher bar for class certification in the post Wal-Mart v. Dukes era. The panel's analysis was methodical and fact-bound, Mr. Issacharoff said, but its message is almost revolutionary: You can settle a mass tort via a class action. "I emailed one of the lawyers who argued the case for objectors, Deepak Gupta of Gupta Wessler, who passed my inquiry on to objectors' counsel Brian Wolfman of Stanford Law School. Mr. Wolfman told me the interests of future claimants weren't taken into account enough in the settlement, especially when you consider inflation. I asked whether the 3rd Circuit's approval will lead to more mass torts class action settlements; Wolfman said that's 'too broad a question to answer yes or no.'" Paul Clement of Bancroft argued for the NFL at the 3rd Circuit. Howard Bashman of the beloved How Appealing blog also argued for objectors. NETSOL TECHNOLOGIES: June 27 Settlement Fairness Hearing Set ------------------------------------------------------------ Gainey McKenna & Egleston on April 18 disclosed that the United States District Court for the Central District of California Western Division has approved the following announcement of a proposed class action settlement that would benefit purchasers of common stock of NetSol Technologies, Inc.: SUMMARY NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF CLASS ACTION TO: ALL PERSONS WHO PURCHASED NETSOL TECHNOLOGIES, INC. COMMON STOCK BETWEEN OCTOBER 24, 2013 AND NOVEMBER 8, 2013, INCLUSIVE YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States District Court for the Central District of California, that a hearing will be held on June 27, 2016 at 1:30 p.m. before the Honorable Percy Anderson, United States District Judge of the Central District of California, 312 North Spring Street, Los Angeles, CA 90012-4701 (the "Settlement Hearing") for the purpose of determining: (1) whether the proposed Settlement consisting of the sum of $850,000.00 should be approved by the Court as fair, reasonable, and adequate; (2) whether the proposed plan to distribute the settlement proceeds is fair, reasonable, and adequate; (3) whether the application for an award of attorneys' fees of $212,500 or 25% of the settlement amount and reimbursement of case-related expenses of not more than $75,000 and a case contribution award payment of no more than $1,000 to the Plaintiff, should be approved; and (4) whether the Litigation should be dismissed with prejudice. A portion of the Settlement Fund also will be used to pay taxes due on any interest earned by the Settlement Fund, if necessary, and any notice and claims administration expenses permitted by the Court. If you purchased NetSol common stock between October 24, 2013 and November 8, 2013, inclusive (the "Class Period"), your rights may be affected by the Settlement of this action. If you have not received a detailed Notice of Pendency and Proposed Settlement of Class Action and a copy of the Proof of Claim and Release, you may obtain copies by writing to the Claims Administrator: NetSol Technologies, Inc. Litigation, c/o Strategic Claims Services, P.O. Box 230, 600 N. Jackson Street, Suite 3, Media, PA 19063, or going to the website www.strategicclaims.net If you are a member of the Class, in order to share in the distribution of the Net Settlement Fund, you must submit a Proof of Claim and Release postmarked no later than June 13, 2016 to the Claims Administrator, establishing that you are entitled to recovery. Unless you submit a written exclusion request, you will be bound by any judgment rendered in the Litigation whether or not you make a claim. If you desire to be excluded from the Class, you must submit a request for exclusion postmarked no later than June 13, 2016, in the manner and form explained in the detailed Notice to the Claims Administrator. Any objection to the Settlement, Plan of Allocation, or the Plaintiff's Counsel's request for an award of attorneys' fees and reimbursement of case-related expenses must be in the manner and form explained in the detailed Notice and received no later than June 6, 2016, to each of the following: Clerk of the Court United States District Court Central District of California 312 North Spring Street, Room G-8 Los Angeles, CA 90012 Thomas J. McKenna GAINEY McKENNA & EGLESTON 440 Park Avenue South, 5th Floor New York, New York 10016 Tel: (212) 983-1300 Fax: (212) 983-0383 Class Counsel Sean T. Prosser PERKINS COIE LLP 11988 El Camino Real, Suite 350 San Diego, CA 92130 Tel: (858) 720-5700 Fax: (858) 720-5799 Counsel for Defendants If you have any questions about the Settlement, you may call or write Class Counsel. PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING THIS NOTICE. NESHAMINY ELECTRICAL: Faces "Roth" Suit Over Failure to Pay OT -------------------------------------------------------------- William F. Roth (Roth), on behalf of himself and similarly situated v. Neshaminy Electrical Contractors, Case No. 2:16-cv- 01794-CMR (E.D. Penn., April 14, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. Neshaminy Electrical Contractors performs commercial and industrial electrical installation services in Pennsylvania, New Jersey, Delaware, Maryland and Virginia. The Plaintiff is represented by: Scott M. Pollins, Esq. POLLINS LAW FIRM 800 Westdale Avenue Swarthmore, PA 19081-2311 Telephone: (610) 896-9909 Facsimile: (610) 896-9910 E-mail: scott@pollinslaw.com NII HOLDINGS: Labaton Recovers $41.5MM in Securities Class Action ----------------------------------------------------------------- Labaton Sucharow LLP on April 19 disclosed that the firm achieved a $41.5 million settlement, subject to court approval, in a securities class action on behalf of the Pension Trust Fund for Operating Engineers Pension Plan and the International Brotherhood of Electrical Workers (IBEW) Local No. 58/Southeastern Michigan Chapter National Electrical Contractors Association (SMC NECA) Benefit Funds in In re NII Holdings, Inc. Securities Litigation, against certain former executives of NII Holdings, Inc. (NII). NII is a telecommunications company that, through its subsidiaries, operates wireless voice and data networks in Latin America under the Nextel brand. E. Craig Young, the administrator of the IBEW Local No. 58/SMC NECA Benefit Funds commented, "We are very pleased to have reached this result on behalf of the class. Ensuring that the best interests of our members are constantly maintained is of the utmost importance to us, and with the help of Labaton Sucharow, we can continue to uphold our mission to protect those interests from corporate misconduct." First to file the securities class action complaint and led by Labaton Sucharow partners Joel H. Bernstein -- jbernstein@labaton.com -- Mark S. Arisohn -- marisohn@labaton.com -- and Serena Hallowell -- shallowell@labaton.com -- Labaton Sucharow served as co-lead counsel in this case, which took place in the Eastern District of Virginia -- otherwise known as the "rocket docket" for its speedy disposition of cases. Prior to and during the class period (February 25, 2010 to February 27, 2014), NII's wireless service featured a unique, walkie-talkie like "Push to Talk" (PTT) communication function. Among other factors, the decline of PTT in the United States and increased demand for higher speed data availability compelled NII to transition its wireless services -- including its signature PTT service -- from a 2 to 3G network. While NII was transitioning to the more modern 3G network, the company raised $1.45 billion in funding through the issuance of publicly traded debt securities by NII Capital. The plaintiffs allege in the complaint that within that time, NII made nearly 100 misstatements and omissions regarding allegations including those concerning defendants' misrepresentations about NII's instant-communication PTT function during its transition from 2G to 3G technology and NII's efforts to attract and retain high-quality subscribers. When the truth emerged, plaintiffs alleged that shareholders suffered substantial losses caused by significant declines in the value of the company's stock and NII Capital's bonds. NII filed for bankruptcy mid-litigation and was eventually released as a defendant, which led to a host of complex issues the Firm's team effectively navigated. The case was further complicated in that the allegations heavily involved Latin America, which posed discovery challenges including obtaining key discovery from these countries within the compressed schedule of the rocket docket. Notwithstanding these hurdles, the parties were successfully able to negotiate an agreement in principle to settle in the amount of $41.5 million. About Labaton Sucharow LLP Labaton Sucharow -- http://www.labaton.com-- prosecutes precedent-setting class actions, recovering billions of dollars on behalf of defrauded investors and consumers. The Firm litigates in the areas of securities, antitrust, and consumer protection law. NIKE: Faces Class Action Over False "Suggested Retail Price" ------------------------------------------------------------ KOIN reports that Nike is being sued for $5 million in a class action lawsuit. The lawsuit, filed on April 18 in U.S. District Court, alleges that Nike has been deceptive and misleading in its labeling and marketing of items sold at its outlet stores. The lawsuit states: "Nike misrepresented the existence, nature and amount of price discounts on products sold in Nike Outlet stores by purporting to offer discounts off of a false 'Suggested Retail Price,' which the Plaintiff understood to be short for the commonly used retail phrase: Manufacturer's Suggested Retail Price (MSRP.)" The lawsuit claims "Nike led consumers to believe that its MSRPs represented authentic price information about the products they purchased. In reality, Nike manufactures the Nike Outlet Products for exclusive sale at its Nike Outlets and always sells these goods for the advertised "OUR PRICE," never the MSRP." Nike said it would not comment on pending litigation. PF CHANG: 7th Cir. Reverses Data Breach Class Action Dismissal -------------------------------------------------------------- Caleb Skeath, Esq. -- cskeath@cov.com -- of Covington & Burling LLP, in an article for The National Law Review, reports that the Seventh Circuit handed down another friendly ruling for data breach class action plaintiffs, reversing a district court's dismissal of a class action complaint over a 2014 data breach at P.F. Chang's restaurants. In reversing the district court's holding that the plaintiffs had not demonstrated Article III standing, the Seventh Circuit ruled that the risk of future fraudulent charges and identity theft created by the breach as reported by P.F. Chang's constituted a "certainly impending" future injury sufficient to confer Article III standing. This decision builds on an earlier ruling from the Seventh Circuit that revived a data breach suit filed against Neiman Marcus, and will create further incentives for future plaintiffs to file data breach class action lawsuits in the federal courts of Illinois, Indiana, and Wisconsin, when jurisdictionally possible. The class action against P.F. Chang's (Lewert v. P.F. Chang's China Bistro) stems from a breach of the computer systems at P.F. Chang's restaurants, announced in June 2014. The breach resulted in the theft of credit and debit card information belonging to consumers who dined at certain P.F. Chang's restaurants. Although P.F. Chang's initial announcement of the breach indicated that the restaurant chain was not certain how many locations had been affected, P.F. Chang's later announced in August 2014 that the breach had only affected thirty-three restaurant locations. The two plaintiffs in Lewert both ate at a P.F. Chang's restaurant that was not included in the list of affected locations, but both brought claims for the breach. One plaintiff observed four fraudulent charges on the debit card shortly after dining at PF Chang's, cancelled his card, and purchased a credit monitoring service. The other plaintiff "spent time and effort" monitoring his credit report and credit card statements after hearing about the breach. The district court dismissed the suit on Article III grounds, holding that the allegations of future harm of identity theft or fraudulent charges were too speculative to satisfy Article III. The Seventh Circuit, however, held that these allegations were sufficient to demonstrate Article III standing, relying on its July 2015 holding in Remijas v. Neiman Marcus Group in the process. In Remijas, the Seventh Circuit held that the increased risk of fraudulent charges or identity theft following a data breach affecting the plaintiffs' credit or debit card information could satisfy the post-Clapper "certainly impeding" standard for Article III standing. Although P.F. Chang's argued that Remijas could be distinguished on the grounds that P.F. Chang's, unlike Neiman Marcus, disputed whether the plaintiffs' information was disclosed in the breach, the Seventh Circuit disagreed. Instead, the Seventh Circuit held that the plaintiffs had "plausibly alleged" that their data was stolen, because P.F. Chang's initial statement regarding the breach was directed to all P.F. Chang's customers and did not distinguish between restaurant locations. As the court stated, when "the corporation reacts as if that breach could affect all of its locations, it is certainly plausible that all of its locations were in fact affected." The court characterized P.F. Chang's assertions that only thirty-three restaurants were affected as a "factual dispute" that should be resolved at a later stage in the case. The Seventh Circuit pointed to several post-breach statements made by P.F. Chang's as the primary basis for its holdings, including statements about the scope of the breach and advice to affected individuals. The court's holding not only establishes the Seventh Circuit as friendly territory for data breach class action plaintiffs, but also highlights the importance of thoroughly vetting communications to consume. PJT PARTNERS: June 14 Class Action Lead Plaintiff Deadline Set -------------------------------------------------------------- To: All persons or entities who purchased or otherwise acquired securities of PJT Partners Inc. ("PJT") between November 12, 2015 and March 28, 2016. You are hereby notified that a securities class action lawsuit has been commenced in the USDC for the Southern District of New York. To get more information go to: http://www.zlk.com/pslra/pjt-partners-inc or contact Joseph E. Levi, Esq. either via email at jlevi@zlk.com or by telephone at (212) 363-7500, toll-free: (877) 363-5972. There is no cost or obligation to you. The complaint alleges that throughout the Class Period, defendants made false and/or misleading statements and/or failed to disclose that: (1) PJT's compliance and fraud-prevention controls were inadequate; (2) as a consequence of PJT's inadequate controls, Andrew W. W. Caspersen, a managing partner at the Company's private-equity arm, Park Hill Group, perpetrated a criminal scheme to defraud investors. On March 28, 2016, news reports revealed that Caspersen was arrested and charged with defrauding investors of more than $95 million. A criminal complaint was filed in federal court, in addition to a complaint filed by the U.S. Securities and Exchange Commission. In a press release, PJT Partners announced Caspersen had been terminated after they were "stunned and outraged to learn of the fraudulent circumvention and violation" of the Company's ethical and compliance standards. If you suffered a loss in PJT Partners you have until June 14, 2016 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Levi & Korsinsky -- http://www.zlk.com-- is a national firm with offices in New York, New Jersey, California, Connecticut, and Washington D.C. The firm's attorneys have extensive expertise and experience representing investors in securities litigation, and have recovered hundreds of millions of dollars for aggrieved shareholders. PREMIER NUTRITION: Judge Certifies Class in Supplement Suit ----------------------------------------------------------- Jessica Dye, writing for Reuters, reports that a federal judge has certified a class of California consumers who claim they were duped by marketing statements for a nutritional supplement targeting joint pain sufferers, while questioning whether conflicts among states' consumer-protection laws mean the class cannot be expanded nationwide. In his ruling on April 15 in a case against Premier Nutrition, the maker of drinkable supplement Joint Juice, U.S. District Judge Richard Seeborg in the Northern District of California requested additional briefing from both parties on what impact the 9th U.S. Circuit Court of Appeals' 2012 decision in Mazza v. American Honda should have on plaintiff Kathie Sonner's request to include all U.S. customers in the class. PRIME AID: Faces "Reyes" Suit Over Failure to Pay Overtime ---------------------------------------------------------- Margarette Reyes, individually and in behalf of all other persons similarly situated v. Prime Aid Pharmacy Corporation, Alex Fleyshmakher, Igor Fleyshmakher, and Samuel Khimov, Case No. 1:16- cv-02789 (S.D.N.Y., April 14, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. The Defendants operate Prime Aid Pharmacy located at 373 East Fordham Road, Bronx, New York. The Plaintiff is represented by: Brandon David Sherr, Esq. Justin Alexander Zeller, Esq. John Gurrieri, Esq. LAW OFFICE OF JUSTIN A. ZELLER, P.C. 277 Broadway, Suite 408 New York, NY 10007 Telephone: (212) 229-2249 Facsimile: (212) 229-2246 E-mail: bsherr@zellerlegal.com Jazeller@zellerlegal.com jmgurrieri@zellerlegal.com PROGRESSIVE GOURMET: Recalls Frozen Edamame Due to Shellfish ------------------------------------------------------------ Progressive Gourmet Inc. of Wilmington, MA, is voluntarily recalling its frozen, 9 ounce packages of Taste of Inspirations Edamame Rangoon out of an abundance of caution because they have the potential to contain crustacean shellfish (crab). People who have an allergy to crustacean shellfish run the risk of serious or life-threatening allergic reaction if they consume these products. The item is produced for Hannaford Supermarkets. The product comes in a 9 ounce carton, marked with Best Before: 1 1117 on the back of the retail carton. Note, no other production runs of this product are impacted by this recall. The potentially impacted Edamame Rangoon were possibly sold to consumers at select Hannaford stores located in Maine, Massachusetts, New Hampshire, Vermont and New York. A consumer reported the mislabeling incident. The firm has initiated prompt corrective actions to prevent future mislabeling. No illnesses have been reported to date in connection with this product. Consumers who have purchased 9 ounce packages of the edamame rangoon are urged to return them to the place of purchase for a full refund. Consumers with questions may contact the company at 1-800-224-7630 (9:00 am - 5:00 pm Monday through Friday EST). Pictures of the Recalled Products available at: http://is.gd/Sb7nto R.J. REYNOLDS: Fee Dispute Hampers $3.5MM Award Distribution ------------------------------------------------------------ Julie Kay, writing for Daily Business Review, reports that a dispute among plaintiffs attorneys over the division of attorney fees has hung up the distribution of a $3.5 million jury award against R.J. Reynolds Tobacco Co. in an Engle progeny tobacco case after appeal. A six-member legal team won the verdict three years ago, and the losing defendant isn't standing in the way of payment. But Miami attorney Donald Fitzgerald of the Fitzgerald Law Firm filed a charging lien last December in Escambia Circuit Court, alleging a dispute exists about the undisclosed fee distribution agreement. Details of the fee agreement are confidential. However, the plaintiffs attorneys say the split by the six lawyers is not even. Payment was approved by R.J. Reynolds but will not be made until the fee dispute is resolved in one of about 8,000 smoker cases filed after a statewide class action was disbanded by the Florida Supreme Court. After unsuccessfully attempting to get the charging lien dissolved, one of Fitzgerald's former co-counsel sued him on Feb. 8 in Miami-Dade Circuit Court. Coral Gables attorney Richard J. Diaz sued on behalf of plaintiff Robert Thibault, the husband of the late smoker Evelyn Thibault, both residents of Navarre. The other plaintiffs attorneys are Miami attorney J.B. Harris, Tallahassee attorney Robert Trammell, Coral Gables attorney Carlos Santisteban Jr. and Key Biscayne attorney John Crabtree. The group has collaborated on a handful of other smoker cases but worked on only one with Fitzgerald before. "We received a settlement on attorney fees that we felt was fair, and Mr. Fitzgerald took it upon himself to try to hold up the settlement," Mr. Harris said. "As a result of his selfishness and greed, this will have the effect of holding up the distribution to a sick and elderly client -- his own client." Mr. Fitzgerald did not return calls or emails for comment by deadline. Mr. Diaz's lawsuit alleges malpractice, breach of contract, breach of fiduciary duty and intentional infliction of emotional distress. The lawsuit contends Fitzgerald filed the lien because he was in debt to a third-party litigation funding company -- Appellate Advance -- after borrowing money during the appellate process. Many plaintiffs attorneys finance their litigation while waiting for the appellate process to wind down. "Some time after the verdict, Fitzgerald applied for advanced funding from a third-party funding company during the appellate process," the suit said. "These types of funding companies are quite unique. Generally speaking, they gamble against the likelihood of an ultimate affirmation of the jury's verdict." The companies provide 50 percent advance financing of the anticipated fee payable and require the attorney to repay 200 percent of the amount borrowed plus interest until the final judgment is paid. The suit alleges Mr. Fitzgerald may have overstated the amount of fees he was due to get a higher loan. "To obtain this advanced funding, Mr. Fitzgerald had to make certain representations to the funding company and assign all (or a part) of his interest in the expected final payout on the judgment," the suit continues. ROBERT HALF: Supreme Court to Decide on Legal Team's Compensation ----------------------------------------------------------------- Jocelyn Larkin, writing for San Francisco Chronicle, reports that the California Supreme Court soon will decide how best to compensate the legal team that has now persevered for more than a decade representing Lafitte and his co-workers. Mark Laffitte and his co-workers at a large staffing agency had had enough of their employer's wage theft by 2004 and, with the help of legal advocates, filed a class-action lawsuit for nearly 4,000 workers. Class actions, like Mr. Lafitte's, benefit millions of Californians every day. Class actions promote equal pay for equal work, challenge race discrimination, safeguard the environment and deter corporate fraud and hidden fees. Class actions provide access to the courts for everybody -- not just big corporations -- supplying a check in our judicial system. Class actions save time and money because thousands of claims get resolved in a single case. Eight years after Mr. Laffitte's case was filed, the employer settled for $19 million. After careful evaluation, the court awarded 33 percent of the fund to his advocates as compensation for their work. Just one class member objected to the fees and appealed the settlement. The California Supreme Court soon will decide how best to compensate the legal team that has now persevered for more than a decade representing Lafitte and his co- workers. Getting this question right in this and future cases will be critical for preserving class actions as a viable tool for justice. At the heart of the issue is a practical problem: how to get someone -- an attorney -- to risk spending the time and money necessary to help victims and hold law breakers accountable. In class actions, attorneys get paid only if and when they are successful, and often after many years and substantial investment of their own money in fronting expenses. The answer, under California law, is to provide fair compensation to the advocates who undertake and win these David-versus-Goliath struggles. As it stands now, if a case is successful, then the judge, who has observed the advocates' work firsthand, sets the compensation. He or she is in the best position to know how good a job has been done and whether the advocates have achieved a good result. Californians don't need another expensive layer of bureaucracy to second-guess our able and experienced judges. Judges use the same methods to compensate a successful team of class-action advocates that are used in ordinary cases, either allocating a percentage of the amount of the money received by the plaintiff or authorizing an hourly rate. In cases where a percentage is used, the average in class actions is 25 percent, lower than the up to 40 percent that a person would pay to bring the same lawsuit on his or her own. Compensating the legal team in class actions based on a percentage ensures that the attorney's interest is always 100 percent aligned with the victim's. Awarding an hourly rate, on the other hand, makes sense when the result is not money, but corporate or government reform, such as ending a discriminatory practice. Every class member gets a notice about what the proposed payment to the legal team is and can provide his or her views to the judge. No fee is ever approved under cover of night -- in every class action, the judge scrutinizes the nature and quality of work done to ensure that the compensation is fair. Class-action justice is already under attack by big business -- understandably not its biggest fan. Further restrictions will only discourage the already small community of advocates who take on these tough cases, depriving ordinary Californians of equal access to justice. The case is Laffitte vs. Robert Half International. S. CARTER ENTERPRISES: Sued in N.D. Cal. Over Tidal Subscription ---------------------------------------------------------------- Justin Baker-Rhett, individually and on behalf of all others similarly situated, the Plaintiff, v. S. Carter Enterprises, LLC, a Delaware limited liability company, and Kanye West, an individual, together d/b/a Tidal, the Defendants, Case No. 4:16- cv-02013-KAW (N.D. Cal., April 18, 2016), seeks damages, disgorgement of Defendants' profits, and restitution, based upon their conduct of fraudulently inducing consumers to subscribe to Tidal -- a subscription-based music streaming service owned by the Defendants. The Plaintiff seeks an order requiring Tidal to delete the private information of Plaintiff and the Class members that it collected; cancel all outstanding negative options of any free trials created during the class period; and cease any monetization efforts relying on the illegally obtained information. Tidal was purchased by music mogul Shawn "Jay Z" Carter in 2015. According to the complaint, Mr. West's promise of exclusive access to The Life of Pablo conferred an enormous benefit upon Tidal: a tripled subscriber base, replete with access to the personal and financial data of its more than two million new subscribers. Contrary to Mr. West's representations, however, the purportedly "exclusive" access to The Life of Pablo that Tidal subscribers were promised was short lived. A month and a half after The Life of Pablo's initial release, Mr. West allegedly made the album available through Tidal's biggest competitors, Apple Music and Spotify. He also began selling the album through his own online marketplace. S. Carter Enterprises is engaged in international music, media and entertainment industry. Kanye West is an International hip-hop superstar, who owns a portion of Tidal. The Plaintiff is represented by: Todd M. Logan, Esq. Jay Edelson, Esq. EDELSON PC 329 Bryant Street San Francisco, CA 94107 Telephone: 415 212 9300 Facsimile: 415 373 9435 E-mail: slogan@edelson.com jedelson@edelson.com SAFEWAY INC: Finkelstein Named as Interim Class Counsel ------------------------------------------------------- District Judge Edward M. Chen granted the request of plaintiff Dan Shiner to appoint Finkelstein Thompson LLP as sole interim class counsel. The Court denied plaintiff Ehder Soto's motion to appoint Bursor & Fisher as interim counsel. The class action is brought on behalf of purchasers of Safeway brand and Open Nature brand tuna. Plaintiffs allege that the Safeway Tuna cans are underfilled and substantially underweight. Plaintiffs Dan Shiner, Julie Whitson, and Mauri Sanders are represented by Rosemary M. Rivas -- rrivas@finkelsteinthompson.com -- Finkelstein Thompson LLP. Ehder Soto, Plaintiff, represented by Lawrence Timothy Fisher -- ltfisher@bursor.com -- Julia A. Luster -- jluster@bursor.com -- Scott A. Bursor -- scott@bursor.com -- Bursor & Fisher, P.A., and Rosemary M. Rivas, Finkelstein Thompson LLP. Heney Shihad, Plaintiff, represented by Reuben D. Nathan, Nathan & Associates, APC & Rosemary M. Rivas, Finkelstein Thompson LLP. Safeway Inc., Defendant, represented by Clark Reed Nichols -- CNichols@perkinscoie.com -- and Sunita Bali -- SBali@perkinscoie.com -- Perkins Coie LLP. A copy of the Court's April 8, 2016 Order is available at http://is.gd/TmHBfofrom Leagle.com. The case is, IN RE SAFEWAY TUNA CASES, Case No. 15-cv-05078-EMC (N.D. Cal.). SAMSUNG ELECTRONICS: Falsely Marketed LED TVs, "Nance" Suit Says ---------------------------------------------------------------- Frank Nance, on behalf of himself and all others similarly situated v. Samsung Electronics America, Inc., Case No. 8:16-cv- 00704 (C.D. Cal., April 14, 2016), seeks to recover damages and restitution in connection with the purchase of Samsung-brand televisions that were falsely marketed and advertised by Samsung as "LED TVs," "LED HDTVs" or "LED televisions", but instead are LCD TVs that use light emitting diodes (LEDs) instead of cold cathode fluorescent lights (CCFLs) to light the liquid crystal display (LCD) panel that is present in each of the televisions at issue. Samsung Electronics America, Inc. operates a consumer electronic company with its principal place of business located in Ridgefield Park, New Jersey. The Plaintiff is represented by: Hayward J. Kaiser, Esq. Gilbert S. Lee, Esq. MITCHELL SILBERBERG & KNUPP LLP 11377 West Olympic Boulevard Los Angeles, CA 90064 Telephone: (310) 312-2000 Facsimile: (310) 312-3100 E-mail: hjk@msk.com gsl@msk.com - and - Jonathan Shub, Esq. KOHN SWIFT & GRAF, P.C. One South Broad Street, Suite 2100 Philadelphia, PA 19107 Telephone: (215) 238-1700 Facsimile: (215) 238-1968 E-mail: jshub@kohnswift.com - and - Francis O. Scarpulla, Esq. Patrick B. Clayton, Esq. SCARPULLA LAW FIRM 456 Montgomery Street, 17th Floor San Francisco, CA 94104 Telephone: (415) 788-7210 Facsimile: (415) 788-0706 E-mail: fos@scarpullalaw.com pbs@scarpullalaw.com - and - Daniel R. Shulman, Esq. Gregory R. Merz, Esq. Kathryn J. Bergstrom, Esq. Dean C. Eyler, Esq. GRAY PLANT & MOOTY 500 IDS Center 80 South Eighth Street Minneapolis, MN 55402 Telephone: (612) 632-3000 Facsimile: (612) 632-4444 E-mail: daniel.shulman@gpmlaw.com gregory.merz@gpmlaw.com katie.bergstrom@gpmlaw.com dean.eyler@gpmlaw.com SAMSUNG ELECTRONICS: Antitrust Class Action Settlement Challenged ----------------------------------------------------------------- Ben Hancock, writing for The Recorder, reports that on April 19, a federal judge was scheduled to hear arguments over a nearly $577 million class action settlement. The deal is the second largest for a case of its kind, and would resolve a web of lawsuits alleging that electronics behemoths like Samsung Electronics Co. and Philips Electronics North American Corp. colluded to fix the price of cathode ray tubes, the technology used in old TVs and monitors. But there's a battle over who exactly should get paid under the settlement, as well as how the squadron of attorneys who worked the case should be compensated. And it has created a faceoff within a family with a history of courtroom combat. In one corner is Mario Alioto of Trump, Alioto, Trump & Prescott. Mr. Alioto secured the position of lead counsel for indirect purchasers in the cathode ray tube class action early on in the case, which dates back to 2007. After roughly eight years of litigation, a payday is in sight for him and other class counsel. His biggest antagonist has become Francis Scarpulla, Mr. Alioto's second cousin. The stance Mr. Scarpulla has taken is awkward not only because of the family tie. For one, Scarpulla's client is not actually objecting to the settlement -- Scarpulla himself is. And as one of the many plaintiffs lawyers on the case, Mr. Scarpulla also stands to get paid under the pending settlement if it's approved. Nevertheless, Mr. Scarpulla, who runs a solo practice, along with Josef Cooper of Cooper & Kirkham, have come at Mr. Alioto hard for what they suggest is a failure to adequately represent the best interests of the class. They're also taking issue with how the proposed $192 million in attorney fees has been calculated. That's roughly 33 percent of the full settlement fund. At times, the battle has become a straight-up power struggle. Messrs. Scarpulla and Cooper late last year sought to make themselves co-lead counsel in the case, arguing that Mr. Alioto and his team had "abandoned consumers in more than half of the country," and that "someone needs to be appointed to protect and advance their interests." U.S. District Judge Jon Tigar of the Northern District of California, who is presiding over the case, denied that motion. But in February he granted Mr. Scarpulla and Cooper's request to scrutinize the billing sheets of Alioto's team. Mr. Scarpulla says his aims are purely altruistic: He wants to get the best deal for the class and make sure that lawyers who didn't do their fair share of the work aren't drawing huge sums from the settlement fund. But he also acknowledges that his labors could bring some more material reward. "If the court thinks we did something beneficial for the class, then we may get compensated," he said in an interview, before quickly stressing again that this is not his chief objective. Mr. Alioto did not respond to messages and emails requesting comment. But in court filings, Mr. Alioto has justified the settlement and proposed attorney fees as more than fair, especially given the complexity of the case, and the fact that discovery entailed going through tens of thousands of documents in multiple languages and traveling around the world. He has also deflected criticism of how lead counsel tracked their time working on the case, pointing out that Mr. Scarpulla used the same method when he was co-lead counsel in a similar case over LCD screens. It's not the first time Aliotos and Scarpullas have tangled in a fight over attorney fees. Back in 2013, Mr. Scarpullo and Joseph M. Alioto -- who is related to Mario and the son of the former San Francisco mayor -- tussled over who should get the bigger share of the $300 million fee award they reaped in the LCD case. Joseph Alioto has not been heavily involved in the cathode ray tube case. Judge Tigar on April 19 would be hearing more about how the attorney fees should be calculated. Messrs. Scarpulla and Cooper argue that rather than starting from a percentage over the overall settlement, the attorneys involved in the case should first have to map out how what they did led to a better settlement for the class. The pair has insinuated that the way some lead attorneys tracked their billing hours was sloppy. SANTA FE NATURAL: "Sproule" Suit Transferred to D. New Mexico ------------------------------------------------------------- The class action lawsuit captioned Justin Sproule, individually and on behalf of all others similarly situated v. Santa Fe Natural Tobacco Company, Inc., and Reynolds American Inc., Case No. 0:15- cv-62064, was transferred from the District of Florida Southern to the U.S. District Court District of New Mexico (Albuquerque). The District Court Clerk assigned Case No. 1:16-cv-00296-JB to the proceeding. The Plaintiff seeks redress for the Defendants' fraudulent and deceptive trade practices with regards to the labeling and advertising of the Natural American Spirit cigarettes. The Defendants own and operate a natural tobacco company in New Mexico. The Plaintiff is represented by: Jonathan Gdanski, Esq. Scott P. Schlesinger, Esq. Jeffrey Louis Haberman, Esq. SHELDON J. SCHLESINGER PA 1212 SE 3rd Avenue Fort Lauderdale, FL 33316 Telephone: (954) 467-8800 Facsimile: (954) 523-4803 E-mail: Jonathan@schlesingerlawoffices.com scott@schlesingerlaw.com JHaberman@schlesingerlaw.com The Defendant is represented by: David M. Monde, Esq. Michael F. Stoer, Esq. JONES DAY 1420 Peachtree Street, Suite 800 Atlanta, GA 30309 Telephone: (404) 521-3939 Facsimile: (404) 521-8330 E-mail: dmmonde@jonesday.com mstoer@jonesday.com - and - Noel J. Francisco, Esq. Peter J. Biersteker, Esq. JONES DAY 51 Louisiana Avenue, NW Washington, DC 20001-2113 Telephone: (202) 879-3939 Facsimile: (202) 626-1700 E-mail: njfrancisco@jonesday.com pbiersteker@jonesday.com - and - Paul Courtney Huck Jr., Esq. JONES DAY 600 Brickell Avenue, Suite 3300 Miami, FL 33131 Telephone: (305) 714-9742 Facsimile: (305) 714-9799 E-mail: paulhuck@jonesday.com SCANDRILL INC: Faces "Jones" Suit Over Failure to Pay Overtime -------------------------------------------------------------- Gary Jones, individually and on behalf of all others similarly situated v. Scandrill, Inc., Case No. 6:16-cv-00341 (E.D. Tex., April 14, 2016), is brought against the Defendant for failure to pay overtime wages in violation of the Fair Labor Standards Act. Scandrill, Inc. is in the business of providing land contract drilling services to independent and major oil and gas exploration companies. The Plaintiff is represented by: William S Hommel Jr., Esq. WILLIAM S. HOMMEL, JR. PC 1404 Rice Road, Ste 200 Tyler, TX 75703 Telephone: (903) 596-7100 Facsimile: (469) 533-1618 E-mail: bhommel@hommelfirm.com SELECT ONE: Embezzler at Center of Class Action ----------------------------------------------- Brianna Smith, writing for WSPA.com, reports that a woman convicted of embezzling $567,000 from an Upstate non-profit, is now at the center of a class action lawsuit. Jane Standridge pled guilty to embezzling and bank fraud, stealing $567,000 from New Foundations, a non-profit children's home. Teresa Standridge opened Select One Staffing and Select One Healthcare. There were Select One offices across the Upstate and Lavonia, Georgia. In the class action lawsuit, former employees claim that Select One gave them bounced checks or wouldn't pay them, and that when they paid them, the deductions from their checks weren't paid. Now former employees say they never received their W2's and that the IRS told them they owe back taxes because their tax deductions were never paid. Ms. Standridge was sentenced to pay full restitution in December to New Foundations. Ms. Standridge paid $400,000 in restitution in June of 2015, a few days after it lists her husband Tommy removed himself from Select One on the Secretary of State's office. The Department of Labor says they have 11 cases they are investigating involving wage disputes with Select Staffing, 9 of them have been resolved requiring action on Select One's behalf. The class action lawsuit would be filed on April 19. SERVERGY INC: SEC Files Securities Fraud Suit v. Texas AG --------------------------------------------------------- Patrick Svitek and Morgan Smith, writing for The Texas Tribune, report that Texas Attorney General Ken Paxton has been charged in federal court with allegedly misleading investors in a technology company. The U.S. Securities and Exchange Commission filed the charges on April 11 in a Sherman-based court. They are similar to the allegations Paxton faces in a pending indictment handed up by a Collin County grand jury last year. Mr. Paxton is named in the SEC's complaint along with William Mapp, the founder and former CEO of Servergy Inc. Mr. Paxton is accused of raising hundreds of thousands of dollars for Servergy without disclosing he was making a commission. The case stems from when Paxton was a member of the Texas House -- before he was elected attorney general in 2014. "People recruiting investors have a legal obligation to disclose any compensation they are receiving to promote a stock, and we allege that Paxton and White concealed the compensation they were receiving for touting Servergy's product," Shamoil T. Shipchandler, director of the SEC's Fort Worth regional office, said in a news release on the complaint. Mr. Paxton has pleaded not guilty to the three felony counts he faces in the criminal case. Bill Mateja, an attorney for Mr. Paxton, said that Mr. Paxton's legal team has not reviewed the SEC's civil lawsuit. "As with the criminal matter, Mr. Paxton vehemently denies the allegations in the civil lawsuit and looks forward not only to all of the facts coming out but also to establishing his innocence in both the civil and criminal matters." According to the SEC, Mr. Paxton persuaded five investors to put $840,000 into Servergy -- and did so without attempting to confirm Mr. Mapp's claims about the sales of its data servers and their technological capabilities. A month later, Mr. Paxton received 100,000 shares of stock in the company. In marketing materials and investment presentations, the Servergy CEO said he had preorders for the servers from the online retailer Amazon, the semiconductor giant Freescale and the Canadian software engineering firm Koerr. He also maintained that an independent testing laboratory had found the product needed up to 80 percent less cooling, energy and space compared with other servers on the market. All of those assertions were untrue, according to the SEC filing. Mr. Paxton pitched the company to his "friends, business associates, law firm clients" as well as members of his investment group. Among those in the investment group who later bought shares in Servergy was Mr. Paxton's colleague in the Texas House, state Rep. Byron Cook, R-Corsicana. "Based on prior dealings in the group, members trusted each other to consider the interests of the group as a whole and not exploit one another for a member's personal benefit. Similarly, prior experiences in the group established that the member who recommended an investment would monitor the investment going forward and represent the group's interests," the filing states. "Despite a duty to do so, Paxton knowingly or recklessly failed to inform any member of the investment group that he was being compensated by Servergy for recruiting investors." The SEC said Mr. Paxton told investigators that the shares were a gift from Mr. Mapp, not necessarily a commission. According to the complaint, Paxton claimed he accepted the shares only after Mr. Mapp refused to accept an offer from Paxton to invest $100,000 of his own money in Servergy. "I can't take your money. God doesn't want me to take your money," Mr. Mapp told Paxton during a meeting at a Dairy Queen during the summer of 2011 in McKinney, according to the SEC. In May 2014, the state securities board fined Mr. Paxton for similar conduct. At that time, Mr. Paxton, who was then running for attorney general, admitted he solicited clients for an investment firm without disclosing that he would be paid a percentage of the fees the firm collected from their business. SOCAL GAS: Save Porter Ranch and 24 Residents File Class Action --------------------------------------------------------------- Save Porter Ranch discovered public records showing the Division of Oil, Gas and Geothermal Resources (DOGGR) knew of leaking wells and yet DOGGR repeatedly issued permits to SoCalGas without the proper data showing gas would be confined underground. One example is API 03721313 (32F). Well 32F had a patch installed in 1986, but SoCalGas removed the patch in 2010. Well 32F has not passed any mechanical integrity tests since 2010. As of April 19, 2016, 32F still does not pass any tests and is a significant risk to the health and safety of the community. This is just one example of records showing DOGGR knew of the leaking wells and continued to issue permits. These types of problem led to the EPA ordering DOGGR in 2011 to stop issuing injection well permits without the required data showing confinement of injected fluids underground. Before DOGGR could fix the problem, Governor Jerry Brown fired the two regulators trying to bring the state into compliance with the law. Gov. Brown's office did not want the focus on injection wells to focus on fracking, which under state law at the time would have required compliance with the injection well regulations. Gov. Brown appointed new regulators and brought back old-timers who were asked to travel around the state to tell the community that fracking was not subject to injection well regulations and to unwind all corrections implemented by DOGGR to bring the state's injection program into compliance with the law. Save Porter Ranch, along with 24 individuals, lead the charge with filing class based claims against the State of California on behalf of the community of Porter Ranch. Combined with the other claims filed by R. Rex Parris and co-counsel, the last two waves of claims filed against the state bring the total up to 951 claims for individuals and potential class members and thousands more to follow. They challenge the State's failure to protect the residents of Porter Ranch who suffered from the massive gas injection well blowout of well SS-25 in the Aliso Canyon Natural Gas Storage Facility. Natural gas, noxious odors, hazardous chemicals, and toxic pollutants rolled down the hillside into Porter Ranch and surrounding areas for over three months. The blowout ultimately released 100,000 tons of natural gas. "DOGGR needs to be held responsible for allowing the operation of a facility with a known history of injection wells leaking gas into this community," according to R. Rex Parris. The County Panel recently appointed Mr. Parris to the Los Angeles County advisory panel assisting a County Strike Team in assessing the conditions, regulatory compliance and potential public health risks from existing oil production activities. As mayor of Lancaster, Mr. Parris is noted for his work in developing programs to reduce emissions and frequently is called to speak on panels with Governor Brown. "Governor Brown had a duty to Californians to coordinate the State Emergency Plan . . . for the mitigation of the effects of any emergency in this state," says Mr. Parris. "But instead, Governor Brown went to Paris and boasted about California's reduction of emissions. He was eerily silent about Porter Ranch in the midst of the blowout and evacuation of over 4,000 families." The tragedy to Porter Ranch residents is their Governor was conflicted, as explained in the Government Tort Claims filed on April 19. First, Governor Brown is a defendant in another lawsuit arising from the same permitting issues present in this action which alleges he was engaged in a criminal enterprise with the oil and gas industry. The state issues injection well permits to all gas companies if they provide basic data showing the injected gas will remain in a confined area underground. This is a safety requirement that is mandated by federal law. Governor Brown, however, ordered state regulators in October of 2011 to stop requiring this basic data for permits of injection wells. And DOGGR then stopped requiring gas companies to provide data showing confinement of the injected gas. Second, Governor Brown's sister is on the board of directors of Sempra Energy (the parent company of SoCalGas). She received income of almost $200,000 each year for the last three years from Sempra and rights to Sempra stock worth another $409,945. Also named in the claim against the state are other agencies including the South Coast Air Quality Management District. The claim also lists SoCalGas, whose property in Aliso Canyon is treated as government property. Each client is seeking damages for personal injury and property damage which is expected to exceed $3.5 million per person. About The R. Rex Parris Law Firm For over 30 years, R. Rex Parris -- http://www/rrexparris.com-- has devoted his practice to protecting the rights of injured people and aggrieved workers. Rex and his dedicated team provide thorough, high-quality representation with integrity and compassion. These lawyers fight aggressively against corporate defense attorneys and insurance companies to ensure their clients get the compensation they deserve. SONY PICTURES: Court Approves $2.5MM in Attorneys Fees ------------------------------------------------------ Hunton & Williams LLP on April 18 disclosed that on April 6, 2016, U.S. District Judge R. Gary Klausner approved a settlement in Corona v. Sony Pictures Entertainment, Inc., No. 14-CV-09600 (RGK). The litigation centered on a data breach involving the stolen personal information of at least 15,000 former and current employees. After a partial success on its motion to dismiss, Sony still faced potential liability for negligence based on its three- week delay in notifying its employees of the data breach, as well as statutory claims under the California Confidentiality of Medical Information Act and the Unfair Competition Law. Under the terms of the settlement, Sony will provide three years of identity theft protection, an optional service that will reimburse up to $1 million dollars and a fund for additional losses. An exact settlement amount is not available at this time. The deadline for Sony employees to sign up for the services offered in the settlement has not yet passed. On April 14, 2016, Judge Klausner took issue with the request of $3.49 million in plaintiffs' attorneys' fees due to: (1) a lack of itemization and (2) the belief that fees for 17 billable hours per day, every day, during 61 weeks of litigation were unreasonable. Instead, the Court approved only 4,500 billable hours at a $509.34/hour blended rate. Consequently, $2,587,574.96 in attorneys' fees and costs were approved as reasonable, but the Court allowed the parties to independently negotiate any fees and costs above that amount. SPROUTS FARMERS: Faces Class Action Over Data Breach ---------------------------------------------------- The Denver Post reports that a federal lawsuit seeks class action certification for possibly thousands of Sprouts Farmers Market employees who might have been affected by a data breach in March through a scam e-mail. The lawsuit alleges that the company released 2015 employee W-2 tax forms to unknown parties in response to the phishing scam, according to the Sawaya Law Firm, which filed the suit in U.S. District Court in Colorado on behalf of the lead plaintiff. As a result, the scammers already have used the plaintiff's personal information such as a Social Security number to fraudulently apply for a tax refund belonging to the worker, said attorney David Miller. The lawsuit claims the company failed to properly safeguard employee information. A spokesman for Sprouts Farmers Market said he was unable to comment on pending litigation but said this was "an isolated event" and no systems were breached. SPROUTS FARMERS: Faces "Price" Suit Over Alleged Data Breach ------------------------------------------------------------ Debra Price, on behalf of herself and all others similarly situated v. Sprouts Farmers Market, Inc., d/b/a/ Sprouts Farmers Market, LLC, Case No. 1:16-cv-00855 (D. Colo., April 14, 2016), is brought on behalf of the more than 21,000 employees who have had their personal identifying information and tax information accessed, stolen and used illegally as a result of the acts and failures to act of the Defendant. Sprouts Farmers Market, Inc. operates a nationwide chain of more than 220 grocery stores in across the United States. The Plaintiff is represented by: David H. Miller, Esq. Heather Joyce, Esq. SAWAYA & MILLER LAW FIRM 1600 Ogden Street Denver, CO 80218 Telephone: (303) 839-1650 Facsimile: (720) 235-4377 E-mail: DMiller@sawayalaw.com HJoyce@sawayalaw.com STATE FARM: "Madison" Suit Seeks OT & Unpaid Wages Under FLSA ------------------------------------------------------------- Donna Madison, Timothy Craig Tetley, Kelly Carter, Milton Gibbs, David Jones, Kenneth Rice, David Ross, Paul D. Smith, Tarland T. Thomas, Erika Ware, Yulander Mctier, and all persons other similarly situated, the Plaintiffs, v. State Farm Mutual Automobile Insurance Company, the Defendant, Case No. 3:16-cv- 01041-L (N.D. Tex., April 18, 2016), seeks to recover damages, unpaid overtime, unpaid wages, liquidated damages, injunctive relief, declaratory relief, and reasonable attorney's fee and costs, pursuant to the Fair Labor Standards Act (FLSA). According to the complaint, the Defendant repeatedly and willfully violated FLSA by failing to compensate Plaintiffs at a rate not less than one and one-half times their regular rates of pay for each hour worked in excess of 40 in a workweek. State Farm is a group of insurance and financial service companies headquartered in Bloomington, Illinois, and maintains offices in Dallas, Texas. The Plaintiffs are represented by: Charles L. Scalise, Esq. Daniel B. Ross, Esq. ROSS LAW GROUP 1104 San Antonio Street Austin, TX 78701 Telephone: (512) 474-7677 Facsimile: (512) 474-5306 E-mail: Charles@rosslawpc.com dbr@rosslawpc.com - and - Steven R. Samples, Esq. SAMPLES AMES PLLC 1512 Crescent Drive, Suite 119 Carrollton, Texas 75006 Telephone: (214) 308 6505 Facsimile: (855) 605 1505 E-mail: steve@texaslit.com SYNTHES USA: Employees' Labor Suit Can Proceed as Class Action -------------------------------------------------------------- Gordon Gibb, writing for Lawyers and Settlements, reports that a California labor lawsuit alleging various violations to California labor laws will go ahead as a class action, in spite of efforts by the defendants to have the two classes decertified. The original lawsuit was brought in December of 2011 in US District Court, Eastern District of California. Defendants in the California labor code lawsuit are Synthes USA, Synthes USA Sales, and Synthes Spine Company (known collectively as Synthes Companies, or Synthes). The lead plaintiff in the case, Troy Lindell, alleges in his lawsuit that Synthes failed to reimburse certain employees for business expenses, took unlawful deductions from employees, failed to properly pay employees upon leaving the employ of the company, and engaged in unfair competition. All claims made are alleged to be in violation of various statutes of California labor employment law. The California labor lawsuit has undergone a few changes since it was originally brought in 2011. Amended in February of 2012, it was further amended in 2013 to include certification of two classes. The so-called "Expense" class of employees is comprised of sales consultants from the defendant's Trauma and Spine divisions - and sales consultants from the defendant's Craniomaxillofacial divisions who received straight commission and higher levels of commission, respectively. A second class has been dubbed the "Deduction" class and would include all former, current and future sales consultants employed from December 13, 2007 through to the date of the culmination and disposition of the lawsuit. The two classes were originally certified on March of 2014 by Magistrate Judge Barbara A. McAuliffe. Synthes immediately appealed to the Ninth Circuit for permission to appeal the class certification, but the request was denied. The defendants then filed a motion to decertify the two classes. On that motion District Court Judge Lawrence J. O'Neill in California District Court turned that motion down as well. Thus, the two California and labor law class actions will proceed, alleging various violations to California Labor Code Sections 2802, 221, 223 and 300, and 201 through 203. What's more, allegations suggest unfair competition in violation of the California Unfair Competition Law (UCL), California Business and Professional Code Sections 17200-210. Finally, the plaintiff is also looking to recover damages under the California Private Attorney General Act (PAGA), California Labor Code Sections 2698-2699.5, and for violations of Labor Code Sections 201-203, 221, 223, 300 and 2804. The California lawsuit is Troy M. Lindell et al v. Synthes et al, Case No. 1:11-cv-02053 LJO BAM, in the Eastern District of California. TD BANK: Faces Class Action Over Coin-Counting Machines ------------------------------------------------------- Karen Freifeld, writing for Reuters, reports that a New York man filed a proposed class action on April 18 accusing TD Bank of shortchanging him and hundreds of thousands of other customers who used the bank's coin-counting machines. In a complaint brought in New York state court in Manhattan on April 18, Jeffrey Feinman said that TD Bank's Penny Arcade machines once gave him a receipt for $25.44 when he deposited $26 dollars' worth of coins, and $30.05 when he deposited $31. TIDAL: Faces Class Action Over "The Life of Pablo" Exclusivity -------------------------------------------------------------- Daniel Kreps, writing for Rolling Stone, reports that a California man has aligned with a Chicago law firm to file a class action lawsuit against Jay Z's Tidal and Kanye West concerning the exclusivity of The Life of Pablo. At the heart of the lawsuit, filed on April 18 at San Francisco's U.S. District Court, is a complaint that West and Tidal misled consumers by having them believe The Life of Pablo would only be available on Tidal, only for it to pop up on other streaming services six weeks later. In the lawsuit, filed on behalf of consumer Justin Baker-Rhett, law firm Edelson PC accuse Tidal and West of using the lure of a one-month free trial as well as West's "exclusive" album to boost membership for the streaming service that was, in their words, "quietly teetering on the brink of collapse." "Consumers were uniformly tricked into handling over their private data and credit card information by a singular mistruth," the lawsuit reads. The $5 million lawsuit demands that Tidal delete the "private information" of both Baker-Rhett and anyone else that joins with the class action suit. "In reality, neither Mr. West nor [Jay Z's company] S. Carter Enterprises ever intended The Life of Pablo to run exclusively on the Tidal platform," the lawsuit adds. "To the contrary, they -- knowing that Tidal was in trouble but not wanting to invest their own money to save the company -- chose to fraudulently induce millions of American consumers into paying for Tidal's rescue." In a statement to Rolling Stone, Edelson PC founder and CEO Jay Edelson said, "Kanye has the power to send one tweet out into the world and get 2 million people to act on it. This suit is about holding him accountable when he abuses that power." Representatives for Tidal, West and Jay Z did not immediately respond to requests for comment. "My album will never never never be on Apple. And it will never be for sale . . . You can only get it on Tidal," West tweeted on February 15th. "Please to all my friends fans and music lovers. Sign up to Tidal now. Also all Good Fridays songs will be on Tidal. Me and Kendrick got 40 songs and me and Young Thug got 40 songs. 40/40 club!!!" West has not posted any additional Good Fridays song on Tidal since the arrival of The Life of Pablo. "By the time Mr. West changed course and broadly released The Life of Pablo, the deceptive marketing ploy had served its purpose," the complaint alleges. "Tidal's subscriber numbers had tripled, streaming numbers were through the roof and Tidal had collected the personal information, credit card numbers, and social media information of millions of deceived consumers," the lawsuit adds. "As a result, Tidal's valuation -- the lifeblood of any new startup -- soared." UBER TECHNOLOGIES: Steve Wozniak Denounces Labor Practices ---------------------------------------------------------- Casey Williams, writing for Huffpost Tech, reports that Apple co-founder Steve Wozniak just threw some shade at Uber. On April 18, at the Future Transport Summit in Sydney, Australia, Wozniak denounced the ride-hailing company's disputed labor practices and critiqued what he sees as its monopolistic ambitions, according to Mashable. "Like a lot of people, I have some distrust of Uber and how their drivers don't really realize at first that they aren't making much money, maybe losing money on the wear and tear of their cars," Wozniak told reporters at the summit. "That's how I think of Uber: Not very nice thoughts," Mr. Wozniak added. David Rohrsheim, general manager of Uber in Australia, responded to Wozniak's remarks by noting that Uber drivers have a job with rare flexibility. "It has to be a good deal for partners or otherwise they won't use the platform," Mr.Rorhsheim told Mashable Australia. Mr. Wozniak isn't alone in criticizing the app. Class-action lawsuits filed by Uber drivers in California and Michigan argue that the company wrongly classifies its workers as independent contractors, allowing it to drive down their wages and withhold benefits. As contractors, drivers are exempt from minimum wage requirements and don't receive certain state and federal benefits. Both lawsuits contend that Uber drivers are, in fact, employees, a designation that comes with greater labor protections Mr. Wozniak added that he'd prefer to use Lyft from now on. Lyft, which is Uber's main competitor in the U.S., agreed in January to expand benefits for drivers. Lyft drivers can no longer be fired at will and have the right to settle termination and pay disputes through arbitration. Despite those gains, Lyft drivers, like Uber drivers, are still considered independent contractors. Mr. Wozniak told reporters he'd also like to see more competition in the ride-sharing market. "I would rather there be a lot of competitive forces," Mr. Wozniak said. "I'd like there to be four or five choice that are like Uber anywhere you go." The Woz might get his wish. Several new ride-sharing services are scheduled to hit roads soon. Chariot for Women, which was set to launch on April 19, is an alternative ride-sharing service with all-women drivers, exclusively for women. Another service, Juno, hopes to become Uber's mirror opposite. It's drivers will not only have employee status, but will also get equity in the company, in addition to several other perks. Despite his concerns about Uber, overall, Wozniak isn't too worried about the sorts of economic changes Uber represents. "You might come up with a new technology and some old jobs disappear and there are robots building cars," he said. "Well, the jobs pop up somewhere else. The economy just shifts, it moves." UBS AG: July 8 Class Action Settlement Fairness Hearing Set ----------------------------------------------------------- If You Purchased Municipal Derivative Transactions from January 1, 1992, to August 18, 2011 You Could Get a Payment for a Class Action Settlement. Proposed Settlements have been reached in a class action lawsuit that alleges price-fixing in the sale of municipal derivatives transactions by UBS AG, Societe Generale S.A., Natixis Funding Corp., Piper Jaffray & Co., National Westminster Bank Plc, George K. Baum & Co. (the "Settling Defendants") and other companies. The case, In re Municipal Derivatives Antitrust Trust Litigation, MDL No. 1950, No. 08-02516, is pending in the United States District Court for the Southern District of New York. Defendants deny all allegations of wrongdoing and liability. Who Is Included in the Settlements? These Settlements include all state, local and municipal government entities, independent government agencies, quasi- government and private entities that purchased municipal derivative transactions through negotiation, competitive bidding or auction: (1) From any Alleged Provider Defendant or Alleged Co-Conspirator or brokered by any Alleged Broker Defendant or Alleged Co- Conspirator, (2) Any time from January 1, 1992, through August 18, 2011, in the United States and its territories or for delivery in the United States and its territories. These Alleged Provider and Broker Defendants and Alleged Co-Conspirators are listed in full on the Settlement website at www.MunicipalDerivativesSettlement.com What Do the Settlements Provide? The Defendants agreed to settlement amounts totaling over $100 million. Certain Defendants will also provide reasonable cooperation, including discovery cooperation, to Class Plaintiffs' Counsel to the extent necessary if any of the Settlements are not finally approved. What Do I Do Now? Remain in the Settlements. To remain in the Settlement Class, you do not have to do anything now. To be considered for payment, your Claim must be submitted online at www.MunicipalDerivativesSettlement.com OR mail it by July 28, 2016. If you previously submitted a Claim Form, and you do not have any changes to make to it, you do not need to do anything -- your previous Claim Form will be used for these settlements. If the Court approves the Settlements, you give up the right to sue the Settling Defendants for the claims and issues in this case. The Settlement Agreements, which are available at www.MunicipalDerivativesSettlement.com, describe in more detail the legal claims that you give up if you stay in the Class. Exclude yourself from the Settlements. If you do not want to remain in any of the Settlement Classes, you must exclude yourself. You must send a written request for exclusion by first- class mail, postmarked no later than May 17, 2016, to the Settlement Administrator. The detailed notice available on the Settlement website describes the information you are required to include in your request for exclusion. You can exclude yourself from some but not all Settlements. If you exclude yourself, you cannot participate in the Settlements from which you exclude yourself, but you retain your right to sue the Settling Defendants involved in the Settlements from which you exclude yourself on your own for the claims in this lawsuit. Object or Comment on the Settlements. If you remain in the Settlement Class and want to object to or comment on the Settlements or any part of them, you must file an object with the Court and deliver a copy to the Settlement Administrator no later than June 20, 2016. When Will the Court Decide Whether to Approve the Settlements? The Court has scheduled a hearing on July 8, 2016, at 2:00 p.m. at the United States District Court for Southern District of New York, United States Courthouse, 500 Pearl Street, New York, NY 10007, to consider whether to finally approve the Settlements as fair, reasonable and adequate, whether to approve the plan of allocation and Class Counsel's request for fees and reimbursement of litigation expenses, and to consider any objections. The Court has appointed the law firms of Hausfeld LLP; Boies, Schiller & Flexner LLP; and Susman Godfrey L.L.P. to serve as Class Counsel and represent all Class Members. If you want to be represented by your own lawyer, you may hire one at your own expense. You or your lawyer may ask to appear and speak at the hearing but are not required to. If you want to be heard by the Court, you must file a written notice of your intention to appear with the Court and deliver a copy to the Settlement Administrator and Defendant's Counsel no later than June 20, 2016. The Court may change the time and date of the hearing. Any change will be posted on the Settlement website. Get More Information For more information on this lawsuit, your rights, or to obtain a list of Defendants, call or visit the Settlement website at www.MunicipalDerivativesSettlement.com or write to Municipal Derivatives Settlement, c/o Rust Consulting, Inc., P.O. Box 2500, Faribault, MN 55021-9500. For more information: 1-877-310-0512 UNIVERSITY OF SYDNEY: Discrimination Class Action Mulled v. Tutor ----------------------------------------------------------------- Philip Wen, Eryk Bagshaw and Kate Aubusson, writing for The Canberra Times, report that a University of Sydney business school tutor has resigned after being caught making a series of derogatory social media posts insulting mainland Chinese students. Wei Wu, the business school's head corporate finance tutor, resigned from the position on April 18 after reports he called his mainland students "pigs" generated widespread outrage in Australia and went viral in mainland China. Under the pseudonym Pekojima, Mr. Wu accused Chinese students of cheating "due to low IQs" on Chinese micro-blogging site Weibo. The posts, mostly made last year, were discovered by students in his class and circulated among the Sydney University community in a petition condemning the remarks. "The Usyd finance course is very difficult, not sure how many international pigs will hire essay writer [sic] because of their low IQ," read one of the posts, translated by a student who created the petition. Mr. Wu's supporters, including many in the local Australian- Chinese community, insist he was using coded political slang popular with dissidents online, and was being targeted for his dissident work and frequent vocal criticism of China's ruling Communist Party. Mr. Wu's Weibo account has been taken down and Fairfax Media has not reviewed all of his previous posts. But in the posts used as examples in the USyd student petition, the obscure character tun is used rather than zhu, the vastly more commonly used character for pig. "It [tun] is actually a euphemism used online to refer to guanerdai, the second-generation [offspring] of [Communist Party] officials who have gone overseas to study," Wai Ling Yeung, the recently retired head of Chinese Studies at Curtin University. "One of the characteristics of these overseas students from very rich families is that their families very closely connected with the party, they are very supportive of the party, sometimes online too, what we refer to as xiaofenhong or 'little pinks'." Until April last year, Mr. Wu was himself a Chinese national when he became an Australian citizen. Mr. Wu's outburst against mainland international students at the University of Sydney became a viral sensation on the Chinese internet and was one of the top trending topics on Weibo. Reports of the controversy carried by online news portals Sina and Netease garnered more than 300,000 comments and numerous death threats, with many outraged by his antagonism against mainland students and by apparent footage of him burning his Chinese passport and extinguishing the flames in a toilet bowl. An online counter-petition voicing concerns for the university's internal disciplinary investigation into Mr. Wu had over 1000 signatures by April 18. "We are concerned that Mr. Wu is becoming a victim of the Chinese government's increasingly intrusive attempts to curb voices of dissent among overseas Chinese. Mr. Wu has a long track record of critical comments against the Chinese government, its political system and social affairs on social networks," the petition states. Despite the petition Mr. Wu's resignation was accepted by the business school after it concluded its investigation on April 18. His comments were condemned by the Dean of the university's business school, Greg Whitwell. "Racist, sexist or offensive language is not tolerated at the University of Sydney," said Professor Whitwell. On April 18 the Chinese Community Council of Australia (CCCA) called for Mr. Wu's students to launch a class action against the tutor with the NSW Anti-Discrimination Board. CCCA National President Dr Anthony Pun said the word "pig" was an extremely derogatory remark, of which any interpretation could be considered "racially abusive". Dr Pun said Mr. Wu's political views were no defense for his actions. On April 18, Mr. Wu asked for forgiveness. "I would like to sincerely apologize for the inappropriate and disrespectful comments I made on the internet. I will refrain from such remarks in the future. I have also resigned from my employment at the University of Sydney," he said via a statement released by the university. The controversy is the latest setback to international student relations to hit the school, a market now worth up to $17 billion. In April, a sudden graduation date change threatened to put up to 80 per cent of the university's master of management students and their families thousands of dollars out of pocket for air fares, accommodation and visas they had already purchased. Last year, the Chinese consulate appealed to the university when 37 per cent of Chinese students were failed in one of the university's business courses, drawing accusations of bias towards non-native English speakers. VALEANT PHARMACEUTICALS: Says Cold-FX Suit Lawyer-Driven Action --------------------------------------------------------------- John McKinley, writing for BC Local News, reports that a Vancouver Island-based lawsuit against the cold remedy Cold-Fx is a lawyer- manufactured action in search of a victim and not worthy of class- action certification. Or at least that was the argument advanced by lawyers for the drug giant Valeant Pharmaceuticals earlier this month in a New Westminster courtroom. To be certified, an applicant must show the existence of a genuine class with common issues defined by objective criteria, states a response filed March 31 by defense lawyer Alan D'Silva -- adsilva@stikeman.com "This case fails on all counts. It is a lawyer-driven action with no real complainants and a hopelessly overbroad class," it states. The suit alleges the defendants Valeant and Afexa Life Sciences misled consumers into thinking Cold-Fx was capable of relieving flu and cold symptoms if taken for periods of less than two months despite testing that indicated otherwise. B.C. Supreme Court Justice Janice Dillon is being asked if this 2012 claim by Ladysmith senior Don Harrison against the makers of the popular product can be expanded to include virtually anyone who used it between 2004 and 2012. Valeant ended four years of relative silence on the matter in court with a multi-pronged 128-page critique that claims lawyer John Green has failed to demonstrate the need for class-action certification. Its response states Mr. Green recruited Harrison as a "placeholder" applicant, adding the suit lacks evidence that Harrison or others ". . . were exposed to the alleged misrepresentations; that such representations influenced their purchase; or that they were disappointed in the results. "Despite (Green's) relentless four-year campaign, Mr. Harrison remains the sole representative plaintiff and no evidence has been provided to show that any other individual is genuinely interested in pursuing the alleged claims as part of a class action." Mr. D'Silva also presented the testimony of consumer behavior expert Michael Mulvey that the promotional material people were exposed to and the reasons they bought the product are too individualized for a class-action case. The defendants also maintain the case does not warrant the complexities and expense of a class proceeding. "This is not a claim alleging personal injury in relation to a latent and inherent danger in a product that surfaces years after purchase, for instance, harm caused by breast implants, heart defibrillators, or hip implants," the suit states. "This is a theoretical claim which at its highest is an efficacy claim for pure economic loss, alleging complaints in regards to treatment of the common cold." It called the "lack of any genuine complainant" unsurprising because Cold-Fx is the number-one selling cold-and-flu product in Canada, and 95% of users are happy with its results. "If any consumers were genuinely displeased with Cold-Fx's efficacy, they could at any time have availed themselves of a full refund, which has been offered by the defendants since Cold-Fx's inception." In a statement posted to the lawsuit's Facebook page on April 9, Mr. Green said he has been contacted by people across Canada who wish to be part of the British Columbia class action, including large numbers from Ontario. The statement asks for people to continue submitting contact information. "It will also help counter the suggestion by Valeant that everyone is happy with Cold-Fx and that nobody cares about determining if it engaged in the conduct alleged in this class action," Mr. Green said. Justice Dillon heard the certification case April 4-8 and has reserved her decision, which deals strictly with class action portion of the lawsuit. With or without certification, Green still has to prove the suit's claims. In an interview prior to the most recent hearing, he was confident the suit will be certified and he will be able to proceed with an action that will make the defendents accountable, while delivering a stern warning to any health remedy company making, or considering making, false claims. "Given that the statements we say were fraudulent concerned efficacy, dosage, and dosage duration (all regulated by Health Canada), we are confident that the defendants have an uphill battle now," he said. VASCULAR SOLUTIONS: Recalls Guardian II Hemostasis Valves --------------------------------------------------------- Vascular Solutions, Inc. (Nasdaq: VASC), initiated a nationwide recall of Guardian II hemostasis valves used in catheterization procedures. Specific lots of the products have been recalled because they pose an increased risk of air leakage that may lead to an air embolism, which could result in serious injury or death. This recall only affects the Guardian II hemostasis valves and does not include the Guardian II NC hemostasis valves. No injuries have been reported in association with this issue to date. Healthcare facilities that have the affected Guardian II hemostasis valves should remove the products from their inventory and return them to Vascular Solutions. The recalled products were manufactured from March 2015 to February 2016 and distributed from April 2015 to February 2016. The recalled products are specific lots of Model Numbers 8210 and 8211. A listing of the recalled lots is available from Vascular Solutions and has been provided to each facility that purchased the affected products. A total of 26,550 devices have been manufactured, with 5,283 distributed in the United States. The condition that led to the recall may affect approximately 2.4% of recalled devices. Vascular Solutions Inc. voluntarily initiated the recall on March 3, 2016 through an Urgent Medical Device Recall notification distributed to purchasers of the affected products. The notification identified the specific lots subject to the recall and included instructions on how to return the affected products. The U.S. Food and Drug Administration (FDA) classified this as a Class I recall. FDA defines Class I recalls as "a situation in which there is a reasonable probability that the use of, or exposure to, a violative product will cause serious adverse health consequences or death. Consumers with questions may contact the company by phone at 1- 888-240-6001 Monday through Friday, between the hours of 8:00 a.m. and 5:00 p.m. Central Time or by email at customerservice@vasc.com. Adverse reactions or quality problems experienced with the use of this product may be reported to the FDA's MedWatch Adverse Event Reporting program: Online at http://www.fda.gov/medwatch/report.htm(form available to fax (1-800-FDA-0178) or mail), or Call FDA 1-800-FDA-1088 to request a reporting form About Vascular Solutions Vascular Solutions, Inc. is an innovative medical device company that focuses on developing unique clinical solutions for coronary and peripheral vascular procedures. The company's product line consists of more than 90 products and services that are sold to interventional cardiologists, interventional radiologists, electrophysiologists, and vein specialists through its direct U.S. sales force and international independent distributor network. For further information, connect to www.vasc.com. WD IMPORT: Recalls Dried Yellow Fish Products Due to Clostridium ---------------------------------------------------------------- WD Import and Export Inc. located at 4703 2nd Ave, Brooklyn, NY 11232 is recalling its bulk unlabeled cardboard boxes of Dried Yellow Fish because it has the potential to be contaminated with Clostridium botulinum, a bacterium which can cause life threatening illness or death. Consumers are warned not to use the product even if it does not look or smell spoiled. Botulism, a potential fatal form of food poisoning, can cause the following symptoms: general weakness, dizziness, blurred or double-vision and trouble with speaking or swallowing. Difficulty in breathing weakness of other muscles abdominal distention and constipation may also be common symptoms. People experiencing these problems should seek immediate medical attention. The product, Dried Yellow Fish was sold in bulk unlabeled and un- coded cardboard boxes and is a product of China. The product was sold in retail stores in New York City. The potential for contamination was noted after routine sampling by New York State Department of Agriculture and Markets Food Inspection and subsequent analysis of the product by Food Laboratory personnel confirming that the fish was not properly eviscerated prior to processing. No illnesses have been reported to date in connection with this problem. Consumers who have purchased Dried Fish are advised not to eat it, but should return it to the place of purchase. Consumers with questions may contact the company at 718-567-3339. YOUNGSTOWN, OH: Seeks Dismissal of Water Funds Class Action ----------------------------------------------------------- Vindy.com reports that attorneys for Youngstown are asking a judge to dismiss a class-action lawsuit filed by five city water customers who question the legality of using water and wastewater funds for economic development. In a motion filed on April 18, James F. Lang, one of two attorneys from the Cleveland-based Calfee, Halter & Griswold law firm retained by the city for this case, wrote the complaint "is utterly devoid of any factual support for the contention that the rates charged by the city were in any way illegal or improper." Mr. Lang asked Judge John M. Durkin of Mahoning County Common Pleas Court, assigned this case, to dismiss it. "Plaintiffs failed to provide any factual support or legal basis for their claims that the city was over-charging its customers for water and sewer utilities," he wrote. * Abolishing Tips Won't Benefit Restaurants, Owners, Servers ------------------------------------------------------------ Nick Rose, writing for Munchies, reports that with a federal minimum wage of just $2.13 for tipped workers, it's no surprise that class action lawsuits pitting servers against major restaurant chains have been popping up left and right. But with state laws finally authorizing significantly higher minimum wages for restaurant workers, some critics are calling for an end to the social practice of giving servers a gratuity. All of which begs the question: Is it finally time to get rid of tipping once and for all? The answer is a resounding "no," according to Richard McKenzie, Professor of Economics and Management Emeritus at UC Irvine. In a recent study entitled Should Tipping Be Abolished?, McKenzie goes as far as claiming that tipping benefits pretty much everyone in the restaurant industry -- not just servers, but restaurant owners, customers, and other workers. "At face value, abolishing tipping and offering higher wages instead sounds like a reasonable and necessary action, especially when you consider the federal minimum wage for non-tipped workers is $7.25 and the federal subminimum wage for tipped workers is at a measly $2.13 per hour rate," Mr. McKenzie said in a press release. In his survey of 40 servers at "moderately priced or casual restaurants with table service," Mr. McKenzie crunched the numbers and realized they earn significantly more than what so-called "tip abolitionists" realize. He also argues that a heftier hourly wage is not the solution. "However, my research shows that if tipping were to be replaced by a fixed hourly rate of pay, service would suffer significantly, and so might the earnings of the servers in question. In addition, the wage that the restaurant servers indicated would be acceptable was in the range of $30 an hour, not $15, which is the wage rate states are considering." In other words, well-meaning proponents of a $15 wage may be pushing for something that is not actually in the best interest of servers. Furthermore, Mr. McKenzie suggests that data from restaurants that have abolished tipping is not very promising either: Owners had to raise prices by 20 percent in order to pay for their employees' higher hourly wages. Those same restaurants also lost 70 percent of their servers over a ten-month period because without tips their wage actually dropped from $35-45 per hour to $20-35 per hour. In conclusion, it seems that the American pillars of friendly service and making money are far more intertwined than what many policy makers with good intentions have assumed. "Policy makers must understand [that] tipping is a pay mechanism that incentivizes servers to use their localized information for their own and their company's benefit . . . Through tipping, servers effectively become commissioned salespeople, enticed to add to customers' experience and company sales. It's a win-win situation." * Garden City Recognized as Top Securities Claims Administrator --------------------------------------------------------------- Garden City Group, LLC (GCG(R)), a provider of legal administration services, has been recognized as the most frequent securities class action claims administrator by ISS Securities Class Action Services in its 2015 ranking of the top 100 securities class action settlements of all time by settlement dollar value. This is the 7th consecutive year GCG has earned the top honor. As of December 2015, GCG had administered 42 of the top 100 settlements throughout the past two decades-more than all other claims administrators combined. Moreover, the company had administered six of the top 10 settlements of all time, twice the number of the next closest administrator. GCG's proven record also has made it the administrator of choice for foreign issuers. In fact, three of the top 10 securities settlements of all time involving foreign issuers -- Royal Ahold, Nortel Networks I, and Nortel Networks II were administered by GCG. 2015 was a near-record year for securities class actions settlements. Twelve settlements totaling more than $4 billion were added to the top 100 Settlements list; GCG was responsible for administering settlements representing more than half a billion dollars of that total. "The ISS report confirmed what many already know," said Kenneth Cutshaw, interim president & chief executive officer, GCG. "When it comes to securities class action settlements, GCG's experience is unmatched, which consistently makes us the partner of choice, particularly in these large, complex administrations. We approach those administrations like we approach all of our lines of business-with an intense focus on the success of our clients. This acknowledgement is a testament to that focus, and we couldn't be happier." GCG has handled groundbreaking securities settlements, such as the $6.2 billion WorldCom settlement, the $3.2 billion Tyco International settlement, and the $2.425 billion Bank of America settlement. Overall, GCG has administered more than $27 billion in settlements in the top 100 securities class action cases alone. About Garden City Group, LLC (GCG(R)) For over three decades GCG -- http://www.gardencitygroup.com-- has been the premier provider for class action settlement administrations, restructuring and bankruptcy matters, mass tort settlement programs, regulatory settlements, and data breach response programs. GCG is the partner of choice for leading law firms, corporate legal departments, and government agencies, handling a wide range of matters, including notably the General Motors Ignition Switch Defect Litigation, the $2.4 billion Bank of America Securities Litigation, the $1.425 billion Stryker Hip Settlement, the $500 million Countrywide MBS Settlement, and the AT&T Third Party Billing Settlement. About Crawford(R) Based in Atlanta, Ga., Crawford & Company -- http://www.crawfordandcompany.com-- is one of the world's largest independent providers of claims management solutions to the risk management and insurance industry as well as self-insured entities, with an expansive global network serving clients in more than 70 countries. The Crawford Solution(TM) offers comprehensive, integrated claims services, business process outsourcing and consulting services for major product lines including property and casualty claims management, workers compensation claims and medical management, and legal settlement administration. The Company's shares are traded on the NYSE under the symbols CRD-A and CRD-B. * Judges More Vocal in Scrutinizing Class Action Settlement ----------------------------------------------------------- Jim Middlemiss, writing for Law Times, reports that in class actions, judges are often thrust into the centre of the dispute, refereeing not only warring defense and plaintiff lawyers but also overseeing unseemly fights among plaintiff counsel over who should carry a case. Factor in the added challenge of settlement hearings -- where judges are called upon to determine the fairness of an agreement - - and it makes for a challenging, and no doubt frustrating, legal environment in which judges must operate, compared with traditional litigation. It's no surprise, then, that justices in Ontario seem to be calling out class action lawyers more and more on their strategies. Alan D'Silva, a class action defense lawyer at Stikeman Elliott LLP in Toronto, notes, "We have very experienced class action judges. "If they suggest to plaintiff or defence counsel to amend something, or tweak something, or narrow something down, I think it carries a lot of weight. I think it's a good thing. Of course, judges have to be careful not to be weighing in on the merits," he says. Mr. D'Silva adds, "I think it's appropriate for judges to scrutinize a settlement to make sure that it is in the best interest of a class because that is what the statute requires. It ensures the case is being settled for an amount and quantum it should be settled for." It is often in their role of settlement scrutineer where judges are most vulnerable and becoming increasingly vocal. Michael Robb -- michael.robb@siskinds.com -- a plaintiff lawyer at Siskinds LLP in London, Ont., says there's no adversarial process in a settlement hearing. "I understand the judge's dilemma. They have an obligation to protect the best interest of the class," he says. One of the challenges lawyers face is justifying the settlement amount to the judge. Mr. Robb notes the amount is arrived at through a range of factors, everything from assessing the merits of the case -- its weaknesses, strengths, and precedents -- to assessing insurance policies, and engaging in tough negotiations with defense lawyers, discussions that are usually confidential. When called on to defend the settlement, Mr. Robb says it's "a fine line to walk in terms of what you can explain to court for a rationale for a settlement." It can be difficult to explain to a judge how a particular figure is obtained, he says. "You have to keep in mind that there is a risk of non-approval and you have client obligations of confidentiality and privilege," he says. "When a judge presses you for the rationale, if you really throw back the curtain, you expose important weaknesses in a case that might not have been apparent [to defense counsel]." If it doesn't settle, he says, "you go in with a significantly weaker hand." The subject came up recently before Justice Edward Belobaba in Leslie v. Agnico-Eagle Mines, a securities class action that settled for $17 million. Justice Belobaba warned the bar to expect more scrutiny in settlements. "The judicial approval of class action settlements, especially securities settlements, leaves much to be desired. Judges should do more to ensure that a proposed settlement is in the best interest of a class," he wrote. He said the "core problem is that the only players at the settlement table -- the defendant (or their counsel) and class counsel -- have interests and incentives that can be aligned against the best interests of the class." He noted that under legislation, it's his job to ensure that a settlement is fair and reasonable and in the best interests of the class. "But how does a judge do this? Judges are not in a position to second-guess the actual amount of the proposed settlement. Nor should they do so." The best they can do, he wrote, is look for "structural indicators that suggest collusion or conflict of interest" and "satisfy themselves that the settlement amount falls within a zone of reasonableness." Robb, who was counsel on the case, filed an extensive supplementary factum to address concerns Justice Belobaba had raised at the settlement hearing and set out a list of structural indicators the court should look for that could call into question a settlement, including: a release of claims without payment; "nebulous non-monetary compensation" to which substantial value is attached to boost fees; or a reversionary interest to the defendant in settlement funds, especially when a portion goes back to class counsel. He also filed an extensive chart showing a settlement range in securities class suits. Justice Belobaba was satisfied with the amount and approved the settlement, but he asked whether it was time to appoint independent counsel paid for by both parties to provide a "much needed adversarial dimension to the settlement approval hearing." The best they can do, he wrote, is look for "structural indicators that suggest collusion or conflict of interest" and "satisfy themselves that the settlement amount falls within a zone of reasonableness." It's not just settlement amounts facing greater scrutiny. Justice Paul Perell used a November settlement ruling in the Visa and Mastercard merchant fees case, Bancroft-Snell v. Visa Canada Corporation, to pontificate upon the national class action conundrum. Although the ruling dealt with the settlement of a case certified in B.C., which covered Ontario, it was as much about Justice Perell's criticisms of counsel's strategy for dealing with the rival class actions and the steps they should have taken to knock out those suits that caught the bar's attention as it was about the fact that he refused to approve a fee-sharing agreement involving Merchant Law Group. MLG had filed rival cases in Alberta and Saskatchewan more than 15 months after the B.C. litigation, which was already moving toward certification. MLG agreed to stand down its actions in exchange for a cut of any settlement. Justice Perell took issue with that and prohibited the class consortium from paying MLG, finding the fee agreement was "unenforceable and may possibly be an illegal agreement." He warned the bar that champerty and maintenance was still alive and well in Ontario and paying an "intermeddler" in a lawsuit was frowned upon." * Accounting-Related Securities Class Action Filings Up in 2015 --------------------------------------------------------------- A new report from Cornerstone Research reveals that 2015 was the third consecutive year that the number of accounting-related filings increased. There were 71 securities class action filings with accounting allegations in 2015, according to Accounting Class Action Filings and Settlements -- 2015 Review and Analysis. "Not only did the number of accounting case filings increase in 2015, the market capitalization losses associated with those filings jumped as well," said Elaine Harwood, a vice president of Cornerstone Research and head of the firm's accounting practice. "The increase is attributable, in part, to accounting cases filed against NYSE-listed firms. The market capitalization losses associated with those filings more than doubled in 2015." Accounting case settlement dollars reached $2.6 billion in 2015. "The total settlement value for cases with accounting allegations in 2015 was almost three times the level for 2014," said Laura Simmons, a Cornerstone Research senior advisor. "Looking at overall settlement dollars for 2015, accounting cases represented 87 percent of the total value." Highlights The Disclosure Dollar Loss (DDL) Index(TM) for accounting cases filed in 2015 rose to $34.8 billion, the second largest amount in the last seven years. In 2015, 37 percent of accounting cases were filed in the Ninth Circuit -- more than any other circuit. The number of accounting cases against companies with headquarters outside the United States increased 43 percent to its second highest level in the last 10 years. Accounting cases against companies headquartered in China increased 75 percent from 2014 to 2015. Accounting case filings involving company announcements of internal control weaknesses were the highest in 10 years. The DDL Index for filings with allegations related to accounting restatements was smaller than for other types of accounting case filings in 2015. Accounting cases in 2015 had a median filing lag of eight days between the end of the alleged class period and the filing date of the lawsuit, the shortest in 10 years. In 2015, 86 percent of accounting case settlements involved allegations of internal control weaknesses -- the highest proportion in the last 10 years. For settled cases with GAAP allegations, settlement amounts were highest for matters involving write-downs. Following a sharp decrease in 2014, the proportion of accounting settlement dollars represented by financial firms led all sectors in 2015. This increase reflects 11 settlements averaging over $133 million. About Accounting Cases Cases are considered "accounting cases" if they involve allegations related to Generally Accepted Accounting Principles (GAAP) violations, auditing violations, or weaknesses in internal control over financial reporting. About Cornerstone Research Cornerstone Research provides economic and financial consulting and expert testimony in all phases of complex litigation and regulatory proceedings. The firm works with an extensive network of prominent faculty and industry practitioners to identify the best-qualified expert for each assignment. Cornerstone Research has earned a reputation for consistent high quality and effectiveness by delivering rigorous, state-of-the-art analysis for over 25 years. The firm has 600 staff and offices in Boston, Chicago, London, Los Angeles, New York, San Francisco, Silicon Valley, and Washington. Asbestos Litigation ASBESTOS UPDATE: CNA Fin'l Loss Portfolio Transfer $2.6-Bil. ------------------------------------------------------------ The cumulative amount ceded under CNA Financial Corporation's Loss Portfolio Transfer is $2.6 billion, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2015. The Company states, "We have exposures related to asbestos and environmental pollution (A&EP) claims, which could result in material losses. "Our property and casualty insurance subsidiaries have exposures related to A&EP claims. Our experience has been that establishing claim and claim adjustment expense reserves for casualty coverages relating to A&EP claims is subject to uncertainties that are greater than those presented by other claims. Additionally, traditional actuarial methods and techniques employed to estimate the ultimate cost of claims for more traditional property and casualty exposures are less precise in estimating claim and claim adjustment expense reserves for A&EP. As a result, estimating the ultimate cost of both reported and unreported A&EP claims is subject to a higher degree of variability. "On August 31, 2010, we completed a retroactive reinsurance transaction under which substantially all of our legacy A&EP liabilities were ceded to National Indemnity Company (NICO), a subsidiary of Berkshire Hathaway Inc., subject to an aggregate limit of $4 billion (Loss Portfolio Transfer). The cumulative amount ceded under the Loss Portfolio Transfer as of December 31, 2015 is $2.6 billion. If the other parties to the Loss Portfolio Transfer do not fully perform their obligations, net losses incurred on A&EP claims covered by the Loss Portfolio Transfer exceed the aggregate limit of $4 billion, or we determine we have exposures to A&EP claims not covered by the Loss Portfolio Transfer, we may need to increase our recorded net reserves which would result in a charge against our earnings. These charges could be substantial." CNA Financial Corporation and its subsidiaries provide products and services primarily marketed through independent agents, brokers and managing general underwriters to a wide variety of customers, including small, medium and large businesses, insurance companies, associations, professionals and other groups. ASBESTOS UPDATE: AO Smith Continues to Defend Asbestos Suits ------------------------------------------------------------ A.O. Smith Corporation continues to defend itself against proceedings involving exposures to asbestos, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2015. The Company states, "We are involved in various unresolved legal actions, administrative proceedings and claims in the ordinary course of our business involving product liability, property damage, insurance coverage, exposure to asbestos and other substances, patents and environmental matters, including the disposal of hazardous waste. Although it is not possible to predict with certainty the outcome of these unresolved legal actions or the range of possible loss or recovery, we believe, based on past experience, adequate reserves and insurance availability, that these unresolved legal actions will not have a material effect on our financial position or results of operations." A. O. Smith Corporation manufactures water heating equipment, serving a diverse mix of residential and commercial end markets principally in the United States with a growing international presence. Its company is comprised of one reporting segment: Water Products. The Company is based in Milwaukee. ASBESTOS UPDATE: Huntington Still Faces PI Cases at Dec. 31 ----------------------------------------------------------- Huntington Ingalls Industries, Inc., continues to face cases alleging exposure to asbestos-containing materials, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2015. The Company states, "HII and its predecessors-in-interest are defendants in a longstanding series of cases that have been and continue to be filed in various jurisdictions around the country, wherein former and current employees and various third parties allege exposure to asbestos containing materials while on or associated with HII premises or while working on vessels constructed or repaired by HII. The cases allege various injuries, including those associated with pleural plaque disease, asbestosis, cancer, mesothelioma and other alleged asbestos related conditions. In some cases, several of HII's former executive officers are also named as defendants. In some instances, partial or full insurance coverage is available to the Company for its liability and that of its former executive officers. The average cost per case to resolve cases during the years ended December 31, 2015, 2014, and 2013 was immaterial individually and in the aggregate. The Company's estimate of asbestos-related liabilities is subject to uncertainty because liabilities are influenced by numerous variables that are inherently difficult to predict. Key variables include the number and type of new claims, the litigation process from jurisdiction to jurisdiction and from case to case, reforms made by state and federal courts and the passage of state or federal tort reform legislation. Although the Company believes the ultimate resolution of current cases will not have a material effect on its consolidated financial position, results of operations, or cash flows, it cannot predict what new or revised claims or litigation might be asserted or what information might come to light and can, therefore, give no assurances regarding the ultimate outcome of asbestos related litigation." Huntington Ingalls Industries, Inc. (HII) designs, builds, overhauls and repairs ships for the United States Navy and the United States Coast Guard. The Company is the designer, builder and refueler of nuclear powered aircraft carriers, the builder of amphibious assault and expeditionary warfare ships for the United States Navy and the sole builder of National Security Cutters for the United States Coast Guard. The Company designs and builds nuclear-powered submarines for the United States Navy and builds the Navy's fleet of DDG51 Arleigh Burke-class destroyers. The Company operates its shipbuilding business through Huntington Ingalls Incorporated subsidiary, which is organized into two segments: Ingalls Shipbuilding (Ingalls), which includes non- nuclear ship design, construction, repair and maintenance businesses, and Newport News Shipbuilding (Newport News), which includes the nuclear ship design, construction, overhaul, refueling, and repair and maintenance businesses. ASBESTOS UPDATE: Colgate Settled 15 Talc Cases as of Dec. 31 ----------------------------------------------------------- Colgate-Palmolive Company settled 15 talc cases as of December 31, 2015, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2015. The Company states, "The Company is a defendant in a number of civil actions alleging that certain talc products it sold prior to 1996 were contaminated with asbestos. The Company is challenging these cases vigorously. As of December 31, 2015, 25 cases filed against the Company had been voluntarily dismissed and/or had final judgment entered in favor of the Company. In addition, as of December 31, 2015, the Company had settled 15 cases for amounts that are not material to the Company's results of operations. "As of December 31, 2015, there were 32 additional individual cases pending against the Company in state and federal courts in California, Delaware, the District of Columbia, Illinois, Indiana, Maryland, Massachusetts, Minnesota, Missouri, New Jersey, New York, South Carolina, Texas and Wisconsin. Thirteen of these cases were filed against the Company during the quarter ended December 31, 2015; all of these cases have multiple defendants named in addition to the Company. Some of the cases are expected to go to trial in 2016. While the Company and its legal counsel believe that these cases are without merit and intend to challenge them vigorously, there can be no assurances of the outcome at trial. Since the amount of any potential losses from these cases currently cannot be estimated, the range of reasonably possible losses in excess of accrued liabilities disclosed does not include any amount relating to these cases." New York-based Colgate-Palmolive Company makes and markets toothpaste and oral care products (mouthwashes, toothpaste, toothbrushes). The Company operates in more than 70 countries and sells its products in about 200 countries. ASBESTOS UPDATE: DCLLC Had 25K Active PI Claims at Dec. 31 ---------------------------------------------------------- Dana Holding Corporation's former unit, DCLLC, had approximately 25,000 active pending asbestos personal injury liability claims at December 31, 2015, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2015. The Company states, "As part of our reorganization in 2008, assets and liabilities associated with personal injury asbestos claims were retained in Dana Corporation which was then merged into Dana Companies, LLC (DCLLC), a consolidated wholly-owned limited liability company. The assets of DCLLC include insurance rights relating to coverage against these liabilities, marketable securities and other assets which are considered sufficient to satisfy its liabilities. DCLLC had approximately 25,000 active pending asbestos personal injury liability claims at both December 31, 2015 and 2014. "DCLLC had accrued $78 million for indemnity and defense costs for settled, pending and future claims at December 31, 2015, compared to $81 at December 31, 2014. A fifteen-year time horizon was used to estimate the value of this liability. "At December 31, 2015, DCLLC had recorded $51 million as an asset for probable recovery from insurers for the pending and projected asbestos personal injury liability claims, compared to $52 million recorded at December 31, 2014. The recorded asset represents our assessment of the capacity of our current insurance agreements to provide for the payment of anticipated defense and indemnity costs for pending claims and projected future demands. The recognition of these recoveries is based on our assessment of our right to recover under the respective contracts and on the financial strength of the insurers. DCLLC has coverage agreements in place with insurers confirming substantially all of the related coverage and payments are being received on a timely basis. The financial strength of these insurers is reviewed at least annually with the assistance of a third party. The recorded asset does not represent the limits of our insurance coverage, but rather the amount DCLLC would expect to recover if the accrued indemnity and defense costs were paid in full." "DCLLC continues to process asbestos personal injury claims in the normal course of business, is separately managed and has an independent board member. The independent board member is required to approve certain transactions including dividends or other transfers of $1 or more of value to Dana. Dana Holding Corporation has no obligation to increase its investment in or otherwise support DCLLC. "In 2013, other income includes proceeds of $4 million from the sale of our interest in claims pending in the liquidation proceedings of an insurer and other asbestos-related recoveries of $7 million." Dana Holding Corporation (Dana Holding) is a global provider of technology driveline, sealing and thermal-management products. The Company's driveline products include axles, driveshaft and transmissions. The Company operates in four business segments: Light Vehicle, Commercial Vehicle, Off-Highway and Power Technologies. Under Light Vehicle segment, the Company provides front and rear axles, driveshafts, differentials, torque couplings and modular assemblies. Under Commercial Vehicle segment, the Company offers axles, driveshafts, steering shafts, suspensions and tire management systems. Under Off-Highway segment, the Company's products include axles, driveshafts and end-fittings, transmissions, torque converters and electronic controls. Under Power Technologies segment, the Company offers gaskets, cover modules, heat shields, engine sealing systems, cooling and heat transfer products. ASBESTOS UPDATE: Flowserve Still Faces PI Suits at Dec. 31 ---------------------------------------------------------- Flowserve Corporation continues to face asbestos-related personal injury lawsuits at December 31, 2015, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2015. The Company states, "We are a defendant in a substantial number of lawsuits that seek to recover damages for personal injury allegedly caused by exposure to asbestos-containing products manufactured and/or distributed by our heritage companies in the past. While the overall number of asbestos-related claims has generally declined in recent years, there can be no assurance that this trend will continue, or that the average cost per claim will not further increase. Asbestos-containing materials incorporated into any such products were encapsulated and used as internal components of process equipment, and we do not believe that any significant emission of asbestos fibers occurred during the use of this equipment. "Our practice is to vigorously contest and resolve these claims, and we have been successful in resolving a majority of claims with little or no payment. Historically, a high percentage of resolved claims have been covered by applicable insurance or indemnities from other companies, and we believe that a substantial majority of existing claims should continue to be covered by insurance or indemnities. Accordingly, we have recorded a liability for our estimate of the most likely settlement of asserted claims and a related receivable from insurers or other companies for our estimated recovery, to the extent we believe that the amounts of recovery are probable and not otherwise in dispute. While unfavorable rulings, judgments or settlement terms regarding these claims could have a material adverse impact on our business, financial condition, results of operations and cash flows, we currently believe the likelihood is remote. "Additionally, we have claims pending against certain insurers that, if resolved more favorably than reflected in the recorded receivables, would result in discrete gains in the applicable quarter. We are currently unable to estimate the impact, if any, of unasserted asbestos-related claims, although future claims would also be subject to then existing indemnities and insurance coverage." Flowserve Corporation is a manufacturer and aftermarket service provider of comprehensive flow control systems. ASBESTOS UPDATE: Minerals Technologies Had 13 Cases at Dec. 31 -------------------------------------------------------------- Minerals Technologies Inc. had 13 pending asbestos cases at December 31, 2015, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2015. The Company states, "Certain of the Company's subsidiaries are among numerous defendants in a number of cases seeking damages for exposure to silica or to asbestos containing materials. The Company currently has 30 pending silica cases and 13 pending asbestos cases. To date, 1,465 silica cases and 46 asbestos cases have been dismissed, not including any lawsuits against AMCOL or American Colloid Company dismissed prior to our acquisition of AMCOL. One new asbestos case and no new silica cases were filed in the fourth quarter of 2015. One silica case was dismissed during the fourth quarter of 2015. "Most of these claims do not provide adequate information to assess their merits, the likelihood that the Company will be found liable, or the magnitude of such liability, if any. Additional claims of this nature may be made against the Company or its subsidiaries. At this time management anticipates that the amount of the Company's liability, if any, and the cost of defending such claims, will not have a material effect on its financial position or results of operations. "The Company has settled only one silica lawsuit, for a nominal amount, and no asbestos lawsuits to date (not including any that may have been settled by AMCOL prior to completion of the acquisition). We are unable to state an amount or range of amounts claimed in any of the lawsuits because state court pleading practices do not require identifying the amount of the claimed damage. The aggregate cost to the Company for the legal defense of these cases since inception continues to be insignificant. The majority of the costs of defense for these cases, excluding cases against AMCOL or American Colloid, are reimbursed by Pfizer Inc. pursuant to the terms of certain agreements entered into in connection with the Company's initial public offering in 1992. Of the 13 pending asbestos cases all except one allege liability based on products sold largely or entirely prior to the initial public offering, and for which the Company is therefore entitled to indemnification pursuant to such agreements. The one exception pertains to a pending asbestos case against American Colloid Company. Our experience has been that the Company is not liable to plaintiffs in any of these lawsuits and the Company does not expect to pay any settlements or jury verdicts in these lawsuits." Minerals Technologies Inc., is a resource and technology-based company. The Company develops, produces and markets mineral, mineral-based and synthetic mineral products and supporting systems and services. The Company operates in five segments, including Specialty Minerals, Refractories, Performance Materials, Construction Technologies and Energy Services. The Specialty Minerals segment is engaged in producing and selling of the synthetic mineral product precipitated calcium carbonate (PCC). The Refractories segment produces and markets monolithic and shaped refractory materials and specialty products. The Performance Materials segment is engaged in supplying bentonite and bentonite-related products. The Construction Technologies segment provides products for non-residential construction, environmental and infrastructure projects. The Energy Services segment offers technologies, products and services for all phases of oil and gas production. ASBESTOS UPDATE: AT&T Unit Subject to Inquiry Over Removal ---------------------------------------------------------- AT&T, Inc.'s subsdiary, Cricket Communications, Inc., is subject to an inquiry by the San Diego County over alleged violations of regulations governing removal of asbestos-containing materials, according to AT&T's Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2015. The Company states, "In February 2014, the San Diego County Air Pollution Control District initiated investigation into alleged violations of California regulations governing removal, handling and disposal of asbestos containing materials arising from an independent dealer's demolition and construction activity in preparation to install upgraded point of purchase and fixtures in accordance with Cricket Dealer Guidelines. While the independent dealer was in sole control of contractors performing the work at issue, the County has focused on Cricket Communications dealer agreement terms and interactions with the independent dealer as a basis for asserting direct liability against Cricket Communications, Inc. After exchanges of information and discussions, in November 2015, the County issued a penalty demand in excess of one hundred thousand dollars. We continue communications with the County with a view for resolution of this matter, and in no event expect monetary settlement amounts including penalties will be material." Cricket Communications, LLC is a wireless/cell phone company. The company offers prepaid phones and plans. ASBESTOS UPDATE: EPA Probes Dumping from Mill West Building ----------------------------------------------------------- Mark Hayward, writing for New Hampshire Union Leader, reported that the EPA has undertaken an investigation into the alleged dumping of toxic sandblasting grit last year from the Brady Sullivan-owned Mill West properties at a mill complex in Lawrence, Mass. New Hampshire Public Radio reported about emails exchanged in September among New Hampshire officials, Massachusetts environmental officials and the U.S. Environmental Protection Agency. The emails discuss "black beauty" sandblast grit that had been discovered at the Pacific Mills Industrial Complex in Lawrence. The grit tested at 70 percent chrysotile asbestos -- the most common form of the substance -- and an informant had told officials with the Massachusetts Department of Environmental Protection that it had come from Mill West in Manchester, according to the emails published by NHPR. The informant said some of the 10 truckloads of grit from Manchester had been disposed of in the basement cement of a Lawrence building; several piles were found outside the mill building. In a statement, Brady Sullivan said it leases a portion of the Pacific Mills complex. "Brady Sullivan has performed an initial investigation regarding the allegations contained in the NHPR report. As of this time, we are highly confident that Brady Sullivan has engaged in no wrongdoing, or illegal activity, at the Pacific Mills project in Lawrence, Massachusetts," the company said in an email to the Union Leader on Tuesday. The company said officials spoke with the Massachusetts DEP, and it is not uncommon for rogue contractors to illegally dump material; Brady Sullivan does not know where the material came from, the company said in a statement. At the direction of the Massachusetts DEP, Brady Sullivan's contractor has placed the material in 55-gallon drums and is awaiting permission to properly dispose of it, the company said. In an email to the Union Leader on Tuesday, the EPA said it "does not comment on or discuss ongoing investigations. We'll be sure to get you anything if/when we have something." If the information turns out to be correct, it represents a ratcheting up of health and environmental concerns to emerge from the Mill West complex, which Brady Sullivan has converted into upscale residential lofts and offices for government and non- profit organizations. Last year, Manchester and New Hampshire officials forced Brady Sullivan Properties to shut down a contractor's sandblasting operation and clean many apartments after residents found high levels of lead in stairwells and apartments at the Mill West complex. Forty-four tenants have since sued Brady Sullivan Properties, one of the largest commercial property owners in Manchester. The sandblasting operation was run by Environmental Compliance Specialist Inc., according to previous news accounts. Environmental Compliance Specialist Inc. is the contractor identified in a September email that the Massachusetts DEP sent to New Hampshire officials who oversaw the Mill West cleanup. The DEP had spoken to a confidential informant who said the black beauty grit had come from Mill West. "Please let me know if you saw anything like this up there and what (contractor) ECSI said they did with the spent black beauty and asbestos," reads an email from the DEP to New Hampshire state officials. Within a day, criminal and civil investigators with the EPA were holding a teleconference with environmental and health regulators in both states. And the EPA was asking for photos of the sandblast debris at Mill West. "In regard to allegations concerning Brady Sullivan/ECSI, to include allegations of illegal disposal of lead and asbestos in the Lawrence, Mass. area, several of us thought a conference call to discuss the current status of both the civil and criminal investigations at the federal and state made sense," wrote Tyler Amon, special agent in charge of the EPA Criminal Investigation Division, on Sept. 23. The teleconference was scheduled for the following day. Meanwhile, the lawyer handling the tenants suit against Brady Sullivan said the emails raise additional concerns for his clients. While Brady Sullivan has cleaned and retested the properties for lead, no mention was made of asbestos at the time. "This puts another whole level on it," said Christopher Seufert of Franklin. "Asbestos exposure, it's a 20- to 30-year incubation period before you get lung cancer." He said the trial in the civil suit is scheduled for December. ASBESTOS UPDATE: Council Leader Wants EPA Probe of Music Hall ------------------------------------------------------------- Kenneth C. Crowe II, writing for Times Union, reported that City Council President Carmella Mantello has asked the federal government to investigate "significant asbestos issues" at the Troy Saving Bank Music Hall Building. "It's my duty to approach the EPA," Mantello said, citing the environmental contamination and public health problems in Hoosick Falls and Flint, Mich. Mantello wrote the U.S. Environmental Protection Agency regional office in New York City after reviewing documents associated with reducing the tax assessment for the music hall building and other properties by about 80 percent. "I would submit that the amount of asbestos labeled as 'significant' in the basement of these buildings should be investigated," Mantello wrote Judith Enck, the EPA's regional administrator. "In fact, the said correspondence states that an offer in the past to buy these buildings was withdrawn due to concerns regarding remediation costs associated with the buildings. I believe to ensure that the significant asbestos in these buildings does not cause harm to the environment or individuals that this should and must be investigated," Mantello continued. The City Council voted 7-2 to table the measure that called for reducing the combined tax assessment from $1.795 million to $340,000. The First Niagara Bank-owned properties involved are the buildings at 32 Second St. and 14 First St. and parking and building at 44- 48 Second St. Corporation Counsel Kevin Glasheen said the asbestos posed no threat to the music hall and the bank buildings. The asbestos, he said, is located in the basement and would have to be remediated if the space was developed. Glasheen said the assessment reduction request was due to the expense of maintaining the building in which the music hall is located, the difficulty in finding a buyer and the potential asbestos remediation costs. Since First Niagara Bank closed its offices in the building, there has been no rental income and only one purchase offer that was withdrawn, according to documentation supporting the assessment reduction provided by Glasheen's office. "Although the property was subsequently marketed and listed, it sparked little market interest due to significant asbestos issues in the basement, limited parking and the associated financial burden of paying for upkeep of the Troy Music Hall," the memo said. Councilman Robert Doherty, whose district includes the music hall, said the asbestos is not a current public health threat. "When we're talking about the value of the music hall, asbestos is a minor issue," Doherty said. If the city does not approve the proposed property tax settlement, the case challenging the tax assessment would go to trial in July. ASBESTOS UPDATE: Ind. High Court Ruling Opens Door to More Suits ---------------------------------------------------------------- Taryn Phaneuf, writing for Legal Newsline, reported that former manufacturers and sellers of products containing asbestos will likely see more claims filed under the Indiana Product Liability Act after the state Supreme Court determined the law's statute of repose doesn't apply to asbestos claims. Jeffrey Stemerick, an environmental litigation lawyer in Indianapolis, told Legal Newsline he was surprised by the court's decision, which concluded a section of the law that previously limited asbestos-related claims was unconstitutional. "The Indiana Supreme Court is very stable and well-regarded," said Stemerick, an associate at Taft Law. "While it does not hesitate to change the common law when it becomes outdated or strike down laws that are unconstitutional, it is unusual for it to change directions twice within such a short timeframe." Section 2 of the state law allowed claims against defendants who both mined and sold asbestos, which leaves out defendants who sold products containing the mineral that is known to cause mesothelioma. Under section 2, those limited asbestos claims differed from other product liability claims because they weren't subject to a 10-year statute of repose. Instead, those certain asbestos claims could be brought after 10 years had passed since the product was sold as long as it was filed within two years of plaintiff learning of a related sickness. A 2003 court decision determined that claims against defendants that hadn't both mined and sold asbestos were subject to Section 1 of the state law and its 10-year statute of repose. In a decision combining three separate appeals, an electrician and an electric company employee filed suit for damages because of asbestos-related diseases. Larry Myers worked as an electrician for 40 years before retiring in 1999. He was diagnosed with malignant pleural mesothelioma in 2014. Raymond Geyman was exposed to asbestos when he worked at an electric utility company from 1955 to 1970. He was diagnosed with mesothelioma in 2007 and died in 2008. Litigation continued on behalf of his estate. The crux of the case came in the argument that Section 2 did not provide equal privilege to asbestos plaintiffs because asbestos- related injuries often don't manifest until long after exposure. "The practical effect of the enactment of Section 2 was to bar many claims brought against sellers of asbestos-containing products because the asbestos injury typically would not manifest within Section 1's 10-year statute of repose," Stemerick said. The Supreme Court determined that treating potential asbestos plaintiffs unequally violates the state's constitution. Thus, the recent suit invalidated Section 2 of the law. After throwing out the asbestos-specific facet of the law, the Supreme Court turned to another precedent-setting decision. In Covalt v. Carey Canada, Inc., the Supreme Court determined that a plaintiff can bring a suit within two years of discovering a disease even if it's been 10 years since they were last exposed to the product. The ruling was limited to cases involving a disease contracted after prolonged exposure to a foreign substance. "Thus, neither Section 2 nor Section 1's 10-year statute of repose currently applies to asbestos claims," Stemerick said. "Defendants who sold asbestos-containing products will now be exposed to liability for injuries caused by their products even when those products were delivered more than 10 years ago." ASBESTOS UPDATE: Asbestos Victim Helps Lobby for Funding -------------------------------------------------------- Emma Macdonald, writing for The Canberra Times, reported that Serafina Salucci was just seven when she helped her dad build a garage in their Sydney backyard using the common building material of bonded asbestos sheeting. But in 2007, at the age of 37, a persistent cough sent her to the doctors where a scan of her lung confirmed the deadly cancer mesothelioma. Given her lack of exposure to any other form of asbestos, the most likely explanation is a tiny fibre entered her young lung during the backyard renovation, where it lay dormant for 30 years. But Ms Salucci considers herself one of the lucky ones. The average time between diagnosis of mesothelioma and death is just two years. She has survived nine. And she has watched her four children -- the youngest was three when she was diagnosed - reach milestones she never thought possible. With one lung removed, too many surgeries to list, and bouts of chemotherapy and radiation therapy behind her, Ms Salucci lives as full a life as she can between her six-monthly scans. And on Monday, she did something she never thought she would do -- come to Federal Parliament to plead for funding for the national effort against Australia's asbestos legacy. Ms Salucci was joined by asbestos advocates, legal and union representatives from across Australia -- all of whom have banded together to call on the Turnbull Government to approve $3 million in funding for the Asbestos Safety and Eradication Agency. The money was budgeted to go to the agency after 2013 when it was established with bipartisan support. But it was returned to Treasury when the agency did not spend it within an allocated time. According to Asbestos Diseases Foundation of Australia president Barry Robson, who is also a member of the Asbestos Safety and Eradication Advisory Council, the agency is now significantly underfunded and does not have the budget to implement the National Strategic Plan, signed off by all state and territory governments last year. Mr Robson said it was a case of bureaucracy gone mad. He said some of the reasons the money was not spent in time, included staffing issues due to a hiring freeze under Tony Abbott. Then the agency had to help coordinate a national response to the National Broadband roll-out when telecommunications technicians found themselves working in asbestos lined cable pits. Agency head Peter Tighe helped bring Canberra's Mr Fluffy asbestos crisis to a head when he intervened in 2014 to call for all homes to be demolished on public safety grounds despite ACT Government protestations at the time that homes were safe. In March, Employment Minister Michaelia Cash called for review of the agency's funding. A spokesman for Senator Cash said: "The Government has not cut the funding of the Asbestos Safety and Eradication Agency. The agency's funding has been maintained at the level set by the former Labor government. "The Labor Government provided the funding on the basis that the setup costs would reduce after the early years and the agency would then focus on its coordination role, working with the states and territories to implement ASEA's National Strategic Plan." Budget rules across all government agencies do not allow agencies to keep underspends from one year and reallocate them to subsequent years. But Mr Robson said the politics of the situation could put public safety at risk. Some of the projects that are currently on hold include a mobile phone app assisting homeowners identify asbestos, a program to remove asbestos in indigenous communities, a pilot project to develop safety certificates that identify asbestos in the home ahead of sales or renovation work, and improved coordination with Border Force to stop illegal importation of products containing asbestos. ASBESTOS UPDATE: Electrician Dies After Asbestos Exposure --------------------------------------------------------- Southern Daily Echo reported that a retired electrician died of cancer after coming into contact with asbestos in his working life. Winchester Coroner's Court heard how Robert Payne, from Testwood Lane in Totton, worked at a tar distillery in Totton in the 1960s. At the time, Mr Payne, who died aged 69, worked in a boiler room which had a boiler and pipes lagged with asbestos. One of his jobs was to install copper cables which involved mixing asbestos powder. In in a past statement he said he would spend a lot of time with laggers who were covered in asbestos. In 1967 he started working in a factory where he also came into contact with the substance. Mr Payne developed a cough which was later diagnosed as mesothelioma in October 2014. He later died at Countess Mountbatten Hospice on January 22. Senior coroner Grahame Short recorded a death due to industrial disease. ASBESTOS UPDATE: W. Va. DEP Satisfied with City's Response ---------------------------------------------------------- Evan Bevins, writing for Parkersburg News and Sentinel, reported that the West Virginia Department of Environmental Protection approves of the way the city dealt with the discovery of a pipe containing asbestos at the Point Park Marketplace. "The asbestos situation was handled by the city to our satisfaction," Kelley Gillenwater, chief communications officer for the DEP, said via email Tuesday. A DEP inspector met with Parkersburg Mayor Jimmy Colombo and Code Enforcement Director Gary Moss on Thursday, two days after city officials were notified the pipe had been found by a vendor clearing out his space at the market, located at 113 Ann St. On that day, April 12, Empire Builders owner Hank Oldaker, who is certified in asbestos abatement, oversaw removal of the pipe, which had apparently been used as part of a gas vent from a hot water tank that had been replaced. Oldaker said the pipe was non- friable, meaning it would not crumble or be reduced to powder by hand pressure. The next day, air quality tests were performed by Best Home Inspections of St. Albans. The results detected 0.001 fibers per cubic centimeter. Company owner Arvin Gibbs said that did not necessarily mean asbestos fibers and the results indicated "almost perfectly clear air." The acceptable clearance level is 0.01, he said. Gillenwater said the DEP inspector indicated the city had handled the situation "in a good manner before we could even get there" and the actions taken are what the department would have requested once it investigated the complaint. "It's perfectly clean and safe. That's what this is all about," Colombo said. John Wiseman, whose business, Lapping the Couch Adventures, closed at the market earlier this month, alerted the DEP after finding the pipe. He also expressed concern that two similar pipes had been left in the building and covered with blown-in insulation. Oldaker said he did not find any indication of that. The discovery of the pipe was discussed during the City Council meeting, during which council voted 4-3, with two members recusing themselves, to approve a five-year lease of the market building with vendors Marvin Edwards and James Kincaid. Colombo said he expects the lease to be signed. ASBESTOS UPDATE: Criminal Probe Possible at Brady Sullivan Site --------------------------------------------------------------- Jack Rodolico, writing for New Hampshire Public Radio, reported that responding to a confidential tip, last fall a Massachusetts investigator went to Pacific Mills in Lawrence and found piles of contaminated debris. The informant alleged the debris had been illegally transported across state lines from New Hampshire. Working on a tip from a confidential source, federal and state regulators investigated how piles of asbestos-laden debris ended up in Lawrence, Mass. outside a building owned by Brady Sullivan Properties, one of New Hampshire's largest real estate developers. Investigators with the Environmental Protection Agency and the Massachusetts Department of Environmental Protection have raised questions about whether the toxic debris was illegally moved across state lines from New Hampshire. Brady Sullivan is the subject of ongoing investigations by the two agencies, although neither would confirm the nature of the investigations. But emails obtained by NHPR describe a tip that led a Massachusetts state investigator to the Pacific Mills Industrial Complex in Lawrence, where the inspector found hazardous waste, including asbestos. The investigator contacted four more environmental and public health agencies across New Hampshire, Massachusetts and the federal government. State and federal authorities were already investigating Brady Sullivan's conduct at another site the company was developing: Mill West in Manchester. In June of 2015, EPA ordered Brady Sullivan to clean up hazardous lead dust from dozens of apartments in Mill West. In emails obtained by NHPR, a federal agent referred to "criminal investigations" of Brady Sullivan and a subcontractor, Environmental Compliance Specialists, Inc., or ECSI, who is linked to both Mill West and the Pacific Mills development sites. Tim Dame, an investigator with the Massachusetts Department of Environmental Protection, told state and federal colleagues in an email that the cases in Manchester and Lawrence might be connected. "We have a confidential informant . . . that is saying that up to 10 truckloads of black beauty sandblast grit with lead paint chips and asbestos from [Mill West in Manchester] was disposed of in Pacific Mills in Lawrence about 2 to 3 months ago in the basement cement," Dame wrote in an email. The emails do not say if authorities determined the source of the hazardous waste, or if they dug up the basement cement in search of lead and asbestos. They also do not describe any further legal response. Brady Sullivan responded to NHPR by saying it knew nothing of the materials investigators found until MassDEP informed the company. "Brady Sullivan does not know where the materials came from and believes that its environmental contractors always dispose of all materials in a safe, legal and regulated manner," the statement says. "A confidential informant" Emails sent between state and federal regulators describe the following narrative: Last fall, an employee of a Brady Sullivan subcontractor contacted the Massachusetts Department of Environmental Protection. That person is referred to in the emails as "a confidential informant." The informant told MassDEP that construction debris had been transported that past summer from Mill West in Manchester to the Pacific Mills Industrial Complex in Lawrence, Mass. Brady Sullivan is currently renovating both of these properties, converting historic mills into luxury lofts. Without alerting the landlord to the complaint, MassDEP investigator Tim Dame visited the Lawrence site. He went to Building 3, where the confidential informant claimed Dame would find several piles of contaminated debris. According to emails, Dame did find the debris, and the piles included what he called "small squares of pink material with paper backing." Dame tested those pink squares, and the results showed the material was mostly asbestos. Dame took photos of the debris, and tested for lead as well. The lead results were not immediately available. "Motivation to bury it in a floor" Within hours, a handful of state and federal agencies were trying to learn more about what Dame had found in Lawrence -- and if it was connected to the site in Manchester. On September 23, Dame sent an email to colleagues from the federal Environmental Protection Agency and two New Hampshire agencies, the Department of Environmental Services and the Department of Health and Human Services. "Also, as you know," Dame wrote, "it is much more expensive to get rid of asbestos than regular solid waste so some motivation to bury it in a floor is there." Dame emailed photos of the debris outside Building 3 to his colleagues, writing, "I would be interested to know of any records of testing or disposal of shotblast from the Manchester mill site...." A criminal investigator with EPA quickly organized a conference call, looping in the federal Department of Labor's Occupational Safety and Health Administration. The subject of the call: Brady Sullivan and one of its subcontractors, Environmental Compliance Specialists, Inc., or ECSI. That subcontractor was linked to the Brady Sullivan sites in Lawrence and Manchester. "Folks," wrote EPA Special Agent Tyler Amon to his state and federal colleagues, "in regards to allegations concerning Brady Sullivan/ECSI, to include allegations of illegal disposal of Lead and asbestos in the Lawrence, MA area, several of us thought a conference call to discuss the current status of both civil and criminal investigations at the federal and state made sense." Prior problems with arsenic, cadmium and lead Brady Sullivan Properties, based in Manchester, has taken on many renovation jobs in recent years, transforming dilapidated New England mills into high-end commercial and residential space. Rent for a loft in a converted Brady Sullivan mill tops out around $2,500 per month. But the conversions themselves are complex and costly, in part because old mills are full of toxic material that can be expensive to dispose of in a safe, legal manner. Brady Sullivan and ECSI had recently run afoul of some of those regulations. According to state and federal officials, Brady Sullivan hired ECSI to do a demolition job at Mill West in Manchester last May. The contractor sandblasted lead paint off the walls using a demolition material called Black Beauty. Residents in dozens of apartments were exposed to toxic lead dust. The City of Manchester reported ECSI lacked the required permits, and EPA found the company lacked the necessary employee training to deal with lead. An NHPR investigation last year found that after the lead exposure occurred, Brady Sullivan downplayed the health risks posed by the dust to its tenants. ECSI was subsequently fined $19,600 by OSHA for exposing its workers to arsenic, cadmium and lead at Mill West; those penalties were later reduced to $12,250. ECSI's website has since been taken down, and the company's corporate filings with the state of New Hampshire have not been renewed. Attempts to call ECSI led to full voicemail boxes. EPA ordered Brady Sullivan to clean up the mess at Mill West in Manchester. A tenants group has sued Brady Sullivan and ECSI in Hillsborough County Superior Court. "Far-fetched" claims Last September in Lawrence, MassDEP investigator Tim Dame questioned the owner of ECSI, Jesse Wright. In an email last September, Dame said Wright made conflicting claims about how the material got to Lawrence. Dame wrote he found the explanations "far-fetched." Dame also questioned a Brady Sullivan supervisor. In that same email Dame wrote that the supervisor "briefly mentioned that ECSI may have 'brought some fill in.'" Almost six months later in March of this year, an ECSI trailer still sat outside Building 3 in Pacific Mills in Lawrence. The trailer's doors were padlocked and the tires were flat and blocked off with bricks. In its statement to NHPR, Brady Sullivan says it placed the material in 55-gallon drums under the supervision of MassDEP. Those drums remain on site at Pacific Mills in Lawrence. "Brady Sullivan is awaiting permission from the MassDEP to have its environmental contractor properly dispose of the materials," the statement says. ASBESTOS UPDATE: Man Fined $24,000 for Unsafe Removal ----------------------------------------------------- Safety Culture reported that the Industrial Court convicted an asbestos removalist of seven counts of unsafe asbestos removal work. The man entered a guilty plea and was convicted undertaking Class A asbestos removal work without authorization, failing to engage a suitably qualified person to carry out mandatory air monitoring and clearance inspection, providing false and misleading documentation to the regulator, and failing to provide the homeowner with a copy of the Asbestos Removal Control Plan before starting work. An initial fine of $40,000 was reduced to $24,000 plus court costs because of his early guilty plea. In addition to the fine, the man's licence was cancelled and he was disqualified from applying for a new licence for three years. He was also required to train before re-applying. "By his action the defendant has effectively lost his business and any income that he might have derived from that business," said Industrial Magistrate Ardlie. "Whenever asbestos is involved, the health and safety of workers as well as other people, including neighbouring property owners, is of paramount importance," said Ms Marie Boland, Executive Director of SafeWork SA. "SafeWork SA is prepared to cancel licences, or seek disqualification from holding a licence, where that's in the best interest of the wider community." ASBESTOS UPDATE: Mesothelioma Victim's Family Appeals for Info -------------------------------------------------------------- Nick Spoors, writing for Northampton Chronicle & Echo, reported that a grieving brother and sister are appealing for help after their mum, a former factory worker, died after suffering from an asbestos-related cancer. Cherrill Bradshaw, from Northampton, passed away at the age of just 62 in October 2014 leaving a devastated son, Gary, and daughter, Lisa. They have instructed specialist lawyers to investigate conditions at three places she worked at to see if a presence of asbestos led to her being diagnosed with mesothelioma decades after her employment. As part of their investigations, the lawyers urgently want to speak to anyone who worked with Cherrill during a career which included roles firstly as a machinist and then as a supervisor in factories around her local town. In particular, they want to hear from anyone with knowledge of a fire in an adjoining factory at Barratts shoes in the 1980s, which led to damage next door where Cherrill was part of a team tasked with the clean-up process. Even though not everywhere in the factory suffered damage, dust from the fire spread to all the areas they were required to clean. Lawyers Irwin Mitchell claim it was "dusty and dirty work" and Cherrill had to sweep up and dust down the machines and work benches. The solicitors are also looking into whether, prior to this, in the late 1970s, there was asbestos around pipes in two other factories where Cherrill working as a machinist. Kim Barrett, a specialist asbestos lawyer at Irwin Mitchell who is representing Cherrill's children, said: "We now see on a daily basis the devastating impact exposure to asbestos years ago is having on thousands of people's lives. "This tragic case has left a son and daughter searching for answers after losing their mum unexpectedly and far too soon. Although we cannot change the past, we can investigate working conditions and see whether Cherrill and other employees were safeguarded from the deadly dust or if more could have been done to keep her safe." Lisa, 44, said: "My mum worked very hard all her life, both at home and work, to bring up her children and support her family. "As retirement approached she was suddenly diagnosed with mesothelioma which turned our family upside down and left us devastated. "Watching her last months was incredibly upsetting and the least we now deserve is answers to tell us what caused her to develop such a painful illness. "If you have any information that could help then we'd really appreciate your support." Anyone who worked with Cherrill and has information on the presence of asbestos can call Kim Barrett on 0121 214 5211 or email kim.barrett@irwinmitchell.com ASBESTOS UPDATE: Client Fined Over Pre-Construction Info -------------------------------------------------------- Philip Poynter Construction Safety reported that a construction project client has been fined alongside an appointed contractor after asbestos was disturbed during refurbishment work between June and August 2014. Westminster Magistrates' Court heard how two employees of 24-Hour Maintenance Services Limited disturbed asbestos insulating board (AIB) whilst undertaking work at a former commercial premises undergoing conversion residential flats, in Romford, London. HSE investigators found that the client failed to pass on the details of the presence of asbestos to the contractor despite knowledge of this fact. Asbestos can be found in any building built before the year 2000. A refurbishment/demolition asbestos survey is required where the premises, or part of it, need upgrading, refurbishment or demolition. Significant exposure to asbestos fibres A refurbishment and demolition survey was not conducted to determine the presence of asbestos on the site. The two workers removed AIB without any effective precautions and therefore received significant exposure to asbestos fibres. Firestone Estates Limited -- of Watford, Hertfordshire pleaded guilty to breaching Regulation 10(1)(b) of the Construction (Design and Management) Regulations 2007 and were fined GBP10,000 and were ordered to pay GBP1020.64 in costs with a GBP1,000 victim surcharge. CDM 2007 Regulation 10 required that the project client must provide designers and contractors with the required Pre- construction Information. This duty has now been replaced by new duties under CDM 2015. 24-Hour Maintenance Services Limited -- of Borehamwood, Hertfordshire pleaded guilty to breaching Section 2(1) of the Health and Safety at Work etc Act 1974 and were fined GBP5,000 with GBP974.44 in costs and a victim surcharge of GBP500. ASBESTOS UPDATE: Court Says Saleman Wasn't "Sophisticated User" --------------------------------------------------------------- Jessica Dye, writing for Reuters, reported that a California jury erroneously found that a salesman who spent years peddling asbestos-containing products to industrial facilities was a "sophisticated user" and therefore did not need to be warned about the substance's health risks, a state appeals court has ruled. California's Second District Court of Appeal said that Foster Wheeler Energy Corp, a subsidiary of engineering conglomerate Amec Foster Wheeler, had not presented sufficient evidence that plaintiff Richard Moran, by virtue of his job, would have been aware that asbestos exposure can cause mesothelioma, a deadly cancer. ASBESTOS UPDATE: Dying Kiwi Wins Payouts for Exposure ----------------------------------------------------- Deidre Mussen, writing for Sunday Sun Times, reported that it's in Des Sayegh's nature to help others, but his work rebuilding cyclone-ravaged Western Australia nearly 40 years ago is helping to kill him. The 81-year-old Aucklander has just won a confidential payout from Australia for asbestos exposure while working as a cabinet maker and carpenter in 1978 around Nyabing, a tiny township about 300km south-east of Perth. Last April, his nagging cough was diagnosed as mesothelioma, a fatal cancer of mesothelial cells that line a person's lungs and abdominal cavity, caused by inhaling asbestos fibres. "We never wore masks or ear muffs in those days because it was just sort of unheard of -- you'd have felt a bit of a fool going around with those things on in those days, as stupid as it is now, but that's the way it was then." Nobody knows whether he breathed the killer fibres during his 11 months in Australia or his many decades working in New Zealand's building industry. Regardless, his asbestos-related disease makes him eligible for compensation on both sides of the Tasman, including a lump sum of about $100,000 from ACC in New Zealand and the Australian out-of- court settlement from the asbestos product's manufacturer, which cannot be named because of a confidentiality clause. He has unwittingly inhaled asbestos dust over many years while sawing building products containing asbestos, starting when he was an apprentice in the 1950s in Auckland. At the start of 1978, his then-teenage son, Mark, encouraged his Dad to join him in Western Australia for work, so he moved there with his teenage daughter, Debbie. Within a few months, in March 1978, Cyclone Alby struck, causing massive damage to buildings in the state, creating a surge of demolition and building work. Eventually, his wife, Ann, and their two younger children joined them in Australia. Des fears his entire family has been exposed to asbestos because his son worked with him for two years and his family had close contact with him at work plus his work clothes. "When you come home from work, you could be covered in the stuff. My wife would chuck my clothes in the washing machine and from memory, you could almost see the fibres on the shirts and things like that." After last year's diagnosis, ACC swiftly offered lump sum compensation and other support, including taxi chits for medical appointments, home help and home equipment for his declining health. But it was luck Des heard about Australian compensation after his daughter ordered a free copy of the book Surviving Mesothelioma off the internet, not realising an Australian law firm was the sponsor. A few days later, top Australian asbestos lawyer Theodora Ahilas, of Maurice Blackburn Lawyers, contacted him and offered to help him fight his case. She has assisted a handful of New Zealanders to gain settlements for historic asbestos exposure in Australia, including a dying Wellington man last year, and believes many people and their doctors are unaware they can get compensation across the Tasman. While the yet-to-be-paid Australian money feels a bitter-sweet win because Des faces death, he wants other sick Kiwis to know they can claim in Australia too if they worked there too. "There's been an awful lot of people who have gone down without any form of compensation or anything and there's just nothing left for the families, which can be soul-destroying. "The settlement made me well aware that there's a lot of people who worked in Australia, probably similar situations to myself, and in fairness, they should be able to make a claim and it will certainly make their lives a little bit easier." ASBESTOS FACTS: * A long latency period of 20 to 50 years between exposure and disease occurring. * Diseases include mesothelioma, asbestosis, lung cancer and other lung conditions. * Those most at risk include those who mined asbestos, or those who processed or used asbestos products, such as building products and pipe lagging. It includes construction workers, builders, carpenters, electricians, pipe fitters, insulation installers and shipbuilders. * In the past 10 years, ACC has paid out 1644 lump sum payments to sick New Zealanders for asbestos-related diseases, costing $74.5 million. ASBESTOS UPDATE: Court Grants 24 Unopposed Bids to Dismiss Suit --------------------------------------------------------------- HarrisMartin Publishing reported that a Missouri federal court has granted motions filed by 24 asbestos defendants to dismiss for lack of personal jurisdiction, noting that the plaintiff did not respond to the motions and had not met his burden of proving jurisdiction. In the April 13 order, the U.S. District Court for the Eastern District of Missouri wrote that there was no evidence in the complaint that would establish that the defendants were subject to general or specific jurisdiction in Missouri. Twenty-four of the defendants moved to dismiss for lack of personal jurisdiction. The plaintiff did not respond to the motions. ASBESTOS UPDATE: Sonoma State University Focus of Lawsuit --------------------------------------------------------- Clark Mason, writing for The Press Democrat, reported that a longtime Sonoma State University employee's lawsuit is raising questions about asbestos contamination on campus amid allegations that supervisors ignored his warnings about the problem and then retaliated against him when he reported it to authorities. Thomas R. Sargent, an environmental health and safety specialist, claims that he was forced to resign after repeatedly raising concerns about asbestos problems at the Rohnert Park campus, including that asbestos dust likely contaminated the heating, ventilation and air conditioning systems throughout six buildings. The administration acknowledges the presence of asbestos in a number of buildings but denies that it poses a health hazard based on previous tests as well as monthly measurements taken since January. Despite those reassurances, word of the potential asbestos danger has unsettled both students and faculty. Articles in the Sonoma State Star student newspaper, which first wrote about the issue in March, describe professors who say they don't use their own offices, instead meeting students at other locations. One student wrote an opinion piece in the paper that said Stevenson Hall, the building at the center of the complaints, is "not a safe place on campus." Attorneys also have raised allegations the university tampered with evidence prior to one test for asbestos by extensively cleaning classrooms and offices against a judge's order. Also at issue are the emails of Sonoma State President Ruben Arminana, and whether he inappropriately deleted communications related to Sargent's whistleblowing and the asbestos issue. Arminana declined comment through a spokeswoman. He testified in a deposition that he routinely deletes all of his emails, but lawyers for Sargent claim it was tantamount to destruction of evidence and have asked Sonoma County Superior Court Judge Nancy Shaffer to issue sanctions against the university. A lawyer for the Board of Trustees of California State University told the judge there is no evidence Arminana was directly involved in the Sargent dispute and his deleted emails can still be accessed on the university's computer server. Judge Shaffer initially said she was concerned there was evidence of "sanctionable conduct" regarding tampering with evidence, but after listening to arguments on both sides said she would issue a written ruling later. Sargent's lawsuit seeks approximately $15 million in general and punitive damages from the CSU system. Some of the damages are being sought a under a law that allows workers to file suit against their employers for workplace safety violations with 75 percent of the award going to Cal/OSHA, the agency that oversees the regulations. But the university contends such lawsuits can't be brought against a public entity. The lawsuit, filed in May 2014, is scheduled for a trial beginning July 29. Among other issues, a jury is expected to weigh the threshold for safe exposure to asbestos and whether that was exceeded at Sonoma State. Asbestos was commonly used in building construction until the late 1970s and valued for insulation, sound reduction and fire retardant qualities. But its microscopic fibrous crystals are considered hazardous and carcinogenic, particularly with prolonged inhalation. Sargent, a certified asbestos consultant, asserts that his supervisor, Craig Dawson, a defendant in the lawsuit, ignored many warnings over the years about damaged asbestos floor tiles in faculty offices that were being scratched and eroded by the casters on chairs, releasing asbestos-contaminated dust. Sargent routinely collected samples in some buildings, including Stevenson Hall, where he was alarmed by the levels of asbestos detected in 2013 on a windowsill. It confirmed his fears that deadly asbestos fibers were being dispersed into the air throughout faculty offices, according to his lawsuit. The university did its own testing with a different method and results. When Sargent raised questions about whether the technique met professional standards, "he was reprimanded and things stared to spiral out of control," said his attorney, Dustin Collier of San Francisco. The focus of the lawsuit has been Stevenson Hall, one of the oldest buildings on campus. The more than half-century-old building houses numerous faculty offices and classrooms. In two air shafts at Stevenson, an independent testing company in January found levels above the 100,000 asbestos "structures" per square centimeter that are considered high by industry standards. One air shaft was found with 518,000 asbestos structures per square centimeter, and another had 259,000. Dawson, SSU's director of environmental heath and safety, did not dispute those measurements Friday, but said they were taken from settled surfaces not accessible to regular occupants of the building. "Everything we have been doing is showing we don't have any dangerous or unsafe conditions," he said. He said the university has done a "phenomenal job" maintaining floor and wall surfaces with wax, epoxy, paint and other covering to avoid airborne release of asbestos fibers. "We have never had an episode where we have had dangerous conditions in our buildings," he said. "We have had a number of reviews of the buildings and the program itself." On the Sonoma State website, the university maintains there is no evidence of any exposure above recognized EPA and or Cal/OSHA applicable limits. "Results from surface asbestos dust sampling are not indicative of employee or public exposure," the administration said in a statement on the university's website. "All area testing has shown no airborne asbestos had been detected in all six buildings using recognized EPA air sampling methodology." But the controversy has resonated with the university's more than 600 faculty members, whose union filed a grievance over the issue to ensure they have a safe working environment. Faculty representative Anne Janks said there has been difficulty getting timely and adequate information from the administration on the issue. The faculty union recently hired its own consultant with extensive background in safety and healthy issues, and asbestos in particular. "We want to ensure the faculty receives accurate information and analysis and advice . . . and (understands) what it means if you have asbestos in the intake exhaust units," Janks said. " It's important to understand where the asbestos is coming from and the different potential sources." A School of Education lecturer, Elizabeth Galvez-Hardin, who has worked in Stevenson Hall for 19 years, gave a signed declaration as part of the lawsuit indicating she believes her lymph cancer, which she was diagnosed with in 2010, is associated with environmental toxins. In addition to asbestos, Sargent says the university also put students, faculty, day care children and others in danger with the manner in which lead-based paint chips on the roof of the physical education building were scattered with a leaf blower in 2012. He claims he warned that the leaf-blowing technique would violate state public health regulations and instead recommended using a vacuum to remove the substance to ensure it wasn't dispersed, but was rebuffed by his supervisor, Dawson. Sargent reported the incident to a number of regulatory agencies. As a result, Cal/OSHA cited Sonoma State for violating lead standards and the Sonoma County Department of Emergency Services fined the university for the incident, according to the lawsuit. Sargent said as a result of some of his complaints, a vice president used his influence to cause university police to "begin surveilling and subtly intimidating the plaintiff." SSU spokeswoman Susan Kashack said Arminana was unavailable to comment on the allegation, and that he generally does not comment on pending litigation. Sargent also said it appeared Dawson tried to retaliate against him by, among other things, directing him to transfer by hand 4,000 pounds of sewer-contaminated debris to a garbage truck, exacerbating a chronic back problem. Dawson said he is prohibited from comment on the allegations due to the ongoing litigation. "I'd love to comment," he said. "I hope our justice system brings everything to light." ASBESTOS UPDATE: Exposure Tied to Colon Cancer Diagnosis -------------------------------------------------------- Madison Record reported that a longtime laborer and his wife are suing over the man's alleged exposure to asbestos during his working life and the results of that alleged exposure. Among the counts are negligence and conspiracy. George O. Machino Jr. and Jeri Machino filed the suit March 29 in St. Clair County Circuit Court against Ameren Illinois Company, Borg-Warner Morse Tec LLC, Chevron USA Inc., Honeywell International and many other defendants listed. The plaintiff worked from 1966 to 2012 and during that time was allegedly exposed to and inhaled, ingested or otherwise absorbed large amounts of asbestos fibers, the suit says. On Oct. 9, 2015, the plaintiff was diagnosed with colon cancer, as asbestos-induced disease, according to the complaint. Despite the defendants' duty to exercise care and caution for the safety of the plaintiff, the suit alleges they failed to do so in the following ways: including asbestos in their products when they should have known it is toxic and when adequate substitutes were available; not providing adequate warnings to those working around asbestos or adequate instructions concerning the safe methods of working with asbestos. There are eight counts against the defendants for which the plaintiff seeks judgments in excess of $50,000 and other relief the court deems appropriate. The final count is for loss of consortium, brought by plaintiff Jeri Machino, who claims she has been deprived of the companionship, society and services of her husband. She seeks an amount in excess of $50,000. They are represented by Randy L. Gori and Barry Julian of Gori, Julian & Associates PC in Edwardsville. St. Clair County Circuit Court case number 16-L-177 ASBESTOS UPDATE: Garlock Agrees To Create $480MM Trust ------------------------------------------------------ James J.A. Mulhall, Esq. -- james.mulhall@steptoe-johnson.com -- and Cara N. Parcell, Esq. -- cara.parcell@steptoe-johnson.com -- at Steptoe & Johnson PLLC, in an article for The National Law Review, reported that Garlock Sealing Technologies LLC, as part of a settlement agreement involving Garlock's owner, direct parent, and current and future asbestos claimants, will establish a $480 million trust to be used for United States asbestos claims. Garlock is to provide $400 million up front, with another $80 million to be added within one year. After-tax value would be $284 million. The settlement must be approved by the claimants, the North Carolina bankruptcy court, and the U.S. District Court. The plan could be approved as early as summer 2017. ASBESTOS UPDATE: Exposure Suit Filed Against Amchem, et al. ----------------------------------------------------------- Scott T. Jervis and Melinda P. Gardner, individually, and as Executors of the Estate of Thomas Jervis, deceased, the Plaintiffs, v. Amchem Products, Inc., n/k/a Rhone Poulenc AG Company, n/k/a Bayer Cropscience Inc., American Biltrite, Inc., individually and as successor to Amtico Floors, Armstrong International, Inc., Dap Products, Inc., Domco Products Texas, Inc., f/k/a Azrock Industries, Inc., Ford Motor Company, Georgia- Pacific LLC, Honeywell International, Inc., f/k/a Allied Signal, Inc., as successor in interest to The Bendix Corporation, Kaiser Gypsum Company, Inc., Mannington Mills, Inc., Pfizer, Inc., Pneumo Abex LLC, individually and as successor in interest to Pneumo Abex Corporation, and The Goodyear Tire And Rubber Company the Defendants, Case No. N16C-03-126 ASB (Del. Super. Ct., New Castle County, March 14, 2016), seeks to recover all injuries and damages which Plaintiff allegedly suffered from exposure to asbestos- containing products including framing, drywall, insulation, flooring, ceiling panels, electrical products, paint products, brakes, and brake linings. According to the lawsuit, the Defendants directly or indirectly engaged in the specification, mining, manufacturing, distribution, sales, licensing, leasing, installation, removal, or use of asbestos and asbestos-containing products. Defendants were also engaged in the development, manufacture, distribution, sales, licensing or leasing of equipment, procedures, or technology necessary to mine, manufacture, sell, distribute, install, remove, and use asbestos and asbestos-containing products. The Plaintiff is represented by: Bowers, A Dale, Esq. Kenneth L. Wan, Esq. William J. P. Mulgrew III, Esq. BOWERS, A DALE PA PO Box 6047 Wilmington, DE 19804 Telephone: (302) 691 3786 Facsimile: (302) 691 3790 E-mail: dale@bowerslegal.com ASBESTOS UPDATE: Massachusetts Case vs. Rapid-American Stayed ------------------------------------------------------------- A Complaint was filed by Catherine Murray, as executrix of John M. Murray's Estate, against Eastern Refractories Company, Inc., et al., in Massachusetts Superior Court. The five-count Complaint alleges that John M. Murray contracted asbestosis and other related asbestos-related diseases from exposure to the defendants' asbestos and asbestos-containing materials while working as a rigger at the Boston Naval Shipyard, Charlestown, Massachusetts. The case was removed to the United States District Court for the District of Massachusetts and transferred to Magistrate Judge Bowler's Asbestos Docket. Defendant Rapid-American Corporation filed a Suggestion of Bankruptcy. The plaintiff filed a Motion to Remand Case to State Court stating that the only remaining defendant is a bankrupt entity. Rapid filed a voluntary petition for relief in the United States Bankruptcy Court for the Southern District of New York. As per the bankruptcy code, all proceedings against a bankrupt entity are automatically stayed when a petition is filed. In an Order dated March 10, 2016, which is available at http://is.gd/hxRFxY from Leagle.com, Judge Mark L. Wolf of the United States District Court for the District of Massachusetts denied the Plaintiff's Motion to Remand Case to State Court and stayed the case. The case is CATHERINE MURRAY, as Executrix of the Estate of JOHN M. MURRAY, Plaintiff, v. EASTERN REFRACTORIES COMPANY, INC., et al., Defendant, C.A. No. 12-12355-MLW (D. Mass.). Yarway Corporation, Defendant, is represented by Jeffrey L. Adams, Esq. -- Jeffrey.Adams@piblaw.com -- Parker Ibrahim & Berg, LLC, Patrick S. Tracey, Esq. -- Morgan Lewis & Bockius LLP & Todd S. Holbrook, Esq. -- Morgan Lewis & Bockius LLP. ASBESTOS UPDATE: Trane Wins Summary Judgment in "Moss" ------------------------------------------------------ Jane Moss filed a civil action on behalf of her deceased husband, Harry M. Moss, who died in 2013 from lung cancer. The Plaintiff contends that her husband's cancer was caused by his exposure to asbestos-containing materials used to insulate and maintain boilers. Soon after the case was filed, it was transferred to the Eastern District of Pennsylvania for consolidated pretrial proceedings as part of multidistrict litigation. Defendant Trane U.S., Inc., has moved for summary judgment on two grounds. First, the defendant argues that it did not assume the liabilities at issue when it purchased American Standard (a company that manufactured some of the boilers on which Moss worked). Second, the defendant argues that it cannot be held liable because American Standard did not manufacture, distribute or specify the use of the asbestos-containing materials that caused the plaintiff's injuries. In an Opinion and Order dated March 9, 2016, which is available at http://is.gd/fpJ6Ibfrom Leagle.com, Judge Barbara B. Crabb of the United States District Court for the Western District of Wisconsin granted the defendant's motion for summary judgment on the second of these two grounds. Even if American Standard's failure to warn the plaintiff of the risks associated with the use of asbestos constitutes negligence, the defendant is nevertheless entitled to summary judgment on the ground that public policy supports limiting the liability of manufacturers that did not manufacture, distribute or specify the products that caused a plaintiff's injuries, Judge Crabb held. The case is JANE MOSS, individually and as Special Administrator of the Estate of Harry M. Moss, Plaintiff, v. TRANE U.S., INC., Defendant, No. 13-cv-42-bbc (W.D. Wis.). Jane Moss, Plaintiff, is represented by Michael P. Cascino, Esq. - - Cascino Vaughan Law Offices, Ltd. & Daniel Benjamin Hausman, Esq. -- Cascino Vaughan Law Offices, Ltd.. Trane U.S. Inc., Defendant, is represented by Trevor Jonathan Will, Esq. -- twill@foley.com -- Foley & Lardner & Gregory Neil Heinen, Esq. -- gheinen@foley.com -- Foley & Lardner. ASBESTOS UPDATE: Three Cos. Win Summary Judgment in "Holland" ------------------------------------------------------------- Plaintiff George D. Holland filed a lawsuit individually and as the personal representative of the estate of Owen D. Holland against Crane Company, Fluor Daniel Services Corporation and Goulds Pumps Incorporated for allegedly exposing Owen to airborne asbestos fibers that directly caused his contraction of and subsequent death from malignant mesothelioma. Owen and Gregory A. Legg originally filed the case in United States District Court for the Northern District of Alabama, Northeastern Division against 45 defendants. The Judicial Panel on Multidistrict Litigation subsequently transferred the case to the Eastern District of Pennsylvania for inclusion in MDL 875. There, Judge Eduardo C. Robreno severed Legg and Owen's claims. Owen subsequently filed an amended and severed complaint alleging that he was exposed to asbestos-containing products produced, manufactured, specified for use, installed, distributed, sold, and/or placed into the stream of commerce by Defendants during his employment as a laborer, operator, and utility worker from approximately the late 1960's to 2004. After the Defendants moved for summary judgment, Judge Robreno granted the motion, in part, for Fluor Daniel as to all claims of exposure prior to May 19, 1980. As to the remaining claims against Fluor Daniel, Judge Robreno found that an Alabama judge should address Alabama's standard for exposure in asbestos cases and the operation of Alabama's construction statute of repose, and remanded the case with leave for Fluor Daniel to refile its motion as to alleged exposure after May 19, 1980. Judge Robreno also denied Crane's and Goulds' motions for summary judgment with leave to refile in this court. In a Memorandum Opinion dated March 24, 2016, which is available at http://is.gd/HmwrU7from Leagle.com, Judge Abdul K. Kallon of the United States District Court for the Northern District of Alabama, Northeastern Division, granted the motions for summary judgment. The case is GEORGE D. HOLLAND, individually and as the personal representative of The Estate of OWEN D. HOLLAND, deceased, Plaintiff, v. AIRCO INC., et. al., Defendants, Civil Action No. 5:11-cv-02189-AKK (N.D. Ala.). George D Holland, Plaintiff, is represented by G Patterson Keahey, Jr., Esq. -- LAW OFFICES OF G PATTERSON KEAHEY PC. Crane Company, Defendant, is represented by F Grey Redditt, Jr., Esq. -- gredditt@maynardcooper.com --Maynard, Cooper & Gale, P.C., Roy W Harrell, III, Esq. -- gredditt@maynardcooper.com -- Maynard, Cooper & Gale, P.C. & Timothy A Clarke, Esq. -- tim.clarke@maynardcooper.com -- Maynard, Cooper, Gale P.C.. Fluor Daniel Services Corporation, Defendant, is represented by Frank E Lankford, Jr., Esq. -- flankford@huielaw.com -- HUIE FERNAMBUCQ & STEWART LLP, Moffat G McDonald, Esq. -- mmcdonald@hsblawfirm.com -- HAYNSWORTH SINKLER BOYD PA, Scott A Frick, Esq. -- sfrick@hsblawfirm.com -- HAYNSWORTH SINKLER BOYD PA & Stewart W McCloud, Esq. -- smccloud@huielaw.com -- HUIE FERNAMBUCQ & STEWART LLP. Goulds Pumps Incorporated, Defendant, is represented by Timothy A Clarke, Maynard, Cooper, Gale P.C., F Grey Redditt, Jr., Maynard, Cooper & Gale, P.C. & Roy W Harrell, III. ASBESTOS UPDATE: NY Court Consolidates 9 Cases for Trial -------------------------------------------------------- The Early Law Firm, counsel for plaintiffs Brahe, Randall F., et al., seek to consolidate for joint trial the following nine in extremis cases that have all been assigned to this part for trial pursuant to the New York City Asbestos Litigation Amended Case Management Order's in extremis cluster provisions: -- Randall Brahe, 190422/2014; -- Richard Byrnes, 190003/2014; -- Frederick Evans, Jr., 190109/2015; -- Jeffrey Kahn, 190023/2015 & 190024/2015; -- Pablo Laviera, 190118/2015; -- Olaf Lyberg, 190057/2015 & 190059/2015; -- Donald Miller, 190112/2014; -- Jesus Sierra-Guzman, 190086/2015 & 190087/2015; -- James Sudimack, M.D., 190045/2014. The Plaintiffs propose to join these cases into six trial groups. The Plaintiffs' motion is made on the grounds that common issues of law and fact exist warranting a joint trial. Malaby & Bradley, LLC submit opposition to plaintiffs' motion on behalf of all defendants. Cleaver-Brooks, Inc., Carrier Corporation and Metro- North Railroad submit supplementary opposition. In a Decision and Order dated March 21, 2016, which is available at http://is.gd/tox3N6from Leagle.com, Judge Peter H. Moulton of the Supreme Court, New York County, granted the motion to consolidate the cases for joint trial. The case is IN RE NEW YORK CITY ASBESTOS LITIGATION. BRAHE, RANDALL F., et al. Plaintiffs v. COLUMBUS McKINNON CHAIN CORP., et al. Defendants, Docket No. 190422/2014, Motion Seq. No. 006. 2016 NY Slip Op 30466(U)(N.Y. Sup.). ASBESTOS UPDATE: Rowan Loses Bid to Sever in "Garza" ---------------------------------------------------- Manuel Garza, et al., filed a Seamen's Petition for Damages in state court seeking recovery for injuries allegedly sustained as a result of exposure to asbestos-containing drilling mud while they were employed with defendants Rowan Companies, Inc., ENSCO Offshore Company, Harbinger Group, Inc., Diamond Offshore Company, Nustar Energy, L.P., Kaneb Management Company, L.L.C., and Helmerich & Payne International Drilling Co. The Plaintiffs also named as defendants Union Carbide Corporation, Montello, Inc., Chevron Phillips Chemical Company, L.P., Coastal Chemical Co., L.L.C., and Nico Supply Company, Inc., who allegedly manufactured and/or distributed the asbestos-containing drilling mud. The Plaintiffs asserted claims under Louisiana state law, general maritime law, and the Jones Act. The action was removed based upon the United States District Court for the Middle District of Louisiana's original jurisdiction over the plaintiffs' general maritime claims. Pursuant to Court Order, plaintiffs filed an Amended Complaint providing a more detailed description of each plaintiff's work history and alleged exposure to asbestos-containing products. The Amended Complaint asserts that each plaintiff is suffering from asbestosis and asbestos related lung disease due to exposure to Flosal, a product of Drilling Specialties Company (now "Chevron Phillips Chemical Company, LP"), and to Visbestos and Super Visbestos, products of Union Carbide Corporation and Montello, Inc., during their employment with the Jones Act Defendants. Before the Court is a Motion to Sever Plaintiffs Due to Misjoinder, filed by defendant Rowan Companies, Inc. asserting that the 13 plaintiffs were improperly joined and that their cases should be severed into 13 individual suits. The motion is opposed. Defendant ENSCO Offshore Company filed a Motion to Join in Rowan's Motion to Sever Plaintiffs Due to Misjoinder, which was granted by this Court. In a Magistrate Judge's Report dated March 4, 2016, which is available at http://is.gd/52oP72from Leagle.com, Magistrate Judge Erin Wilder-Doomes of the United States District Court for the Middle District of Louisiana recommended that the Motion to Sever Plaintiffs Due to Misjoinder, filed by defendant Rowan Companies be denied. Magistrate Wilder-Doomes also recommended to deny the motion as to ENSCO Offshore Company. According to the magistrate, the Motion to Sever Plaintiffs Due to Misjoinder filed by Rowan, and adopted by ENSCO, does not demonstrate that the 13 plaintiffs in this case are improperly joined. The case is MANUEL GARZA, ET AL. v. PHILLIPS 66 COMPANY, ET AL, Civil Action No. 13-742-SDD-EWD (M.D. La.). Manuel Garza, Plaintiff, is represented by Jason Christian MacFetters, Esq. -- Law Office of Maria DeGracia, Daniel J. Poolson, Jr., Esq. -- The Young Firm, Tammy Dianne Harris, Esq. -- The Young Firm & Timothy Justin Young, Esq. -- The Young Firm. Larry Laborde, Plaintiff, represented by Jason Christian MacFetters, Law Office of Maria DeGracia, Daniel J. Poolson, Jr., The Young Firm, Tammy Dianne Harris, The Young Firm & Timothy Justin Young, The Young Firm. Lynn Laborde, Plaintiff, represented by Jason Christian MacFetters, Law Office of Maria DeGracia, Daniel J. Poolson, Jr., The Young Firm, Tammy Dianne Harris, The Young Firm & Timothy Justin Young, The Young Firm. Michael Northcutt, Plaintiff, represented by Jason Christian MacFetters, Law Office of Maria DeGracia, Daniel J. Poolson, Jr., The Young Firm, Tammy Dianne Harris, The Young Firm & Timothy Justin Young, The Young Firm. Larry A Smith, Plaintiff, represented by Jason Christian MacFetters, Law Office of Maria DeGracia, Daniel J. Poolson, Jr., The Young Firm, Tammy Dianne Harris, The Young Firm & Timothy Justin Young, The Young Firm. Donald Stephens, Plaintiff, represented by Jason Christian MacFetters, Law Office of Maria DeGracia, Daniel J. Poolson, Jr., The Young Firm, Tammy Dianne Harris, The Young Firm & Timothy Justin Young, The Young Firm. Wayne Buckley, Plaintiff, represented by Jason Christian MacFetters, Law Office of Maria DeGracia, Daniel J. Poolson, Jr., The Young Firm, Tammy Dianne Harris, The Young Firm & Timothy Justin Young, The Young Firm. Charles Easterling, Plaintiff, represented by Jason Christian MacFetters, Law Office of Maria DeGracia, Daniel J. Poolson, Jr., The Young Firm, Tammy Dianne Harris, The Young Firm & Timothy Justin Young, The Young Firm. Steven Goode, Plaintiff, represented by Jason Christian MacFetters, Law Office of Maria DeGracia, Daniel J. Poolson, Jr., The Young Firm, Tammy Dianne Harris, The Young Firm & Timothy Justin Young, The Young Firm. Jerry Johnson, Plaintiff, represented by Jason Christian MacFetters, Law Office of Maria DeGracia, Daniel J. Poolson, Jr., The Young Firm, Tammy Dianne Harris, The Young Firm & Timothy Justin Young, The Young Firm. James Little, Plaintiff, represented by Jason Christian MacFetters, Law Office of Maria DeGracia, Daniel J. Poolson, Jr., The Young Firm, Tammy Dianne Harris, The Young Firm & Timothy Justin Young, The Young Firm. Paul Luckey, Plaintiff, represented by Jason Christian MacFetters, Law Office of Maria DeGracia, Daniel J. Poolson, Jr., The Young Firm, Tammy Dianne Harris, The Young Firm & Timothy Justin Young, The Young Firm. James Wells, Plaintiff, represented by Jason Christian MacFetters, Law Office of Maria DeGracia, Daniel J. Poolson, Jr., The Young Firm, Tammy Dianne Harris, The Young Firm & Timothy Justin Young, The Young Firm. Union Carbide Corp., Defendant, is represented by Deborah Kuchler, Esq. -- dkuchler@kuchlerpolk.com -- Kuchler Polk Schell Weiner & Richeson, LLC, Ernest G. Foundas, Esq. -- efoundas@kuchlerpolk.com -- Kuchler Polk Schell Weiner & Richeson, LLC, Francis Xavier DeBlanc, III, Esq. -- fdeblanc@kuchlerpolk.com -- Kuchler Polk Schell Weiner & Richeson, LLC, McGready Lewis Richeson, Esq. -- mrichesonr@kuchlerpolk.com -- Kuchler Polk Schell Weiner & Richeson, LLC, Michael H. Abraham, Esq. -- mabraham@kuchlerpolk.com -- Kuchler Polk Schell Weiner & Richeson, LLC, Milele N. St. Julien, Esq. -- mjulien@kuchlerpolk.com -- Kuchler Polk Schell Weiner Richeson & Perrey S. Lee, Esq. -- plee@kuchlerpolk.com -- Kuchler Polk. Montello, Inc., Defendant, is represented by David Cartan Loker Gibbons, Jr., Esq. -- Thompson, Gibbons & Westholz, LLC. Chevron Phillips Chemical Company LP, Defendant, is represented by Kathleen F. Drew, Esq. -- kathleen.drew@arlaw.com -- Adams & Reese & Gerard Joseph Gaudet, Esq. -- gerard.gaudet@arlaw.com -- Adams and Reese LLP. Coastal Chemical Co., L.L.C., Defendant, is represented by Campbell Edington Wallace, Frilot, LLC, Allen J. Krouse, III, Frilot, Partridge, Kohnke & Clements, LC, Caroline E Conway, Frilot L.L.C. & Dylan Dennis Lynch, Frilot LLC. Rowan Companies Inc, Defendant, represented by Delos E. Flint, Jr., Fowler, Rodriguez, E. Stuart Ponder, Hailey, McNamara & Lawrence Raymond DeMarcay, III, Fowler, Rodriguez. Harbinger Group, Inc., Defendant, represented by Jacqueline M. Brettner, Carver Darden & Lindsay E. Spann, Carver, Darden, Koretzky, Tessier, Finn, Blossman. Diamond Offshore Company, Defendant, represented by Michael J. Vondenstein, Hailey, McNamara, Hall, Larmann & Papale, LLP. Kaneb Management Company, Defendant, represented by Jay Morton Jalenak, Jr., Kean Miller LLP, Bradley Joseph Schlotterer, Kean Miller LLP, Sarah K. Weissman, Kean Miller LLP & Sean T. McLaughlin, Kean Miller LLP. ENSCO Offshore Company, Defendant, represented by Delos E. Flint, Jr., Fowler, Rodriguez, E. Stuart Ponder, Hailey, McNamara & Lawrence Raymond DeMarcay, III, Fowler, Rodriguez. Phillips 66 Company, Defendant, represented by Kathleen F. Drew, Adams & Reese. ASBESTOS UPDATE: 5 Cos. Win Summary Judgment in "Pace" ------------------------------------------------------ In a career as an electrician that spanned nearly 50 years, Raymond Balcerzak worked numerous jobs in numerous locations. In 2011, Balcerzak was diagnosed with lung cancer; in 2014, he passed away. Prior to his death, in July 2013, Balcerzak filed the instant action in New York State Supreme Court against numerous manufacturers, alleging that his cancer was the product of decades of exposure to asbestos-containing products at his various workplaces. The case was removed to the the United States District Court for the Southern District of New York Court, and the complaint was thereafter amended twice. At the conclusion of discovery, several defendants filed motions for summary judgment; the motions of six of those defendants remain pending, namely, those of: (i) Rockwell Automation, Inc., as successor-in-interest to Allen-Bradley Company, LLC; (ii) BW/IP International, individually and as successor to Byron Jackson Pumps; (iii) Air & Liquid Systems, as successor-by-merger to Buffalo Pumps, Inc.; (iv) Gardner Denver, Inc.; (v) Schneider Electric Company, formerly known as Square D Co.; and (vi) Warren Pumps LLC. Defendants contend, among other things, that Plaintiff has failed to raise a genuine issue of material fact that exposure to any of their products was a substantial factor in causing Balcerzak's injuries. In an Opinion and Order dated March 22, 2016, which is available at http://is.gd/qfzFuhfrom Leagle.com, Judge Katherine Polk Failla of the United States District Court for the Southern District of New York granted the motions brought by Buffalo, Gardner Denver, Byron Jackson, Warren, and Square D; and denied the motion brought by Allen-Bradley. The case is NANETTE PACE, as Personal Representative of the Estate of Raymond J. Balcerzak, Deceased, Plaintiff, v. AIR & LIQUID SYSTEMS CORP., et al., Defendants, No. 13 Civ. 6227 (KPF)(S.D.N.Y.). Raymond J. Balcerzak, Plaintiff, is represented by Kardon Aaron Stolzman, Esq. -- Napoli Bern Ripka & Associates. CBS Corporation, Defendant, is represented by Dennis Enrique Vega, Esq. -- dennis.vega@sedgwicklaw.com -- Sedgwick LLP & Michael Alan Tanenbaum, Esq. -- michael.tanenbaum@sedgwicklaw.com -- Sedgwick LLP. Imo Industries Inc., Defendant, is represented by Amy Zumsteg, Esq. -- azumsteg@leaderberkon.com -- Leader & Berkon LLP. Union Carbide Corporation, Defendant, is represented by Brian Thomas Murnane, Esq. -- bmurnane@deybllp.com -- Zukerman Gore, Brandeis & Crossman, LLP. Metropolitan Life Insurance Company, Defendant, is represented by Justin Brent Perri, Esq. -- Steptoe & Johnson, LLP. Ingersoll Rand Company, Defendant, is represented by Lisa M. Pascarella, Esq. -- Forman Perry Watkins Krutz & Tardy LLP. Trane US, Inc., Defendant, is represented by Lisa M. Pascarella, Pascarella Divita Lindenbaum & Tomaszewski PLLC. General Electric Company, Defendant, is represented by Dennis Enrique Vega, Esq. -- dennis.vega@sedgwicklaw.com -- Sedgwick LLP. Arvinmeritor, Inc., Defendant, is represented by Kevin John Dooley, Esq. -- kdooley@kasowitz.com -- Kasowitz, Benson, Torres & Friedman, LLP. Aurora Pump Company, Defendant,is represented by Erich Gleber, Esq. -- egleber@smsm.com -- Segal McCambrige Singer & Mahoney. Eaton Electrical Corporation, Defendant, is represented by Robert Michael Gilmartin, JR., Esq. -- michael.gilmartin@sedgwicklaw.com -- Sedgwick LLP. Honeywell International, Inc., Defendant, is represented by Donald Richard Pugliese, Sr., Esq. -- dpugliese@mwe.com -- McDermott, Will & Emery, LLP. Rockwell Automation, Inc., Defendant, is represented by Joseph P. LaSala, Esq. -- LASALA@MDMC-LAW.COM -- McElroy, Deutsch, Mulvaney & Carpenter, LLP. Carrier Corporation, Defendant, is represented by Julie Robin Evans, Esq. -- julie.evans@wilsonelser.com -- Wilson,Elser,Moskowitz,Edelman & Dicker LLP ASBESTOS UPDATE: Court Grants DuPont's Bid to Dismiss "Dean" ------------------------------------------------------------ Plaintiff Leon Dean was employed by defendant Dupont de Numours & Company Inc. from 1956 to 1990, and alleges that he spent a significant portion of that time "dealing with asbestos, fiber glass products and other hazardous products. After plaintiff retired in 1990, he began to experience respiratory illness, which he alleges is most likely cancer and caused by asbestos. Plaintiff originally filed suit in state court on November 2, 2015, asserting three causes of action: (1) premises liability, (2) negligence, and (3) negligent infliction of emotional distress. Defendant removed the case to the United States District Court for the Northern District of California, and then filed a motion to dismiss, arguing that the claims were barred by California's Workers' Compensation Act, which provides the exclusive remedy for work-related injuries. In response, Dean filed the operative First Amended Complaint (FAC), adding a new plaintiff, his wife, Wanda Dean, and asserting seven causes of action in total: (1) premises liability, (2) negligence, (3) negligent infliction of emotional distress, (4) products liability -- manufacturing defect, (5) products liability -- design defect, (6) products liability -- failure to warn, and (7) loss of consortium (although the court notes that the FAC refers to "Teresa Dean" rather than Wanda Dean. The FAC also contains additional allegations about plaintiff's attempts to pursue a workers' compensation claim. The FAC alleges that, in May 2015, plaintiff sent a workers' compensation claim form to defendant, but received no response. Plaintiff then sent a follow-up letter in June 2015, but again received no response. Plaintiff characterizes this refusal to respond as bad faith. Plaintiff then contacted the Workers' Compensation Insurance Rating Bureau, who told him that defendant's insurance provider was Golden Eagle Insurance Company. However, while that company had become insolvent, its parent company Liberty Mutual Insurance Company was still solvent, so plaintiff filed a workers' compensation claim naming Liberty Mutual as the insurer and claim administrator. Plaintiff then received a letter from Liberty Mutual, denying the claim and stating that it was not defendant's workers' compensation insurance carrier. Plaintiff then re-contacted the Workers' Compensation Insurance Rating Bureau, who admitted that it had provided the wrong information. But when the Bureau repeated its search, it could not find any coverage records for defendant for the relevant time frame. However, the Bureau also explained that it did not have records for self-insured companies, and recommended that plaintiff contact the California Department of Industrial Relations Office of Self-Insurance. Plaintiff did so, but was told that there was no information available showing that defendant was self-insured. Plaintiff explains that he is in the process of dismissing the workers' compensation claim against Liberty Mutual, but because there is no other insurance agency that he can name as the claims administrator, he filed this suit. Defendant Dupont de Numours & Company Inc.'s motion to dismiss came on for hearing before this court on March 16, 2016. In an Order dated March 23, 2016 which is available at http://is.gd/SACe8Dfrom Leagle.com, Judge Phyllis J. Hamilton of the United States District Court for the Northern District of California granted the defendant's motion, with partial leave to amend. The case is LEON E DEAN, et al., Plaintiffs, v. E.I. DUPONT DE NUMOURS & COMPANY INC., Defendant, Case No. 15-cv-6032-PJH (N.D. Calif.). Leon E Dean, Plaintiff, is represented by Shahid Manzoor, Esq. -- Shahid@Manzoorlawoffice.com -- Manzoor Law Firm, Inc. Wanda Dean, Plaintiff, is represented by Shahid Manzoor, Manzoor Law Firm, Inc. E.I. Dupont De Numours & Company Inc., Defendant, is represented by Peter Abraham Cownan, Esq. -- pcownan@glynnfinley.com -- Glynn & Finley, LLP & Andrew Thomas Mortl, Esq. -- amortl@glynnfinley.com -- Glynn & Finley, LLP. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2016. All rights reserved. ISSN 1525-2272. 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