/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/160506.mbx C L A S S A C T I O N R E P O R T E R Friday, May 6, 2016, Vol. 18, No. 91 Headlines 3001 CASTOR: Seeks Decertification of FLSA Class in "Verma" Suit ABC CAPITAL: Faces "Robinson" Suit Over Failure to Pay Overtime ADJ PRODUCTS: Faces "Silva" Suit Over Failure to Pay Overtime ALLIANCE FIBER: Faces "Luck" Suit Over Proposed Corning Merger ALLIANCEONE RECEIVABLES: "Dibb" Class Opt-Out Period Extended ALLSTATE INSURANCE: Must Face "Chen" TCPA Suit, 9th Cir. Says AMERICAN EAGLE: Has Sent Unsolicited Messages, "Bricco" Suit Says ASHLEY FURNITURE: Faces "Razo" Class Suit in C. Dist. California ASTRAZENECA: Del. High Court Affirms Dismissal of Nexium Action BAKERY EXPRESS: Recalls 7-Eleven Fresh Cookies Due to Peanuts BASIC RESEARCH: Court Won't Amend March 31 Order in "Brady" Suit BELK INC: Certification of Sales Team Managers Class Sought BIMBO BAKERIES: Ninth Circuit Stays Mislabeling Class Action BRSB&G: Does Not Properly Pay Employees, "Jurado" Action Claims BULLFRONG PEST: Faces "Guzman" Suit Over Failure to Pay Overtime CALLSMART INC: Dolemba Seeks Certification of TCPA & ICFA Classes CASCADE DESIGNS: Recalls Avalanche Rescue Probes CASHLESS PAYMENTS: Hearing on Class Cert. Bid Continued to May 17 CAVIAR INC: Court Tosses "Levin" Wage and Hour Suit CAYAN LLC: Must Defend Against South Orange Chiropractic Action CHARTER COMMUNICATIONS: Conn. Court Tosses TCPA Class Action CHICAGO: Faces "Badillo" Class Suit in N. Dist. Illinois CHURCH & DWIGHT: Sued in N.Y. Over Truth-In-Lending Act Violation CODILIS & ASSOC: "Gierke" Suit Alleging FDCPA Violation Dismissed COLGATE-PALMOLIVE CO: "Dean" Plaintiff Seeks Class Certification COOK MEDICAL: Recalls Catheters with Beacon(R) Tip Technology CORNERSTONE HOME: Bingham Seeks Conditional Class Certification COSTCO: Faces Class Action Over Organic Berry Cherry Blend CRACKER BARREL: Persons w/ Mobility Disabilities Class Certified CRAVE RESTAURANT: Tipped Employees Seek Class Certification CSM BAKERY: Recalls Cinnabon Stix Products Due to Peanut CSM BAKERY: Recalls Red Velvet Cake & Chocolate Chip Cookies D'ARCY PLACE: Former Residents to Receive Compensation DEFFENBAUGH INDUSTRIES: Court Wants More Evidence to Support Deal DL BUILDERS: "Valdovinos" Plaintiffs Seek Class Certification DOLLAR THRIFTY: June 21 Hearing on McKinnon's 2nd Class Cert. Bid EARTH CARE: Court Preliminary Approves "Hernandez" Settlement EDGAR ADULT: Former Residents to Receive Compensation EGS FINANCIAL: Court Grants Joint Bid to Stay "Burns" Proceedings EUROCHOC AMERICAS: Glen Ellyn Seeks Certification of 3 Classes FEDEX FREIGHT: Motion to Approve Settlement Unsealed FENTON & MCGARVEY: "Tetik" Seeks Certification of FDCPA Class FLOWERS FOODS: Faces "Medrano" Suit Over Failure to Pay Overtime FOWLER PACKING: Courts Denies Bid for Submission of Trial Plan FRONTERA FOODS: Recalls Taco Skillet Sauce Due to Soy GENERAL MOTORS: Sued in N.J. Over Communications Act Violation GIANT EAGLE: Recalls Walnut Delight and Pecan Tassie Cookies GLEN GALEMMO: Final Settlement Order Entered in "Capannari" Suit H&R BLOCK: Bid to Certify Calif. Class in "Perras" Suit Denied HCA HOLDINGS: Appeals Court Revives Overcharge Class Action HOME DEPOT: Court Certifies California Class in "Henry" Suit HONEST COMPANY: Faces Various Class Actions Over Product Claims HOUSTON, TX: Summary Judgment in "Fontenot" Affirmed HOUSTON CASUALTY: 3rd Cir. Says $102MM Excluded from PNC Coverage INTERNATIONAL CRUISE: Bid to Certify "Burnside" Class Withdrawn INTERSTATE MANAGEMENT: "Patrick" Class Suit Settlement Approved INVESTMENT PROFESSIONALS: Fin'l Advisors Seek Class Certification JP SPORTS: Certification of Assistant Managers' Class Sought KODAK: Settles Stock Ownership Plan Class Action for $9.7MM KOVITZ SHIFRIN: Plaintiffs Seek Approval of Class Settlement LANNETT COMPANY: Faces "Fraternal" Suit Over Generic Digoxin LIBERTY MUTUAL: LaFollettes Seek Class Certification LOUISIANA-PACIFIC: 8th Cir. Upholds Summary Judgment in "Brown" LTD FINANCIAL: Court Postpones Class Certification Adjudication MAGAN FOOD: Faces "Munoz" Suit Over Failure to Pay Overtime Wages MAKING IT A LIFESTYLE: Recalls Dietary Supplements MDL 2575: Class Certification Sought in Water Connector Case MERCK: Sex Discrimination Collective Action Gets Prelim. Court OK METAL TECHNOLOGIES: Doesn't Properly Pay Employees, Action Says MICHIGAN: Seeks Dismissal of Class Action Against UIA MODESTO, CA: Irrigation District Faces Class Actions Over Subsidy MOTOROLA: Faces Class Action Over Poor Customer Support MOTRICITY INC: Dismissal of "Mosco" Securities Suit Affirmed MTD PRODUCTS: Recalls Utility Vehicles Due to Crash Hazard MURRAY GOULBURN: Class Action Mulled Over Profit Downgrade MYDATT SERVICES: "Levin" Suit Seeks Unpaid Wages, Penalties NATIONAL FOOTBALL: Approval of Concussion Deal Affirmed NATIONWIDE CREDIT: Ahmed Hassan Seeks Class Certification NEBRASKA: Court Approves Fees and Costs in "Leiting-Hall" Case NGOZI IGBINOSA: Court Dismisses Inmate's Suit v. Prison Doctor NORCOLD INC: September 16 Settlement Fairness Hearing Set OHIO GAMING: "Betts" Plaintiffs Ask Court to Certify FLSA Class OSF HEALTHCARE: Sued Over Underfunded Benefit Pension Plans PASILADES COLLECTION: Court Denies DQ Bid Against Plaintiff Atty PARKMERCED INVESTORS: Faces "Stewart" Suit In California PEARLS AGROTECH: Piper Alder Mulls Class Action Over Ponzi Scheme PEGGYBANK.COM: "Miller" Class Suit Removed to N.D. Ohio PENNSYLVANIA: SEPTA Faces Class Action Over Background Checks PFIZER INC: 2nd Circuit Revives shareholder Class Action PORSCHE CARS: W.Va. High Court Affirms "Harrison" Case Dismissal PORTFOLIO RECOVERY: Settles TCPA Class Action for $18 Million PROCTER & GAMBLE: Faces "Johnson" Suit Over Deodorant Products QVC INC: "Robinson" Class Suit Removed to S. Dist. Florida RBS CITIZENS: Court Certifies Class of Mortgage Loan Officers REPUBLIC OF TEA: Recalls Organic Turmeric Ginger Green Tea RUBI ROSE: Faces "Neuss" Class Suit in New Jersey Court SCHNUCK MARKETS: Court Drops Non-Settling Plaintiffs from Suit SMALLS ELECTRICAL: Sued Over Failure to Pay Project Balance Due SOUTHWEST CREDIT: Zachariah Pinkney Seeks Class Certification SOUTHWESTERN ENERGY: Faces "Hicks" Suit Over Royalty Underpayment STAACK & SIMMS: Illegally Collects Debt, "Forte" Suit Claims STARBUCKS CORPORATION: Faces "Pincus" Suit in N. Dist. Illinois SUNRUN INC: "Cohen" Files Securities Class Action in Calif. SUNRUN INC: "Mancy" Sues over Artificially Inflated IPOs SWANSON GROUP: Certification of Technicians Class Sought SYNCHRONY FINANCIAL: Has Made Unsolicited Calls, Suit Says SYSTEMS4PT LLC: Byer Clinic Seeks Class Certification TD BANK: Sued in N.J. Over Penny Arcade Machine Shortchanging TEL-DRUG: "Skinner" Class Suit Removed to Arizona Dist. Ct. TGI FRIDAY'S: Bid to Dismiss Count I of "Williams" Suit Denied THINGS REMEMBERED: Class Certification of 7 Subclasses Sought TIME WARNER: 9th Cir. Upholds Summary Judgment in "Corbin" Suit TRIUNE INFOMATICS: Faces "Behera" Class Action in Calif. TRUMP UNIVERSITY: Lawyers Want to Prevent Trump From Facing Trial TYSON FOODS: Statistical Evidence Can Be Used in Class Action UBER TECHNOLOGIES: Drivers Criticizes Class Action Settlement UNITED KINGDOM: Hillsborough Disaster Victims File Class Action UNITED STATES: Groups Against PACER Fees Seek Class Certification VARITRONICS LLC: Order Denying Bid to Deposit Funds Affirmed VENGROFF WILLIAMS: Maranda Woodward Seeks Class Certification VERENGO INC: Settlement Deal in "Lushe" Has Final Okay VITALICIOUS ACQUISITION: Recalls Apple Crumb VitaTops Due to Milk WAL-MART STORES: Recalls Rival Brand Electric Water Kettles WELLS FARGO: "Hogan" Seeks Certification of Foreclosure Class XPAT XTREME: "Rechterman" Suit Seeks to Recover Unpaid OT Wages YEXT INC: Courts Grants In Part Motion to Seal Exhibits YTS TRADING: Fails to Pay Employees Overtime, "Lopez" Suit Says Asbestos Litigation ASBESTOS UPDATE: 6th Cir. Affirms Ruling in "Upton" ASBESTOS UPDATE: Bath Iron Dropped as Defendant in "Thorne" ASBESTOS UPDATE: Bids to Dismiss "Hovsepian" Granted ASBESTOS UPDATE: Ruling on Improper Venue Exceptions Affirmed ASBESTOS UPDATE: GATX Had 79 Asbestos Cases at Jan. 31 ASBESTOS UPDATE: IPALCO Still Faces Asbestos Lawsuits ASBESTOS UPDATE: Selective Insurance Has $23.2MM A&E Reserves ASBESTOS UPDATE: Dayton Power Continues to Defend Asbestos Suits ASBESTOS UPDATE: OfficeMax Retains Asbestos Proceedings ASBESTOS UPDATE: WR Berkley Has $33MM A&E Reserves at Dec. 31 ASBESTOS UPDATE: W. Va. Court Remands Asbestos Action ASBESTOS UPDATE: EPA Confirms Asbestos at Glory Days Site ASBESTOS UPDATE: Naval Ship Asbestos Removal to Cost EUR500K ASBESTOS UPDATE: Former Teacher's Death Linked to Asbestos ASBESTOS UPDATE: Husband's Clothes Exposed Woman to Asbestos ASBESTOS UPDATE: Contractors Target Homeless People ASBESTOS UPDATE: Michigan Didn't Issue Fines in Violations ASBESTOS UPDATE: Widow Starts Proceedings Over Asbestos ASBESTOS UPDATE: Former William Press Worker Dies of Mesothelioma ASBESTOS UPDATE: American Optical Hit with $16-Mil. Verdict ASBESTOS UPDATE: NJ Woman Claims Exposure Led to Husband's Death ASBESTOS UPDATE: Justices Deny Rehearing Statute of Repose Case ASBESTOS UPDATE: WVU Coliseum Closed Due to Potential Asbestos ASBESTOS UPDATE: Little Hulton Man Dies of Mesothelioma ASBESTOS UPDATE: New York Judge Trims $25-Mil. Award ASBESTOS UPDATE: Baton Rogue Man Arrested for Filing False Docs ASBESTOS UPDATE: Nearly 100 Cos. in Bankruptcy Due to Litigation ASBESTOS UPDATE: Sunderland Father Dies of Mesothelioma ASBESTOS UPDATE: Missouri Court Bars Illinois Claims ASBESTOS UPDATE: Ohio Court Seeks Workers' Heirs for Payouts ASBESTOS UPDATE: Pittsburgh Corning Emerges from Ch. 11 ********* 3001 CASTOR: Seeks Decertification of FLSA Class in "Verma" Suit ---------------------------------------------------------------- 3001 Castor, Inc., asks the Court to decertify the conditionally certified Fair Labor Standards Act collective action titled PRIYA VERMA, on behalf of herself and all others similarly situated v. 3001 CASTOR, INC., d/b/a/THE PENTHOUSE CLUB and/or THE PENTHOUSE CLUB PHILLY; ABCDE PENNSYLVANIA MANAGEMENT, LLC and DOE DEFENDANTS 1-10, Case No. 2:13-cv-03034-AB (E.D. Pa.). 3001 Castor also asks the Court to deny with prejudice the Plaintiff's corresponding motion for Rule 23 Class Certification of her state law claims. The essential element of the Plaintiff's claim is that of damages for her and other dancers. The Plaintiff's Minimum Wage Act claims will require a determination of the hours worked by each dancer. John F. Innelli, Esq., at John F. Innelli, LLC, in Philadelphia, Pennsylvania -- jinnelli@innellilaw.com -- contends that the individual nature of the documentary evidence against the Plaintiff's claims is overwhelming. He notes that as set forth in the Defendant 3001 Castor, Inc.'s Motion for Summary Judgment, during the relevant time period, the dancers earned, in the aggregate, $3,322,032 directly from their patrons. He asserts that the aggregate earnings exceeded the amount of minimum wages by $2,663,907, or 3.8 times the hourly minimum wage. The primary dispute -- whether the dancers performing at 3001 Castor were not earning compensation in accordance with the applicable statutory regulations -- is not capable of resolution by class-wide proof, Mr. Innelli tells the Court. Given the significant number of dollars above the hourly minimum wage earned by the dancers performing at 3001 Castor, it is not surprising that only 4% of the dancers opted-in, Mr. Innelli asserts. He argues that the extremely low number of opt-ins relative to the number of potential class members weighs against certification. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=BrwlXJ3V 3001 Castor is represented by: John F. Innelli, Esq. JOHN F. INNELLI, LLC 1818 Market St., Suite 3740 Philadelphia, PA 19103 Telephone: (267) 238-9884 E-mail: jinnelli@innellilaw.com ABC CAPITAL: Faces "Robinson" Suit Over Failure to Pay Overtime --------------------------------------------------------------- Winston Robinson, on behalf of himself and all others similarly situated v. ABC Capital Investments, LLC, Case No. 2:16-cv-02008- MSG (E.D. Penn., April 27, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. ABC Capital Investments, LLC operates a real estate company located at 1218 N Marshall St, Philadelphia, PA 19122. The Plaintiff is represented by: Michael Patrick Murphy Jr., Esq. MURPHY LAW GROUP LLC Eight Penn Center Suite 1803 1628 John F. Kennedy Blvd Philadelphia, PA 19103 Telephone: (215) 375-0961 E-mail: murphy@phillyemploymentlawyer.com ADJ PRODUCTS: Faces "Silva" Suit Over Failure to Pay Overtime ------------------------------------------------------------- Luis Silva, an individual, on behalf of himself and all others similarly situated v. ADJ Products, LLC, and Does 1 through 100, Case No. BC618581 (Cal. Super. Ct., April 27, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the California Labor Code. ADJ Products, LLC provides lighting, audio, and staging products for nightclubs, discos, mobile entertainers, bands, concert tours, theatre productions, TV shows, cruise ships, churches, trade shows, and architectural applications. The Plaintiff is represented by: Paul K. Haines, Esq. Tuvia Korobkin, Esq. Fletcher W. Schmidt, Esq. Andrew J. Rowbotham, Esq. HAINES LAW GROUP, APC 2274 East Maple Ave., Suite A El Segundo, CA 90245 Telephone: (424) 292-2350 Facsimile: (424) 292-2355 E-mail: phaines@haineslawgroup.com tkorobkin@haineslawgroup.com fschmidt@haineslawgroup.com arowbotham@haineslawgroup.com ALLIANCE FIBER: Faces "Luck" Suit Over Proposed Corning Merger -------------------------------------------------------------- Rudy Luck, individually and on behalf of all others similarly situated v. Alliance Fiber Optic Products, Inc., Peter C. Chang, Gwong-Yih Lee, James C. Yeh, Richard B. Black, Ray Sun, Corning Incorporated, Apricot Merger Company, and Does 1-25, inclusive, Case No. 16CV294413 (Cal. Super. Ct., April 27, 2016), is brought on behalf of all public stockholders of Alliance Fiber Optic Products, Inc., to enjoin the proposed merger of the Company with Corning Incorporated, for an unfair price and inadequate consideration. Alliance Fiber Optic Products, Inc. is a Delaware corporation that designs, manufactures and markets a broad range of high performance fiber optic components and integrated modules for the optical network equipment market. Corning Incorporated is a New York corporation that manufactures of glass, ceramics, and related materials, primarily for industrial and scientific applications. The Plaintiff is represented by: Adam C. McCall, Esq. LEVI & KORSINSKY LLP 445 South Figueroa Street, 31st Floor Los Angeles, CA 90071 Telephone: (213) 985-7290 Facsimile: (202) 333-2121 - and - Shane T. Rowley, Esq. LEVI & KORSINSKY LLP 30 Broad Street, 24th Floor New York, NY 10004 Telephone: (212) 363-7500 Facsimile: (212) 363-7171 ALLIANCEONE RECEIVABLES: "Dibb" Class Opt-Out Period Extended ------------------------------------------------------------- In the case captioned MARGARET L. DIBB, SHAUNA OVIST, and WENDY GONDOS, individually and on behalf of others similarly situated, Plaintiffs, v. ALLIANCEONE RECEIVABLES MANAGEMENT, INC., Defendant, Case No. 14-5835 RJB (W.D. Wash.), Judge Robert J. Bryan granted the plaintiffs' motion for an extension of time to send the class notices and to reset the expiration of the opt-out period. The amended deadline for Plaintiffs to send notice of this case to class members was April 15, 2016. The amended deadline set for expiration of the opt-out period was May 30, 2016. When the Plaintiffs mailed the notices to class members on April 15, 2016, the notices inadvertently stated the opt-out date was April 15, 2016 -- the date set prior to the case amendment -- rather than using the amended date of May 30, 2016. Plaintiffs discovered their error on April 20. Accordingly, they moved the Court for an amended case schedule to ensure that class members have at least 45 days in which to exercise their right to optout of this lawsuit. The Court also denied Defendant's motion for appointment of a third party administrator. The Defendant had sought appointment of a new class administrator (it suggests an entity called Class Action Administration LLC). A full-text copy of Judge Bryan's May 2, 2016 order is available at http://is.gd/uqyKwYfrom Leagle.com. Margaret Dibb, Shauna Ovist, Wendy Gondos, Plaintiffs, represented by Beth E Terrell -- bterrell@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC, David Arthur Leen, LEEN & O'SULLIVAN, Erika L. Nusser -- enusser@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC, Kathleen Sophia Box, LEEN & O'SULLIVAN, Paul Arons, LAW OFFICE OF PAUL ARONS & Samuel R Leonard, LEONARD LAW. AllianceOne Receivables Management Inc, Defendant, represented by Elizabeth K Morrison -- emorrison@gordonrees.com -- GORDON & REES & Jeffrey Edward Bilanko -- jbilank@gordonrees.com -- GORDON & REES. ALLSTATE INSURANCE: Must Face "Chen" TCPA Suit, 9th Cir. Says ------------------------------------------------------------- Justice Raymond C. Fisher of the Court of Appeals, Ninth Circuit affirmed the order denying Allstate's motion to dismiss for lack of subject matter jurisdiction in the case captioned, RICHARD CHEN; FLORENCIO PACLEB, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellant, Case No. 13-16816 (9th Cir.). In 2013, Richard Chen and Florencio Pacleb filed a class action complaint against Allstate Insurance Company, alleging he received unsolicited automated telephone calls to his cellular telephone, in violation of the Telephone Consumer Protection Act. Chen alleged he received eight calls from Allstate in violation of Sec. 227(b)(1)(A). Pacleb alleged he received five such calls. In Pacleb's case, the automated calls asked for an individual named Frank Arnold. Chen and Pacleb brought their claims "on behalf of themselves and all others similarly situated," as members of a proposed class defined as "All persons within the United States who received any telephone calls from Defendant to said person's cellular telephone made through the use of any automatic telephone dialing system and such person had not previously consented to receiving such calls within the four years prior to the filing of this Complaint." In their first cause of action, for negligent violations of the TCPA, Chen and Pacleb sought for themselves and the members of the proposed class $500 in statutory damages for each violation and injunctive relief prohibiting such conduct in the future. In their second cause of action, for knowing or willful violations of the TCPA, they sought $1500 in statutory damages for each violation and similar injunctive relief. The plaintiffs subsequently abandoned their claims for knowing or willful violations of the TCPA. In April 2013, before any motion for class certification had been made, Allstate made an offer of judgment to Chen and Pacleb under Rule 68 of the Federal Rules of Civil Procedure. Allstate offered to allow judgment to be taken against it by Chen and Pacleb "on their individual claims in the amount of $15,000.00 and $10,000.00, respectively, together with reasonable attorneys' fees and costs that have been accrued to date. Allstate urged the court to enter judgment of dismissal "in its favor and against Plaintiffs with prejudice." While the motion to dismiss was pending, Chen accepted Allstate's Rule 68 offer. Pacleb did not. The district court denied Allstate's motion to dismiss. On appeal, Allstate argues that the Court should "reverse the denial of Allstate's motion to dismiss for lack of subject matter jurisdiction and remand to the District Court to order disbursement of the tendered funds to Pacleb, the entry of judgment in favor of Pacleb and the dismissal of this action as moot." In his Opinion dated April 12, 2016 available at http://is.gd/r6gEnsfrom Leagle.com, Judge Fisher held that the judgment Allstate has consented to would afford Pacleb complete relief on his individual claims for damages and injunctive relief. Even if Pacleb's individual claims were otherwise fully satisfied, he could continue to seek class certification under Pitts. Plaintiffs are represented by F. Paul Bland, Jr., Esq. -- pbland@publicjustice.net -- and Claire Prestel, Esq. -- cprestel@publicjustice.net -- PUBLIC JUSTICE, P.C., Joshua B. Swigart, Esq. -- josh@westcoastlitigation.com -- HYDE & SWIGART - and - Abbas Kazerounian, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Ave, Costa Mesa, CA 92626 Tel: (949)612-9999 Allstate Insurance Company is represented by Mark J. Levin, Esq. -- levinmj@ballardspahr.com -- Daniel M. Benjamin, Esq. -- Benjamin@ballardspahr.com -- and Scott M. Pearson, Esq. -- pearsonj@ballardspahr.com -- BALLARD SPAHR LLP AMERICAN EAGLE: Has Sent Unsolicited Messages, "Bricco" Suit Says ----------------------------------------------------------------- Laree Bricco, on behalf of herself and all others similarly situated v. American Eagle Outfitters, Inc., Case No. 2:16-cv- 00505-CNC (E.D. Wis., April 27, 2016), seeks to stop the Defendant's practice of sending unsolicited text messages to telephones of consumers nationwide. American Eagle Outfitters, Inc. is an international clothing retailer with more than 1,000 retail stores. The Plaintiff is represented by: Jeffrey M. Salas, Esq. SALAS WANG LLC 155 N. Wacker, Suite 4250 Chicago, IL 60606 Telephone: (312)803-4963 Facsimile: (312) 244-3151 E-mail: jsalas@salaswang.com - and - Ronald A. Marron, Esq. Alexis Wood, Esq. Kas Gallucci, Esq. LAW OFFICES OF RONALD A. MARRON 651 Arroyo Drive San Diego, CA 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 E-mail: admin@consumersadvocates.com ASHLEY FURNITURE: Faces "Razo" Class Suit in C. Dist. California ---------------------------------------------------------------- A class action lawsuit has been commenced against Ashley Furniture Industries, Inc., Ashley Homestores, Ltd., and Does 1 through 100, inclusive. The case is captioned Nicholas Razo and Kathleen Koehn, on behalf of himself and all others similarly situated v. Ashley Furniture Industries, Inc., Ashley Homestores, Ltd., and Does 1 through 100, inclusive, Case No. 2:16-cv-02911 (C.D. Cal., April 27, 2016). The Defendants own and operate a home furnishing retail company headquartered in Arcadia, Wisconsin. Nicholas Razo and Kathleen Koehn are pro se plaintiffs. ASTRAZENECA: Del. High Court Affirms Dismissal of Nexium Action --------------------------------------------------------------- Justice Collins J. Seitz, Jr. of the Delaware Supreme Court affirmed the Superior Court's dismissal of the action with prejudice in the case captioned, TEAMSTERS LOCAL 237 WELFARE FUND; LOCAL 237 TEAMSTERS RETIREES' BENEFIT FUND; LOCAL 237 TEAMSTERS- PLAINVIEW-OLD BETHPAGE CENTRAL SCHOOL DISTRICT HEALTH AND WELFARE TRUST FUND; LOCAL 237 TEAMSTERS-NORTH BABYLON SCHOOL DISTRICT HEALTH AND WELFARE TRUST FUND; LOCAL 237 TEAMSTERS-BRENTWOOD SCHOOL DISTRICT HEALTH AND WELFARETRUST FUND; AND LOCAL 237 TEAMSTERS-SUFFOLK REGIONAL OFF-TRACK BETTING CORPORATION HEALTH AND WELFARE TRUST FUND, on behalf of themselves and all others similarly situated, Plaintiffs Below, Appellants, v. ASTRAZENECA PHARMACEUTICALS LP; AND ZENECA, INC., Defendants Below, Appellees, Case No. 415, 2015 (Del.). At issue are claims brought by the New York-based third party payor health insurers (TPPs) under various state consumer fraud laws against AstraZeneca Pharmaceuticals LP, and Zeneca Inc. (AstraZeneca). The TPPs allege that AstraZeneca falsely advertised its more expensive patented prescription drug Nexium as superior to the less expensive generic drug Prilosec, causing the TPPs to overpay for Nexium when generic Prilosec would have sufficed to treat their conditions. After conducting an extensive choice of law analysis, the Superior Court determined that New York law controlled the TPPs' claims. The court then held that the TPPs failed to state a claim under New York's consumer fraud statute for failure to allege legally sufficient causation. According to the Superior Court, a physician's expertise in prescribing drugs for a patient's condition broke the causation chain between the advertising and the injury. The Superior Court denied leave to amend and dismissed the action with prejudice. On appeal, the TPPs claim that Delaware law, not New York law, should govern their claims because Delaware has a closer connection to the claims. They also argued that the Superior Court erred in its causation analysis because the physician's decision to prescribe the higher-priced Nexium based on the allegedly false advertising, when lower-priced Prilosec supposedly would do, directly injured them by forcing them to pay higher prescription drug costs. In the Decision dated April 12, 2016, available at http://is.gd/jIV7UBfrom Leagle.com, Justice Seitz found that either state consumer fraud statute the TPPs cannot recover damages as a matter of law. Before recovering damages, both statutes require that the TPPs must be a victim of, or be injured by reason of or as a result of the allegedly false advertising. The TPPs cannot meet this standard of causation because any injury they suffered was self-inflicted. Teamsters Local 237 Welfare Fund is represented by Uriel Rabinovitz, Esq. -- urabinovitz@lowey.com -- Barbara J. Hart, Esq. -- bhart@lowey.com -- and Scott V. Papp, Esq. -- spapp@lowey.com -- LOWEY DANNENBERG COHEN & HART, P.C., Pamela S. Tikellis, Esq. - - PamelaTikellis@chimicles.com -- A. Zachary Naylor, Esq. -- ZN@chimicles.com -- and Tiffany J. Cramer, Esq. -- TiffanyCramer@chimicles.com -- CHIMICLES & TIKELLIS LLP, L. Kendall Satterfield, Esq. -- ksatterfield@finkelsteinthompson.com -- FINKELSTEIN THOMPSON LLP, Robert S. Schachter, Esq. -- rschachter@zsz.com -- and Dan Drachler, Esq. -- ddrachler@zsz.com -- ZWERLING, SCHACHTER & ZWERLING, LLP, Jeffrey L. Kodroff, Esq. -- jkodroff@srkw-law.com -- SPECTOR ROSEMAN KODROFF & WILLIS, PC AstraZeneca Pharmaceuticals LP is represented by Michael P. Kelly, Esq. -- mkelly@mccarter.com -- and Daniel M. Silver, Esq. -- dsilver@mccarter.com -- MCCARTER & ENGLISH LLP, Jack B. Jacobs, Esq. -- jack.jacobs@sidley.com -- Mark E. Haddad, Esq. -- mhaddad@sidley.com -- Joshua E. Anderson, Esq. -- janderson@sidley.com -- and David R. Carpenter, Esq. -- drcarpenter@sidley.com -- SIDLEY AUSTIN LLP BAKERY EXPRESS: Recalls 7-Eleven Fresh Cookies Due to Peanuts ------------------------------------------------------------- Bakery Express of Central FL., Inc. of Orlando, Florida is recalling select 7-ELEVEN FRESH TO GO cookies, because they may contain undeclared peanuts. People who have an allergy or severe sensitivity to peanuts run the risk of serious or life-threatening allergic reaction if they consume these products. The select 7-ELEVEN FRESH TO GO Cookies were distributed to 7- Eleven convenience stores in the state of Florida. The affected cookies are packed in a clear package film, 2 cookies per package, labeled "Fresh To Go" and have "best buy" date codes Friday, 04/22/16, Saturday, 04/23/16, Sunday, 04/24/16 on the front label. 7-Eleven Fresh To Go Sugar Cookie made with M&M chocolate candy, UPC: 052548558765 Product Description Lot Code Best By Dates ------------------- -------- ------------- 2 pack cookies 041916 4/24/16 042016 4/24/16 012116 4/24/16 7-Eleven Fresh To Go Peanut Butter Cookie, UPC: 052548585570 Product Description Lot Code Best By Dates ------------------- -------- ------------- 2 pack cookies 041916 4/24/16 042016 4/24/16 042116 4/24/16 No illnesses have been reported to date. The recall was initiated after one of our suppliers, CSM Bakery Solutions, reported that three different pre-bagged dry cookie mix bases may contain undeclared peanuts. These potentially contaminated cookie bases were used in production and distributed in packaging that did not reveal the presence of peanuts. The company and the ingredient supplier continue their investigation to determine the cause of the problem. Consumers who have purchased the above "best buy" date codes of the affected cookies are urged to return them to the place of purchase for a full refund. Consumers with questions may contact the company at 1-800-255-0711 Monday - Friday, 8am - 5pm EDT Pictures of the Recalled Products available at: http://is.gd/spZhve BASIC RESEARCH: Court Won't Amend March 31 Order in "Brady" Suit ---------------------------------------------------------------- Judge Sandra J. Feuerstein denied the defendant's motion seeking amendment of the district court's March 31, 2016 order in the case captioned ASHLEY BRADY and STEPHANIE DALLI CARDILLO, on behalf of themselves and all others similarly situated, Plaintiffs, v. BASIC RESEARCH, L.L.C., ZOLLER LABORATORIES, L.L.C., NICOLE E. POLIZZI a/k/a SNOOKI, DENNIS W. GAY, DANIEL B. MOWREY, and MITCHELL K. FRIEDLANDER, Defendants, No. 13-CV-7169(SJF)(ARL) (E.D.N.Y.). On March 31, 2016, the district court issued an Order denying the motion of defendants Basic Research, L.L.C., Zoller Laboratories, L.L.C., Dennis W. Gay, Mitchell K. Friedlander, and Nicole E. Polizzi to dismiss Ashley Brady's and Stephanie Dalli Cardillo's first amended complaint for lack of subject matter jurisdiction on the basis of an unaccepted offer of judgment made pursuant to Federal Rule of Civil Procedure 68. On April 7, 2016, the defendants filed a motion requesting that the court amend its March 31, 2016 Order so as to certify for interlocutory appeal the question of whether class action defendants in the Second Circuit may moot a putative class action before a plaintiff has had the opportunity to file a class certification motion by placing an amount of money sufficient to cover "all of the relief [plaintiff] could possibly obtain" in a trust account and requesting the district court to enter judgment against defendants over plaintiff's objection. A full-text copy of Judge Feuerstein's May 2, 2016 order is available at http://is.gd/w4I9SUfrom Leagle.com. Ashley Brady, Plaintiff, represented by Joseph Ignatius Marchese - - jmarchese@bursor.com -- Bursor & Fisher, P.A., Neal J Deckant -- ndeckant@bursor.com -- Bursor & Fisher, P.A., Scott A. Bursor -- scott@bursor.com -- Bursor & Fisher, P.A., Yitzchak Kopel -- ykopel@bursor.com -- Bursor & Fisher P.A. & Shane T. Rowley -- srowley@zlk.com -- Levi & Korsinsky LLP. Stephanie Dalli Cardillo, Plaintiff, represented by Shane T. Rowley, Levi & Korsinsky LLP & Joseph Ignatius Marchese, Bursor & Fisher, P.A.. Basic Research, L.L.C., Zoller Laboratories, L.L.C., Dennis W. Gay, Daniel B. Mowrey, Mitchell K. Friedlander, Defendants, represented by Daniel Adam Schnapp -- dschnapp@foxrothschild.com - - Fox Rothschild LLP, Gerald Arth -- garth@foxrothschild.com -- Fox Rothschild LLP, Jason Kerr, Price Parkinson & Kerr, PLLC, Ronald F. Price, Price Parkinson & Kerr, PLLC,Ryan Becker -- rbecker@foxrothschild.com -- Fox Rothschild LLP & Stephanie Resnick -- sresnick@foxrothschild.com -- Fox, Rothchild, O'Brien & Frankel, LLP. Nicole E. Polizzi, Defendant, represented by Henninger Simons Bullock -- hbullock@mayerbrown.com -- Mayer Brown Rowe & Maw LLP, Jason Kerr, Price Parkinson & Kerr, PLLC & Ronald F. Price, Price Parkinson & Kerr, PLLC. BELK INC: Certification of Sales Team Managers Class Sought ----------------------------------------------------------- The Plaintiffs in the lawsuit entitled Hope Halleen and Donna Maner, individually and on behalf of all others similarly situated v. Belk, Inc., Case No. 4:16-cv-00055-RC (E.D. Tex.), ask the Court to conditionally certify the collective action and to approve and facilitate notice to similarly situated employees. The Plaintiffs alleges that Belk, Inc., misclassifies its Sales Team Managers as exempt and fails to pay them overtime compensation for hours worked in excess of 40 per week, in violation of the Fair Labor Standards Act, even though STMs spend the majority of their workdays performing non-exempt, retail clerk duties such as: cashiering; basic customer service; returns; stocking; inventory; cleaning; folding, tagging and hanging clothes; and operational/clerical duties. Through this Motion, the Plaintiffs, who worked in at least 13 different store locations in five different states, seek to protect the rights of hundreds of STMs across the country. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=9tMbQpHY The Plaintiffs are represented by: Alan L. Quiles, Esq. Gregg I. Shavitz, Esq. Paolo C. Meireles, Esq. SHAVITZ LAW GROUP, P.A. 1515 S. Federal Hwy., Suite 404 Boca Raton, FL 33432 Telephone: (561) 447-8888 Facsimile: (561) 447-8831 E-mail: aquiles@shavitzlaw.com gshavitz@shavitzlaw.com pmeireles@shavitzlaw.com - and - Marc S. Hepworth, Esq. Charles Gershbaum, Esq. David A. Roth, Esq. Rebecca S. Predovan, Esq. HEPWORTH, GERSHBAUM & ROTH, PLLC 192 Lexington Avenue, Suite 802 New York, NY 10016 Telephone: (212) 545-1199 Facsimile: (212) 532-3801 E-mail: mhepworth@hgrlawyers.com cgershbaum@hgrlawyers.com david.roth@rothandrothlaw.com rpredovan@hgrlawyers.com The Defendant is represented by: John B. Brown, Esq. Britney Dieng, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Preston Commons West 8117 Preston Road, Suite 500 Dallas, TX 75225 Telephone: (214) 987-3800 Facsimile: (214) 987-3927 E-mail: john.brown@ogletreedeakins.com britney.dieng@ogletreedeakins.com BIMBO BAKERIES: Ninth Circuit Stays Mislabeling Class Action ------------------------------------------------------------ Alexandra Steinberg Laks, Esq. -- alaks@mofo.com -- of Morrison & Foerster LLP, in an article for JSupra Business Advisor, reports that we've recently reported on numerous district court -- and even Ninth Circuit --stays in false advertising actions. Many of these stays have been based on FDA's consideration of food labeling issues, such as those involving evaporated cane juice (ECJ), the term "natural" or the presence of partially hydrogenated oils (PHOs) in food products. But courts have also stayed cases pending the Ninth Circuit's review of class certification decisions in misbranding cases, finding that appellate guidance will aid in courts' consideration of these issues. Now, a mislabeling action against Bimbo Bakeries has been stayed on the latter ground: Ang v. Bimbo Bakeries USA, Inc., No. 13-cv- 01196-HSG (N.D. Cal. March 31, 2016) (Dkt. No. 161) ("Order"). Bimbo is at least the sixteenth Northern District decision to put mislabeling claims on hold pending the Ninth Circuit's review. What's on the Ninth Circuit's Docket? In the upcoming year, the Ninth Circuit will review a number of the misbranding cases that have flooded this Circuit. The two key class action cases where district courts are awaiting guidance, however, are: Jones v. ConAgra Foods, Inc., No. 14-16327 (9th Cir. Nov. 24, 2014), which addresses the ascertainability requirement, and Brazil v. Dole Packaged Foods, LLC, No. 14-17480 (9th Cir. Dec. 18, 2014), which addresses the proper standard for damages models under Comcast Corp. v. Behrend. Brazil, which was dismissed on summary judgment, also raises issues regarding required proof of consumer deception as well as reliance and materiality requirements for claims sounding in fraud.[1] Judge Puts Bimbo Bakeries Action on Hold. On March 25, 2016, Northern District of California Judge Haywood Gilliam issued an order to show cause why plaintiffs' mislabeling action against Bimbo Bakeries should not be stayed pending resolution of these two appeals. In doing so, he noted that several courts in the District have stayed cases in light of the pending appeals in Jones and Brazil. The parties submitted a joint statement in response, indicating that neither opposed the stay. After analyzing factors courts use in considering stays, Judge Gilliam concluded that a stay was warranted. Because both parties agreed to the stay, neither would be harmed. Most importantly, "it would be an inefficient and imprudent use of judicial resources to rule on the pending motion for class certification when the Ninth Circuit may offer 'substantial guidance, if not new law, that will materially impact the Court's discussion in the instant case.'" (Order at 2:10-14 (citation omitted).) The court accordingly stayed the entire action pending the Jones and Brazil appeals. "Food Court" Is Quiet. Bimbo and other district court stays of misbranding actions have caused the Northern District, previously dubbed the "food court," to be relatively quiet on the false advertising front, at least for now. [1] Both the Brazil and Jones appeals will be heard together along with another food misbranding class certification decision, Briseno v. ConAgra Foods, Inc., No. 15-55727. Briseno also involves ascertainability and classwide damages issues. BRSB&G: Does Not Properly Pay Employees, "Jurado" Action Claims --------------------------------------------------------------- Tyvonne T. Jurado, as an individual and on behalf of the State of California and all Aggrieved Employees v. BRSB&G at The Grove, LLC, and Does 1 through 100, inclusive, Case No. BC618659 (Cal. Super. Ct., April 27, 2016), is brought against the Defendants for failure to provide proper meal periods without compensation of premium wages set out in California Labor Code. BRSB&G at The Grove, LLC operates a restaurant specializing in Japanese food in California and nationwide. The Plaintiff is represented by: Edward W. Choi, Esq. Paul M. Yi, Esq. LAW OFFICES OF CHOI & ASSOCIATES A Professional Corporation 3435 Wilshire Boulevard, Suite 2400 Los Angeles, CA 90010-2006 Telephone: (213) 381-1515 Facsimile: (213) 465-4885 E-mail: Edward.Choi@Choiandassociates.com BULLFRONG PEST: Faces "Guzman" Suit Over Failure to Pay Overtime ---------------------------------------------------------------- Ivan Guzman, on behalf of all others similarly-situated v. Bullfrong Pest Management, Inc. d/b/a AA quality Pest Control and George A. Rose, Case No. 0:16-cv-02089 (E.D.N.Y., April 27, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. The Defendants is a New-York based extermination and pest-control service company located at 2 Roosevelt Ave., Syosset, New York 11791. The Plaintiff is represented by: Caitlin McNaughton, Esq. BORRELLI & ASSOCIATES P.L.L.C. 1010 Northern Blvd, Suite 328 Great Neck, NY 11021 Telephone: (516) 248-5550 Facsimile: (516) 248-6027 E-mail: cm@employmentlawyernewyork.com CALLSMART INC: Dolemba Seeks Certification of TCPA & ICFA Classes ----------------------------------------------------------------- The Plaintiff in the lawsuit entitled SCOTT DOLEMBA, on behalf of plaintiff and the class defined below v. CALLSMART, INC., Case No. 1:16-cv-04863 (N.D. Ill.) asks the Court to enter an order determining that the action may proceed as a class action against Callsmart. The Plaintiff alleges violation of the Telephone Consumer Protection Act and the Illinois Consumer Fraud Act. The Plaintiff brings Count I, the TCPA claim, on behalf of a class, consisting (a) all persons (b) who, on or after a date four years prior to the filing of this action, and on or before a date 20 days following the filing of this action, (c) received calls from the Defendant on their cell phones, (d) placed using an automated dialer or a prerecorded or artificial voice. The Plaintiff brings Count II, the ICFA claim, on behalf of a class, consisting of (a) all persons with phone numbers in the Illinois area codes (b) who, on or after a date three years prior to the filing of this action, and on or before a date 20 days following the filing of this action, (c) received calls from defendant on their cell phones, (d) placed using an automated dialer or a prerecorded or artificial voice. Mr. Dolemba further requests that Edelman, Combs, Latturner & Goodwin, LLC be appointed counsel for the classes. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=UdY30uan The Plaintiff is represented by: Daniel A. Edelman, Esq. Cathleen M. Combs, Esq. James O. Latturner, Esq. Dulizaza (Julie) Clark, Esq. Michelle A. Alyea, Esq. EDELMAN, COMBS, LATTURNER & GOODWIN, LLC 20 S. Clark Street, Suite 1500 Chicago, IL 60603 Telephone: (312) 739-4200 Facsimile: (312) 419-0379 CASCADE DESIGNS: Recalls Avalanche Rescue Probes ------------------------------------------------ The U.S. Consumer Product Safety Commission, in cooperation with Cascade Designs Inc., of Seattle, Wash., announced a voluntary recall of about 1,600 Avalanche rescue probes in the U.S. (in addition, about 230 were sold in Canada). Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The lock button on the probe can fail to engage and lock, causing the probe not to function as intended. This can interfere with finding someone buried beneath snow, posing a suffocation hazard. This recall involves Mountain Safety Research Striker(TM) 320, Striker(TM) 240 avalanche rescue probes. The probe is divided into six or eight sections of 18-inch aluminum shafts that lock into place to create a single 94-inch or 126-inch probe, depending on the model. The probe is used by searchers to help identify something or someone buried by snow after an avalanche. "Striker 320" is printed on the red and gray probe and "Striker 240" is printed on the yellow and gray probe. "MSR" is printed on the shaft. No consumer incidents have been reported. Pictures of the Recalled Products available at: http://is.gd/hWQcMc The recalled products were manufactured in Korea and sold at REI and other outdoor recreation stores nationwide and online at Amazon.com and other websites from September 2014 through January 2016 for between $60 and $70. Consumers should immediately stop using the recalled probes and call Cascade Designs for instructions on receiving a refund or free replacement probe. CASHLESS PAYMENTS: Hearing on Class Cert. Bid Continued to May 17 ----------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on May 3, 2016, in the case entitled Able Home Health, LLC v. Cashless Payments, Inc., et al., Case No. 1:16-cv-04461 (N.D. Ill.), relating to a hearing held before the Honorable Samuel Der-Yeghiayan. The minute entry states that: -- the Plaintiff's motion for class certification is entered and continued to May 17, 2016, at 9:00 a.m.; -- the Plaintiff's motion to continue the Plaintiff's class motion is stricken as moot; -- initial status hearing is set for May 17, 2016, at 9:00 a.m.; -- at least four working days before the initial status hearing, the parties shall conduct a FRCP 26(f) conference and file a joint written Initial Status Report, not to exceed five pages in length, and file the Court's Joint Jurisdictional Status Report and deliver courtesy copies to this Court's Courtroom Deputy in Room 1908; and -- the Court's standing orders on the Initial Status Report and Joint Jurisdictional Status Report may be obtained from Judge Der-Yeghiayan's Web page or from this Court's Courtroom Deputy. A copy of the Notification of Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=Uq4emTks CAVIAR INC: Court Tosses "Levin" Wage and Hour Suit --------------------------------------------------- Magistrate Judge Elizabeth D. LaPorte dismissed the putative wage and hour class action, JEFFRY LEVIN, Plaintiff, v. CAVIAR, INC., Defendant, Case No. 15-cv-01285-EDL (N.D. Cal.). The case was brought by restaurant delivery drivers against Defendant Caviar, Inc. The Court previously granted a motion to compel arbitration of Plaintiff's individual claims, held that the class action waiver was enforceable but the California Private Attorneys General Act of 2004, Cal. Lab.Code, Sec. 2698 et seq. waiver was not, and ultimately ordered the parties to arbitrate the issue of the arbitrability of the PAGA claims. The Court stayed the case pending the arbitrator's decision on the question of whether Plaintiff's PAGA claim is arbitrable. On March 24, 2016, the parties filed a stipulation of dismissal with prejudice of Plaintiff's PAGA claims because they have agreed that another Caviar courier will pursue these claims in arbitration. The parties did not ask the Court to either stay or dismiss the remainder of the case. On March 29, 2016, the Court notified the parties that it was inclined to dismiss the entire case with prejudice and that any party who objected to dismissal of the case, or objected to dismissal with prejudice as opposed to without prejudice was required to file a brief of no more than three pages within one week of the date of the Court's order explaining the reason for the objection. No objections were received. A copy of the Court's May 2, 2016 Order is available at http://is.gd/umYpgNfrom Leagle.com. Jeffry Levin, Plaintiff, represented by Matthew David Carlson -- mcarlson@carlsonlegalservices.com -- Lichten & Liss-Riordan, P.C., Shannon Liss-Riordan -- sliss@llrlaw.com -- Lichten & Liss- Riordan, P.C., pro hac vice & Adelaide Pagano -- apagano@llrlaw.com -- Lichten and Liss-Riordan, P.C., pro hac vice. Caviar, Inc., Defendant, represented by Robert James Slaughter -- rslaughter@kvn.com -- Keker & Van Nest LLP, Ashok Ramani -- aramani@kvn.com -- Keker & Van Nest, LLP, Erin E. Meyer -- emeyer@kvn.com -- Keker and Van Nest LLP & Simona Alessandra Agnolucci -- sagnolucci@kvn.com -- Keker & Van Nest LLP. CAYAN LLC: Must Defend Against South Orange Chiropractic Action --------------------------------------------------------------- Chief District Judge Patti B. Saris of the United States District Court for the District of Massachusetts denied Defendant's Rule 12(b)(1) Motion to Dismiss the class action and to strike the class action allegations in the case captioned, SOUTH ORANGE CHIROPRACTIC CENTER, LLC, individually, and on behalf of all others similarly situated, Plaintiff, v. CAYAN LLC d/b/a CAPITAL BANKCARD, Defendant, Case No. 15-13069-PBS (D. Mass.). Plaintiff South Orange Chiropractic Center, LLC (South Orange), received the fax from Defendant Cayan LLC, doing business as Capital Bankcard (Capital Bankcard), promoting various merchant services. Soon afterwards, on August 3, 2015, South Orange filed a proposed class action with itself as class representative. Plaintiff immediately filed a motion to certify a class defined to include "all persons or entities within the United States to whom Capital Bankcard sent Junk Faxes promoting Capital Bankcard's goods or services at any time within four years prior to the filing of this Complaint through the date of certification in this action." The complaint seeks injunctive relief and statutory damages. On December 18, 2015, Defendant served Plaintiff with an offer of judgment pursuant to Federal Rule of Civil Procedure 68 and a stand-alone settlement offer. Defendant offered (1) to have judgment entered against it; (2) to pay $7,500 to Plaintiff, an amount in excess of the TCPA's statutory maximum of $1,500 per unsolicited fax; (3) to pay for any costs recoverable in the case; (4) to be enjoined from using any fax machine, computer, or other device to send unsolicited fax advertisements in violation of the TCPA to Plaintiff or any other entity; and (5) to preserve evidence. Defendant tendered a bank check in the amount of $7,500 with its offer and asserts that its settlement offer remains open. Plaintiff has rejected Defendant's offer of judgment and settlement offer, and has refused to accept the check Defendant offered. Defendant moved to dismiss and to strike class allegations arguing that Plaintiff's individual claims are now moot and, therefore, Plaintiff can no longer serve as a class representative. On February 4, 2016, Defendant requested that it be allowed to deposit the $7,500 with the Court in the event that the bank check that it tendered is deemed insufficient to provide the named plaintiff with complete relief. In her Memorandum and Order dated April 12, 2016 available at http://is.gd/WMcDg3from Leagle.com, Judge Saris held that even though Plaintiff's individual claims have become moot, the class action may proceed as a case or controversy under Article III. The named plaintiff no longer has the requisite "live claim" because Defendant has offered to deposit a check with the court, to satisfy all of Plaintiff's individual claims, and to have the district court enter judgment in Plaintiff's favor. The Clerk of Court accepts the $7,500 check Defendant has requested be deposited and directed the parties to confer and inform the Court whether interlocutory appeal under 28 U.S.C. Sec. 1292(b) is appropriate within two weeks of the issuance of the order. South Orange Chiropractic Center, LLC is represented by: Anthony I. Paronich, Esq. Edward A. Broderick, Esq. Matthew P. McCue, Esq. BRODERICK LAW PC 125 Summer St # 1030 Boston, MA 02110 Tel: (617) 738-7080 Cayan LLC is represented by Christine M. Reilly, Esq. -- creilly@manatt.com -- Diana L. Eisner, Esq. -- deisner@manatt.com -- and Matthew P. Kanny, Esq. -- mkanny@manatt.com -- at MANATT, PHELPS & PHILLIPS, LLP, Peter E. Ball, Esq. -- peb@sally-fitch.com -- and Ryan M. Cunningham, Esq. -- rmc@sally-fitch.com -- SALLY & FITCH LLP - and - Harry M. Haytayan, Jr., Esq. HAYTAYAN & HAYTAYAN, PLLC, One Tara Blvd Ste 200 Nashua, NH 03060 CHARTER COMMUNICATIONS: Conn. Court Tosses TCPA Class Action ------------------------------------------------------------ David M. Krueger, Esq. -- dkrueger@beneschlaw.com -- of Benesch Friedlander Coplan & Aronoff LLP, in an article for Lexology, reports that in Simmons v. Charter Communs., Inc., No. 15-cv-317, 2016 U.S. Dist. LEXIS 42091 (D. Conn. March 30, 2016), the District of Connecticut granted summary judgment in favor of Charter Communications in a putative class action alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. Sec. 227 ("TCPA"). Simmons alleged that Charter violated the TCPA by contacting him four times over a two week period, despite the fact that his telephone number was registered on the national do- not-call registry. Simmons sought to represent a class of similarly situated persons. The underlying facts in Simmons are detailed, but two holdings of the district court are of particular significance. First, the court held that Charter was entitled to summary judgment under the "safe harbor" of 47 C.F.R. Sec. 64.1200(c), because Charter called Simmons by accident (because it reasonably, though erroneously, believed that it was contacting an existing customer), and Charter had otherwise established reasonable policies and procedures to avoid calling individuals on the do-not-call registry. Second, Simmons also alleged that he instructed Charter not to call him anymore during one of the calls, but that Charter still called him after making this do-not-call request. Simmons alleged that Charter's conduct violated 47 C.F.R. Sec. 64.1200(d)(3), which requires telemarketers to record and honor a consumer's specific do-not-call request made to a company. The district court, however, rejected this argument, noting that subsection (d)(3) only required that a telemarketer honor a do not call request "within a reasonable time from the date such request was made," not to exceed 30 days. Charter honored the plaintiff's request within two weeks, which the court held was reasonable as a matter of law, as it was "half the period deemed by the regulation to be the outer limits of reasonableness." CHICAGO: Faces "Badillo" Class Suit in N. Dist. Illinois -------------------------------------------------------- A class action lawsuit has been commenced against City of Chicago. The case is captioned Natalie Badillo and Marina Pulido, on behalf of themselves and all others similarly situated v. City of Chicago, Case No. 1:16-cv-04707 (N.D. Ill., April 27, 2016). The city of Chicago is an Illinois municipal corporation. The Plaintiff is represented by: Katrina Carroll, Esq. Kyle Alan Shamberg, Esq. Lite DePalma Greenberg, LLC 211 W. Wacker Drive, Suite 500 Chicago, IL 60606 Telephone: (312) 750-1591 Facsimile: (973) 877-3845 E-mail: kcarroll@litedepalma.com kshamberg@litedepalma.com CHURCH & DWIGHT: Sued in N.Y. Over Truth-In-Lending Act Violation ----------------------------------------------------------------- Vincent Riedel and Yang Shen, on behalf of themselves and others similarly situated v. Church & Dwight Co., Inc., Case No. 2:16-cv- 02093 (E.D.N.Y., April 27, 2016), is brought against the Defendants for violation of the Truth-In-Lending Act. Church & Dwight Co., Inc. is a manufacturer of household products that is based in Ewing, New Jersey. The Plaintiff is represented by: C.K. Lee, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, 2nd floor New York, NY 10016 Telephone: (212) 465-1188 Facsimile: (212) 465-1181 E-mail: cklee@leelitigation.com CODILIS & ASSOC: "Gierke" Suit Alleging FDCPA Violation Dismissed ----------------------------------------------------------------- The Hon. Robert W. Gettleman entered a memorandum opinion and order granting the Defendant's motion to dismiss the putative class action lawsuit captioned JUSTIN GIERKE, on behalf of plaintiff and a class v. CODILIS AND ASSOCIATES, P.C., Case No. 15 C 11618 (N.D. Ill.). Mr. Gierke filed a one-count putative class action complaint against defendant Codilis alleging that it violated the Fair Debt Collection Practices Act. The Defendant filed the motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In his complaint, the Plaintiff alleges that the Defendant, a law firm, has been attempting to collect from him a loan, secured by his home, that is insured by the Federal Housing Authority. He also alleges that the Defendant filed a foreclosure action against him in DuPage County, Illinois, on February 17, 2015. He argues that the FHA "narrowly limits the circumstances under which a deficiency will be sought to cases where the borrower committed fraud or engaged in a 'strategic' default." According to the complaint, the "FHA does not authorize deficiencies where, as here, the Plaintiff suffered a financial emergency or hardship." The Defendant argues that the Plaintiff's complaint should be dismissed for failure to state a claim because it "did not make a false or misleading representation under Section 1692e of the FDCPA in the foreclosure complaint as the foreclosure plaintiff at all relevant times retained the right to seek a personal deficiency from Plaintiff based upon the plain language of the FHA regulations." According to the Defendant, and the Court agrees, the fact that the FHA ultimately may not authorize a deficiency judgment, does not make the allegations in the foreclosure complaint false or misleading. A copy of the Memorandum is available at no charge at http://d.classactionreporternewsletter.com/u?f=Bme86xia Justin Gierke, Plaintiff, represented by: Cathleen M. Combs, Esq. James O. Latturner, Esq. Michelle A. Alyea, Esq. Daniel A. Edelman, Esq. Edelman, Combs, Latturner & Goodwin LLC 20 South Clark Street, Suite 1500 Chicago, IL 60603 Tel: 312-739-4200 Fax: 312-419-0379 - and - Christopher Davis Kruger, Esq. Werner Wolfgang Gruber, Esq. Kruger & Gruber, LLP 500 N. Michigan Ave., Suite 600 Chicago, IL 60611 Tel: (847) 420-1763 Fax: (847) 733-0135 E-mail: chris@krugerandgruber.com werner@krugerandgruber.com Codilis & Associates, P.C., Defendant, represented by David M Schultz -- dschultz@hinshawlaw.com -- Hinshaw & Culbertson & Jason L Santos -- jsantos@hinshawlaw.com -- Hinshaw & Culbertson, LLP. COLGATE-PALMOLIVE CO: "Dean" Plaintiff Seeks Class Certification ---------------------------------------------------------------- The Plaintiff in the lawsuit styled JACQUELINE DEAN, on Behalf of Herself and all Others Similarly Situated v. COLGATE-PALMOLIVE CO., Case No. Case No. 5:15-CV-00107-JGB(DTBx), notifies the U.S. District Court for the Central District of California that, on September 12, 2016, she will move for an order certifying a class defined as: All persons in California, Delaware, the District of Columbia, Kansas, Missouri, New Jersey, Ohio, Utah, Virginia and West Virginia who purchased Optic White on or after October 1, 2013, or who purchased Optic White Platinum on or after February 1, 2014. A copy of the Notice is available at no charge at http://d.classactionreporternewsletter.com/u?f=nMrifP3l The Plaintiff is represented by: L. Timothy Fisher, Esq. Annick M. Persinger, Esq. Yeremey O. Krivoshey, Esq. BURSOR & FISHER, P.A. 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 E-mail: ltfisher@bursor.com apersinger@bursor.com ykrivoshey@bursor.com - and - Shane T. Rowley, Esq. Courtney E. Maccarone, Esq. LEVI & KORSINSKY, LLP 30 Broad Street, 24th Floor New York, NY 10004 Telephone: (212) 363-7500 E-mail: srowley@zlk.com cmaccarone@zlk.com - and - Christopher Marlborough, Esq. THE MARLBOROUGH LAW FIRM, P.C. 445 Broad Hollow Road, Suite 400 Melville, NY 11747 Telephone: (212) 991-8960 E-mail: chris@marlboroughlawfirm.com - and - Todd S. Garber, Esq. FINKELSTEIN, BLANKINSHIP, FREI-PEARSON & GARBER, LLP 1311 Mamaroneck Avenue, Suite 220 White Plains, NY 10605 Telephone: (914) 298-3283 E-mail: tgarber@fbfglaw.com COOK MEDICAL: Recalls Catheters with Beacon(R) Tip Technology ------------------------------------------------------------- Cook Medical initiated a voluntary recall of 4,146,309 catheters with Beacon(R) Tip technology. Catheters with Beacon Tip technology have been found to exhibit polymer degradation of the catheter tip, resulting in tip fracture and/or separation, which have resulted in 30 Medical Device Reports to date. Potential adverse events that may occur as a result of catheter polymer degradation could include loss of device function, separation of a device segment leading to medical intervention, or complications resulting from a separated segment. Such complications include device fragments in the vascular system, genitourinary system, or other soft tissues. Fragments within the vascular system could result in embolization to the heart or lungs, or occluding blood flow to end organs. Cook Medical has notified its customers and distributors by recall notification letters. The letters requested that all customers and distributors quarantine and discontinue use of all potentially affected units and return the affected product to Cook as soon as possible for credit. Catheters with Beacon Tip technology are intended for use by physicians who are trained and experienced in each of the procedures for which these devices are indicated for use. Product Family Intended Use -------------- ------------ Beacon(R) Tip Torcon The catheters are intended for use in NB(R) Advantage Catheter the peripheral and coronary vascular system including the carotid arteries in angiographic procedures by physicians trained and experienced in angiographic techniques. Standard techniques for placement of vascular access sheaths, angiographic catheters and wire guides should be employed. Beacon(R) Tip Royal The catheters are intended for use in Flush(R) Plus High-Flow angiographic procedures by physicians Catheter trained and experienced in Beacon(R) Tip Centimeter angiographic techniques. Standard Sizing Catheter techniques for placement of vascular Beacon(R) Tip White access sheaths, angiographic Vessel Sizing Catheter catheters and wire guides should be Beacon(R) Tip Vessel employed. Sizing Catheter Shuttle(R) Select The catheters are intended for use Slip-Cath in angiographic procedures by Slip-Cath(R) Beacon(R) physicians trained and experienced in Tip Catheter angiographic techniques. FluoroSet(R) Used for instillation of contrast Radiographic Tubal media into the uterine cavity for Assessment Set radiographic evaluation of the uterine cavity and for injection of appropriate contrast media into the fallopian tubes for evaluation of tubal patency. Haskal Transjugular Intended for transjugular liver Intrahepatic Portal access in diagnostic and Access Set interventional procedures. Kumpe Access Catheter Used in combination with a HiWire(R), Bentson, or other flexible-tipped wire guide to gain difficult ureteral access beyond a redundant or tortuous ureteral segment. Liver Access and Biopsy Intended for use in obtaining liver Needle Set histology samples via a jugular vein approach. Neff D'Agostino Intended for single-puncture Percutaneous Access Set percutaneous access to facilitate Aprima(TM) Access placement of an .038 inch (0.97 mm) Nonvascular Introducer diameter working wire guide for Set interventional radiology procedures. Selective Salpingography Used for injection of contrast medium Catheter with Beacon(R) into the fallopian tube(s) for Tip selective salpingography. Transluminal Biliary Intended for access to and biopsy of Biopsy Forceps Set tissue within the biliary ductal system. White Lumax(R) Guiding Intended for the delivery of Coaxial Catheter angioplasty balloons and other types of interventional devices. This recall includes all lots of catheters with the Beacon(R) Tip technology. A full product listing is attached. Products can be identified by the part number on the outer package of the product label. Products in this recall were distributed globally. Cook Medical identified an increase in reports of polymer degradation of the catheter tip, resulting in tip fracture and/or separation. The preliminary investigation into this matter has identified that environmental conditions, such as storage temperature, humidity, the use of Vaporized Hydrogen Peroxide (VHP) for whole-room decontamination within healthcare facilities, may be contributing to the occurrence. Cook Medical recognizes that there may be other undetermined contributors to this issue and will continue to investigate. The FDA and other regulatory agencies around the world have been notified of this action. Consumers with medical questions or concerns should contact Cook Medical Customer Relations at 1-800-457-4500 or 1-812-339-2235, Monday through Friday, between 7:30 a.m. and 5:00 p.m. Eastern time. For information regarding the recall, please contact Stericycle Expert Solutions at 1-866-201-9067. 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. Complete and submit the report online at www.fda.gov/medwatch/report.htm or via regular mail or fax. Download the form at www.fda.gov/MedWatch/getforms.htm or call 1- 800-332-1088 to request a reporting form, and then complete and return to the address on the preaddressed form, or submit by fax to 1-800-FDA-0178. Adverse events may also be reported to Cook Medical Customer Relations at 1-800-457-4500 or 1-812-339-2235, Monday through Friday, between 7:30 a.m. and 5:00 p.m. Eastern time or by email at CustomerRelationsNA@cookmedical.com. Pictures of the Recalled Products available at: http://is.gd/gVc4aF CORNERSTONE HOME: Bingham Seeks Conditional Class Certification --------------------------------------------------------------- The Plaintiff in the lawsuit entitled CHRISTINA BINGHAM, On Behalf of Herself And All Others Similarly Situated v. CORNERSTONE HOME LENDING, INC., Case No. 4:15-cv-2377 (S.D. Tex.) moves for approval of notice to potential plaintiffs and conditional certification under the Fair Labor Standards Act. The lawsuit is brought individually and on behalf of other similarly-situated current and former exempt classified mortgage origination employees, including Loan Officers employed by Cornerstone Home Lending, Inc. Ms. Bingham brings this collective action to recover unpaid overtime wages pursuant to the FLSA because the Defendant allegedly uniformly misclassifies its mortgage origination employees, including Loan Officers as exempt from overtime. She states that the Defendant employed her as a LO to sell its mortgage products and services in its office in the Scottsdale, Arizona area. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=W4X6yGdP The Plaintiff is represented by: Rowdy B. Meeks, Esq. ROWDY MEEKS LEGAL GROUP LLC 10601 Mission Rd., Suite 100 Leawood, KS 66206 Telephone: (913) 766-5587 Facsimile: (816) 875-5069 E-mail: Rowdy.Meeks@RMLegalGroup.com COSTCO: Faces Class Action Over Organic Berry Cherry Blend ---------------------------------------------------------- Siskinds LLP on April 28 disclosed that it has launched a class action regarding the recall of Nature's Touch Organic Berry Cherry Blend due to possible contamination with Hepatitis A. The Canadian Food Inspection Agency has issued various public warnings that certain bags of Nature's Touch Organic Berry Cherry Blend sold exclusively at Costco warehouse locations in Ontario, Quebec, New Brunswick, Nova Scotia and Newfoundland and Labrador may be contaminated with Hepatitis A. The Canadian Food Inspection Agency states that there have been reported illnesses associated with the consumption of this product. Further information about the recall is available on the Canadian Food Inspection Agency website: www.inspection.gc.ca Among other things, the plaintiff alleges that Nature's Touch negligently produced the Organic Berry Cherry Blend, which was negligently distributed by Costco and seeks to recover on behalf of purchasers of those products and their family members. Siskinds LLP acts in a proposed class action for Canadians seeking compensation for physical injury, medical expenses, lost wages or employment income, and a refund for the cost of purchasing the recalled product. Siskinds LLP continues to investigate the case. Consumers who purchased the recalled Berry Cherry blend should retain copies of related receipts. Consumers who believe they might have consumed Nature's Touch Organic Berry Cherry Blend and are experiencing physical discomfort (symptoms range in severity and include fever, loss of appetite, stomach cramps, and jaundice) should seek medical advice and retain copies of any related medical reports, prescriptions, etc. Elizabeth deBoer - elizabeth.deboer@siskinds.com -- a lawyer with Siskinds LLP, describes the purpose of the proceeding: "Canadian consumers have a right to trust that the food they purchase is of the quality and standard they expect, such that it is safe for consumption and will not pose a health risk. This lawsuit seeks to protect that right." Siskinds LLP have been counsel in many product liability and other class actions, recovering millions of dollars for consumers. CRACKER BARREL: Persons w/ Mobility Disabilities Class Certified ---------------------------------------------------------------- The Hon. Mark R. Hornak entered an order in the lawsuit captioned SARAH HEINZL, individually and on behalf of all others similarly situated v. CRACKER BARREL OLD COUNTRY STORE, INC., Case No. 2:14- cv-01455-MRH-RCM (W.D. Pa.): -- denying the Defendant's motion for summary judgment; -- granting the Plaintiff's motion to certify class. The following class is certified: All persons with qualified mobility disabilities who were denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any Cracker Barrel store location in the United States on the basis of disability because such persons encountered accessibility barriers due to Cracker Barrel's failure to comply with the ADA's accessible parking and path of travel requirements; and -- appointing Sarah Heinzl as the representative Plaintiff for this Class and that the law firm of Carlson Lynch Sweet & Kilpela, LLP is appointed as counsel for the Class. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=hYNxV8kM CRAVE RESTAURANT: Tipped Employees Seek Class Certification ----------------------------------------------------------- The Plaintiffs in the lawsuit entitled JULIE ULLETT and SARAH RUSSELL, individually and on behalf of all similarly situated individuals v. CRAVE RESTAURANT OHIO, LLC, d/b/a CRAVE-American Kitchen and Sushi Bar, Case No. 1:16-cv-00272-MRB (S.D. Ohio), move, pursuant to Section 16(b) of the Fair Labor Standards Act for entry of an order: (1) conditionally certifying the proposed collective FLSA class as defined herein; (2) implementing a procedure whereby Court-approved Notice of Plaintiffs' FLSA claims is sent (via U.S. Mail and e-mail) to: All individuals employed by Defendant in its Ohio restaurants as servers, waiters, waitresses, bartenders, server trainers, banquet servers and banquet captains and other tipped employees at anytime from January 28, 2013 through and including the present; and (3) requiring the Defendant to, within 14 days of this Court's order, identify all potential opt-in plaintiffs by providing a list in electronic and importable format, of the names, addresses, and e-mail addresses of all potential opt-in plaintiffs, who worked for Defendant in Ohio at any time from approximately January 28, 2013, through and including the present and until the final resolution of the case. The Plaintiffs, who are tipped employees of Crave, allege that throughout their employment, Crave paid them at a reduced minimum wage rate while attempting to utilize a tip credit to satisfy its obligation of paying the federally established minimum wage. They also allege that it was also Crave's common business practice to require its Servers to participate in an illegal tip pool maintained and administered by the Defendant's management employees, in which servers were required to remit 5% of their total sushi sales to nontipped employees, including a management employee. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=Bg8lAex3 The Plaintiffs are represented by: Robert E. DeRose, Esq. Molly K. Tefend, Esq. BARKAN MEIZLISH HANDELMAN GOODIN DEROSE WENTZ, LLP 250 E. Broad St., 10th Floor Columbus, OH 43215 Telephone: (614) 221-4221 Facsimile: (614) 744-2300 E-mail: bderose@barkanmeizlish.com mtefend@barkanmeizlish.com CSM BAKERY: Recalls Cinnabon Stix Products Due to Peanut -------------------------------------------------------- Bakery supplier, CSM Bakery Solutions, has notified Cinnabon of the recall of Cinnabon Stix due to the possible presence of peanut allergens in an ingredient used in Cinnabon Stix. The Cinnabon Stix are sold in bakery cups, bags, or boxes, and may have been distributed to Cinnabon retail locations throughout the U.S. and internationally. Although the nutritional and allergen information currently indicates that Cinnabon products may contain milk, eggs, wheat, soy, peanuts, pecans, other tree nuts or traces of nuts, Cinnabon is taking extra measures knowing that peanut allergens have been detected in the ingredients for the Cinnabon Stix. People who have an allergy or severe sensitivity to specific types of allergens, such as peanuts, run the risk of serious life-threatening allergic reaction if they consume these products. Cinnabon is not aware of any complaints or illnesses at this time. Effective immediately, all Cinnabon bakeries are discontinuing the sale of Cinnabon Stix until CSM has confirmed that the potential source of peanut allergens has been contained and eliminated. Anyone who has purchased Cinnabon Stix is encouraged to discard them if there is possible exposure to anyone with a peanut allergy. Founded in Seattle in 1985 and now based in Atlanta, Cinnabon LLC, is the market leader among cinnamon roll bakeries. The company serves fresh, aromatic, oven-hot cinnamon rolls, as well as a variety of other baked goods and specialty beverages. Cinnabon(R) currently operates over 1,200 franchised locations worldwide, primarily in high traffic venues such as shopping malls, airports, train stations, travel plazas, entertainment centers and military establishments. Cinnabon(R) is also a multi-channel licensor, partnering with other companies to provide over 70 brand licensed products at foodservice and retail venues. Visit www.Cinnabon.comdisclaimer icon for more information, follow on Twitter @Cinnabon or become a Facebook fan at www.facebook.com/Cinnabon. About FOCUS Brands Inc. Atlanta-based FOCUS Brands Inc., through its affiliate brands, is the franchisor and operator of more than 5,000 ice cream shoppes, bakeries, restaurants, and cafes in the United States, the District of Columbia, Puerto Rico and 60 foreign countries under the brand names Carvel(R), Cinnabon(R), Schlotzsky's(R), Moe's Southwest Grill(R), Auntie Anne's(R) and McAlister's Deli(R), as well as Seattle's Best Coffee(R) on certain military bases and in certain international markets. Please visit www.focusbrands.comdisclaimer icon to learn more. CSM BAKERY: Recalls Red Velvet Cake & Chocolate Chip Cookies ------------------------------------------------------------ CSM Bakery Solutions (Atlanta, GA) is voluntarily recalling the following products: -- Safeway 8" Single Layer Red Velvet Cake -- ACME 12" Decorated Chocolate Chip Cookie -- Jewel 12" Decorated Chocolate Chip Cookie People who have an allergy or severe sensitivity to peanut run the risk of a serious or life-threatening allergic reaction if they consume these products. The 8" Single Layer Red Velvet Cake was sold in Safeway stores in Wyoming, Colorado, New Mexico (Farmington and Aztec), South Dakota, and Nebraska. The 12" Decorated Chocolate Chip Cookie was sold in Acme stores in Delaware, Maryland, New Jersey, Pennsylvania, Connecticut, New York and Jewel stores in Iowa, Illinois, and Indiana. Products listed may contain undeclared peanuts. Both products are merchandised in the bakery department and can be identified as follows: Product Description UPC Code Lot Code Name (Size) -------- -------- ------- of Package ----------- Cake Red Net Wt. 1lb 3oz Unit UPC: Sell Thru: Apr 14, 16 Velvet 1 0226945 (April 14, 2016) Layer 8" through May 2 16 (May 2, 2016) 12" 24 oz. Unit UPC: Sell Thru: May 02, 16 Decorated 4114405568 Chocolate Unit UPC: Chip Cookie 4114457856 Unit UPC: 4114457855 *latest sell thru date code based upon shelf life. Scale Label is applied Product Description UPC Code Lot Code Name (Size) -------- -------- ------- of Package ----------- 12" 24 oz. Unit UPC: Sell Thru Apr 28, 16 Decorated 4114405568 Chocolate Chip Cookie *latest sell thru date code based upon shelf life. Scale label is applied No illnesses have been reported to date. The recall was initiated after it was discovered by CSM during post-production testing that flour containing undeclared peanut as a result of incidental contact was provided by a supplier to CSM Bakery Solutions. The flour was used in products distributed by CSM in packaging that did not reveal the presence of peanut. Consumers and wholesale customers who have purchased the product are urged to return it to the place of purchase for a full refund. Consumers with questions may contact CSM Bakery Solutions at 1- 800-241-8526 extension 4, option 3. Calls can be made to this office during normal business hours (EST) during the week. Email inquiries can be sent to CSMrecall@csmbakerysolutions.com. Consumers can also contact ACME and Jewel at 1-877-723-3929 at any time. D'ARCY PLACE: Former Residents to Receive Compensation ------------------------------------------------------ Todd McEwen, writing for Northumberland News, reports that a $36-million lawsuit was awarded to former residents who were housed for decades in provincial hospitals where it's claimed they experienced widespread abuse and neglect, including at a former Cobourg facility. The Superior Court of Justice approved the settlement on Monday, April 25. It provides individuals who suffered harm while living at the 12 former developmental services facilities between the 1960s and 1990s a chance to receive financial compensation. One of the facilities is the former Cobourg developmental hospital, D'Arcy Place, which operated from 1963 to 1996. The lawsuit stated the Province of Ontario failed to properly care for and protect the people who lived in the institutions. The lawsuit claimed the people who lived there were emotionally, sexually, physically and psychologically traumatized by their experiences. "I'm glad that we were able to reach a fair settlement in this matter. These individuals were harmed in a place that was intended to provide them with care, and while we cannot change the past, it is my hope that this settlement will help these individuals -- and their families -- to heal," Attorney General Madeleine Meilleur said. The lawsuit was filed by Marlene McIntyre, a former resident of D'Arcy Place who began living there in 1963 when she was 13 years old. While in operation, D'Arcy Place housed thousands of residents who were labelled "severely developmentally challenged and delayed," the lawsuit states. Individuals were admitted to D'Arcy Place either by family members or their principal caregivers. Once inside, the lawsuit claims, residents lost their free will and their lives were "dictated, controlled and provided for" by the Province. "Individuals at D'Arcy had virtually no control over any aspect of their lives," the lawsuit claims. "The opportunities to make choices and provide any input into their daily lives were extremely limited if not non-existent." Ms. McIntyre claims she was repeatedly and continuously abused and punished, which began upon her initial admission and continued throughout her duration at the facility. "Residents were left to aimlessly walk or crawl around the facilities at times, often without any clothing," according to the lawsuit, and "were organized into work gangs to perform the routine and ordinary tasks of running such an institution." The lawsuit alleges Ms. McIntyre was hit across the head with wooden and metal spoons, was subject to consistent, demeaning verbal abuse and her arm was broken by a staff member as punishment. The lawsuit claims she found her life at D'Arcy "terrifying" and for many years watched as her fellow residents were beaten and humiliated by staff members. The lawsuit also claims the Province was well aware of the inadequate resources at D'Arcy Place following a 1971 report sponsored by the Ministry of Health, entitled "Present Arrangements of the Care and Supervision of Mentally Retarded Persons in Ontario". The report was a scathing indictment of large institutions for people with mental handicaps. The report claimed the wards were "severely overcrowded", lacked "any degree" of personal attention or privacy, a complete segregation of sexes and residents were paid "minimal and completely unrealistic wages" for their work, ranging from four cents to eight cents an hour. "This is aiming to partially close the loop on Ontario's history of institutionalization," Jody Brown of Koskie Minsky LLP said, referring to two similar class-action lawsuits settled in the last few years. The first saw about 1,075 former residents of the Huronia Regional Centre in Orillia settle their lawsuit for $35 million in 2013, while about 1,700 former residents of the Rideau and Southwestern Regional Centre settled for $32.7 million. Between 1977 and 1999, the 12 facilities listed in the lawsuit closed their doors. The government decided to shut down institutions and relocate adults with developmental disabilities to homes in their community. "We're building a more inclusive Ontario, where people with developmental disabilities can live as independently as possible in their communities," Dr. Helena Jaczek, minister of Community and Social Services said. "That's why our government closed the province's last remaining facilities and transitioned to community supports and services -- a key step in our ongoing transformation of developmental services." DEFFENBAUGH INDUSTRIES: Court Wants More Evidence to Support Deal ----------------------------------------------------------------- The Hon. Carlos Murguia entered an order in two lawsuits against Deffenbaugh Industries, Inc. and Deffenbaugh Disposal, Inc., directing that the parties may provide evidence in support of their supplemental submission regarding their proposed class action settlement. The brief should be limited to 15 pages absent leave of court. Judge Murguia also directed the parties to submit the supplemental joint brief by May 17, 2016, or seek an extension of time. The lawsuits are: LARRY WHITTON, on behalf of himself and all others similarly situated v. DEFFENBAUGH INDUSTRIES, INC. and DEFFENBAUGH DISPOSAL, INC., Case No. 2:12-cv-02247-CM-KGG (D. Kan.), and GARY, LLC, on behalf of itself and all others similarly situated v. DEFFENBAUGH INDUSTRIES, INC. and DEFFENBAUGH DISPOSAL, INC., Case No. 2:13-cv-2634-EFM-JPO (D. Kan.). Before the Court is the Plaintiffs' unopposed motion for preliminary approval of a proposed class action settlement filed by the Plaintiffs. Before the Court issues its ruling, it orders the parties to provide joint supplemental briefing addressing certain issues, including whether there is any alleged harm to the putative class members, who did not pay a fuel charge. The Court notes that it is considering breaking the putative class into two subclasses -- one in which the members paid fuel charges, and one in which the members did not. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=CIp15Jjb DL BUILDERS: "Valdovinos" Plaintiffs Seek Class Certification ------------------------------------------------------------- The Plaintiffs in the lawsuit titled SEBASTIAN VALDOVINOS; JOSE CARRILLO; ABELINO SOLARIO; and on behalf of themselves and those similarly situated individuals v. DL BUILDERS, INC.; DAVID HALVORSEN, Case No. 5:15-cv-O4256-RMW (N.D. Cal.), notifies the Court that on June 3, 2016, they will move the Court for an order certifying the First and Second Causes of Action of the complaint filed in the lawsuit as a collective class action under the Fair Labor Standards Act. The Plaintiffs are undocumented workers, who worked for DL Builders remodeling homes and apartments. The work structure of DL Builders divided the workers into crews with supervisors overseeing the crews. Each crew had a leader, who was the most experienced laborer on the crew, and who worked alongside the other laborers. The crew leaders were akin to a "lead" person, with no managerial authority. In September 2015, the Plaintiffs filed a complaint against DL Builders, Inc., and David Halvorsen, setting forth First and Second Causes of Action for overtime, and minimum wage violations under the FLSA. Prior to that filing, DL Builders workers were given release agreements and final checks (not itemized). The Plaintiffs did not receive a release agreement. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=UBpavdMs The Plaintiffs are represented by: Robert David Baker Esq. ROBERT DAVID BAKER, INC. 80 South White Road San Jose, CA 95127 Telephone: (408) 251-3400 Facsimile: (408) 251-3401 E-mail: rbaker@rdblaw.net DOLLAR THRIFTY: June 21 Hearing on McKinnon's 2nd Class Cert. Bid ----------------------------------------------------------------- The Plaintiffs in the lawsuit styled SANDRA McKINNON, et al. v. DOLLAR THRIFTY AUTOMOTIVE GROUP, INC. d/b/a DOLLAR RENT A CAR; DOLLAR RENT A CAR, INC.; DTG OPERATIONS, INC. d/b/a DOLLAR RENT A CAR; and DOES 1-10, inclusive, Case No. 12:cv-04457-YGR (N.D. Cal.), filed with the Court their second amended motion for class certification of a single narrowed Class, defined as: All persons who reside in the United States who, since January 1, 2009, obtained a rental car from a Dollar or Thrifty rental car location operated by Defendants at one of the following locations in the State of California: Los Angeles International Airport, Lindbergh Field (San Diego) International Airport, or John Wayne (Orange County) International Airport, where the location failed to post signage regarding Loss Damage Waiver ("LDW") in the manner required by Cal. Civ. Code Section 1936(g)(1), and who were charged for LDW. Excluded from the Class are persons: (a) who incurred LDW as part of a pre-paid tour reservation or previously approved LDW as part of Dollar's membership program, (b) who made a claim with Defendants and received full coverage under the LDW provision, or (c) who received a full refund of LDW payments, with interest thereon. The Class, which as re-defined in this Motion is intended to conform to this Court's March 8, 2016 Order, satisfies the requirements of both Rules 23(a) and (b)(2) and (b)(3) of the Federal Rules of Civil Procedure. Among other things, the Plaintiffs allege that the Defendants have failed to provide clear and conspicuous signage containing the language mandated by Section 1936(g)(1) of the California Civil Code as to all members of the class. The required language is designed to allow consumers to make an informed decision regarding their purchase of LDW. The Court will commence a hearing on June 21, 2016, at 2:00 p.m., to consider the Motion. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=p9MnZmxo The Plaintiffs are represented by: Alan M. Mansfield, Esq. WHATLEY KALLAS, LLP 1 Sansome Street, 35th Floor, PMB #131 San Francisco, CA 94104 Telephone: (415) 860-2503 Facsimile: (888) 331-9633 E-mail: amansfield@whatleykallas.com - and - Joe R. Whatley, Jr., Esq. 1180 Avenue of the Americas, 20th Floor New York, NY 10036 Telephone: (212) 447-7060 Facsimile: (800) 922-4851 E-mail: jwhatley@whatleykallas.com - and - Patrick J. Sheehan, Esq. WHATLEY KALLAS, LLP 60 State Street, Seventh Floor Boston, MA 02109 Telephone: (617) 573-5118 Facsimile: (617) 573-5090 E-mail: psheehan@whatleykallas.com - and - S. Scott Garrett, Esq. WHATLEY KALLAS, LLP 2001 Park Place North 1000 Park Place Tower Birmingham, AL 35203 Telephone: (205) 488-1200 Facsimile: (800) 922-4851 E-mail: sgarrett@whatleykallas.com EARTH CARE: Court Preliminary Approves "Hernandez" Settlement ------------------------------------------------------------- District Judge Elizabeth T. Hey of the United States District Court for the Eastern District of Pennsylvania granted conditional certification and preliminary approval of the settlement agreement in the case captioned, ROGELIO ORTEGA HERNANDEZ, on behalf of himself and others similarly situated, v. EARTH CARE, INC., SCOTT RISBON, and KIM RISBON, Case No. 15-5091 (E.D. Pa.). Plaintiff Rogelio Ortega Hernandez has brought the action on behalf of himself and other similarly situated seasonal landscape laborers from Mexico who were employed by Earth Care, Inc. (Earth Care) from 2010 through 2014. Defendants recruited and hired Plaintiffs pursuant to the requirements of the federal H-2B visa program, which permits United States employers to recruit foreign workers to fill unskilled, non-agricultural positions when the employer demonstrates a shortage of available American workers. Mr. Ortega alleges that Defendants failed to pay the H-2B workers the wage rates required by the H-2B program. Defendants dispute the class allegations and deny having violated wage laws. Very early in the litigation, the parties began settlement discussions and came to an agreement prior to the filing of an answer to the complaint and prior to any certification proceedings. After finalizing their agreement, the parties consented to magistrate judge jurisdiction. The proposed settlement calls for payment of any shortfall for each worker. Although the amount of the shortfall may not be the same for each worker, the calculation of the shortfall is identical for each. The proposed agreement also provides for the payment of $440 per year for each of the class members as a reimbursement for travel and visa costs for each year (2013, 2014, and 2015) the worker was employed by Earth Care. The parties filed their motion seeking court approval of their settlement, and have attached the agreement and associated forms. In her Memorandum and Order dated April 13, 2016 available at http://is.gd/1J1TsAfrom Leagle.com, Judge Hey concluded that the settlement is fair and reasonable. The Court conditionally certify the collective action and settlement class because at the stage in the litigation that the members of the proposed settlement class are similarly situated. Rogelio Ortega Hernandez is represented by: Arthur N. Read, Esq. Stephanie Dorenbosch, Esq. FRIENDS OF FARMWORKERS INC. 699 Ranstead Street, 4, Philadelphia, PA 19106 Tel: (215)733-0878 Earth Care, Inc. is represented by Jonathan Landesman, Esq. -- COHEN SEGLIAS PALLAS GREENHALL & FURMAN, PC EDGAR ADULT: Former Residents to Receive Compensation ----------------------------------------------------- Janis Ramsay, writing for Simcoe.com, reports that residents who lived at the Edgar Adult Occupational Centre in Oro-Medonte from 1966 to 1999 are finally being awarded compensation for any harm suffered. The Superior Court of Justice has just approved a $36-million settlement to those residents and 11 other facilities in Ontario where people with developmental disabilities lived. The settlement is the result of a class action lawsuit brought against Ontario by former residents. The case began in 2014 with former Edgar resident Marlene McIntyre, who lived in the institution between August 1973 and December 1974. She was also housed in the Huronia Regional Centre in Orillia. At its peak, the Edgar facility held more than 260 people. A tentative settlement was reached in November, but needed court approval. "I'm glad that we were able to reach a fair settlement in this matter," Attorney General Madeleine Meilleur said. "These individuals were harmed in a place that was intended to provide them with care, and while we cannot change the past, it is my hope that this settlement will help these individuals and their families to heal." Other institutions in the suit are: the St. Lawrence Regional Centre, D'Arcy Place, Pine Ridge, Muskoka Centre, Oxford Regional Centre, Midwestern Regional Centre, L.S. Penrose Centre, Bluewater Centre, Durham Centre for Developmentally Handicapped, Prince Edward Heights and Northwestern Regional Centre. The 12 facilities closed between 1977 and 1999 after a government decision to close residential institutions and move adults with developmental disabilities to homes in the community with appropriate supports and services. Former residents of the developmental facilities can receive a copy of their personal resident files at no charge by emailing AccessandPrivacyOffice.mcss@ontario.ca or calling 1-855-376-9886. Class action members (eligible former residents) will have four months after the court's approval of the settlement to request their files. EGS FINANCIAL: Court Grants Joint Bid to Stay "Burns" Proceedings ----------------------------------------------------------------- Chief District Judge Greg Kays of the United States District Court for the Western District of Missouri granted the parties' Joint Motion to Temporarily Stay Proceedings in the case captioned, LANCE BURNS, on behalf of himself and all others similarly situated, Plaintiffs, v. EGS FINANCIAL CARE, INC., Defendant, Case No. 4:15-CV-06173-DGK (W.D. Mo.). The putative class action arising from alleged violations of the Fair Labor Standards Act. The case is included in the Court's Mediation and Assessment Program (MAP), and the Mediation Conference is currently set for April 14, 2016, at 9:30 a.m. On March 16, 2016, the Court entered an order granting Defendant's motion for extension of time to respond to Plaintiffs' motion for conditional class certification. In its order, the Court set a deadline of May 2, 2016, for limited discovery on the issue of conditional class certification. Pending before the Court is the parties' Joint Motion to Temporarily Stay Proceedings pending analysis of electronic data and the outcome of settlement or mediation. In the motion, the parties contend that a stay is required to allow them opportunity to assemble, exchange, and review a portion of electronic data that they believe is critical in establishing their claims and defenses. The parties argue that this information will allow them to engage in more meaningful direct settlement negotiations and participate effectively in mediation. In his Order dated April 12, 2016 available at http://is.gd/6ThHQW from Leagle.com, Judge Kays found that all factors weigh in favor of granting a temporary stay of the proceedings since the parties are still in the preliminary stages of discovery, and a stay may allow them to simplify factual disputes and streamline issues for trial. Because the parties have agreed to toll the statute of limitations for any person who wishes to join as a plaintiff in the action during the period, no party will be substantially injured by granting a stay and the possibility of an amicable resolution of the case outweighs the harm in delaying discovery, and the interests of judicial economy favor such a resolution. Plaintiffs are represented by Michael F. Brady, Esq. -- tbrady@tbradyandassociates.com -- Sara Tess Ballew, Esq. -- sballew@tbradyassociates.com -- and Mark A. Kistler, Esq. -- mkistler@tbradyandassciates.com -- BRADY AND ASSOCIATES EGS Financial Care, Inc. represented by David Israel, Esq. -- disrael@sessions.legal -- and Justin Homes, Esq. -- mnathan@sessions-law.com -- jhomes@sessions.legal -- SESSIONS, FISHMAN, NATHAN & ISRAEL, L.L.C., Gregory K. Wu, Esq. -- gwu@shb.com -- SHOOK, HARDY & BACON, LLP EUROCHOC AMERICAS: Glen Ellyn Seeks Certification of 3 Classes -------------------------------------------------------------- The Plaintiff in the lawsuit titled GLEN ELLYN PHARMACY, INC., on behalf of plaintiff and the class members defined herein v. EUROCHOC AMERICAS CORPORATION, UROCHOC U.S.A., INC., CURADEN USA, INC., and JOHN DOES 1-10, Case No. 1:16-cv-04929 (N.D. Ill.) asks the Court to enter an order determining that the action may proceed as a class action. For purposes of Count I, alleging violation of the Telephone Consumer Protection Act, the Plaintiff seeks to represent a class consisting of (a) all persons (b) who, on or after a date four years prior to the filing of this action, (c) were sent faxes by or on behalf of any of the Defendants Eurochoc Americas Corporation, Eurochoc U.S.A., Inc., and Curaden USA, Inc., promoting their goods or services for sale (d) and which did not contain an opt out notice. For purposes of Count II, alleging violation of the Illinois Consumer Fraud Act, the Plaintiff seeks to represent a class consisting of (a) all persons in Illinois (b) who, on or after a date three years prior to the filing of this action, (c) were sent faxes by or on behalf of any of the Defendants Eurochoc Americas Corporation, Eurochoc U.S.A., Inc., and Curaden USA, Inc., promoting their goods or services for sale (d) and which did not contain an opt out notice. For purposes of Count III, alleging conversion; Count IV, alleging nuisance; and Count V, alleging trespass to chattels, the Plaintiff seeks to represent a class consisting of (a) all persons (b) who, on or after a date five years prior to the filing of this action, (c) were sent faxes by or on behalf of any of the defendants Eurochoc Americas Corporation, Eurochoc U.S.A., Inc., and Curaden USA, Inc., promoting its goods or services for sale (d) and which did not contain an opt out notice. The Plaintiff further requests that he be appointed class representative and that Edelman, Combs, Latturner & Goodwin, LLC, be appointed counsel for the class. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=xixRPwBp The Plaintiff is represented by: Daniel A. Edelman, Esq. Cathleen M. Combs, Esq. James O. Latturner, Esq. Dulijaza Clark, Esq. EDELMAN, COMBS, LATTURNER & GOODWIN, LLC 20 South Clark Street, Suite 1500 Chicago, IL 60603 Telephone: (312) 739-4200 Facsimile: (312) 419-0379 FEDEX FREIGHT: Motion to Approve Settlement Unsealed ---------------------------------------------------- At the behest of the parties in the case, ROY D. TAYLOR, on behalf of himself and all others similarly situated, Plaintiff, v. FEDEX FREIGHT, INC., an Arkansas corporation; and DOES 1 through 10, inclusive, Defendants, No. 1:13-cv-01137-DAD-BAM (E.D. Cal.), Magistrate Judge Dale A. Drozd unsealed the motion for preliminary approval of the settlement reached in the case. On February 24, 2016, defendant filed an unopposed request to seal plaintiff's motion for preliminary approval of a class action settlement until the issuance by the court of an order granting preliminary approval. On February 29, the motion for preliminary approval was filed and on March 1, the court granted the request to seal the motion "until further order of the court." On April 20, 2016, the court issued the order granting preliminary approval of the class action settlement. On April 29, the parties filed a joint stipulation and proposed order unsealing the motion for preliminary approval. A copy of the Court's May 1, 2016 Order is available at http://is.gd/AwA819from Leagle.com. Roy D. Taylor, Plaintiff, represented by: Cat Nguyen Bulaon, Esq. Lawrence Cagney, Esq. Phillip R Poliner, Esq. R. Duane Westrup, Esq. Westrup Klick LLP 444 W. Ocean Blvd., Ste. 1614 Long Beach, CA 90802 - and - Michael Lee Carver, Esq. Michelle MacEachern Lunde, Esq. Labor Law Office, APC 1395 Ridgewood Dr Ste 300 Chico, CA 95973 Tel: (530) 891-8503 Fax: (530) 891-8512 E-mail: mcarver@carverlaw.com FedEx Freight, Inc., Defendant, represented by: Karin Morgan Cogbill, Esq. Littler Mendelson, PC 50 West San Fernando Street, 15th Floor San Jose, CA 95113 Tel: (408) 998-4150 Fax: (408) 288-5686 E-mail: kcogbill@littler.com - and - Keith A. Jacoby, Esq. Littler Mendelson 2049 Century Park East, 5th Floor Los Angeles, CA 90067 E-mail: kjacoby@littler.com Tel: (310) 772-7284 - and - Michelle B. Heverly, Esq. Littler Mendelson 333 Bush Street, 34th Floor San Francisco, CA 94104 Tel: (415) 677-3161 E-mail: mheverly@littler.com - and - Sophia Behnia, Esq. Littler Mendelson, P.C. 501 W. Broadway, Suite 900 San Diego, CA 92101 E-mail: sbehnia@littler.com Tel: (619) 515-1873 FENTON & MCGARVEY: "Tetik" Seeks Certification of FDCPA Class ------------------------------------------------------------- The Plaintiff is the lawsuit captioned Lisa Tetik, individually and on behalf of all others similarly situated v. Fenton & McGarvey Law Firm, P.S.C., a Kentucky corporation, and Jefferson Capital Systems, LLC, a GA limited liability company, Case No. 1:16-cv-04802 (N.D. Ill.), moves the Court for class certification, and requests that the Court allow her to represent a class of all persons similarly situated in the state of Illinois from whom the Defendants attempted to collect a delinquent, consumer debt allegedly owed for a Comenity Bank/Dress Barn account, via the same form collection letter that the Defendants sent to the Plaintiff, from one year before the date of the Complaint to the present. The action seeks a finding that the Defendants' form collection letter violates the Fair Debt Collection Practices Act, and asks that the Court award damages as authorized by Section 1692k(a)(2) of the FDCPA. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=cJuv6oha The Plaintiff is represented by: David J. Philipps, Esq. Mary E. Philipps, Esq. Angie K. Robertson, Esq. PHILIPPS & PHILIPPS, LTD. 9760 S. Roberts Road, Suite One Palos Hills, IL 60465 Telephone: (708) 974-2900 Facsimile: (708) 974-2907 E-mail: davephilipps@aol.com mephilipps@aol.com angiekrobertson@aol.com FLOWERS FOODS: Faces "Medrano" Suit Over Failure to Pay Overtime ---------------------------------------------------------------- Paul Medrano, on behalf of himself and other similarly situated individuals v. Flowers Foods, Inc. and Flowers Baking Co. of El Paso, LLC, Case No. 1:16-cv-00350 (D.N.M., April 27, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. The Defendants are producers of packaged bakery foods in the United States and operate more than 40 bakeries nationwide. The Plaintiff is represented by: Jenny Faye Kaufman, Esq. Jerry Todd Wertheim, Esq. Samuel C. Wolf, Esq. JONES, SNEAD, WERTHEIM & CLIFFORD, P.A. Post Office Box 2228 Santa Fe, NM 87504 Telephone: (505) 982-0011 Facsimile: (505) 989-6288 E-mail: jenny@thejonesfirm.com todd@thejonesfirm.com sam@thejonesfirm.com FOWLER PACKING: Courts Denies Bid for Submission of Trial Plan -------------------------------------------------------------- Magistrate Judge Carolyn S. Ostby of the United States District Court for the Eastern District of California denied Defendants' motion for an order requiring plaintiffs to submit a detailed trial plan with their motion for class certification and vacated the April 19, 2016 hearing in the case captioned, BEATRIZ ALDAPA, et al., Plaintiffs, v. FOWLER PACKING COMPANY, INC., et al., Defendants, Case No. 1:15-CV-00420-DAD-SAB (E.D. Cal.). In the motion, defendants requested that the court issue an order requiring plaintiffs to submit a detailed trial plan with their motion for class certification. Defendants argue that plaintiff's trial plan include: 1) an explanation of how the membership of the class will be established; 2) an explanation of how liability will be established; 3) an explanation of how defendants will have an opportunity to present their liability defenses; 4) an explanation of how damages will be calculated; 5) a witness list and summary of the expected. According to plaintiffs, discovery on class certification issues has not yet even commenced, let alone any merits focused discovery. In the Order dated April 13, 2016 available at http://is.gd/o7onPA from Leagle.com, Judge Drozd agreed with plaintiffs that defendants' request for a detailed trial plan is premature at the juncture in the case and defendants have cited no binding authority suggesting a trial plan must be filed at the stage in a class action. Plaintiffs are represented by Erica Deutsch, Esq. -- edeutsch@bushgottlieb.com -- and Ira L. Gottlieb, Esq. -- igottlieb@bushgottlieb.com -- BUSH GOTTLIEB, Mario Martinez, Esq. -- mmartinez@farmworkerlaw.com -- MARTINEZ AGUILASOCHO & LYNCH APLC Fowler Marketing International LLC is represented by: Howard A. Sagaser, Esq. Ian Blade Wieland, Esq. SAGASER, WATKINS & WIELAND, PC 7550 N Palm Ave #100, Fresno, CA 93711 Tel: (559)421-7000 FRONTERA FOODS: Recalls Taco Skillet Sauce Due to Soy ----------------------------------------------------- Frontera Foods of Chicago, Illinois is recalling a total of 720 (8 oz.) packages of its Frontera Texas Original Taco Skillet Sauce because it contains undeclared soy. People who have an allergy or severe sensitivity to soy may run the risk of a serious or life- threatening allergic reaction if they consume this product. The recalled Frontera Texas Original Taco Skillet Sauce packages were only distributed to District Columbia and the following 11 states; Connecticut, Massachusetts, Maryland, Maine, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Virginia and Vermont. The recalled product went to the specific retail stores on the attached list. The product comes in a printed 8 oz. pouch that is marked with a "BEST BY" date of "13 APR 17" on the bottom of the back side of the package. Please see the attached picture as a reference. The UPC code for the recalled product is: 6-04183-12170-7. No illnesses have been reported to date and there are no other safety concerns for people who do not have a soy allergy. This recall was voluntarily issued by the company after it discovered that the label on the product did not accurately reflect the ingredients. The company has since corrected the problem and has initiated corrective actions to prevent its reoccurrence. Consumers who have purchased 8 oz. packages of Frontera Texas Original Taco Skillet Sauce with a "BEST BY" date of "13 APR 17" are urged to return them to the place of purchase for a full refund. Consumers with questions may contact the company at (800) 509- 4441, Monday to Friday, 8 am to 5 pm, CST. Store Store Store Store Store Store Name Number Address City State Zip Code ----- ------ ------- ----- ----- -------- ACME #2494 2494 160 W. PUTNAM GREENWICH CT 06830 GREENWICH CT AVENUE SAFEWAY 2737 490 L STREET WASHINGTON DC 20001 EASTERN NW #2737 SAFEWAY 2737 490 L STREET WASHINGTON DC 20001 EASTERN NW # 2737 SAFEWAY 2808 3830 GEORGIA WASHINGTON DC 20011 EASTERN AVENUE NW # 2808 THE BROAD 5608 BROAD BRANCH WASHINGTON DC 20015 BRANCH RD MARKET SHAWS #123 123 301 POND ST ASHLAND MA 01721 ASHLAND MA SHAWS #551 551 535 TRAPELO BELMONT MA 02478 BELMONT MA RD SHAWS #538 538 33 KILMARNOCK BOSTON MA 02215 BOSTON MA SXT SHAWS #104 104 125 PEARL ST BRAINTREE MA 02184 BRAINTREE MA SHAWS #504 504 49 WHITE ST CAMBRIDGE MA 02140 CAMBRIDGE MA SHAWS #507 507 699 MT AUBURN CAMBRIDGE MA 02138 CAMBRIDGE MA ST SHAWS #168 168 100 N MAIN ST CARVER MA 02330 CARVER MA SHAWS #388 388 246 BORDER ST EAST MA 02128 EAST BOSTON BOSTON MA SHAWS #548 548 255 E CENTRAL FRANKLIN MA 02038 FRANKLIN MA ST SHAWS #571 571 7 RAILROAD AVE GLOUCESTER MA 01930 GLOUCESTER MA SHAWS #579 579 1070 IYANNOUGH HYANNIS MA 02601 HYANNIS MA RD SHAWS #165 165 390 WEST MANSFIELD MA 02048 MANSFIELD MA STREET SHAWS #340 340 1 PROSPECT ST MILFORD MA 01757 MILFORD MA SUDBURY 209 1177 HIGHLAND NEEDHAM MA 02494 FARMS 209 AVENUE SHAWS #502 502 33 AUSTIN ST NEWTON MA 02460 NEWTON MA 111 175 MANSFIELD NORTON MA 02766 ROCHE BROS. 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3250 SHOPPERS 2652 6200 LITTLE ALEXANDRIA VA 22312 # 2652 RIVER TURNPIKE SAFEWAY 1588 7414 LITTLE ANNANDALE VA 22003 EASTERN RIVER TURNPIKE # 1588 SAFEWAY 2635 12821 BRAEMAR BRISTOW VA 20136 BRISTOW VILLAGE PLAZA # 2635 SAFEWAY 4002 5727 BURKE BURKE VA 22015 EASTERN CENTER # 4002 FARM FRESH 232 309 S CHESAPEAKE VA 23320 #232 - BATTLEFIELD GROCERY BLVD FARM FRESH 676 1400 KEMPSVILLE CHESAPEAKE VA 23320 #676 - RD GROCERY SAFEWAY 2616 3043 NUTLEY FAIRFAX VA 22031 EASTERN STREET # 2616 SHOPPERS 2628 7005 MANCHESTER FRANCONIA VA 22310 # 2628 LAKES SAFEWAY 1689 413 ELDEN HERNDON VA 20170 EASTERN STREET # 1689 SAFEWAY 4218 437 S KING LEESBURG VA 20175 EASTERN STREET # 4218 FARM FRESH 231 353 CHATHAM NEWPORT VA 23602 #231 - DRIVE NEWS GROCERY FARM FRESH 803 730 W 21ST ST NORFOLK VA 23517 #803 - GROCERY SAFEWAY 5 11120 S LAKE RESTON VA 20191 EASTERN DRIVE # 5 FARM FRESH 576 2320 E MAIN ST RICHMOND VA 23223 #576 - GROCERY FARM FRESH 321 455 MERRIMAC WILLIAMSBURG VA 23185 #321 - TRAIL GROCERY SAFEWAY 1298 4240 MERCHANT WOODBRIDGE VA 22192 EASTERN PLAZA # 1298 SAFEWAY 1331 2205 OLD BRIDGE WOODBRIDGE VA 22192 EASTERN # 1331 SHAWS #411 411 66 MOUNTAIN COLCHESTER VT 05446 COLCHESTER VIEW VT SHAWS #411 411 66 MOUNTAIN COLCHESTER VT 05446 COLCHESTER VIEW VT MACS MARKET 101 PEARL ST ESSEX VT 05452 (ESSEX JUNCTION) JUNCTION SHAWS #430 820 WATERBURY-STOWE WATERBURY VT 05676 WATERBURY RD VT 430 SHAWS #414 414 71 BOXWOOD ST WILLISTON VT 05495 WILLISTON VT MACS MARKET 37 PLEASANT ST WOODSTOCK VT 05091 (WOODSTOCK) ROUTE 4 Pictures of the Recalled Products available at: http://is.gd/dkKx8l GENERAL MOTORS: Sued in N.J. Over Communications Act Violation -------------------------------------------------------------- Stephen L. Jefferson, on behalf of himself and all others similarly situated v. General Motors Financial Company, Inc. d/b/a AMERICREDIT, f/k/a Americredit Corp., Case No. 2:16-cv- 02349-WHW-CLW (D.N.J., April 27, 2016), is brought against the Defendant for violation of the Federal Communications Act. General Motors Financial Company, Inc. is a financial services arm of General Motors. The Plaintiff is represented by: Yongmoon Kim, Esq. Kim Law Firm LLC 411 Hackensack Ave 2 Fl. Hackensack, NJ 07601 Telephone: (201) 273-7117 Facsimile: (201) 273-7117 E-mail: ykim@kimlf.com GIANT EAGLE: Recalls Walnut Delight and Pecan Tassie Cookies ------------------------------------------------------------ All lots of Giant Eagle brand Walnut Delight and Pecan Tassie cookies prepared and sold from the Bakery department inside Giant Eagle and Market District supermarkets with sell by dates through May 3, 2016 have been voluntarily recalled by Giant Eagle due to an undeclared milk allergen. People who have an allergy or severe sensitivity to milk run the risk of a serious or life-threatening allergic reaction if they consume these products. The product is safe for consumption by those who do not have milk allergies. Approximately 44,000 purchases containing the potentially affected Pecan Tassies and 290 purchases containing the potentially affected Walnut Delights were made in Giant Eagle and Market District supermarkets in Pennsylvania, Ohio, West Virginia, Maryland and Indiana. There are no reported illnesses to date associated with this recall. The Walnut Delights were sold in packages of six in plastic clam shells with a PLU of 69690. The Pecan Tassies were also sold in packages of six in plastic clam shells with a PLU of 77997, but were also included in small, medium and large cookie trays with PLUs of 9793, 9794 and 9795 respectively. All affected items were sold in the Bakery department. Giant Eagle became aware of the issue for both items after a quality assurance review of the ingredient declaration. The product label for the bakery items, which contain milk, omitted milk as an allergen. Customers with a milk allergy who have purchased the affected product should dispose of it or return it to their local Giant Eagle or Market District store for a refund. Customers with questions may call Giant Eagle Customer Care at 1-800-553-2324 Monday through Friday 9 a.m. to 9 p.m. EST. In addition to this public communication regarding this recall, Giant Eagle initiated its consumer recall telephone notification process. The consumer recall process uses purchase data and consumer telephone numbers housed in the Giant Eagle Advantage Card(R) database to alert those households that purchased the affected product and have updated telephone contact information in the database. Pictures of the Recalled Products available at: http://is.gd/NTdlOb GLEN GALEMMO: Final Settlement Order Entered in "Capannari" Suit ---------------------------------------------------------------- Judge Michael R. Barrett entered a Final Order in the lawsuit styled JOHN CAPANNARI, et al. v. GLEN GALEMMO, et al., Case No. 1:13-cv-00883-MRB (S.D. Ohio), approving class action settlements as to the Perry Defendants, the Teneyck Defendants, and the Shelby/Job Defendants, and attorneys' fees and expenses. Pursuant to Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure, the Court preliminarily certified a settlement class consisting of: All persons and entities, individually and collectively, who invested money in or through Glen Galemmo or his affiliated entities from January 1, 2002 to July 26, 2013 and suffered a net loss (i.e., the funds invested exceeded the total of all funds received in the form of purported income or return of principal). The Court appointed Plaintiffs John Capannari, John A. Anderson and Kevin Eickmann as the Lead Plaintiffs and the law firms of Cummins & Brown LLC and Strauss Troy Co., LPA as Lead Counsel for Lead Plaintiffs and the proposed Class, as set forth in the Court's Order of April 7, 2014. Class Counsel are awarded $151,237 in attorneys' fees, and $62,102 for reimbursement of their out-of-pocket expenses since the inception of the case. Other than any authorized payment or awards pursuant to the Final Approval Order, the Court directed the Class Counsel not to distribute any portion of the Settlement Fund except in accordance with further orders of this Court. The Court also ordered the Class Counsel to continue to communicate and coordinate with parties and counsel in other Galemmo-related litigation in order to distribute the Settlement Fund in a manner that treats Class Members fairly and consistently. A copy of the Final Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=5TKJnhDM H&R BLOCK: Bid to Certify Calif. Class in "Perras" Suit Denied -------------------------------------------------------------- The Hon. Beth Phillips entered an order the lawsuit entitled RONALD PERRAS, on behalf of himself and all others similarly situated v. H&R BLOCK, INC., et al., Case No. 12-00450-CV-W-BP (W.D. Mo.), granting the Defendants' renewed motion for summary judgment and denying as moot the Plaintiff's motion for class certification of a California class. The Plaintiff sued H&R Block, Inc., HRB Tax Group, Inc., and HRB Technology, LLC regarding a compliance fee that was charged by H&R Block in 2011 and 2012 which allegedly exceeded the actual cost of compliance with the IRS's Tax Return Preparer Initiative. Mr. Perras' Second Amended Complaint contains five counts: (1) violation of the California Unfair Competition Act; (2) violation of the California Consumer Legal Remedies Act; (3) violation of the Missouri Merchandising Practices Act; (4) money had and received; and (5) unjust enrichment. H&R Block moves for summary judgment on all five counts. Mr. Perras seeks certification of a class of "[a]ll persons who purchased from H&R Block tax return preparation services for personal, family or household purposes and paid H&R Block's compliance fee in the state of California." H&R Block contends that Mr. Perras' claim for money had and received must fail because H&R Block was never indebted to him. Judge Phillips noted that the undisputed facts show that the compliance fee was intended to cover costs that H&R Block would incur in order to comply with IRS regulations. She adds that Mr. Perras offers no basis for his argument that the fee was supposed to benefit him and other customers -- on the contrary, the fee was supposed to benefit H&R Block by offsetting costs. For these reasons, the Court opined that Mr. Perras' claim for money had and received, among other claims, fail as a matter of law. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=F3mL0jJa HCA HOLDINGS: Appeals Court Revives Overcharge Class Action ----------------------------------------------------------- Mary Anne Pazanowski, writing for Bloomberg BNA, reports that a federal appeals court April 26 reinstated class allegations in a lawsuit alleging medical providers charged unreasonable fees for some emergency services. The U.S. Court of Appeals for the Eleventh Circuit, in an unpublished opinion, said a federal district court should have allowed limited discovery on whether issues common to a large group of potential plaintiffs would predominate over any questions unique to the individuals in the action, rather than disallowing class certification. The case involves an issue that is growing: whether medical providers should be stopped from charging allegedly unreasonable amounts for emergency services when they know those claims won't be paid by no-fault insurers, thus rendering the patients liable for the overlap. The billing practices are known as surprise or balance billing. This putative class action was brought against HCA Holdings Inc. and three of its Florida hospitals, alleging that the hospitals charged unreasonable fees for emergency radiological services. The U.S. District Court for the Middle District of Florida struck the plaintiffs' class action allegations, effectively denying class certification (40 HCDR, 3/2/15). PIP Coverage Limits Florida law requires motor vehicle owners to have personal injury protection, or PIP, insurance coverage. Once an insurer pays the $10,000 policy limit, however, the insured become responsible for any remaining expenses. The plaintiffs alleged that the defendant hospitals charged PIP-covered patients unreasonable fees for radiological services. In some cases, they said, the fees charged were 65 percent higher than the usual and customary fees charged for similar services. The plaintiffs asserted violations of Florida's Deceptive and Unfair Trade Practices Act and breach of contract. The district court refused to dismiss the complaint, but struck the class allegations after finding that the key issues, namely the reasonableness of the hospitals' charges and damages incurred by each plaintiff, "would be highly individualized in nature." Common Questions Class certification is appropriate when questions of law or fact common to the class members predominate over questions that affect only individuals. The district court said this requirement hadn't been met in this case. The Eleventh Circuit disagreed, saying it wasn't apparent on the face of the plaintiffs' complaint that individualized issues would predominate. The parties, the court said, presented conflicting interpretations of the issues and evidence that would be required to establish liability and damages for the whole class. The court said discovery "could reveal that it is relatively easy to determine that these rates are unreasonable across the board without having to analyze differences between hospitals or patients." Moreover, it said, the presence of individualized damages issues didn't necessarily prevent a finding that common issues in the case predominate. The court said its opinion shouldn't be read to suggest how the district court should rule on the certification question. It held only that the lower court should have allowed discovery instead of striking the class allegations. Judges Beverly B. Martin, Julie E. Carnes and R. Lanier Anderson III issued the per curiam opinion. Cohen Milstein Sellers & Toll PLLC represented the plaintiffs. Carlton Fields Jorden Burt PA and Buchanan Ingersoll & Rooney PC represented the hospitals. HOME DEPOT: Court Certifies California Class in "Henry" Suit ------------------------------------------------------------ The Hon. Jon S. Tigar grants class certification in the lawsuit titled MICHAEL HENRY v. HOME DEPOT U.S.A., INC., Case No. 14-cv- 04858-JST (N.D. Cal.). The class is defined as: All persons employed by Defendant[ ] in hourly or non-exempt positions in California from September 18, 2010 through the date of class certification, who worked a shift past midnight in which the total aggregate number of hours for that shift exceeded eight hours. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=k0JTLqRy HONEST COMPANY: Faces Various Class Actions Over Product Claims --------------------------------------------------------------- Adele Chapin, writing for racked, reports that Jessica Alba's non- toxic brand The Honest Company got its start selling diapers and baby products, and now it's an empire. The brand stocks everything from vitamins to tampons, and it expanded into beauty last year with an 83-piece makeup line. The Honest Company's success landed Alba on the cover of Forbes magazine's "America's Richest Self-Made Women" issue touting her brand's $1 billion dollar valuation. But now as The Honest Company is reportedly working toward an IPO, lawsuits are coming out of the woodwork including one filed by the Organic Consumers Association being reported on April 27. Alba's company is dealing with a rash of lawsuits claiming that Honest has violated its promise to produce products without health- compromising chemicals or compounds -- a charge the company vehemently denies. Here's what to know about The Honest Company backlash: THE LAWSUITS Shampoo and body wash. In February of this year, Fortune reported that a lawsuit filed in a New York District Court alleged that Honest "falsely" and "deceptively" labeled its products as natural and plant-based. Brad and Manon Buonasera said they bought the company's shampoo and body wash based on those claims. Their suit alleged Honest's products actually contained synthetic and toxic ingredients, even though advertising copy claimed "no harsh chemicals, ever!" Honest wrote in a statement that the lawsuit's allegations were "without merit" and that they would "vigorously defend this baseless lawsuit." Sunscreen and more. A $5 million lawsuit filed in Northern California District Court in September 2015 claimed that several of Honest's products, including soap, diapers, and cleaners contain "unnatural ingredients," according to ABC News. The suit also called out Honest sunscreen for not being effective. That sunscreen complaint also went viral when customers started tweeting out photos of horrible sunburns that happened while using Honest sunscreen. Ms. Alba's brand responded with a lengthy blog post apology that included photos of her children and a defense of its sunscreen formula: "We've gone through extensive third-party testing in accordance with government regulations and our Sunscreen Lotion passed all SPF 30 testing requirements. It also received the best score possible from the Environmental Working Group (EWG). We care about taking every precaution possible to ensure that your product experience will keep you healthy and happy. Detergent. In March, WSJ published an article with the results of commissioned lab testing, saying that Honest detergent contained a significant amount of sodium lauryl sulfate (SLS) -- a chemical that the company pledged to avoid." Honest said that it used Sodium Coco Sulfate (SCS), "a gentler alternative that is less irritating and safer to use," then the company went after the Wall Street Journal's journalistic integrity. "The Wall Street Journal has been reckless in the preparation of this article, refused multiple requests to share data on which they apparently relied and has substituted junk science for credible journalism," the brand's statement said in part. Within seven days of the WSJ story, a consumer filed a class- action lawsuit against Honest over the detergent. Inc. reports that the lawsuit alleges that the company is "misleading [consumers] in the extreme" with advertising that mentions its detergent being SLS-free. Baby food. News just broke about a lawsuit filed in Los Angeles Superior Court by the Organic Consumers Association, alleging that 11 ingredients out of 40 in Honest's baby food are synthetic. Fortune reports that the suit claims that the baby food "is falsely labeled as 'organic.'" The Honest Company might not just be looking at an IPO -- WWD reported in April that the brand, which has $222 million in venture capital backing, might be considering a sale as well. Will all the lawsuits affect Honest Company's future? One analyst doesn't think so. "The brand is almost on the cusp of being bigger than the lawsuits and the negative press around it," Martin Okner, managing director at SHM Corporate Navigators, told WWD. "It's been in the press now for months and it hasn't had a material impact on sales at this point." HOUSTON, TX: Summary Judgment in "Fontenot" Affirmed ---------------------------------------------------- In the case captioned BERTHA M. FONTENOT, Individually and on Behalf of Those Similarly Situated; DAVID MILLER; SANTA ZAMARRON, Plaintiffs-Appellants, v. CITY OF HOUSTON; CLERK OF COURT CHARLOTTE BOOKER, Defendants-Appellees, No. 14-20763 (5th Cir.), the United States Court of Appeals, Fifth Circuit affirmed the district court's grant of summary judgment in favor of the City of Houston and its denial of David Miller's motion for class certification. The appeal was brought by David Miller, who had alleged that the City violated due process rights when it reported to the State that he had been convicted of committing a more serious driving offense than in fact was true. As a result of the misreporting, the State assessed a surcharge against Miller for which he was not statutorily liable. The City's misreporting was not unique to Miller; for over six years, the City of Houston regularly reported convictions like Miller's as different, more serious convictions. The Fifth Circuit, however, found that Miller has not presented enough evidence to create a genuine dispute of material fact as to whether the City had an official policy or custom to misreport convictions. A full-text copy of the Court's May 2, 2016 opinion is available at http://is.gd/dhLzdlfrom Leagle.com. HOUSTON CASUALTY: 3rd Cir. Says $102MM Excluded from PNC Coverage ----------------------------------------------------------------- The United States Court of Appeals, Third Circuit affirmed in part and reversed in part the district court's ruling in the case captioned THE PNC FINANCIAL SERVICES GROUP, INC.; PNC BANK, N.A., individually and as Successor in Interest to National City Bank, Appellants in No. 15-1656, v. HOUSTON CASUALTY COMPANY;* AXIS INSURANCE COMPANY *(Dismissed Pursuant to Court's Order dated 07/17/2015) AXIS INSURANCE COMPANY, Appellant in No. 15-1717, Nos. 15-1656, 15-1717 (3rd Cir.). The appeal concerns whether PNC is entitled to insurance coverage for amounts it paid to resolve several class action lawsuits. Specifically at issue is whether $102 million that PNC paid pursuant to two settlement agreements is covered under PNC's insurance policy with its excess insurer, Axis Insurance Company. On cross motions for judgment on the pleadings, the District Court concluded that the majority of the settlement payments were excluded from coverage under the policy's "Professional Services Charge Exception" because the payments constituted a refund of overdraft fees paid by PNC's customers. The District Court also held, however, that approximately $30 million of the $102 million, which was awarded to class counsel as attorneys' fees and costs, was recoverable under the policy as covered "Damages" that did not fall within the Professional Services Charge Exception. On appeal by PNC and cross-appeal by Axis, the Third Circuit concluded that the entire $102 million is excluded from coverage under the Professional Services Charge Exception. A full-text copy of the appellate court's May 2, 2016 opinion is available at http://is.gd/3orOPafrom Leagle.com. Douglas E. Cameron, Esq. -- dcameron@reedsmith.com -- Courtney C.T. Horrigan, Esq. -- chorrigan@reedsmith.com -- James C. Martin, Esq. -- jcmartin@reedsmith.com -- [ARGUED], Robert H. Owen, Esq., Reed Smith LLP, 225 Fifth Avenue, Pittsburgh, PA 15222 Counsel for Appellants/Cross-Appellees. Jason P. Cronic, Esq. -- jcronic@wileyrein.com -- [ARGUED], John E. Howell, Esq. -- jhowell@wileyrein.com -- Wiley Rein LLP, 1776 K Street N.W., Washington, DC 20006, Counsel for Appellee/Cross- Appellant. Louis C. Long, Esq. -- llong@tthlaw.com -- Thomas, Thomas & Hafer LLP, 525 William Penn Place, 37th Floor, Suite 3750, Pittsburgh, PA 15219, Counsel for Appellee/Cross-Appellant. INTERNATIONAL CRUISE: Bid to Certify "Burnside" Class Withdrawn --------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on April 26, 2016, in the case titled Bryson Burnside v. International Cruise & Excursion Gallery, Inc., et al., Case No. 1:16-cv-02511 (N.D. Ill.), relating to a hearing held before the Honorable Robert W. Gettleman. The minute entry states that: -- the Motion to certify class is withdrawn; -- response to the Defendants' motion to stay is due by May 10, 2016; -- reply is due by May 24; and -- status hearing is set for June 29, 2016, at 9:00 a.m. A copy of the Notification of Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=Ng4HEAmv INTERSTATE MANAGEMENT: "Patrick" Class Suit Settlement Approved --------------------------------------------------------------- The Hon. Virginia M. Hernandez Covington entered an order granting final approval of class settlement in the class action lawsuit captioned NIEYSHIA PATRICK, on behalf of herself and all similarly situated individuals v. INTERSTATE MANAGEMENT COMPANY, LLC, Case No. 8:15-cv-1252-T-33AEP (M.D. Fla.). The Class is defined as: All natural persons residing in the United States (including all territories and other political subdivisions of the United States) (a) who submitted an employment application, or application for transfer or promotion, or for retention with, and (b) who were the subject of a consumer report procured by Defendant for employment purposes between May 22, 2010 and June 8, 2015, (referenced herein as the "Settlement Class") Luis A. Cabassa, Esq., and Brandon J. Hill, Esq., of Wenzel Fenton Cabassa, P.A., will continue to serve as Class Counsel for the Settlement Class. Named Plaintiff, Nieyshia Patrick, will continue to serve as Class Representative for the Settlement Class. As of the Effective Date, the Settlement Class members, including the Plaintiff, but excluding those individuals who asked to be excluded from the Settlement, release the Defendant and its U.S. affiliates and subsidiaries, from the "Released Claims." The Releasing Parties stipulate and agree that upon the Court's final approval of this Settlement Agreement, the claims in the case shall be dismissed with prejudice. The Releasing Parties, on behalf of themselves and their respective assigns, agree not to sue or otherwise make a claim against any of the Released Parties that is in any way related to the Released Claims. The Court dismisses the Action and all claims with prejudice, without costs to any party, except as expressly provided for in the Settlement Agreement. The Settlement Administrator has identified one individual, specifically "Nadifo Halane," who timely submitted a request for exclusion from the Settlement Class in compliance with the procedures set forth in the Preliminary Approval Order. The person so identified shall not be entitled to benefits from the settlement nor bound by this Final Order. The Plaintiff's unopposed Motion for Fees, Costs, and a Class Representative Award is granted. The Plaintiff's counsel is awarded a fee consisting of one-third of the total common fund (equating to $175,000), plus costs totaling $3,580. Nieyshia Patrick, is awarded an incentive award of $10,000. Additionally, the settlement administrator will receive $65,000 for all work performed in this case. All of the fees are to be paid from the Settlement Fund. A copy of the Final Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=MXyrxTn5 INVESTMENT PROFESSIONALS: Fin'l Advisors Seek Class Certification ----------------------------------------------------------------- The Plaintiff in the lawsuit titled JOSEPH R. HERRON, individually and on behalf of all others similarly situated v. INVESTMENT PROFESSIONALS INC., Case No. 2:15-cv-01664-MPK (W.D. Pa.), moves for conditional certification and judicial notice pursuant to Section 216(b) of the Fair Labor Standards Act. The class of potential plaintiffs is defined as: All current and former financial advisors, financial consultants, registered representatives, and individuals with similar or related titles -- also known as and sometimes referred to as "security brokers" -- who were employed by Investment Professionals Inc., in the United States at any time in the past three years, and who were compensated on a commissions-only basis. The Plaintiff (i) seeks approval of the form of the notice to be sent to the prospective plaintiffs, (ii) seeks authority for the dissemination of the notice to the prospective plaintiffs via U.S. Mail, in current employees' pay envelopes, as well as electronic mail, and via workplace posting at all of Defendant's facilities, and (iii) asks the Court to instruct the Defendant to produce the names and addresses of the prospective plaintiffs, in a computer- readable format. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=fd5zCS3A The Plaintiff is represented by: Gary F. Lynch, Esq. Jamisen A. Etzel, Esq. CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP 1133 Penn Ave., Fifth Floor Pittsburgh, PA 15222 Telephone: (412) 322-9243 Facsimile: (412) 231-0246 E-mail: glynch@carlsonlynch.com jetzel@carlsonlynch.com JP SPORTS: Certification of Assistant Managers' Class Sought ------------------------------------------------------------ The Plaintiff in the lawsuit entitled MEGAN DAVIS, on behalf of herself and all others similarly situated v. JP SPORTS COLLECTIBLES INC., JOHN E. PEERY and JOLEAN PEERY, Case No. 2:16- cv-00154-UA-CM (M.D. Fla.), asks the Court to conditionally certify her FLSA collective action and facilitate notice to potential class members. Specifically, Ms. Davis, on behalf of herself and those similarly situated individuals, asks the Court to issue an order: -- conditionally certifying a class of current and former hourly non-exempt assistant managers, who worked for the Defendants at JP Sports Collectibles Inc. between February 25, 2013, and the present; -- directing the Defendants to produce, in an electronic readable format, to undersigned counsel within 14 days of the Order granting this Motion, a list containing the names, the last known addresses, phone numbers and e-mail addresses of putative class members, who worked for the Defendants between February 25, 2013, and the present; -- authorizing the Counsel to send notice to all individuals whose names appear on the list produced by the Defendants' counsel by first-class mail and e-mail; and -- providing all individuals whose names appear on the list produced by the Defendants' counsel with 60 days from the date the notices are initially mailed to file a Consent to Become Opt-In Plaintiff. The Plaintiff performed work for the Defendants as an assistant manager. She alleges that she was not paid for all hours work including overtime when applicable. She discloses that she and other employees, who worked for the Defendants, have come forward to participate in this case by opting-in to this matter. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=8gR6unYW The Plaintiff is represented by: Bill B. Berke, Esq. BERKE LAW FIRM, P.A. 4423 Del Prado Blvd. S. Cape Coral, FL 33904 Telephone: (239) 549-6689 E-mail: berkelaw@yahoo.com KODAK: Settles Stock Ownership Plan Class Action for $9.7MM ----------------------------------------------------------- 13WHAM News reports that thousands of current and former Kodak employees are eligible to receive part of a $9.7 million settlement stemming from a class action lawsuit. The defendants in this case are former Kodak executives who were part of the Savings and Investment Plan Committee, the Stock Ownership Plan Committee and others overseeing retirement plans. "Unfortunately it seems to me Kodak said we'll pay the 10 million bucks to leave us alone," said George Conboy of Brighton Securities. After Kodak filed for bankruptcy in early 2012, several lawsuits were filed against the company involving the employees' Savings and Investment Plan, as well as the Kodak Employee Stock Ownership Plan. Federal court paperwork states the employees claimed Eastman Kodak should be held liable for offering Kodak stock as a investment option, even after financial experts and bankruptcy attorneys determined Kodak's financial situation was extremely poor, thus making its shares a bad investment. The lawsuits were eventually combined and consolidated into a class-action suit comprising more than 21,000 current and former employees. Paperwork filed in federal court states that the $9.7 million settlement "is guaranteed to be allocated to the Settlement class members, after all Court-approved fees, awards, and expenses are deducted." Under the proposed Plan of Allocation, each Settlement Class member will be paid in proportion to their losses in either (or both) the ESOP or the SIP's Kodak Stock Fund." The $9.7 million, "represents a recovery of between approximately twenty to fifty percent of the total damages suffered," according to the paperwork. "At this point, years after the bankruptcy, I think any retiree will be happy to get a check, but it doesn't change the fact that they kept faith with their employer till the end and their employer didn't keep faith with them," said Mr. Conboy. Preliminary approval for the agreement was given by District Judge David Larimer in a court order on April 26. Court paperwork states that, "settlement class members do not need to submit a claim form to participate and will automatically receive their portion of the settlement proceeds." 13WHAM News will continue to update this developing story as more information becomes available. KOVITZ SHIFRIN: Plaintiffs Seek Approval of Class Settlement ------------------------------------------------------------ The Plaintiffs in four putative class action lawsuits against Kovitz Shifrin Nesbit jointly filed with the U.S. District Court for the Northern District of Illinois their renewed motion and memorandum of law (unopposed) for preliminary approval of a non- common fund class settlement. The four cases are: * JANICE MCCARTER, on behalf of herself and all others similarly situated v. KOVITZ SHIFRIN NESBIT, an Illinois professional corporation, Case No. 1:13-CV-3909 (N.D. Ill.); * KRYSTYNA SCEHURA, on behalf of herself and all others similarly situated v. KOVITZ SHIFRIN NESBIT, an Illinois professional corporation, Case No. 1:14-CV-8838 (N.D. Ill.); * AMY LILL and CHRISTOPHER WOJDELKO, on behalf of themselves and all others similarly situated v. KOVITZ SHIFRIN NESBIT, an Illinois professional corporation, Case No. 1:14-CV-2647 (N.D. Ill.); and * MICHAEL WOOD and ALEXANDRIA STOCKMAN v. KOVITZ SHIFRIN NESBIT, an Illinois professional corporation, Case No. 1:14-CV-10014 (N.D. Ill.). The cases allege violations of the Fair Debt Collection Practices Act. The Parties have revised their Settlement Agreement pursuant to the Court's previous instructions. To avoid the cost of further litigation, the Parties renewed their negotiation in good faith and reached a new agreement. Under this revised Settlement, KSN agreed to pay an additional amount into the Settlement Fund while the Plaintiffs agreed to reduce their request for attorneys' fees and cost, relative to their original agreement reached on October 27, 2015, at the settlement conference. If the proposed preliminary approval for the revised Settlement of the consumer debt collection class action, and later final approval, is approved by the Court, the Plaintiffs will recover from KSN a total settlement sum of $320,000 (versus $220,000 in the original agreement), which now guarantees a minimum of $150,000 for the class (versus $30,000 in the original agreement) and which includes payments of costs of class administration, Plaintiffs, and attorneys' fees and costs. The Settlement Class is defined as "All persons, including Plaintiffs, who from May 27, 2012 through January 22, 2016 or the Preliminary Approval Date, whichever is later, resided in Illinois and were sent a '30-day Notice and Demand' by KSN." In summary, the Parties' revised proposed class settlement totaling $320,000 is as follows: Class Fund: $150,000 Costs: $30,000 Total Class Plaintiffs' Awards: $15,500 Class Counsel's Fees and Costs: $84,000 The individual settlement for the Wood and Lock actions is as follows: Total Individual Plaintiffs Awards: $10,500 Counsel's Fees and Costs: $30,000 A copy of the Renewed Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=aibtP35g Plaintiffs Janice McCarter and Krystyna Scehura are represented by: Kenneth M. DucDuong, Esq. KMD LAW OFFICE 4001 W. Devon Ave., Suite 332 Chicago, IL 60646 Telephone: (312) 997-5959 Facsimile: (312) 219-8404 - and - Mark Lavery, Esq. HYSLIP & TAYLOR, LLC LPA 1100 W. Cermak, Suite B410 Chicago, IL 60608 Telephone: (312) 508-5480 Plaintiffs Amy Lill, Christopher Wojdelko, Michael Wood, Alexandria Stockman, and Locke are represented by: M. Kris Kasalo, Esq. THE LAW OFFICE OF M. KRIS KASALO, LTD. 20 North Clark Street, Suite 3100 Chicago, IL 60602 Telephone: (312) 726-6160 Facsimile: (312) 698-5054 LANNETT COMPANY: Faces "Fraternal" Suit Over Generic Digoxin ------------------------------------------------------------ Fraternal Order of Police, Miami Lodge 20, Insurance Trust Fund, on behalf of itself and all others similarly situated v. Lannett Company, Inc., Allergan PLC, Impax Laboratories, Inc., Mylan Inc., Par Pharmaceuticals, Inc., Sun Pharmaceutical Industries Co., and West-Ward Pharmaceutical Corp., Case No. 2:16-cv-02031-CMR (E.D. Penn., April 27, 2016), arises from the Defendants' and others' alleged unlawful combination, agreement and conspiracy to fix, maintain, and stabilize the prices of generic digoxin or doxycycline products. Digoxin is s prescription drug that is used to treat mild to moderate heart failure in adults, increase the heart contracting functions for pediatric patients with heart failure, and control the resting heart rate in adult patients with chronic atrial fibrillation. Doxycycline monohydrate is a prescription antibiotic used in treating humans and animals. The Defendants own and operate pharmaceutical companies that manufacture and distribute generic digoxin and generic doxycycline. The Plaintiff is represented by: Jayne A. Goldstein, Esq. POMERANTZ LLP 1792 Bell Tower Lane, Suite 203 Weston, FL 33326 Telephone: (561) 270-0795 E-mail: jagoldstein@pomlaw.com - and - Natalie Finkelman, Esq. SHEPHERD FINKELMAN MILLER & SHAH, LLP Bennett 35 East State Street Media, PA 19063 Telephone: 610-891-9880 E-mail: nfinkelman@sfmslaw.com - and - Linda P. Nussbaum, Esq. Bradley J. Demuth, Esq. NUSSBAUM LAW GROUP, P.C. 570 Lexington Avenue, 19 Fl. New York, NY 10022 Telephone: (212) 722-7053 E-mail: lnussbaum@nussbaumpc.com bdemuth@nussbaumpc.co LIBERTY MUTUAL: LaFollettes Seek Class Certification ---------------------------------------------------- The Plaintiffs in the lawsuit captioned ERIC LAFOLLETTE and CAMILLE LAFOLLETTE, individually and on behalf of others similarly situated v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, Case No. 2:14- CV-04147-NKL (W.D. Mo.), move for an order certifying the class, appointing Eric and Camille LaFollette as class representatives, and appointing the law firms of Steelman, Gaunt & Horsefield; Hearne & Pivac; and Nelson, Terry, Morton, DeWitt & Paruolo as class counsel. The class is defined as: All persons who received an ACV payment, directly or indirectly, from Liberty Mutual Fire Insurance Company for physical loss or damage to their dwelling or other structures located in the state of Missouri arising under policy Form HO 03 (Edition 04 91) and endorsements, such payments arising from losses that occurred from April 8, 2004 to the date of class certification, where a deductible was applied to the ACV payment for the person's dwelling or other structure (Coverage A and/or B). Excluded from the Class are: (1) All persons who received a replacement cost payment from Liberty Mutual Fire Insurance Company under Coverage A and/or B; (2) All persons whose payment(s) plus the amount of any deductible applied was less than $2,500; (3) Liberty Mutual Fire Insurance Company and its affiliates, officers, and directors; (4) Members of the judiciary and their staff to whom this action is assigned; and (5) Plaintiffs' Counsel. The Plaintiffs contends that certification of the proposed Class is appropriate because, among other things, the class is so numerous that joinder of all members is impracticable. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=Rlo7ASV0 The Plaintiffs are represented by: Derrick L. Morton, Esq. Douglas A. Terry, Esq. NELSON, TERRY, MORTON DEWITT & PARUOLO P.O. Box 138800 Oklahoma City, OK 73113 Telephone: (405) 705-3600 Facsimile: (405) 705-2573 E-mail: dterry@ntmdlaw.com morton@ntmdlaw.com - and - David L. Steelman, Esq. STEELMAN, GAUNT & HORSEFIELD 901 Pine Street, Suite 110 P.O. Box 1257 Rolla, MO 65402 Telephone: (573) 341-8336 Facsimile: (573) 341-8548 E-mail: dsteelman@steelmanandgaunt.com - and - Thomas H. Hearne, Esq. HEARNE & PIVAC 2733 E. Battlefield, No. 301 Springfield, MO 65804 Telephone: (417) 883-3399 Facsimile: (417) 883-3996 E-mail: thhearne@hplawfirm.org The Defendant is represented by: Bruce A. Moothart, Esq. Michael L. Blumenthal, Esq. SEYFERTH BLUMENTHAL & HARRIS LLC 4801 Main Street, Suite 310 Kansas City, MO 64112 Telephone: (816) 756-0700 Facsimile: (816) 756-3700 E-mail: bruce@sbhlaw.com mike@sbhlaw.com LOUISIANA-PACIFIC: 8th Cir. Upholds Summary Judgment in "Brown" --------------------------------------------------------------- Circuit Judge Lavenski R. Smith of the Court of Appeals, Eighth Circuit affirmed the district court's grant of summary judgment to Louisiana-Pacific Corporation (LP) in the case captioned, Alan Todd Brown, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. Louisiana-Pacific Corporation, Defendant-Appellee, Case No. 15-1830 (8th Cir.). LP's former subsidiary, ABT Building Products Corporation (ABT), manufactured and sold TrimBoard, an exterior building component intended for use as trim in housing construction. In 2003, Brown purchased a lot from Bryan Clark Holmes, LLC in Urbandale, Iowa, and hired Bryan Clark to construct a home on the property for Brown and his wife. When discussing construction materials with Clark, Brown emphasized the importance of finding a siding-and- trim product that would not cause the rotting and buckling problems present in Brown's prior home. TrimBoard was ultimately the product selected and installed on Brown's home. In August 2004, Brown moved into his new home. Sometime in 2010, Brown noticed damage to certain pieces of the installed TrimBoard and contacted Clark, who advised Brown of the ten-year limited warranty. Brown located a copy of the limited warranty on LP's website and filed a warranty claim. In response to Brown's warranty claim, LP sent a warranty representative to inspect Brown's house and identify the damaged TrimBoard. LP offered Brown $197.67 in compensation for the damaged TrimBoard, which Brown rejected. Brown subsequently filed this putative class action, alleging claims for negligence, fraudulent misrepresentation, breach of warranty, and unfair or deceptive practices, and requested declaratory relief and money damages. Pursuant to LP's dismissal motion, the district court dismissed Brown's claim for negligence and permitted the remaining claims to proceed. LP then moved for summary judgment on all remaining claims. The district court granted summary judgment to LP on the remaining claims finding that Brown failed to demonstrate a genuine issue of material fact on whether LP made a representation to Clark and that the limited warranty did not fail of its essential purpose and was not unconscionable, meaning that Brown's remedy was limited to the warranty's terms. On appeal, Brown argues that the district court erred in granting summary judgment to LP on his claims for fraudulent misrepresentation, unfair or deceptive practices, and breach of warranty. In the Order dated April 12, 2016, available at http://is.gd/qMVy5Ffrom Leagle.com, Judge Smith found that the district court did not err in its judgment holding that Clark's affidavit is insufficient to create a genuine issue of material fact as to whether Clark received a communication from LP that he subsequently communicated to Brown and upon which Brown relied. LTD FINANCIAL: Court Postpones Class Certification Adjudication --------------------------------------------------------------- The Hon. Paul G. Byron postpones adjudication of the Plaintiff's motion for class certification in the lawsuit captioned LIZNELIA BAEZ, on behalf of herself and all others similarly situated v. LTD FINANCIAL SERVICES, L.P., Case No. 6:15-cv-1043-Orl-40TBS (M.D. Fla.), until the Plaintiff is given an opportunity to comply with Local Rule 4.04(b). The Plaintiff initiated this putative class action against the Defendant to allegedly vindicate her rights and the rights of other similarly situated consumers under the Fair Debt Collection Practices Act. She states that she and approximately 34,000 other consumers received dunning letters from the Defendant, which sought payment on debts that are barred by the applicable statute of limitations. Of the many requirements the Plaintiff must satisfy before the Court may certify a class under Rule 23(b)(3) of the Federal Rules of Civil Procedure is this Court's Local Rule 4.04(b), according to the Order. That rule provides, in pertinent part, that a motion to certify a Rule 23(b)(3) class "shall . . . suggest a means of providing, and defraying the cost of, the notice required by Rule 23(c)(2)." Upon review of Plaintiff's motion in this case, it is clear that the Plaintiff has not met this requirement, Judge Byron noted. Accordingly, he opined, certification cannot be granted at this time. The Plaintiff has 14 days from the date of this Order to file a supplemental brief. The Defendant has 14 days from the date the Plaintiff files her supplemental brief to file a response, if necessary. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=BZdb0t97 MAGAN FOOD: Faces "Munoz" Suit Over Failure to Pay Overtime Wages ----------------------------------------------------------------- Oscar Munoz, on behalf of himself, individually, and on behalf of all others similarly-situated v. Magan Food Enterprises, Inc. d/b/a Hubba's, and Carlos Magan, Case No. 7:16-cv-03143 (S.D.N.Y., April 27, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. The Defendants own and operate a restaurant located at 24 North Main Street, Port Chester, New York 10573. The Plaintiff is represented by: Pooja Bhutani, Esq. Alexander T. Coleman, Esq. Michael J. Borrelli, Esq. BORRELLI & ASSOCIATES, P.L.L.C. 1010 Northern Blvd., Ste. 328 Great Neck, NY 11021 Telephone: (732) 668-7024 Facsimile: (516) 248-6027 E-mail: pb@employmentlawyernewyork.com atc@employmentlawyernewyork.com mjb@employmentlawyernewyork.com MAKING IT A LIFESTYLE: Recalls Dietary Supplements -------------------------------------------------- Making It A Lifestyle, L.L.C. is voluntarily recalling all lots of 3rd Degree, Black Gold X Advanced and Black Label X capsule form supplements to the consumer level. The products have been found to contain undeclared sibutramine and sildenafil. These undeclared ingredients make these products an unapproved new drug for which safety and efficacy have not been established. FDA laboratory analysis confirmed that 3rd Degree and Black Gold X Advanced contains sibutramine. Sibutramine is a controlled substance that was removed from the market in October 2010 for safety reasons. The product poses a threat to consumers because sibutramine is known to substantially increase blood pressure and/or pulse rate in some patients and may present a significant risk for patients with a history of coronary artery disease, congestive heart failure, arrhythmias, or stroke. This product may also interact, in life-threatening ways, with other medications a consumer may be taking. Additionally, FDA laboratory analysis confirmed that Black Label X contains sildenafil, the active ingredient in the FDA approved prescription drug Viagra, used to treat erectile dysfunction (ED). This undeclared ingredient may interact with nitrates found in some prescription drugs such as nitroglycerin and may lower blood pressure to dangerous levels. Men with diabetes, high blood pressure, high cholesterol, or heart disease often take nitrates. To date, Making It a Lifestyle has not received any reports of adverse events related to this recall. Black Label X, Black Gold X Advanced, and 3rd Degree are marketed as weight loss dietary supplements and are packaged in white plastic bottles, containing 60 capsules per bottle. The products can be identified by the names on the bottle. These products were distributed nationwide via internet. Making It A Lifestyle, L.L.C. is notifying its distributors and customers by e-mail and is arranging for return of all recalled products. Consumers who have the recalled products should stop using them. The recalled products were distributed from February 2015 to April 27th 2016. Consumers with questions regarding this recall can contact Making It A Lifestyle, L.L.C. via by phone 1-888-648-4447 Monday thru Friday 9:00am to 1:00pm or email at Makingitalifestyle@gmail.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. 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 preaddressed form, or submit by fax to 1-800-FDA-0178 This recall is being conducted with the knowledge of the U.S. Food and Drug Administration. MDL 2575: Class Certification Sought in Water Connector Case ------------------------------------------------------------ The Plaintiffs in certain lawsuits consolidated in the multidistrict litigation captioned In re: Fluidmaster, Inc., Water Connector Components Products Liability Litigation, MDL No. 2575, filed with the U.S. District Court for the Northern District of Illinois a motion and supporting memorandum of law asking the Court to certify these classes: Class #1 -- Nationwide class under California CLRA: All persons who purchased or leased a No-Burst Line, not for resale, or sustained damage from the failure of a No-Burst Water Supply Line, between April 24, 2011, and the date of certification. Proposed Class #1 Representatives are Steven Rensel and Karen Rhyne Class #2 -- State Sub-Classes: Pursuant to Rule 23(b)(3), breach of warranty on behalf of all persons who purchased or acquired a No-Burst Line, or sustained damage from the failure of a No-Burst Line, between April 24, 2004, and the date of certification in Pennsylvania, Vermont, Alabama, Minnesota, Arizona, and Tennessee. Pursuant to Rule 23(c)(4), negligence on behalf of all persons who sustained damage from the failure of a No-Burst Line, between April 24, 2012 [or applicable statute of limitation], and the date of certification in Pennsylvania, Vermont, Alabama, Minnesota, Arizona, Illinois, North Dakota, Georgia, Maine, California and New Hampshire. Pursuant to Rule 23(c)(4), strict liability on behalf of all persons who sustained damage from the failure of a No-Burst Line, between April 24, 2012 [or applicable statute of limitation], and the date of certification in Pennsylvania, Vermont, Alabama, Minnesota, Arizona, Illinois, North Dakota, Georgia, Maine, California and New Hampshire. Additionally, the Plaintiffs ask the Court to appoint the Plaintiffs identified in the Memorandum of Law as class representatives, and Saltz, Mongeluzzi, Barrett & Bendesky, P.C., and Berger & Montague, P.C. as Class Counsel, and Wexler Wallace LLP as Liaison Counsel. The lawsuits and the requesting Plaintiffs are: * Rensel, et al., v. Fluidmaster, Inc., Case No. 14-cv-000648; * Sullivan, et al., v. Fluidmaster, Inc., Case No. 1:14-cv- 05696; * Hardwick v. Fluidmaster, Inc., Case No. 1:14-cv-00363; * Hungerman, et al. v. Fluidmaster, Inc., Case No. 2:14-cv- 00994; * Wyble v. Fluidmaster, Inc., Case No. 14-cv-01826; * Larson v. Fluidmaster, Inc., Case No. 1:14-cv-10222; and * Smith v. Fluidmaster, Inc., Case No. 1:16-cv-00932. Copies of the Motion and Memorandum of Law are available at no charge at: http://d.classactionreporternewsletter.com/u?f=BFS5NPWL http://d.classactionreporternewsletter.com/u?f=rNncqCxz The Plaintiffs are represented by: Simon Bahne Paris, Esq. Patrick Howard, Esq. Charles J. Kocher, Esq. SALTZ, MONGELUZZI, BARRETT & BENDESKY, P.C. One Liberty Place, 52nd Floor 1650 Market Street Philadelphia, PA 19103 Telephone: (215) 575-3986 E-mail: sparis@smbb.com phoward@smbb.com ckocher@smbb.com - and - Shanon J. Carson, Esq. Glen Abramson, Esq. BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-4604 E-mail: scarson@bm.net ldeutsch@bm.net - and - Edward A. Wallace, Esq. Amy E. Keller, Esq. WEXLER WALLACE LLP 55 West Monroe Street, Suite 3300 Chicago, IL 60603 Telephone: (312) 346-2222 Facsimile: (312) 346-0022 E-mail: eaw@wexlerwallace.com aek@wexlerwallace.com - and - Gregory F. Coleman, Esq. Lisa A. White, Esq. GREG COLEMAN LAW PC Bank of America Center 550 Main Avenue, Suite 600 Knoxville, TN 37902 Telephone: (865) 247-0080 Facsimile: (865) 522-0049 E-mail: greg@gregcolemanlaw.com lisa@gregcolemanlaw.com - and - Anthony D. Shapiro, Esq. Jeniphr Breckenridge, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1918 Eighth Avenue, Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 E-mail: steve@hbsslaw.com tony@hbsslaw.com Jeniphr@hbsslaw.com - and - Joseph J. Tabacco, Jr., Esq. Todd. A. Seaver, Esq. BERMAN DEVALERIO One California Street, Suite 900 San Francisco, CA 94111 Telephone: (415) 433-3200 Facsimile: (415) 433-6282 E-mail: jtabacco@bermandevalerio.com tseaver@bermandevalerio.com - and - Daniel E. Gustafson, Esq. Amanda M. Williams, Esq. Raina C. Borrelli, Esq. GUSTAFSON GLUEK PLLC Canadian Pacific Plaza 120 South Sixth Street, Suite 2600 Minneapolis, MN 55402 Telephone: (612) 333-8844 Facsimile: (612) 339-6622 E-mail: dgustafson@gustafsongluek.com awilliams@gustafsongluek.com rborrelli@gustafsongluek.com - and - Donald L. Perelman, Esq. Gerard A. Dever, Esq. Ria C. Momblanco, Esq. FINE, KAPLAN AND BLACK, P.C. One South Broad St., 23rd Floor Philadelphia, PA 19107 Telephone: (215) 567-6565 Facsimile: (215) 568-5872 E-mail: dperelman@finekaplan.com gdever@finekaplan.com rmomblanco@finekaplan.com MERCK: Sex Discrimination Collective Action Gets Prelim. Court OK ----------------------------------------------------------------- Brendan Pierson, writing for Reuters, reports that a federal judge has granted preliminary approval for a lawsuit accusing Merck & Co Inc of underpaying female sales representatives to go forward as a collective action. The lawsuit is seeking at least $250 million in damages. U.S. District Judge Michael Shipp in Trenton, New Jersey, on April 27 granted conditional certification to a proposed class of current and former representatives under the federal Equal Pay Act, which requires women and men to be paid equally for the same work. The complaint alleges that Merck systematically paid female sales representatives less than their male peers, denied them promotions and subjected them to sexual harassment and an otherwise hostile work environment. Employees who become pregnant or have children were often pressured to leave the company, the complaint says. A collective action under the Equal Pay Act requires potential class members to opt in, unlike a traditional class action in which class members must opt out. Judge Shipp's order allows notices to be sent to potential members so they can opt in. The class includes women who worked in certain sales representative positions going back to 2009. It would still require final approval later in the case for class members to win damages. However, Judge Shipp ruled that the four former sales representatives who brought the lawsuit had already made a "modest factual showing" of how Merck's policies affected them and other employees similarly. "We're glad that women across the country are going to have an opportunity to join this case," said Russell Kornblith, an attorney for the plaintiffs. "We remain confident that this case lacks merit," Merck said in a statement emailed by spokeswoman Lainie Keller. "The company will continue to vigorously defend itself, and remains fully committed to providing equal employment opportunities for all employees." The lawsuit, filed in 2013 in New Jersey U.S. District Court, also includes claims under Title VII of the Civil Rights Act. The plaintiffs are seeking to bring those claims as a class action, though no class has yet been certified. The case is Smith et al v. Merck & Co Inc, U.S. District Court, District of New Jersey, No. 3:13-cv-02970. METAL TECHNOLOGIES: Doesn't Properly Pay Employees, Action Says --------------------------------------------------------------- Fannie M. Kolish, individually and on behalf of others similarly situated v. Metal Technologies, Inc., Case No. 2:16-cv-00145-JMS- MJD (S.D. Ind., April 27, 2016), is brought against the Defendants for failure to pay employees for short and missed meal breaks in violation of the Fair Labor Standards Act. Metal Technologies, Inc. is in the business of manufacturing different types of automobile parts. The Plaintiff is represented by: Robert P. Kondras Jr., Esq. HUNT, HASSLER, KONDRAS & MILLER LLP Cherry Street Terre Haute, IN 47807 Telephone: (812) 232-9691 Facsimile: (812) 234-2881 E-mail: kondras@huntlawfirm.net MICHIGAN: Seeks Dismissal of Class Action Against UIA ----------------------------------------------------- Paul Egan, writing for Detroit Free Press, reports that an attorney suing the Michigan Unemployment Insurance Agency, alleging it has wrongly accused tens of thousands of residents of fraud and unlawfully confiscated tens of millions of dollars in benefits and penalties, says an auditor general's report that was highly critical of the agency supports her claims. In the state's response to the report released April 21, "they're admitting (the state's unemployment insurance system) is flawed in the ways we're claiming it's flawed," Royal Oak attorney Jennifer Lord told the Free Press on April 27. Michigan Court of Claims Judge Cynthia Stevens is expected to rule soon on the state's motion to dismiss Ms. Lord's proposed class action. Arguments were heard on March 8. The lawsuit, filed in 2015, alleges the automated system the agency uses for detecting and adjudicating unemployment insurance fraud "deprives UIA claimants of due process and fair and just treatment because it determines guilt without providing notice, without proving guilt and without affording claimants an opportunity to be heard before penalties are imposed." The suit also alleges the state agency engages in unlawful collection practices when it seizes benefits and income tax returns and garnishes wages to collect the penalties it arbitrarily assesses. In a motion filed in October, attorneys for the Unemployment Insurance Agency urged Stevens to dismiss the suit, saying the system worked the way it should because lead plaintiff Grant Bauserman appealed the agency's fraud determination against him and "the agency reconsidered its previous determinations and held Mr. Bauserman not liable for interest and penalties." The state agency argued "Bauserman has been refunded all monies intercepted and he owes the agency no money," and therefore "there is no claim upon which relief may be granted." But another client of Lord's, Daniel Di Gregorio, told the Free Press on April 27 he's continued to receive letters from the UIA accusing him of fraud, even after Administrative Law Judge Stephen Goldstein threw out all allegations against him in February saying that by failing to specify details about its allegations against Di Gregorio, "the agency violate(d) the most rudimentary demands of due process of law." Mr. Di Gregorio, a crane operator in the concrete business, said his wife Shirl took the lead in fighting the $33,000 demand he received from the state agency and "if it wasn't for my wife, I don't know what I would have done." He said he might have rolled over and found a way to pay the money. Weeks after the judge ruled in her husband's favor, he received another payment demand from the agency, this time for $6,000, Shirl Di Gregorio said. Ms. Lord said the report issued April 21 by Auditor General Doug Ringler supports her case because the audit details how the state's MiDAS (Michigan Integrated Data Automated System), introduced in 2013, arbitrarily makes fraud determinations based on answers to innocuous questions such as whether someone applied for benefits because they needed the money. The audit also details how the agency fails to spell out details that would allow claimants to defend themselves against fraud allegations, and says the agency fails to give proper notice of allegations and repeatedly sends notices to incorrect addresses even after letters have been returned as "undeliverable." In each case, the agency agreed with the auditor's findings, though it says it has made changes. Mr. Di Gregorio's experience shows that even if methods have changed, similar results continue, Ms. Lord said. Ms. Lord said she sees parallels with the state's conduct in the lead poisoning of Flint's drinking water: "The parallel I see is that there's a CEO mentality," in which the human element is ignored and "it's all based on the bottom line," she said. Ken Silfven, a spokesman for the UIA, wouldn't comment on whether the auditor general's report supports Lord's allegations, citing the ongoing litigation. But Mr. Silfven took issues with the Flint comparison and suggestions Gov. Rick Snyder places too much emphasis on the bottom line. "To the contrary, the governor reminds his team constantly that everything we do is about serving people," Mr. Silfven said in an e-mail. "I know that's what motivates him as he does his job. That's why he had the courage to lead the way on such things as the Healthy Michigan program. He's driven by compassion and a clear sense of duty. It's not just dollars and cents. He's made clear time and again that we can never forget the human element when it comes to shaping programs or policy." MODESTO, CA: Irrigation District Faces Class Actions Over Subsidy ----------------------------------------------------------------- Garth Stapley, writing for Modesto Bee, reports that the Modesto Irrigation District faces two separate class-action lawsuits, both accusing the utility of overcharging electricity customers to subsidize farmers' water prices. Both ask that a judge grant class status enabling tens of thousands of electricity customers to join the lawsuit and ask for refunds. Although filed for similar reasons within two weeks of each other, the lawsuits were prepared independently. "We feel it's important to get this case out there so people can get a little more transparency with what the elected folks are doing," said Beverly Hills attorney Jeffrey Koncius. MID spokeswoman Melissa Williams said, "Our legal team is confident that MID's rates practices are appropriate and comply with the law." Mr. Koncius' firm, Kiesel Law, represents Modesto resident Andrew Hobbs, whose class-action lawsuit against MID was filed March 15. Previous Modesto Bee reporting has focused on the other lawsuit, brought two weeks later by Dave Thomas of Modesto. "As best I can tell, they didn't know about our case when they filed theirs, and we didn't know about theirs when we filed ours," Mr. Koncius said. Both say overcharging power customers amounts to an illegal tax prohibited by state law unless MID asks for voter approval, which it has not. The Hobbs complaint goes a step further, accusing MID of overcharging homes to subsidize businesses that pay lower rates for power, in addition to farmers getting sweet deals on water. The nonprofit utility serves nearly 118,000 power accounts: 96,583 residential, 12,596 commercial and 156 industrial, plus another 8,524 spread among farm pumps, government buildings and railroads. MID "has illegally inflated the electricity bills of its residential customers through unapproved taxes," the Hobbs complaint says. Compared to families, MID's industrial customers pay 75 percent less, and its commercial customers pay 22 percent less, the lawsuit says. Bee analyses have shown that MID reaped an average yearly electricity profit of $93 million from 2010 to 2014, for a five- year total of $466 million. MID has used that money to repay debt and build reserves, currently $196 million. Electricity profits also subsidize irrigation prices, both lawsuits note. This year, the subsidy comes to more than $17 million: it costs MID $21.2 million to deliver water, while customers pay only $3.82 million -- even after the MID board raised water rates 20 percent. The utility serves about 600 farms, critics estimate. The district has refused to separate its water and power bookkeeping. The board has raised water rates several times in recent years while leaving power rates alone since 2011, about the time an attorney privately advised that an increase without a vote of the people might violate state law. MID's water side deserves but gets no credit for services benefiting its power side, farm advocates say, such as canals supporting power poles and carrying stormwater from Modesto streets, and irrigation replenishing groundwater aquifers. Mr. Thomas' complaint, brought by Krause, Kalfayan, Benink & Slavens of San Diego, seeks refunds since February 2015, while Hobbs' asks for refunds since March 2013. Attorneys representing both have experience in litigation alleging that utilities have overcharged customers. "We tend to take on big cases with big causes, ones we feel strongly about," Mr. Koncius said. MOTOROLA: Faces Class Action Over Poor Customer Support ------------------------------------------------------- Alexander Maxham, writing for Android Headlines, reports that lately, the big news coming on the Motorola front has been about their poor customer support when a user needs to get a replacement device, because theirs is faulty. Some have been told that Motorola doesn't have any replacements to send out, and others have gotten a replacement which was not the one they ordered in the first place. As is the case with the main plaintiff in this class action lawsuit. Douglas Lynch, who is a Georgia resident, states that Motorola took months to replace his Moto 360 which was defective, in 2015. Motorola did finally replace it, but sent him a cheaper model than the one that he bought. This isn't just a one time occurrence either, the court filing has a number of additional cases where the same thing happened. Motorola has indeed admitted that there are delays in the processing of warranty claims. That's cool and all, but doesn't help users that paid for their Moto Care warranty, and now are out of a working device. When it comes to customer service, not everyone's experience is the same. For every company that has customer service, you can find a group that has had a rough time with their customer service, and another group that has had no issues. Lately, it seems that Motorola's customer service has just been atrocious though. Which is out of the norm for Motorola. The class action lawsuit is for $5 million, and we'll likely be hearing a lot more on this in the coming weeks. This could turn out to be a pretty expensive lawsuit for Motorola and Lenovo. With Lenovo having just restructured their latest acquisition, one has to wonder if this is part of that restructuring. It likely isn't, but could be a cost cutting measure. Either way it's not sitting well with consumers, and that should be no surprise. This could definitely affect both Motorola and Lenovo's sales moving forward, which isn't going to be good for Lenovo. Especially where they want to challenge the "big dogs" Apple and Samsung in the near future -- a bit reason for buying up Motorola. MOTRICITY INC: Dismissal of "Mosco" Securities Suit Affirmed ------------------------------------------------------------ In the consolidated securities class action captioned CLIFF MOSCO; et al., Plaintiffs-Appellants, LOBEL FAMILY, Movant-Appellant., And JOE CALLAN, individually and on behalf of all others similarly situated, Plaintiff, v. MOTRICITY INC; et al., Defendants- Appellees, v. LOBEL FAMILY, Movant-Appellant, No. 13-36029 (9th Cir.), the United States Court of Appeals, Ninth Circuit affirmed two Rule 12(b)(6) orders dismissing the Second and Third Amended Complaints filed by Cliff Mosco, Rich Hardy and Evan S. Lobel against Motricity, Inc. and certain of its officers and directors, and the banks who underwrote its Initial Public Offering on June 17, 2010. A full-text copy of the appellate court's May 3, 2016 opinion is available at http://is.gd/Ukl0ySfrom Leagle.com. MTD PRODUCTS: Recalls Utility Vehicles Due to Crash Hazard ---------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with MTD Products Company, of Cleveland, Ohio, announced a voluntary recall of about 1,300 Utility vehicles. Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The parking brake cable can fail, posing a crash hazard. This recall involves model year 2015 Cub Cadet Challenger CX500 and Challenger CX700 four-wheel drive off-road utility vehicles. The recalled vehicles have two bucket seats, roll bars, a canopy, a two-piece windshield, a 35.5-inch by 44-inch cargo bed and a winch. The vehicles were sold in the colors camouflage and yellow. Challenger utility vehicles with the following model numbers are being recalled. The model number is located under the driver's seat. CX500 CX500 CX700 CX700 (Yellow) (Camouflage) (Yellow) (Camouflage) -------- ------------ -------- ------------ 37AW7CKD010 37AW7CLD010 37AW7CKD710 37AX7CKD710 37AX7CKD010 37AX7CLD010 37AW7CLD710 37AX7CLD710 The firm has received 22 reports of incidents of the brake cable failing. There have been no reports of injuries or property damage. Pictures of the Recalled Products available at: http://is.gd/EBS9Pv The recalled products are sold at Cub Cadet dealers nationwide from April 2015 through October 2015 for between $8,500 to $9,500. Consumers should immediately stop using the recalled vehicles and contact a Cub Cadet dealer to schedule an appointment for a free repair. Cub Cadet is contacting owners of the recalled utility vehicles directly. MURRAY GOULBURN: Class Action Mulled Over Profit Downgrade ---------------------------------------------------------- Damon Kitney, writing for The Australian, reports that Slater and Gordon is investigating a potential investor class action against Murray Goulburn in the wake of its shock profit downgrade. The claim, which Slater and Gordon is investigating together with litigation funder IMF Bentham Limited, relates to guidance provided by Murray Goulburn in its Product Disclosure Statement (PDS) issued last July ahead of its $500 million capital raising. Those forecasts have since been slashed. Slater and Gordon Senior class action lawyer Tim Finney said in a statement that the firm would investigate whether Murray Goulburn has misled the market. It comes as the Australian Securities and Investments Commisison is believed to have circumstances surrounding the downgrade and the issue of the PDS "on its radar." "Our initial investigations have identified inconsistencies between Murray Goulburn's statements to the market regarding its likely profits in the 2016 financial year, and the factors that would affect its performance," Mr. Finney said. "The downgrade was of such a scale that it cannot be explained by the excuses that have so far been provided. We are investigating whether the true cause of Murray Goulburn's downgrade was an aggressively optimistic profit forecast - built into its Product Disclosure Statement -- that the company was simply never going to achieve." MYDATT SERVICES: "Levin" Suit Seeks Unpaid Wages, Penalties ----------------------------------------------------------- Nikolay Levin, on behalf of himself, and all others similarly situated, Plaintiff(s), v. Mydatt Services, Inc., SMS Holdings Corporation and Does 1 through 50, inclusive, Defendant(s), Case No. RG16812703 (Cal. Super., April 21, 2016) seeks to recover unpaid wages, declaratory relief, injunctive and equitable relief, actual damages, statutory penalties, liquidated damages, restitution, pre-judgment and post-judgment interest, costs of suit, reasonable attorney's fees and such other relief under California Labor Codes. Defendant failed to pay Plaintiff for all hours worked at correct rates of pay, provide rest and meal periods, failed to provide wage statement penalties and failed to pay waiting time penalties. Defendants employed Plaintiff as an hourly safety ambassador, lead ambassador, team leader and supervisor at Defendants' Oakland, California location. Mydatt Services, Inc. offers security services such as detective and armored car services, armored car services, burglary protection services and guard dog rentals. SMS Holdings Corporation is a holding company for several companies which provide services to multiple industries including healthcare, hospitality, retail, sports & leisure, transportation and aviation. The Plaintiff is represented by: David Spivak, Esq. THE SPIVAK LAW FIRM 9454 Wilshire Blvd., Ste 303 Beverly Hills, CA 90212 Telephone (310) 499-4730 Facsimile (310) 499-4739 Email: david@spivaklaw.com NATIONAL FOOTBALL: Approval of Concussion Deal Affirmed ------------------------------------------------------- The United States Court of Appeals, Third Circuit affirmed the decision of the district court in the case captioned IN RE: NATIONAL FOOTBALL LEAGUE PLAYERS CONCUSSION INJURY LITIGATION. The National Football League ("NFL") has agreed to resolve lawsuits brought by former players who alleged that the NFL failed to inform them of and protect them from the risks of concussions in football. The district court approved a class action settlement that covered over 20,000 retired players and released all concussion-related claims against the NFL. Objectors have appealed that decision, arguing that class certification was improper and that the settlement was unfair. After thorough review, however, the Third Circuit concluded that the district court was right to certify the class and approve the settlement. A full-text copy of the appellate court's May 2, 2016 opinion is available at http://is.gd/0kzEwyfrom Leagle.com. The case before the Third Circuit is captioned, In Re: National Football League Players Concussion Injury Litigation. Craig Heimburger; Dawn Heimburger, Appellants (15-2206). Cleo Miller; Judson Flint; Elmer Underwood; Vincent Clark, Sr.; Ken Jones; Fred Smerlas; Jim Rourke; Lou Piccone; James David Wilkins, II, Appellants (15-2217). Curtis L. Anderson, Appellant (15-2230). Darren R. Carrington, Appellant (15-2234). Raymond Armstrong; Nathaniel Newton, Jr.; Larry Brown; Kenneth Davis; Michael McGruder; Clifton L. Odom; George Teague; Drew Coleman; Dennis DeVaughn; Alvin Harper; Ernest Jones; Michael Kiselak; Jeremy Loyd; Gary Wayne Lewis; Lorenzo Lynch; Hurles Scales, Jr.; Gregory Evans; David Mims; Evan Ogelsby; Phillip E. Epps; Charles L. Haley, Sr.; Kevin Rey Smith; Darryl Gerard Lewis; Curtis Bernard Wilson; Kelvin Mack Edwards, Sr.; Dwayne Levels; Solomon Page; Tim McKyer; Larry Barnes; James Garth Jax; William B. Duff; Mary Hughes; Barbara Scheer, Appellants (15-2272). Liyongo Patrise Alexander; Charlie Anderson; Charles E. Arbuckle; Cassandra Bailey, as Representative of the Estate of Johnny Bailey; Ben Bronson; Curtis Ceaser, Jr.; Larry Centers; Darrell Colbert; Harry Colon; Christopher Crooms; Jerry W. Davis; Tim Denton; Michael Dumas; Corris Ervin; Doak Field; Baldwin Malcolm Frank; Derrick Frazier; Murray E. Garrett; Clyde P. Glosson; Roderick W. Harris; Wilmer K. Hicks, Jr.; Patrick Jackson; Gary Jones; Ryan McCoy; Jerry James Moses, Jr.; Anthony E. Newsom; Rance Olison; John Owens; Robert Pollard; Derrick Pope; Glenell Sanders; Thomas Sanders; Dwight A. Scales; Todd Scott; Frankie Smith; Jermaine Smith; Tyrone Smith; James A. Young, Sr., Appellants (15-2273) Scott Gilchrist, individually and on behalf of the Estate of Carlton Chester "Cookie" Gilchrist, Appellant (15-2290) Jimmie H. Jones; Ricky Ray; Jesse Solomon, Appellants (15-2291) Andrew Stewart, Appellant (15-2292) Willie T. Taylor, Appellant (15-2294) Alan Faneca; Roderick "Rock" Cartwright; Jeff Rohrer; Sean Considine, Appellants (15-2304) James Mayberry, Appellant (15- 2305), Nos. 15-2206, 15-2217, 15-2230, 15-2234, 15-2272, 15-2273, 15-2290, 15-2291, 15-2292, 15-2294, 15-2304 & 15-2305 (3rd Cir.). TerriAnne Benedetto, Esquire -- tbenedetto@seegerweiss.com -- Seeger Weiss, 1515 Market Street, Suite 1380 Philadelphia, PA 19102 David R. Buchanan, Esquire -- dbuchanan@seegerweiss.com -- Diogenes P. Kekatos, Esquire, Christopher A. Seeger, Esquire -- cseeger@seegerweiss.com -- Seeger Weiss LLP, 77 Water Street, 26th Floor New York, NY 10005 Samuel Issacharoff, Esquire(Argued) New York University Law School, Room 411J 40 Washington Square South New York, NY 10012 Gene Locks, Esquire -- glocks@lockslaw.com -- David D. Langfitt, Esquire -- dlangfitt@lockslaw.com -- Locks Law Firm 601 Walnut Street The Curtis Center, Suite 720 East Philadelphia, PA 19106 Dianne M. Nast, Esquire -- dnast@nastlaw.com -- NastLaw, 1101 Market Street, Suite 2801 Philadelphia, PA 19107 Stephen F. Rosenthal, Esquire -- srosenthal@podhurst.com -- Steven C. Marks, Esquire -- smarks@podhurst.com -- Podhurst Orseck, 25 West Flager Street, Suite 800 Miami, FL 33130 Arnold Levin, Esquire -- alevin@lfsblaw.com -- Frederick S. Longer, Esquire -- flonger@lfsblaw.com -- Levin, Fishbein, Sedran & Berman, 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Brad S. Karp, Esquire -- bkarp@paulweiss.com -- Theodore V. Wells, Jr., Esquire -- twells@paulweiss.com -- Lynn B. Bayard, Esquire -- lbayard@paulweiss.com -- Bruce A. Birenboim, Esquire, Walter R. Reiman, Esquire -- wrieman@paulweiss.com -- Paul, Weiss, Rifkind, Wharton & Garrison 1285 Avenue of the Americas New York, NY 10019 Beth A. Wilkinson, Esq. -- bwilkinson@wilkinsonwalsh.com -- Wilkinson Walsh & Eskovitz, 1900 M Street, N.W. Suite 800 Washington, DC 20036 Paul D. Clement, Esquire (Argued) -- pclement@bancroftpllc.com -- Andrew N. Ferguson, Esquire -- aferguson@bancroftpllc.com -- David Zachary Hudson, Esquire, Robert M. Bernstein, Esquire -- rbernstein@bancroftpllc.com -- Bancroft PLLC, 500 New Jersey Avenue, N.W. Seventh Floor Washington, DC 20001, Robert C. Heim, Esquire, Dechert 2929 Arch Street 18th Floor, Cira Centre Philadelphia, PA 19104 Sol H. Weiss, Esquire, Anapol Schwartz, 1710 Spruce Street Philadelphia, PA 19103 Counsel for Appellees. Alan B. Morrison, Esquire, George Washington University, 2000 H Street, N.W. Washington, DC 20052 Scott L. Nelson, Esquire, Public Citizen Litigation Group, 1600 20th Street, N.W. Washington, DC 20009 Counsel for Amicus Appellant Public Citizen Inc. Shana De Caro, Esquire, Michael V. Kaplen, Esquire, De Caro & Kaplan, 427 Bedford Road, Suite 360 Pleasantville, NY 10570 Counsel for Amicus Curiae Brain Injury Association of America Christopher A. Bandas, Esquire, Bandas Law Firm, 500 North Shoreline, Suite 1020 Corpus Christi, TX 78401 Howard J. Bashman, Esquire (Argued) Suite G-22 2300 Computer Avenue Willow Grove, PA 19090 Gary P. Lightman, Esquire, Glenn A. Manochi, Esquire, Lightman & Manochi, 1520 Locust Street, 12th Floor Philadelphia, PA 19102 Counsel for Appellants Craig and Dawn Heimburger. Edward W. Cochran, Esquire, Cochran & Cochran 20030 Marchmont Road Shaker Heights, OH 44122 John J. Pentz, Esquire, 19 Widow Rites Lane Sudbury, MA 01776, Counsel for Appellants, Cleo Miller; Judson Flint; Elmer Underwood; Vincent Clark, Sr.; Ken Jones; Fred Smerlas; Jim Rourke; Lou Piccone; James David Wilkins, II George W. Cochran, Esquire, 1385 Russell Drive Streetsboro, OH 44241, Counsel for Appellant. Curtis L. Anderson Joseph Darrell Palmer, Esquire 2244 Faraday Avenue, Suite 121 Carlsbad, CA 92008 Jan L. Westfall, Esquire, 29896 Blue Water Way Menifee, CA 92584 Counsel for Appellant Darren R. Carrington Richard L. Coffman, Esquire, The Coffman Law Firm, 505 Orleans Street, Suite 505 Beaumont, TX 77701 Deepak Gupta, Esquire (Argued) Matthew W.H. Wessler, Esquire Jonathan E. Taylor, Esquire Gupta Wessler PLLC, 1735 20th Street, N.W. Washington, DC 20009 Mitchell A. Toups, Esquire, Weller Green Toups & Terrell, 2615 Calder Street, Suite 400 Beaumont, TX 77704 Jason C. Webster, Esquire, The Webster Law Firm, 6200 Savoy, Suite 640 Houston, TX 77036 Counsel for Appellants Raymond Armstrong; Nathaniel Newton, Jr.; Larry Brown; Kenneth Davis; Michael McGruder; Clifton L. Odom; George Teague; Drew Coleman; Dennis DeVaughn; Alvin Harper; Ernest Jones; Michael Kiselak; Jeremy Loyd; Gary Wayne Lewis; Lorenzo Lynch; Hurles Scales, Jr.; Gregory Evans; David Mims; Evan Ogelsby; Phillip E. Epps; Charles L. Haley, Sr.; Kevin Rey Smith; Darryl Gerard Lewis; Curtis Bernard Wilson; Kelvin Mack Edwards, Sr.; Dwayne Levels; Solomon Page; Tim McKyer; Larry Barnes; James Garth Jax; William B. Duff; Mary Hughes; Barbara Scheer; Willie T. Taylor Lance H. Lubel, Esquire, Adam Q. Voyles, Esquire, Lubel Voyles, 5020 Montrose Boulevard, Suite 800 Houston, TX 77006 Mickey L. Washington, Esquire, 1314 Texas Avenue, Suite 811 Houston, TX 77002 Charles L. Becker, Esquire, (Argued) Kline & Specter, 1525 Locust Street, 19th Floor Philadelphia, PA 19102 Counsel for Appellants Liyongo Patrise Alexander; Charlie Anderson; Charles E. Arbuckle; Cassandra Bailey, as Representative of the Estate of Johnny Bailey; Ben Bronson; Curtis Ceaser, Jr.; Larry Centers; Darrell Colbert; Harry Colon; Christopher Crooms; Jerry W. Davis; Tim Denton; Michael Dumas; Corris Ervin; Doak Field; Baldwin Malcolm Frank; Derrick Frazier; Murray E. Garrett; Clyde P. Glosson; Roderick W. Harris; Wilmer K. Hicks, Jr.; Patrick Jackson; Gary Jones; Ryan McCoy; Jerry James Moses, Jr.; Anthony E. Newsom; Rance Olison; John Owens; Robert Pollard; Derrick Pope; Glenell Sanders: Thomas Sanders; Dwight A. Scales; Todd Scott; Frankie Smith; Jermaine Smith; Tyrone Smith; James A. Young, Sr. Jared H. Beck, Esquire, Elizabeth Lee Beck, Esquire, Beck & Lee Trial Lawyers, Corporate Park at Kendall, 12485 Southwest 137 Avenue, Suite 205 Miami, FL 33186 Antonino G. Hernandez, Esquire, 4 Southeast 1st Street, 2nd Floor Miami, FL 33131 Cullin A. O'Brien, Esquire, (Argued) 6541 Northeast 21st Way Fort Lauderdale, FL 33308 Jeffrey J. Cairlanto, Esquire, Profy Promisloff & Ciarlanto 100 North 22nd Street Unit 105 Philadelphia, PA 19103 Counsel for Appellant Scott Gilchrist, individually and on behalf of the Estate of Carlton Chester "Cookie" Gilchrist Dwight P. Bostwick, Esquire, Zuckerman Spaeder LLP, 1800 M Street, N.W., Suite 1000 Washington, DC 20036 Cyril V. Smith, Esquire, Zuckerman Spaeder LLP, 100 East Pratt Street, Suite 2440 Baltimore, MD 21202 Ramya Kasturi, Esquire, Zuckerman Spaeder LLP, 399 Park Avenue, 14th Floor New York, NY 10022 Counsel for Appellants Jimmie H. Jones; Ricky Ray; Jesse Solomon Stuart D. Lurie, Esquire, Rosenthal Lurie, 102 Pickering Way Suite 200 Exton, PA 19341 Michael H. Rosenthal, Esquire, Rosenthal Lurie, 1500 John F. Kennedy Boulevard, Suite 1230 Philadelphia, PA 19102, Counsel for Appellant. Andrew Stewart Steven F. Molo, Esquire (Argued) Thomas J. Wiegand, Esquire, Kaitlin R. O'Donnell, Esquire, MoloLamken LLP, 540 Madison Avenue New York, NY 10022 Eric R. Nitz, Esquire, Rayiner I. Hashem, Esquire, Jeffrey M. Klein, Esquire, MoloLamken LLP, The Watergate, Suite 660 600 New Hampshire Avenue, NW Washington, DC 20037 William T. Hangley, Esquire, Michele D. Hangley, Esquire, Hangley Aronchick Segal Pudlin & Schiller One Logan Square, 18th & Cherry Streets, 27th Floor Philadelphia, PA 19103 Linda S. Mullenix, Esquire, 2305 Barton Creek Blvd, Unit 2 Austin, TX 78735 Counsel for Appellants Alan Faneca; Roderick "Rock" Cartwright; Jeff Rohrer; Sean Considine David S. Coale, Esquire, Edward J. Dennis, Esquire, Kent D. Krabill, Esquire, Lynn Tillotson Pinker and Cox, 2100 Ross Avenue, Suite 2700 Dallas, TX 75201, Counsel for Appellant James Mayberry NATIONWIDE CREDIT: Ahmed Hassan Seeks Class Certification --------------------------------------------------------- The Plaintiff in the lawsuit captioned AHMED HASSAN, Individually and on Behalf of All Others Similarly Situated v. NATIONWIDE CREDIT CORPORATION, D/B/A NATIONWIDE CREDIT CORPORATION OF VA, AND PENDRICK CAPITAL PARTNERS, LLC, Case No. 16-cv-530 (E.D. Wisc.), moves the Court to certify the proposed class in this case, and appoint the Plaintiff as its representative, and Ademi & O'Reilly, LLP as its Counsel; and further requests that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). As this motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiff asserts. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=vvHMqEFV The Plaintiff is represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com NEBRASKA: Court Approves Fees and Costs in "Leiting-Hall" Case -------------------------------------------------------------- District Judge John M. Gerrard of the United States District Court for the District of Nebraska granted approval of the settlement agreement and granted the parties' joint motion for fees and costs in the case captioned, TAMI LEITING-HALL and ASHLEY DANKLEFF, individually and on behalf of all others similarly situated, Plaintiffs, v. COURTNEY PHILLIPS, as Chief Executive Officer of the Nebraska Health and Human Services, and DOUGLAS WEINBERG, as Director of the Division of Children and Family Services, Defendants, Case No. 4:14CV3155 (D. Neb.). Plaintiffs brought the instant action under 42 U.S.C. Sec. 1983 alleging that Defendants Courtney Phillips, as Chief Executive Officer of the Nebraska Department of Health and Human Services (or DHHS), and Douglas Weinberg, as Director of the Division of Children and Family Services, fail to provide Supplemental Nutrition Assistance Program (SNAP) benefits within the time frames mandated by federal law to eligible households who file initial or renewal applications. The action was filed on August 1, 2014, and on the same day the plaintiffs moved pursuant to Fed. R. Civ. P. 23 to certify a plaintiff class. In an order entered March 31, 2015, the Court certified the plaintiff class, adopting the Magistrate Judge's findings and recommendation to that effect. On December 23, the Court was advised that the parties were approaching settlement. By February 24, 2016, the parties entered into a proposed Stipulation and Order of Settlement disposing of the plaintiffs' claims. Pursuant to Rule 23(e), the Court set a hearing on the fairness of the proposed settlement and reviewed the forms of notice submitted by the parties, approved them as to form, and approved their plan for directing notice to the class members. Pending before the Court is the parties' proposed Stipulation and Order of Settlement, and the parties' Joint Rule 23(h) Motion for Fees and Costs. In his Memorandum and Order dated April 1, 2016 available at http://is.gd/eg1WCqfrom Leagle.com, Judge Gerrard found that the appointed class representatives and their counsel fairly and adequately represented the interests of the class members in connection with the settlement agreement and that the settlement agreement was the product of good-faith, arm's-length negotiations by the class representatives, defendants, and their respective counsel and is fair, reasonable, adequate, and in the best interests of class members. The form, content, and method of disseminating notice to the class members were adequate and reasonable and constituted the best notice practicable under the circumstances, satisfying Rule 23(c)(2)(B). Tami Leiting-Hall is represented by: James A. Goddard, Esq. Molly M. McCleery, Esq. NEBRASKA APPLESEED CENTER 941 O St #920, Lincoln, NE 68508 Tel: (402)-438-8853 - and - Marc Cohan, Esq. NATIONAL CENTER FOR LAW AND ECONONIC JUSTICE 275 Seventh Ave. New York, NY 10001-6860 Tel: (212)633-6967 Courtney Phillips, Defendant, represented by: David A. Lopez, Esq. Jessica M. Forch, Esq. ATTORNEY GENERAL'S OFFICE 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 Tel: (202) 353-1555 NGOZI IGBINOSA: Court Dismisses Inmate's Suit v. Prison Doctor -------------------------------------------------------------- Magistrate Judge Michael J. Seng of the United States District Court for the Eastern District of California dismissed Plaintiff's complaint with leave to amend in the case captioned, JAMES JAMIL GARRETT, Plaintiff, v. DR. NGOZI IGBINOSA, Defendant, Case No. 1:16-CV-00259-MJS (PC) (E.D. Cal.). Plaintiff is a state prisoner proceeding pro se and in forma pauperis in the civil rights action brought pursuant to 42 U.S.C. Sec. 1983. Plaintiff is detained at the California Substance Abuse Treatment Facility (CSATF), in Corcoran, California, where the acts giving rise to his complaint occurred. He names a single defendant: Dr. Ngozi Igbinosa. Plaintiff was diagnosed with Valley Fever in 2011 while housed at Pleasant Valley State Prison. Plaintiff is a member of a class action lawsuit in relation to his contraction of the disease. Defendant's husband, Felix Igbinosa, is a defendant in the class action lawsuit. Plaintiff alleges that Defendant retaliated against him for filing a lawsuit against Defendant's husband by acting in deliberate indifference in responding to his medical needs. In his Order dated April 13, 2016 available at http://is.gd/FJ17dr from Leagle.com, Judge Seng found that Plaintiff fail to state a claim upon which relief may be granted because he fails to allege facts to show that Defendant acted with deliberate indifference and to state a claim for retaliation. Plaintiff is given leave to amend within 30 days from the Order. NORCOLD INC: September 16 Settlement Fairness Hearing Set --------------------------------------------------------- Consumers Who Own or Owned a Norcold 1200 Series, N6 Series, or N8 Series Gas-Absorption Refrigerator or Cooling Unit, Could Get Benefits From a Class Action Settlement. Class Action Settlement Preliminarily Approved: There is a proposed settlement in two class action lawsuits against Norcold, Inc., Thetford Corporation, and The Dyson-Kissner-Moran Corporation ("Defendants") concerning three models of gas absorption refrigerators (1200, N6 and N8 series) for use in recreational vehicles ("RVs"), such as motorhomes, travel trailers, and boats. Those persons included in the settlement class have legal rights and options and deadlines by which they must exercise them. On March 29, 2016 the United States District Court for the Central District of California granted preliminary approval to the proposed class action settlement and authorized the sending of the Notice of Settlement to the members of the Settlement Class by mail and publication. Fairness Hearing Scheduled: The Court has scheduled a fairness hearing to occur on September 16, 2016 at 2:30 pm at the United States District Court in Santa Ana California at which time it will consider whether to finally approve the settlement and whether to grant Class Counsel's petition for attorneys' fees and costs. The Claims: Generally, the lawsuits claim that Defendants' 1200, N6 and N8 series gas-absorption refrigerators share a safety- related defect in the cooling unit which, in certain circumstances, can cause the boiler tubes to corrode and leak flammable gas, exposing consumers to the risk of fire. The lawsuits seek compensation for economic losses related to the purchase of those Norcold Gas Absorption Refrigerators and Cooling units. The lawsuits do not allege class claims for personal injury, wrongful death or damage to property other than the allegedly defective Norcold Gas Absorption Refrigerators or Cooling Units themselves. Defendants deny any wrongdoing and have denied all allegations in the Complaint and asserted many defenses. The Court has not issued any orders deciding which side was right was on the merits. Instead, after considerable discovery and other motion practice, the parties decided to enter mediation before an experienced former judge and ultimately, to settle the class claims. Who is In the Class: Subject to certain limited exclusions, those persons included in the Settlement Class are persons who: Currently own, or formerly owned, a Norcold 1200 Series Gas Absorption Refrigerator or Cooling Unit that was manufactured between January 1, 2002, and October 1, 2012; OR, Currently own a Norcold N6 Series Gas Absorption Refrigerator or Cooling Unit, or N8 Series Gas Absorption Refrigerator or Cooling Unit that was manufactured between January 1, 2009, and December 31, 2013. Those persons who do not fall within the class definition, are not part of the Settlement Class and are not affected by the settlement. The settlement does not involve class claims for personal injury, wrongful death or damage to property other than to the Norcold refrigerator they own, owned, or may own in the future. Such claims are considered Reserved Claims and are not subject to the release of claims. Settlement Benefits: The settlement creates a $36 million Monetary Fund to resolve all eligible claims of class members and to fund all administrative costs and attorneys' fees that may ultimately be awarded by the Court. The Monetary Fund will be divided in the manner described in the settlement agreement's Allocation Plan, and be paid in four annual installments. Generally, to receive a payment, class members must timely submit a Claim Form by August 26, 2016. Class members who file claim forms will be allotted a certain number of shares in the Settlement's Monetary Fund based on factors attested to on their Claim Form such as model owned (1200, N8 or N6), whether they are a current or former owner, and whether any repair expenses were incurred, and if so, in what amount. The Allocation Plan is described more fully in the detailed Notice and Claim Form available at www.norcoldclassaction.com. In addition, Defendants will provide, at Defendants' sole expense, a three-year extended warranty to class members who own N6 and N8 Series gas absorption refrigerators manufactured between January 1, 2009 and December 31, 2013, for a cooling unit that fails due to a leak. While Class counsel can petition to receive up to 25% of the Monetary Fund as attorneys' fees and to reimburse costs incurred, the final amount awarded will ultimately be determined by the Court. Fee petitions will be filed by Class Counsel by August 11, 2016. Important Deadlines: It is important to note certain deadlines associated with the settlement approval process. a. Claims Deadline: To receive a share of the Monetary Fund class members must submit a Claim Form by August 26, 2016. A separate claim can be made for each Norcold 1200, N8 or N6 refrigerator owned during the applicable time period. If class members do nothing they will remain in the Class, be subject to the release, will not be able to sue Defendants about the issues raised in the lawsuit, but may not receive the benefits for which they may be eligible. b. Opt-Out Deadline: If class members do not want to be part of the settlement, they must exclude themselves (or "opt-out") by August 26, 2016. If class members opt-out, they will not be eligible to share in the settlement benefits and receive any payment, but they will retain the right to sue Defendants on the class claims asserted. Defendants, in turn, will retain all defenses to those claims that they have. If class members do not timely exclude themselves from the Settlement Class, they will be bound by the settlement and be subject to the release. c. Objection Deadline: Class members can object to all or part of the settlement by August 26, 2016, if they don't exclude themselves. Enter Appearance: If class members prefer, they may enter an appearance through the legal counsel of their choice, at their own expense. Otherwise, they will be represented by court-appointed Class Counsel, Zimmerman Reed LLP. Additional Information: A detailed Notice and Claim Form explaining the foregoing in greater detail is available online at www.norcoldclassaction.com The detailed Notice describes the settlement, how class members may exclude themselves, submit a Claim Form and/or object to the proposed settlement in greater detail. The settlement website also contains copies of other pertinent documents such as copies of the operative complaints, Defendants' answer and the full settlement agreement. We encourage class members to read and review these materials. Interested persons may also call 1-877-449-8550 for further information or to request copies of the detailed Notice or Claim Form. OHIO GAMING: "Betts" Plaintiffs Ask Court to Certify FLSA Class --------------------------------------------------------------- The Plaintiffs in the lawsuit styled Betts, et al. for herself and others similarly situated v. Central Ohio Gaming Ventures, LLC, Case No. 2:16-cv-373 (S.D. Ohio), pursuant to Section 16(b) of the Fair Labor Standards Act, ask for entry of an order: (1) conditionally certifying the proposed collective FLSA class as defined herein; (2) implementing a procedure whereby Court-approved Notice of Plaintiffs' FLSA claims is sent (via U.S. Mail and e-mail) to: All current and former employees of Defendant who during the previous three years worked over forty hours in any workweek but were not properly compensated for all of their overtime hours worked under the FLSA because of Defendant's automatic meal deduction policy, in the following departments: (1) back of the house food service, including cooks and stewards; (2) valet, including cashiers and valets; and (3) table games department; and (3) requiring Defendant to, within 14 days of this Court's order, identify all potential opt-in plaintiffs by providing a list in electronic and importable format, of the names, addresses, and e-mail addresses of all potential opt-in plaintiffs who worked for the Defendant at any time from approximately April 26, 2013, through the present. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=owB6cqJg The Plaintiffs are represented by: Matthew J.P. Coffman, Esq. COFFMAN LEGAL, LLC 1457 S. High St. Columbus, OH 43207 Telephone: (614) 949-1181 Facsimile: (614) 386-9964 E-mail: mcoffman@mcoffmanlegal.com - and - Gregory R. Mansell, Esq. MANSELL LAW LLC 1457 S. High St. Columbus, OH 43207 Telephone: (614) 610-4134 Facsimile: (513) 826-9311 E-mail: greg.mansell@ohio-employmentlawyer.com OSF HEALTHCARE: Sued Over Underfunded Benefit Pension Plans ----------------------------------------------------------- Sheilar Smith, on behalf of herself, individually, and on behalf of all others similarly situated, and on behalf of the OSF Plans, v. OSF Healthcare System, John and Jane Does 1-20, Members Of The Osf Human Resources Committee, each an individual, and John and Jane Does 21-40, each an individual, Case No. 3:16-cv-00467 (S.D. Ill., April 27, 2016), is an action for damages as a proximate result of the Defendants' practice of underfunding its benefit pension plans. The OSF Healthcare System operates a hospital corporation that primarily provides healthcare services in Illinois, with certain operations in Michigan. The Plaintiff is represented by: Laura R. Gerber, Esq. Lynn Lincoln Sarko, Esq. Havila Unrein, Esq. KELLER ROHRBACK L.L.P. 1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052 Telephone: (206) 623-1900 Facsimile: (206) 623-3384 E-mail: lgerber@kellerrohrback.com lsarko@kellerrohrback.com hunrein@kellerrohrback.com - and - Ron Kilgard, Esq. KELLER ROHRBACK L.L.P. 3101 North Central Avenue, Suite 1400 Phoenix, AZ 85012 Telephone: (602) 248-0088 Facsimile: (602) 248-2822 E-mail: rkilgard@kellerrohrback.com - and - Karen L. Handorf, Esq. Michelle Yau, Esq. Mary J. Bortscheller, Esq. COHEN MILSTEIN SELLERS & TOLL, PLLC 1100 New York Avenue, N.W. Suite 500, West Tower Washington, DC 20005 Telephone: (202) 408-4600 Facsimile: (202) 408-4699 E-mail: khandorf@cohenmilstein.com myau@cohenmilstein.com mbortscheller@cohenmilstein.com - and - Matthew H. Armstrong, ARDC, Esq. ARMSTRONG LAW FIRM LLC 8816 Manchester Road, No. 109 St. Louis, MO 63144 Telephone: (314) 258-0212 E-mail: matt@mattarmstronglaw.com PASILADES COLLECTION: Court Denies DQ Bid Against Plaintiff Atty ---------------------------------------------------------------- District Judge Jesse M. Furman of the United States District Court for the Southern District of New York denied Defendant's motion to disqualify Plaintiff's counsel, Mitchell Pashkin, Esq. in the case captioned, FRANCIS OLAJIDE, Plaintiff, v. PALISADES COLLECTION, LLC, et al., Defendants, Case No. 15-CV-7673 (JMF) (S.D.N.Y.). Between June 2011 and January 2014, Pashkin worked at the law firm Cohen & Slamowitz, LLP (C&S), first as the assistant managing attorney, and then, for the final ten months of his tenure, as the managing attorney. During Pashkin's employment at C&S, the firm was (and may still be) engaged by Palisades as one of its debt collection law firms. Pashkin left C&S on January 17, 2014. At some point later that year, he began representing plaintiffs in the sorts of actions against which he used to defend. Plaintiff Francis Olajide brings claims pursuant to the Fair Debt Collection Practices Act (FDCPA) against several Defendants, including Palisades Collection, LLC. In his Amended Complaint, Plaintiff alleges that, in 2006 and 2007, one of Palisade's debt-collection law firms, Wolpoff & Abramson (W&A), sued and obtained (on Palisade's behalf) a default judgment against him to recoup a debt of $502.15, excluding interest, that Plaintiff allegedly owed to AT&T. Plaintiff alleges that the process server who had supposedly served the summons and complaint, Luis Agostini, did not actually effect proper service; indeed, Plaintiff alleges that Agostini conducted so-called "sewer service" by fraudulently representing that he had served an unidentified co-tenant of Plaintiff's. As a result -- and because Plaintiff did not, in fact, even have an AT&T account -- Plaintiff did not learn of the action or judgment against him until roughly seven years later, after Palisades hired another firm, Houslanger & Associates (H&A), to enforce the judgment. After H&A was notified of the possible issues with service of the complaint, H&A agreed to vacate the default judgment and dismiss the action. Plaintiff claims that, based on the foregoing, W&A, H&A, Palisades, and Alta (Palisades's parent company) are liable for violations of the FDCPA. Plaintiff also seeks to pursue the action on behalf of a class. On December 18, 2015, Palisades moved to disqualify Pashkin from serving as Plaintiff's attorney in this case, based on his prior employment at C&S. In the Opinion and Order dated April 12, 2016 available at http://is.gd/Q6m7Nffrom Leagle.com, Judge Furman found that the arguments presented by the Defendant is not a basis for his disqualification, as he represents only Plaintiff and owes no duties of loyalty to putative class members. Francis Olajide is represented by: Mitchell L. Pashkin, Esq. MITCHELL L. PASKIN, ATTORNEY AT LAW 25 Harriet Ln Huntington, NY 11743 Tel: (631)351-1047 Palisades Collection, LLC is represented by Jonathan Justin Greystone, Esq. -- jgreystone@lawsgr.com -- SPECTOR GADON & ROSEN, P.C. PARKMERCED INVESTORS: Faces "Stewart" Suit In California -------------------------------------------------------- A class action lawsuit has been commenced against Parkmerced Investors Properties, LLC D/B/A Parkmerced and Does 1 to 100, Inclusive. The case is captioned Danilo Stewart, individually and on behalf of all others similarly situated v. Parkmerced Investors Properties, LLC D/B/A Parkmerced and Does 1 to 100, Inclusive, Case No. CGC 16 551696 (Cal. Super. Ct.). Parkmerced Investors Properties, LLC engages in the development of real estate properties. PEARLS AGROTECH: Piper Alder Mulls Class Action Over Ponzi Scheme ----------------------------------------------------------------- Moneylife reports that the action holds out hope for PACL victims. But will the Supreme Court appointed committee act quickly. An Australian law firm, Piper Alderman, has offered to file a civil action suit to recover over AU$170 million transferred overseas by Nirmal Bhangoo, the alleged mastermind of the mammoth Rs49,100 crore ponzi scheme that has duped over 50 million Indians over a 25-year period. These investors were sold fractions of land in projects being developed by two Pearls group companies-- Pearls Agrotech Corporation Ltd (PACL) and Pearls Golden Forest Ltd (PGFL). An extensive investigation in Australia by investigator Niall Coburn and the local media there has uncovered transfer of at least AU$170 million to companies in Australia, Hong Kong and Singapore that are directly or indirectly controlled by Nirmal Bhangoo, founder and brain behind the Pearls group. Many Indian investors, angry with the slow investigation and unexplained delay in freezing and recovering their money, have formed two associations representing over 60,000 people duped by Pearls and are attempting civil action in Australia to get back their money. They are PACL Employees and Customers Protection Forum and the Janlok Prathishtan Sanghata Committee (India). The associations hired Temple Law and Nayak Associates to handle their case. These lawyers, in turn, approached Niall Coburn and Piper Alderman to pursue the class action in Australia to recover their funds. On February 2, 2016, based on an order of the Supreme Court of India (SC), the Securities & Exchange Board of India (SEBI) had constituted a committee headed by Justice RM Lodha to oversee the liquidation and sale of Pearls group's assets and refund of money to investors at the earliest, preferably within six months from the date of the order. Hence, Piper Alderman, the law firm, has written to Justice Lodha and the SEBI chairman, offering to file cross-border proceedings in Australia to bring overseas assets under control, liquidate them and get back investors' money. The law firm's letter says that Niall Coburn, who has been investigating PACL assets in Australia for two months, has traced assets of around $170 million and there may be "more assets held in complex structures." It provides an extensive list of assets that have been traced in Australia through their investigation, explains the connection with Mr. Bhangoo's family and even provides a chart of the group and its linkages. These include AU$100 million in properties such as Sheraton Mirage Resort (Sheraton) on the Gold Coast through a company called Pearls Australasia Mirage 1 Pty Ltd incorporated in October 2009, Pearls Infrastructure Projects Limited and several homes and properties that are connected through Nirmal Bhangoo's children. Worryingly, Piper Alderman says that these foreign assets are not under receivership in India and can be dissipated during the slow investigation. In fact, the Sheraton is already listed for sale. Shockingly, it says that the Indian government has not even filed applications to "preserve the investor funds in other jurisdictions, such as Australia, Singapore and Hong Kong." An international class action of this type, with approval from the regulator, has never been attempted before. Even if the Australian legal process is swift and enables recovery of assets, the government will have to evolve a mechanism to distribute the money among an estimated 50 million investors. The task is humungous and SEBI is still in the process of collating investor data with proof of investment. It is, however, unclear why the government is not invoking the draconian provisions of the Prevention of Money Laundering Act or acting swiftly to preserve the overseas assets of Nirmal Bhangoo's family. Meanwhile, the Pearls group, which has been adept at gaming the legal system for over 20 years, has already enlisted a phalanx of expensive and influential lawyers to continue its fight. There are also dark rumours about powerful people trying to derail action against the group. It is also curious that the PACL scam has evoked little interest in the Indian media, despite the massive sum involved; it is the Australian press that unearthed the massive transfer of funds and assets owned abroad. Will the Lodha committee really succeed in getting investors even a part of their investment back? Or will this be another lackadaisical pursuit that yields no result? PEGGYBANK.COM: "Miller" Class Suit Removed to N.D. Ohio ------------------------------------------------------- The class action lawsuit captioned James Miller, individually and on behalf of all others similarly situated v. Peggybank.com LLC, James Simon, Scandigital Inc., Memory Ventures, Anderson Schoenrock, and Groupon, Inc., Case No. 16CV189101 was removed from Lorain County Court of Common Pleas to the U.S. District Court Northern District of Ohio (Cleveland). The District Court Clerk assigned Case No. 1:16-cv-01011-DAP to the proceeding. The Plaintiff asserts a Racketeering (RICO) Act violation. Peggybank.com. LLC and Scandigital Inc. develop a platform that enables users to digitize and upload old printed photos, slides, and VCR tapes to the cloud. Groupon, Inc. operates a global e-commerce marketplace offering activities, travel, goods and services. The Plaintiff is represented by: Dennis E. Murray Sr., Esq. Donna Jean A. Evans, Esq. MURRAY & MURRAY 111 East Shoreline Drive Sandusky, OH 44870 Telephone: (419) 624-3000 Facsimile: (419) 624-0707 E-mail: dms@murrayandmurray.com dae@murrayandmurray.com The Defendant is represented by: Joseph C. Weinstein, Esq. Roger M. Gold, Esq. SQUIRE PATTON BOGGS 4900 Key Tower 127 Public Square Cleveland, OH 44114 Telephone: (216) 479-8500 Facsimile: (216) 479-8780 E-mail: joe.weinstein@squirepb.com roger.gold@squirepb.com PENNSYLVANIA: SEPTA Faces Class Action Over Background Checks ------------------------------------------------------------- P.J. D'Annunzio, writing for The Legal Intelligencer, reports that a man claiming his offer of employment as a bus driver with the Southeastern Pennsylvania Transportation Authority was revoked because of his criminal history has filed a class action lawsuit against SEPTA in federal court. Frank Long alleged in his lawsuit that SEPTA routinely violates the Fair Credit Reporting Act and the Pennsylvania Criminal History Record Information Act by failing to give "clear and conspicuous" written notice to job applicants that it conducts background checks and disqualifies candidates based on "unrelated felony convictions." The suit was filed on behalf of Mr. Long by a consortium of groups, including the Public Interest Law Center, Philadelphia Lawyers for Social Equity, the Lawyers' Committee for Civil Rights Under Law and law firms Willig, Williams & Davidson in Philadelphia and Outten & Golden in New York. Mr. Long, who was employed as a school bus driver at the time he applied for the SEPTA job in 2014, was verbally offered the position by a SEPTA recruiter, contingent upon a background check. That offer was rescinded after Long disclosed that he had a criminal record, specifically, convictions in 1997 for possession and manufacture of a controlled substance stemming from a 1994 arrest, according to Mr. Long's complaint. Mr. Long had to complete a form authorizing SEPTA to perform a background check, however, Mr. Long argued that the form was "unclear and inconspicuous" and was not solely a disclosure that consumer information about him could be gathered. The complaint also said, "Mr. Long's criminal history was not relevant to the bus operator position for which he applied for reasons including the nature of the crime, the age of the conviction, and the years Mr. Long has been in the general population without any further conviction." The prospective class will cover all applicants who have sought jobs with SEPTA and have had consumer reports about them reviewed by SEPTA without a clear and conspicuous disclosure in writing before the agency sought the report. The criminal background aspect of the class definition includes individuals who were denied employment with SEPTA for vehicle operator positions on the basis of drug convictions more than seven years old. Both classes cover applicants who have been denied employment within two years of the filing of the complaint through the date of final judgment. Mr. Long's complaint said that joining all of those potential class members in the litigation would be impractical given the sheer size, though a precise number is not known. Therefore, commonality would be established by considering whether the plaintiff meets the criteria of the classes, along with whether SEPTA was in willful noncompliance with FCRA and CHRIA. Additionally, "Mr. Long will fairly and adequately represent and protect the interests of the class members because his interests coincide with, and are not antagonistic to, the interests of the class members he seeks to represent," the complaint said. Ryan A. Hancock, of counsel and chair of the employment law department of Willig Williams, is one of the attorneys representing Long. "What we're looking to accomplish is for SEPTA to come into the compliance with the Criminal History Record Information Act," he said. PFIZER INC: 2nd Circuit Revives shareholder Class Action -------------------------------------------------------- Jessica Karmasek, writing for Legal Newsline, reports that the U.S. Court of Appeals for the Second Circuit has resurrected a class action lawsuit filed by Pfizer Inc. shareholders who allege the drug maker misled them about certain pain-relieving drugs and, in turn, cost them billions. In its April 12 decision, the federal appeals court vacated the judgment of the U.S. District Court for the Southern District of New York. The three-judge panel concluded the district court's rationales for excluding the plaintiffs' expert on loss causation and damages -- Daniel Fischel, a former University of Chicago Law School dean -- were "inadequate to justify excluding it in its entirety." The Second Circuit, in its 63-page opinion, also concluded that the district court erred in its earlier summary judgment ruling that no reasonable jury could find Pfizer liable for certain statements made by companies that owned the drugs before Pfizer, including G.D. Searle & Co. and Pharmacia Corp. "Plaintiffs' evidence of Pfizer's authority over the eight statements by Searle and Pharmacia employees to various newspaper and journal articles fares slightly better, however," the panel wrote. "In broad terms, the eight statements all conveyed that there were no increased cardiovascular risks associated with Celebrex. "To be clear, there is no dispute that Searle and Pharmacia employees, not Pfizer employees, actually delivered the statements to the press. Nor is there any evidence that these employees held themselves out as representing Pfizer. And 'in the ordinary case,' the fact that the statements were attributed to Searle or Pharmacia employees 'is . . . strong evidence that [the] statement[s] w[ere] made by -- and only by -- the party to whom [they were] attributed.'" The panel continued, "Nevertheless, we find that there is a material question of fact whether the present case deviates from the ordinary case. Notwithstanding that the eight statements to the press were attributed to Searle and Pharmacia employees, Plaintiffs have presented sufficient evidence to permit a reasonable jury to conclude that Pfizer had 'ultimate authority' over the statements' 'content and whether and how to communicate' them." The shareholders, who filed their lawsuit in 2004, allege Pfizer concealed the risks associated with Celebrex and Bextra. Both are considered nonsteroidal anti-inflammatory drugs, used to treat chronic pain and inflammation. The class, which includes investors who bought Pfizer stock between Oct. 31, 2000 and Oct. 19, 2005, alleges that when the market eventually learned of the risks associated with the two drugs, the value of Pfizer's shares fell by about $70 billion. Bextra was available by prescription up until 2005, when the Food and Drug Administration requested Pfizer withdraw the drug from the U.S. market. The FDA cited "potential increased risk for serious cardiovascular (CV) adverse events" and an "increased risk of serious skin reactions," among other things. The drug maker agreed to suspend sales and marketing of Bextra, but said it disagreed with the FDA's view of the drug's risks and benefits. In September 2009, Pfizer also agreed to pay $2.3 billion to resolve an investigation by the U.S. Department of Justice into the illegal promotion of certain pharmaceuticals, including Bextra. The FDA allowed Celebrex, closely related to Bextra, to remain on the market; however, it now includes strict warnings about the risk of heart attacks and strokes. The shareholders' lawsuit, as result of the Second Circuit's decision, now returns to the Southern District of New York. Pfizer said in a statement it has "appropriately communicated accurate and science-based information about its medicines to investors and the public at all times." It said it plans to defend the case "vigorously." PORSCHE CARS: W.Va. High Court Affirms "Harrison" Case Dismissal ---------------------------------------------------------------- Chief Justice Menis E. Ketchum of the West Virginia Supreme Court affirmed the circuit court's order dismissing amended complaint in the case captioned, Arnold Harrison, Plaintiff Below, Petitioner, v. Porsche Cars North America, Inc., Defendant Below, Respondent, Case No. 15-0381 (W. Va.). On May 15, 2003, petitioner Arnold Harrison, a resident of Kanawha County, West Virginia, purchased a 2003 Porsche Carrera 4S Coupe from an approved Porsche dealer in Texas. He alleges that, on September 8, 2013, while he was operating the vehicle in a reasonably foreseeable manner, the vehicle suffered engine failure resulting in a complete loss of power. Petitioner filed his original complaint in the Circuit Court of Kanawha County on June 26, 2014, in which he alleged breach of express warranty; deceptive trade practices under West Virginia and Texas consumer protection laws; and breach of implied warranty of merchantability. Porsche filed a motion to dismiss petitioner's complaint under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, or, in the alternative, a motion for summary judgment. A hearing on the motion was conducted on October 16, 2014. By order entered November 3, 2014, the parties agreed that petitioner would voluntarily dismiss, with prejudice, his breach of express warranty claim. Thereafter, on November 20, 2014, the circuit court entered an order that granted petitioner's motion to amend his complaint and also ordered that Porsche's previously filed motion to dismiss be held in abeyance. On December 10, 2014, petitioner filed an amended complaint in which he alleged deceptive trade practices under West Virginia and Texas consumer protection laws, breach of implied warranty of merchantability, and property damage due to product defect (i.e., strict liability). Porsche filed a second motion to dismiss, which was granted by order entered April 1, 2015. On appeal, Petitioner, by counsel John H. Skaggs, argues that the circuit court erred in holding that his claim for breach of implied warranty of merchantability was time barred even though it was filed less than two years after discovery of the defect and that the case falls within the exception provided for in West Virginia Code Sec. 46-2-725(2). In his Opinion dated April 12, 2016, available at http://is.gd/Z1eS5cfrom Leagle.com, Judge Ketchum found that no substantial question of law and no prejudicial error and the memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure. PORTFOLIO RECOVERY: Settles TCPA Class Action for $18 Million ------------------------------------------------------------- Tim Bauer, writing for insideARM, reports that Portfolio Recovery Associates LLC (PRAA) will pay $18 million to resolve multidistrict litigation accusing the debt collection company of violating the Telephone Consumer Protection Act (TCPA) by making autodialed phone calls to consumers without their consent, according to documents filed on April 25 in California federal court. In this instance the MDL originally involves four (4) separate actions. The various actions that were consolidated in the MDL all involved allegations that PRAA violated the TCPA by placing debt collection calls to consumers' cellular phones using an Automated Telephone Dialing System (ATDS). The Plaintiffs in the case (In re Portfolio Recovery Associates, LLC, Telephone Consumer Protection Act Litigation, Case No. 3:11- md-02295, United States District Court, Southern District of California) filed an Unopposed Motion for Preliminary Approval of Class Action Settlement and Class Certification that lays out the terms of the proposed settlement. A hearing to approve the proposed settlement is set for June 6, 2016. The Defendants in the case are the aforementioned PRAA and PRA Group, Inc. The Proposed Settlement The proposed settlement consists of the following: Defendants will pay $18,000,000. Settlement Class members will receive a pro rata share of the balance of that amount after payment of notice and administration costs not to exceed $3,325,000, attorney's fees not to exceed $5.4 million, litigation costs, and incentive awards for each of the named Plaintiffs not to exceed $6,250 each. The injunctive relief affirmed in Meyer v. Portfolio Recovery Associates, LLC, 707 F.3d 1036 (9th Cir. 2012) will be continued and expanded. In sum, the injunction will prohibit PRA from using its Avaya Proactive Contact Dialer to place calls to any person's cellular telephone numbers without prior express consent. The Agreement defines the Class as follows: All natural persons residing in the United States who received one or more telephone calls from an autodialer or a predictive dialer operated by Defendants to such person's cellular telephone number between December 23, 2006 and July 1, 2013, inclusive, and who are listed in the csv data file titled pra_outbound_dial_list_20140304.zip produced to Plaintiffs' counsel. (The data file identifies approximately 7.4 million Class Members as meeting the definition above.) A consent decree entered into with this settlement provides an injunction that prohibits PRA from using its Avaya Proactive Contact Dialer to place calls to any person's cellular telephone numbers without prior express consent. Class Members will receive an opportunity to opt-out of the Class. Those that do not ("Settlement Class Members") are eligible to claim and receive a pro rata share of the remaining common fund; the recovery for each Settlement Class Member who submits a valid claim will depend on the total number of valid claims. There is no minimum or maximum amount that any Settlement Class Member is entitled to receive. Any remaining funds will go to the designated Cy Pres Recipient. The Parties propose any cy pres relief be paid to the National Association of Consumer Advocates, in particular for its work with the Federal Communications Commission to ensure that consumers' rights are maintained under the TCPA. No funds shall revert to Defendants. PROCTER & GAMBLE: Faces "Johnson" Suit Over Deodorant Products -------------------------------------------------------------- Gregory Johnson, on behalf of himself and all other similarly situated individuals v. The Procter & Gamble Co., Case No. 3:16- cv-02302-SK (N.D. Cal., April 27, 2016), arises out of the Defendant's defective Old Spice deodorant products, which contain a mix of chemicals that, when applied to the skin, produce a significant risk of injury, such as rashes, redness, blisters, aches, and burns. The Procter & Gamble Co. operates a consumer goods company with its headquarters and principal place of business in Cincinnati, Ohio. The Plaintiff is represented by: Daniel C. Girard, Esq. Jordan Elias, Esq. Linh G. Vuong, Esq. GIRARD GIBBS LLP 601 California Street, 14th Floor San Francisco, CA 94108 Telephone: (415) 981-4800 Facsimile: (415) 981-4846 E-mail: dcg@girardgibbs.com je@girardgibbs.com lgv@girardgibbs.com QVC INC: "Robinson" Class Suit Removed to S. Dist. Florida ---------------------------------------------------------- The class action lawsuit styled Waverly Robinson, individually and on behalf of all others similarly situated v. QVC, Inc. and Wen by Chaz Dean, Inc., Case No. CACE-16-005367, was removed from the 17th Judicial Circuit in and for Broward County, Florida to U.S. District Court Southern District of Florida (Ft Lauderdale). The District Court Clerk assigned Case No. 0:16-cv-60932-CMA to the proceeding. QVC, Inc. operates a cable, satellite and broadcast television network, and multinational corporation specializing in televised home shopping. Wen by Chaz Dean, Inc. is a manufacturer of natural hair care products. The Plaintiff is represented by: Joshua Harris Eggnatz, Esq. Michael James Pascucci, Esq. EGGNATZ, LOPATIN & PASCUCCI, LLP 5400 S. University Drive, Suite 413 Davie, FL 33328 Telephone: (954) 889-3359 Facsimile: (954) 889-5913 E-mail: JEggnatz@ELPLawyers.com mpascucci@ELPLawyers.com The Defendant QVC, Inc.is represented by: Brian Michael Ercole, Esq. Robert Mark Brochin, Esq. MORGAN LEWIS, BOCKIUS 200 South Biscayne Blvd, Suite 5300 Miami, FL 33131 Telephone: (305) 415-3416 Facsimile: (325) 415-3001 E-mail: bercole@morganlewis.com rbrochin@morganlewis.com The Defendant Wen by Chaz Dean, Inc.is represented by: Susan Elizabeth Raffanello COFFEY BURLINGTON, P.L. 2601 S Bayshore Dr Penthouse 1 Miami, FL 33133 Telephone: (305) 858-2900 Facsimile: (305) 858-5261 E-mail: sraffanello@coffeyburlington.com RBS CITIZENS: Court Certifies Class of Mortgage Loan Officers ------------------------------------------------------------- The Hon. Arthur J. Schwab entered a memorandum order conditionally certifying the lawsuit titled ALEX REINIG, KEN GRITZ, and BOB SODA, Individually and on behalf of those similarly situated v. RBS CITIZENS, N.A., Case No. 2:15-cv-01541-AJS (W.D. Pa.), as a collective action pursuant to Section 216(b) of the Fair Labor Standards Act. On November 23, 2015, the Plaintiffs filed an individual, class, and collective action complaint, alleging that Citizens violated the Fair Labor Standards Act, the Pennsylvania Minimum Wage Act, and the Pennsylvania Wage Payment and Collection Law. The Plaintiffs are current or former mortgage loan officers at Citizens. The Court directed the Parties to file a joint proposed notice to the potential opt-in collective action members and a plan to provide said notice by May 16, 2016, and to include Citizens' mortgage loan officers who, during at least one work week since November 23, 2012, worked more than 40 hours and earned commissions, non-discretionary bonuses, or other premiums. A status conference will be held on May 10, 2016, at 9:00 a.m. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=q76rAUJb REPUBLIC OF TEA: Recalls Organic Turmeric Ginger Green Tea ---------------------------------------------------------- The Republic of Tea is dedicated to the health and wellness of each and every citizen (customer). As such, we are issuing a voluntary recall of our Organic Turmeric Ginger Green Tea in response to a possible health risk. There have been no illnesses reported in connection with this voluntary recall. No other teas are impacted by this recall. The Republic of Tea was notified by one of our suppliers, of the possibility that one lot of its organic ginger ingredient may be contaminated with Salmonella bacteria. Salmonella is an organism, which can cause serious and sometimes fatal infections in young children, frail or elderly people, and others with weakened immune systems. Healthy persons infected with Salmonella often experience fever, diarrhea, nausea, vomiting and abdominal pain. The organic ginger supplier reported this finding from another customer. The Republic of Tea and the organic ginger supplier have conducted their own investigations and have tested numerous samples of organic ginger by accredited independent third party laboratories and confirmed the absence of Salmonella. Despite the fact it was confirmed that there is no Salmonella in the organic ginger that was tested, The Republic of Tea is taking the precautionary measure to recall the following Organic Turmeric Ginger Green Tea: Organic Turmeric Ginger Green Tea - 50 CT Tin UPC: 7-42676-40355-5 - Best Sipped by March 23, 2018 Organic Turmeric Ginger - 250 CT Bulk Bag UPC: 7-42676-30655-9 - Best Sipped by March 23, 2018 Organic Turmeric Ginger - 250 CT Bulk Bag UPC: 7-42676-30655-9 - Best Sipped by April 13, 2018 Organic Turmeric Ginger - 50 CT Refill Bag UPC: 7-42676-42155-9 - Best Sipped by March 23, 2018 Citizens may return Organic Turmeric Ginger Green Tea to The Republic of Tea for a replacement tea, or for a full refund. "There is absolutely no evidence that our tea has been contaminated. We are taking this preventive, cautious measure because we want our citizens to feel comfortable when drinking our premium quality teas and herbs," said Todd B. Rubin, Minister of Evolution at The Republic of Tea. "The health and safety of our citizens is our number one priority and we will not take potential health risks lightly. This voluntary recall is the first in our nearly quarter-century history." For questions and concerns teasafety@republicoftea.com or call 1- 800-298-4832, Monday-Friday between the hours of 8:00am-5:00pm CST. The Republic of Tea enriches people's lives through its premium teas, education and innovation, as it emphasizes a "Sip by Sip Rather Than Gulp by Gulp" lifestyle. Founded in 1992, The Republic of Tea sparked a specialty tea revolution. Today the brand offers an unequaled selection of the highest-quality teas, herbal blends, books and nature-inspired sip ware, available exclusively at specialty retailers throughout the U.S. Further, The Republic of Tea is mindful of how its actions impact the greater community and actively supports worthy organizations like Action Against Hunger, The Ethical Tea Partnership, The Prostate Cancer Foundation, Xerces Society and The Whole Planet Foundation. Certifications include Demeter USA Certified Biodynamic, Fair Trade certification, Gluten-Free certification, Non-GMO Project verification, OU Kosher certification, Rainforest Alliance certification and USDA Organic certification. For more information, please visit www.REPUBLICofTEA.comdisclaimer icon or call 1-800-298-4832. Follow The Republic of Tea on Twitter at twitter.com/republicofteadisclaimer icon and Like us on Facebook at www.facebook.com/RepublicofTea RUBI ROSE: Faces "Neuss" Class Suit in New Jersey Court ------------------------------------------------------- A class action lawsuit has been commenced against Rubi Rose, L.L.C. d/b/a Dapple Baby, John/Jane Does 1-100, and ABC Corporations 1-100. The case is captioned Kim Neuss and Antonio Neuss, individually, and on behalf of all others similarly situated v. Rubi Rose, L.L.C. d/b/a Dapple Baby, John/Jane Does 1-100, and ABC Corporations 1-100, Case No. 3:16-cv-02339-MAS-LHG (D.N.J. April 27, 2016). Rubi Rose, L.L.C. is a manufacturer of cleansers for cleaning baby bottles, baby bottle nipples, baby pacifiers, baby nursers, and cups adopted for feeding babies The Plaintiff is represented by: Barry R. Eichen, Esq, EICHEN CRUTCHLOW ZASLOW & MCELROY, LLP 40 Ethel Road Edison, NJ 08817 Telephone: (732) 777-0100 E-mail: beichen@njadvocates.com SCHNUCK MARKETS: Court Drops Non-Settling Plaintiffs from Suit -------------------------------------------------------------- District Judge Michael J. Reagan of the United States District Court for the Southern District of Illinois granted Defendant's motion to dismiss as to the non-settling plaintiffs in the case captioned, CLYDE ALLEN, et al., Plaintiffs, v. SCHNUCK MARKETS, INC., Defendant, Case No. 15-cv-0061-MJR-DGW (S.D. Ill.). On December 9, 2014, Clyde Allen and 204 other plaintiffs filed a civil mass action complaint against Schnuck Markets, Inc., in the Circuit Court for the Twentieth Judicial Circuit, St. Clair County, Illinois. Allen and his co-plaintiffs alleged that criminals hacked into Schnucks' electronic payment systems and stole information about them, including credit and debit card information, and that Schnucks didn't adequately protect that information. On October 5, 2015, the parties advised the Court that settlement was imminent as to some of the named plaintiffs. Around two weeks later, 199 of the 205 plaintiffs stipulated to dismissal of their claims with prejudice. That left six plaintiffs remaining: Belinda Wilson, Carole Bellman, Dan Deters, Lydia Douglas, Ezell James, and Verne Vollrath. Counsel had already moved to withdraw as to Wilson and moved to withdraw as to Bellman, Deters, Douglas, James, and Vollrath on the day that the stipulation was entered. Magistrate Judge Wilkerson granted those motions to withdraw and further advised each of the non-settling plaintiffs that he or she needed to appear via new counsel or inform the Court of his or her intention to proceed pro se in writing by a specified date -- for Wilson by September 18, 2015, and for the rest by November 20, 2015. Schnucks moved to dismiss as to the non-settling plaintiffs, claiming that each failed to prosecute his or her case and comply with the Court's directives. In his Memorandum and Order dated April 12, 2016 available at http://is.gd/9Ap0gOfrom Leagle.com, Judge Reagan found that the non-settling defendants have failed to abide by the Court's orders and move forward with the case and dismissed the claims of Wilson, Bellman, Deters, Douglas, James, and Vollrath with prejudice. Schnuck Markets, Inc. is represented by Russell K. Scott, Esq. -- rks@greensfelder.com -- GREENSFELDER, HEMKER & GALE PC, Casie D. Collignon, Esq. -- ccollignon@bakerlaw.com -- and Paul Karlsgodt, Esq. -- pkarlsgodt@bakerlaw.com -- BAKER & HOSTETLER, LLP SMALLS ELECTRICAL: Sued Over Failure to Pay Project Balance Due --------------------------------------------------------------- Bruce Supply Corp., on behalf of itself and all other persons similarly situated as trust fund beneficiaries of Lien Law trusts of which smalls Electrical construction, Inc., is a trustee v. Smalls Electrical Construction, Inc. and Jeffrey J. Smalls, Case No. 506796/2016 (N.Y. Super. Ct., April 28, 2016), is brought against the Defendants for failure to pay balance due and owing of $302,461.12 for the improvement project known as Port Authority Bus Terminal, Replacement of Fire Pump. The Defendants are engaged in the contracting business, furnishing labor and materials in connection with public contracts involving the improvement of real property in the state of New York. The Plaintiff is represented by: Marshall M. Stern, Esq. MARSH M. STERN, P.C. 17 Cardiff Court Huntington Station, NY 11746 Telephone: (631) 427-0101 SOUTHWEST CREDIT: Zachariah Pinkney Seeks Class Certification ------------------------------------------------------------- The Plaintiff in the lawsuit entitled ZACHARIAH PINKNEY, Individually and on Behalf of All Others Similarly Situated v. SOUTHWEST CREDIT SYSTEMS, LP, Case No. 16-cv-532 (E.D. Wisc.), moves the Court to certify the proposed class in this case, and appoint the Plaintiff as its representative, and Ademi & O'Reilly, LLP as its Counsel; and further requests that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). As this motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiff asserts. A copy of the xxx is available at no charge at http://d.classactionreporternewsletter.com/u?f=tfSLXA7L The Plaintiff is represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com SOUTHWESTERN ENERGY: Faces "Hicks" Suit Over Royalty Underpayment ----------------------------------------------------------------- Charles Hicks, on behalf of himself and all others similarly situated v. Southwestern Energy Company, SWN Production (Arkansas), LLC, Southwestern Energy Services Company, and Desoto Gathering Company, LLC, Case No. 4:16-cv-00226-SWW (E.D. Ark., April 27, 2016), arises out of the Defendants' underpayment of royalties on natural gas from wells in the geological formation referred to as the Fayetteville Shale Play in Arkansas through improper accounting methods such as starting with a price that is too low and taking deductions for marketing, gathering, compression and dehydration which are collectively referred to as "post-production expenses" ("PPE's") and by failing to account for and pay royalties. The Defendants own and operate an oil and natural gas company based in Houston, Texas. The Plaintiff is represented by: Keith L. Grayson, Esq. GRAYSON & GRAYSON, P.A. 209 East Main Street Heber Springs, AR 72543 Telephone: (501) 206-0905 E-mail: graysonandgrayson@att.net STAACK & SIMMS: Illegally Collects Debt, "Forte" Suit Claims ------------------------------------------------------------ Peter Forte and Mary Ann Forte, individually and on behalf of others similarly situated v. Staack & Simms, P.A. d/b/a Timeshare Trustee, Timeshare Trustee, LLC, and The Resort on Cocoa Beach Association, Inc., Case No. 8:16-cv-01027-VMC-AEP (M.D. Fla. April 28, 2016), seeks to stop the Defendant's unfair and unconscionable means to collect a debt. Staack & Simms, P.A. operates a law firm located at 900 Drew St # 1, Clearwater, FL 33755. The Resort on Cocoa Beach Association, Inc. own and operate a beachfront resort in Cocoa Beach, Florida. The Plaintiff is represented by: Nicolas Ben Harvey, Esq. OSSI, WITHERS & HARRISON, PA 4731 NW 53rd Ave Ste 1 Gainsville, FL 32653-4899 Telephone: (352) 692-4888 Facsimile: (352) 692-4998 E-mail: nick@owhlaw.com - and - Zachary West, Esq. BERMAN & BERMAN, PA Suite D, 805 NW 13th St Gainesville, FL 32601 Telephone: (352) 514-3791 Facsimile: (561) 826-5201 E-mail: zwest@thebermanlawgroup.com STARBUCKS CORPORATION: Faces "Pincus" Suit in N. Dist. Illinois --------------------------------------------------------------- A class action lawsuit has been commenced against Starbucks Corporation. The case is captioned Stacy Pincus, individually and on behalf of all others similarly situated v. Starbucks Corporation, Case No. 1:16-cv-04705 (N.D. Ill., April 27, 2016). Stacy Pincus is a pro se plaintiff. SUNRUN INC: "Cohen" Files Securities Class Action in Calif. ----------------------------------------------------------- George Cohen, David Moss and Roxanne Xenakis, individually and on behalf of all others similarly situated, Plaintiffs, v. Sunrun Inc., Lynn Jurich, Robert Komn, Edward Fenster, Jameson Mcjunkin, Gerald Risk, Steve Vassallo, Richard Wong, Credit Suisse Securities (USA) LLC, Goldman, Sachs & Co., Morgan Stanley & Co. LLC, Merrill Lynch, Pierce, Fenner & Smith, Incorporated, RBC Capital Markets, LLC, Keybanc Capital Markets Inc., and Suntrust Robinson Humphrey, Inc., Defendants, Case No. CIV538304. (Cal. Super. Ct., April 21, 2016), seeks compensatory damages, rescissory claims, prejudgment and post-judgment interest, reasonable attorneys' fees, expect witness fees, and other costs and disbursements and such other and further relief for violations of Sec. 11, 12(a)(2) and 15 of the Securities Act. Defendants are accused of misstatements and omissions as signers of the Registration Statement and/or as an issuer, statutory seller, of the shares during their initial public offering. Defendant claims that the price of Sunrun common stock was artificially and materially inflated at the time of the offering. Sunrun engages in the design, development, installation sale, ownership, and maintenance of residential solar energy systems in the United States. The Company markets and sells its products through direct channels, partner channels, mass media, digital media, canvassing, referral, retail, and field marketing. Lynn Jurich, Robert Komn, Edward Fenster, Jameson Mcjunkin, Gerald Risk, Steve Vassallo and Richard Wong are members of the Board of Directors. Credit Suisse Securities (USA) LLC, Goldman, Sachs & Co., Morgan Stanley & Co. LLC, Merrill Lynch, Pierce, Fenner & Smith, Incorporated, RBC Capital Markets, LLC, Keybanc Capital Markets Inc., and Suntrust Robinson Humphrey, Inc. are underwriters for the said offering. The Plaintiff is represented by: John T. Jasnoch, Esq. SCOTT+SCOTT, ATTORNEYS AT LAW, LLP 707 Broadway, Suite 1000 San Diego, CA 92101 Telephone: (619) 233-4565 Facsimile: (619) 233-0508 Email: jjasnoch@scott-scott.com - and - Joseph V. Halloran, Esq. SCOTT+SCOTT, ATTORNEYS AT LAW, LLP The Chrysler Building 405 Lexington Avenue, 40th Floor New York, NY 10174 Telephone: 212- 223- 6444 Facsimile: 212- 223- 6334 Email: jhalloran@scott-scott.com SUNRUN INC: "Mancy" Sues over Artificially Inflated IPOs -------------------------------------------------------- Greg Mancy, individually and on behalf of all others similarly situated, Plaintiffs, v. Sunrun Inc., Lynn Jurich, Robert Komn, Edward Fenster, Jameson McJunkin, Gerald Risk, Steve Vassallo, Richard Wong, Credit Suisse Securities (USA) LLC, Goldman, Sachs & Co., Morgan Stanley & Co. LLC, Merrill Lynch, Pierce, Fenner & Smith, Incorporated, RBC Capital Markets, LLC, Keybanc Capital Markets Inc., and Suntrust Robinson Humphrey, Inc., Defendants, Case No. CIV538303. (Cal. Super. April 21, 2016), seeks compensatory damages, rescissory claims, prejudgment and post- judgment interest, reasonable attorneys' fees, expect witness fees, and other costs and disbursements and such other and further relief in Violations of Sec. 11, 12(a)(2) and 15 of the Securities Act. Defendants are accused of misstatements and omissions as signers of the Registration Statement and/or as an issuer, statutory seller, of the shares during its initial public offering. Defendant claims that the price of Sunrun common stock was artificially and materially inflated at the time of the offering. Sunrun engages in the design, development, installation sale, ownership, and maintenance of residential solar energy systems in the United States. The Company markets and sells its products through direct channels, partner channels, mass media, digital media, canvassing, referral, retail, and field marketing. Lynn Jurich, Robert Komn, Edward Fenster, Jameson Mcjunkin, Gerald Risk, Steve Vassallo and Richard Wong are member of the Board of Directors. Credit Suisse Securities (USA) LLC, Goldman, Sachs & Co., Morgan Stanley & Co. LLC, Merrill Lynch, Pierce, Fenner & Smith, Incorporated, RBC Capital Markets, LLC, Keybanc Capital Markets Inc., and Suntrust Robinson Humphrey, Inc. are underwriters for the said offering. The Plaintiff is represented by: Adam C. McCall, Esq. LEVI & KORSINSKY LLP 445 South Figueroa Street, 31st Floor Los Angeles, CA 90071 Tel: (213) 985-7290 Fax: (202) 333-2121 Email: amccall@zlk.com. - and - Shannon L. Hopkins, Esq. Sebastian Tornatore, Esq. LEVI & KORSINSKY LLP 733 Summer Street, Suite 304 Stamford, CT 06901 Tel: (203) 992-4523 Fax: (212) 363-7171 Email: shopkins@zlk.com SWANSON GROUP: Certification of Technicians Class Sought -------------------------------------------------------- The Plaintiff in the lawsuit styled MICHAEL DEEMS, on his own behalf and others similarly situated, et al. v. THE SWANSON GROUP, LLC, d/b/a ALLSTAR ANIMAL REMOVAL, a Florida limited liability company, Case No. 3:16-cv-188-J-MCR (M.D. Fla.), filed a renewed motion for an order: (1) granting conditional certification of the action as a collective action under the Fair Labor Standards Act; (2) expediting discovery production by the Defendants, within 15 days of the Court Order, of a complete list of each and every person, who is a current or former employee of the Defendant and Allstar Animal Removal, Inc. who was employed by the Defendants as an Animal Control Technician, or position with similar job description however titled, who were paid on a commission basis, at any time between June 23, 2009, and the present, including the last known home address, telephone number, and e-mail address of such persons; (3) requiring the Defendant to format and produce on an expedited basis a list of each such person listed alphabetically from "A" to "Z" and with each person's last known home address, telephone number, and e-mail address in a separate field corresponding with each name; and (4) permitting the Plaintiff's counsel to mail a Court- Approved Notice to all such persons about their rights to opt into this collective action by filing a Notice of Consent to Opt-In. The Plaintiff alleges that on numerous occasions, he, the opt-in Plaintiffs, and putative class members worked greater than 40 hours in a work week but were not paid the mandated minimum wage or the overtime compensation required by the FLSA. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=2tdh7KJD The Plaintiff is represented by: James E. Kallaher, Esq. LAW OFFICES OF BOHDAN NESWIACHENY 151 College Dr., Suite 1 Orange Park, FL 32065 Telephone: (904)276-6171 Facsimile: (904)276-1751 E-mail: jkallaher@bnlaw.com SYNCHRONY FINANCIAL: Has Made Unsolicited Calls, Suit Says ---------------------------------------------------------- Benjamin Ciotti, on behalf of himself and all others similarly situated v. Synchrony Financial and Does 1 through 20, inclusive, and each of them, Case No. 3:16-cv-01033-AJB-BLM (S.D. Cal., April 28, 2016), seeks to stop the Defendant's practice of placing unsolicited calls to telephones of consumers nationwide. Synchrony Financial operates a consumer financial services company headquartered in Stamford, Connecticut. The Plaintiff is represented by: John Peter Kristensen, Esq. KRISTENSEN LAW GROUP 12304 Santa Monica Boulevard, Suite 100 Los Angeles, CA 90025 Telephone: (310) 507-7924 Facsimile: (310) 507-7906 E-mail: john@kristensenlaw.com SYSTEMS4PT LLC: Byer Clinic Seeks Class Certification ----------------------------------------------------- The Plaintiff in the lawsuit styled BYER CLINIC OF CHIROPRACTIC, LTD., an Illinois corporation, individually and as the representative of a class of similarly-situated persons v. SYSTEMS4PT, LLC and JOHN DOES 1-10, Case No. 1:16-cv-04886 (N.D. Ill.), asks the Court to certify this class: All persons who (1) on or after four years prior to the filing of this action, (2) were sent telephone facsimile messages of material advertising the commercial availability or quality of any property, goods, or services by or on behalf of Defendants, and (3) from which Defendants did not have prior express permission or invitation, or (4) which did not display a proper opt-out notice. The Plaintiff anticipates that the proposed class definition will change after discovery defines the precise contours of the class and the advertisements that were sent to it and the proposed class members. The Plaintiff requests leave to submit a brief and other evidence in support of this motion after discovery about the class elements has been completed. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=FloBaQya The Plaintiff is represented by: Brian J. Wanca, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: (847) 368-1500 Facsimile: (847) 368-1501 E-mail: bwanca@andersonwanca.com TD BANK: Sued in N.J. Over Penny Arcade Machine Shortchanging ------------------------------------------------------------- Regina C. Filannino-Restifo, on behalf of herself and all others similarly situated v. TD Bank, N.A., Case No. 1:16-cv-02374-JBS-JS (D.N.J., April 27, 2016), is brought on behalf of all deposit customers of TD Bank who have been harmed through the continued shortchanging of TD Bank's Penny Arcade machines. Headquartered in Cherry Hill, New Jersey, TD Bank, N.A. is a national association, federally chartered pursuant to the National Bank Act. The Plaintiff is represented by: Stephen P. DeNittis, Esq. 525 Route, 73 North, Suite 410 Marlton, NJ 08053 Telephone: (856) 797-9951 Facsimile: (856) 797-9978 E-mail: sdenittis@denittislaw.com - and - Jeffrey Smith, Esq. Kevin G. Cooper, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 270 Madison Avenue New York, NY 10016 Telephone: (212) 545-4600 Facsimile: (212) 545-4653 E-mail: smith@whafh.com kcooper@whafh.com TEL-DRUG: "Skinner" Class Suit Removed to Arizona Dist. Ct. ----------------------------------------------------------- The class action lawsuit entitled Robert Skinner, as an individual and on behalf of others similarly situated v. Tel-Drug Incorporated and Unknown Parties named as Does 1-10, Case No. C20160763, was removed from the Pima County Superior Court, to the U.S. District Court District of Arizona (Tucson Division). The District Court Clerk assigned Case No. 4:16-cv-00236-BGM to the proceeding. The case alleges breach of contract. Tel-Drug Incorporated operates a home delivery pharmacy. The Plaintiff is represented by: David James McGlothlin, Esq. HYDE & SWIGART 2633 E Indian School Rd., Ste. 460 Phoenix, AZ 85016 Telephone: (602) 265-3332 Facsimile: (602) 230-4482 E-mail: david@westcoastlitigation.com - and - Ryan Lee McBride, Esq. KAZEROUNI LAW GROUP 2633 E Indian School Rd., Ste. 460 Phoenix, AZ 85016 Telephone: (602) 900-1288 E-mail: ryan@kazlg.com The Defendant is represented by: John C. West, Esq. Robert Matthew Kort, Esq. LEWIS ROCA ROTHGERBER CHRISTIE LLP 201 E Washington St., Ste. 1200 Phoenix, AZ 85004 Telephone: (602) 262-5311 E-mail: jwest@lrrc.com rkort@lrrc.com TGI FRIDAY'S: Bid to Dismiss Count I of "Williams" Suit Denied -------------------------------------------------------------- In the case captioned, JASON C. WILLIAMS, individually and on Behalf of all others similarly situated, Plaintiffs, v. TGI FRIDAY'S INC., Defendant, Case No. 4:15-CV-1469 RLW (E.D. Mo.), District Judge Ronnie L. White of the United States District Court for the Eastern District of Missouri denied in part Defendant's Motion to Dismiss Count I of Complaint and stayed the action in its entirety. From time to time, TGIF markets its restaurants and makes offers via text messages to customers who affirmatively agree to receive them in connection with a customer loyalty and rewards program called the Give Me More Stripes (GMMS) program. Williams alleges that TGIF sent these text messages en masse to Plaintiff and the members of the proposed class without prior express written consent. Plaintiff Jason C. Williams (Williams) alleges that Defendant TGI Friday's (TGIF) violated the Telephone Consumer Protection Act (TCPA) by using an Automatic Telephone Dialing System (ATDS) to send text messages to his telephone, without his prior express written consent. In the motion, TGIF claims that Williams' Complaint fails to state a claim for relief. TGIF asserts that Williams' theory of liability fails as a matter of law because Williams is challenging whether his enrollment in the GMMS program qualifies as a "signature" that satisfies the FCC's definition of "prior express written consent." In response, Williams asserts that he has alleged sufficient facts to maintain his claim. First, he has alleged that the text messages were sent en masse, which is sufficient to allege to that the messages were sent via an ATDS. Williams states that the Hobbs Act precludes the Court from determining the propriety of the FCC's regulations regarding the consent requirement. In his Memorandum and Order dated April 12, 2016 available at http://is.gd/E4rurrfrom Leagle.com, Judge White found that Williams states a claim and that as the present stage of litigation, Williams' Complaint states a claim for which relief can be granted under the TCPA and that a stay is warranted while the dispositive legal issue is decided. Every 90 days, beginning July 12, 2016, the parties shall advise the Court of the status of the appeals from the FCC's Declaratory Ruling and Order before the D.C. Circuit. Jason C. Williams is represented by Christopher E. Roberts, Esq. -- croberts@butschroberts.com -- and David T. Butsch, Esq. -- dbutsch@butschroberts.com -- BUTSCH ROBERTS & ASSOCIATES, LLC TGI Friday's Inc. is represented by John E. Galvin, III, Esq. -- jgalvin@foxgalvin.com -- and Jeremy Thomas Staley, Esq. -- jstaley@foxgalvin.com -- FOX GALVIN, LLC, Michael W. McTigue, Esq. -- Michael.McTigue@dbr.com -- and Seamus C. Duffy, Esq. -- Seamus.Duffy@dbr.com -- DRINKER AND BIDDLE THINGS REMEMBERED: Class Certification of 7 Subclasses Sought ------------------------------------------------------------- The Plaintiffs in the lawsuit styled KIRAN KAUR and Rebecca Lagassey, individually, and on behalf of other members of the general public similarly situated v. THINGS REMEMBERED, INC., a Delaware Corporation; and DOES 1 through 10, inclusive, Case No. C 14-05544 VC (N.D. Cal.), moves for class certification of the lawsuit. The Plaintiffs seek to represent seven subclasses involving over 3,100 non-exempt, hourly employees who have worked for the Defendant in its Things Remembered stores in California and who, as a result of the Defendant's alleged uniform illegal policies and practices, have been subject to wage statement, regular rate of pay, meal period, and rest break violations of the California Labor Code and related case law. In their memorandum of points and authorities in support of the Motion, the Plaintiffs argue that class certification is appropriate because the Defendant's liability as to each subclass can be established by common proof. The Plaintiffs contend that their seven theories of liability are each amenable to class treatment because they are predicated on Defendant's statewide, uniform policies and practices, which raise predominant common questions of law or fact that will yield common answers based on common proof. The Plaintiffs' seven theories of liability and the corresponding subclasses are: (1) The Wage Statement Theory (Re: Wage Statement Subclass): Defendant has maintained a class-wide policy and practice of knowingly and intentionally issuing incomplete and/or inaccurate wage statements that failed to list the inclusive dates of the period for which the employee is paid, failed to list all applicable hourly rates in effect during the pay period and the corresponding number of hours worked, and failed to include the name and address of the legal entity that is the employer, as required by California Labor Code section 226; (2) The Regular Rate Theory (Re: Regular Rate Subclass): Defendant has maintained a class-wide policy and practice of failing to pay meal period premiums based on the correct regular rate of pay as required under California Labor Code Section 512,3 IWC Wage Order 7-2001 subd. 11 and related case law; (3) The Meal Period Waiver Theory (Re: Meal Period Waiver Subclass): Defendant has maintained a class-wide policy and practice of failing to provide a meal period to employees who work between five and six hour shifts, relying on an "automatic" meal period waiver which is neither consented to nor mutually agreed to, and therefore invalid as a matter of law; (4) The Brinker Rest Break Policy Theory (Re: Brinker Rest Break Policy Subclass): Defendant has maintained a facially illegal class-wide rest break policy in that it only authorizes subclass members to take one rest period for every 3.5 hours worked; thus, Defendant does not authorize and permit second rest periods for subclass members who worked shifts of more than 6 and less than 7 hours in length, as required by IWC Wage Order 7-2001 subd. 12 and related case law; (5) On-Duty Rest Break Theory (Re: Single Coverage Subclass): Defendant has maintained a class-wide policy and practice of scheduling one employee to work certain shifts on a "single coverage" basis, and as a consequence fails to provide subclass members with legally compliant rest periods during which they are relieved of all duty as required by IWC Wage Order 7-2001 subd. 12 and related case law. (6) Understaffing Theory (Re: Meal Break Subclass): Defendant maintains labor budget policies that result in chronically understaffed stores in California while at the same time implementing employee review and evaluation criteria which impede and discourage subclass members from taking timely, uninterrupted and compliant meal and rest breaks. (7) Derivative Claims Theory: The Complaint and proposed FAC include claims pursuant to Labor Code sections 510, 1198, 1194, 1197, 1197.1, 201, 202, 203 and 204 and Business & Professions Code section 17200, et seq. These claims are entirely or partially derivative of the putative class claims at issue in this Motion and should be certified along with them. A copy of the Memorandum is available at no charge at http://d.classactionreporternewsletter.com/u?f=A4kYFSNI The Plaintiffs are represented by: Robert Drexler, Esq. Bevin Pike, Esq. Jonathan Lee, Esq. CAPSTONE LAW APC 1840 Century Park East, Suite 450 Los Angeles, CA 90067 Telephone: (310) 556-4811 Facsimile: (310) 943-0396 E-mail: Robert.Drexler@Capstonelawyers.com Bevin.Pike@capstonelawyers.com Jonathan.Lee@capstonelawyers.com TIME WARNER: 9th Cir. Upholds Summary Judgment in "Corbin" Suit --------------------------------------------------------------- The United States Court of Appeals, Ninth Circuit affirmed the district court's ruling granting summary judgment to Time Warner Entertainment-Advance/Newhouse Partnership (TWEAN) in the case captioned ANDRE CORBIN, individually and on behalf of other members of the public similarly situated, Plaintiff-Appellant, v. TIME WARNER ENTERTAINMENT-ADVANCE/NEWHOUSE PARTNERSHIP, Defendant- Appellee, No. 13-55622 (9th Cir.). The plaintiff, Andre Corbin, argued before the district court that he was entitled to relief under the Fair Labor Standards Act (FLSA) and various California state employment laws for $15.02 in lost wages and one minute of uncompensated time. $15.02 represents the total amount of compensation that Corbin alleged he has lost due to TWEAN's compensation policy that rounds all employee time stamps to the nearest quarter-hour. One minute represents the total amount of time for which Corbin also alleged he was not compensated as he once mistakenly opened an auxiliary computer program before clocking into TWEAN's timekeeping software platform. The district court disagreed and granted summary judgment to TWEAN. The court determined that because the company's rounding policy was neutral on its face and in practice, TWEAN's policy complied with the federal rounding regulation, and Corbin's $15.02 in lost wages did not present an issue of material fact. The court also held that the one minute of uncompensated time Corbin spent logging into an auxiliary computer program before logging into TWEAN's timekeeping software was de minimis as a matter of law. On appeal, the Ninth Circuit found that Corbin has failed to demonstrate the existence of a material fact as to his rounding claim, his logging-in claim, or his derivative state claims. Additionally, the Ninth Circuit held that the district court did not err by limiting consideration of Corbin's rounding claim to the time period after the implementation of the Avaya/Kronos timekeeping system. Finally, the Ninth Circuit concluded that the there si no need for the district court to consider whether Corbin's rounding claim can form the basis for a viable class action proceeding. A full-text copy of the appellate court's May 2, 2016 opinion is available at http://is.gd/y4984Tfrom Leagle.com. William B. Sullivan (argued) and Eric Y. Yaeckel, Sullivan Law Group LLP, San Diego, California, for Plaintiff-Appellant. Joseph W. Ozmer, II (argued) -- jozmer@kcozlaw.com -- Michael D. Kabat -- mkabat@kcozlaw.com -- J. Scott Carr, and Rachel E. Sankey, Wargo & French LLP, Atlanta, Georgia, for Defendant- Appellee. TRIUNE INFOMATICS: Faces "Behera" Class Action in Calif. -------------------------------------------------------- Debashish Behera, on behalf of himself, all others similarly situated, and the State of California, Plaintiff, v. Triune Infomatics, Inc., a California Corporation and Does 1 through 30, inclusive, Defendants, Case No. RG16812520 (Cal. Super., April 20, 2016), seeks preliminary and permanent injunction, restitution of funds, civil penalties, reasonable attorney's fees and costs, prejudgment interest and other relief for violation of California Business and Professions Code Sec. 16600, 17200 et seq. and California Labor Code Sec. 432.5 and 2699. Triune Informatics provides job placement services to institutions in California. It enters into contracts with individuals, usually non-US citizens, and hires them as employees to perform services for third-party customers. Their terms of employment include reimbursement of costs should employees resign within 18 months, including costs obtaining Hl-B visas for employees. The Plaintiff is represented by: Jeremy Pasternak, Esq. LAW OFFICES OF JEREMY PASTERNAK 445 Bush St., Sixth Floor San Francisco, CA 94108 Telephone: (415) 693-0300 Facsimile: (415) 693-0393 - and - Joshua J. Konecky, Esq. Schneider Wallace, Esq. COTTRELL KONECKY WOTKINS LLP 180 Montgomery Street, Suite 2000 San Francisco, CA 94104 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 TRUMP UNIVERSITY: Lawyers Want to Prevent Trump From Facing Trial ----------------------------------------------------------------- The Daily Beast reports that as a last-ditch effort to keep Donald Trump from the witness stand in a pending Trump University trial, his lawyers have come up with an inventive defense that, of course, includes the Clintons. On the first day of the Republican National Committee convention, a set of Donald Trump's lawyers will be in a California courtroom. That's where a district judge on April 26 struck down a Hail Mary defense from Trump's legal team in an attempt to prevent their client from facing trial in a lawsuit against his now defunct Trump University. The mogul faces a class action lawsuit in the state for his mid- 2000s project which promised to make ordinary people experts in real estate, earn them tons of money, and provide expert seminars from Trump himself. None of which actually happened. Meanwhile, in New York, Trump is also facing a lawsuit from the Attorney General which will proceed to trial this year as well. As he and his lawyers spin their wheels to escape litigation -- on both coasts -- that could impact the presidential contest, things are not going so well. U.S. District Judge Gonzalo Curiel set a hearing for July 18 to determine if the civil case in California will proceed, which could put the spotlight back on the lawsuit while Trump fights for or is accepting his party's nomination. Trump also previously stated in February that because Judge Curiel "happens to be Spanish," he might be biased against him due to the candidate's immigration platform. And it's unlikely that his lawyers' latest motion to dismiss did their case any favors. Mr. Trump's lawyer, Daniel Petrocelli, a flashy Los Angeles attorney who once beat O.J. Simpson in a civil case and unsuccessfully represented Enron's CEO, filed the defense motion to try to tie the 2016 presidential race to the civil suit. In it, he wrote that if the Clinton Global Initiative -- a consortium the convenes leaders to discuss solutions to problems founded by President Bill Clinton -- can market a yearly conference as a "university," so can Trump's creation. "In all but a handful of states there are no limitations on the use of the word university in a business name," Mr. Petrocelli writes in the document first obtained by the Hollywood Reporter. "As a result, educational companies and business organizations of all types frequently use the word 'university' to market their products or services despite having no affiliation with a degree- granting university." Mr. Petrocelli told The Daily Beast he was not in a position to talk about the case. This semantics debate goes on for a few more pages. In addition to CGI University, which is billed as a yearly meeting of "global young leaders," Mr. Petrocelli included McDonald's Hamburger University and an ad from Farmers Insurance featuring actor J.K. Simmons as a fictional professor, as evidence his client was being held to a different standard. The problem with the comparison is that there are major differences in the way in which these institutions are marketed. For instance, CGI University calls itself "a meeting where students, university representatives, topic experts, and celebrities come together to discuss and develop innovative solutions to pressing global challenges," on its website. As for Hamburger University, the institution has a proven track record of training people to become restaurant managers and operators of various branches of the company. Its Shanghai campus had a reported selection rate of 1 percent in 2015, making it more selective than Harvard University. Additionally, Hamburger University provides American students with the opportunity to earn credits towards a bachelor's degree at 1,600 colleges or universities across the country. Not only did Trump University fall short in the education department, it did not even provide students with the opportunity to meet the straw-haired mogul as promised, but rather gave out cardboard cutouts of his likeness. The University of Farmers has been recognized among the better corporate training organizations in the world by Training magazine for four consecutive years. It even got inducted into the 2014 hall of fame for the magazine alongside Microsoft, Deloitte, IBM, and General Mills. "The University of Farmers strives to deliver the best trained people in our industry through world-class facilities offering outstanding state-of-the-art curricula for Farmers agents, claims personnel and management," Farmers Chief Learning Officer Annette Thompson said at the time. "Farmers is proud of its instructors, curriculum development personnel, and support staff. They are the best in the industry." Neither Farmers nor CGI returned calls for comment about their inclusion in Petrocelli's motion. The broader problem with motions like these -- summary judgments - - is that they seek to get a court opinion for the defendant (in this case Trump) without the plaintiff being able to convince a jury. So the facts have to be crystal clear. "As a general matter, summary judgment is difficult to obtain," CUNY law professor Frank Beale explained to The Daily Beast. "It would be a bold move for the Court to accept Trump's depiction of the facts without giving the plaintiff the chance to contest some of the statements contained in the summary judgment brief." Mr. Beale said he doubted the motion would be granted because summary judgments typically occur when "there is no serious dispute about the facts." On top of this shaky defense, Trump was specifically warned by the New York State Education Department about using the term "university" in conjunction with his company which functioned essentially as an upsell scheme modeled after tactics developed by notorious fraudsters. "Almost immediately after Trump founded Trump University, the New York State Education Department ("NYSED") wrote to Donald Trump on May 27, 2005, warning him that using the name "University" was illegal without a license, and asked Mr. Trump to stop using the name "Trump University," attorney Art Cohen wrote in his initial 2013 suit. "Instead of complying, Defendant's agents created a fictitious office in Dover, Delaware, and then Defendant continued to brazenly operate illegally out of his 40 Wall Street office in New York, New York for five years." At the time, Mr. Trump was also compelled to refund all the money students had paid to the institution or face disciplinary action as a consequence. He did not comply. "Defendant did not give students refunds, but did stop offering and selling Live Events shortly thereafter in or about August 2010. However, Defendant has made multiple statements that he intends to resume Trump University courses in the future," Cohen writes. When asked about Mr. Petrocelli's argument, the law offices of Zeldes Haeggquist & Eck, LLP, co-counsel on the two pending class- action lawsuits against Trump University in California, simply said "no comment." Mr. Trump himself has said that he doesn't want the litigation to proceed in the middle of an already insane Republican primary, while at the same time making clear he has no intention of settling the suit. "I'm going to win that easily," Mr. Trump said of the lawsuit during a press conference on April 27. According to a recent estimate from Bloomberg, Mr. Trump has been sued 72 times in federal court since 2000 and has settled 35 percent of the time. Meanwhile, across the country, Mr. Trump may also have to appear in New York court over a lingering suit from Attorney General Eric Schneiderman which alleges he scammed students with his Trump University. New York Justice Cynthia Kern decided on April 27 that the suit which alleges that Trump University ripped students off of a collective $40 million will go to trial. Mr. Schneiderman previously asked Justice Kern to rule on the matter without going to trial because the evidence was so clear. Yet some movement on the years-long suit was better than nothing. "I am very pleased the judge has indicated her intention to move as expeditiously as possible to trial, as thousands of Mr. Trump's alleged victims have been waiting years for relief from his fraud," Mr. Schneiderman said in a statement provided to The Daily Beast. "We believe that Mr. Trump and Mr. Sexton will be essential witnesses at trial. As we will prove in court, Donald Trump and his sham for-profit college defrauded thousands of students out of millions of dollars." As Mr. Trump continues his likely march toward the Republican nomination, picking up delegates from five state wins on April 27, he has tried to make his fight over Trump University equivalent to a fight for the future of America. "And you know what? The United States should fight back also," Trump said, shrouded in darkness in a video made by his campaign in March. "We shouldn't just be settlers, we should fight back. And do what's right." In this instance, Trump University customers would seem to agree. TYSON FOODS: Statistical Evidence Can Be Used in Class Action ------------------------------------------------------------- Jennifer Parent, writing for Employment Law Business Guide, reports that in Tyson Foods, Inc. v. Bouaphakeo, the U.S. Supreme Court held that statistical or representative evidence could be used by a class of employees to prove liability for an employer's failure to pay them for donning and doffing protective gear in violation of the Fair Labor Standards Act (FLSA). In this class action lawsuit, workers at a meat-processing plant alleged that Tyson failed to give them credit for time spent donning and doffing protective gear and walking to and from their production line. The workers were claiming overtime pay as a result of all hours worked over 40 hours a week when adding this additional time. A jury found for the workers and awarded the class about $2.9 million in unpaid wages. At trial, the court allowed the employees to use representative or an average sample of time it took workers in donning and doffing their gear rather than requiring each class member to present individualized proof of time spent. Plaintiffs' expert testified at trial that he determined the average time it took 53 of the 3,344 workers in the class to do these tasks and concluded that an average of 18 minutes a day needed to be added to weekly hours worked for one department and 21.25 minutes a day for another department. Plaintiffs claimed it could be presumed that all class members were identical to the statistical average and that the workers were owed overtime for all time over 40 hours when adding the representative time to the weekly time worked. Tyson argued that the trial court erred because the time per employee to perform those tasks was so different that they cannot rely on averages and the class should not have been certified under Federal Rule of Civil Procedure 23(b)(3). The U.S. Supreme Court disagreed and found that a categorical exclusion of the use of samples made little sense. It held that it would allow statistical samples to establish liability on a case by case basis -- depending on the purpose for which the evidence was being introduced and on the elements of the underlying action. In reaching this decision, the Supreme Court highlighted the employer's violation of its duty to maintain records of this time. Because there was a gap in employer required records of work-time, each employee could have relied on the average sample of time to prove liability and therefore the representative evidence could be used on a class-wide basis. The Supreme Court explained that its holding was consistent with its 2011 decision in Wal-Mart Stores, Inc. v. Dukes as that case involved 1.5 million employees who were not similarly situated because they were at different stores and under different policies. The class in Dukes failed to meet even Rule 23(a)'s basic requirement that class members share a common question of fact or law. On the contrary, in Tyson, the employees worked out of the same facility, did similar work, and were under the same policies for pay. While refusing to establish a general rule governing the use of such evidence, the Supreme Court widened the potential liability for employers in defending class action suits by allowing representative samples. This is particularly the case where there are record keeping violations by the employer in the wage and hour area. Employers should make sure that they review their practices and procedures and confirm that they are maintaining appropriate records of time for all employees. UBER TECHNOLOGIES: Drivers Criticizes Class Action Settlement ------------------------------------------------------------- Heather Somerville and Dan Levine, writing for Reuters, report that Uber's proposed settlement of a high-profile class-action lawsuit has drawn opposition from some drivers and other concerned parties as the ride-hailing service seeks to avoid reclassifying drivers as employees. The settlement, which still must be approved by a San Francisco federal judge, provides for a $100 million payout to drivers, who could get as little $12 apiece or as much as a few thousand dollars, depending on how many miles they drove. The deal contains a number of caveats and contingencies, however, such as making $16 million of the payout to drivers dependent on Uber Technologies Inc's [UBER.UL] future valuation increasing by 150 percent. Moreover, the settlement's non-monetary provisions are set to expire in two years, although Uber may choose to keep them in place after that. "If there were going to be any teeth to this settlement, (the expiration) wouldn't be there," said Christian Perea, an Uber driver and writer for The Rideshare Guy, a popular blog and podcast for drivers. The sunset clause is a way for Uber to protect itself from long- term costs and annoyances, said Jack Schaedel -- jschaedel@dykema.com -- a labor and employment attorney at the Dykema law firm, who is not involved in the case. If any of the concessions ends up "being totally unwieldy and Uber totally hates it, Uber can get rid of it," he said. Uber declined to comment. A Rideshare Guy post explaining the terms of the settlement drew more than 100 comments, many of them blasting the proposed deal. Uber drivers expressed dissatisfaction for a range of reasons, including that the settlement leaves unresolved the central issue of whether the law requires that drivers be qualified as employees. Among the non-monetary provisions of the settlement are a new policy governing driver termination, including an appeals process for drivers terminated by Uber, and an agreement that the privately-held company will clarify that drivers do not automatically receive gratuities from their fares and allow them to solicit tips. The company also agreed to assist with the creation of a drivers' association. OUTSIDE OBJECTIONS Lawyers representing Uber drivers in another class-action case have said in court filings they may object to the settlement because drivers covered by it would no longer be able to participate in their case, which challenges Uber's alleged use of credit reports during driver background checks. The lawyers also object to Uber's request to omit details from the settlement that would allow drivers to better evaluate the deal. The company has asked U.S. District Judge Edward Chen to redact key figures in court filings, including an estimate of the total potential value of drivers' legal claims had they won in a jury trial. The redacted information "is critically important to any analysis of whether the proposed settlement is fundamentally fair, adequate, and reasonable," the lawyers wrote in a court filing. Uber has said the figures are trade secrets and would damage the company if made public. In an order on April 27, Judge Chen told both sides to further explain their positions, given the importance of the information. In a similar lawsuit against Lyft, Uber's chief competitor, U.S. District Judge Vince Chhabria denied that company's request to keep secret similar information. Judge Chhabria ultimately rejected the proposed $12.25 million settlement offer because it represented only about 9 percent of the potential value of drivers' claims, a deal that he said "short-changed" drivers. While he will gladly cash a settlement check if one comes his way, driver Perea said the deal with Uber provides little solace. "We were hoping for a more definitive answer on what the on-demand economy would look like in the future, and a sense that this whole new economy that was taking off would work," he said. A hearing on the deal is scheduled for June. UNITED KINGDOM: Hillsborough Disaster Victims File Class Action --------------------------------------------------------------- Lizzie Dearden, writing for Independent, reports that relatives of the victims of the Hillsborough disaster are launching a class action lawsuit against police that could result in millions of pounds in compensation. Lawyers said "several hundred" family members are represented in the claims, which were lodged at the High Court last year but could not be reported until the inquest verdicts on April 26. They are seeking damages from South Yorkshire and West Midlands Police for "misfeasance in public office" over conduct on the day of the disaster and an alleged conspiracy attempting to blame Liverpool fans for the deaths. A spokesperson for Saunders Law, which is representing the families, said the claims concern "the cover-up and actions intended to wrongly blame the deceased and Liverpool Football Club supporters for the tragedy". "Despite a half-hearted admission after publication of the Hillsborough Independent Report, we have learnt South Yorkshire Police spent an estimated GBP19 million of tax payers' money on defending the indefensible at the inquest," a statement said. "After issuing the claims last year we secured a Contempt of Court Act order from a High Court Judge preventing publication of any information about the claims until the inquest ended, to avoid any risk of prejudice to the inquest. "We now propose to move the claims forward to secure accountability." UNITED STATES: Groups Against PACER Fees Seek Class Certification ----------------------------------------------------------------- The Plaintiffs in the lawsuit titled NATIONAL VETERANS LEGAL SERVICES PROGRAM, NATIONAL CONSUMER LAW CENTER, and ALLIANCE FOR JUSTICE, for themselves and all others similarly situated v. UNITED STATES OF AMERICA, Case No. 1:16-cv-00745-ESH (D.D.C.) moves for class certification. This case challenges the legality of fees charged to access records through the Public Access to Court Electronic Records system, commonly known as PACER. PACER is a system that provides online access to federal judicial records and is managed by the Administrative Office of the U.S. Courts. The theory of liability is that these fees -- set at the same rate across the judiciary -- far exceed the cost of providing the records, and thus, violate the E-Government Act, which authorizes fees "as a charge for services rendered," but "only to the extent necessary" to "reimburse expenses in providing these services." Because this theory of liability applies equally to everyone who has paid a PACER fee within the six-year limitations period, the Plaintiffs move to certify the case as a class action under Rule 23 of the Federal Rules of Civil Procedure on behalf of themselves and the following class: "All individuals and entities who have paid fees for the use of PACER within the past six years, excluding class counsel and agencies of the federal government." The Plaintiffs assert that as the Act's sponsor put it: PACER fees are now "well higher than the cost of dissemination" and, hence, "against the requirement of the E-Government Act," which allows fees "only to recover the direct cost of distributing documents via PACER" -- not unrelated projects that "should be funded through direct appropriations." A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=aEUPhNwe The Plaintiffs are represented by: Deepak Gupta, Esq. Jonathan E. Taylor, Esq. GUPTA WESSLER PLLC 1735 20th Street, NW Washington, DC 20009 Telephone: (202) 888-1741 Facsimile: (202) 888-7792 E-mail: deepak@guptawessler.com jon@guptawessler.com - and - William H. Narwold, Esq. MOTLEY RICE LLC 3333 K Street NW, Suite 450 Washington, DC 20007 Telephone: (202) 232-5504 Facsimile: (202) 232-5513 E-mail: bnarwold@motleyrice.com - and - Michael T. Kirkpatrick, Esq. INSTITUTE FOR PUBLIC REPRESENTATION Georgetown University Law Center 600 New Jersey Avenue, Suite 312 Washington, DC 20001 Telephone: (202) 662-9535 Facsimile: (202) 662-9634 E-mail: michael.kirkpatrick@law.georgetown.edu VARITRONICS LLC: Order Denying Bid to Deposit Funds Affirmed ------------------------------------------------------------ In the case captioned Bais Yaakov of Spring Valley, on behalf of itself and all others similarly situated, Plaintiff, v. Varitronics, LLC, Defendant, Civil No. 14-5008 ADM/FLN (D. Minn.), Judge Ann D. Montgomery overruled Varitronics, LLC's objection to Magistrate Judge Franklin L. Noel's February 29, 2016 order denying Varitronics' Motion to Deposit Funds into the Court Registry. A full-text copy of Judge Montgomery's May 2, 2016 memorandum opinion and order is available at http://is.gd/HoHVt3from Leagle.com. In the putative class action case, Bais Yaakov of Spring Valley alleged that Varitronics sent eight unauthorized fax advertisements in violation of the Telephone Consumer Protection Act and New York General Business Law. On August 28, 2015, this action was stayed pending resolution of the United States Supreme Court's decision in Campbell-Ewald Co. v. Gomez. Campbell-Ewald, decided on January 20, 2016, addressed the broad question of whether an unaccepted offer of judgment made pursuant to Federal Rule of Civil Procedure 68 to the named plaintiff rendered a putative class action moot when the complaint was seeking relief on behalf of the named plaintiff and a class of persons similarly situated. 136 S.Ct. 663, 665 (2016). That question was answered in the negative. After Campbell-Ewald's resolution, Varitronics moved under Federal Rule of Civil Procedure 67 and Local Rule 67.1 to deposit $13,000 -- the amount Varitronics claims provides Bais Yaakov complete relief for its claims -- into the Court Registry in an account payable to Bais Yaakov. In its Motion, Varitronics cited this language in Campbell-Ewald: "We need not, and do not, now 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. That question is appropriately reserved for a case in which it is not hypothetical." Varitronics argued that this language signals the case would have been decided differently if the defendant had deposited the full amount of the plaintiff's individual claim in an account payable to the plaintiff. On February 29, 2016, Judge Noel denied Varitronics' motion. In reaching this decision, Judge Noel recognized that courts were split on this issue, but reasoned the fact pattern in the Varitronics' case was more akin to Brady v. Basic Research, a decision from the Eastern District of New York that denied a similar request. The Defendant objected. In disagreeing with Varitronics, Judge Montgomery held that, "Judge Noel concluded that Varitronics' Rule 67 motion was motivated solely to later attempt to moot Bais Yaakov's case and, because a class certification motion had not been decided, Bais Yaakov must be afforded a fair opportunity to show that class certification is warranted. Rather than decide the jurisdictional question, Judge Noel reasoned that Varitronics' effort to transition the jurisdictional question from the periphery onto center stage now was premature. Such reasoning is not clearly erroneous or contrary to law." Bais Yaakov of Spring Valley, Plaintiff, represented by Aytan Yehoshua Bellin, Bellin & Associates LLC, pro hac vice & Brant D Penney -- bpenney@rwblawfirm.com -- Reinhardt Wendorf & Blanchfield. Varitronics, LLC, Defendant, represented by Bryan R Freeman -- bfreeman@lindquist.com -- Lindquist & Vennum PLLP, Jonathan M Bye, Lindquist & Vennum PLLP & Nicole M. Tupman -- ntupman@lindquist.com -- Lindquist & Vennum LLP. VENGROFF WILLIAMS: Maranda Woodward Seeks Class Certification ------------------------------------------------------------- The Plaintiff in the lawsuit styled MARANDA WOODWARD, Individually and on Behalf of All Others Similarly Situated v. VENGROFF WILLIAMS, INC., Case No. 16-cv-533 (E.D. Wisc.), moves the Court to certify the proposed class in this case, and appoint the Plaintiff as its representative, and Ademi & O'Reilly, LLP as its Counsel; and further requests that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). As this motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiff asserts. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=OIrSbpz0 The Plaintiff is represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com VERENGO INC: Settlement Deal in "Lushe" Has Final Okay ------------------------------------------------------ Judge Andre Birotte, Jr. finally approved the settlement agreement in the case captioned SHAHAR LUSHE and WILLIAM YOUNGBLOOD, individually and on behalf of all others similarly situated, Plaintiffs, v. VERENGO, INC. d/b/a VERENGO SOLAR, Defendant, No. CV13-07632-AB (PJWx) (C.D. Cal.). The Settlement Class consists of: "all persons to whom, on or after October 16, 2009 through the date of Preliminary Approval, Verengo or any of its affiliates or subsidiaries, or any entity acting on its behalf, or any entity contracted to provide leads to Verengo, placed a non-emergency telephone call to a cellular telephone through the use of an automatic telephone dialing system and/or an artificial or prerecorded voice, to a residential line using an artificial or prerecorded voice, or to a telephone number registered on the National Do-Not-Call registry, without the consent of such person. Excluded from the Settlement Class are the Judge to whom the Action is assigned and any member of the Judge's staff and immediate family, as well as all persons who validly request exclusion from the Settlement Class." The final approval hearing was held on May 2, 2016. The action is dismissed with prejudice, without costs to any party, except as expressly provided for in the settlement agreement. Judge Birotte also approved the class counsel's application for $591,250 in attorney's fees and $31,443.44 in costs, and for a service award to the settlement class representatives, Shahar Lushe and William Youngblood, in the amount of $2,500 each. A full-text copy of Judge Birotte's May 2, 2016 final judgment and order is available at http://is.gd/xu17jEfrom Leagle.com. Shahar Lushe, Plaintiff, William Youngblood, Movant, represented by Beth E Terrell -- bterrell@terrellmarshall.com -- Terrell Marshall Law Group PLLC, pro hac vice, Adrienne D McEntee -- amcentee@terrellmarshall.com -- Terrell Marshall Daudt and Willie PLLC, pro hac vice, Gretchen M Nelson, Nelson & Fraenkel LLP & Mary B Reiten -- mreiten@terrellmarshall.com -- Terrell Marshall Law Group PLLC. Verengo Inc, Defendant, represented by Anahit Tagvoryan -- atagvoryan@blankrome.com -- Blank Rome LLP, Joshua M Briones -- jbriones@blankrome.com -- Blank Rome LLP & Shirley M Leung -- sleung@blankrome.com -- Blank Rome LLP. VITALICIOUS ACQUISITION: Recalls Apple Crumb VitaTops Due to Milk ----------------------------------------------------------------- Vitalicious Acquisition LLC, of Jamaica, NY, is voluntarily recalling select lots of VITALICIOUS Apple Crumb VitaTops because they may contain undeclared milk. Individuals who have an allergy to milk run the risk of a serious or life-threatening allergic reaction if they consume this product. The VITALICIOUS Apple Crumb VitaTops were sold nationwide directly to consumers via online ordering only, not sold in stores and began shipping on March 21, 2016. The affected VITALICIOUS Apple Crumb VitaTops are packed in a clear plastic film, NET WT. 2 oz. (55g) with the following LOT CODES and sold frozen in cases of 12 units, 24 units, or variety packs: -- VitaTops APPLE CRUMB LOT 16 075 C (stamped on top of film) -- VitaTops APPLE CRUMB LOT 16 078 C (stamped on top of film) No other VITALICIOUS brand products are included in this recall action. There has been one reported illness to date. The voluntary recall was initiated after it was discovered that the incorrect ingredient statement which failed to declare the presence of milk was included with the Apple Crumb VitaTops online orders. The company has revised the ingredient statement to declare the presence of milk. Consumers who have an allergy to milk and are in possession of the affected Apple Crumb lot codes are encouraged to dispose of it, and contact the company for a refund. Consumers with questions may call Vitalicious at 718-439-0200 ext. 627, Monday through Friday from 9:00 a.m. to 5:00 p.m. EDT or by email to: julie@vitalicious.com. Pictures of the Recalled Products available at: http://is.gd/rbniIt WAL-MART STORES: Recalls Rival Brand Electric Water Kettles ----------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Wal-Mart Stores Inc., of Bentonville, Ark., announced a voluntary recall of about 1.2 million Rival brand electric water kettles. Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The heating element can fail and rupture, posing burn and shock hazards to the user. This recall involves Rival brand electric water kettles with model numbers WK8283CU and WK8283CUY. The model numbers are printed on a product label on the underside of the water kettle. The white plastic water kettles were sold with a warming base and a pitcher. A window on the side pitcher has markings that measure the water levels. "Rival" is printed beneath the window. Walmart has received 80 reports of incidents, including seven reports of burns. Pictures of the Recalled Products available at: http://is.gd/tGL3Bp The recalled products were manufactured in China and sold at Walmart stores nationwide and online at Walmart.com from March 2011 through October 2015 for about $14. WELLS FARGO: "Hogan" Seeks Certification of Foreclosure Class ------------------------------------------------------------- The Plaintiff in the lawsuit styled DEANNA BROWN HOGAN v. WELLS FARGO BANK, N.A., Case No. 2:16-cv-00013 (S.D. Tex.), filed with the Court a first amended complaint and motion to certify class. The Plaintiff's claims include (i) lack of standing to foreclose on the property located at 1006 Meadow Brook, in Portland, Texas, (ii) wrongful foreclosure, and (iii) violations of the Deceptive Trade Practices Act Parties and Service. The Property was purchased by the Plaintiff through a loan, which is serviced by Wells Fargo. The Plaintiff alleges that the Defendant has made material misrepresentations and material errors, which do not support the foreclosure of the Property. The Plaintiff adds that the Defendant's actions caused the Plaintiff's damages. The Plaintiff believes there are additional similarly situated persons and moves the Court to certify said class of plaintiffs because joinder of all members is impracticable, there are questions of law or fact common to the class, the claims of the representative Plaintiff are typical of the claims of the class and the representative party will fairly and adequately protect the interests of the class. A copy of the First Amended Complaint and Motion for Certification is available at no charge at http://d.classactionreporternewsletter.com/u?f=UdY30uan XPAT XTREME: "Rechterman" Suit Seeks to Recover Unpaid OT Wages --------------------------------------------------------------- Logan Rechterman, individually and on behalf of all others similarly situated v. Xpat Xtreme Pump & Testing LLC, Case No. 6:16-cv-00383-MHS-KNM (E.D. Tex., April 27, 2016), seeks to recover unpaid overtime wages and other damages pursuant to the Fair Labor Standards Act. Xpat Xtreme Pump & Testing LLC operates an oilfield services company providing a variety of services, including testing pressure containment and blow out prevention. The Plaintiff is represented by: Neely Balko, Esq. PHIPPS ANDERSON DEACON LLP 819 N. Upper Broadway Corpus Christi, TX 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 E-mail: nbalko@phippsandersondeacon.com YEXT INC: Courts Grants In Part Motion to Seal Exhibits ------------------------------------------------------- District Judge John F. Keenan of the United States District Court for the Southern District of New York granted in part Defendant Yext, Inc.'s (Yext) motion to seal certain documents submitted in connection with both its motion for summary judgment and Plaintiff Tropical Sails Corp.'s (Tropical Sails) motion for class certification in the case captioned, TROPICAL SAILS CORP., Plaintiff, v. YEXT, INC., Defendant, Case No. 14 Civ. 7582 (S.D.N.Y.). Tropical Sails is a small business involved in the travel cruise ship industry that purchased a subscription to Yext's PowerListings service. Tropical Sails brings suit against Yext for itself and others similarly situated alleging that Yext fraudulently induced it and others to purchase Yext's PowerListings service and that Yext has been unjustly enriched by Tropical Sails's and others' purchase of Yext's PowerListings service. In addition to its causes of action for fraudulent inducement and unjust enrichment, Tropical Sails alleged claims for violations of New York General Business Law sections 349 and 350, which this Court dismissed on May 18, 2015, for failure to state a claim under Federal Rule of Civil Procedure 12 (b) (6). Tropical Sails moved for class certification pursuant to Federal Rule of Civil Procedure 23 (a) and (b) (3) on December 15, 2015. On January 22, 2016, Yext moved for summary judgment pursuant to Federal Rule of Procedure 56. Both motions were fully briefed on March 11, 2016. Yext moves to seal 22 of 65 exhibits appended to the motions. Yext classifies these exhibits in two categories. The first category of documents are those reflecting "its confidential marketing and business development activities." Counsel for Yext explains that these documents include Yext's sales training manuals, internal marketing strategies, company marketing plans, and internal emails discussing marketing tests. The second category of documents are those reflecting "its confidential sales statistics." Counsel for Yext explains that these documents describe Yext's otherwise private revenue figures. In his Opinion and Order dated April 12, 2016 available at http://is.gd/NieWVCfrom Leagle.com, Judge Keenan concluded that Yext has met its burden for continued sealing of the documents relating to marketing and business development activities. It is directed to file those 19 documents under seal. The remaining three documents -- (1) Exhibit 4 to Tropical Sails's motion for class certification; (2) Exhibit B to the Declaration of Max Shaw in support of Yext's Opposition to Tropical Sails's motion for class certification; and (3) Exhibit 5 to Tropical Sail's opposition to Yext's motion for summary judgment -- shall be filed on ECF in the same manner as all other public documents. Tropical Sails Corp. is represented by: David Slade, Esq. Joseph Henry Bates, III, Esq. CARNEY BATES & PULLIAM, PLLC 2800 Cantrell Rd Little Rock, AR 72202 Tel: (501)312-8500 - and - James Allen Carney, Esq. CAULEY BOWMAN CARNEY & WILLIAMS, PLLC 11001 Executive Center Drive Little Rock, AR 72211 Tel: (501)312-8500 - and - Thomas M. Mullaney, Esq. LAW OFFICES OF THOMAS M. MULLANEY 275 Madison Ave New York, NY 10016 Tel: (212)223-0800 Yext, Inc. is represented by Gavin J. Rooney, Esq. -- grooney@lowenstein.com -- LOWENSTEIN SANDLER LLP YTS TRADING: Fails to Pay Employees Overtime, "Lopez" Suit Says --------------------------------------------------------------- Cesar Magdiel Lopez, individually and on behalf of others similarly situated v. YTS Trading LLC (d/b/a Jack's Egg Farm & Sugar), Jack Egg Farm Inc. (d/b/a Jack's Egg Farm & Sugar), Jack Egg LLC (d/b/a Jack's Egg Farm & Sugar), Jack's Eggs and Other Ingredients LLC (d/b/a Jack's Egg Farm & Sugar), Jack Neustadt, Mordechai Neustadt and Jack Stein, Case No. 1:16-cv-02091 (E.D.N.Y., April 27, 2016), is brought against the Defendants for failure to pay overtime compensation for work in excess of 40 hours per week. The Defendants own, operate, and control an egg and sugar distribution center located at 130 44th Street, Brooklyn, New York 11232. The Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, PC 60 East 42nd Street, Suite 2540 New York, NY 10165 Telephone: (212) 317-1200 E-mail: Michael@Faillacelaw.com Asbestos Litigation ASBESTOS UPDATE: 6th Cir. Affirms Ruling in "Upton" --------------------------------------------------- In the case styled CHRISTOPHER TODD UPTON, Plaintiff, LESLIE DARNELL JONES; JEFFREY LYNN KEYLON; JAMES DAVID PARTEN; TIMOTHY EDWARD ROBBINS; and PAUL STEVEN VANCE, Plaintiffs-Appellants, v. BNFL, INC.; TSB FA NUCLEAR SERVICES, INC., Defendants-Appellees, No. 15-5751 (6th Cir.), the United States Court of Appeals for the Sixth Circuit affirmed the district court's ruling, holding that it properly granted summary judgment in favor of BNFL. A full- text copy of the Opinion dated April 22, 2016, is available at http://is.gd/mTCtgdfrom Leagle.com. ASBESTOS UPDATE: Bath Iron Dropped as Defendant in "Thorne" ----------------------------------------------------------- In BARBARA THORNE, as Wrongful Death Heir, and as Successor-in- Interest to ANDREW PRICE, Deceased, and BRENDA MARONDE, CELESTIA SIMS-MAYER, BECKY PRICE, KAYELLEN PRICE-LEE, as Legal Heirs of ANDREW PRICE, Deceased, Plaintiffs, v. BATH IRON WORKS CORPORATION, FOSTER WHEELER LLC (FKA FOSTER WHEELER CORPORATION), Defendants, No. 3:14-cv-02460-SI (N.D. Calif.), Judge Susan Illston of the United States District Court for the Northern District of California in an April 13, 2016, Order available at http://is.gd/NWnOFGfrom Leagle.com, granted the parties' dismissal of strict liability claims only, as to defendant Bath Iron Works Corporation, without prejudice. Barbara Thorne, Plaintiff, represented by David R. Donadio, Brayton Purcell LLP, Alan R. Brayton, Brayton Purcell LLP & Kimberly Joy Wai Jun Chu, Brayton Purcell LLP. Brenda Maronde, Plaintiff, represented by David R. Donadio, Brayton Purcell LLP, Alan R. Brayton, Brayton Purcell LLP & Kimberly Joy Wai Jun Chu, Brayton Purcell LLP. Celestia Sims-Mayer, Plaintiff, represented by David R. Donadio, Brayton Purcell LLP, Alan R. Brayton, Brayton Purcell LLP & Kimberly Joy Wai Jun Chu, Brayton Purcell LLP. Becky Price, Plaintiff, represented by David R. Donadio, Brayton Purcell LLP, Alan R. Brayton, Brayton Purcell LLP & Kimberly Joy Wai Jun Chu, Brayton Purcell LLP. Bath Iron Works Corporation, Defendant, represented by Paul M. Bessette, Demler, Armstrong & Rowland, LLP, Charles S. Park, Hugo Parker, LLP, Edward R. Hugo, Brydon Hugo & Parker & Edward P Tugade, Demler, Armstrong & Rowland LLP. Foster Wheeler LLC, Defendant, represented by Shelley Kaye Tinkoff, Hugo Parker LLP & Edward R. Hugo, Brydon Hugo & Parker. ASBESTOS UPDATE: Bids to Dismiss "Hovsepian" Granted ---------------------------------------------------- In the case styled BERJ HOVSEPIAN, Plaintiff, v. CRANE CO., et al., Defendants, Case No. 4:16-CV-414-CEJ (E.D. Mo.)., Judge Carol E. Jackson in an April 13, 2016, Memorandum and Order available at http://is.gd/iBL7ATfrom Leagle.com, granted defendants' motions to dismiss for lack of personal jurisdiction. Berj Hovsepian, Plaintiff, represented by Carson C. Menges, Esq. - - cmenges@toverdict.com -- FLINT AND ASSOCIATES LLC, Demetrious T. Zacharopoulos, WOLF AND ZACHAROPOULOS LLP, Erin Rafferty Burton, Esq. -- eburton@toverdict.com -- FLINT AND ASSOCIATES LLC, Jacob A. Flint, Esq. -- jflint@flintfirm.com -- FLINT AND ASSOCIATES LLC, Luke Perry Pfeifer, Esq. -- lpfeifer@toverdict.com -- FLINT AND ASSOCIATES LLC & Timothy Paul Hulla, Esq. -- thulla@toverdict.com -- FLINT AND ASSOCIATES LLC. Crane Co., Defendant, represented by Carl J. Geraci, HEPLER BROOM & Benjamin John Wilson, HEPLER BROOM. Air & Liquid Systems Corporation, Defendant, represented by Gregory C. Flatt, HEYL AND ROYSTER & Kent L. Plotner, HEYL AND ROYSTER. ALFA Laval, Inc., Defendant, represented by Paul W. Lore. Aurora Pump Company, Defendant, represented by Melanie E. Riley, Esq. -- mriley@sandbergphoenix.com -- SANDBERG PHOENIX, P.C. & Michael P. McGinley, Esq. -- mmcginley@sandbergphoenix.com -- SANDBERG PHOENIX, P.C.. Borg-Warner Morse TEC LLC, Defendant, represented by Andrew M. Voss, GREENSFELDER AND HEMKER, PC, Lizabeth M. Conran, GREENSFELDER AND HEMKER, PC, Michael C. Pagan, GREENSFELDER AND HEMKER, PC & Shannon R. Summers, GREENSFELDER AND HEMKER PC. Burnham Commerical Boilers, Defendant, represented by Dennis J. Graber, HINSHAW AND CULBERTSON & Trevor Alan Sondag, HINSHAW AND CULBERTSON. CBS Corporation, Defendant, represented by Daniel G. Donahue, FOLEY AND MANSFIELD, P.L.L.P. & Michael R. Dauphin, FOLEY AND MANSFIELD, P.L.L.P.. Certain-Teed Corporation, Defendant, represented by Gregory C. Flatt, HEYL AND ROYSTER & Kent L. Plotner, HEYL AND ROYSTER. Cleaver Brooks Inc., Defendant, represented by Timothy A. McGuire, Esq. -- tmcguire@otmblaw.com -- O'CONNELL AND TIVIN, LLC. Crown Cork & Seal Company Inc., Defendant, represented by Stephen J. Maassen, HOAGLAND AND FITZGERALD. Cummins, Inc., Defendant, represented by Nathan Lindsey, Esq. -- nlindsey@rwdmlaw.com -- RASMUSSEN AND MOORE LLC & Virginia M. Giokaris, Esq. -- vgiokaris@rwdmlaw.com -- RASMUSSEN AND WILLIS. Daimler Trucks North America LLC, Defendant, represented by Gregory C. Flatt, HEYL AND ROYSTER & Kent L. Plotner, HEYL AND ROYSTER. Federal Mogul Asbestos Personal Injury Trust, Defendant, represented by Lindsay A. Dibler, Esq. -- ldibler@kslfllc.com -- KUROWSKI SCHULTZ. Flowserve Corporation, Defendant, represented by Ashley E. Benoist, SEGAL AND MCCAMBRIDGE, LTD & James Russell Williams, SEGAL AND MCCAMBRIDGE, LTD. Gardner Denver, Inc., Defendant, represented by William R. Irwin, SEGAL AND MCCAMBRIDGE. General Gasket Corporation, Defendant, represented by Agota Peterfy, Esq. -- apeterfy@bjpc.com -- BROWN AND JAMES, P.C. & Albert J. Bronsky, Esq. -- ajbronsky@bjpc.com -- BROWN AND JAMES, P.C.. Goulds Pumps, Inc., Defendant, represented by Dennis J. Graber, HINSHAW AND CULBERTSON & Trevor Alan Sondag, HINSHAW AND CULBERTSON. Greene Tweed & Co Inc., Defendant, represented by Ashley E. Benoist, SEGAL AND MCCAMBRIDGE, LTD & James Russell Williams, SEGAL AND MCCAMBRIDGE, LTD. Honeywell International Inc., Defendant, represented by Anthony L. Springfield, Esq. -- aspringfield@polsinelli.com -- POLSINELLI PC. IMO Industries, Inc., Defendant, represented by Matthew R. Fields, Esq. -- Fields@archcitylawyers.com -- JACOBSON AND PRESS, P.C.. Ingersoll-Rand Company, Defendant, represented by Carl J. Geraci, HEPLER BROOM & Benjamin John Wilson, HEPLER BROOM. John Crane, Inc., Defendant, represented by Agota Peterfy, BROWN AND JAMES, P.C. & Albert J. Bronsky, BROWN AND JAMES, P.C.. JP Bushnell Packing Supply Company, Inc., Defendant, represented by Patrick M. Grand, MATUSHEK, NILLES & SINARS, L.L.C.. Kaiser Gypsum Company, Inc., Defendant, represented by Nathan Lindsey, RASMUSSEN AND MOORE LLC & Virginia M. Giokaris, RASMUSSEN AND WILLIS. Kelsey Hayes Co., Defendant, represented by Andrew M. Voss, Esq. - - amv@greensfelder.com -- GREENSFELDER AND HEMKER, PC, Edward S. Bott, Jr., Esq. -- esb@greensfelder.com -- GREENSFELDER AND HEMKER, PC & Shannon R. Summers, Esq. -- ssummers@greensfelder.com -- GREENSFELDER AND HEMKER PC. Lamons Gasket Company, Defendant, represented by Paul B. Lee, Esq. -- plee@nlpc-law.com -- NELSEN & LEE, P.C. & Leo W. Nelsen, Jr., Esq. -- lnelsen@nlpc-law.com -- NELSEN & LEE, P.C.. Maremont Corporation, Defendant, represented by David W. Ybarra, GREENSFELDER AND HEMKER PC. Metropolitan Life Insurance Company, Defendant, represented by Charles L. Joley, JOLEY AND OLIVER & Georgiann Oliver, JOLEY AND OLIVER. Paccar, Inc., Defendant, represented by Earl B. Thames, HAWKINS AND PARNELL, LLP & Jacob A. Flint, FLINT AND ASSOCIATES LLC. Pneumo Abex Corporation, Defendant, represented by Matthew E. Pelikan, WILLIAMS AND VENKER, LLC, Ross S. Titzer, WILLIAMS AND VENKER, LLC & Thomas L. Orris, WILLIAMS AND VENKER, LLC. Riley Power, Inc., Defendant, represented by Gregory C. Flatt, HEYL AND ROYSTER, Kent L. Plotner, HEYL AND ROYSTER & Philip M. Eisele, HEYL AND ROYSTER. Taco, Inc., Defendant, represented by Benjamin Daniel Woodard, STINSON AND LEONARD LLP, Jon A. Santangelo, STINSON AND LEONARD LLP & Neal B. Griffin, STINSON AND LEONARD LLP. Utility Trailer Manufacturing Company, Defendant, represented by Daniel G. Donahue, FOLEY AND MANSFIELD, P.L.L.P. & William C. Foote, FOLEY AND MANSFIELD, P.L.L.P.. Warren Pumps, LLC, Defendant, represented by Anita Maria Kidd, ARMSTRONG TEASDALE, LLP, Julie Fix Meyer, ARMSTRONG TEASDALE LLP, Melanie R. King, ARMSTRONG TEASDALE LLP & Raymond R. Fournie, ARMSTRONG TEASDALE LLP. Western Auto Supply Company, Defendant, represented by April A. Vesely, SWANSON AND MARTIN, LLP. Young Group Ltd., Defendant, represented by Benjamin Daniel Woodard, STINSON AND LEONARD LLP. Young Insulation Group of St. Louis, Inc., Defendant, represented by Benjamin Daniel Woodard, STINSON AND LEONARD LLP. Zurn Industries, LLC, Defendant, represented by William R. Irwin, SEGAL AND MCCAMBRIDGE. ASBESTOS UPDATE: Ruling on Improper Venue Exceptions Affirmed ------------------------------------------------------------- In the case captioned RUFUS BLOW, JR., v. ONEBEACON AMERICA INSURANCE COMPANY, No. 2016-C-0301 (La. App.), the Court of Appeals of Louisiana for the Fourth Circuit, in an April 20, 2016, opinion available at http://is.gd/Mht3Gsfrom Leagle.com, amended the judgment of the district court sustaining the exceptions of improper venue brought by OneBeacon America Insurance Company, in its capacities as insurer of John Chantry, John Cole, James O'Donnell, Ollie Gatlin, George Kelmell, and Peter Territo to delete the decretal language "dismissed without prejudice." As amended, the Court of Appeals otherwise affirm the judgment and remanded the matter to the district court to transfer the plaintiffs' survival actions against OneBeacon in its capacities as insurer of the just named executive officers to a proper venue or venues, and, at the same time, set a deadline for the transfer(s) and tax the cost of the transfer(s) to the appropriate party or parties. Mickey P. Landry, Frank J. Swarr, Philip C. Hoffman, Matthew C. Clark, LANDRY & SWARR, LLC, 1010 Common Street, Suite 2050, New Orleans, Louisiana 70112, COUNSEL FOR PLAINTIFF/RELATOR. Samuel M. Rosamond, III, Esq. -- srosamond@twpdlaw.com -- Adam D. deMahy, Esq. -- ademahy@twpdlaw.com -- TAYLOR, WELLONS, POLITZ & DUHE, APLC, 1515 Poydras Street, Suite 1900, New Orleans, Louisiana 70112, COUNSEL FOR DEFENDANT/RESPONDENT, ONEBEACON AMERICA INSURANCE COMPANY. ASBESTOS UPDATE: GATX Had 79 Asbestos Cases at Jan. 31 ------------------------------------------------------ As of January 31, 2016, there were 79 asbestos-related cases pending against GATX Corporation and its subsidiaries, 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, "Several of our subsidiaries have also been named as defendants or co-defendants in cases alleging injury caused by exposure to asbestos. The plaintiffs seek an unspecified amount of damages based on common law, statutory, or premises liability or, in the case of ASC, the Jones Act, which provides limited remedies to certain maritime employees. As of January 31, 2016, there were 79 asbestos-related cases pending against GATX and its subsidiaries. Of the total number of pending cases, 63 are Jones Act claims, most of which were filed against ASC before the year 2000. During 2015, 5 new cases were filed, and 26 cases were dismissed without payment or otherwise settled for an immaterial amount. In addition, demand has been made against GATX for asbestos-related claims under limited indemnities given in connection with the sale of certain of our former subsidiaries. It is possible that the number of these cases or claims for indemnity could begin to grow and that the cost of these cases, including costs to defend, could correspondingly increase in the future." GATX Corporation (GATX) leases, operates, manages and remarkets assets, primarily in the rail and marine markets. The Company operates through four primary business segments: Rail North America, Rail International, American Steamship Company (ASC) and Portfolio Management. Rail North America segment consists of its wholly owned operations in the United States, Canada, and Mexico, as well as two affiliate investments. Rail International segment consists of its wholly owned European operations (Rail Europe) and an established railcar leasing business in India (Rail India), as well as one development stage affiliate in China. ASC segment operates a fleet of Unied States flagged vessels on the Great Lakes, providing waterborne transportation of dry bulk commodities such as iron ore, coal, limestone aggregates, and metallurgical limestone. Portfolio Management segment provides leasing, shipping, asset remarketing and asset management services. ASBESTOS UPDATE: IPALCO Still Faces Asbestos Lawsuits ----------------------------------------------------- IPALCO Enterprises, Inc., continues to face asbestos litigation, 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 may be subject to material litigation, regulatory proceedings, administrative proceedings, audits, settlements, investigations and claims from time to time which may require us to expend significant funds to address. There can be no assurance that the outcome of these matters will not have a material adverse effect on our business, results of operations, financial condition and cash flows. Asbestos and other regulated substances are, and may continue to be, present at our facilities. We have been named as a defendant in asbestos litigation, which at this time is not expected to be material to us. The presence of asbestos and other regulated substances at these facilities could result in additional litigation being brought against us, which could have a material adverse effect on our results of operations, financial condition and cash flows." IPALCO Enterprises, Inc. is a transmission system owner member of MISO (Midcontinent Independent System Operator, Inc.), a regional transmission organization that maintains functional control over the combined transmission systems of its members and manages one of the largest energy and ancillary services markets in the U.S. ASBESTOS UPDATE: Selective Insurance Has $23.2MM A&E Reserves ------------------------------------------------------------- Selective Insurance Group, Inc.'s asbestos claims constituted 29% of its $23.2 million net asbestos and environmental reserves, 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, "Our general liability, excess liability, and homeowners reserves include exposure to asbestos and environmental claims. Our exposure to environmental liability is primarily due to: (i) landfill exposures from policies written prior to the absolute pollution endorsement in the mid 1980s; and (ii) underground storage tank leaks mainly from New Jersey homeowners policies. These environmental claims stem primarily from insured exposures in municipal government, small non-manufacturing commercial risks, and homeowners policies. "The total carried net losses and loss expense reserves for these claims were $23.2 million as of December 31, 2015 and $23.0 million at December 31, 2014. The emergence of these claims occurs over an extended period and is highly unpredictable. For example, within our Standard Commercial Lines book, certain landfill sites are included on the National Priorities List ("NPL") by the United States Environmental Protection Agency ("USEPA"). Once on the NPL, the USEPA determines an appropriate remediation plan for these sites. A landfill can remain on the NPL for many years until final approval for the removal of the site is granted from the USEPA. The USEPA has the authority to re-open previously closed sites and return them to the NPL. We currently have reserves for nine customers related to six sites on the NPL. "Asbestos claims" are claims for bodily injury alleged to have occurred from exposure to asbestos-containing products. Our primary exposure arises from insuring various distributors of asbestos-containing products, such as electrical and plumbing materials. At December 31, 2015, asbestos claims constituted 29% of our $23.2 million net asbestos and environmental reserves, compared to 32% of our $23.0 million net asbestos and environmental reserves at December 31, 2014. "Environmental claims" are claims alleging bodily injury or property damage from pollution or other environmental contaminants other than asbestos. These claims include landfills and leaking underground storage tanks. Our landfill exposure lies largely in policies written for municipal governments, in their operation or maintenance of certain public lands. In addition to landfill exposures, in recent years, we have experienced a relatively consistent level of reported losses in the homeowners line of business related to claims for groundwater contamination from leaking underground heating oil storage tanks in New Jersey. In 2007, we instituted a fuel oil system exclusion on our New Jersey homeowners policies that limits our exposure to leaking underground storage tanks for certain customers. At that time, existing customers were offered a one-time opportunity to buy back oil tank liability coverage. The exclusion applies to all new homeowners policies in New Jersey. These customers are eligible for the buy-back option only if the tank meets specific eligibility criteria. "Our asbestos and environmental claims are handled in our centralized and specialized asbestos and environmental claim unit. Case reserves for these exposures are evaluated on a claim-by- claim basis. The ability to assess potential exposure often improves as a claim develops, including judicial determinations of coverage issues. As a result, reserves are adjusted accordingly. "Estimating IBNR reserves for asbestos and environmental claims is difficult because of the delayed and inconsistent reporting patterns associated with these claims. In addition, there are significant uncertainties associated with estimating critical assumptions, such as average clean-up costs, third-party costs, potentially responsible party shares, allocation of damages, litigation and coverage costs, and potential state and federal legislative changes. Normal historically-based actuarial approaches cannot be applied to asbestos and environmental claims because past loss history is not indicative of future potential loss emergence. In addition, while certain alternative models can be applied, such models can produce significantly different results with small changes in assumptions. As a result, we do not calculate an asbestos and environmental loss range. Historically, our asbestos and environmental claims have been significantly lower in volume, with less volatility and uncertainty than many of our competitors in the commercial lines industry. Prior to the introduction of the absolute pollution exclusion endorsement in the mid-1980's, we were primarily a personal lines carrier and therefore do not have broad exposure to asbestos and environmental claims. Additionally, we are the primary insurance carrier on the majority of these exposures, which provides more certainty in our reserve position compared to others in the insurance marketplace." Selective Insurance Group, Inc., is a holding company for insurance subsidiaries, which offers property and casualty insurance products and services. It operates in two segments: Insurance Operations, which sells property and casualty insurance products and services, and Investments, which invests the premiums collected by the Insurance Operations. It derives its income in three ways: underwriting income from Insurance Operations, net investment income from Investments, and net realized gains and losses on investment securities from the Investments segment. ASBESTOS UPDATE: Dayton Power Continues to Defend Asbestos Suits ---------------------------------------------------------------- DPL Inc. and The Dayton Power and Light Company continue to defend asbestos lawsuits, according to the Companies' Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2015. The Companies state, "We may be subject to material litigation, regulatory proceedings, administrative proceedings, audits, settlements, investigations and claims from time to time which may require us to expend significant funds to address. There can be no assurance that the outcome of these matters will not have a material adverse effect on our business, results of operations, financial condition and cash flows. Asbestos and other regulated substances are, and may continue to be, present at our facilities. We have been named as a defendant in asbestos litigation, which at this time is not expected to be material to us. The continued presence of asbestos and other regulated substances at these facilities could result in additional litigation being brought against us, which could have a material adverse effect on our results of operations, financial condition and cash flows." The Dayton Power and Light Company is a public utility incorporated in 1911 under the laws of Ohio. The Dayton, Ohio- based Company sells electricity to residential, commercial, industrial and governmental customers in a 6,000-square-mile area of West Central Ohio. DP&L is the principal subsidiary of DPL Inc. ASBESTOS UPDATE: OfficeMax Retains Asbestos Proceedings ------------------------------------------------------- OfficeMax retained asbestos-related proceedings, according to Office Depot, Inc.'s Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 26, 2015. On November 5, 2013, the Company completed its merger with OfficeMax Incorporated in an all-stock transaction. OfficeMax is named a defendant in a number of lawsuits, claims, and proceedings arising out of the operation of certain paper and forest products assets prior to those assets being sold in 2004, for which OfficeMax agreed to retain responsibility. Also, as part of that sale, OfficeMax agreed to retain responsibility for all pending or threatened proceedings and future proceedings alleging asbestos-related injuries arising out of the operation of the paper and forest products assets prior to the closing of the sale. The Company has made provision for losses with respect to the pending proceedings. Additionally, as of December 26, 2015, the Company has made provision for environmental liabilities with respect to certain sites where hazardous substances or other contaminants are or may be located. For these environmental liabilities, the Company's estimated range of reasonably possible losses was approximately $10 million to $25 million. The Company regularly monitors its estimated exposure to these liabilities. As additional information becomes known, these estimates may change, however, the Company does not believe any of these OfficeMax retained proceedings are material to the Company's business. Office Depot, Inc., including consolidated subsidiaries, is a global supplier of office products and services. The Company currently operates under the Office Depot(R) and OfficeMax(R) banners and utilizes proprietary Company and product brand names. In August 2014, the Company completed the sale of its 51% capital stock interest in Grupo OfficeMax S. de R.L. de C.V., the former OfficeMax, Incorporated business in Mexico, to its joint venture partner. ASBESTOS UPDATE: WR Berkley Has $33MM A&E Reserves at Dec. 31 ------------------------------------------------------------- W.R. Berkley Corporation's net reserves for losses and loss expenses relating to asbestos and environmental claims was $33 million 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's net reserves for losses and loss expenses relating to asbestos and environmental claims was $33 million at December 31, 2015 and $36 million at December 31, 2014. The Company's gross reserves for losses and loss expenses relating to asbestos and environmental claims were $51 million and $56 million at December 31, 2015 and 2014, respectively. Net incurred losses and loss expenses for reported asbestos and environmental claims decreased approximately $2 million in 2015 and increased by approximately $4 million and $5 million in 2014 and 2013, respectively. Net paid losses and loss expenses for asbestos and environmental claims were approximately $2 million in 2015, $3 million in 2014 and $3 million in 2013. The estimation of these liabilities is subject to significantly greater than normal variation and uncertainty because it is difficult to make an actuarial estimate of these liabilities due to the absence of a generally accepted actuarial methodology for these exposures and the potential effect of significant unresolved legal matters, including coverage issues, as well as the cost of litigating the legal issues. Additionally, the determination of ultimate damages and the final allocation of such damages to financially responsible parties are highly uncertain. W. R. Berkley Corporation (W. R. Berkley) is an insurance holding company. The Company operates in the three segments of the property casualty insurance business: Insurance-Domestic, Insurance-International and Reinsurance-Global. The Company's Insurance -Domestic operating units underwrite specialty risks within the excess and surplus lines market and on an admitted basis. The Company through its Insurance-International operating units writes business in almost 40 countries across the world, with branches or offices in 15 locations outside the United States, including the United Kingdom, Continental Europe, South America, Canada, Scandinavia, and Australia. The Company provides other insurance companies and self-insureds with assistance in managing their net risk through reinsurance on either a portfolio basis, through treaty reinsurance, or on an individual basis, through facultative reinsurance. ASBESTOS UPDATE: W. Va. Court Remands Asbestos Action ----------------------------------------------------- HarrisMartin Publishing reported that a West Virginia federal court has remanded an asbestos case, concluding that the removing defendant had asserted a federal defense to claims that "simply do not exist." In the April 29 order, the U.S. District Court for the Southern District of West Virginia wrote that since the plaintiffs had disclaimed any claims relating to the plaintiff's military service, General Electric had no grounds for removal. The plaintiffs brought the claims on behalf of Roy A. Siders, contending that he developed mesothelioma as a result of exposure to asbestos-containing products. ASBESTOS UPDATE: EPA Confirms Asbestos at Glory Days Site --------------------------------------------------------- Philip A. Vanno, writing for Utica Observer-Dispatch, reported that the U.S. Environmental Protection Agency has confirmed that the debris from the razed Glory Days building contains asbestos that the agency will assist in cleaning up. In an email sent to village Mayor Anthony Brindisi Tuesday, EPA Regional Administrator Judith Enck said that samples of the building materials that were collected by a third party prior to the demolition of the former hotel "were analyzed by (the) EPA and found to contain asbestos." Enck said in the email that finding makes the 248 N. Main St. site eligible for cleanup under its Superfund program. "EPA seeks to have polluters pay for cleanups and will contact the owner of the hotel property to determine if she can pay for or conduct the cleanup," Enck said in the email. "If the property owner is unable or unwilling to do so, EPA will conduct the cleanup." Part of the roof and third floor of the building collapsed in July 2014 and it was torn down in June 2015 to the tune of $50,000, which was billed to the property's owner -- Glory Ventures LLC of New Jersey. Brindisi said the estimated cost to haul the debris from the site -- which has been covered in tarps in order to contain any possible contamination -- is about $500,000. U.S. Senator Charles Schumer D-N.Y. visited the site in December and assisted in the matter by writing to the EPA on behalf of the village. "This means that the cleanup will be taken care of at no cost to us or the taxpayers," said Brindisi, who hopes the process will [start] in the coming months. "We couldn't be happier to hear this." The Glory Days building, formerly the General Herkimer Hotel, is where 64-year-old Kurt Myers holed up in March 2013 after killing four people and wounding two others in a shooting spree in Mohawk and Herkimer. Myers was killed March 14, 2013, during a shootout with police inside the vacant building, after a tactical unit raided the building. ASBESTOS UPDATE: Naval Ship Asbestos Removal to Cost EUR500K ------------------------------------------------------------ Sean O'Riordan, writing for Irish Examiner, reported that the taxpayer will have to foot the near EUR0.5m bill for removing potentially-lethal asbestos from Naval Service ships, but the final cost could be far higher. Civilian and naval personnel who worked on the asbestos- contaminated ships will have to be medically screened for the rest of their lives as asbestosis symptoms can take up to 40 years to manifest. The Department of Defence has confirmed that the total cost of cleaning up and disposing of asbestos on ships and workshops at the navy's headquarters at Haulbowline Island was EUR447,000. In 2000, navy chiefs ordered a full survey to be carried out on the fleet amid concerns asbestos could be onboard some of the ships which were built in the 1980s. advertisement At the time of construction the substance was considered the best and most cost-effective insulating material and was also fire- resistant. It was especially used to contain fires in engine rooms. A private company was hired to carry out the survey on the eight- strong fleet and gave it a clean bill of health. It therefore came as a major shock to the navy's top brass when asbestos starting turning up on some of the ships during routine maintenance. The taxpayer will have to foot this bill because the Carrigtwohill-based company which carried out the survey has since gone out of business. First LE Aoife was found to have asbestos in a gasket in its engine room and the substance was also detected in LE Eithne's forward pump room. However, far larger quantities of the asbestos were then found in the LE Ciara and LE Orla during routine maintenance. It took several months to remove the asbestos on both of those vessels and it had to be transported to Germany for safe disposal. In one case, a number of servicemen and civilian employees of the Department of Defence were unknowingly exposed to asbestos fibres for up to three weeks as the worked onboard without sufficient personal protection clothing. The Health & Safety Authority (HSA) decided late last year that it wouldn't prosecute the Naval Service for the asbestos incidents, primarily because it had been told by the private company that no asbestos was onboard the ships. The Naval Service had, in the meantime, introduced new protocols to mitigate against exposure to asbestos. It's unlikely that any of the material is present on the newer ships. PDforra, the organisation which represents enlisted men in the navy, said it wasn't happy with the HSA investigation. A spokesman for PDforra said up to 100 of its members could have been exposed to asbestos both onboard the ships and in workships where the asbestos present in some exhausts was being ground down. It's expected PDforra will shortly write to the HSA asking how many of its members were interviewed by the HSA investigating team, because the representative association believes it didn't speak to enough of them compared to the civilian workers who were also put at risk of exposure. It's believed that more than 50 civilian employees based in Haulbowline at the time could have been at risk. The PDforra spokesman added that his organisation will insist that all personnel get regular screening for asbestos symptoms, not just while they are employed by the Naval Service, but when they're retired. ASBESTOS UPDATE: Former Teacher's Death Linked to Asbestos ---------------------------------------------------------- Wakefield Express reported that former colleagues of a man who died from asbestos-related cancer are being urged to help with an investigation into how he came into contact with the harmful substance. David Clegg, a former teacher and factory worker from Knottingley, was diagnosed with mesothelioma just a week before he died in February, aged 58. His wife Susan, 59, has instructed industrial disease experts at law firm Irwin Mitchell to investigate how he may have come into contact with deadly asbestos dust which causes the illness. Irwin Mitchell said Mr Clegg worked at Pollards Bearings in Ferrybridge for eight weeks over the summer while he was at University in the 1970s. He also worked at Goole Grammar School between 1979 and 1980 and Featherstone High School from 1980 to 2000. Mum-of-two Mrs Clegg appealed for former colleagues to come forward. She said: "David and I were shocked and devastated by the diagnosis. We had no time to come to terms with it. We had made plans for our retirement together and now I am facing that future alone." Mr Clegg had described scraping out a fibrous material he believed was asbestos from the inside of furnaces at Pollards Bearings. His family also have concerns that exposure could have happened in classrooms at the two schools. Mr Clegg was also a keen writer who had work published by Stairwells in York before his death. Ian Toft, head of the industrial disease team at Irwin Mitchell's Leeds office, representing Mrs Clegg, said: "It's important that we now help Susan and her family get answers about his exposure to the deadly dust. "Mesothelioma is an aggressive and incurable cancer which causes so much distress for people like Susan and her family. "On this occasion, the disease took David's life within only one week of his diagnosis. "Sadly, many employers did not do enough to manage the risks of asbestos exposure, despite knowing how dangerous it is." ASBESTOS UPDATE: Husband's Clothes Exposed Woman to Asbestos ------------------------------------------------------------ North Devon Journal reported that a woman has died after she was exposed to asbestos while washing her former husband's clothes at her North Devon home. Yvonne Smalldon, 75, of Buckland Brewer, was diagnosed with mesothelioma after being exposed to the deadly dust. During an inquest hearing, a statement was read out from Mrs Smalldon's GP Dr Andrew Clarke, who said she had not been directly exposed to asbestos while working as an auxillery nurse. MORE: Drug death leads to investigation at North Devon GP surgery However, he said he believed she contracted the disease as a result of cleaning her former husband's clothes between 1960 and 1975, due to his involvement in the building trade. A verdict of asbestos-related death was made. ASBESTOS UPDATE: Contractors Target Homeless People --------------------------------------------------- Jennifer Dixon, writing for Detroit Free Press, reported that Bay City contractor Roy Bradley Sr. recruited workers at a homeless shelter and paid them cash to remove pipes wrapped in insulation made with asbestos. The workers had no training, no protective gear, no water to wet the crumbly asbestos and no leak-proof bags in which to dispose of it. Some did the work dressed in flip-flops, T-shirts and shorts. Bradley's crew included an ex-con, a drug addict, and at least six residents of the Good Samaritan Rescue Mission, located across a parking lot from the job site. At one point during the project -- the renovation of a church for a charter school -- a ceiling with asbestos rained down dust, thick as snow. At Bradley's federal trial on charges of improper asbestos abatement, assistant U.S. attorney Janet Parker told jurors that promising the men cash "was a convenient way of getting workers to do work that was very unpleasant, very difficult, very hazardous at times." "The workers were people who were very desperate for a job," she said. "They were desperate for any kind of money." Across the country, the Free Press found other examples of contractors like Bradley, who prey on vulnerable people to take material containing asbestos out of aging buildings: immigrants, ex-cons, day laborers, homeless people and teenagers. Experts say documenting the extent of the problem is difficult because workers may be afraid to complain or may not know who to call. In many cases, they don't speak English. Craig Gestring, an assistant U.S. attorney in Rochester, N.Y., said he has prosecuted several cases that involved workers who were "unskilled, unknowledgeable and are basically patsies and it's always done to save a buck." He said he believes it is a growing problem as more and more older buildings are demolished or renovated and contractors cut corners. The Michigan Occupational Safety and Health Administration and the U.S. Environmental Protection Agency both investigated Bradley. MIOSHA cited his company, Thunder Builders, for several violations -- none involving asbestos -- and levied $300 in penalties. The EPA got a four-count indictment against Bradley and a conviction on all charges after an eight-day jury trial. His sentence: five years. Bradley's estranged brother-in-law, Roy Richard Jr., said in an interview at his Bay City home that he was facing prison time for home invasion when he worked on Bradley's crew at the church and "just about everybody had some form of charge" against them, such as domestic violence or drunk driving, or had a drug or alcohol problem. Bradley "capitalized on everybody's misfortune," he said. Matthew Scherret also worked on the crew. Scherret, who didn't have a job or a home when he first arrived in Bay City in 2010 from Huron County, told a grand jury he was "living at the homeless shelter because I moved down here because my girlfriend was pregnant and he (Bradley) had an opening for a construction job. I went and got it." How did he learn about the job? "I got told from some people that was living there with me at the homeless shelter," Scherret said. He said workers typically started the day at a motorcycle shop that Bradley owned before they were dispatched to various work sites, including the church that became a building for Bay City Academy. In an interview at his home in Bad Axe in Michigan's Thumb, Scherret said Bradley paid him cash, $50 a day, and he usually worked seven days a week. He said he wore no protective gear when cutting pipes and the surrounding insulation went into regular garbage bags. Scherett said he returned to his childhood home after getting into a fight with another Bradley crew member. He's now a farmworker. Workers exposed From court and OSHA records and a conversation with a federal prosecutor, the Free Press found other examples of contractors targeting vulnerable workers: An owner of a warehouse in Rochester, N.Y., used a 16-year-old, his mother and several other people who had done odd jobs for him to remove asbestos from an industrial dumpster outside his building. He paid them cash and did not provide proper masks and protective suits. Anastasios Kolokouris of Avon, N.Y., pleaded guilty to one count of violating the federal Clean Air Act and faces up to five years in prison and a $250,000 fine when sentenced in June. A contractor exposed 50 to 60 workers to asbestos while scrapping a former hospital complex in Rochester, N.Y. "He basically hired a bunch of workers who didn't speak English or were ex-convicts or had other issues. They're not going to call the cops first off," said Gestring, the assistant U.S. attorney who prosecuted the case in federal court. The contractor, Keith Gordon-Smith, was sentenced in 2011 to 72 months in prison and ordered to pay $302,887 in restitution. Gestring said asbestos-containing insulation was "coming down like snow" and the work went on for months. The workers had no protective gear. A construction company exposed at least eight workers, many of them brought into the U.S. on temporary visas, to asbestos when they removed floor tiles and insulation at a former elementary school in Okawville, Ill. Federal OSHA investigated the case and said some of the workers spoke only Spanish, were not trained to work with asbestos and did not have basic equipment such as hard hats, eye wear and protective clothing. In 2015, OSHA proposed penalties of $1.8 million against Joseph Kehrer and Kehrer Brothers Construction. The case remains open. Blackstone Business Enterprises, a metal fabricator, exposed four laborers hired through an employment agency in 2008 to remove steam pipes that contained asbestos insulation at at its plant in Jamestown, N.Y. Federal OSHA investigated and got $205,000 in penalties. Company president Daniel Black was sentenced to 12 months in prison after pleading guilty to filing a false tax return and one asbestos charge. Dan Somenauer, business manager of Taylor-based Abatement Workers Regional Local 207, which represents asbestos-abatement workers in 20 states east of the Mississippi, said some of his members told him that before joining the union they worked for companies that paid substandard wages and hired homeless workers, undocumented immigrants and college students. Acting on a tip from union members, Somenauer said officials of his local visited a job site in Detroit where they suspected undocumented immigrants were removing asbestos. They reportedly had been brought in by a company based in the South, were housed in a large home in Detroit, and shuttled to their work site by a van. The union tried to persuade the owner of the property to stop using the workers, but he refused. The incident happened a little more than two years ago. Somenauer said he didn't contact authorities because he wasn't 100% sure they were illegal immigrants. He said the union checks the credentials of anyone who wants to join and often finds workers who were "hired off the streets," then given cursory training. His union requires its members to get proper federally approved training and certification from the state where they work. He estimates 40% of abatement projects are done with improperly trained and equipped workers. Following a tip The EPA was tipped to the situation at the church in Bay City in 2011 and launched a criminal investigation of Bradley that culminated in his 2014 trial in U.S. District Court in Bay City. One of Bradley's employees, Jason Walbecq, told jurors he wore his "normal clothes" and a dust mask during asbestos removal. He should have had a respirator and worn disposable coveralls, a hood and shoe covers. He and another member of the crew, Peanut, removed pipes from the building and sawed them into smaller pieces without wetting the insulation. Walbecq said he was paid $350 a week in cash, and worked 10 or 11-hour days. He said another worker, John John, ripped up floor tiles and didn't wet them either. Scherret said he also scraped up floor tiles, and some of them shattered. They were tossed into regular garbage bags or a Dumpster. "I always had dust in my nose," Walbecq testified. He also acknowledged that: "I don't know nothing about asbestos." Both the pipe insulation and some floor tiles that broke apart contained asbestos fibers. Richard said Bradley told him to remove a large ceiling. Using a hammer, "I started beating it. It come down like snow. It just come down so thick. It was brutal." He said workers just swept or shoveled up the dust. He said Bradley assured him that the ceiling had been tested and came back negative for asbestos. But two days later, he said Bradley told him not to come to work the next day because "MIOSHA wants to know who tore that ceiling out because it was asbestos." "I should have stood up and said, 'This is not happening,'" Richard said. But he said he needed the money. Richard, who spent 29 months in prison, said he has had eye problems since his work on the school. Cancer from the asbestos, he said, "it's just a matter of time." At Bradley's sentencing, his lawyer, Mark Satawa, asked for a sentence of no more than 24 months. In March 2015, U.S. District Judge Thomas Ludington gave him 60 months. He was also ordered to pay restitution of $14,600 to cover medical testing for four of his victims. Satawa was hired as Bradley's lawyer after his conviction. In early April, he asked Ludington to hold a hearing on his claims that Bradley's trial attorney, Elias Escobedo Jr., provided an ineffective defense, "without calling a single witness or introducing a single exhibit," according to a court filing. "I don't believe all of the important and pertinent facts came out during my client's trial," Satawa said in an interview. "Roy's lawyer did not call certain witnesses and did not present the defense that Roy wanted presented." Escobedo declined comment, citing attorney-client privilege. MIOSHA told the Free Press it got no employee complaints or referrals from outside agencies about asbestos abatement at the time of Bradley's project, and when its inspectors visited the site in 2011 they did not observe asbestos abatement activity. But, according to court testimony, MIOSHA inspector Steven Flannery collected a sample of pipe insulation during his inspection and fellow inspector Cindy Zastrow submitted it for analysis. MIOSHA's lab found it contained asbestos. Zastrow testified at Bradley's trial that during her inspection she saw workers who did not have proper respiratory protection "performing manual demolition and renovation using hand tools which disturbs ... anything from lead and cadmium-containing paint to asbestos. So there was definite disturbance of different building materials that was a concern to me." She said she asked Bradley during the inspection whether his workers had received asbestos-awareness training and he said they had not. But she acknowledged that she did not recommend that management in Lansing shut down the project. She testified that she was aware of just one job site that had been ordered to close in 20-30 years. "It pretty much takes an act of God," Zastrow testified. "You have to prove that there is immediate danger to life and health ... and then the call has to be made to Lansing. The legal department within MIOSHA gets involved and they have to go before a judge ..." Following Flannery and Zastrow's inspections, MIOSHA supervisors cited Bradley for minor violations, collecting $300 in fines. MIOSHA said it could not address specifics of the case because it no longer has the records. Zastrow and Flannery have left the agency. MIOSHA also did not cite Bradley's company for another violation: failing to give the agency 10 days notice before starting asbestos abatement, which could have cost him up to $10,000. Celeste Monforton, a former federal OSHA official, said MIOSHA had red flags. It had an asbestos sample and a contractor who hadn't notified the agency before abatement. "That tells you that you have a rogue operation and you should swoop in and hold the contractor accountable and make sure the workers and the community are protected." Dan Streeter, executive director of Rescue Ministries of Mid- Michigan, which runs the Good Samaritan Rescue Mission, said "it's a shame" that some of the residents "have been preyed upon. ... You're preying upon people who are in a vulnerable spot." Streeter said he was not aware that Bradley had hired shelter residents. He said it tries to place residents with reputable contractors who do work properly. But the shelter couldn't stop Bradley from offering jobs to men who needed the cash. David Uhlmann, a law professor at the University of Michigan who spent 17 years at the U.S. Justice Department, seven as chief of the environmental crimes section, said: "Preying on homeless people by exposing them to asbestos is unconscionable and more than justifies a five-year prison term. A $300 fine, on the other hand, is absurdly inadequate." ASBESTOS UPDATE: Michigan Didn't Issue Fines in Violations ---------------------------------------------------------- The Associated Press reported that Michigan's state worker safety agency didn't issue fines in the majority of asbestos abatement cases where it found serious violations during the past seven years, and not one company was fined the maximum $7,000, a newspaper reports. Fines weren't issued in two-thirds of the more than 4,000 violations that the Michigan Occupational Safety and Health Administration closed between February 2009 and February 2016, the Detroit Free Press reported. The newspaper also found that 96 percent of safety violations resulted in penalties of $1,000 or less. MIOSHA spokeswoman Tanya Baker took issue with the report that two-thirds of the violations weren't fined, saying the newspaper looked at each violation individually. She said the agency grouped related violations and assigned a penalty to just one of them. She also said the penalties are meant to correct violations and deter others. John Newquist, a former top official in the federal Occupational Safety and Health Administration's regional office in Chicago, which oversees Michigan, said he "never grouped asbestos violations." Celeste Monforton, a former OSHA policy analyst, said if MIOSHA wants "to use penalties as a deterrent effect, you wouldn't be grouping them." Both said each violation should be treated separately. Monforton, who spent 12 years at OSHA and at the Mine Safety and Health Administration, said MIOSHA's penalties overall are so minimal that they don't serve as an effective deterrent. He said weak enforcement encourages "fly-by-night operations who risk people's health because they may get away with it." Monforton, now a lecturer at the School of Public Health at George Washington University, also took issue with MIOSHA's assertion that it uses penalty reductions to encourage employers to remedy hazards quickly, noting that with asbestos, "exposure has already happened and there's no way to abate that." Newquist said states that choose to oversee worker safety rather than have the federal government do it tend to go easier on employers. MIOSHA Director Martha Yoder, who recently retired, told the newspaper last year that her asbestos inspectors could not monitor all abatement projects in Michigan. The agency has four inspectors this year, down from five in fiscal 2015. "Our job is to do spot-checking," Yoder said. Yoder said MIOSHA sees quicker abatement "as more advantageous than collecting a larger penalty." ASBESTOS UPDATE: Widow Starts Proceedings Over Asbestos ------------------------------------------------------- David Sedgwick, writing for News Guardian, reported that a widow is looking for answers after her husband developed terminal cancer mesothelioma from exposure to asbestos. Alan Cook, a former laboratory technician from Dudley, was diagnosed with the disease in March 2015 but died on September 26, 2015, aged 68. Before his death he instructed lawyers at Irwin Mitchell to investigate how he was exposed to the deadly material. Since his death, his widow, Jennifer, has continued to fight for answers, issuing formal legal proceedings at the High Court against Tioxide, the company where Alan believed he was exposed to asbestos dust and fibres. He worked at the company's Billingham site between 1965 and 1970. Before his death he said that he and his colleagues would use two types of asbestos rope during the experiments. Jennifer is now appealing for Alan's former colleagues from Tioxide to come forward with crucial information on the presence of asbestos at the company's Billingham site and the safety measures, if any, implemented. Jennifer said: "Alan's diagnosis was a terrible shock to us all and it was terrible to see him in so much distress and losing so much weight." "We are still struggling to come to terms with his death and while we know nothing can ever bring him back we feel we need to get some answers for Alan and ensure those responsible for exposing him to this dreadful substance are held to account for failing to protect him and those he worked alongside. "He told me he was never warned of the dangers of asbestos while working for Tioxide or provided with any sort of protection from the asbestos he handled on a daily basis." Alan told his legal team at Irwin Mitchell that the ropes would release dust and fibres into the atmosphere and that his work clothes were often covered in asbestos dust by the end of the day. He also recalled the pipework at the facility being lagged with asbestos and repair work taking place while he was present, which led to further dust and fibres being released into the working atmosphere. Roger Maddocks, a Partner and expert industrial disease lawyer at Irwin Mitchell, said: "Asbestos dust and fibres can be extremely dangerous when inhaled or ingested and can cause a number of serious and sometimes fatal diseases, but all too often we see instances where employees were not given the correct information or protective equipment to prevent their exposure to the deadly material. "Alan's diagnosis had a huge impact on his life and he wanted to know why he was exposed to asbestos dust and fibres without any warnings about the risks the material posed. "His family are still determined to understand how he was exposed and we have now issued High Court proceedings in a bid to get them the answers they deserve about Alan's death. "We would like to hear from anyone who worked at Tioxide in the 1960s and 70s as they may have crucial information that will help Alan's his family understand what happened and begin to provide them with some closure concerning his death." ASBESTOS UPDATE: Former William Press Worker Dies of Mesothelioma ----------------------------------------------------------------- The Bucks Herald reported that a devastated family is appealing to former workers from William Press & Sons Ltd in the Aylesbury area to help them find out where their father was exposed to deadly asbestos. John Nicklen died from aggressive mesothelioma in December 2013 at the age of 73 after being exposed to asbestos dust and fibres. Since John's death his daughter and son, Daniela Taylor and Tristan Nicklen, have taken up their father's fight for justice. His family now need the help of former William Press & Sons Ltd employees who may have worked with John or know about the use of asbestos products by the public works contractor. During the 1970s the firm was involved in converting the UK's housing stock from town gas to natural gas. Tristan said: "Dad was employed by William Press between 1965 and 1966, and again between 1971 and 1973. He was involved in laying pipes in the countryside in and around Aylesbury. The pipes were made with asbestos and dad had to cut them to size to be laid. There was no doubt in his mind that the dust and fibres from cutting the asbestos pipes caused his lung cancer." ASBESTOS UPDATE: American Optical Hit with $16-Mil. Verdict ----------------------------------------------------------- Eric Needs, writing for Legal Reader, reported that a California jury rules that American Optical Corporation must pay a former machinist who developed mesothelioma $16 million, along with possible punitive damages after finding the manufacturer of the respiratory equipment knew its product could not prevent dangerous exposure to asbestos and hid that fact from purchasers. The 12-member jury reached a verdict in favor of the plaintiff after one day of deliberating, determining that American Optical acted with "malice, fraud or oppression" in conduct that was a substantial factor for the 62-year-old plaintiff, Louis William Tyler. The award includes past and future economic damages and medical expenses for Tyler and his wife Becky. It will also cover compensation for his pain, loss of enjoyment of life and mental suffering, and will provide her with past and future loss of love, companionship, comfort, care, assistance, protection, moral support and sexual relations. The six men and six women of the jury are scheduled to begin deliberating of possible punitive damages. After Tyler was diagnosed with mesolthelioma last year, he sued American Optical for negligence, strict product liability, negligent failure to warn, concealment of intention misrepresentation, among other causes of action. The jury found through a 32-question verdict form that the American Optical Corporation respirator provided to Tyler at the foundry where he worked did not provide the protection an ordinary consumer would expect and that the company concealed the defects. During closing arguments on Thursday, Jospeh Satterly of Kazan McClain Satterly & Greenwood said his client was enduring a "slow, painful death." The defective respirator made by American Optical Corporation that was used by Tyler while working with materials containing asbestos as a machinist at a foundry in Southern California is responsible for substantial blame for that death sentence, said Satterly. "This is a very sad and very difficult story," said Sharla J. Frost of Tucker Ellis LLP. "This is the story of William Tyler. As a 19-year-old, he went into this workplace, Foundry Service & Supplies, and at that point the last chapter of his life was written." Pictures of the machine shop from the early 1970s were put on display to the jury, which shows Tyler and other employees at work, some with and without respirators, with no one wearing protective clothing. A close-up photo shows an open soda can in the work area. Frost said the owners of the foundry did not adequately control dust in their shop and failed to measure asbestos levels. The attorney added that much more could have been done to make the shop a safer place for workers, adding that a respirator should be the "last level of defense." Satterly blasted American Optical for trying to shift the blame. "They're charging Foundry, this little 2,000-square-foot operation, as being negligent because they didn't have a respirator program and they didn't have the proper dust collection systems and they didn't do certain things," Satterly said. "Foundry Service & Supplies wasn't doing anything worse than any other entity in the '70s and '80s." Satterly said there is no evidence that Tyler was not wearing his work-issued respirator, which was used by workers to protect them from asbestos. The product from American Optical showed signs of "leakage" that allowed the deadly microscopic fibers to get inside the worker's lungs. "What they sold for many, many years through this product was a false sense of security," said Satterly. "They sold a product to make people think they'd be ok." The model of respirator was neither designed nor sold for asbestos protection, said Frost. She reminded jurors that Foundry was not using American Optical products for the first few years on the job, but used a face mask manufactured by 3M Co. Company documents showed that American Optical was aware its customers were using the R2090 in asbestos worksites, and no significant efforts were made to stop that, said Satterly. When jurors were asked who was mostly responsible for Tyler devloping mesothelioma, they found American Optical was 70 percent to blame, with 20 percent to Foundry Service & Supplies, and 5 percent culpability to both Tyler himself and 3M. The damages totaling $15.96 million imposed American Optical reflects the 70 percent proportion of the overall damages collected. The Foundry and 3M were not defendants in the trial. The California jury slammed the American Optical Corporation with an additional $10 million in punitive damages, adding to the $22 million in compensatory damages awarded to Tyler and his wife. ASBESTOS UPDATE: NJ Woman Claims Exposure Led to Husband's Death ---------------------------------------------------------------- Molly English-Bowers, writing for Madison-St. Clair Record, reported that a man's widow who is the administrator of his estate is suing over allegations that his death was tied to asbestos exposure. Joanne Walsh, individually and as special administrator of the estate of Charles Walsh, filed the suit April 20 in Madison County Circuit Court against 3M Co., alleging negligence and other counts. From 1964 to 1996, the deceased was allegedly exposed to asbestos- containing products while on the job. Those products allegedly include pumps, valves, gaskets, HVAC equipment and pipes, among others. On Dec. 26, 2012, the deceased was diagnosed with lung cancer, wrongfully caused by asbestos exposure, according to the complaint, and he died July 5, 2013. The suit says his death is attributable to the alleged negligence of the defendant in the following ways, among others: it included asbestos in its products, it failed to provide adequate warnings to those working with the products, and it failed to test the products to determine any hazards from working with them. As a result, according to the complaint, the deceased was exposed to, inhaled, ingested or otherwise absorbed asbestos fibers. Before he died, he paid large sums of money for medical care, experienced great physical pain, and could not perform his normal course of employment so his family was deprived of his monetary support, the suit says. The plaintiff seeks damages for the loss of consortium of her husband. She seeks judgment of at least $50,000 for each count plus other relief the court deems appropriate. She is represented by Eric D. Jackstadt and Napoli Shkolnik of Napoli Shkolnik PLLC in Edwardsville. Madison County Circuit Court case number 16-L-546 ASBESTOS UPDATE: Justices Deny Rehearing Statute of Repose Case --------------------------------------------------------------- Scott Roberts, writing for The Indiana Lawyer, reported that the Indiana Supreme Court issued an order declining to rehear a case that ended the statute of repose on prolonged asbestos cases by a 3-2 vote Thursday, with the same justices who voted to end the statute of repose voting against the rehearing. The court combined three appeals in its original ruling, which said section 2 of the Indiana Product Liability Act contained a constitutionally impermissible distinction between asbestos plaintiffs who mined and sold raw asbestos and asbestos plaintiffs who were injured by defendants not in that category. Justices Brent Dickson, Steven David and Robert Rucker voted against the rehearing, just as they voted to amend IPLA and strike section 2. David wrote a one-page opinion affirming the decision in which Dickson and Rucker concurred. Justice Mark Massa wrote a six-page decision dissenting from the denial of rehearing, in which Chief Justice Loretta Rush concurred. In his dissent, Massa wrote that because the Indiana attorney general was not notified in the case, it should be remanded to the trial court so he can participate. He cited Sendak v. Denbro, a case from 1976 in which the attorney general was not served in a case challenging the constitutionality of a state statute. The court there remanded the case to the trial court because serving the attorney general helps the will of the people be heard in decisions that threaten statutes, and ruled all cases that threaten statutes should have the attorney general notified. Massa also wrote on the merits of the case, which hinged on stare decisis and whether the Supreme Court had covered the same ground in Allied Signal v Ott from 2003, "although the majority went to such great pains to say it was not ignoring precedent, in so doing, it has given us a new framework that will prove difficult to apply." Later he wrote, "If distinguishing between asbestos plaintiffs injured by defendants who both mined and sold raw asbestos and asbestos plaintiffs who were injured by defendants outside that category is constitutionally impermissible, many other classifications the legislature has deemed appropriate can and will be challenged. The costs of massaging classifications for a desired result will soon multiply." David replied to Massa's opinion by writing the attorney general did participate in the decision by briefing the matter in an amicus brief and had not asked for rehearing. David cited M&M Investment Group LLC v Ahlemeyer Farms Inc. 994N.E.2d1108, 1112 (Ind. 2013) in which the Supreme Court upheld a decision that was challenged because the attorney general was not served, but did write an amicus brief. "We can address the constitutional issue as a matter of law," David said. ASBESTOS UPDATE: WVU Coliseum Closed Due to Potential Asbestos -------------------------------------------------------------- Ryan Quinn, writing for Charleston Gazette-Mail, reported that the West Virginia University Coliseum in Morgantown was closed after workers renovating the structure found some material that may contain asbestos. In university news releases, John Principe, WVU's director of environmental health and safety, said the Coliseum was closed immediately "so that we can assess the situation properly." He said contractors and athletic department staff were in the building at the time. Principe and several of his subordinates didn't return the Gazette-Mail's requests for comment. WVU spokesman John Bolt said the concourse area ringing the Coliseum arena has been undergoing renovations since shortly after the final men's basketball home game March 2, with the hope the concourse would be ready for the start of the next basketball season this fall. A March WVU news release said the arena itself would be unaffected during this renovation phase. Bolt said he didn't immediately know the exact kind of material that may contain asbestos. "I'm still trying to get confirmation on how widespread it might be," he said. He said Principe called him about the issue between 12:30 p.m. and 1 p.m. Friday, though he didn't know who initially discovered the material. "The suspect asbestos containing material discovered was encapsulated in an inaccessible area above ceilings in entrances to the restrooms ringing the concourse, and did not pose a health hazard to any individuals within the building," Principe stated in a news release. He stated it was only exposed by the renovation work. Asbestos is a generic term for six naturally occurring fibrous materials that were commonly used in buildings because they are resistant to heat and most chemicals. Breathing asbestos can cause asbestosis, lung cancer and mesothelioma, an incurable and fatal form of cancer that develops in the chest cavity and encases and grows into the lungs. Typically, asbestos in old buildings in the United States -- the Coliseum is 46 years old -- is left alone unless it begins to deteriorate into fibers that can be inhaled. Bolt said that a Pittsburgh lab is testing the material, and that WVU hopes to have results from the test by the end of Saturday. WVU has planned to hold multiple graduation ceremonies for different constituent colleges in the Coliseum starting May 13. When asked whether any asbestos-containing material confirmation would mean cancellation of these events, Bolt said "that'll be a question that will have to be addressed when we find out the answer to whether it is or is not." During the 1999-2000 basketball season, WVU closed the Coliseum when federal regulators demanded a massive cleanup of asbestos in the building's ceiling. Asbestos covered the inside of the building's huge dome. A WVU employee had complained to the EPA that the university had ignored asbestos problems in the Coliseum. The WVU men's basketball team played its "home" games in Charleston, Wheeling and Fairmont during the 1999-2000 season. The controversy contributed to a WVU employee class-action lawsuit against the university that resulted in a $3 million settlement meant to provide university employees lung tests and other exams to detect the early signs of asbestos-related lung diseases. WVU agreed to the deal to resolve the five-year-old lawsuit by employees who alleged the university wrongly exposed them to dangerous levels of asbestos in campus buildings. Bolt said previous asbestos abatement was to a different part of the Coliseum. The work currently ongoing -- estimated to cost $15 million -- at the Coliseum is part of Phase I of planned renovations to the structure. "Phase I will entail more than doubling of restrooms, the near doubling of points of sale for concessions, the widening of the concourse for ingress and egress, exterior access to the Mountaineer Ticket Office and Team Store, new concession options such as a 'Mountaineer Cafe,' 'Country Roads Pit Stop,' 'Almost Heaven Bistro and Wild & Wonderful Canteen,' improved graphics, and, eventually, four times more [seating for disabled individuals] than is currently offered during the second phase of Coliseum renovations tentatively slated for 2017," WVU stated in a March news release. ASBESTOS UPDATE: Little Hulton Man Dies of Mesothelioma ------------------------------------------------------- Tom Rodgers, writing for Salford News, reported that the family of an electrician from Little Hulton who died from terminal cancer is appealing for his work colleagues to come forward and help with a probe into possible asbestos exposure. Barry Walker was 71 when he passed away in July 2015. He was diagnosed with mesothelioma -- a cancer of the body's cell linings -- just a few months before his death. The condition is usually associated with prolonged exposure to asbestos dust or fibres. His children Jacquelyn Whale and Steven Walker launched a case with industrial disease lawyers at Irwin Mitchell's Manchester office to investigate whether steps could have been taken to prevent his death. Solicitors are investigating whether their late father was exposed to asbestos while employed with CWS Engineering between 1965 and 1967. The law firm are also searching for former colleagues to gather evidence on their working conditions. Katrina London, an expert industrial disease lawyer at Irwin Mitchell, said: "Mesothelioma is an aggressive form of cancer which is nearly always caused by asbestos exposure. "The dangers of asbestos have been known for some time now and protective measures should always be taken when workers come into contact with this hazardous material. "We are asking for his former colleagues to come forward to provide information about the working conditions and asbestos at CWS Engineering. We are looking to speak to anyone who worked there between 1965 and 1967, particularly anyone who remembers asbestos being present." Barry's daughter, Jacquelyn, said: "My dad's death from this horrible illness was extremely difficult for him and our family. "It is extremely upsetting to hear that his death could have been prevented. I can only hope that my dad's former work mates come forward with any information they have". ASBESTOS UPDATE: New York Judge Trims $25-Mil. Award ---------------------------------------------------- Karen Freifeld, writing for Reuters, reported that a New York judge refused to set aside a verdict holding the manufacturer of a brake grinding machine liable for a mechanic's exposure to asbestos, though she cut the jury's $25 million award by more than half. In a decision, Justice Cynthia Kern of state Supreme Court in Manhattan rejected Hennessy Industries Inc's argument that it had no legal duty to warn mechanic Walter Miller, now 64, about the dangers of asbestos in auto brakes. Hennessy owns the Ammco brand that manufactured grinders, but did not make the brakes themselves. ASBESTOS UPDATE: Baton Rogue Man Arrested for Filing False Docs --------------------------------------------------------------- The Advocate reported that a Baton Rouge man was arrested and is accused of filing a false asbestos supervisor training certificate with the state Department of Environmental Quality. Randy Gabriel Dobard, 49, was arrested by the East Baton Rouge Parish Sheriff's Office and the DEQ Criminal Investigation Division after he filed the certificate on April 18. Investigation by DEQ showed that the document had a false certification number, false signatures and false training dates, according to a press release from DEQ. The trainer listed on the document, Southern Center for Environmental Justice, Inc., verified that no asbestos supervisor training class had been taught on the days listed on the document sent in by Dobard. "The training provided by these contractors, and accredited by DEQ, is designed to protect both the workers and the public from asbestos exposures during renovations and structure demolitions," Chuck Carr Brown, DEQ secretary, said. "Submitting false training credentials to an agency tasked with protecting human health and the environment compromises the integrity of the program." ASBESTOS UPDATE: Nearly 100 Cos. in Bankruptcy Due to Litigation ---------------------------------------------------------------- Thomas LoSavio, Esq. -- tlosavio@lowball.com -- at Low, Ball & Lynch, in an article for JD Supra, wrote that when asbestos litigation became extremely costly to defend, to settle and to pay judgments, companies began filing for protection under the Bankruptcy laws. In the three decades since Johns Manville and UNR Industries filed the first asbestos bankruptcy cases, nearly 100 companies have filed for bankruptcy protection due, in part, to asbestos litigation. The vast majority of these companies utilized section 524(g) to reorganize and establish a bankruptcy trust to pay current and future asbestos claimants and channel claims away from the reorganized company. Today, many of these companies have emerged from the 524(g) bankruptcy process, leaving in their place dozens of trusts funded with tens of billions in assets to pay claims. Since 2006 more than 30 trusts have been created through bankruptcy reorganization, funding the trust system with an additional $20 billion in assets. From 2006 through 2012 the entire trust system has paid out over $15 billion to asbestos claimants, with remaining assets as of year-end totaling over $18 billion.[2] In addition, there is approximately $11 to $12 billion in proposed funding from bankruptcies still pending confirmation. The asbestos trusts operate in parallel with the traditional tort system and offer only rudimentary reports on the claims they receive and pay. As a result, plaintiffs' attorneys are sometimes able to hide the fact that a single individual is making multiple claims, citing different and contradictory exposure facts, against multiple trusts and solvent companies. This "double dipping" exposes innocent businesses to abusive lawsuits and draws down the trusts' funds intended for other claimants. The Furthering Asbestos Claim Transparency (FACT) Act of 2015 was introduced in the U.S. House of Representatives by Rep. Blake Farenthold of Texas on January 26, 2015 and assigned to the House Judiciary Committee. A hearing on the FACT Act was held on February 4, 2015 by the United States House Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law. On May 14, the bill was voted out of the Judiciary Committee, 19-9, and was sent to be voted on by the full House of Representatives. In December 2015, the FACT Act was added onto another U.S. House bill, H.R. 1927 (the Fairness in Class Action Litigation Act), and became Section 3 of H.R. 1927. The bill was renamed the "Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2016." On January 8, 2016, the U.S. House of Representatives passed H.R. 1927 by a vote of 211 to 188. The vote was largely along party lines, with no Democrats voting for it and sixteen Republicans voting against it. As of January 11, 2016, the Bill had been received in the Senate and referred to the Committee on the Judiciary. According to a Statement of Administration Policy, issued by the Office of Management and Budget on January 6, 2016, "The [Obama] Administration strongly opposes House passage of H.R. 1927 because it would impair the enforcement of important federal laws, constrain access to the courts, and needlessly threaten the privacy of asbestos victims." It continues, "if the President were presented with H.R.1927, his senior advisers would recommend that he veto the bill." Similar versions of the FACT Act legislation have been passed the House of Representatives in previous Republican-controlled sessions, including in 2013. In 2013, although the bill passed the House, it was never voted on by the Senate. In addition, several states have proposed legislation or changes to court rules that would mandate greater transparency for trust claims. In 2012, Ohio became the first state in the nation to enact a law that requires plaintiffs to file and disclose trust claims before proceeding to trial. Arizona, Oklahoma, Tennessee, Texas, Utah, West Virginia, and Wisconsin have enacted similar laws. The American Legislative Exchange Council ("ALEC") has a Model Asbestos Claims Transparency Act which can be found here: https://www.alec.org/model-policy/asbestos-claims-transparency- act/. In California, trial courts in some jurisdictions require plaintiffs to disclose bankruptcy trust claims during discovery and some do not. Plaintiff attorneys are able to game the system by filing trust claim "shells" with little or no substantive exposure information. Another way plaintiffs avoid double-dipping is by filing bankruptcy trust claims after the lawsuit resolves. This deprives the court of jurisdiction over defense discovery meant to uncover offsets due to trust payments. California Assemblyman Ken Cooley (D-Rancho Cordova) introduced Assembly Bill No. 597, the Asbestos Tort Claim Trust Transparency Act, which if passed would have required asbestos plaintiffs to disclose all asbestos bankruptcy trust claim documents in asbestos tort actions. These mandated disclosures would include "any communications between the plaintiff and an asbestos trust and all proof of claims forms and supplementary or supporting materials submitted to or required by an asbestos trust." Plaintiffs would be required to submit a sworn statement identifying the status of each claim, including all monies requested and received. Under the proposed legislation requiring such unilateral disclosures, it would have been no longer necessary for defendants to seek discovery of relevant materials regarding any claim made by plaintiffs to an asbestos trust. Any materials disclosed by plaintiffs would be potentially admissible evidence to prove alternate causation or to apportion fault for plaintiffs' injuries. However, after a major lobbying effort by the plaintiffs' asbestos bar, the legislation was withdrawn without a vote. ASBESTOS UPDATE: Sunderland Father Dies of Mesothelioma ------------------------------------------------------- Michael Muncaster, writing for Chronicle Live, reported that the heartbroken widow of a joiner who died after being exposed to deadly asbestos dust is appealing for help to trace his former colleagues. David Givens died from mesothelioma -- a terminal asbestos-related cancer -- in August last year, aged 63. His wife, Pamela, 58, and their children Kelly, Christopher, Mark and David are calling for help to find out how came to be diagnosed with the disease. Mr Givens, from Sunderland , was a joiner and worked as a shop fitter from 1980 until his death. Mrs Givens said: "Nothing is going to bring David back to us but asbestos has claimed two members of our family now and we just want answers." Mesothelioma is a type of cancer that most often starts in the covering of the lungs but can also start in the abdomen and it is commonly associated with exposure to asbestos. According to Cancer Research there were here were 2,667 new cases of mesothelioma diagnosed in the UK in 2013 and is most common among males aged 60 and over. The Givens family instructed Irwin Mitchell to investigate how Mr Givens came to be diagnosed with the asbestos-related cancer. Roger Maddocks, an expert asbestos-related disease lawyer at Irwin Mitchell, said: "Mesothelioma is a terrible terminal disease which ravages the sufferer in a short space of time. "David had just three years left with his family after his diagnosis and they are still coming to terms with their loss. "What they want now is to find out how David came into contact with asbestos. "Any information could prove vital in helping David's family to get the answers they deserve." ASBESTOS UPDATE: Missouri Court Bars Illinois Claims ---------------------------------------------------- In Wolfe, et al. v. Armstrong Int'l, Inc., et al., Cause No. 1522- CC11026 (Div. No. 4), the Circuit Court for the City of St. Louis, 22nd Circuit, entered an April 11, 2016, Order dismissing certain defendants from an asbestos lawsuit on the basis that the claims made against those defendants were barred by the Illinois wrongful death statute of limitations (740 ILCS 180.2), notwithstanding the fact that the plaintiffs had purportedly brought the action in Missouri court under the Missouri wrongful death statute (Section 537.080 RSMo). The plaintiffs' petition stated that the decedent had suffered his injury in Illinois, where he was a resident, and where all the plaintiffs reside. The claim was brought in Missouri court under the Missouri wrongful death statute, which provides for a three- year statute of limitations. Conversely, the Illinois wrongful death statute of limitations provides a two-year limit (which had expired in relation to the plaintiffs' claims). Certain defendants then moved to dismiss the plaintiffs' claims on the basis that the claims were properly considered to be made under the Illinois wrongful death statute and that, pursuant to the Missouri borrowing statute, Section 516.190 RSMo. (providing "Whenever a cause of action has been fully barred by the laws of the state, territory or country in which it originated, said bar shall be a complete defense [in Missouri courts]"), the two-year Illinois wrongful death statute applied to preclude the plaintiffs' claims. In response, plaintiffs contended that Section 516.300 RSMo. (providing "The provisions of sections 516.010 to 516.370 [including Section 516.190 RSMo., i.e., the borrowing statute] shall not extend to any action which is or shall be otherwise limited by statute; but such action shall be brought within the time limited by such statute") applied to prevent the application of the borrowing statute because Missouri's wrongful death statute contained a built-in, specific statute of limitations for wrongful death actions (similar to that of Illinois), and therefore the claim was "otherwise limited by statute" for purposes of Section 516.300 RSMo. Accordingly, the plaintiffs asserted that Missouri's three-year wrongful death statute of limitations applied, not Illinois' two-year statute of limitations. Following the analysis in Thompson v. Crawford, 833 S.W.2d 868 (Mo. Banc. 1992), the Circuit Court ruled that notwithstanding the plaintiffs' assertion to the contrary, the plaintiffs' claim was properly brought pursuant to the Illinois wrongful death statute and that the two-year Illinois statute of limitations barred the plaintiffs' claim. The Court explained that where a wrongful death statute contains a built-in statute of limitations, like that of the Illinois wrongful death statute, the Court conducts a traditional conflicts of laws analysis under the Restatement (Second) of Conflict of Laws (1971). Id. at 4. Here, under that analysis, the Illinois wrongful death statute, including its built-in statute of limitations, applied to bar the plaintiffs' claim. ASBESTOS UPDATE: Ohio Court Seeks Workers' Heirs for Payouts ------------------------------------------------------------ The Associated Press reported that a northeast Ohio court disbursing payouts from legal claims is looking for heirs to hundreds of rubber workers who died or became very ill because of exposure to asbestos. The Akron Beacon Journal reports Summit County Probate Court has about $2 million to distribute. Heirs have been found for many of the deceased workers with pending claims, but heirs of about 850 workers still haven't been located. The list has been posted on the court's website. An $80 million fund was created in 2004 after insurance giant Travelers Cos. settled with lawyers for thousands of workers who had asbestos-related claims. That means payouts for about 19,000 cases around the country. Summit County has the most, with about 6,000. Heirs were located in about half of the county's pending cases. ASBESTOS UPDATE: Pittsburgh Corning Emerges from Ch. 11 ------------------------------------------------------- Pittsburgh Corning Corporation (www.pghcorning.com), a global manufacturer of sustainable, high performance glass based products for the building, energy and industrial markets, announces that its Modified Third Amended Plan of Reorganization ("POR" or "Plan") has become effective as of April 27, 2016, and the Company has emerged from Chapter 11 bankruptcy. Pittsburgh Corning has operated under asbestos-related Chapter 11 protection since April 16, 2000. The Pittsburgh Corning Modified Third Amended POR establishes the Pittsburgh Corning Asbestos Personal Injury Settlement Trust. Scheduled to receive assets valued in excess of $3.5 billion, the Trust will be among the largest asbestos trusts in the country. It assumes all asbestos-related liabilities related to Pittsburgh Corning and resolves all asbestos personal injury claims, including those filed in the future. The Trust is to be funded by contributions of Pittsburgh Corning, its shareholders (PPG Industries Inc. and Corning Incorporated) and participating insurance carriers. Prior to emergence from Chapter 11, Pittsburgh Corning and Pittsburgh Corning Europe were equity affiliates of PPG Industries, Inc. and Corning, Inc. Effective today, Pittsburgh Corning Corporation will be owned by the Pittsburgh Corning Asbestos Personal Injury Settlement Trust. Pittsburgh Corning Europe was not subject to Chapter 11, but its shares will be contributed to the Trust as part of the Company's Plan of Reorganization by early June 2016. Pittsburgh Corning Corporation is the foremost global supplier of premium quality, cellular glass insulation, with a unique combination of properties that make it one of the highest performing insulations materials available. The Company's FOAMGLAS(R) Insulation is used around the world as protection in commercial building envelopes and in critical industrial processes, including piping for oil and gas production and as the foundations for liquid natural gas storage tanks. The Company also produces glass block products and windows for the residential and architectural markets in the United States. The Company's Modified Third Amended Plan of Reorganization was confirmed by the U.S. Bankruptcy Court for the Western District of Pennsylvania on May 24, 2013, and affirmed by the U.S. District Court of Pennsylvania on September 30, 2014. Appeals were finally resolved on January 7, 2016, which allowed consummation of the Plan. Between 1962 and 1972, Pittsburgh Corning manufactured, marketed and sold Unibestos, an asbestos pipe insulation product it acquired from Union Asbestos and Rubber Company. The Company was named as a defendant in asbestos-related lawsuits, defending and resolving more than 200,000 claims. Pittsburgh Corning sought Chapter 11 protection in 2000, when it became apparent that defending and settling an additional 235,000 pending claims would exhaust Company resources before they could be resolved. Pittsburgh Corning emerges from Chapter 11 protection having reinvented its business. Since its inception almost 80 years ago, the privately held Pittsburgh Corning has grown to serve customers globally. Together with Pittsburgh Corning Europe, the Company operates today as a single worldwide enterprise that is the world's largest producer of environmentally advanced cellular glass insulation and systems. It operates insulation manufacturing facilities in Sedalia, Missouri; Fresno, Texas; Tessenderlo, Belgium; Klasterec, Czech Republic, and recently, began production at its new, wholly owned state-of-the-art facility in Yantai, China. Glass block products are produced in Port Allegany, Pennsylvania. "During Chapter 11, Pittsburgh Corning operated with two major objectives. For the first five years, when emergence seemed to be a few years in the offing, the Company focused on protecting and preserving the assets, which would become part of the Asbestos Trust. When it became apparent that Pittsburgh Corning's time in bankruptcy was going to be extended, our focus expanded to include strategic actions designed to reinvent our business to better serve customers worldwide and create a platform for sustained profitable growth for our future shareholders," said James R. Kane, Chairman and Chief Executive Officer of Pittsburgh Corning Corporation. "Today, Pittsburgh Corning has achieved both goals. After 16 years of operating under Chapter 11, the Asbestos Personal Injury Settlement Trust can begin helping people and families. The Company has performed well and is eager to move past Chapter 11 and toward a promising future." Pittsburgh Corning has implemented strategic initiatives that have improved service to customers and created shareholder value. Significant capital investments have been made at plants in the United States and Europe to improve safety and productivity and reduce delivery time and costs. With the addition of the new operation in China, the Company's base of operations has expanded to be closer to its customers on three continents. "Pittsburgh Corning customers, employees, shareholders, suppliers and business partners have been instrumental in keeping the Company stable, competitive and growing during the past 16 years," said Kane. "We're grateful for all of our stakeholders, whose unfaltering support has allowed Pittsburgh Corning to become a world leader in the production of high performance, sustainable, glass-based building materials that conserve energy, protect the environment and enhance safety for millions of people around the world." Pittsburgh Corning FOAMGLAS(R) Insulation, in addition to its energy-conserving characteristics, offers exceptional strength, is waterproof and will not burn. Billions of feet of FOAMGLAS(R) Insulation have been installed throughout the world in thousands of buildings and industrial plants. Pittsburgh Corning offers a full range of FOAMGLAS(R) products and technical consulting services for building and industrial applications, including blocks in numerous densities, boards for various building applications, fabricated and tapered components, complex assemblies and a range of adhesives, coatings, clips and jackets that create complete insulation systems. The Company provides customer support, including technical experts and training centers, on every continent. About Pittsburgh Corning Corporation and Pittsburgh Corning Europe, N.V. Pittsburgh Corning consists of Pittsburgh Corning Corporation in Pittsburgh, Pennsylvania, and Pittsburgh Corning Europe N.V. in Tessenderlo, Belgium. With headquarters in Pittsburgh, Pennsylvania; European headquarters in Tessenderlo, Belgium, and Asian headquarters in Yantai, China, the Companies operate worldwide under a global management team committed to a common set of corporate values. Pittsburgh Corning Corporation is owned by the Pittsburgh Corning Asbestos Personal Injury Trust. Pittsburgh Corning Europe will be contributed to the Trust by the current shareholders in June 2016. The companies produce sustainable, high-performance cellular glass FOAMGLAS(R) Insulation products for commercial and residential buildings and energy and industrial applications. FOAMGLAS(R) Insulation offers a unique combination of properties, making it one of the highest performing insulation materials available. Billions of board feet of FOAMGLAS(R) have been installed throughout the world in thousands of buildings and industrial plants. Pittsburgh Corning also offers a wide range of complementary accessory products including sealants, adhesives, and jacketing. The Company is the only United States manufacturer of premium glass block products and specialized architectural window systems for commercial, institutional, government and residential buildings. Pittsburgh Corning's products keep people safe and provide lasting protection for homes, offices, public facilities and processing operations. Additional information about Pittsburgh Corning Corporation is available at www.pghcorning.com and www.foamglas.com. MEDIA CONTACT: Jeannine F. Addams or Kristin Wohlleben J. Addams & Partners, Inc. 404.231.1132 phone jfaddams@jaddams.com kwohlleben@jaddams.com ********* 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. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Nina Novak at 202-362-8552. * * * End of Transmission * * *