/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/160930.mbx C L A S S A C T I O N R E P O R T E R Friday, September 30, 2016, Vol. 18, No. 196 Headlines 2015 VENTURES: Faces "Andrulat" Suit Under FLSA, SC Wages Act 3M CO: Faces "Bates" Suit Alleging AFFF Water Contamination 3M CO: McDivitt Law Files 2nd Contamination Class Action ADVANCED COSMETIC: Fails to Pay Minimum Wages, "Castro" Suit Says AECOM: Faces Class Action Suit for Misleading Shareholders AL HORNO LEAN: "Adonias" Suit Seeks Overtime, Spread of Hours Pay ALL HEART SENIOR: Accused by Buckley of Not Paying OT Under FLSA AMERICAN REALTY: November 9 Settlement Fairness Hearing Set AMERICAN EXPRESS: Obtains Favorable Ruling in Antitrust Suit ARCELORMITTAL SA: Plaintiffs' Appeal in Securities Case Tossed AUSTRALIA: Faces Class Action Over Christmas Island Boat Disaster AVVO INC: First Amendment Protects Advertising Shakedown BANCORP INC: December 15 Settlement Fairness Hearing Set BANK OF AMERICA: "Clark" Suit Seeks to Recoup Pay Under FLSA BARNES & NOBLE: Cafe Manager Sues Over Overtime Pay BHP BILLITON: Texas Gate Workers File Wage Class Action BLACK LIVES: Sued for Inciting Racial Violence Against Police BMO HARRIS: "Behrens" Suit Seeks Wages Under Collection Act BP SOLAR: Dec. 22 Class Action Settlement Approval Hearing Set CANADA: Brockville Jail Inmate Files Class Action Over Beatings CANADA: Faces Class Action Over Tax on Foreign Home Buyers CEMEX CONSTRUCTION: Deere Seeks Certification of Two Classes CHESAPEAKE ENERGY: Landowners Sue Over Gas Drilling Royalties CITY OF EAST CHICAGO: "Mabry" Suit Alleges Housing Contamination COLORADO: ACLU Files Class Action Over Hepatitis C Treatment CONOPCO INC: Certification of 3 Classes Sought in "Paulino" Suit CORT BUSINESS: "Ramirez" Suit Seeks Unpaid Wages Under Labor Code DALAMA PROTECTION: Faces "Haughton" Suit Seeking to Recoup Pay DALLAS/FORTH WORTH INTERNATIONAL: "Frazier" Suit to Recover OT Pay DIM SUM: Faces "Lin" Lawsuit Under FLSA, NJ Wage and Hour Law DOOR AND WINDOW: Faces "Briseno" Suit Seeking OT Pay Under FLSA DUPONT: Australia Fails to Acknowledge US Toxic Foam Studies EAST LA DIALYSIS: Caballero Sues Over Wage & Hour Law Violations ELBAR INC: "Correa" Suit Seeks Minimum, Overtime Pay ELECTRONIC GAME: January 9 Settlement Fairness Hearing Set ENTERPRISE RENT-A-CAR: Sued in Cal. Over Use of Consumer Report EXPRESS ENERGY: "Crain" Suit Seeks to Recover Overtime Pay FACEBOOK INC: AP7 Files Class Action Over Share Dilution FEDERAL EXPRESS: "Mitchell" Suit to Recover Overtime Pay FIAT CHRYSLER: Kessler Topaz Files Securities Class Action FIVE GUYS: Cert. of Assistant GMs Class Sought in "Isaac" Suit FORD MOTOR: Faces "Krebsbach" Suit Over Defective Sunroofs FORD MOTOR: Simmons Hanly Conroy Files Class Action in California GARLOCK SEALING: December 9 Deadline Set to Vote on Settlement GOOGLE INC: High Court Set to Address Privacy Class Action HAMILTON PAINTING: "Rowe" Seeks Certification of Painters Class HARRIS & HARRIS: Improperly Collected Medical Debt, Suit Says HEINEN'S INC: Sued Over Illegal Sales Tax on Starbucks Coffee HEWLETT PACKARD: Calif. Consumer Sues Over False Advertising HOTWIRE INC: Armstrong Law's Bid to Certify to Be Heard Nov. 4 HOUSTON HOME: "Bass" Lawsuit Seeks to Recoup OT Pay Under FLSA INDIVIOR: Says Antitrust Suit Over Monosol Rx Drug Has No Merit ITT EDUCATIONAL: Faces "Federman" Adversary Class Suit in Indiana J.J. CARPET: Faces "Chiquillo" Suit Seeking OT Pay Under FLSA JAGUAR ENERGY: "Blanton" Suit to Recover Overtime Pay JOHNSON & JOHNSON: Class Action Status in Talc Cancer Suit Sought JP MORGAN: Faces "Hall" Lawsuit Alleging Violation of RESPA JPMORGAN CHASE: Seeks Dismissal of Mortgage Class Action KAS DIRECT: Faces Class Action Over Deceptive Babyganics Claims KOVITZ SHIFRIN: Wins Prelim. OK of "McCarter" Class Settlement KOVITZ SHIFRIN: Wins Prelim. OK of "Scehura" Class Settlement LAND O'LAKES: Deal Over Dairy Price-Fixing Conspiracy Finalized LIFEVANTAGE CORP: Faces Securities Class Action in Utah MECH-TECH INSTITUTE: Four Men Sue Over False Advertisements MIDLAND CREDIT: Certification of Class Sought in "Hernandez" Suit MILLENNIUM PARTNERS: Politicians to Probe Sinking Tower MISONIX INC: Rosen Law Firm Files Securities Class Action MGT CAPITAL: Sued in S.D.N.Y. Over Merger with DVasive, Inc. MONEYGRAM INTERNATIONAL: Nov. 14 Lead Plaintiff Deadline Set MOSAIC: Faces Class Actions in Florida Over Gypstacks MOSAIC CO: Class Action Suit Filed Over Contaminated Water MOTION PICTURE: Seeks Dismissal of Rating System Class Action MSN MARKETING: "Alan" Sues Over Illegal Telemarketing Calls NABORS INDUSTRIES: Miami Ret. Trust Files Appeal in Del. S.C. NATIONAL ELECTORAL: Class Action Mulled Over Violent Protests NOODLES & COMPANY: Class Action Filed Over Credit Card Breach OHIO: Disability Wait List for HCBS May Violate ADA, Suit Claims PETSMART INC: Accused by Breingan of Not Giving Proper Services PFIZER INC: Faces Class Action Over Chapstick Natural Label PHILADELPHIA, PA: Hodge Seeks Damages Over Vehicular Accident PHILIP MORRIS: Jury Rules Smoker Failed Citizenship Requirements PLANT ENGINEERING: Certification of Class Sought in "Ortega" Suit POLARIS INDUSTRIES: Nov. 15 Lead Plaintiff Motion Deadline Set POR ENTERPRISES: Faces FLSA Breach Suit in Alabama POWER SOLUTIONS: Oct. 21 Lead Plaintiff Bid Deadline PREIT ASSOCIATES: "Badger" Sues Over Wheelchair Inaccessibility PTX INDUSTRIES: Sued in Cal. Over Defective Roofing Products QUEENSLAND: Indigenous People Suit Sets National Precedent RED GRANITE: Minister Says Husam Musa's Class Action Baseless ROCKWELL INT'L: April 28, 2017 Settlement Fairness Hearing Set ROOT9B TECHNOLOGIES: Court Dismisses Securities Class Action Suit ROYAL CROWN: Court OKs 3rd Party Funding w/o Notice to Defendants SALINAS ECUADORIAN: Faces "Alfaro" Suit Under FLSA, NY Labor Law SAMUEL JEWELERS: "Jafari" Seeks to Recoup Pay Under Labor Code SANTA FE, NM: Inmates Sue Over Delayed Conditions of Release SCHOOL DISTRICT OF LANCASTER: Issa Seeks ELL Class Certification SHINE LAWYERS: Faces Risk of Shareholder Class Action SIRIUS XM: Aware of Potential Class Action Lawsuit SIZMEK INC: Faces "Burns" Lawsuit Over Sale to Vector Capital SOLARCITY CORP: Faces Securities Class Action Lawsuit SOUTHERN PACPIZZA: Tony Suit Seeks Minimum Wages Under FLSA SPECTRUM PHARMACEUTICALS: Faces "Ayeni" Securities Suit Over Drug STATE FARM: Racketeering Suit Obtains Class-Action Status TESLA MOTORS: Shareholders Suits Hamper SolarCity Merger TOPCO ASSOCIATES: Faces Class Action Over "All Natural Label" TRANSAMERICA LIFE: Policyholders File Bad Faith Insurance Suit TRANSWORLD SYSTEMS: Frausto Seeks Certification of FDCPA Class TROPICAL SMOOTHIE: Faces Class Action Over Hepatitis Outbreak TRUMP PAC: Faces Class Action Over Robocalls TWITTER INC: "Shenwick" Sues Over Share Price Drop TWITTER INC: Faces Securities Class Action in California UBER TECHNOLOGIES: Lamour Amends Bid to Certify Class of Drivers UBER: Joins Betterment to Provide IRAs UNITED BEHAVIORAL: Court Certifies Class in Mental Health Case UNITED SERVICES: Judge Chides Attorneys Over Late Forum Shopping UNITED STATES: Patients Await Disability Benefits Settlement UNIVERSAL PICTURES: Court Snobs Fitzgerald's Bid to Certify Class VERIZON WIRELESS: Robocall Class Action Suits Filed in Calif. VOLKSWAGEN AG: Settlement Final Court Hearing Set for Oct. 18 VOLKSWAGEN AG: Ex-Chief Aware of Emissions Cheating, Data Shows WAL-MART: Mexican Unit Bribery Suit Obtains Class-Action Status WELLS FARGO: Faces Class Action Over Accounts Scandal WELLS FARGO: Customers May Never See Their Day in Court WELLS FARGO: Former Employees File Class Action Over Sale Quotas WHIRPOOL CORP: Oct. 11 Deadline for Filing Settlement Claims WHITEWAVE FOODS: Faces Securities Class Action in Colorado YAHOO INC: Faces Class Action Over Massive 2014 Hacking * 75% of Bank Account Agreements Include Arbitration Clauses * Collective Cost of Late Fees Totals $286MM, Research Shows * Defense Attorney Says Companies Must Improve Customer Outreach Asbestos Litigation ASBESTOS UPDATE: Intervenors OK'd to Appear in "Steinebach" ASBESTOS UPDATE: Court Won't Review Order Denying Dismissal Bid ASBESTOS UPDATE: Calif. Man Drops Asbestos Claims vs. 2 Companies ASBESTOS UPDATE: Travelers Policies Exhausted as of July 2015 ASBESTOS UPDATE: Cooper Wins Partial Summary Judgment vs. Wyman ASBESTOS UPDATE: New Trial in Suit vs. RJ Reynolds Directed ASBESTOS UPDATE: Lockheed's Summary Judgment Bid in "George" OK'd ASBESTOS UPDATE: 3rd Circ. Reverses Ruling on Switchgear Claim ASBESTOS UPDATE: Valid Assignment of Insurance Rights to Viking ASBESTOS UPDATE: Grant of Summary Judgment in "Mitchell" Urged ASBESTOS UPDATE: PCS' Bid to Dismiss "Richardson" Partially OK'd ASBESTOS UPDATE: Cedarcroft Wins Summary Judgment in "Umphrey" ASBESTOS UPDATE: Court Remands "Bozeman" to La. State Court ASBESTOS UPDATE: Sister Sues Companies Over Sibling's Death ASBESTOS UPDATE: Fla. Tightens Reins on Proving Causation ASBESTOS UPDATE: EPA To Remove Asbestos From New York Factory ASBESTOS UPDATE: Energy Future Holdings Estimation Motion Filed ASBESTOS UPDATE: Machinist Family Gets New Shot at Asbestos Case ASBESTOS UPDATE: Mother, Son Launch Asbestosis Lawsuit in Tex. ASBESTOS UPDATE: Retired Farmer Dies of Asbestos-Related Cancer ASBESTOS UPDATE: Coroner Issues Warning Over Asbestos Deaths ASBESTOS UPDATE: Perth Man Dies After Asbestos Battle ASBESTOS UPDATE: Tribunal Affirms Prohibition Notice ASBESTOS UPDATE: Orlando Won't Be Fined for Firefighter Exposure ASBESTOS UPDATE: More WorkSafe Violations for B.C. Contractor ASBESTOS UPDATE: Suit Says Tyler Pipe Trust Not Paying Up ASBESTOS UPDATE: Children in Tongan Hospital Inhaling Asbestos ASBESTOS UPDATE: Take-Home Case Ruling Could Have Ripple Effect ********* 2015 VENTURES: Faces "Andrulat" Suit Under FLSA, SC Wages Act ------------------------------------------------------------- SCHUYLER ANDRULAT, individually and on behalf of all others similarly situated, Plaintiffs, v. 2015 VENTURES, LLC d/b/a STILETTO'S GENTLEMEN'S CLUB, f/k/a JAGUAR'S GENTLEMEN'S CLUB, and ROBERT HILLS, Defendants, Case No. 2:16-cv-03183-DCN (D.S.C., September 21, 2016), claims that Defendants have misclassified their exotic dancers as independent contractors in violation of the Fair Labor Standards Act and the South Carolina Payment of Wages Act. Defendant Ventures does business as Stiletto's Gentlemen's Club, an adult entertainment club. The Plaintiff is represented by: David E. Rothstein, Esq. ROTHSTEIN LAW FIRM, PA 1312 Augusta Street Greenville, SC 29605 Phone: (864) 232-5870 Fax: (864) 241-1386 Email: drothstein@rothsteinlawfirm.com - and - Harold Lichten, Esq. Matthew Thomson, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Phone: (617) 994-5800 Fax: (617) 994-5801 Email: hlichten@llrlaw.com mthomson@llrlaw.com 3M CO: Faces "Bates" Suit Alleging AFFF Water Contamination ----------------------------------------------------------- Hanah Bates; Michael S. Bridges; Ann Marie Kuter; Kelley Liott; Lynda Mills, as parent and natural guardian of S.M., a minor; Jennifer Rock; and Carolyn Sippel, individually and on behalf of all others similarly situated, Plaintiffs, v. The 3M Company (f/k/a Minnesota Mining and Manufacturing Co.); Angus Fire; the Ansul Company; Buckeye Fire Protection Company; Chemguard; and National Foam, Defendants, Case No. 2:16-cv-04961-PBT (E.D. Pa., September 15, 2016), seeks medical monitoring and damages because Defendants allegedly contaminated their drinking water with Aqueous Film Forming Foam. The Defendants manufacture fire suppression products, including AFFF that contained fluorocarbon surfactants. The Plaintiffs are represented by: John M. Broaddus, Esq. WEITZ & LUXENBERG 200 Lake Drive East, Suite 205 Woodland Falls Corporate Park Cherry Hill, NJ 08002 Phone: 856-755-1115 Fax: 856-755-1995 E-mail: jbroaddus@weitzlux.com - and - Robin L. Greenwald, Esq. Donald A. Soutar, Esq. WEITZ & LUXENBERG 700 Broadway New York, NY 10003 Phone: (212) 558-5500 Fax: (212) 344-5461 3M CO: McDivitt Law Files 2nd Contamination Class Action -------------------------------------------------------- Jakob Rodgers, writing for The Gazette, reports that a Colorado Springs law firm filed the second lawsuit targeting the manufacturers of a firefighting foam believed to have contaminated drinking water in Security, Widefield and Fountain. McDivitt Law Firm capped a month-long campaign to woo clients by filing a federal lawsuit on September 22 seeking class-action status on behalf of thousands of people whose tap water comes from the fouled Widefield aquifer. The case largely mirrors another federal class-action lawsuit filed by a Denver law firm targeting 3M, Ansul Foam of Wisconsin and National Foam of Pennsylvania. McDivitt's suit also named those companies as defendants, but it added three more: Chemguard of Wisconsin, as well as Angus Fire and Buckeye Fire Equipment Co., which have offices in North Carolina. The latest suit alleges those companies knew, or should have known, the dangers of a firefighting foam used for years at Peterson Air Force Base, the Colorado Springs Airport and Fort Carson. And it claims the companies opted to profit from the foam, rather than warn the military or residents of its dangers. The pattern repeated itself for years, the suit alleges, all while the toxic chemicals pooled in the blood of residents living downstream. All nine plaintiffs have elevated blood levels of perfluorinated compounds -- the key ingredient in the military's firefighting foam. The chemicals have been associated with a host of ailments, including kidney and testicular cancers and thyroid disease. "They are worried to death," said Mike McDivitt, the firm's founder. "They're carting water in to use -- they still are." McDivitt said about 1,000 people have retained his firm, and many more residents have expressed interest. His firm is partnering with a New York firm, Napoli Shkolnik PLLC, which specializes in environmental law cases. The residents want the companies to establish a medical monitoring program to help detect and better treat diseases that might be caused by the chemicals. The suit also seeks punitive damages, as well as a testing program for water across the Fountain watershed. Most companies did not return after-hours calls or emails from The Gazette seeking comment. An Ansul Foam representative said the company does not comment on ongoing litigation. A 3M representative said he had not seen the latest lawsuit. However, a previous statement by a 3M attorney said 3M would "vigorously" defend itself against the lawsuit -- adding that the foam saves lives and that the earlier claims "lacked merit." Law experts who study class-action lawsuits, however, said the plaintiffs in the Pikes Peak region are a long way from any possible payday. The most difficult struggle may be proving a simple point: that the contaminated well water caused them harm worthy of a court award, said Tom Metzloff, a professor at North Carolina's Duke Law School who studies class-action lawsuits. "One of the biggest problems that comes up right away is causation," he said. "These cases are often significantly fought over by experts." Metzloff said the chemical manufacturers have a series of defenses they can use, including a possible use of the "military contractor defense." That shields manufacturers from liability for products built under government contract, and could cover the firefighting foam, which was built to a military specification that's patented by the Navy. One of its first legal hurdles is whether the plaintiffs south of Colorado Springs can sue as a group or as individuals. Both lawsuits have sought class-action status, which calls for a handful of people to represent a large group of residents affected by the same problem and living in the same area. A judge must approve that type of status for the cases to proceed. Federal judges routinely combine similar class-action suits filed by different law firms when they involve the same general area and complaints, said David Marcus, a University of Arizona law professor who specializes in class-action cases. In that case, a judge would appoint attorneys for the group. It's also possible the Colorado cases will be argued outside of the state, Metzloff said. That's because several similar cases over foam contamination have been filed around the country. All of them might land before a multi-district federal court panel, which could combine them into a single case to be heard by a single judge. "There's real potential this could be sent to multi-district litigation," Metzloff said. ADVANCED COSMETIC: Fails to Pay Minimum Wages, "Castro" Suit Says ----------------------------------------------------------------- DOMINGO CASTRO, individually and on behalf of other persons similarly situated v. ADVANCED COSMETIC RESEARCH LABORATORIES, INc., an active California Corporation; and DOES 1 through 10, Case No. BC634270 (Cal. Super. Ct., Los Angeles Cty., Sept. 16, 2016), arises out of the Defendants' alleged failure to pay employees minimum wages for all hours worked, to compensate for overtime work, to provide meal periods, to provide rest periods, to provide proper wage statements, and to pay all wages owed to terminated or separated employees in a timely manner. Advanced Cosmetic Research Laboratories, Inc., is an active California corporation headquartered in Chatsworth, California. The Plaintiff is ignorant of the true names, capacities, relationships and extent of participation in the alleged conduct of the Doe Defendants. The Defendants are engaged in the business of production, distribution, and sale of cosmetic products. The Plaintiff is represented by: Zorik Mooradian, Esq. Haik Hacopian, Esq. LAW OFFICES OF ZORIK MOORADIAN 5023 N. Parkway Calabasas Calabasas, CA 91302 Telephone: (818) 876-9627 Facsimile: (888) 783-1030 E-mail: zorik@mooradianlaw.com haik.hacopian@gmail.com AECOM: Faces Class Action Suit for Misleading Shareholders ---------------------------------------------------------- Shareholder rights law firm Robbins Arroyo LLP announces that a class action complaint was filed against AECOM in the U.S. District Court for the Central District of California. The complaint is brought on behalf of all purchasers of AECOM securities between February 11, 2015 and August 15, 2016, for alleged violations of the Securities Exchange Act of 1934 by AECOM's officers and directors. AECOM, together with its subsidiaries, engages in designing, building, financing, and operating infrastructure assets worldwide. View this information on the law firm's Shareholder Rights Blog: www.robbinsarroyo.com/shareholders-rights-blog/aecom AECOM Accused of Overstating the Benefits of Its Acquisition According to the complaint, on February 10, 2015, AECOM submitted a Form 8-K with the U.S. Securities and Exchange Commission, stating "We are pleased with our organic growth as we focus on the successful integration of our acquisition of URS [Corp]." The company further touted that it started the year by delivering strong free cash flow and reported revenue of $4.19 billion for the quarter, compared to revenue of $1.95 billion for the same period in the prior year. AECOM submitted several subsequent filings reiterating the information previously announced and reporting strong financial and operating results, again emphasizing that the company's strong cash flow and debt reduction kept it on track with its capital allocation priorities. The complaint alleges, however, that AECOM officials failed to disclose that AECOM: (i) engaged in fraudulent and deceptive business practices; (ii) lacked effective internal controls over financial reporting; (iii) overstated the benefits of the URS acquisition; and (iv) overstated the company's free cash flow per share. On August 16, 2016, Spruce Point Capital Management published a report on AECOM stating that Spruce had analyzed the company's recent financial results and condition and believed that AECOM's stock is worth approximately 33%-45% less than its current price. The report cited AECOM management's "misaligned incentive structure," noting that AECOM's Chief Executive Officer's $18 million compensation in 2015 was heavily tied to the company's aggressive interpretation of its free cash flow per share. The report further noted that AECOM had changed (and inflated) its earnings per share definition three times since selling investors on the URS acquisition, and that free cash flow was overstated by approximately 90% in the last twelve months ending June 30. On this news, AECOM stock fell $1.65 per share, or 4.7%, to close at $33.44 per share on August 16, 2016. AECOM Shareholders Have Legal Options Concerned shareholders who would like more information about their rights and potential remedies can contact attorney Darnell R. Donahue at (800) 350-6003, DDonahue@robbinsarroyo.com, or via the shareholder information form on the firm's website. Robbins Arroyo LLP is a nationally recognized leader in shareholder rights law. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits, and has helped its clients realize more than $1 billion of value for themselves and the companies in which they have invested. AL HORNO LEAN: "Adonias" Suit Seeks Overtime, Spread of Hours Pay ----------------------------------------------------------------- Ceferino Adonias (AKA Steven Diaz), German Mercenario Velazquez, Antonio Aranda and Hermenegildo Mercenario Velazquez, individually and on behalf of others similarly situated, Plaintiffs, v. Al Horno Lean Mexican Kitchen Inc. (d/b/a Al Horno Lean Mexican Kitchen), Al Horno Lean Mexican 57, Inc. (d/b/a Al Horno Lean Mexican Kitchen) and Chris Pizzimenti, Defendants, Case No. 1:16- cv-07266, (S.D. N.Y., September 16, 2016), seeks overtime wages, unpaid wages, spread-of-hours pay, statutory damages, reasonable attorneys' fees and costs and such other and further relief under New York Labor Law. Defendants own, operate, or control two Mexican restaurants located at 417 West 47th Street, New York, New York 10036 and at 1089 Second Avenue, New York, New York, 10022, both under the name Al Horno Lean Mexican Kitchen where Plaintiffs were primarily employed as delivery workers, working in excess of 40 hours per week, without appropriate minimum wage or overtime compensation for the hours that they worked. Defendants failed to maintain accurate record-keeping of the hours worked, failed to pay Plaintiffs appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium as well as the required spread of hours pay for any day in which they worked over 10 hours per day. Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 2540 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 ALL HEART SENIOR: Accused by Buckley of Not Paying OT Under FLSA ---------------------------------------------------------------- ROBERT BUCKLEY, on behalf of himself and all others similarly situated v. ALL HEART SENIOR CARE, L.L.C., a Florida Limited Liability Company, Case No. 8:16-cv-02676-VMC-AEP (M.D. Fla., September 16, 2016), accuses the Defendant of violating the Fair Labor Standards Act by failing to pay the Plaintiff and other health care workers overtime premiums for hours worked over 40 each week. Headquartered in Sarasota, Florida, All Heart Senior Care, L.L.C., is a Florida limited liability company doing business since 2009. The Company provides healthcare services to its clients. The Plaintiff is represented by: Christina J. Thomas, Esq. Bernard R. Mazaheri, Esq. MORGAN & MORGAN, P.A. 333 W. Vine St., Suite 1200 Lexington, KY 40507 Telephone: (859) 219-4529 Facsimile: (407) 245-3487 E-mail: cthomas@forthepeople.com bmazaheri@forthepeople.com AMERICAN REALTY: November 9 Settlement Fairness Hearing Set ----------------------------------------------------------- UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK STUART SIMPSON, Individually on Behalf of Himself and Derivatively on Behalf of Nominal Defendant AMERICAN REALTY CAPITAL - RETAIL CENTERS OF AMERICA, INC., Plaintiff, v. LESLIE D. MICHELSON, EDWARD G. RENDELL, and EDWARD M. WEIL, JR., Defendants, and AMERICAN REALTY CAPITAL - RETAIL CENTERS OF AMERICA, INC. Nominal Defendant. Case No. 1:16-cv-03970-ALC NOTICE OF PROPOSED SETTLEMENT, SETTLEMENT HEARING, AND RIGHT TO APPEAR TO: ALL CURRENT RECORD AND BENEFICIAL HOLDERS OF COMMON STOCK OF AMERICAN REALTY CAPITAL - RETAIL CENTERS OF AMERICA, INC. ("RCA" OR THE "COMPANY") AS OF SEPTEMBER 13 2016, AND THEIR RESPECTIVE SUCCESSORS IN INTEREST, SUCCESSORS, PREDECESSORS IN INTEREST, PREDECESSORS, REPRESENTATIVES, TRUSTEES, EXECUTORS, ADMINISTRATORS, HEIRS, ASSIGNS OR TRANSFEREES, IMMEDIATE AND REMOTE, AND ANY PERSON OR ENTITY ACTING FOR OR ON BEHALF OF, OR CLAIMING UNDER ANY OF THEM, AND EACH OF THEM. PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOUR RIGHTS WILL BE AFFECTED BY THE LEGAL PROCEEDINGS IN THIS LITIGATION. IF THE COURT APPROVES THE PROPOSED SETTLEMENT, YOU WILL BE FOREVER BARRED FROM CONTESTING THE FAIRNESS, REASONABLENESS AND ADEQUACY OF THE PROPOSED SETTLEMENT AND FROM PURSUING "PLAINTIFF'S RELEASED CLAIMS" (AS DEFINED BELOW IN SECTION V). PLEASE NOTE THAT THIS ACTION IS NOT A "CLASS ACTION" AND NO INDIVIDUAL SHAREHOLDER HAS THE RIGHT TO BE COMPENSATED AS A RESULT OF THE SETTLEMENT OF THIS ACTION. IF YOU HOLD RCA COMMON STOCK FOR THE BENEFIT OF ANOTHER, PLEASE PROMPTLY TRANSMIT THIS DOCUMENT TO SUCH BENEFICIAL OWNER. I. THE PURPOSE OF THIS NOTICE The purpose of this Notice is to inform you of the pendency of the above-captioned individual and shareholder derivative litigation (the "Action") and a proposed settlement ("Settlement") of the Action. This Notice also informs you of your right to participate in a hearing (the "Settlement Hearing") to be held before this Court on November 9, 2016, at 11:30 a.m. at the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, NY 10007 in Courtroom 1306, to (i) determine whether the proposed Settlement of the Action on the terms and conditions provided for in the Stipulation and Agreement of Settlement, dated September 7, 2016 ("Stipulation") is fair, reasonable, and adequate and in the best interests of RCA and its stockholders; (ii) determine whether to approve Plaintiff's application for an award of attorneys' fees and expenses; (iii) hear and rule on any objections to the proposed Settlement, the proposed Final Order and Judgment, and Plaintiff's application for an award of attorneys' fees and expenses; (iv) determine whether the Court should enter the Final Order and Judgment, which would dismiss with prejudice the Action and release Plaintiff's Released Claims (as defined below) and Defendants' Released Claims (as defined below); and (v) rule on such other matters as the Court may deem appropriate. If the Court approves the Settlement, Plaintiff and the Defendants (the "Parties") will ask the Court to enter a Final Order and Judgment dismissing the Action with prejudice on the merits. This Notice describes the rights you may have under the proposed Settlement and what steps you may, but are not required to, take in relation to the proposed Settlement. * * * * * THE FOLLOWING RECITATION DOES NOT CONSTITUTE FINDINGS OF THE COURT. IT IS BASED ON SUMMARY STATEMENTS BY THE PARTIES AND SHOULD NOT BE UNDERSTOOD AS AN EXPRESSION OF ANY OPINION OF THE COURT AS TO THE MERITS OF ANY OF THE CLAIMS OR DEFENSES RAISED BY ANY OF THE PARTIES. II. BACKGROUND OF THE LAWSUIT On April 29, 2016, RCA filed a Definitive Proxy Statement on Schedule 14A (the "Proxy") with the Securities and Exchange Commission ("SEC") soliciting RCA stockholders to approve nine amendments to RCA's Articles of Amendment and Restatement (the "Charter") at the Annual Meeting of stockholders originally scheduled for June 29, 2016 (the "Annual Meeting"). The proposed Charter amendments included two proposals - Proposal No. 8, "Approval of Proposed Amendments to the Charter to Remove or Revise Certain Provisions Regarding the Conduct of Company Business," and Proposal No. 11, "Approval of Proposed Amendments to the Charter to Remove or Revise Provisions Relating to our Sponsor and Advisor and their Affiliates" (the "Proposed Amendments"). On May 26, 2016, Plaintiff filed a Verified Individual and Shareholder Derivative Complaint (the "Complaint") alleging that by disseminating the Proxy and seeking approval of the Proposed Amendments, the Defendants violated Section 14(a) of the Securities Exchange Act by (1) failing to disclose (a) the effects of the Proposed Amendments on stockholders rights in the event of a "roll-up" transaction, and (b) that Defendants are currently planning a roll-up transaction; and (2) unlawfully "bundling" multiple unrelated items within the two Proposed Amendments. On June 1, 2016, Plaintiff filed a Motion for Preliminary Injunction and Memorandum of Points and Authorities in Support thereof (the "Motion") to enjoin the stockholder vote at the Annual Meeting until and unless Defendants cured the allegedly materially misleading and deficient Proxy and unbundled the Proposed Amendments. On June 2, 2016, the Court entered an order setting a hearing on the Motion for June 13, 2016, and instructing Defendants' counsel to serve answering papers no later than 5:00 p.m. on June 9, 2016. On June 2, 2016, the Parties began arm's-length discussions regarding potential grounds to resolve the Action. On June 8, 2016, the Parties entered into a Memorandum of Understanding ("MOU") containing the terms for the Parties' agreement-in-principle to settle the Action. The MOU provided that, in consideration for the full and final settlement and release of all Plaintiff's Released Claims and the dismissal with prejudice of the Action, Defendants would withdraw the Proposed Amendments from consideration at the Company's Annual Meeting, and not seek to modify the Company's Charter to effectuate the Proposed Amendments in the future without seeking stockholder approval. On June 9, 2016, Defendants filed with the SEC Definitive Additional Materials on Schedule 14A supplementing the Proxy (the "Supplemental Proxy"). The Supplemental Proxy withdrew the Proposed Amendments from stockholder consideration at RCA's annual meeting. On June 9, 2016, Plaintiff withdrew his Motion and notified the Court that the Parties had come to an agreement-in-principle to settle the Action pursuant to the MOU. On June 10, 2016, the Court adjourned the hearing on Plaintiff's Motion. On September 7, 2016, the Parties executed the Stipulation, documenting the terms of the Settlement. III. SUMMARY OF SETTLEMENT TERMS In consideration for the proposed Settlement and dismissal with prejudice of the Action and the releases provided herein, and as a result of the filing and prosecution of the Action and after arm's-length negotiations with counsel for Plaintiff, in conjunction with the proposed Settlement, Defendants agreed to withdraw and did withdraw the Proposed Amendments from stockholder consideration at the Annual Meeting, and Defendants agreed not to seek to modify the Company's Charter to effectuate the Proposed Amendments in the future without seeking stockholder approval. IV. REASONS FOR THE SETTLEMENT Plaintiff, through his counsel, states that Plaintiff's counsel has completed a thorough investigation of the claims and allegations asserted in the Action, as well as the underlying events relevant to those claims and allegations. In connection with their investigation, Plaintiff's counsel reviewed publicly- available documents filed with the SEC and interviewed a former independent director of an affiliated company who provided additional information concerning Plaintiff's claims. Plaintiff's counsel also states that Plaintiff's counsel performed additional factual and legal research concerning the validity of Plaintiff's claims and other claims that could have arisen from the filing of the Proxy. Plaintiff and Plaintiff's counsel believe that Plaintiff's claims have legal merit, and the entry by Plaintiff into the Stipulation is not an admission as to the lack of merit of any claims asserted in the Action, and that Plaintiff entered into the proposed Settlement set forth in the Stipulation only to secure substantial relief for RCA and RCA stockholders and to eliminate the risk, burden and expense of further litigation, and because they believe that withdrawing the Proposed Amendments from stockholder consideration provided RCA and RCA stockholders with substantial benefits. In agreeing to the proposed Settlement, Plaintiff and his counsel considered: (i) the substantial benefits to RCA and RCA stockholders from the proposed Settlement; (ii) the attendant risks of continued litigation and the uncertainty of the outcome of the Action; (iii) the probability of success on the merits based on the allegations contained in the Action; and (iv) the desirability of permitting the proposed Settlement to be consummated according to its terms. Plaintiff and his counsel believe that the proposed Settlement is fair, reasonable, and adequate to Plaintiff, RCA and RCA stockholders. Defendants have denied, and continue to deny, all allegations of wrongdoing, fault, liability, or damage to Plaintiff or RCA, deny that they engaged in any wrongdoing, deny that they committed any violation of law, deny that the Proxy or any other public disclosures were in any way deficient, deny that they acted improperly in any way, believe that they acted properly at all times, believe the Action has no merit, and maintain that they have committed no disclosure or bundling violations, but entered into the proposed Settlement solely because they considered it desirable that the Action be settled and dismissed with prejudice in order to, among other things, eliminate the burden, inconvenience, expense, risk, and distraction of further litigation, finally put to rest and terminate all the claims that were or could have been asserted against Defendants in the Action, and thereby permit the stockholder vote on the other proposed items not challenged by Plaintiff to proceed without risk of injunctive or other relief. V. RELEASES Under the terms of the proposed Settlement, Plaintiff agrees to the complete discharge, dismissal with prejudice on the merits, settlement and release of, and a permanent injunction barring, the Released Parties (as defined below) of any and all manner of claims, demands, rights, liabilities, losses, obligations, duties, costs, debts, expenses, interest, penalties, sanctions, fees, attorneys' fees, actions, potential actions, causes of action, suits, agreements, judgments, decrees, matters, issues and controversies of any kind, nature or description whatsoever, whether known or unknown (including "Unknown Claims"), disclosed or undisclosed, accrued or unaccrued, apparent or not apparent, foreseen or unforeseen, matured or not matured, suspected or unsuspected, liquidated or not liquidated, fixed or contingent, that any Releasing Persons (as defined below) may have asserted derivatively or that Plaintiff may have asserted directly in his individual capacity based on Plaintiff's ownership of RCA common stock, against any of the Released Parties, whether based on state, local, foreign, federal, statutory, regulatory, common or other law or rule (including, but not limited to, any claims under federal securities laws or state disclosure law or any claims that could be asserted derivatively on behalf of RCA), which, now or hereafter, are based upon, arise out of, relate in any way to, or involve, directly or indirectly, (i) the Proposed Amendments, (ii) the fiduciary obligations, if any, of the Released Parties in connection with the Proposed Amendments, (iii) any of the allegations in Plaintiff's Complaint; and (iv) except as otherwise provided in the Stipulation, the administration or distribution of the Settlement; provided, however, that (i) plaintiff's released claims shall not include the right to enforce the Stipulation or the Settlement and (ii) plaintiff's released claims shall not release any claims that may arise in connection with proposed amendments of the Company's Charter submitted to stockholders after June 8, 2016 ("Plaintiff's Released Claims"). Reciprocally, under the terms of the proposed Settlement, Defendants agree to fully, finally, and forever release, relinquish, settle, extinguish, dismiss with prejudice, and discharge Plaintiff and Plaintiff's counsel from all claims (including "Unknown Claims") arising out of, relating to, or in connection with, the institution, prosecution, assertion, settlement or resolution of the Action or the Released Claims ("Defendants' Released Claims"). "Released Parties" means the Defendants and their heirs, trusts, trustees, executors, estates, administrators, beneficiaries, distributees, agents, employees, fiduciaries, partners, control persons, partnerships, joint ventures, member firms, limited liability companies, corporations, parents, subsidiaries, divisions, affiliates, associated entities, shareholders, principals, officers, managers, directors, managing directors, members, managing members, managing agents, predecessors, predecessors-in-interest, successors, successors-in-interest, and assigns. "Releasing Persons" means (i) in the case of Plaintiff's Released Claims, Plaintiff, RCA or any RCA stockholder that has the standing or capacity to assert, prosecute or maintain on behalf of RCA any of the Plaintiff's Released Claims, and (ii) in the case of Defendants' Released Claims, the Defendants. "Unknown Claims" means any Plaintiff's Released Claims or Defendants' Released Claims that the Releasing Persons do not know of or suspect to exist in their favor at the time of the release of the Released Parties or the release of Plaintiff and Plaintiff's counsel, respectively, including claims that, if known by them, might have affected their decision to settle the Action, or might have affected their decision not to object to the proposed Settlement. With respect to any and all Plaintiff's Released Claims or Defendants' Released Claims, the Parties stipulate and agree that, upon the effective date of the Settlement, the Parties expressly waive the provisions, rights and benefits conferred by or under California Civil Code section 1542, or any other law of the United States or any state or territory of the United States, or principle of common law that is similar, comparable, or equivalent to Sec 1542, which provides A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. The Parties acknowledge that they may hereafter discover facts in addition to or different from those now known or believed to be true by them, with respect to the subject matter of Plaintiff's Released Claims and Defendants' Released Claims, but it is the intention of the Releasing Persons to completely, fully, finally, and forever compromise, settle, release, discharge, relinquish and extinguish any and all Plaintiff's Released Claims and Defendants' Released Claims, known or unknown, suspect or unsuspected, contingent or absolute, accrued or unaccrued, apparent or unapparent, which do now exist, or heretofore existed, or may hereafter exist, and without regard to the subsequent discovery of additional or different facts. The Parties acknowledge that the foregoing waiver was separately bargained for and is an integral element of the Settlement, and was relied upon by each and all of the Defendants in entering into the Settlement. VI. THE SETTLEMENT HEARING The Court has scheduled the Settlement Hearing to be held in the United States District Court, Southern District of New York, Thurgood Marshall United States Courthouse, 40 Foley Square, New York, NY 10007 in Courtroom 1306 at the time identified in Section I above to: (i) determine whether the proposed Settlement of the Action on the terms and conditions provided for in the Stipulation is fair, reasonable, and adequate and in the best interests of RCA and its stockholders; (ii) determine whether to approve Plaintiff's application for an award of attorneys' fees and expenses; (iii) hear and rule on any objections to the proposed Settlement, the proposed Final Order and Judgment, and Plaintiff's application for an award of attorneys' fees and expenses; (iv) determine whether the Court should enter the Final Order and Judgment, which would dismiss with prejudice the Action and release Plaintiff's Released Claims and Defendants' Released Claims; and (v) rule on such other matters as the Court may deem appropriate. The Court may postpone, reschedule or adjourn the Settlement Hearing without further notice to RCA or RCA stockholders. The Court also has reserved the right to approve the Stipulation and the proposed Settlement at or after the Settlement Hearing with such modification(s) as may be consented to by the Parties and without further notice to RCA or RCA stockholders. VII. YOUR RIGHT TO APPEAR AND OBJECT Any RCA stockholder who owns shares as of September 13, 2016 and who continues to hold such shares and who objects to any aspect of the proposed Settlement, entry of the Final Order and Judgment, and/or Plaintiff's counsel's application for payment of attorneys' fees and expenses, or who otherwise wishes to be heard, may (but need not) appear in person or by his, her, or its attorney at the Settlement Hearing and present evidence or argument that may be proper and relevant; provided, however, that, except for good cause shown, no RCA stockholder shall be heard or entitled to contest the approval of the terms and conditions of the proposed Settlement, or if approved, the judgment to be entered thereon, and no papers or brief submitted by any RCA stockholder shall be received and considered by the Court unless not later than October 26, 2016, such stockholder files with the Court and serves upon all of the counsel listed below, at the addresses listed below, the following: (a) a written statement identifying such stockholder's name, address, and telephone number, and, if represented by counsel, the name, address, and telephone number of counsel; (b) proof of current ownership of RCA common stock, including the number of shares of RCA common stock owned by the stockholder and the date or dates of purchase; (c) a detailed written statement explaining the stockholder's objection and the reasons for such objection; and (d) any documentation in support of such objection that the stockholder desires the Court to consider. If the stockholder wishes to appear at the Settlement Hearing, he, she, or it must also include a statement of intention to appear at the Settlement Hearing. Clerk of Court United States District Court Southern District of New York Daniel Patrick Moynihan United States Courthouse 500 Pearl Street New York, NY 10007-1312 Court overseeing the Action Daniel Albert Kessler Topaz Meltzer & Check, LLP 280 King of Prussia Road Radnor, PA 19087 Counsel for Plaintiff Bradley Bobroff PROSKAUER ROSE, LLP Eleven Times Square New York, NY 10036-8299 Counsel for Defendants Any person or entity who fails to object in the manner provided above shall be deemed to have waived such objection (including the right to appeal), and absent good cause found by the Court shall forever be barred from making any such objection in the Action contesting any aspect of the Settlement, but shall otherwise be bound by the Final Order and Judgment to be entered and the releases to be given. VIII. FINAL ORDER AND JUDGMENT OF THE COURT If the proposed Settlement is approved by the Court following the Settlement Hearing as fair, reasonable, and adequate to RCA and its stockholders, the Parties will jointly request that the Court enter a Final Order and Judgment which will, among other things: (i) determine that the requirements of due process have been satisfied in connection with the Notice provided to RCA stockholders; (ii) approve the Settlement as fair, reasonable, and adequate to RCA and RCA stockholders; (iii) dismiss the Action with prejudice on the merits as against any and all Defendants without costs except as provided herein; (iv) release Defendants and any other of the Released Parties from Plaintiff's Released Claims, and release Plaintiff and Plaintiff's counsel from Defendants' Released Claims; and (v) determine whether to approve an award of attorneys' fees and expenses incurred by Plaintiff in connection with the prosecution of the Action as provided in Section IX below. IX. THE APPLICATION FOR ATTORNEYS' FEES AND EXPENSES Plaintiff's counsel have not received any payment for their services in pursuing the claims against Defendants in the Action, nor have Plaintiff's counsel been reimbursed for their out-of- pocket expenses. Plaintiff intends to petition the Court at the Settlement Hearing to approve the payment of attorneys' fees and expenses associated with Plaintiff's prosecution of the Action by RCA, its successor in interest, and/or the insurer(s) of RCA, or its successor in interest, in an amount not to exceed in the aggregate $750,000 (the "Fee and Expense Award"). The parties negotiated the Fee and Expense Award at arm's-length and Defendants have agreed not to oppose the Fee and Expense Award. Approval of the Fee and Expense Award shall not be a precondition to the Settlement or to dismissal with prejudice of the Action. X. SCOPE OF THIS NOTICE This Notice is not all-inclusive. The references in this Notice to the pleadings in the Action, the Stipulation and all other papers or proceedings herein are only summaries and do not purport to be comprehensive. For the full details of the Action, the claims that have been asserted in the Action and the terms and conditions of the Settlement, including a complete copy of the Stipulation and related Orders and proposed forms of Orders, you are referred to the Court's instructions at http://www.nysd.uscourts.gov/cases.phpand the Company's public filings. XII. GENERAL INQUIRIES General inquiries about the proposed Settlement should be directed to the attention of Plaintiff's counsel as follows: Daniel Albert Kessler Topaz Meltzer & Check, LLP 280 King of Prussia Road Radnor, PA 19087 PLEASE DO NOT CALL OR WRITE THE COURT WITH GENERAL INQUIRIES. AMERICAN EXPRESS: Obtains Favorable Ruling in Antitrust Suit ------------------------------------------------------------ Larry Neumeister, writing for The Associated Press, reports that American Express did not violate antitrust laws by barring merchants from asking customers to use one credit card over another and steering consumers to another form of payment, a federal appeals court said on Sept. 26. The 2nd Circuit Court of Appeals in Manhattan tossed out a lower- court ruling, saying a Brooklyn judge erred in his February 2015 decision by focusing entirely on the interests of merchants rather than cardholders. It said American Express seemed to get its market share based on its rewards programs and perceived prestige and "there is no reason to intervene and disturb the present functioning of the payment-card industry." To do so, it said, likely would increase the market shares of Visa and MasterCard at the expense of American Express, whose card members tend to be more affluent than its competitors' customers. The written decision by a three-judge panel came in a lawsuit brought in 2010 by the U.S. government and 17 states against American Express, Visa and MasterCard. The lawsuit said that letting merchants steer customers to cards with lower fees for merchants or to other preferred cards would benefit consumers and increase incentives for networks to reduce card fees. Visa and MasterCard entered into consent judgments in 2011 and stopped their anti-steering rules for merchants while American Express proceeded to trial. At a seven-week juryless trial, the American Express Co. argued its policies kept it competitive against the large payment networks of Visa and MasterCard and their bank partners. U.S. District Court Judge Nicholas Garaufis ruled against American Express, finding that the company was violating antitrust laws and had reduced the incentive for credit card companies to compete on price. The judge blocked the company from enforcing its anti- steering rules for a decade. Central to the case were the fees merchants pay to process credit and debit card transactions. Those fees are largely hidden from the average consumer but are a major cost for merchants that accept credit cards. Consumers sometimes indirectly pay more for products and services as merchants pass the cost along. The 2nd Circuit noted that credit card issuers sometimes may increase the fee charged to merchants so they can boost cardholder benefits and effectively decrease prices for cardholders. The appeals court noted that a third of the nation's merchants don't accept American Express cards as it described how businesses decide which cards to accept based on their costs and what benefits each card will provide. It said the rules American Express imposed on merchants to prevent them from steering customers to a particular form of payment "prevent a merchant from seeking high-end clientele by advertising acceptance of Amex cards but then, at the critical point of sale, offering that clientele a discounted price for not using the Amex card." "In this case, we see no monopolistic danger in this purpose," the 2nd Circuit said. Lawyers on both sides did not immediately return messages seeking comment. The 17 states that joined the lawsuit are Maryland, Missouri, Vermont, Utah, Arizona, New Hampshire, Connecticut, Iowa, Michigan, Ohio, Texas, Illinois, Tennessee, Montana, Nebraska, Idaho and Rhode Island. The lawsuit had sought a finding that American Express' actions violated anti-trust laws. ARCELORMITTAL SA: Plaintiffs' Appeal in Securities Case Tossed -------------------------------------------------------------- Alan L. W. D'Silva -- adsilva@stikeman.com -- Alexander Rose, Esq. -- ARose@stikeman.com -- and David Spence, Esq. -- dspence@stikeman.com -- of Stikeman Elliott LLP, in article for Lexology, reports that in the proposed $1 billion class action Rooney v. ArcelorMittal S.A., the Ontario Court of Appeal has clarified that security holders who sell their securities in the secondary market in connection with a take-over bid have no right to pursue an action for misrepresentation under Section 131(1) of the Securities Act (Ontario). The question was one of first impression before the Court. Consistent with the overriding policy objectives of the Securities Act, the Court confirmed that security holders who sell their securities in the secondary market cannot bypass the strict leave requirements, liability caps, and other elements of Part XXIII.1 included by the Legislature as part of the balance struck in creating statutory secondary market liability for mis representations. Background to the Action The plaintiffs were security holders of Baffinland Iron Mines Corporation ("Baffinland"). On September 22, 2010, Baffinland was the subject of an unsolicited take-over bid by Nunavut Iron Ore Acquisition Inc. ("Nunavut Iron Ore"). ArcelorMittal S.A. then made a friendly bid for Baffinland on its own behalf and ultimately made a joint take-over bid with Nunavut Iron Ore. That joint take-over bid expired in February 2011. The appellants commenced a proposed class action, naming Baffinland, Nunavut Iron Ore and ArcelorMittal, along with a number of related entities and individuals. Amongst other things, the appellants alleged that the relevant take-over bid circular and related documents that were sent to Baffinland's security holders and filed with the Ontario Securities Commission contained misrepresentations about the business and affairs of Baffinland. The appellants relied in part, on Section 131(1) of the Securities Act, which provides as follows: 131. (1) Where a take-over bid circular sent to the security holders of an offeree issuer as required by the regulations related to Part XX, or any notice of change or variation in respect of the circular, contains a misrepresentation, a security holder may, without regard to whether the security holder relied on the misrepresentation, elect to exercise a right of action for rescission or damages against the offeror or a right of action for damages . . . The Decision of the Motions Judge The defendants brought various motions to strike the plaintiffs' statement of claim, including a motion to strike the claims of security holders who sold their shares in the secondary market and who sought to rely on Section 131(1) of the Securities Act. The relief requested in respect of secondary market sellers was granted. The motions judge held that security holders who transacted in the secondary market could not rely on Section 131(1) to assert a claim. The Court of Appeal Decision The plaintiffs appealed the decision of the motions judge. The appeal was dismissed. Hourigan J.A., writing for the Court, held that non-tendering security holders could not advance a Section 131(1) right of action for the following reasons: -- It would make no sense for security holders who sold their shares in the secondary market to be given a right of rescission. Therefore, Section 131(1), which gives a right of rescission, was clearly not meant to include such security holders; -- The Legislature is presumed to have created a coherent and consistent legislative scheme and Part XXIII.1 of the Securities Act already extends a remedy to secondary market sellers for misrepresentation in a take-over bid circular; and -- The aim of Section 131(1) is to assist sellers in making an informed choice about whether to tender an offer to a bid, not to make an informed decision about the sale of shares in the secondary market. In drafting Part XXIII.1 of the Securities Act, the Legislature sought to include adequate protections to prevent unmeritorious claims and inordinate delays in the prosecution of statutory secondary market class actions. It was for this reason that the Legislature included a leave requirement in Part XXIII.1 and capped liability. By its decision, the Court of Appeal has made it clear that proposed representative plaintiffs cannot use Section 131(1) to bypass these restrictions. AUSTRALIA: Faces Class Action Over Christmas Island Boat Disaster ----------------------------------------------------------------- Ben Doherty, writing for The Guardian, reports that "complete chaos" in communications between customs, the navy and government officials in Canberra meant "at least 20 minutes were allowed to pass by" before naval vessels were sent to rescue a stricken asylum seeker boat off Christmas Island in 2010, resulting in the deaths of 50 people, the New South Wales supreme court has heard. On the morning of December 15, 2010, an asylum seeker boat -- Siev 221 -- unpowered and drifting off the coast of Christmas Island, was dashed on to the island's cliffs by massive swells, breaking the vessel up and throwing dozens of the 89 asylum seekers on board into the sea. Fifty people, including 15 children, died in Australia's worst civil maritime disaster in more than a century. Several of the survivors from the boat that day and others who lost relatives in the disaster have launched a class action to sue the Australian government, alleging that government agents were negligent in failing to respond to the unfolding disaster quickly enough. In the supreme court before Justice Geoffrey Bellew on Sept. 26, counsel for both sides paid tribute to naval and customs staff for their "extraordinary bravery" in rescuing more than 40 asylum seekers from the boat and the ocean, but disputed the speed with which naval crews were dispatched to save the stricken vessel. Siev ("suspected irregular entry vessel") 221 was first spotted in rough seas off Christmas Island at 5:10 a.m. by witnesses onshore. It was reported as being within 100 metres of the shore at 5:20 a.m. Its engine failed at 6:40 a.m. and it was forced by waves on to the rocks at 7:10 a.m. For the plaintiffs, Michael Cranitch SC played to the court a series of videos that showed the 30-metre wooden fishing vessel being tossed by waves closer and closer to the island's rocks. The videos showed the boat dangerously overcrowded, with passengers clinging to a mast in the middle of the deck. Those on board can be heard screaming as the boat is pushed closer to the rocks, and then overwhelmed by the spray sent back from the cliffs. Watching the boat in severe distress, one person can be heard on the video asking: "Where the fuck's the navy?" "This is really bad on their part," another witness says. In a later video, the first voice says: "I can't believe it, it's going to end in disaster. Where's the navy ship to take them under tow?" In the final video, the boat is thrown violently into the cliff face, the screams of those onboard overwhelmed by the sound of the wooden boat smashing into the rocks. For the defense, Dr Andrew Bell SC objected to the "amateur commentary" on the videos, but not the footage itself. A series of phone calls was also played for the court that revealed confusion among government officials about where the boat was, and whether it might be another asylum seeker boat already intercepted the day before. Calls between officials on Christmas Island, Canberra, and naval ships in the area revealed confusion over where "Rocky Point" was on the north-eastern tip of Christmas Island, as well as whether the boat sighted by residents was Siev 220, already under control of the navy. As phone calls were made between Christmas Island, the ships offshore, and officials in Canberra, initially relaxed communications became more frantic as the seriousness of the disaster became apparent. Initially, those on board the boat were said to "look like they could be in a bit of trouble". A later phone call reports "we've got a major catastrophe here", with a witness reporting the boat was "smashing against the cliffs". The plaintiffs' statement of claim to the court argues that Siev 221 entered Australia's contiguous zone at 9pm on 14 December. It sailed into Australian territorial waters at 2am and the country's coastal waters at 5am. Siev 221 entered Flying Fish Cove -- Australian internal waters -- at 6.40am, and broke apart half an hour later. The plaintiffs argue that the Australian government knew, or should have known, that the boat was unseaworthy, and that it had a duty of care to assist those on board, particularly when it became apparent the boat's distress presented a Solas -- safety of life at sea -- situation. Two ships, the ACV Triton and HMAS Pirie, were in a position to assist and were not dispatched in time to save the stricken vessel, the court was told. After the alarm was raised about Siev 221's distress, Mr. Cranitch said: "At least 20 minutes were allowed to pass by, before Pirie responded, for reasons which are . . . obscure." He said there had been "complete chaos" in the communications systems the government had put in place. Mr. Cranitch told the court that it was important to note that asylum seekers who came to Australia by boat seeking protection committed no crime by entering Australia. It was illegal to "people smuggle", he said, to organize an asylum seeker voyage, but that "doesn't mean that persons who are being transported for the purpose of seeking protection are engaged in any criminal activities. In fact, quite the contrary." Government policy aimed to save lives at sea by imposing significant sanctions on those who arranged voyages, Mr. Cranitch said. "There are a range of offences for people smuggling, but there are no criminal offences for those smuggled," he said. For the defense, Mr. Bell told the court that the events of 15 December 2010 were a "great human tragedy" but that nothing could reasonably have been done to avert the disaster. "Hindsight is a marvellous thing," he said. "Difficult operational judgments had to be made." Mr. Bell disputed that government had been negligent in breaching any duty of care. He said naval vessels had been dispatched as soon as practicable. "There is nothing that could have been done in sufficient time to avert any of the loss. There were great acts of bravery and professionalism on the part of naval officers." In 2012, an eight-month inquest by the West Australian coroner into the shipwreck criticized the federal government for failing to provide rescue vessels on Christmas Island, despite the likelihood a maritime tragedy would occur. Coroner Alastair Hope said the Siev 221 disaster was "generally foreseeable" and that a similar disaster remained an "ongoing risk while these boats continue to travel to Christmas Island". "I cannot accept that it would be beyond the capability of border protection command to put in place a surveillance capability that would be more effective than island residents coincidentally looking out to sea." Operation Sovereign Borders, instituted by the Coalition government upon its election to power in 2013, has dramatically slowed the rate of asylum seeker boats arriving in Australia waters. The last asylum seeker boat to reach Australian territory was in May this year, when a group of Sri Lankan asylum seekers reached the Cocos Islands. A people smuggling kingpin, Abraham Louhenapessy, known as Captain Bram, was arrested in Jakarta on Sept. 23 after a joint operation by Australian federal police and the Indonesian authorities. It is the third time in a decade Bram has been arrested for people smuggling. He has been operating across the archipelago since 1999 and is believed to have arranged passage for more than 1,500 asylum seekers to Australia. Bram is allegedly responsible for organizing an asylum seeker boat that was intercepted by Australian border officials in May last year and turned back to Indonesia, reportedly after Australian government agents paid the crew between $5,000 and $6,000 each in US currency. AVVO INC: First Amendment Protects Advertising Shakedown -------------------------------------------------------- Karen E. Rubin, Esq. -- Karen.Rubin@ThompsonHine.com -- of Thompson Hine LLP, in an article for Lexology, reports that Avvo has a First Amendment right to use a lawyer's publically-available information to generate advertising revenue for itself, the district court for the Northern District of Illinois held on September 12. As we've explained before, Avvo's business model works like this: * Avvo creates "profile pages" of individual lawyers using publically-available data; * then, Avvo collects a fee from lawyers to allow them to put ads for their practices on the profile pages of lawyers who don't pay the fee -- and the lawyer profiles where the paid ads appear are those of head-to-head competitors; * then, if you are the target of this shake-down tactic, you can pay a fee to keep Avvo from putting ads for your competitors on your profile page. Nice, right? "Non-commercial" speech And it's all protected by strict constitutional scrutiny as non- commercial free speech, said the district court, in dismissing the putative class action of an Illinois lawyer who said that Avvo's gambit violated state law by using his identity for commercial purposes without his permission. In granting Avvo's motion to dismiss, the district court said that [T]o hold otherwise would lead to the unintended result that any entity that publishes truthful newsworthy information about individuals such as teachers, directors and other professionals, such as a newspaper or yellow page directory, would risk civil liability simply because it generated revenue from advertisements placed by others in the same field. The court viewed the Avvo site as a mere directory, and analogized it to Sports Illustrated magazine: just like the magazine has editorial content plus ads, the Avvo site has non-commercial speech consisting of the lawyer profiles -- plus ads. The court reasoned that just as ads do not convert the entire magazine into commercial speech, Avvo's ads do not "turn the entire attorney directory into commercial speech." Money train So the Avvo juggernaut rolls on. In August, reports Bob Ambrogi's Law Sites, "a California lawyer dropped his putative class action against Avvo after Avvo brought a motion to strike the complaint under California's anti-SLAPP law." Avvo has also successfully torpedoed a 2007 federal class action complaint in Washington and a suit filed in Florida that was later transferred to Washington. Ambrogi quotes Avvo's chief legal officer on the company's win: "This is further validation that publishers like Avvo needn't obtain the consent of their subjects prior to exercising their First Amendment rights," said Josh King. As I reported in February, Avvo has taken my Ohio bar information, found a picture of me (though it is a gorgeous one, I must say), and put up my profile, all without my permission. And there are still four ads for other lawyers on my profile page so Avvo continues to use my data to make money for itself. No phone book or lawyer directory that I know of has Avvo's rapacious business model. But as long as courts continue to see Avvo as a mere phone book -- or worse, a magazine -- it will continue to expand its empire at the expense of lawyers who won't play along. BANCORP INC: December 15 Settlement Fairness Hearing Set -------------------------------------------------------- The following statement is being issued by Bernstein Litowitz Berger & Grossmann LLP and Spector Roseman Kodroff & Willis, P.C. regarding In Re The Bancorp Inc. Securities Litigation. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE IN RE THE BANCORP INC. SECURITIES LITIGATION CASE NO. 14-CV-0952 (SLR) SUMMARY NOTICE OF (I) PENDENCY OF CLASS ACTION, CERTIFICATION OF SETTLEMENT CLASS, AND PROPOSED SETTLEMENT; (II) SETTLEMENT FAIRNESS HEARING; AND (III) MOTION FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF LITIGATION EXPENSES TO: All persons or entities who purchased or otherwise acquired the common stock of The Bancorp, Inc. ("Bancorp") during the period from January 26, 2011 through June 26, 2015, inclusive (the "Settlement Class Period"), and were damaged thereby (the "Settlement Class"): PLEASE READ THIS NOTICE CAREFULLY, YOUR RIGHTS WILL BE AFFECTED BY A CLASS ACTION LAWSUIT PENDING IN THIS COURT. YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the United States District Court for the District of Delaware, that the above-captioned litigation (the "Action") has been certified as a class action on behalf of the Settlement Class, except for certain persons and entities who are excluded from the Settlement Class by definition as set forth in the full printed Notice of (I) Pendency of Class Action, Certification of Settlement Class, and Proposed Settlement; (II) Settlement Fairness Hearing; and (III) Motion for an Award of Attorneys' Fees and Reimbursement of Litigation Expenses (the "Notice"). YOU ARE ALSO NOTIFIED that Lead Plaintiffs in the Action have reached a proposed settlement of the Action for $17,500,000 in cash and the implementation of certain corporate governance reforms (the "Settlement"), that, if approved, will resolve all claims in the Action. A hearing will be held on December 15, 2016 at 3:00 p.m., before the Honorable Sue L. Robinson at the United States District Court for the District of Delaware, J. Caleb Boggs Federal Building, 844 N. King Street, Courtroom 4B, Wilmington, Delaware 19801-3568, to determine: (i) whether the proposed Settlement should be approved as fair, reasonable, and adequate; (ii) whether the Action should be dismissed with prejudice against Defendants, and the Releases specified and described in the Stipulation and Agreement of Settlement dated July 27, 2016 (and in the Notice) should be granted; (iii) whether the proposed Plan of Allocation should be approved as fair and reasonable; and (iv) whether Co-Lead Counsel's application for an award of attorneys' fees and reimbursement of expenses should be approved. If you are a member of the Settlement Class, your rights will be affected by the pending Action and the Settlement, and you may be entitled to share in the Settlement Fund. If you have not yet received the Notice and Claim Form, you may obtain copies of these documents by contacting the Claims Administrator at Bancorp Securities Litigation, c/o GCG, P.O. Box 10308, Dublin, OH 43017- 5908, 1-888-264-1308, info@bancorpsecuritieslitigation.com. Copies of the Notice and Claim Form can also be downloaded from the website maintained by the Claims Administrator, www.BancorpSecuritiesLitigation.com If you are a member of the Settlement Class, in order to be eligible to receive a payment under the proposed Settlement, you must submit a Claim Form postmarked no later than January 13, 2017. If you are a Settlement Class Member and do not submit a proper Claim Form, you will not be eligible to share in the distribution of the net proceeds of the Settlement but you will nevertheless be bound by any judgments or orders entered by the Court in the Action. If you are a member of the Settlement Class and wish to exclude yourself from the Settlement Class, you must submit a request for exclusion such that it is received no later than November 25, 2016, in accordance with the instructions set forth in the Notice. If you properly exclude yourself from the Settlement Class, you will not be bound by any judgments or orders entered by the Court in the Action and you will not be eligible to share in the proceeds of the Settlement. Any objections to the proposed Settlement, the proposed Plan of Allocation, or Co-Lead Counsel's motion for attorneys' fees and reimbursement of expenses, must be filed with the Court and delivered to Co-Lead Counsel and Defendants' Counsel such that they are received no later than November 25, 2016, in accordance with the instructions set forth in the Notice. Please do not contact the Court, the Clerk's office, Bancorp, or its counsel regarding this notice. All questions about this notice, the proposed Settlement, or your eligibility to participate in the Settlement should be directed to the Claims Administrator or Co-Lead Counsel. Requests for the Notice and Claim Form should be made to: Bancorp Securities Litigation c/o GCG P.O. Box 10308 Dublin, OH 43017-5908 1-888-264-1308 info@bancorpsecuritieslitigation.com www.BancorpSecuritiesLitigation.com Inquiries, other than requests for the Notice and Claim Form, should be made to Co-Lead Counsel: John Rizio-Hamilton, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 1251 Avenue of the Americas, 44th Floor New York, NY 10020 1-800-380-8496 blbg@blbglaw.com Robert M. Roseman, Esq. SPECTOR ROSEMAN KODROFF & WILLIS, P.C. 1818 Market Street, Suite 2500 Philadelphia, PA 19103 1-888-844-5862 classaction@srkw-law.com By Order of the Court BANK OF AMERICA: "Clark" Suit Seeks to Recoup Pay Under FLSA ------------------------------------------------------------ MAUREEN CLARK and SONYA ALEXANDER, individually, and on behalf of all others similarly situated, Plaintiffs, vs. BANK OF AMERICA CORPORATION, Defendant, Case 2:16-cv-02228 (D. Nev., September 21, 2016), alleges willful violations of the Fair Labor Standards Act by Defendants by failing to pay Plaintiffs and all similarly situated employees for their pre-shift time spent booting up their computers, logging into required computer software applications, and reviewing work-related e-mails and other information. Defendant operates and has operated "call centers" in Las Vegas and other locations across the country where telephone-dedicated employees -- customer service agents -- handle phone calls regarding banking and investment services offered by Defendant to its customers. The Plaintiffs are represented by: Don Springmeyer, Esq. Bradley S. Schrager, Esq. Justin C. Jones, Esq. WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP 3556 E. Russell Road, Second Floor Las Vegas, NV 89120 Phone: (702) 341-5200 Fax: (702) 341-5300 E-mail: dspringmeyer@wrslawyers.com bschrager@wrslawyers.com jjones@wrslawyers.com - and - Kevin J. Stoops, Esq. Jesse L. Young, Esq. SOMMERS SCHWARTZ, P.C. One Towne Square, 17th Floor Southfield, MI 48076 Phone: 248-355-0300 E-mail: kstoops@sommerspc.com jyoung@sommerspc.com - and - Jason T. Brown, Esq. Nicholas Conlon, Esq. JTB LAW GROUP, L.L.C. 155 2nd Street, Suite 4 Jersey City, NJ 07302 Phone: (201) 630-0000 E-mail: jtb@jtblawgroup.com nicholasconlon@jtblawgroup.com BARNES & NOBLE: Cafe Manager Sues Over Overtime Pay --------------------------------------------------- Barry J. Waters -- bwaters@murthalaw.com -- of Murtha Cullina, in an article for The National Law Review, reports that a Chicago- based Barnes & Noble Cafe Manager filed a collective action on September 20, 2016 in federal court, Southern District of New York, seeking overtime compensation for herself and similarly situated individuals who have worked as Cafe Managers "or in comparable roles with different titles", for Barnes & Noble anywhere in the United States. According to the complaint, Barnes & Noble operates 640 retail stores in the 50 states. Brown v. Barnes and Noble, Inc., 1:16-cv-07333-RA (S.D.N.Y. 2016). The plaintiff, Kelly Brown, claims that Barnes & Noble deliberately understaffs its Cafes, and strictly manages hours worked by non-exempt Cafe employees to avoid paying them overtime. As a consequence, the suit claims, Cafe Managers "spend the vast majority of their time performing the same duties as non-exempt employees, such as: making coffee and other beverages, preparing food, serving customers, working the cash register and cleaning the Cafe." Ms. Brown claims that Cafe Managers regularly work in excess of forty hours and frequently work ten or more hours a day. The lawsuit asserts that Cafe Managers are not exempt "executive" employees because they: (1) are closely supervised by their Store Managers and their work is specifically defined by corporate policies and procedures; and (2) are not responsible for the overall performance of the stores, or for coaching, evaluating, hiring or firing employees. To be exempt from overtime as an executive employee, the employee must satisfy both the duties and the salary test: Duties Test The "executive" exemption requires that the employee: 1. regularly supervises two or more other employees; 2. has management as the primary duty of the position; and 3. has some real input into the job status of other employees (such as hiring, work assignments, promotions and/or firing). With regard to the first factor, the supervision must be a regular part of the employee's job. The "two employees" requirement may be met by supervising two full-time employees or the equivalent number of part-time employees. For the second factor, the FLSA Regulations set forth a list of typical management duties, which, in addition to supervising employees, includes: * interviewing, selecting, and training employees; * setting rates of pay and hours of work; * maintaining production or sales records (beyond the merely clerical); * appraising productivity; handling employee grievances or complaints, or disciplining employees; * determining work techniques; * planning the work; * apportioning work among employees; * determining the types of equipment to be used in performing work, or materials needed; * planning budgets for work; * monitoring work for legal or regulatory compliance; and * providing for safety and security of the workplace. An employee may qualify as performing executive job duties even if she performs a variety of "regular" job duties, such as preparing food or drinks and/or serving customers. However, she must also perform at least some of the tasks a "boss" would typically perform, as set out. For example, the executive must have genuine input into personnel matters. This does not require that the employee be the final decision maker, but the employee's input must be given "particular weight." Salary Test Ms. Brown's salary of $33,000 is above the current salary threshold for exempt employees, $23,600. However, the new USDOL Rule will raise the threshold to $47,476 effective December 1, 2016. Recent Attorneys General Court Challenge to New Salary Test On September 20, 2016, the same day that Ms. Brown filed her lawsuit, officials from 21 U.S. states filed a lawsuit claiming that the DOL acted unlawfully in issuing the new salary limit, which the states assert will place a heavy burden on state budgets. Hours after the states announced their lawsuit, the U.S. Chamber of Commerce and other business groups filed a separate challenge to the rule in the same federal court in Sherman, Texas. Business groups and Republican officials say that the rule will force employers to demote salaried workers to hourly positions and create more part-time jobs. Whether this challenge is sustained, the Barnes & Noble case serves as a reminder that an employee must meet both the duties and the salary tests to qualify for the exemption. TAKE-AWAYS: 1. Regardless of which salary threshold applies, the "duties" test remains unchallenged. 2. The restaurant and related-food and drink businesses are targets for plaintiff class action lawyers. 3. Assistant Managers in larger operations have asserted claims similar to Ms. Brown's here: that is, that they primarily do the same work as the rank-and-file employees. 4. All employers should conduct regular audits of the jobs currently classified as exempt. We are reminded again and again in the case law that the employee's job title is not the a significant factor in the outcome. 5. Non-compliance will result in exposure for the overtime pay owed plus heavy penalties; double damages under federal and Connecticut law, treble damages under Massachusetts law. BHP BILLITON: Texas Gate Workers File Wage Class Action ------------------------------------------------------- Sarah Danckert, writing for The Sydney Morning Herald, reports that Australian mining giant BHP Billiton has been hit with a class action over the alleged underpayment of gate workers based at its shale oil operation in Texas after they were "magically" converted from employees to independent contractors. Former gate worker Linda Cox filed her claim seeking a jury trial against Chapa Gate Guard Service, BHP Billion and BHP Billiton Petroleum in Texas last week. It is alleged the companies breached their obligations to up to 50 workers under the Fair Labor Standards Act -- an act passed in 1938 to stamp out low wages and long hours in America. The filing describes BHP as the ultimate employer under the act and adds that BHP Billiton Petroleum was "actively engaged in the conduct described" and "knowingly, wilfully and with reckless disregard carried out its illegal pattern". It is alleged the underpayment occurred over the past three years at Dilworth Ranch, part of the Eagle Ford shale oil operation BHP acquired through its purchase of Petrohawk Energy in 2012. About 50 workers are expected to participate in the claim. "Despite being classified as 'employees', defendants paid plaintiff less than minimum wage," Ms. Cox's complaint alleges. "Defendants also did not pay them overtime," the complaint adds. Gate keeper Ms. Cox says she was employed as a guard at one of about 25 gates at the 3650-hectare Dilworth Ranch in Texas between October 2012 to July 2014 when she quit. According to Ms. Cox's claim, the gate guards "were responsible for opening and closing the gates for . . . BHP's truck drivers and other security measures such as the completion gate access logs". "Plaintiff and the collective members were 'on call' throughout the night 24 hours a day, seven days a week responding to heavy oilfield truck and equipment at a gate," the claim says. "Plaintiff and the collective members were directed to live on the premises next to the gates at the Dilworth Ranch." Ms. Cox alleges that until December 2015 workers were classified as employees, but "magically" changed to independent contractors even though the terms and conditions of work remained identical. A spokesman for BHP said the company was reviewing the complaint and will defend the claims when it is served. "BHP Billiton is aware of this action, but it has not yet been formally served on the company," the spokesman said. Dealing with disputes The claim comes as BHP Billiton revealed that it and its Brazil joint venture partner Vale are facing $79 billion in potential legal claims as a result of the deadly Samarco disaster last year. The complaint also adds to BHP's list of industrial relations stoushes that have included BHP Billiton Mitsubishi Alliance's long tussle with the Construction, Forestry, Mining and Energy Union after requesting workers in Queensland take a three-year pay freeze along with concessions and a dispute with the Australian Workers' Union over changed conditions for workers at its Bass Strait operations. It has also run into trouble with unions representing tug boat workers in Port Hedland. It is unclear whether a union is assisting Ms Cox with her complaint. BLACK LIVES: Sued for Inciting Racial Violence Against Police ------------------------------------------------------------- Jessica Chasmar, writing for The Washington Times, reports that a Dallas police sergeant has filed a federal lawsuit against Black Lives Matter leaders, President Obama, George Soros and others for allegedly inciting racial violence against law enforcement. Sgt. Demetrick Pennie, president of the Dallas Fallen Officer Foundation and a 17-year law enforcement veteran, filed the amended complaint in federal court on Sept. 16 seeking between $500 million and $1.5 billion, the Dallas Morning News reported. The defendants named in the class-action suit also included Democratic presidential nominee Hillary Clinton, former Attorney General Eric Holder, Louis Farrakhan and the Nation of Islam, Al Sharpton and the National Action Network, Malik Zulu Shabazz and the New Black Panther Party. The lawsuit said the defendants "stoked a race war" and "repeatedly incited their supporters and others to engage in threats and attacks" against police officers. The complaint singled out George Soros as "the financier of the BLM Defendants and similar organizations with the goal of inciting a race war and inciting and advocating deadly violence against law enforcement officers, Caucasians, and Jews," Breitbart News reported. Sgt. Pennie, who is black, is being represented by attorney Larry Klayman, the founder of Judicial Watch and Freedom Watch. "Sergeant Pennie and I feel duty-bound to put ourselves forward to seek an end to the incitement of violence against law enforcement which has already resulted in the death of five police officers in Dallas and the wounding of seven more, just in Texas alone," Mr. Klayman said in a statement. "The defendants, if not legally reined in, are allegedly responsible, along with others, for igniting a race war that will ultimately totally destroy the freedoms that our Founding Fathers bequeathed to us." The lawsuit was filed hours before two Texas police officers were shot while responding to a suicide call in Fort Worth, Fox News reported. Officers Xavier Serrano and Ray Azucena are both expected to survive. BMO HARRIS: "Behrens" Suit Seeks Wages Under Collection Act ----------------------------------------------------------- BYRON BEHRENS, individually and on behalf of all others similarly situated, Plaintiffs, v. BMO HARRIS BANK N.A., the Defendant, Case No. 2016CH12560 (Ill. Cir. Ct., Sep. 22, 2016), seeks to recover all wages and compensation which Plaintiffs should have been entitled to as employees pursuant to the Illinois Wage Payment and Collection Act. Through Defendant's alleged deliberate, intentional, systematic and reoccurring business practice, the Plaintiffs were intentionally mischaracterized as 1099 independent contractors and not W-2 employees, who were compensated as independent contractors and had to pay FICA taxes accordingly and did not receive the same employment benefits granted to Defendant's other W-2 employees performing sustainably similar job duties. Through Defendant's deliberate, intentional, systematic and reoccurring business practice referenced above, Defendant was unjustly enriched to Plaintiffs' detriment by receiving benefits such as the work performed by Plaintiffs without Defendant needing to pay the employer portion of FICA taxes, make contributions to Plaintiffs' retirement accounts or providing other employment benefits such as insurance coverage. BMO Harris Bank is a United States bank based in Chicago, Illinois. It is a member of the Federal Reserve System and operates branches in the states of Illinois, Indiana, Arizona, Missouri, Minnesota, Kansas, Florida, and Wisconsin. BP SOLAR: Dec. 22 Class Action Settlement Approval Hearing Set -------------------------------------------------------------- The following statement is being issued by Birka-White Law Offices and Lieff Cabraser Heimann & Bernstein, LLP, regarding the BP Solar class action settlement. You may be entitled to replacement solar panels and/or a new inverter from a BP Solar Settlement Para una notificacion en Espanol, llamar 1-844-360-2767 o visitar nuestro website www.BPSolarSettlement.com A Settlement has been reached in a class action lawsuit against BP Solar and Home Depot involving solar panels manufactured between 1999 and 2007 with an S-type junction box ("Class Panels"). You may be entitled to benefits from a $45.33 million common fund or a separate, $20 million claims-made settlement. The lawsuit claims these panels are defective and prone to junction box failures, which could cause burn marks at the junction box, shattered glass, and be a potential fire hazard. BP and Home Depot deny these claims. Who's Included? The Settlement includes anyone in the United States who: (1) purchased certain BP solar panels for installation on a property, or (2) currently owns a property on which these panels are installed and, in either case, who still owns some or all of the BP solar panels. The panels were sold through various distributors and retailers, including but not limited to Solar Depot and Home Depot. What does the Settlement provide? Subject to Court approval, a $45.33 million fund will be created to pay for the removal and replacement of a subset of Class Panels (Category 1), and to pay administration, attorneys' fees and costs, and Class Representative awards. A separate $20 million fund will be established for the remaining Class Panels (Category 2), which have a lower failure rate. Category 2 claimants will be entitled to a free visual inspection to identify any failed panels, replacement of failed panels, replacement of all panels if over 20% of panels have failed and, if not all panels are replaced, a free inverter with arc fault detection. Non-residential class members with 400 or more Class Panels will be invited to commercial negotiations. Complete details are found on the website. How can I receive benefits? You must file a claim to receive benefits. You can file a claim online at www.BPSolarSettlement.com or call 1-844-360-2767. Category 1 claims will be paid until the Fund is spent. Category 2 claims will last for three years after it starts or until the $20 million fund is spent. What are my rights? If you want to keep your right to sue the Defendants yourself, you must exclude yourself from the Settlement Class by November 28, 2016. If you exclude yourself you will not receive benefits from the Settlement. If you stay in the Settlement Class, you may object to the Settlement by November 28, 2016. If you do nothing, you will not receive any benefits but you will still be bound by the Court's decisions. The Court will hold a hearing on December 22, 2016 at 3:00 p.m. PST to consider whether to approve the Settlement and a request for attorneys' fees of up to $11 million, plus reimbursement of attorneys' costs and expenses up to $600,000. The motion for attorneys' fees and costs and class representative service awards will be posted on the website after they are filed. You or your own lawyer may appear at the hearing at your own expense. This is only a summary, so please visit the website for complete information. CANADA: Brockville Jail Inmate Files Class Action Over Beatings --------------------------------------------------------------- Andrew Seymour, writing for Ottawa Sun, reports that an inmate whose beating in the Brockville jail led a judge to question whether it was time for a public inquiry into Ontario's jails has filed a half-million-dollar lawsuit against the province. In a statement of claim filed in August, Francis Jesse Deguire alleged he had offered to sleep on the floor rather than be placed in the cell with the violent offenders who beat him so severely that he nearly lost one of his eyelids. The 39-year-old carpenter and father of four had only four days of a sentence for drunk driving left to serve when he alleges he was thrown into metal beds, sinks and the floor. He was also repeatedly kicked in the face, back of the head, shoulder and back during the April 29, 2014 assault. The "prolonged assault" in "dorm two" occurred just minutes after Mr. Deguire was placed in the cell, despite his pleas to correctional officers that they put him in another dorm where he felt safer, according to the statement of claim. Mr. Deguire alleged he had offered to sleep on the floor in the other dorm, as he had done during a previous stay at the jail, but that request was refused by correctional officers, who told him the dorm he wanted to stay in was full. According to the statement of claim, Mr. Deguire described how after he was placed in the cell, his three attackers asked him about where he had come from and how long he'd be there. When Mr. Deguire told them he'd be released in a couple of days and wanted to keep to himself, one of the inmates wrapped his arm around him while another slapped his genitals and told him that they were going to "have fun tonight." When Mr. Deguire nudged them to move away, he was put in a headlock and attacked. Mr. Deguire alleges it wasn't until a jail employee delivered the meal trays that the assault stopped, even though it was being recorded on video surveillance. Correctional officers eventually showed up at the cell door, but didn't enter. Instead, they asked one of the inmates who assaulted Mr. Deguire to bring him to the cell bars so he could be removed, the statement of claim alleged. By this time, the other inmates had moved Mr. Deguire to the shower so correctional officers couldn't see him. Mr. Deguire was taken to the Brockville General Hospital where he received 10 stitches to reattach his left eyelid. Mr. Deguire also suffered a laceration above his left eye. X-rays were also taken. To add insult to injury, when Mr. Deguire was returned to the jail about five hours later, he was placed in the dorm that he had originally requested. He was released from custody 72 hours later. Criminal charges were laid against the three men who attacked Mr. Deguire. The statement of claim alleges all three have since pleaded guilty. During the June sentencing hearing for attacker Kevin Cleroux, Ontario Court Justice Peter Wright said the attack "raises serious issues of safety, about the ability of correctional officers to respond, their authority, training, planning and supervision." Justice Wright said correctional officers were told someone was being punched out, but didn't enter the cell. Instead they were told to "go away" and were not allowed into the dorm, Justice Wright said. "(The) Crown says you can't blame the authorities for not going into a cell and being beaten up," said the judge. "By the same token, surely society -- the institutions -- have an obligation and a duty to protect inmates." In his statement of claim, Mr. Deguire alleged that even the Crown prosecutor in the case, Claudette Breault, told him he never should have been placed in the same cell as the three men who attacked him. Mr. Deguire alleges he now suffers head, neck, shoulder and back pain on a daily basis and is seen by specialists for his vision, hearing and brain injuries. He struggles to get enough sleep to work even a half day, and feels dizzy when climbing on scaffolding. According to his statement of claim, Mr. Deguire can no longer work full-time and has had his hours cut in half, now earning a lower hourly wage. Mr. Deguire alleged the province was negligent and owed him a duty of care while he was incarcerated at the jail. He's seeking $500,000 in damages in a lawsuit filed by lawyer Paul Champ, who is representing hundreds of current and former inmates of the Ottawa-Carleton Detention Centre in a proposed class action lawsuit over jail conditions there. "The defendant has undertaken by legislation to provide for the custody, care and supervision of individuals incarcerated at the Brockville jail," said his statement of claim. None of the allegations have been proven, and the ministry has yet to file a statement of defense. The ministry has declined to comment on the case while it's before the courts. CANADA: Faces Class Action Over Tax on Foreign Home Buyers ---------------------------------------------------------- Eric Rankin, writing for CBC News, reports that it's taken just over six weeks, but B.C.'s controversial tax on foreign home buyers is now facing a major legal challenge. A class-action lawsuit has been filed in B.C. Supreme Court on behalf of virtually all non-Canadians who have been forced to pay an extra 15 per cent under amendments to the Property Transfer tax act. If the lawsuit is certified by the courts and succeeds, the province could be forced to repay hundreds of millions of dollars -- much of the expected revenue now earmarked to pay for affordable housing for British Columbians. The additional charge went into effect August 2, brought in by the B.C. government in an attempt to cool down Metro Vancouver's overheated real estate market. Foreign investors, especially from mainland China, have been blamed by some for fuelling high home prices. Lead plaintiff a university student The lead plaintiff in the case is Jing Li, 29, a university student from the People's Republic of China, now living in Burnaby. In August, Jing told CBC News she was caught in a financial crunch by the imposition of the additional tax. In mid-July, she cobbled together a 10 per cent deposit on a $560,000 townhouse in Langley by borrowing from her parents and friends in China. Twelve days later, the new levy was imposed. The tax added $84,000 to the price of the property. If she backs out of the deal, she will lose her non-refundable deposit of $56,000. "I can't go forward and also can't go back," she told the CBC at the time. Now, in the notice of civil claim filed on Sept. 19, Jing represents nearly all foreign buyers in the province who have been forced to pay the additional 15 per cent. Lawsuit alleges discrimination The suit argues the provincial government has acted outside its jurisdiction, and that only the federal government has the exclusive power over "the conduct and regulation of foreign trade, aliens and the regulation of trade and commerce." The lawsuit also claims the additional tax has the "sole effect of discriminating against [foreign buyers] because of their status as foreign nationals." And that, her lawyer argues, violates more than two dozen international treaties that Canada has signed with nations ranging from Argentina and China, to Russia and the United States -- the latter covered by NAFTA, the North American Free Trade Agreement. "The problem here is that the province has intruded into an area of federal jurisdiction" says Luciana Brasil, a partner with Branch MacMaster Barristers and Solicitors, the law firm that has filed the class-action suit on behalf of Jing. "Because the province chose to use nationality as the basis for the tax, they're intruding into an area of federal jurisdiction. . . . They're violating over 30 international treaties that guarantee equal treatment to these citizens and residents of other countries." 'We say they used the wrong tool' Ms. Brasil says there's no denying there's a real estate problem in Metro Vancouver -- it's just that the province made a mistake when it imposed the additional 15 per cent tax on foreign buyers. "The case is not really about whether there's a housing crisis or whether or not there is a vacancy issue . . . what we take issue with here is the tool that the province chose to use," says Ms. Brasil. "We say they used the wrong tool for the job. It's like trying to use a screwdriver to put a nail on the wall. It just doesn't work." None of the allegations has been proven in court. The B.C. government has yet to file a response to the lawsuit. In order to proceed, the claim will have to be certified as a class action by the B.C. Supreme Court, a process that could take months if not years. In the meantime, it's expected the province will continue to collect the extra 15 per cent tax. CEMEX CONSTRUCTION: Deere Seeks Certification of Two Classes ------------------------------------------------------------ The Plaintiff in the lawsuit titled DEERE CONSTRUCTION, LLC v. CEMEX CONSTRUCTION MATERIALS FLORIDA, LLC and CEMEX INC., Case No. 1:15-cv-24375-CMA (S.D. Fla.), moves for certification of two classes: a class of individuals and entities who were harmed by Cemex's violation of the Florida Deceptive and Unfair Trade Practices Act, and a class of individuals and entities, who were harmed by Cemex's alleged breach of the uniform contracts. The Plaintiff proposes these definitions for the Classes: (1) FDUTPA Class: All individuals and entities residing in Florida that paid an added on or separately listed "fuel surcharge" or "environmental charge" (or other similarly named fee) that was received by Defendant or its related entities at any time from November 25, 2011 through the date of class notice; and (2) Contract Class: All individuals and entities residing in Florida that entered into a written contract with Defendant or its related entities, and that paid an added on or separately listed "fuel surcharge" or "environmental charge" (or other similarly named fee) that was received by Defendant or its related entities at any time from November 25, 2011 through the date of class notice. Excluded from each proposed class are any individual or entity currently in bankruptcy, and any individual or entity whose obligations have been discharged through bankruptcy. Deere Construction also asks the Court to appoint its counsel as class counsel, and allow the Plaintiff 60 days following certification to present the Court with a proposal for class notice. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=KCDn3rvf The Plaintiff is represented by: Harley S. Tropin, Esq. Javier Lopez, Esq. Tal J. Lifshitz, Esq. KOZYAK TROPIN & THROCKMORTON LLP 2525 Ponce de Leon Blvd., 9th Floor Miami, FL 33134 Telephone: (305) 372-1800 Facsimile: (305) 372-3508 E-mail: hst@kttlaw.com jal@kttlaw.com tjl@kttlaw.com - and - Lance A. Harke, Esq. Howard M. Bushman, Esq. HARKE CLASBY & BUSHMAN, L.L.P. 9699 NE Second Avenue Miami, FL 33138 Telephone: (305) 536-8220 Facsimile: (305) 536-8229 E-mail: lharke@harkeclasby.com hbushman@harkeclasby.com - and - J. Matthew Stephens, Esq. MCCALLUM, METHVIN & TERRELL, P.C. 2201 Arlington Avenue South Birmingham, AL 35205 Telephone: (205) 939-0199 Facsimile: (205) 939-0399 E-mail: mstephens@mmlaw.net - and - Archie Lamb, Esq. ARCHIE LAMB & ASSOCIATES, LLC Post Office Box 2088 Birmingham, AL 35201 Telephone: (205) 324-4644 Facsimile: (205) 324-4649 E-mail: alamb@archielamb.com CHESAPEAKE ENERGY: Landowners Sue Over Gas Drilling Royalties ------------------------------------------------------------- Michael Rubinkam, writing for The Associated Press, reports that Jan Brown pores over his royalty statement and wonders where all the money went. A few months ago, the nation's second-largest natural gas producer siphoned $2,201 worth of gas from his 240-acre property, but paid him only $359 after taking deductions for transportation and processing. Mr. Brown, 59, who relies on the royalties as his sole source of income, says the deductions are outrageous and claims his lease forbids them. He feels cheated and duped. In Pennsylvania and other leading gas-producing states, a battle royal has developed over royalties, with landowners bitterly disputing the sums that some drillers have been taking from royalty checks already severely diminished by a collapse in prices. Chesapeake Energy Corp. is facing royalty lawsuits in Texas, Ohio, Louisiana, Oklahoma, Arkansas, and Pennsylvania -- including one filed by the Pennsylvania attorney general -- and says it has received subpoenas from the U.S. Department of Justice, the U.S. Postal Service, and states over its royalty practices. The deductions' impact is especially acute in Pennsylvania, where gas extracted from the Marcellus Shale, the nation's largest natural gas field, has been selling at a steeper discount than anywhere else in the country. Some landowners have seen their royalty checks dwindle to nothing at all, despite a 1979 state law that mandates a landowner royalty of at least 12.5 percent of the value of the gas. In rare cases, landowners have even gotten statements with negative balances. "This is robbery," declared Bradford County Commissioner Doug McLinko, an ardent supporter of gas drilling who has nevertheless found himself at war with the industry. "People up here are fighting mad." Energy companies have sunk more than 1,000 wells in Mr. McLinko's rural county since 2009. In the early years of the fracking boom, royalties could amount to tens of thousands of dollars per month. The money helped save many family farms. Then prices tumbled, the wells began producing less gas as they aged, and residents began taking a closer look at their drastically shrunken checks. Many of them didn't like what they saw: huge deductions for the cost of getting the gas from well to market. Charlene and John Tewksbury, who own a dairy farm, said that for every $1.20 their gas fetched this year, Chesapeake has been taking about $1.15 in deductions. They figure the deductions have totaled $277,000 since their wells began producing gas in 2011 -- cash they want back. "It's a lot of money. It could have done something in this state, but, instead, Chesapeake kept it," Charlene Tewksbury said. Chesapeake did not answer questions from the Associated Press about its practice of taking deductions, but said in a statement that it had been working with the Pennsylvania attorney general's office and class-action plaintiffs on a "global resolution" of the royalty dispute. A mediation session is scheduled for Oct. 25. The disagreement centers on how the gas should be valued for royalty purposes. Landowners contend they are entitled to 12.5 percent of whatever the gas sells for, citing the state's minimum royalty law and the gas companies' own sales pitches that induced landowners to sign drilling leases. Drillers say the royalty is properly calculated based on the market price, less post-production deductions for transportation and processing, a method permitted in most states. CITY OF EAST CHICAGO: "Mabry" Suit Alleges Housing Contamination ---------------------------------------------------------------- KENDRA MABRY, individually and as mother and next friend of K.W., M.C. 1, M.C. 2, J.W. 1, and J.W. 2, who are minors, ANGELA ESPINOZA, individually and as mother and next friend of A. E., R. E., N. C., A. C., and K. C., who are minors, and ROBERTO CABELLO, JR., on behalf of themselves and all other similarly-situated persons, known and unknown, Plaintiffs, v. CITY OF EAST CHICAGO, ANTHONY COPELAND, individually and in his capacity as mayor of the City of East Chicago, BP PRODUCTS NORTH AMERICA, INC., E I DUPONT de NEMOURS AND COMPANY, ATLANTIC RICHFIELD COMPANY, EAST CHICAGO HOUSING AUTHORITY, and TIA CAULEY, individually and in her capacity as the director of the East Chicago Public Housing Authority, Defendants, Case No. 2:16-cv-00402-JVB-JEM (N.D. Ind., September 15, 2016), alleges that the City and ECHA maintained affordable housing for the Tenants including families with children, people with disabilities, and others on land that the City and ECHA knew or reasonably should have known was contaminated with lead, arsenic and/or other toxic substances. The City is an Indiana municipal corporation located in Lake County, Indiana. The City employed Anthony Copeland, who is currently the mayor of East Chicago. ECHA maintained, and maintains, the housing in which the Tenants lived. The Plaintiff is represented by: Roberto Alejandro Mendoza, Esq. ALEX MENDOZA LAW, LLC 6950 S. Indianapolis Blvd. Hammond, IN 46324 Phone: (219) 200-2000 COLORADO: ACLU Files Class Action Over Hepatitis C Treatment ------------------------------------------------------------ Jaclyn Allen, writing for The DenverChannel.com, reports that the ACLU of Colorado is filing a federal class action lawsuit against Colorado's Medicaid program in an effort to increase access to a live-saving drug to treat hepatitis C. The American Civil Liberties Union suit filed on Sept. 19 states that thousands of low-income Coloradans suffering from hepatitis C are being denied treatments that have more than a 90 percent cure rate, but cost about $40,000 per person. "We're sitting on it because of money," said David Higginbothum, a Canon City plumber who believes he contracted hepatitis C while working in a hospital in college. "My doctor just flat out told me they're not going to treat me." Hepatitis C is a life-threatening, infectious disease that attacks the liver, but Medicare will only cover patients in more advanced stages of the disease. The ACLU says the treatments are available without restrictions for patients covered by Medicare, the Veterans Administration, and the overwhelming majority of private insurers in Colorado. "Not only is covering early treatment the right thing to do, it's the legal thing to do" said Mark Silverstein, ACLU of Colorado Legal Director. "We are challenging a policy that forces Coloradans who cannot afford private insurance to live with the serious negative health effects of hepatitis C and to wait for a cure, possibly for years, until they have suffered measurable and potentially irreversible liver damage." There are approximately 14,450 low-income Coloradans infected with hepatitis C who rely on Medicaid for healthcare, according to the Colorado Department of Health Care Policy and Financing. Federal law requires state Medicaid agencies to provide "medically necessary" services and treatments, said Silverstein. "Providing early treatment is the fiscally sound decision long- term and it prevents other infections," said Mr. Silverstein. Mark Williamson, a spokesman with the Colorado Department Health Care Policy and Financing, said the agency will not comment on pending litigation, but pointed to the relaxation on the restrictions in early October. The state Medicaid program changed its policy on Sept. 1 to include patients with a fibrosis score of F2, an intermediate level of liver scarring, and added a new exception for women of childbearing age who inform Medicaid that they plan to get pregnant in the following year. But the ACLU said that policy does not go far enough, which is why the class action lawsuit is seeking an injunction. "The latest policy change is a half-step that falls short of what the law requires, which is full access to medically necessary treatment for all patients with Hepatitis C," said ACLU of Colorado Staff Attorney Sara Neel in a statement. Robert Cunningham, a Denver resident, is the named plaintiff and class representative in the suit. He was diagnosed with Hepatitis C in 2004 and has been denied access to treatment by Colorado Medicaid because his fibrosis score is F1. "Everyone should have the right to treatment that can cure them. It should not be just reserved for some segments of the country, with the poorest being forced to wait and suffer," said Cunningham in a statement. "I want to get healthy, and I want to give people like me a voice and help the system to change." CONOPCO INC: Certification of 3 Classes Sought in "Paulino" Suit ---------------------------------------------------------------- The Plaintiffs in the lawsuit styled LUCIANNE PAULINO and LATU FANAIKA, on behalf of himself and all others similarly situated v. CONOPCO, INC., doing business as Unilever, Case No. 1:14-cv-05145- ARR-RML (E.D.N.Y.), move for certification of these classes: All persons in the United States and its territories who purchased Defendant's Suave Naturals Products during the applicable limitations period (the "Class Period"). Excluded from the Nationwide Class are Defendant's officers and directors; members of the immediate families of Defendant's officers and directors; Defendant's legal representatives, heirs, successors, or assigns; and any entity in which they have or have had a controlling interest. All persons who purchased Defendant's Suave Naturals Products in the State of New York during the Class Period. Excluded from the New York sub-class are Defendant's officers and directors; members of the immediate families of Defendant's officers and directors; Defendant's legal representatives, heirs, successors, or assigns; and any entity in which they have or have had a controlling interest. All persons who purchased Defendant's Suave Naturals Products in the State of California during the Class Period. Excluded from the California Sub-Class are Defendant's officers and directors; members of the immediate families of Defendant's officers and directors; Defendant's legal representatives, heirs, successors, or assigns; and any entity in which they have or have had a controlling interest. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=NAUDGdDO The Plaintiffs are represented by: Kim E. Richman, Esq. THE RICHMAN LAW GROUP 81 Prospect St. Brooklyn, NY 11201 Telephone: (212) 687-8291 Facsimile: (212) 687-8292 E-mail: krichman@richmanlawgroup.com - and - Todd S. Garber, Esq. FINKELSTEIN, BLANKINSHIP, FREI-PEARSON & GARBER, LLP 445 Hamilton Ave, Suite 605 White Plains, NY 10601 Telephone: (914) 298-3283 Facsimile: (914) 824-1561 E-mail: tgarber@fbfglaw.com CORT BUSINESS: "Ramirez" Suit Seeks Unpaid Wages Under Labor Code ----------------------------------------------------------------- ROBERTO C. RAMIREZ an individual, on behalf of himself and others similarly situated the Plaintiff, v. CORT BUSINESS SERVICES CORPORATION; and DOES I-50, inclusive, the Defendant, Case No. BC634871 (Cal. Super. Ct., Sep. 22, 2016), seeks to recover unpaid wages/overtime, penalties pursuant to Labor Code, penalties for failure to provide accurate itemized wage statements, other penalties, injunctive and other equitable relief, and reasonable attorneys' fees and costs. The Defendant has allegedly failed to pay wages and/or overtime to all Proposed Class Members when they work more than eight hours in a day or forty hours in a week. The Plaintiff and other Proposed Class Members were not properly compensated for overtime at the appropriate rate of pay, because Defendant failed to include Cort Points in the regular rate of pay for purposes of calculating overtime in the pay periods where Plaintiff and the Proposed Class earned Cort Points and worked overtime. CORT Business provides furniture rental and relocating services in the United States and internationally. The Plaintiff is represented by: Eric B. Kingsley, Esq. Liane Katzenstein Ly, Esq. Arl J. Stiller, Esq. KINGSLEY & KINGSLEY, APC 16133 Ventura Blvd., Suite 1200 Encino, CA 91436 Telephone: (818) 990 8300 Facsimile: (818) 990 2903 E-mail: eric@kingsleykingsley.com liane@kingsleykingsley.com ari@kingsleykingsley.com DALAMA PROTECTION: Faces "Haughton" Suit Seeking to Recoup Pay -------------------------------------------------------------- RAMOND HAUGHTON, for himself and on behalf of those similarly situated, Plaintiff, vs. DALAMA PROTECTION LLC, a Florida Limited Liability Company; OSVALDO DALAMA, Individually, Defendants, Case No. 0:16-cv-62203-WJZ (S.D. Fla., September 15, 2016), seeks to recover alleged unpaid wages, liquidated damages and reasonable attorneys' fees and costs under the Fair Labor Standards Act. DALAMA PROTECTION LLC -- http://www.dalamaprotection.org/-- provides protection and investigative services. The Plaintiff is represented by: Angel Murthy, Esq. MORGAN & MORGAN, P.A. 600 North Pine Island Road, Suite 400 Plantation, FL 33324 Phone: (954) 318-0268 Fax: (954) 327-3016 E-mail: amurthy@forthepeople.com DALLAS/FORTH WORTH INTERNATIONAL: "Frazier" Suit to Recover OT Pay ------------------------------------------------------------------ Rondellte Frazier, individually and on behalf of all others similarly situated, Plaintiff, v. Dallas/Fort Worth International Airport Board, the Joint Venture Manhattan/Byrne/JRT/3i, Wells Global, LLC, EAS Contracting, LP, Haydon Building Corp., Phillips/May Corporation and Balfour Beatty Construction Corporation, Defendants, Case No. 3:16-cv-02657, (N.D. Tex., September 16, 2016), seeks overtime compensation for all unpaid hours, unpaid wages, liquidated damages, reasonable attorneys' fees, expert fees, costs and expenses of this action, as well as pre-judgment and post-judgment interest under the Federal Fair Labor Standards Act of 1938. Plaintiff worked as a security guard at the Dallas/Fort Worth International Airport through various contractors, namely, Joint Venture Manhattan/Byrne/JRT/3i, Wells Global, LLC, EAS Contracting, LP, Haydon Building Corp., Phillips/May Corporation and Balfour Beatty Construction Corporation, all contractors operating in the airport. Plaintiff is represented by: Chris R. Miltenberger, Esq. THE LAW OFFICE OF CHRIS R. MILTENBERGER, PLLC 1340 N. White Chapel, Suite 100 Southlake, TX 76092-4322 Tel: (817) 416-5060 Fax: (817) 416-5062 Email: chris@crmlawpractice.com DIM SUM: Faces "Lin" Lawsuit Under FLSA, NJ Wage and Hour Law ------------------------------------------------------------- JIAN CHANG LIN on behalf of himself and others similarly situated Plaintiff, v. Dim Sum Villa LLC, d/b/a/ Dim Sum Villa, Emily Kei Defendants, Case No. 2:16-cv-05626-CCC-JBC (D.N.J., September 15, 2016), was filed for alleged violations of the Federal Labor Standards Act, and of the New Jersey State Wage and Hour Law, arising from Defendants' various willful and unlawful employment policies, patterns and/or practices. Dim Sum Villa LLC -- http://www.dimsumvilla.com/-- is a Chinese restaurant. The Plaintiff is represented by: Keli Liu, Esq. HANG AND ASSOCIATES, PLLC 136-18 39th Ave. Suite 1003 Flushing, NY 11355 Phone: (718) 353-8588 Fax: (718) 353-6288 DOOR AND WINDOW: Faces "Briseno" Suit Seeking OT Pay Under FLSA --------------------------------------------------------------- Hector Briseno, on behalf of himself and all other similarly situated persons, known and unknown, Plaintiffs, v. Door and Window Guard Systems, Inc., and James Heagney, Defendants, Case No. 1:16-cv-08963 (N.D. Ill., September 15, 2016), alleges willful violations by the Defendants of the Fair Labor Standards Act, and the Illinois Minimum Wage Law for Defendants' alleged failure to pay Plaintiff and other similarly situated employees overtime wages for hours worked in excess of 40 hours in a workweek. Plaintiff worked for Defendants installing steel and window panels used to cover doors and windows on vacant buildings. The Plaintiff is represented by: Raisa Alicea, Esq. CONSUMER LAW GROUP, LLC 6232 N. Pulaski, Ste. 200 Chicago, IL 60646 Phone: (312) 800-1017 E-mail: ralicea@yourclg.com DUPONT: Australia Fails to Acknowledge US Toxic Foam Studies ------------------------------------------------------------ Isobel Roe, writing for ABC, reports that the Australian Government is wasting time and money by failing to acknowledge US studies into a toxic foam chemical, a US lawyer who led a class action against the makers of the toxin has said. The chemical perfluorooctanoic acid (PFOA) was in a firefighting foam that has leeched into groundwater beneath at least 30 Australian Defence bases including the Oakey Aviation Base on the Darling Downs. It has rendered some farm land unusable, property values have plummeted, and residents have been unable to drink their bore water. The same chemical was contained in Teflon and found in a West Virginian town water supply the late 1990s, sparking legal action against Teflon manufacturer DuPont, and eventually won a $US70 million settlement for almost 70,000 people who might have been exposed to the contaminated water. Kentucky-based lawyer Robert Bilott brought the class action on behalf of the residents and said he had been watching Australia's response to the growing contamination issue with interest. "A lot of time and a lot of resources can be saved by the fact that a lot of this very complicated and expensive research has already been done," Mr. Bilott said. "I think it would be important to take advantage of the data that already exists so it's not a delayed response to folks who are drinking this." Six diseases linked to PFOA: US study finds The Australian Defence Department maintains there is no strong links between PFOA and serious human health effects. Queensland Health advice said adverse health effects had been found in animals but not in humans. But as part of the US class action, an independent scientific panel spent more than $US30 million studying the chemical and its human health effects. "One of the things that was remarkable about it was they ended up getting blood data from 69,000 people in that community," Mr. Bilott said. "They ended up concluding that there was six disease linked to drinking this chemical in your water for over a year and that was kidney cancer, testicular cancer, ulcerative colitis, thyroid disease, preeclampsia and high cholesterol. "And that data is out there." Mr. Bilott also raised concerns about Australia's drinking guidelines for the chemical. An independent review by a toxicologist found Australia should maintain its standards for the chemical, despite a decision by the United States Environment Protection Agency to dramatically lower what it considered safe. "It's the same chemical, it's the same science and it's the same knowledge, so I'm not quite sure why there would be any distinction," Mr. Bilott said. A frequently asked questions document on the Defence Department website said the United States health study could not be used in Australia. "The findings of this health study could have been impacted by many location- and population-specific factors [for example, routes of exposure, background conditions and lifestyle factors], which cannot necessarily be translated to the Oakey community," the document read. "In addition, many factors can influence a person's health and therefore it is challenging to link a person's health issue unequivocally to PFOS [perfluorooctane sulfonate] and PFOA exposure." The Federal Government is undertaking its own epidemiological study of the human health effects of the PFOA chemical. EAST LA DIALYSIS: Caballero Sues Over Wage & Hour Law Violations ---------------------------------------------------------------- LILIANA T. CABALLERO, on behalf of herself and all others similarly situated v. EAST L.A. DIALYSIS CENTER, a California corporation; and DOES 1 through 100, inclusive, Case No. BC634086 (Cal. Super. Ct., Los Angeles Cty., September 16, 2016), accuses the Defendants of having a consistent policy of failing to pay wages, including minimum and overtime wages, to the Plaintiff and other non-exempt employees in the state of California, in violation of California state wage and hour laws. East L.A. Dialysis Center is a California corporation with its principal place of business in the County of Los Angeles. The true names and capacities of the Doe Defendants are currently unknown to the Plaintiff. The Plaintiff is represented by: Mehrdad Bokhour, Esq. BIBIYAN & BOKHOUR, P.C. 287 S. Robertson Blvd., Suite 303 Beverly Hills, CA 90211 Telephone: (310) 438-5555 Facsimile: (310) 300-1705 E-mail: mehrdad@tomorrowlaw.com - and - Michael Nourmand, Esq. THE NOURMAND LAW FIRM, APC 8822 West Olympic Boulevard Beverly Hills, CA 90211 Telephone: (310) 553-3600 Facsimile: (310) 553-3603 E-mail: mnourmand@nourmandlawfirm.com ELBAR INC: "Correa" Suit Seeks Minimum, Overtime Pay ---------------------------------------------------- Elton Correa, Plaintiff, v. Elbar, Inc., a Florida corporation, Defendant, Case No. 1:16-cv-23878 (S.D. Fla., September 9, 2016), seeks unpaid overtime wages, liquidated damages, and reasonable attorney's fee and costs under the Fair Labor Standards Act. Correa allegedly did not receive the required minimum wages and/or worked overtime hours but did not receive time-and-a-half wages for such overtime hours. The Plaintiff is represented by: Brian Militzok, Esq. MILITZOK LAW, P.A. Wells Fargo Building 4600 Sheridan Street, Suite 402 Hollywood, FL 33021 Tel: (954) 780-8228 Fax: (954) 719-4016 Email: bjm@militzoklaw.com ELECTRONIC GAME: January 9 Settlement Fairness Hearing Set ---------------------------------------------------------- The Rosen Law Firm, P.A. on Sept. 19 disclosed that the United States District Court for the Central District of California Southern Division has approved the following announcement of a proposed class action settlement that would benefit purchasers of common stock of Electronic Game Card, Inc.: SUMMARY NOTICE OF CLASS ACTION SETTLEMENT TO: ALL PERSONS WHO PURCHASED THE COMMON STOCK OF ELECTRONIC GAME CARD, INC. DURING THE PERIOD FROM APRIL 5, 2007 THROUGH MAY 18, 2010, INCLUSIVE. YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States District Court for the Central District of California, that a hearing will be held on January 9, 2017 at 8:30 a.m. before the Honorable David O. Carter, United States District Judge of the Central District of California, 411 West Fourth Street, Santa Ana, California 92701 (the "Settlement Hearing") for the purpose of determining: (1) whether the proposed Settlement consisting of the sum of $1.755 million should be approved by the Court as fair, reasonable, and adequate; (2) whether the proposed plan to distribute the settlement proceeds is fair, reasonable, and adequate; (3) whether the application for an award of attorneys' fees of $438,750 or 25% and reimbursement of expenses of not more than $550,000, and an incentive payment of no more than $5,000 to each Class Representative, should be approved; and (4) whether the Litigation should be dismissed with prejudice as to the settling defendants. If you purchased common stock of Electronic Game Card, Inc., during the class period from April 5, 2007 through May 18, 2010, inclusive, your rights may be affected by the Settlement of this action. If you have not received a detailed Notice of Pendency and Settlement of Class Action and a copy of the Proof of Claim and Release, you may obtain copies by writing to the Claims Administrator at: Electronic Game Card, Inc. Litigation, c/o Strategic Claims Services, 600 N. Jackson St., Ste. 3, P.O. Box 230, Media, PA 19063, (Tel:866-274-4004, Fax:610-565-7985, Email: info@strategicclaims.net), or going to the website, www.strategicclaims.net. If you are a member of the Class, in order to share in the distribution of the Net Settlement Fund, you must submit a Proof of Claim and Release postmarked no later than November 28, 2016 to the Claims Administrator, establishing that you are entitled to recovery. Unless you submit a written exclusion request, you will be bound by any judgment rendered in the Litigation whether or not you make a claim. If you desire to be excluded from the Class, you must submit a request for exclusion postmarked no later than December 20, 2016, in the manner and form explained in the detailed Notice to the Claims Administrator. Any objection to the Settlement, Plan of Allocation, or the Class Counsel's request for an award of attorneys' fees and reimbursement of expenses must be in the manner and form explained in the detailed Notice and postmarked no later than December 20, 2016, to each of the following: Clerk of the Court United States District Court Central District of California - Southern Division 411 West Fourth Street Santa Ana, California 92701 Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, P.A. 355 South Grand Avenue, Suite 2450 Los Angeles, CA 90071 Class Counsel for Plaintiffs Jeffrey S. Boxer, Esq. CARTER LEDYARD & MILBURN LLP 2 Wall Street New York, NY 10005 Counsel for Defendant Estate of Lord Steinberg Jerome S. Fortinsky, Esq. SHEARMAN & STERLING LLP 599 Lexington Avenue New York, NY 10022 Counsel for Defendants Eugene Christiansen and Kevin Donovan Alexander H. Cote Scheper Kim & Harris LLP 601 West Fifth Street, 12th Floor Los Angeles, CA 90071-2025 Counsel for Defendant Paul Farrell John R. Armstrong, Esq. HORWITZ & ARMSTRONG LLP 26475 Rancho Parkway South Lake Forest, CA 92630 Counsel for Defendants Bill Torres, Cindy E. Gonzalez, Henry Mendoza, James Francis Berger, and Timothy Quintanilla If you have any questions about the Settlement, you may call or write to Class Counsel: Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, P.A. 355 South Grand Avenue, Suite 2450 Los Angeles, CA 90071 Tel.: (213) 785-2610 Fax: (213) 226-4684 PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING THIS NOTICE. DATED: SEPTEMBER 13, 2016 BY ORDER OF THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA ENTERPRISE RENT-A-CAR: Sued in Cal. Over Use of Consumer Report -------------------------------------------------------------- KEANA FISHER, Individually and on Behalf of A11 Others Similarly Situated, the Plaintiff, v. ENTERPRISE RENT-A-CAR COMPANY OF LOS ANGELES, LLC, the Defendants, Case No. 16CIV01521 (Cal. Super. Ct., Sep. 22, 2016), seeks to enjoin the Defendant from acquiring and using consumer and/or investigative consumer report to conduct background checks on Plaintiff and other prospective, current and former employees, under the Fair Credit Reporting Act. During the application process, Defendant allegedly procured consumer reports on Plaintiff and Class Members in accordance with Defendant's standard practices and procedures. However, Defendant did not provide Plaintiff or Class Members with a disclosure that a consumer report may be procured by ERAC-LA for employment purposes. The Defendant also failed to obtain authorization for ERAC-LA to procure consumer reports on Plaintiff and Class members. The Plaintiff is represented by: Lionel Z. Glancy, Esq. Marc L. Godino, Esq. Mark S. Greenstone, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201 9150 Facsimile: (310) 201 9160 E-mail: mgreenstone@glancy1aw.com EXPRESS ENERGY: "Crain" Suit Seeks to Recover Overtime Pay ---------------------------------------------------------- John Crain, and all others similarly situated, Plaintiff, v. Express Energy Services, L.L.C., Defendant, Case No. 4:16-cv- 02806, (S.D, Tex., September 16, 2016), seeks unpaid back wages due, liquidated damages, attorneys' fees, pre-judgment and post- judgment interest and such other and further relief under the Fair Labor Standards Act. Express Energy Services, L.L.C. is a Texas corporation that operates an oilfield service business throughout the Unites States. Plaintiff was employed by Defendant as a field hand and driller. He claims to be denied overtime pay. Plaintiff is represented by: Jack Siegel, Esq. SIEGEL LAW GROUP PLLC 10440 N. Central Expy., Suite 1040 Dallas, TX 75231 Tel: (214) 706-0834 Fax: (469) 339-0204 - and - J. Derek Braziel, Esq. Jay Forester, Esq. LEE & BRAZIEL, L.L.P. 1801 N. Lamar Street, Suite 325 Dallas, TX 75202 Tel: (214) 749-1400 Fax: (214) 749-1010 FACEBOOK INC: AP7 Files Class Action Over Share Dilution -------------------------------------------------------- Rachel Fixsen, writing for IPE, reports that Sweden's seventh national pension fund AP7 is suing Facebook over its resolution to issue a new class of shares as part of the internet giant's plan to allow chairman and co-founder Mark Zuckerberg to retain control over the company while selling much of his own company stock. AP7 said it launched a legal case against Facebook in the Delaware Court of Chancery in May after the US company announced the plan to issue a new "C" class of shares, adding to the "A" and "B" shares already in issue. Richard Groettheim, chief executive at AP7, told IPE: "The reason for the case is that we think, by suggesting the reclassification of shares -- and the board has, indeed, now decided to do this -- and by issuing the free shares, which will be less valuable because they don't have voting rights, we will be less well off as a shareholder." Under the plan, announced in April and voted through in June, Facebook will issue new C shares and distribute two of the new shares to shareholders as a dividend for each class A or B share they own. AP7 owns A shares, and its holding in Facebook is worth around SEK2 billion (EUR209m), making it one of the largest shareholders in the company. However, according to US law firm Kessler Topaz, Mr. Zuckerberg controls Facebook through his 76% ownership of Class B shares, which each hold 10 votes, while A shares carry one. Mr. Zuckerberg has said the share reclassification was aimed at allowing him and his wife Priscilla to carry out their plan to give 99% of their Facebook shares away to "advance human potential and promote equality" while keeping the company "founder-led". AP7 is the default pension provider in Sweden's Premium Pension System (PPM). Kessler Topaz, representing AP7 in the case, said that, by issuing stockholders two of the new shares for each share of Class A or Class B common stock, Mr. Zuckerberg will be able to sell or dispose of millions of shares of Class C stock while continuing to maintain control over the company. "Class A common stockholders further suffer economic harm because the non-voting Class C shares being foisted upon them will likely trade at a discount to the Class A voting shares, thus diminishing the value of their Facebook holdings," the firm said. The Delaware court appointed AP7 and Kessler Topaz to co-lead the class action litigation along with Amalgamated Bank and the law firm of Grant & Eisenhofer on 16 May, the firm said. The defendants have agreed not to issue the Class C stock until the court rules on AP7's case, it said, adding that a trial is likely to be set for January 2017. Mr. Groettheim said there had been similar cases where companies had suggested reclassifying shares, involving Google and sportswear firm Under Armour, but that these had both gone to settlement. Meanwhile, the Swedish Pensions Agency (Pensionsmyndigheten) has announced it is acting to put in place better protection for consumers in its Premium Pension System. The government agency said it developed a revised cooperation agreement for the many pensions investment providers whose funds are available to Swedes as an alternative to the default provider, national pension fund AP7. Mats Oberg, director of the Swedish Pensions Agency's fund unit, said: "The new agreement means even stronger consumer protection for the investor and underlines the obvious, in that rogue players should not have anything to do with premium pension fund activity." Even though there was already consumer protection in place in the current agreement, the agency said there had been far too many cases where people felt cheated by providers and their telemarketers. Consumers had often been told outright lies on the phone, the agency said, with sales callers claiming to belong to the agency itself, or telling them the default AP7 fund option was to be closed. "Marketing and sales of mutual funds within the premium pension should be done in a fair and transparent manner," Mr. Oberg said. The new cooperation agreement should not pose any problems for serious management companies, he said. FEDERAL EXPRESS: "Mitchell" Suit to Recover Overtime Pay -------------------------------------------------------- Dwight D. Mitchell, individually and on behalf of other similarly situated employees, Plaintiff, v. Federal Express Corporation, Defendant, Case No. 8:16-cv-03172, (D. Md., September 16, 2016), seeks to recover unpaid overtime wages, liquidated damages, interest, reasonable attorneys' fees and costs under the Federal Fair Labor Standards Act of 1938. FedEx is an international organization operating in the air courier service industry with its principal office located in Memphis, Tennessee. Plaintiff works as a security specialist in their Crofton, Gaithersburg and Upper Marlboro, Maryland locations. Plaintiff is represented by: George E. Swegman, Esq. Benjamin L. Davis, Esquire (#29774) THE LAW OFFICES OF PETER T. NICHOLL 36 South Charles Street, Suite 1700 Baltimore, MD 21201 Phone: (410) 244-7005 Fax: (410) 244-8454 Email: gswegman@nicholllaw.com bdavis@nicholllaw.com FIAT CHRYSLER: Kessler Topaz Files Securities Class Action ---------------------------------------------------------- Kessler Topaz Meltzer & Check, LLP reminds Fiat Chrysler Automobiles N.V. shareholders that the firm has filed a shareholder class action lawsuit on behalf of purchasers of FCA securities between October 29, 2014 and July 18, 2016, inclusive. FINAL REMINDER: Shareholders who purchased FCA securities during the Class Period may, no later than September 27, 2016, petition the Court to be appointed as a lead plaintiff representative of the class. For additional information, or to view a copy of the complaint, please visit https://www.ktmc.com/new-cases/fiat- chrysler-automobiles-nv-2016#join. FCA shareholders who wish to discuss this action and their legal options are encouraged to contact Kessler Topaz Meltzer & Check, LLP (Darren J. Check, Esq., D. Seamus Kaskela, Esq. or Adrienne O. Bell, Esq.) at (888) 299 -- 7706, or at info@ktmc.com, ahead of the September 27, 2016 deadline. FCA is an international automotive group engaged in designing, engineering, manufacturing, distributing, and selling vehicles, components, and production systems. The Company's vehicles are produced for the mass market under the Abarth, Alfa Romeo, Chrysler, Dodge, Fiat, Fiat Professional, Jeep, Lancia, and Ram brands and the SRT performance vehicle designation. The Company sells vehicles in the United States through its U.S. subsidiary, FCA US LLC ("FCA US"). The shareholder class action complaint alleges that throughout the Class Period the defendants made false and misleading statements and failed to disclose material adverse facts about the Company's business and operations to investors. Specifically, the defendants misrepresented the Company's growth by purposefully inflating FCA's vehicle sales numbers and falsely touting the Company's streak of U.S. monthly vehicle sales growth (on a year-over-year basis). As detailed in the complaint, the truth about FCA's business practices began to surface on January 12, 2016, when an FCA- affiliated dealer filed a lawsuit accusing FCA US of paying dealers to improperly inflate vehicle sales numbers by reporting unsold vehicles as sold and then reversing those fictional sales during the following month. Following this news, shares of the Company's stock declined $0.66 per share, or over 8%, between January 12, 2016 and January 14, 2016. Subsequently, on July 18, 2016, several news outlets reported, and FCA confirmed, that the Department of Justice ("DOJ") and the Securities and Exchange Commission ("SEC") were investigating the Company's sales and reporting practices. Finally, on July 26, 2016, the Company announced that it had revised the way it reports monthly U.S. vehicle sales -- revealing that its much publicized 75-month streak of U.S. monthly vehicle sales growth (on a year-over-year basis) actually ended at 40 months in September 2013. FCA shareholders may, no later than September 27, 2016, petition the Court to be appointed as a lead plaintiff representative of the class through Kessler Topaz Meltzer & Check or other counsel, or may choose to do nothing and remain an absent class member. A lead plaintiff is a representative party who acts on behalf of all class members in directing the litigation. In order to be appointed as a lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class in the action. Your ability to share in any recovery is not affected by the decision of whether or not to serve as a lead plaintiff. For additional information, or to learn how to participate in this action, please visit https://www.ktmc.com/new- cases/fiat-chrysler-automobiles-nv-2016#join. Kessler Topaz Meltzer & Check prosecutes class actions in state and federal courts throughout the country. Kessler Topaz Meltzer & Check is a driving force behind corporate governance reform, and has recovered billions of dollars on behalf of institutional and individual investors from the United States and around the world. The firm represents investors, consumers and whistleblowers (private citizens who report fraudulent practices against the government and share in the recovery of government dollars). The complaint in this action was not filed by Kessler Topaz Meltzer & Check. For more information about Kessler Topaz Meltzer & Check, please visit www.ktmc.com FIVE GUYS: Cert. of Assistant GMs Class Sought in "Isaac" Suit -------------------------------------------------------------- Dwayne Isaac asks the Court to conditionally certify the proposed collective action captioned DWAYNE ISAAC v. FIVE GUYS OPERATIONS, L.L.C., d/b/a FIVE GUYS BURGERS AND FRIES, Case No. 2:15-cv-00436 (S.D. Tex.). Mr. Isaac contends that FGO has a nationwide policy of classifying its "Assistant General Managers," including him, as non-exempt but not paying its "Assistant General Managers" for time-and-a-half of their regular rate if they work more than 40 hours in a week, in violation of the Fair Labor Standards Act. He also seeks authority to issue "opt-in" notices to his similarly-situated "Assistant General Managers" in all FGO locations, who are or were paid by FGO as "Assistant General Managers" during the three years preceding the filing of the action, as they are all owed damages based on FGO's violations of the FLSA. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=yswqTbvs The Plaintiff is represented by: Daniel G. Covich, Esq. COVICH LAW FIRM, P.L.L.C. 802 N. Carancahua, Suite 2100 Corpus Christi, TX 78401 Telephone: (361) 884-5400 Facsimile: (361) 884-5401 E-mail: daniel@covichlawfirm.com - and - Josh W. Hopkins, Esq. Joseph E. Ritch, Esq. ELLIOTT & RITCH, LLP 321 Artesian St. Corpus Christi, TX 78401 Telephone: (361) 883-3000 Facsimile: (361) 883-3003 E-mail: jhopkins@elliottritch.com jritch@elliottritch.com FORD MOTOR: Faces "Krebsbach" Suit Over Defective Sunroofs ---------------------------------------------------------- DOUGLAS KREBSBACH, KATHLEEN KREBSBACH, JAMES ALEXANDER, and MARTHA ALEXANDER on behalf of themselves and all others similarly situated, Plaintiffs, v. FORD MOTOR COMPANY, Defendants, Case No. 2:16-cv-02200-WBS-EFB (E.D. Cal., September 15, 2016), was filed over alleged defective automobile sunroofs shattering in Ford Edge vehicles. FORD MOTOR COMPANY is in the business of designing, manufacturing, and distributing motor vehicles. Ford's vehicles include those sold under the Ford, Lincoln, and Mercury brands. The Plaintiffs are represented by: Crystal Foley, Esq. SIMMONS HANLY CONROY LLC 100 N. Sepulveda Blvd., Suite 1350 Los Angeles, CA 90245 Phone: (310) 322-3555 Fax: (310) 322-3655 E-mail: cfoley@simmonsfirm.com - and - Paul J. Hanly, Jr., Esq. Mitchell M. Breit, Esq. SIMMONS HANLY CONROY LLC 112 Madison Avenue New York, NY 10016-7416 Phone: (212) 784-6400 Fax: (212) 213-5949 E-mail: phanly@simmonsfirm.com mbreit@simmonsfirm.com FORD MOTOR: Simmons Hanly Conroy Files Class Action in California ----------------------------------------------------------------- Simmons Hanly Conroy, one of the nation's largest law firms focused on consumer protection and mass tort actions, on Sept. 19 filed a class action complaint in the U.S. District Court for the Eastern District of California against Ford Motor Company alleging that large glass panoramic sunroofs on some Ford vehicles have spontaneously shattered. Simmons Hanly Conroy is co-counsel in the case with Greg Coleman Law PC of Knoxville, Tenn., a prominent class action firm. The lawsuit claims that the shattering sunroofs pose a serious safety issue because many drivers report that the startling effect of the glass explosion causes accidents or near-miss accidents in addition to some drivers and passengers being cut by falling glass. According to the complaint, "The shattering events are so powerful that startled drivers compare it to the sound of a gunshot, after which glass fragments rain down upon the occupants of the vehicle, sometimes while driving at highway speeds." The action seeks national and state class certification, injunctive relief, and damages on behalf of plaintiffs and others who bought or leased a Ford, Lincoln, or Mercury vehicle with a sunroof that spontaneously shattered. "We trust that the vehicles we choose to drive will keep us and our families safe from accidents, including those caused by defects that car manufacturers have incorporated into their automobiles," said Simmons Hanly Conroy Shareholder Paul Hanly -- phanly@simmonsfirm.com -- lead counsel for the plaintiffs in this case. "Car manufacturers must be held accountable for defects that contribute to accidents and injury to drivers of their vehicles." At least 70 owners of Ford vehicles have reported to the National Highway Traffic and Safety Administration (NHTSA) that at least 80 panoramic sunroofs have shattered. The complaint alleges Ford has known about this problem since at least 2008 due to complaints to the NHTSA about defective sunroofs shattering in the Ford Edge. Ford has been the subject of an ongoing investigation by the NHTSA on this issue since May 2014. Mr. Hanly added, "While several other automakers, including Volkswagen and Hyundai, have initiated voluntary recalls on their vehicles experiencing the same sunroof-shattering defect, Ford continues to deny owner and lessor warranty claims, much less to institute a recall of these defective vehicles." According to the complaint, sunroofs began evolving in the mid- 2000s from what were modestly sized portions of the roof over the driver and front passenger seats, to those that cover almost the entire roof. The expanded sunroofs have posed new and significant engineering challenges because the required tempered glass plates take up much of the surface area of the vehicle's roof, requiring precision in strengthening, attachment and stabilization. Ford has sold at least a million vehicles with the panoramic sunroof, often called the Vista roof, in the United States since 2007. Marketed as a luxury upgrade, the high-cost, panoramic sunroof option attracted the plaintiffs in this case, as well as others, to buy or lease Ford vehicles over less expensive models without the "glass roof." The case is Douglas Krebsbach, et al. v. Ford Motor Company, Cause No. 2:16-at-01154; In the District Court for the Eastern District of California. The named plaintiffs in the case are Douglas and Kathleen Krebsbach of Folsom, Calif., and James and Martha Alexander of Foley, Ala. Simmons Hanly Conroy also is involved in pending litigation against Volkswagen on behalf of several thousand plaintiffs who were affected by the German automaker's recent emissions scandal. In addition, Simmons Hanly Conroy Shareholder Jayne Conroy served as a member of the Lead Counsel Committee for Economic Loss Claims for the MDL involving the Toyota Motor Corp. unintended acceleration litigation. About Simmons Hanly Conroy, LLC Simmons Hanly Conroy LLC -- http://www.simmonsfirm.com-- is one of the nation's largest mass tort law firms and has recovered more than $5 billion in verdicts and settlements for plaintiffs. Primary areas of litigation include asbestos and mesothelioma, pharmaceutical, consumer protection, environmental and personal injury. The firm's attorneys have been appointed to leadership in numerous national multidistrict litigations, including Vioxx, Yaz and Toyota Unintended Acceleration. The firm also represents small and mid-size corporations, inventors and entrepreneurs in matters involving business litigation. Offices are located in New York City, Chicago, San Francisco, Los Angeles, St. Louis, and Alton, Ill. GARLOCK SEALING: December 9 Deadline Set to Vote on Settlement -------------------------------------------------------------- If You Worked Around Gaskets, Packing, or Equipment Containing Asbestos The Garlock and Coltec Bankruptcy Settlement May Affect Your Rights. There is a bankruptcy involving claims about exposure to asbestos- containing gaskets, packing, and equipment. Garlock Sealing Technologies LLC, The Anchor Packing Company, and Garrison Litigation Management Group, Ltd., along with representatives of asbestos claimants, have filed a new plan of reorganization (the "Plan"). Coltec Industries Inc is also part of the Plan. If claimants approve the Plan, Coltec will merge with a company known as OldCo, LLC, and that company will file a bankruptcy case. Together, these companies are referred to as the "Debtors. The gaskets and packing were used in places where steam, hot liquid, or acids moved through pipes, including industrial and maritime settings. The equipment included compressors, engines, pumps, transformers, and other equipment that may have had asbestos-containing components, such as gaskets or packing. The Coltec-related divisions or businesses that may have sold asbestos-containing products or equipment were Fairbanks Morse, Quincy Compressor, Central Moloney, Delavan, France Compressor, and Farnam. Who Is Affected by the Bankruptcy Case? Your rights may be affected if you: -- Worked with or around Garlock asbestos containing gaskets or packing, Coltec equipment with asbestos components, or any other asbestos-containing product for which Debtors are responsible, or -- Have a claim now or in the future against the Debtors for asbestos-related disease caused by any person's exposure to asbestos containing products. Even if you have not yet been diagnosed with any disease or experienced any symptoms, your rights may be affected. The Court has appointed a Future Claimants' Representative ("FCR") to represent the rights of these future claimants. What Does the Plan Provide? The Plan is the result of a settlement agreement between the Debtors, the FCR, and committees representing asbestos claimants against Garlock and Coltec (the "Asbestos Claimants Committee"). The Plan will establish a Trust funded with $480 million to pay asbestos claims against Garlock and Coltec. If the Plan is approved, all claims must be filed against the Trust. You will not be able to file claims against the Debtor or protected parties. If you have claims only against Anchor, you are not expected to recover anything, as that company has no assets and will be dissolved. The Plan replaces a different plan that was supported by the Debtors and FCR. The Plan provides more guaranteed funding for paying asbestos claims, and also pays claims against Coltec. The Asbestos Claimants Committee opposed the previous plan, but supports the Plan. Who Can Vote on or Object to the Plan? All identifiable asbestos claimants or their attorneys will receive the "Solicitation Package." This includes the Plan, Voting Ballot, and other information. You can vote on the Plan by providing certified information about your claim, or making a motion to vote as described in the Solicitation Package available online or by calling the toll-free number. You will need to vote on the Plan by December 9, 2016. You may also object to the Plan and the adequacy of the FCR's representation of future claimants, but must do so by December 9, 2016. Do I Have to File a Claim? Certain deadlines for filing asbestos claims against Garlock have already passed. If you have an asbestos claim against Coltec based on a disease diagnosed on or before August 1, 2014, you must cast a ballot before December 9, 2016, or else file a claim by March 24, 2017. If you do not file a claim, you may lose your right to bring your Coltec claim against the Trust in the future. Individuals diagnosed with disease after August 1, 2014 do not have to file a claim at this time, but may be able to vote or object to the Plan. In addition, if you have already filed an asbestos claim against Garlock, you do not have to file a separate Coltec asbestos claim. When Will the Court Decide on the Plan? A hearing to consider confirmation of the Plan will begin at 10:00 a.m. ET on May 15, 2017, at the US Bankruptcy Court, Western District of North Carolina, 401 West Trade Street, Charlotte, NC 28202. For Information: www.GarlockNotice.com 1-844-Garlock GOOGLE INC: High Court Set to Address Privacy Class Action ---------------------------------------------------------- Tonda Maccharles, writing for Toronto Star, reports that the high court is set to take on big cases, including a B.C. woman's class- action lawsuit against Facebook. Can a Canadian court curb Google search results worldwide if they advertise a Canadian company's counterfeiting competitor? Does Facebook violate your privacy rights when it uses your name and photo in ads to endorse products after you "liked" a website? What's the proper test to release a convicted murderer on bail while he appeals a conviction? They're just some of the big questions among 29 appeals facing a short-handed Supreme Court of Canada as it starts a busy fall session next month. Six months after Thomas Cromwell announced his Aug. 31 retirement, no replacement has been chosen. The deadline for a shortlist of interested candidates to be submitted to the prime minister is the end of this week. But the high court's work cannot be put on hold. So, seven or eight judges will sit on panels through October and likely into November while the time-consuming vetting and consultation process for a new judge is completed. At the heart of the Google case is how far Canadian courts can go to uphold the public interest -- in this case the intellectual property rights of an industrial design company -- as defined and protected by Canadian statutes. The small Burnaby technology business sued a company called Datalink for stealing their company secrets and manufacturing a competing product. It also got an injunction against Google from displaying search results related to the company, which operates from an undisclosed location. Google said it has nothing to do with the lawsuit but was dragged into it, even though the offending website is still operating and available "using readily available information location tools, such as other search engines and social networking sites." "The effect of the Worldwide Order is that only Google's speech is restricted, as it is now prohibited from truthfully informing the global public (including users inside and outside Canada) about the existence of publicly and readily accessible webpages," argues Google. In another significant Internet law case, a B.C. woman's class action lawsuit against Facebook seeks damages for violating Canadians' privacy in online advertising. Facebook argues people consent to use of their name and image when they sign up, and the global giant disputes that Canadian courts have jurisdiction over these questions. In the B.C. Supreme Court, Deborah Douez won certification for her class action that claims Facebook "harvested and sold" the names and images of about 1.8 million B.C. residents for advertising purposes "all without proper consent." She said it violates B.C.'s Privacy Act. However, she lost at the Court of Appeal, which agreed with Facebook's contention that when people sign the lengthy "terms of use" agreements, they consent to a clause that establishes where disputes will be adjudicated -- California, not in a B.C. court. HAMILTON PAINTING: "Rowe" Seeks Certification of Painters Class --------------------------------------------------------------- The Plaintiffs in the lawsuit entitled GREGORY ROWE and CODY PILKINTON on behalf of themselves and all others similarly situated v. CRAIG HAMILTON dba HAMILTON PAINTING, Case No. 6:16- cv-03259-RK (W.D. Mo.), filed with the Court their motion for conditional certification and court authorized notice pursuant to the Fair Labor Standards Act. The Plaintiffs defined the Class as: All current and former employees employed by Hamilton Painting as painters from three years prior to filing this lawsuit through its conclusion who were not paid proper overtime wages when they worked more than forty (40) hours a week. The Plaintiffs also ask the Court for an order: -- compelling the Defendant to produce within 14 days of the order granting the Motion, the full name, all known addresses, e-mail addresses, and telephone numbers of the potential class members; -- permitting the Plaintiffs' Counsel to send, within 14 days of receipt of the Class list from the Defendant, the Court-authorized Notice and Consent to Sue form via U.S. Mail and electronic mail to putative Class members; -- allowing 60 days for putative Class members to return their Consent to Sue form to the Plaintiffs' Counsel for filing with the Court; -- permitting the Plaintiffs' Counsel to send a second, identical copy of the Notice and Consent to Sue form to members of the putative Class 30 days into the Notice Period, via U.S. Mail and e-mail, reminding them of the deadline for the submission of the Consent to Sue form; and -- appointing the Plaintiffs' counsel, Johnson Becker P.L.L.C. and Bartimus, Frickleton and Robertson, P.C., as counsel for members of the putative Class. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=l9GjI0WW The Plaintiffs are represented by: David H. Grounds, Esq. Molly E. Nephew, Esq. JOHNSON BECKER, PLLC 444 Cedar Street, Suite 1800 St. Paul, MN 55101 Telephone: (612) 436-1800 Facsimile: (612) 436-1801 E-mail: dgrounds@johnsonbecker.com mnephew@johnsonbecker.com - and - Michelle L. Marvel, Esq. BARTIMUS, FRICKLETON AND ROBERTSON, P.C. 11150 Overbrook Rd. #200 Leawood, KS 66211 Telephone: (913) 266-2300 Facsimile: (913) 266-2366 E-mail: MMarvel@bflawfirm.com HARRIS & HARRIS: Improperly Collected Medical Debt, Suit Says ------------------------------------------------------------- Jonathan Bilyk, writing for Cook County Record, reports that a woman says a Chicago-based debt collection firm improperly attempted to collect a medical debt she owed, under a payment plan she maintained she never agreed to, and even though she was never placed into collections. And the woman has now filed a potential class action suit, believing the debt collector has behaved similarly toward others like her. On Sept. 16, plaintiff Angelica Griffin, identified in the lawsuit only as an Illinois resident, filed her complaint in Cook County Circuit Court against the firm of Harris & Harris Ltd., of Chicago. The complaint also named as defendants several Harris affiliated companies, including Arnold Scott Harris P.C., Balta Strategic Initiatives and Harris & Harris of Illinois Ltd. Harris & Harris collects debts on behalf of clients throughout Illinois and across the U.S., as well as for a number of local governments, including the city of Chicago. Griffin is represented in her action by attorneys Berton N. Ring and Stuart M. Clarke, of Chicago. According to the lawsuit, Griffin has owed a debt for unpaid bills to health care provider Northwestern Medicine since at least 2015 for medical services rendered to her child. At that time, the complaint said, Griffin set up a payment plan with Northwestern, purportedly agreeing to pay $50 per month until the bills were fully paid. According the complaint, Griffin alleged she has never missed a payment under that plan, having made the minimum payment or more each month since October 2015 using "Northwestern's online portal and received a confirmation of payment." Beginning in late August 2016, however, Griffin said she received three letters from the Harris firm indicating she was delinquent, and demanding she pay them $681. The letters offered her the opportunity to pay $50 per month to the Harris firm. Despite receiving the collection letters, Griffin alleged she had never been notified by Northwestern of any problems with her payments, and had never agreed to any payment plan involving the Harris firm or its affiliated companies. Griffin alleged she made her September payment to Northwestern Medicine, under the terms of her payment plan, and the payment was received and acknowledged by Northwestern without any communication indicating they had transferred her unpaid debt to any collection agency. Griffin's lawsuit asked the court to create three classes of additional plaintiffs, including anyone in the U.S. and anyone in Illinois who received similar communications from Harris & Harris indicating they owed unpaid debts under payment plans they had not agreed to, and demanding payment in similar fashion. The lawsuit indicated the number of people who might be included in the classes could "number in the thousands." She alleged these activities violated federal debt collecting laws. Under these counts, she has asked the court to award her actual damages, plus an additional $1,000. Should the court approve a class action, she asked the court to order Harris & Harris to pay at l east $500,000, plus attorney fees. Further, the lawsuit alleged Harris' affiliated companies were attempting to collect debts in Illinois without a license. While Harris & Harris Ltd. held a license through the Illinois Department of Professional and Financial Regulation, the complaint alleged state records so no such license for the Harris & Harris affiliates. To press this claim, Griffin also asked the court to allow her to act as a relator, bringing action on behalf of the Illinois state government. HEINEN'S INC: Sued Over Illegal Sales Tax on Starbucks Coffee ------------------------------------------------------------- BRIAN WALTERS, the Plaintiff, v. HEINEN'S, INC., ET AL, the Defendants, Case No. CV 16 869429 (Cuyahoga Ct. of Common Pleas, Sep. 22, 2016), seeks redress for breach of contract, fraud, violations of the Ohio Consumer Sales Practices Act (OCSPA) and/or unjust enrichment. As a direct and proximate result of Heinen's deceptive pattern and practices with regard to its sale of various Starbucks brand coffees and other products which contain milk and/or a milk substitutes, consumers were systematically charged an illegal non- existent sales tax on coffee, tea and other beverages which contain milk or with milk substitutes in direct contravention of Ohio law. Heinen's was founded in 1929 and is based in Warrensville Heights, Ohio. It has stores in Aurora, Avon, Bainbridge, Bay Village, and Brecksville. The Plaintiff is represented by: Thomas J. Connick, Esq. Edward A. Proctor, Esq. Gary A. Vick, Jr., Esq. CONNICK LAW, LLC 25550 Chagrin Blvd., Suite 101 Cleveland, Ohio 44122 Telephone: (216) 364 0512 Facsimile: (216) 609 3446 E-mail: tconnick@cormicklawllc.com HEWLETT PACKARD: Calif. Consumer Sues Over False Advertising ------------------------------------------------------------ Michael Abella, writing for Legal NewsLline, reports that a California consumer is suing Hewlett Packard, alleging misleading and false advertising. Anthony Fehrenbach filed a class action lawsuit, individually and on behalf of all other members of the general public similarly situated, Sept. 12 in U.S. District Court for the Southern District of California against Hewlett Packard Company, alleging violation of the California False Advertising Act and the Unfair Business Practices Act. According to the complaint, Fehernbach suffered substantial financial injury for paying for the HP Smart Install feature that doesn't work. The plaintiff alleges Hewlett Packard misrepresented and falsely advertised that the HP Smart Install feature would be installed automatically via the Internet and profited from both the sale of the HP Laserjet printer and the HP Smart Install feature. Fehernbach seeks trial by jury, an order certifying this case as a class action and appointing the plaintiff and his counsel as class representatives, compensation for actual damages, punitive damages, attorney fees and court costs, pre- and post-judgment interest and all other relief to which he is justly entitled. He is represented by attorneys Todd. M. Friedman and Adrian R. Bacon of the Law Offices of Todd. M. Friedman PC in Woodland Hills, California. HOTWIRE INC: Armstrong Law's Bid to Certify to Be Heard Nov. 4 -------------------------------------------------------------- The Hon. Charles Norgle entered and continued to November 4, 2016, at 9:30 a.m., the hearing on the Plaintiff's motion for class certification filed in the lawsuit titled ARMSTRONG LAW FIRM, P.C., individually and on behalf of all others similarly situated v. HOTWIRE, INC., 1:16-cv-08739 (N.D. Ill.). A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=NnbHpXNK The Plaintiff is represented by: John F. Shonkwiler, Esq. LELAND GROVE LAW LLC 150 N. Michigan Avenue, Suite 2800 Chicago, IL 60601 Telephone: (312) 248-2200 E-mail: jshonkwiler@lelandgrovelaw.com The Defendant is represented by: Jeffrey A. Rossman, Esq. FREEBORN & PETERS LLP 311 S. Wacker Drive, Suite 3000 Chicago, IL 60606 Telephone: (312) 360-6000 E-mail: jrossman@freeborn.com HOUSTON HOME: "Bass" Lawsuit Seeks to Recoup OT Pay Under FLSA -------------------------------------------------------------- Rachel Bass, individually and on behalf of all those similarly situated, Plaintiff, v. Houston Home Companions and Tess Enripuez, Defendants, Case No. 4:16-cv-02792 (S.D. Tex., September 15, 2016), alleges that Plaintiff was not paid overtime as required by the Fair Labor Standards Act. Houston Home Companions is a home care agency. The Plaintiff is represented by: Chris R. Miltenberger, Esq. THE LAW OFFICE OF CHRIS R. MILTENBERGER, PLLC 1340 N. White Chapel, Suite 100 Southlake, TX 76092-4322 Phone: 817-416-5060 Fax: 817-416-5062 E-mail: chris@crmlawpractice.com INDIVIOR: Says Antitrust Suit Over Monosol Rx Drug Has No Merit --------------------------------------------------------------- The Associated Press reports that one of the companies alleged to have conspired to keep generic versions of a popular opioid treatment off the market said that an antitrust lawsuit filed on Sept. 22 has no merit. Attorneys general for 35 states and the District of Columbia filed a complaint in the U.S. District Court for the Eastern District of Pennsylvania, alleging that British drugmaker Indivior and New Jersey's MonoSol Rx conspired to corner the market on Suboxone. The drug is used to treat people hooked on heroin and other painkillers. MonoSol Rx chief executive Keith Kendall said in a statement on Sept. 23 that the company learned of the complaint on Sept. 22. "We believe that the allegations in the complaint are wholly without merit and the suit is both factually and legally deficient," he said. The complaint alleges the two companies conspired to make an oral strip form of the drug that they then marketed as safer than tablets, squashing competition. The attorneys general say the conduct is illegal "product hopping," where a company makes small changes to a product to keep cheaper alternatives off the market, Pennsylvania's Attorney General Bruce R. Beemer said in a press release on Sept. 22. Indivior has not responded to requests for comment. ITT EDUCATIONAL: Faces "Federman" Adversary Class Suit in Indiana ----------------------------------------------------------------- Allen Federman, Joanna Castro and Steve Ryan, on behalf of themselves and all others similarly situated, filed an adversary and class action lawsuit against ITT Educational Services, Inc., on September 16, 2016. The case is captioned as Federman, et al. v. ITT Educational Services, Inc., Case No. 16-50296, in the U.S. Bankruptcy Court for the Southern District of Indiana (Indianapolis). ITT Educational Services, Inc., provides technology-oriented undergraduate and graduate degree programs through its accredited postsecondary institutions, ITT Technical Institutes and Daniel Webster College, to help students develop skills and knowledge that they can use to pursue career opportunities in a variety of fields. The Company owns and operates more than 130 ITT Technical Institutes and Daniel Webster College. According to Bloomberg, the Company began liquidation proceedings in the Bankruptcy Court on September 16 after closing 136 technical schools, leaving over 35,000 students stranded in one of the largest college shutdowns in U.S. history. The 50-year-old for-profit college operator, which had campuses in 38 states, said it was forced to close its doors after the U.S. Education Department demanded a steep increase in the security the Company would have to post to guarantee federal student aid. More than 8,000 employees were affected by the shutdown, with the majority losing their jobs, Carmel, Indiana-based ITT said. The Plaintiffs are represented by: Anthony R. Jost, Esq. RILEY BENNETT & EGLOFF, LLP 141 E Washington St Ste 400 Indianapolis, IN 46204 Telephone: (317) 636-8000 Facsimile: (317) 636-8027 E-mail: tjost@rbelaw.com J.J. CARPET: Faces "Chiquillo" Suit Seeking OT Pay Under FLSA ------------------------------------------------------------- ATILIO E CHIQUILLO, and all others similarly situated, Plaintiffs, vs. J.J. CARPET & GENERAL SERVICES, INC., and JOHN JAIRO MARTINEZ, Defendants, Case No. 0:16-cv-62254-WJZ (S.D. Fla., September 21, 2016), seeks to recover alleged unpaid overtime and/or minimum wages under the Fair Labor Standards Act. J.J. CARPET & GENERAL SERVICES, INC. is a carpet and rug cleaner. The Plaintiff is represented by: J.H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Phone: (305) 865-6766 Fax: (305) 865-7167 Email: ZABOGADO@AOL.COM JAGUAR ENERGY: "Blanton" Suit to Recover Overtime Pay ----------------------------------------------------- Michael Blanton, Individually and on behalf of all others similarly situated Plaintiff, v. Jaguar Energy Services, LLC, Defendant, Case No. 7:16-cv-00336, (W.D. Tex., September 16, 2016), seeks to recover the unpaid overtime wages and other damages under the Fair Labor Standards Act. Jaguar is a Louisiana-based oilfield services company proving well-related services to oil companies and operators with operations throughout Texas and the rest of the United States. Plaintiff worked for the Defendant as a well tester/flowback hand in their Texas operations. Plaintiff is represented by: Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. Lindsay R. Itkin, Esq. Jessica M. Bresler, Esq. FIBICH, LEEBRON, COPELAND, BRIGGS & JOSEPHSON 1150 Bissonnet Houston, TX 77005 Tel: (713) 751-0025 Fax: (713) 751-0030 Email: mjosephson@fibichlaw.com adunlap@fibichlaw.com litkin@fibichlaw.com jbresler@fibichlaw.com - and - Richard J. Burch BRUCKNER BURCH, P.L.L.C. 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Tel: (713) 877-8788 Fax: (713) 877-8065 Email: rburch@brucknerburch.com JOHNSON & JOHNSON: Class Action Status in Talc Cancer Suit Sought ----------------------------------------------------------------- Sarah May, writing for Injury Lawyer News, reports that Johnson & JohnsonOne of the latest in the onslaught of lawsuits filed against Johnson & Johnson stemming from its talcum powder-based consumer products contains claims that the size and scope of the litigation as it now stands requires a grant of class action status. The complaint, lodged in the U.S. District Court for the Middle District of Louisiana earlier this month, states the plaintiff's desire to pursue the action on behalf of the thousands of women who have received an ovarian cancer diagnosis after having used the company's talc products for years. Key allegations in talc class action Plaintiff Shintelle Joseph was born in 1979 and states in her complaint that her use of talc products for feminine hygiene applications began at the age of 17. By 2006, Joseph had been diagnosed with ovarian cancer. It is alleged that at no time during her use of Johnson & Johnson talcum powder products did the company issue any warnings on packaging or elsewhere suggesting that her manner of use posed a risk of cancer. Joseph further argues that the prospective members of the class action suit, namely women who have suffered injuries or have died due to their similar use of talc-based powers, are so large in number and so dispersed in a geographical sense, that joinder of the claimants individually does not serve the interests of justice. It is the plaintiff's belief that there may be thousands of potential claimants who have been negatively impacted by ovarian cancer resulting from talc products, including the women themselves, their spouses and other family members. Controversial history of talcum powder products Though utilized for centuries as a means to reduce chafing, diminish wetness and provide cool comfort to users, talcum powders have been the subject of increasing debate in recent years. Multiple research studies have suggested strong linkages between using such products in the perineal region for feminine hygiene and the eventual development of ovarian cancer. Despite mounting evidence of the very real dangers posed by this particular use of talc products, the manufacturers of talc powders have not made changes to labeling designed to alert the public to the possibility of harm, and the U.S. Food and Drug Administration has declined to require such adjustments. Early talc trials yield massive awards Thus far, two of the earliest talc lawsuits reached the trial stage in state courts, with multi-million dollar jury awards being achieved. In these cases, it was determined that Johnson & Johnson was negligent in its failure to adequately warn consumers about known dangers of their products. With these verdicts now in the rear view mirror, it is anticipated that additional legions of victims will come forward to fight for compensation and accountability from the manufacturers of these dangerous powders. Prospect of multidistrict litigation looms With the number of lawsuits related to talcum powder and ovarian cancer showing no signs of slowing, the possibility that multidistrict litigation will also be established in order to better manage them grows more likely by the day. On September 29, the U.S. Panel on Multidistrict Litigation is slated to hear arguments on whether consolidation of talc cases currently pending in federal courts nationwide is needed in order to streamline pretrial proceedings, foster judicial economy and achieve consistency of early evidentiary rulings in cases with similar facts and theories. JP MORGAN: Faces "Hall" Lawsuit Alleging Violation of RESPA ----------------------------------------------------------- Michael A. Hall, on behalf of himself and all others similarly- situated individuals, v. JP MORGAN CHASE, NA, Defendant, Case No. 8:16-cv-02648-VMC-AEP (M.D. Fla., September 15, 2016), alleges that Chase had not notified Plaintiff that he was somehow ineligible for loss mitigations in violation of the Real Estate Settlement Procedures Act. JPMorgan Chase & Co. is a global financial services firm and one of the largest banking institutions in the United States, with operations worldwide. The Plaintiff is represented by: Luciana Ugarte, Esq. SHAPIRO, FISHMAN & GACHE, LLP 2424 North Federal Highway, Ste 360 Boca Raton, FL 33431 Phone: (561) 998-6700 Fax: (561) 998-6700 E-mail: SFGBocaService@logs.com lugarte@logs.com JPMORGAN CHASE: Seeks Dismissal of Mortgage Class Action -------------------------------------------------------- RSPA News reports that JPMorgan Chase Bank has asked the U.S. District Court for the Southern District of New York to dismiss the putative class action against it for its alleged violation of New York's lien release statutes. Plaintiff Tina Bellino had alleged that the bank failed to timely file notices that mortgages had been satisfied KAS DIRECT: Faces Class Action Over Deceptive Babyganics Claims --------------------------------------------------------------- Michael Abella, writing for Legal Newsline, reports that two consumers are suing a baby care products manufacturer, alleging false and misleading identification of products. Tanya Mayhew of Dutchess County, New York, and Tanveer Alibhai of Oakland, California, filed a class action complaint, individually and on behalf of all others similarly situated, Sept. 7 in U.S. District Court for the Southern District of New York against KAS Direct LLC doing business as Babyganics, alleging violation of the New York General Business Law and the California Organic Products Act. According to the complaint, Mayhew and Alibhai suffered financial injury for paying a premium price for a series of baby care products that they believed to be organic. The suit says they received less than what they bargained and/or paid for. The plaintiffs allege a Babyganics falsely represented that its products are organic and deceptively named its "Babyganics," to convey to consumers that its products are organic, although the products contain only small quantities of organic ingredients. Mayhew and Alibhai seek trial by jury, an order certifying this case as a class action, appointing the plaintiffs and their counsel to represent the class, all monetary relief, attorney fees and court costs, punitive damages and all further relief. They are represented by attorneys Jason P. Sultzer of The Sultzer Law Group PC in Poughkeepsie, New York; Charles J. LaDuca and Katherine Van Dyck of Cuneo Gilbert & LaDuca LLP in Washington, D.C.; and by Melissa W. Wolchansky and Amy E. Boyle of Halunen Law in Minneapolis. U.S. District Court for the Southern District of New York Case number 7:16-cv-06981 KOVITZ SHIFRIN: Wins Prelim. OK of "McCarter" Class Settlement -------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on September 16, 2016, in the case entitled Janice McCarter v. Kovitz Shifrin Nesbit, P.C., Case No. 1:13-cv-03909 (N.D. Ill.), relating to a hearing held before the Honorable Michael T. Mason. The minute entry states that the parties' joint motion for preliminary approval of class action settlement is granted. As stated on the record, the parties should re-submit their proposed order to the Court's proposed order e-mail address. The Case is one of the three class action lawsuits against KSN alleging violations of the Federal Debt Collection Practices Act. The parties in the lawsuits jointly filed a motion for preliminary approval of a class settlement. The parties have stipulated to certification of this Settlement Class for settlement purposes only: All persons, including Class Plaintiffs and Individual Plaintiffs, who from May 27, 2012 through the Preliminary Approval Date, were sent a '30-day Notice and Demand' by KSN at an Illinois address (or at multiple addresses, including an Illinois address). KSN represents that there were approximately 26,383 members in the class between May 27, 2012, and June 29, 2016. Based on this representation and the KSN's representation of its net worth, the parties agreed to settle their lawsuits, KSN agreed to establish a settlement fund of $290,000, plus $30,000 for the costs of class notice and administration, for the total of $320,000 (compared to the total of $220,000 in the original settlement agreement). Further, KSN agreed to pay any additional costs of class notice and administration to ensure that the settlement fund will always be $290,000. A copy of the Joint Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=gB6yh1qv A copy of the Notification of Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=zWziAJSC Plaintiff Janice McCarter is 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 E-mail: kducduong@kmdlex.com - and - Mark Lavery, Esq. HYSLIP & TAYLOR, LLC LPA 1100 W. Cermak, Suite B410 Chicago, IL 60608 Telephone: (312) 508-5480 E-mail: mark@lifetimedebtsolutions.com The Defendant is represented by: Jonathan N. Ledsky, Esq. Scott J. Helfand, Esq. HUSCH BLACKWELL LLP 120 South Riverside Plaza, Suite 2200 Chicago, Illinois 60606 Telephone: (312) 655-1500 Facsimile: (312) 655-1501 E-mail: jonathan.ledsky@huschblackwell.com scott.helfand@huschblackwell.com KOVITZ SHIFRIN: Wins Prelim. OK of "Scehura" Class Settlement ------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on September 15, 2016, in the case styled Krystyna Scehura v. Kovitz Shifrin Nesbit, P.C., Case No. 1:14-cv-08838 (N.D. Ill.), relating to a hearing held before the Honorable Michael T. Mason. The minute entry states that the parties' joint motion for preliminary approval of class action settlement is granted. The Case is one of the three class action lawsuits against KSN alleging violations of the Federal Debt Collection Practices Act. The parties in the lawsuits jointly filed a motion for preliminary approval of a class settlement. The parties have stipulated to certification of this Settlement Class for settlement purposes only: All persons, including Class Plaintiffs and Individual Plaintiffs, who from May 27, 2012 through the Preliminary Approval Date, were sent a '30-day Notice and Demand' by KSN at an Illinois address (or at multiple addresses, including an Illinois address). KSN represents that there were approximately 26,383 members in the class between May 27, 2012, and June 29, 2016. Based on this representation and the KSN's representation of its net worth, the parties agreed to settle their lawsuits, KSN agreed to establish a settlement fund of $290,000, plus $30,000 for the costs of class notice and administration, for the total of $320,000 (compared to the total of $220,000 in the original settlement agreement). Further, KSN agreed to pay any additional costs of class notice and administration to ensure that the settlement fund will always be $290,000. A copy of the Joint Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=gB6yh1qv A copy of the Notification of Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=aiOLq2rR Plaintiff Krystyna Scehura is 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 E-mail: kducduong@kmdlex.com - and - Mark Lavery, Esq. HYSLIP & TAYLOR, LLC LPA 1100 W. Cermak, Suite B410 Chicago, IL 60608 Telephone: (312) 508-5480 E-mail: mark@lifetimedebtsolutions.com The Defendant is represented by: Jonathan N. Ledsky, Esq. Scott J. Helfand, Esq. HUSCH BLACKWELL LLP 120 South Riverside Plaza, Suite 2200 Chicago, Illinois 60606 Telephone: (312) 655-1500 Facsimile: (312) 655-1501 E-mail: jonathan.ledsky@huschblackwell.com scott.helfand@huschblackwell.com LAND O'LAKES: Deal Over Dairy Price-Fixing Conspiracy Finalized --------------------------------------------------------------- Consumers in 15 states and the District of Columbia who purchased dairy products are now entitled to a portion of a $52 million settlement, culminating a massive antitrust lawsuit filed against the nation's largest dairy producers who allegedly artificially inflated the price of milk and other dairy products by killing hundreds of thousands of cows, according to Hagens Berman. The suit was originally filed in 2011 against big name food conglomerates, agribusinesses and the nation's largest dairy producers, including Land O' Lakes, as well as the National Milk Producers Federation, aka Cooperatives Working Together (CWT), Dairy Farmers of America Inc., Dairylea Cooperative Inc. and Agri- Mark Inc. The class-action suit stated that defendants engaged in a nationwide conspiracy to limit the production of raw farm milk by prematurely slaughtering cows, illegally causing the price of milk and other fresh milk products to artificially inflate. "The biggest dairy producers in the country, responsible for almost 70 percent of the nation's milk, conspired together in a classic price-fixing scheme, forcing higher prices for a basic food item onto honest consumers and families," said Steve Berman, managing partner of Hagens Berman. "We're pleased that this settlement will return some of what consumers lost due to this massive fraud perpetrated for ill-gotten gains." "Compassion Over Killing is proud to have spearheaded the research that led to this class action suit brought by Hagens Berman on behalf of millions of consumers harmed by the dairy industry," says Cheryl Leahy, General Counsel for Compassion Over Killing. "Not only was the price of milk artificially inflated, but this scheme ultimately also cost 500,000 young cows their lives." How to Claim Your Portion of the Settlement If you purchased milk or other fresh milk products (cream, half and half, yogurt, cottage cheese, cream cheese, or sour cream) while a resident of Arizona, California, the District of Columbia, Kansas, Massachusetts, Michigan, Missouri, Nebraska, Nevada, New Hampshire, Oregon, South Dakota, Tennessee, Vermont, West Virginia or Wisconsin at any point between 2003 to the present, you may be eligible for reimbursement. "With this settlement, we are happy to offer those affected an incredibly easy reimbursement process, with no proof of purchase required," Berman added. "After being duped by big dairy corporations, we wanted consumers to have a convenient method of payment." Affected consumers may choose to: * Submit a simple online claim form online or by mail by Jan. 31, 2017. The simple online claim form usually takes only 3-5 minutes. Claims may be submitted online at www.boughtmilk.com, or by mail to Fresh Milk Products Antitrust Litigation, PO Box 43430, Providence, RI 02940- 3430, * Exclude themselves, * File an objection, or * Attend the final approval hearing scheduled for Dec. 16, 2016. Those who submit a claim may opt for cash, with no proof of purchase required. If final approval is granted to the settlement, class members who have filed valid and timely claims will receive cash payments distributed directly into an online account of their choosing, e.g., Amazon, PayPal or Google Wallet account. There will be two different levels of fixed cash payments, based on class member's purchases and the total number of class members making claims. Any remaining funds may be distributed in a second round using grocery loyalty cards to be automatically loaded with a fixed dollar amount, based on triggering purchases of milk or fresh milk products in the relevant states, or, depending on the funds remaining, distributed to the Attorneys General for the class jurisdictions for use in prosecuting consumer antitrust claims. For further details about the settlement, please see the settlement agreement available at www.boughtmilk.com, or contact class counsel at Hagens Berman. For questions about the claims process, contact the Settlement Administrator at 1-877-417-4561, via email at info@boughtmilk.com or visit www.boughtmilk.com. About Hagens Berman Hagens Berman Sobol Shapiro LLP is a law firm with offices in 10 cities and has been named to the National Law Journal's Plaintiffs' Hot List eight times. More about the law firm and its successes can be found at www.hbsslaw.com. Follow the firm for updates and news at @ClassActionLaw. LIFEVANTAGE CORP: Faces Securities Class Action in Utah ------------------------------------------------------- On September 15, 2016, a class action lawsuit was filed in the United States District Court for the District of Utah against LifeVantage Corporation. The complaint alleges violations of federal securities laws, Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5, including allegations of issuing a series of material or false misrepresentations to the market which had the effect of artificially inflating the market price during the Class Period, which is November 4, 2015 through September, 13, 2016. If you wish to discuss this action, obtain further information and participate in this or any other securities litigation, or should you have any questions or concerns regarding this notice or preservation of your rights, please contact: Robin Hester, FEDERMAN & SHERWOOD, 10205 North Pennsylvania Avenue, Oklahoma City, OK 73120, Email to: rkh@federmanlaw.com. Or, visit the firm's website at www.federmanlaw.com Plaintiff seeks to recover damages on behalf of all LifeVantage Corporation shareholders who purchased common stock during the Class Period and are therefore a member of the Class as described above. You may move the Court no later than Monday, November 14, 2016 to serve as a lead plaintiff for the entire Class. However, in order to do so, you must meet certain legal requirements pursuant to the Private Securities Litigation Reform Act of 1995. MECH-TECH INSTITUTE: Four Men Sue Over False Advertisements ----------------------------------------------------------- Gabrielle Russon, writing for Orlando Sentinel, reports that four men who accuse their Orlando technical school of deceiving them with false advertisements and failing to teach them how to work on diesel engines have filed a lawsuit seeking class-action status. Mech-Tech Institute, a for-profit private school, promised to give them a hands-on education, but that never happened, according to the lawsuit filed in Orange Circuit Court. Victor Figueroa, a school vice president, denied the allegations, saying MTI provided students with a solid education. He said he was unaware a lawsuit had been filed. The school, based in Puerto Rico, operates an Orlando campus at 8620 S. Orange Blossom Trail. The four people suing are Orange County residents Juan Castillo and Michael Torres; Omar Rivera Oramas, of Osceola County; and Steaphen Asencio, of Marion County. Rivera and Torres are current MTI students, while Castillo and Asencio are former students, the lawsuit said. Their attorney, Herbert Schwartz, said the men's ages range from early 20s to late 20s. They worked jobs during the day and took classes at MTI in the evening, but they realized they weren't getting what was promised in the courses, Schwartz said. "The frustration level was very high," he said as they took out federal loans to pay for the $21,240 tuition for the 15-month program. Even though the students enrolled in the diesel mechanics program, the only engines they learned how to repair were traditional gasoline engines -- not diesel ones, court documents said. The school's "website depicts two diesel trucks in a garage, with several carts of tools surrounding it," the lawsuit said. "... These trucks either do not exist or are not accessible to diesel students." Most of their education came from reading their textbooks and answering questions in lectures, the lawsuit said. "The hands-on and working outside the classroom components were and are virtually non-existent," the lawsuit said. The lawsuit alleged instructors often quit or were fired, leaving entire classes on their own for long periods of time. Different classes merged together. Other times, the instructors canceled classes more than five times over five months, it said. The school offers technical programs, such as racing mechanics, diesel mechanics and industrial welding. The diesel mechanics program took 15 months to get a graduate certificate and was advertised as having a 100 percent job placement rate, the lawsuit said. MIDLAND CREDIT: Certification of Class Sought in "Hernandez" Suit ----------------------------------------------------------------- Daniel Hernandez asks that the Court certify that the claims set forth in his lawsuit styled DANIEL HERNANDEZ, on behalf of himself and all others similarly situated v. MIDLAND CREDIT MANAGEMENT, INC., Case No. 1:15-cv-11179 (N.D. Ill.), may proceed on behalf of a class defined as: All persons in the State of Illinois to whom, during the one year prior to the filing of Plaintiff's Complaint and continuing through the resolution of this matter, Defendant sent one or more letters or other communications similarly in the form of the October 5th Letter in an attempt to collect a non-business debt, which letter was not returned as undeliverable by the Postal Service. Mr. Hernandez brings the class action against Midland Credit for alleged violations of the Fair Debt Collection Practices Act. He also asks the Court to name him as Class representative, and appoint his lawyers as counsel for the Class. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=9MZFsFsI The Plaintiff is represented by: John Soumilas, Esq. FRANCIS & MAILMAN, P.C., Land Title Building, 19th Floor 100 South Broad Street Philadelphia, PA 19110 Telephone: (215) 735-8600 Facsimile: (215) 940-8000 E-mail: jsoumilas@consumerlawfirm.com - and - Roger Zamparo, Jr., Esq. ZAMPARO LAWGROUP, P.C. 2300 Barrington Road, Suite 140 Hoffman Estates, IL 60169 Telephone: (224) 875-3202 Facsimile: (312) 276-4950 E-mail: roger@zamparo.com MILLENNIUM PARTNERS: Politicians to Probe Sinking Tower ------------------------------------------------------- Josh Lipton, writing for CNBC.com, reports that the Millennium Tower, a residential condominium in San Francisco, is sinking, and politicians want to understand why. The Millennium Tower markets itself as rare and precious. Now two other adjectives also define this luxury high-rise: sinking and tilting. Residents paid millions of dollars to live in the roughly 400-unit skyscraper. The building boasts an indoor pool, fitness center, wine cellar and private dining room. The tower has attracted Bay Area elites like NFL Hall of Fame quarterback Joe Montana; San Francisco Giants outfielder Hunter Pence; Tibco founder and Sacramento Kings owner Vivek Ranadive; and the late legendary venture capitalist Tom Perkins, who paid more than $9 million for the penthouse. The tony tower is now attracting attention from a different group of powerful San Franciscans, however: the city's politicians, who want to understand why this 58-story building has sunk 16 inches, and is tilting at least 2 inches to the northwest since it was completed eight years ago. San Francisco city Supervisor Aaron Peskin held a hearing on the tower on September 22. "We are in the midst of a huge building boom," Peskin tells CNBC. "We should make sure that we are building to the highest standards, and that we are building the safest buildings that we can in San Francisco, which is a seismically challenged part of the world." There is disagreement about why the tower is sinking and tilting. The building's developer, Millennium Partners, blames the Transbay Joint Powers Authority, a public agency overseeing the construction of a new transit center for the city. The agency dug a 60-foot hole next to the tower, which the developer asserts caused the excessive sinking and tilting. The TJPA contends that these claims are misplaced. Instead, it counters that the developer's poor structural design directly led to the tower's excessive settlement. Specifically, the agency maintains that the foundation of the tower consists only of concrete slab supported by short piles that fail to reach the bedrock below, which it says cannot prevent settlement of a structure of this weight. Rectifying the tower's problems remains difficult until the cause of the settlement is determined and agreed upon. Michael Lepech, an associate professor of civil and environmental engineering at Stanford University, offers two potential methods in which the current settlement could be theoretically remediated, or at least abated. Lepech says that deep piles could be sunk or drilled under the tower, and the building shored by hydraulic jacking. Alternatively, stabilization chemicals or cement-based grout could be injected to bind the soil under the building. However, Lepech notes that both solutions are costly and unpredictable. "These solutions will work, but it is not clear how challenging it would be," says Lepech. "Traditionally, these solutions are not designed for a building this size." The building's developer says that the tower remains safe for residents as well as surrounding neighbors. Some real estate agents believe that the skyscraper could represent a compelling investment. They think the building's problems will be fixed eventually, and there is money to be made now for opportunistic buyers. "A buyer can come in and offer under what sellers are asking," says Roh Habibi, principal at The Habibi Group, a broker in the San Francisco Bay Area. "If you're looking for a top building in a world-class city then the Millennium Tower is a great buy." Still, the tower's troubles might soon extend beyond the hearing at City Hall, and into a courtroom. Four law firms recently filed a class-action suit representing the residents, seeking $500 million in damages from the developer, transit authority and other parties. MISONIX INC: Rosen Law Firm Files Securities Class Action --------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on Sept. 20 disclosed that it has filed a class action lawsuit on behalf of purchasers of Misonix, Inc. securities from November 5, 2015 through September 14, 2016, both dates inclusive (the "Class Period"). To join the Misonix class action, go to the website at http://www.rosenlegal.com/cases-953.htmlor call Phillip Kim, Esq. or Kevin Chan, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or kchan@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. According to the lawsuit, throughout the Class Period Misonix made false and/or misleading statements and/or failed to disclose that: (1) deficiencies existed in Misonix's internal controls over financial reporting; and (2) as a result, Defendants' statements about Misonix's business, operations and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than November 18, 2016. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-953.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim or Kevin Chan of Rosen Law Firm toll free at 866-767-3653 or via email at pkim@rosenlegal.com or kchan@rosenlegal.com Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. MGT CAPITAL: Sued in S.D.N.Y. Over Merger with DVasive, Inc. ------------------------------------------------------------ KURT KARNER, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, v. MGT CAPITAL INVESTMENTS, INC., and ROBERT B. LADD, Defendants, Case No. 1:16-cv-07423 (S.D.N.Y., Sep. 22, 2016), seeks remedies under the Securities Exchange Act of 1934 (Exchange Act). On May 9, 2016, the Company announced plans to merge with DVasive, Inc. a company purportedly offering cybersecurity solutions for cellphones and personal electronic devices. The closing of the merger was contingent on approval by MGT's stockholders. The major terms of the deal included the payment to D-Vasive Inc. stockholders of 23.8 million restricted shares (which was later increased to 43.8 million) of MGT stock and $300,000 in cash. The original proposed share issuance was expected to amount to roughly 47% of the Company on a pro-forma fully diluted basis at closing. The merged company was to be led by John McAfee and was to be renamed John McAfee Global Technologies. The Defendants allegedly made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants made false and/or misleading statements and/or failed to disclose: (1) that the Company was engaging and/or had engaged in conduct that would result in an SEC investigation; (2) that the SEC investigation and the underlying conduct would cause the NYSE to refuse to list the Company's 43.8 million shares required for the DVasive merger; (3) that, as such, the D-Vasive merger would likely not be completed; and (4) that, as a result of the foregoing, Defendants' statements about MGT's business, operations, and prospects, were false and misleading and/or lacked a reasonable basis. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damage. The Plaintiff is represented by: Lesley F. Portnoy, Esq. Lionel Z. Glancy, Esq. Robert V. Prongay, Esq. Casey E. Sadler, Esq. Charles H. Linehan, Esq. GLANCY PRONGAY & MURRAY LLP 122 East 42nd Street, Suite 2920 New York, NY 10168 Telephone: (212) 682 5340 Facsimile: (212) 884 0988 E-mail: lportnoy@glancylaw.com MONEYGRAM INTERNATIONAL: Nov. 14 Lead Plaintiff Deadline Set ------------------------------------------------------------ Levi & Korsinsky, LLP on Sept. 19 issued the following statement: To: All persons or entities who purchased or otherwise acquired securities of MoneyGram International Inc. ("MoneyGram") (NASDAQ:MGI) pursuant to the Company's secondary offering completed on or around April 2, 2014. You are hereby notified that a securities class action lawsuit has been commenced in the USDC for the District of Delaware. If you purchased or otherwise acquired MoneyGram securities pursuant to the secondary offering your rights may be affected by this action. To get more information go to: http://www.zlk.com/pslra/moneygram-international-inc or contact Joseph E. Levi, Esq. either via email at jlevi@zlk.com or by telephone at (212) 363-7500, toll-free: (877) 363-5972. There is no cost or obligation to you. The complaint alleges that throughout the Class Period, defendants made false and/or misleading statements and/or failed to disclose material adverse information in the Company's offering documents regarding Walmart's possible entry into the money transfer business and the potential effect it would have on MoneyGram. The true state of Walmart's entry into the money transfer business was revealed on April 17, 2014, just over two weeks after the Offering closed, when Walmart announced that it would launch its own money transfer product beginning on April 24, 2014. In response to this news, MoneyGram's stock price fell by nearly 30 percent. If you suffered a loss in MoneyGram you have until November 14, 2016 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Levi & Korsinsky is a national firm with offices in New York, New Jersey, Connecticut and Washington D.C. The firm's attorneys have extensive expertise in prosecuting securities litigation involving financial fraud, representing investors throughout the nation in securities and shareholder lawsuits. MOSAIC: Faces Class Actions in Florida Over Gypstacks ----------------------------------------------------- Barbara A. Angeluci, writing for Bradenton Herald, reports that the over-building pandemic, phosphate strip mining, agriculture, etc. are all competing with us for water from our aquifer. Water is a precious commodity yet the massive sinkhole in the New Wales gypstack added millions of gallons of water containing cadmium, an extremely toxic metal; radium, nitrogen and phosphorus, the rubber/plastic liner and toxic fragments from the stack itself to our aquifer, compliments of FDEP and EPA. Florida has 24 gypstacks, which will receive 30 million new tons of toxic waste each year. When will the next gypstack event be? The monitoring wells are too shallow to monitor activity at bottom of stacks. The state should consider requiring all gypstacks across Florida be capped and closed to further activity. Mosaic has agreed to test water of neighboring citizens. A gesture of good will or a plan to obfuscate the truth. The third party tester is ECT, a consultant for Mosaic just as with the Areawide Environmental Impact Study (AEIS), which was paid for by Mosaic to achieve the desired outcome. It was terribly flawed. Mosaic apologized for the reporting delay and said postponement of Wingate East application had nothing to do with the current events. Not so. The Manatee County Planning Commission meets once a week; the regular meeting was Aug. 11, then a special planning commission meeting was held the following week on Aug. 18, just for the Mosaic Wingate East Mine. Mosaic was certainly on a fast track in August and now the brakes are on until January 2017. It appears their TV commercials have waned just as their environmental company mantra. Class action suits against Mosaic have been filed and rightly so for this criminal act. MOSAIC CO: Class Action Suit Filed Over Contaminated Water ---------------------------------------------------------- Marilyn Meyer, writing for The Ledger, reports that Morgan & Morgan's ClassAction.com lawyers announced on September 22 that they have filed a class-action lawsuit against Mosaic Co. on behalf of residents who rely on drinking water from wells near the company's New Wales plant, where a sinkhole opened in late August. The lawsuit filed in U.S. District Court in Tampa was on behalf of three Lithia residents, Nicholas Bohn, Natasha McCormick and Eric Weckman. The lawyers are looking for more impacted property owners to join the suit. The lawsuit says 5,000 people live within a 5-mile radius of the sinkhole and there are more than 1,500 private wells within the area. Mosaic has said the nearest private well is 3 miles from the mine. The sinkhole opened under a phosphogypsum stack retention pond on Mosaic's New Wales property, where 4.8 million tons of phosphate fertilizer and animal feed ingredients are produced annually, the lawsuit says According to the lawsuit, when the pond's contents emptied into the aquifer, it included at least 215 million gallons of wastewater containing radionuclides, spent sulfuric acid, wastewater generated from cleaning phosphoric acid from production pipes and equipment, acidic cooling water with high concentrations of phosphorous and fluoride and other contaminants. The lawsuit contends Mosaic knew about the dangers of storing phosphogypsum but disregarded them A news release about lawsuit says, "the Floridan Aquifer system supplies drinking water to millions of residents throughout the state. It is as yet unclear to what extent these wastes have travelled through the aquifer, but the wastes contain extremely toxic and radioactive contaminants such as radium, radon, uranium, thorium, and lead, as well as other non-radioactive toxins." The lawsuit says the incident impacts the plaintiffs' property values and has the potential to impact their health. ClassAction.com lawyer John Yanchunis said in the news release, "This lawsuit is about providing peace of mind to families living nearby the plant. It's about making sure they are confident their water is safe, and that they don't have to take the word of a company that repeatedly disregards the public and the environment in pursuit of profits." ClassAction.com attorneys can be reached at 888- 987-1307. MOTION PICTURE: Seeks Dismissal of Rating System Class Action ------------------------------------------------------------- Mitch Stoltz, writing for Electronic Frontier Foundation, reports that if you have the power to censor other people's speech, special interests will try to co-opt that power for their own purposes. That's a lesson the Motion Picture Association of America is learning this year. And it's one that Internet intermediaries, and the special interests who want to regulate them, need to keep in mind. MPAA, which represents six major movie studios, also runs the private entity that assigns movie ratings in the U.S. While it's a voluntary system with no formal connection to government, MPAA's "Classification and Ratings Administration" wields remarkable power. That's because most movie theaters, along with retail giants like Wal-Mart and Target, won't show or sell feature films that lack an MPAA rating. And a rating of "R" or "NC-17" can drastically limit the audiences who are allowed to view or buy a movie. Power creates its own temptation. MPAA itself has been accused of rating independent films more harshly than those produced by MPAA's own member studios. And this year, a class action lawsuit seeks to force MPAA to use its ratings system to eliminate tobacco imagery from children's films. The lawsuit, Forsyth v. MPAA, claims that MPAA has a special legal duty to avoid harm to children, and because of that duty, MPAA should be required to give an "R" rating to every film that contains smoking or other tobacco use. MPAA has responded by moving to dismiss the suit under California's Anti-SLAPP law. The group argued that its movie ratings are a form of speech protected by the First Amendment. It denied having any legal duty to protect children from images of smoking. And MPAA argued--sensibly--that Mr. Forsyth's claims are a slippery slope: [Plaintiff] is trying to use the tort system to require [MPAA] to implement his policy goals. If Plaintiff's claims were permitted to proceed, there would be no end to claims invoking [MPAA's] purported duty to disregard its own opinions and instead to implement a given advocacy group's preferred social policy in assigning ratings. Plaintiff's theory . . . has no logical stopping point. The rule would require [MPAA] to give an R rating to movies that depict any conduct that advocacy groups think unhealthy--for example, movies that depict alcohol use, gambling, contact sports, bullying, consumption of soda or fatty foods, or high-speed driving. MPAA is right. The First Amendment generally prohibits using legal processes to regulate the opinions expressed by others, no matter how noble the purpose. In fact, the slippery slope of censorship is one of the primary reasons why courts and legislatures can almost never regulate speech based on its content: if one form of "harmful" speech is banned or limited, it's hard to avoid banning or limiting speech on every subject that some powerful interest finds harmful. We expect that MPAA will prevail in this lawsuit. But there's an irony to MPAA's position in this lawsuit, because at the same time it fights to protect the ratings board against co-opting by special interests, the trade association is also trying to co-opt other powerful private gatekeepers of speech into advancing MPAA's own special interest: copyright enforcement. Internet intermediaries like webhosts, domain name registrars, search engines, and third-party platforms are, like MPAA's ratings board, private organizations that stand between speakers and their audiences. Their roles give them power to suppress speech, by making it harder for audiences to access, or even making entire sites disappear from the Internet. Power, once again, creates temptation. This year, MPAA made agreements with two domain name registries, Donuts and Radix, which control new top-level Internet domains such as .movie, .online, and .site. Both registries agreed to receive accusations from MPAA that particular websites are engaged in copyright infringement, and to consider taking away those websites' domain names. MPAA, along with other representatives of major entertainment companies, has also been pushing ICANN, the group that oversees the domain name system, to mandate this new copyright enforcement regime worldwide. Shadow RegulationThere are many problems with this initiative, which we'll be exploring in the coming weeks. But one lesson that MPAA should have learned this year is that once one special interest obtains power to block the channels of communication, others will come knocking. Many powerful interests want the power to edit the Internet, from corporations and wealthy individuals who want to suppress criticism to repressive governments seeking to quash dissent. Some may even have widely supported (though controversial) social goals, like stopping "hate speech," blasphemy, or pornography. Like the plaintiff in the Forsyth case, all of these folks want these private companies and systems "to perform a different function . . . one [they] make[] no claim to serve." Just as MPAA is right to worry that the Forsyth case could open the door to more control of the ratings board by various special interests, new copyright enforcement systems will quickly become enforcement systems for all kinds of speech that a corporation or government declares to be dangerous. This has already happened in the copyright realm: Major ISPs in the United Kingdom are now required to block their customers from reaching entire websites that are deemed to be copyright infringers, using a system that was originally set up to block child pornography. But, you might say, copyright is a law, while preventing smoking is simply a policy goal. But just as MPAA has no legal duty to promote a zero-tolerance message about smoking, intermediaries have no legal duty to police the Internet for copyright infringement, or to prevent their users from infringing. And just as laws on "hate speech," blasphemy, and sedition vary widely between countries, copyright is not the same everywhere. Depictions of tobacco use are themselves subject to strict "plain packaging" laws in some countries. The more Intermediaries on the global Internet are co-opted into regulating content, the more pressure they will face to apply the standards of the most censorious countries and organizations. In the coming weeks, we'll be exploring how speech on the Internet is being controlled by private agreements, and how Internet users can demand accountability and transparency in these Shadow Regulations. For now, even if the Forsyth case is quickly thrown out of court, it should serve as a cautionary tale: build a system that can regulate the speech of others, and the censors will beat a path to your door. MSN MARKETING: "Alan" Sues Over Illegal Telemarketing Calls ----------------------------------------------------------- Jason Alan, individually and on behalf of all others similarly situated, Plaintiff, v. MSN Marketing Group d/b/a Mysupernova.com and Does through 10, inclusive, Defendant, Case No. 8:16-cv-01727 (C.D. Cal., September 16, 2016), seeks treble damages for violation of the Telephone Consumer Protection Act. Defendant contacted Plaintiff on his cellular telephone, in an effort to sell or solicit its services using an automatic telephone dialling system where he incurred a charge for incoming calls. The Plaintiff is represented by: Todd M. Friedman, Esq. Meghan E. George, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Phone: (877) 206-4741 Fax: (866) 633-0228 Email: tfriedman@toddflaw.com mgeorge@toddflaw.com abacon@toddflaw.comb NABORS INDUSTRIES: Miami Ret. Trust Files Appeal in Del. S.C. ------------------------------------------------------------- CITY OF MIAMI GENERAL EMPLOYEES' AND SANITATION EMPLOYEES' RETIREMENT TRUST, on behalf of itself and on behalf of all others similarly situated, the Plaintiff-Below, Appellant, v. JERRY M. COMSTOCK, JR., as Independent Executor of the Estate of Joshua E. Comstock, RANDALL C. MCMULLEN, DARREN M. FRIEDMAN, ADRIANNA MA, MICHAEL ROEMER, C. JAMES STEWART, III, H.H. "TRIPP" WOMMACK, III, THEODORE "TED" MOORE, NABORS INDUSTRIES LTD., and MORGAN STANLEY & CO. LLC, Defendants-Below, Appellees, Case No. 59599337 (Del. Sup. Ct., Sept. 22, 2016), is an appeal filed before the Supreme Court of the State of Delaware from a lower court decision in Case No. 9980-CB (Del. Ct. of Chancery., Aug. 24, 2016). Jerry M. Comstock, Jr., as Independent Executor of the Estate of Joshua E. Comstock, Randall C. McMullen, Darren M. Friedman, Adrianna Ma, Michael Roemer, C. James Stewart, III, H.H. "Tripp" Wommack, III, and Theodore "Ted" Moore are represented by: Stephen C. Norman, Esq. Michael A. Pittenger, Esq. Jaclyn C. Levy, Esq. POTTER ANDERSON & CORROON LLP 1313 N. Market St., 6th Fl. Wilmington, DE 19801 - and - Michael C. Holmes, Esq. Manuel G. Berrelez, Esq. Craig E. Zieminski, Esq. Olivia D. Howe, Esq. Meriwether T. Evans, Esq. Meredith S. Jeanes, Esq. VINSON & ELKINS LLP 2001 Ross Ave., Ste. 3700 Dallas, TX 75201 Nabors Industries, Ltd. is represeted by: William M. Lafferty, Esq. Lindsay M. Kwoka, Esq. MORRIS, NICHOLS, ARSHT & TUNNELL LLP 1201 N. Market St., Ste. 1800 Wilmington, DE 19801 - and - Alan J. Stone, Esq. MILBANK, TWEED, HADLEY & MCCLOY, LLP 28 Liberty St. New York, NY 10005-1413 Morgan Stanley & Co. LLC is represented by: Ashley R. Altschuler John L. Reed, Esq. John J. Clarke, Jr. DLA PIPER LLP (US) 1201 North Market Street, Ste. 2100 Wilmington, DE 19801 NATIONAL ELECTORAL: Class Action Mulled Over Violent Protests ------------------------------------------------------------- ZimNews.net reports that Citizens Against Violence and Anarchy (CAVAA) is inviting all flea markets, corporate, and individuals whose properties were destroyed during the recent violent demonstrations in Harare to come forward and register with the trust, with aim to claim redress. In a notice the trust, which calls itself as a broad based organisation representing interest of wide range of stakeholders who cherish peaceful elections and prosperous Zimbabwe says everyone who lost goods as a result of the protests should approach it and register. "We are going to launch a class action soon against organisations and individuals who operate under National Electoral Reform Agenda (NERA) for compensation," read a statement. According to CAVAA, the registration started on 9 September and is currently going on. Meanwhile, though Zim News could not get a comment from NERA regarding CAVAA's announcement to sue it, NERA is on record of denying alleged violent behaviour by its members, but, instead blamed state response to their peaceful demonstrations and has vowed to stay put until their demands are met. Zim News once happened to witness one such planned protest where the unprovoked police ruthlessly attacked the gathering at civic grounds behind Rainbow Tourism Group hotel in July. The protesters had been waiting for a court ruling to either grant permission or deny, but, the police went ahead firing teargas and unleashing water cannons on the masses causing disorder in the process. All hell went loose when the demonstrators resorted to take their war to the city centre upon realising that they were being barred from entering the grounds. This move by CAVAA come amid calls for more protests, basically by teachers, who are accusing the government of making them second fiddle to other civil servants. The Rural Teachers Union of Zimbabwe (RTUZ) successfully carried out peaceful protests in Bulawayo and Gokwe over the weekend voicing out their concerns, of being paid among the last batch of workers. According to the announced pay days for civil servants the army is expected to get paid on 20 September, health workers on 23, police prisons on 27, with teachers on 3 October, this has angered the teachers. It is also being alleged that even the weekend's protests went on peacefully, the police and army was also deployed in the streets armed to teeth, this resulted in some protesters drawing back. There were reports saying they (police and soldiers) wielded live ammunitions, a claim the police have denied. Commenting on the events MDC-T spokesperson Obert Gutu said the government has declared war against innocent and unarmed civilians who are trying to exercise their constitutional right to engage in peaceful demonstrations. He claimed that throughout the country, armed police and hundreds of ZANU PF thugs were deployed even in small towns specifically to harass, intimidate, and assault people who were peaceful as they demand reforms. ZANU PF maintains that it will go on crashing demonstrations against it, as they it claim the protesters of being rowdy, violent, and engage into arson, sabotage and looting, even though NERA attribute the undesirable incidences of looting to malpractices of infiltrators who are bent on discrediting their peaceful protests. Recently, a meeting between NERA and the Zimbabwe Electoral Commission (ZEC) failed to make any mark after ZEC allegedly roped in bogus political parties in order to dilute NERA's concerns as decisions were to be made through voting, to which NERA responded by walking out of the process. NOODLES & COMPANY: Class Action Filed Over Credit Card Breach ------------------------------------------------------------- Robert Garrison, writing for Denver7, reports that several banks and other financial institutions are alleging the Broomfield-based Noodles & Company failed to take steps to prevent a massive data breach earlier this year. A class-action federal lawsuit was filed Sept. 13 against the fast-casual chain relating to the breach. Noodles officials warned customers in May that their credit card processor reported unusual activity to customers' credit and bank cards. The breach began around January 2016. The lawsuit was filed on behalf of credit unions, banks, and other financial institutions that claim they have suffered injury as a result of the security breach. The suit alleges that Noodles failed to implement or maintain adequate data security measures for customer information. Denver7 reached out to Noodles & Company for comment, but they have yet to return comment. OHIO: Disability Wait List for HCBS May Violate ADA, Suit Claims ---------------------------------------------------------------- Open Minds reports that the Ohio Department of Developmental Disabilities (DODD) wait list for home-and community-based services (HCBS) may violate the Americans with Disabilities Act (ADA), according to the federal Department of Justice (DOJ) in a statement of interest related to a class-action lawsuit challenging the state's wait list. The DOJ issued its statement of interest on August 22, 2016. Approximately 5,800 state residents with intellectual and developmental disabilities (I/DD) live in intermediate care facilities (ICFs). PETSMART INC: Accused by Breingan of Not Giving Proper Services --------------------------------------------------------------- DAVID BREINGAN and EARL RAINS, Individually, and on behalf of a class of persons similarly situated v. PETSMART, INC., Case No. 16-2686 (Mass. Super. Ct., Middlesex Cty., September 16, 2016), is brought on behalf of a putative class of Massachusetts consumers similarly injured by the alleged unlawful business practices of PetSmart. PetSmart is a foreign corporation with a usual place of business located in Chelmsford, Massachusetts. PetSmart sells pet products and services to the general public. Among other services, PetSmart offers consumers overnight boarding of pets in either 4x4 kennels or premium, more expensive suites that contain a bed, a television, and additional space. For an additional sum, PetSmart also offers a dog "day camp" in which dogs can spend either a half day or full day with other dogs in a controlled environment. The Plaintiffs allege that PetSmart's Chelmsford location routinely fails to provide its services to the Plaintiffs because it deliberately overbooks services, lacks sufficient staff, or simply chooses not to do so. Instead of providing consumers' pets with Day Camp Service or Suite Service, PetSmart leaves customers' pets in small, 4x4 kennels throughout their stay, and PetSmart hides this fact from customers -- it does not inform consumers of its failure to provide the premium services purchased, and it does not offer refunds, the Plaintiffs further allege. The Plaintiffs are represented by: Raven Moeslinger, Esq. Charlotte Drew, Esq. Nicholas F. Ortiz, Esq. LAW OFFICE OF NICHOLAS F. ORTIZ, P.C. 99 High Street, Suite 304 Boston, MA 02 11 0 Telephone: (617) 338-9400 E-mail: rm@mass-legal.com - and - John Davis, Esq. DAVIS & DAVIS P.C. Park Place South 350 Park Street, Suite 105 North Reading, MA 01864 Telephone: (978) 276-0777 E-mail: jdavis@davisanddavispc.com PFIZER INC: Faces Class Action Over Chapstick Natural Label ----------------------------------------------------------- Michael Abella, writing for Legal Newsline, reports that two consumers are suing Pfizer, a personal care product manufacturer, alleging negligent misrepresentation. Rachel Tyman of Broward County, Florida, and Johnathan Robinson of New York filed a class action complaint, individually and on behalf of all others similarly situated, Sept. 2 in U.S. District Court for the Southern District of New York against Pfizer Inc., alleging violation of the New York General Business Law and the Florida's Deceptive and Unfair Trade Practices Act. According to the complaint, in 2016, Messrs. Tyman and Robinson suffered financial damages for paying a premium price for Chapstick lips products that were misrepresented. The suit says the plaintiffs were deprived the benefit of the bargain and also denied the benefit of knowing what they applied to their lips. The plaintiffs allege Pfizer falsely misrepresented that its Chapstick products are 100 percent natural, when they are not, and mislabeled its product as clinically proven to provide healthier lips. "Pfizer provides consumers with truthful information, and the packaging and advertising for ChapStick(R) Total Hydration 100% Natural are accurate and scientifically sound. We deny the plaintiffs' allegations and believe this lawsuit has no merit," the company said in a statement. Ms. Tyman and Mr. Robinson seek trial by jury, an order certifying this complaint as a class action, appointing the plaintiffs and their counsel as class representatives, requiring Pfizer to pay full restitution and disgorgement of all ill-gotten gains, actual damages, attorney fees, court costs and pre- and post-judgment interest. They are represented by attorneys Kim E. Richman of The Richman Law Group in Brooklyn, New York; by Joshua H. Eggnatz and Michael J. Pascucci -- MPascucci@ELPLawyers.com -- of Eggnatz, Lopatin & Pascucci LLP in Davie, Florida; by Natalie Finkelman and James C. Shah of Shepherd, Finkelman, Miller & Shah LLP in Media, Pennsylvania; and by Jayne A. Goldstein of Pomerantz LLP in Weston, Florida. U.S. District Court for the Southern District of New York Case number 1:16-cv-06941 PHILADELPHIA, PA: Hodge Seeks Damages Over Vehicular Accident ------------------------------------------------------------- PATRICIA HODGE, INDIVIDUALLY AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED INDIVIDUALS, 132 Greendale Road, Philadelphia, PA 19154, the Plaintiff, v. CITY OF PHILADELPHIA 1515 ArchStreet, 14th Floor, Philadelphia, PA 19102 AND AMERIHEALTH CASUALTY SERVICES 1700 Market Street, Suite 700 Philadelphia, PA 19103, v. the Defendant, Case No. 160902552 (S.D. Fla., Sept. 22, 2016), seeks recovery of damages in connection with serious personal and bodily injuries sustained in a July 19, 2013 motor vehicle accident. On July 19, 2013, the Plaintiff, Patricia Hodge, while operating an unmarked police vehicle in the course and scope of her employment with the Defendant, City of Philadelphia, was struck by a vehicle owned by Western Industries North, LLC and operated by Jermaine Black. The July 19, 2013 accident was caused by the negligence and carelessness of Jermaine Black acting on behalf of Western Industries North, LLC. The plaintiff sustained serious personal and bodily injury in the July 19, 2013 motor vehicle accident. Philadelphia, Pennsylvania's largest City, is notable for its rich history, on display at the Liberty Bell, Independence Hall (where the Declaration of Independence and Constitution were signed) and other American Revolutionary sites. The Plaintiff is represented by: Charles Kannebecker, Esq. 104 W. High Street Milford, PA 18337 - and - James C. Haggerty, Esq. HAGGERTY, GOLDBERG, SCHLEIFER & KUPERSMITH, P.C. 1835 Market Street, Suite 2700 Philadelphia, PA 19103 Telephone: (267) 350 6600 Facsimile: (215) 665 8197 PHILIP MORRIS: Jury Rules Smoker Failed Citizenship Requirements ---------------------------------------------------------------- Arlin Crisco, writing for CVN, reports that jurors on September 22 found a smoker failed state citizenship requirements for purposes of class action membership against the nation's tobacco companies, clearing Philip Morris of liability for his lung cancer death. Chacon v. Philip Morris, 08-102-CA-09. Jurors needed only an hour to conclude Robiel Chacon was not a Florida citizen and resident either when his lung cancer was diagnosed on June 3, 1994 or when it manifested, excluding him from the so-called Engle class action against the country's tobacco companies. Chacon, who smoked as many as 4 packs of cigarettes a day for 45 years, died in 1996, two years after being diagnosed with lung cancer. His widow, Elsa Chacon, claims Philip Morris, makers of cigarettes her husband smoked, hid the dangers of smoking for decades, leading to her husband's nicotine addiction and death. During Thursday's [September 22] closing arguments, Elsa Chacon's legal team requested up to $19 million in compensatory damages, plus a finding of punitive liability. The case is one of thousands of similar lawsuits stemming from the 2006 Florida Supreme Court decision decertifying Engle v. Liggett Group Inc., a Florida state court class-action lawsuit originally filed in 1994. Although the state's high court ruled Engle cases must be tried individually, it found plaintiffs could rely on certain jury findings in the original verdict, including the determination that tobacco companies had placed a dangerous, addictive product on the market and had hidden the dangers of smoking. To rely on those findings, individual Engle progeny plaintiffs must establish Florida citizenship, as well as a causal link between nicotine addiction and smoking-related disease. The nine-day trial ultimately turned on whether Chacon, who had immigrated to New York in the 1950s from Cuba, was a Florida citizen and resident when he developed lung cancer. For purposes of the case, "citizenship" is considered a person's domicile, or single, fixed permanent home, while residency was considered a person's established living location for a period of time. During Thursday's [September 22] closing arguments The Alvarez Law Firm's Alex Alvarez pointed to what he considered "overwhelming" evidence Chacon was a Florida citizen and resident when his cancer developed, including his purchase of a Miami home in 1986, his family's move to Miami with all of their personal property in 1988, and the filing of a Florida homestead exemption a year later. "They had no personal property, no furniture, no nothing in New York," Alvarez said. "He would take a duffle bag when he had to go up to stay at his mother-in-law's house for some business for a few days." However, the defense contended Chacon did not do enough to abandon his New York domicile and establish a Florida domicile that would render him a citizen of that state before doctors diagnosed him with cancer. Shook Hardy Bacon's Frank Kelly noted Chacon had registered to vote in New York as recently as 1992, despite his family's move to Florida four years earlier, and he retained a New York driver's license until a month after his 1994 cancer diagnosis. Kelly also reminded jurors Elsa Chacon testified her husband, who maintained a business in New York, would come to Florida to see his family for a few days every two or three months. "He had not abandoned New York. His present intention was to be in New York. His future intention, undoubtedly, was to get to Florida," Kelly said. But, "the evidence is that had not happened" at the time of the cancer diagnosis. Neither the parties' attorneys nor Philip Morris representatives could immediately be reached for comment. PLANT ENGINEERING: Certification of Class Sought in "Ortega" Suit ----------------------------------------------------------------- Sam Ortega, on behalf of similarly-situated persons employed by the Defendant, move the Court to conditionally certify the matter entitled SAM ORTEGA, Individually and for Others Similarly Situated v. PLANT ENGINEERING SERVICES, LLC, Case No. 3:16-cv- 00106 (S.D. Tex.), as a collective action under the Fair Labor Standards Act. Mr. Ortega also proposes to issue proposed notice to all potential class members. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=udUTBnuI The Plaintiff is represented by: Richard J. (Rex) Burch, Esq. James A. Jones, Esq. BRUCKNER BURCH PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: (713) 877-8788 Telecopier: (713) 877-8065 E-mail: rburch@brucknerburch.com jjones@brucknerburch.com POLARIS INDUSTRIES: Nov. 15 Lead Plaintiff Motion Deadline Set -------------------------------------------------------------- The securities litigation law firm of Brower Piven, A Professional Corporation, on Sept. 19 disclosed that a class action lawsuit has been commenced in the United States District Court for the District of Minnesota on behalf of purchasers of Polaris Industries, Inc. (PII) ("Polaris" or the "Company") securities during the period between January 26, 2016 and September 11, 2016, inclusive (the "Class Period"). Investors who wish to become proactively involved in the litigation have until November 15, 2016 to seek appointment as lead plaintiff. If you wish to choose counsel to represent you and the Class, you must apply to be appointed lead plaintiff and be selected by the Court. The lead plaintiff will direct the litigation and participate in important decisions including whether to accept a settlement for the Class in the action. The lead plaintiff will be selected from among applicants claiming the largest loss from investment in Polaris securities during the Class Period. Members of the Class will be represented by the lead plaintiff and counsel chosen by the lead plaintiff. No class has yet been certified in the above action. The complaint accuses the defendants of violations of the Securities Exchange Act of 1934 by virtue of the defendants' failure to disclose during the Class Period that the Company was unable to sufficiently validate the initially identified repair for certain of its recalled RZR vehicles, the Company would ultimately need to implement a more complex and expensive repair solution, the financial impact of RZR vehicle recalls was greater than the Company had disclosed, and the Company had overstated its full-year 2016 guidance. According to the complaint, following a September 12, 2016 press release announcing that the Company was lowering its full-year 2016 earnings guidance due to the impact of RZR thermal-related problems, including the Company's inability to sufficiently validate the initially identified RZR Turbo recall repair, necessitating a more complex and expensive repair solution, the value of Polaris shares declined significantly. If you have suffered a loss in excess of $100,000 from investment in Polaris securities purchased on or after January 26, 2016 and held through the revelation of negative information during and/or at the end of the Class Period and would like to learn more about this lawsuit and your ability to participate as a lead plaintiff, without cost or obligation to you, please visit our website at http://www.browerpiven.com/currentsecuritiescases.html. You may also request more information by contacting Brower Piven either by email at hoffman@browerpiven.com or by telephone at (410) 415- 6616. Brower Piven also encourages anyone with information regarding the Company's conduct during the period in question to contact the firm, including whistleblowers, former employees, shareholders and others. Attorneys at Brower Piven have extensive experience in litigating securities and other class action cases and have been advocating for the rights of shareholders since the 1980s. If you choose to retain counsel, you may retain Brower Piven without financial obligation or cost to you, or you may retain other counsel of your choice. You need take no action at this time to be a member of the class. POR ENTERPRISES: Faces FLSA Breach Suit in Alabama -------------------------------------------------- Jane Doe 1-2 on behalf of themselves and all others similarly situated, Plaintiffs, v. Por Enterprises, Inc., Defendant, Case No. 5:16-cv-01543, (N.D. Ala,, September 16, 2016), seeks damages, back pay, restitution, liquidated damages, and declaratory relief, civil penalties, prejudgment interest, reasonable attorneys' fees and costs, and any and all other relief under the Fair Labor Standards Act. Por Enterprises, Inc. operates Jimmy's Lounge, an adult entertainment bar where Plaintiffs worked as exotic dancers. The latter claim to only derive income from tips from club patrons. Plaintiff is represented by: Brian Clark, Esq. WIGGINS CHILDS PANTAZIS FISHER & GOLDFARB The Kress Building 301 19th St. Birmingham, AL 35203 Tel: (205) 314-0500 Fax: (205) 254-1500 Email: bclark@wigginschilds.com POWER SOLUTIONS: Oct. 21 Lead Plaintiff Bid Deadline ---------------------------------------------------- Lundin Law PC announces a class action lawsuit was filed against Power Solutions International, Inc., concerning possible violations of federal securities laws between May 8, 2015 and August 15, 2016 inclusive. Investors who purchased or otherwise acquired shares during the Class Period should contact the Firm in advance of the October 21, 2016 lead plaintiff motion deadline. You can also call Brian Lundin, Esquire, of Lundin Law PC, at 888- 713-1033, or e-mail him at brian@lundinlawpc.com. No class has been certified in the action. Until a class is certified, you are not considered represented by an attorney. You may also choose to do nothing and be an absent class member. The complaint alleges that through the Class Period, PSI made false and misleading statements and/or failed to disclose that: the Company inappropriately recognized revenue for certain transactions; that PSI lacked adequate internal controls over financial reporting; and that as a result, PSI's public statements were materially false and misleading at all relevant times. On August 15, 2016, the Company announced that it would delay filing its Form 10-Q for the quarter ending June 30, 2016 because its financial statements were incomplete due to possible problems with certain transactions involving revenue recognition. When this information was disclosed to the public, the PSI stock price fell, causing investors harm. Lundin Law PC was founded by Brian Lundin, a securities litigator based in Los Angeles dedicated to upholding shareholders' rights. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. PREIT ASSOCIATES: "Badger" Sues Over Wheelchair Inaccessibility --------------------------------------------------------------- Josie Badger, individually and on behalf of all others similarly situated, Plaintiff, v. Preit Associates, LP, Defendant, Case No. 2:16-cv-01431, (W.D. Penn., September 16, 2016), complains over wheelchair accessibility. The suit further seeks payment of reasonable attorneys' fees pursuant to the Americans with Disabilities Act. Josie Badger has a mobility disability and uses a wheelchair for mobility. Plaintiff has visited Defendant's facilities and was denied full and equal access as a result of Defendant's inaccessible parking lots and paths of travel. PREIT Associates, LP is headquartered at The Bellevue, 200 South Broad Street, Philadelphia, Pennsylvania 19102. Plaintiff is represented by: Benjamin J. Sweet, Esq. Edwin J. Kilpela, Esq. Stephanie K. Goldin, Esq. CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP 1133 Penn Avenue, 5th Floor Pittsburgh, PA 15222 Tel: (412) 322-9243 Fax: (412) 231-0246 PTX INDUSTRIES: Sued in Cal. Over Defective Roofing Products ------------------------------------------------------------ KATHLEEN MUSSER, on behalf of herself and all others similarly situated, the Plaintiff, v. PTX INDUSTRIES, INC., a dissolved Delaware corporation and JOHN DOE CORPDRATIONS 1-10, whose true names are unknown, the Defendant, Case No. BC634883 (Cal. Super. Ct. Sep. 22, 2016), seeks damages, punitive damages, injunctive relief, costs, attorneys' fees, and other relief as a result of Defendant's willful, wanton, reckless, and/or grossly negligent conduct in causing consumers' homes to be in a dangerous, defective, unsafe, and unfit condition for habitation. The Defendant has knowingly and intentionally concealed, and failed to disclose that -- notwithstanding statements on its website, brochures, advertisements and warranties -- its Protex slate and shake roofing products routinely deteriorate, buckle, and break far in advance of the expiration of warranty periods. Indeed, Defendant's shingles have deteriorated and will continue to deteriorate at a rate which clearly demonstrates their lack of durability and resiliency. Similarly, Defendant has knowingly and intentionally concealed, and has failed to disclose, that it actually had no intention of providing the services set forth in its purported warranties. PTX Industries manufactures roofing materials for commercial and residential replacement markets. The Plaintiff is represented by: Michael J. Flannery, Esq. CUNEO GILBERT & LADUCA, LLP 7733 Forsyth Blvd., Suite 1675 St. Louis, MO 63105 Telephone: (314) 226 1015 Facsimile: (202) 789 3960 E-mail: Mflannery@cuneolaw.com QUEENSLAND: Indigenous People Suit Sets National Precedent ---------------------------------------------------------- Katherine Gregory, writing for ABC News, reports that more than 300 people are suing the Queensland Government in the Federal Court, which held money in a trust that should have been paid to them as labourers or domestic workers more than half a century ago. Rebecca Jancauskas, from Shine lawyers, said the class actions first directions hearing had revealed that the litigation proceedings would be speedy because of the advanced age of the claimants. "It was clear that these claims are being taken seriously by federal court bench," she said. "And proceedings have set the tone for litigation in other states where protectionist legislation was in place and wages were withheld from Indigenous people. "Dozens of individuals have contacted Shine from across Australia wanting to register to be a part of action in their state. "So what we're doing at Shine is investigating bringing proceedings in other states -- including the Northern Territory, Western Australia and NSW." 'We were sometimes paid three pounds' Violet Perry was 15 years old when she and dozens of other girls were taken from a mission in central New South Wales to become domestic workers in Sydney. "The welfare board walked in one day and she said to my mother: 'I've got a job for your daughter'," she said. "My mother nearly screamed the house down, I was crying and I didn't know what to say or do." Ms Perry worked in homes in Sydney's eastern suburbs for years in the early 1960s. She said she was "sometimes" paid three pounds a week, but said there were times where she and the other workers would not get paid at all. "Because we had a room down the back we never asked questions, because they might have done something to us," she said. Ms Perry, now 71 years old, is one of the dozens of people around Australia who have come forward wanting to be part of the class action. 2002 claimants received a 'fraction of what they were owed' The Queensland Government did set up a reparations scheme in 2002, but Ms Jancauskas said claimants only received between $2,000 and $7,000 for decades of work as labourers, stockmen or domestic servants. "The amount they received through the reparations scheme was but a fraction of the money that the Government is holding in trust for them," Ms Jancauskas said. "Had people received their entitlements through reparations schemes, then there would be no need for litigation to be pursued." Those who took part in the scheme had to sign a deed of release, stopping them from taking further action. But Ms Jancauskas said that would not stop them from participating in the litigation. RED GRANITE: Minister Says Husam Musa's Class Action Baseless ------------------------------------------------------------- FMT reports that lawyer Matthias Chang and former PAS Vice-President Husam Musa's decision to drop their class action suit showed their claims were frivolous and baseless, said an Umno minister. Minister in the Prime Minister's Department in charge of law Azalina Othman Said said furnishing additional facts for a lawsuit did not require the action to be withdrawn through a supplementary application. "Rule 11 of the United States' Federal Rules of Civil Procedure (FRCP) provides that claims brought in the federal courts should have merit and are not brought for an improper purpose," she said in a statement on Sept. 26. "This is also to discourage dilatory or abusive tactics by any lawyer and to streamline the litigation process by lessening the amount of frivolous matters brought before the federal courts. "Therefore, it is observed that the decision of Husam and Chang to drop their class action against US-based corporations and individuals linked to alleged embezzlement and money laundering involving 1MDB demonstrates that their claim is a frivolous claim or a baseless lawsuit." She also said that the entire scenario only revealed the unscrupulous intention of both Husam and Chang, whom she alleged had filed the suit merely for cheap publicity. "Husam's justification, saying that the withdrawal is for the purpose of aligning the claims following new developments in the case, is unacceptable. "The duo, not only attempted to embarrass Malaysia, but can also be seen as being unaware of the court processes and the basic requirements of filing a class action. "They are politically motivated and rushed the matter for the purpose of gaining mere publicity by means of abusing the court." In August, Chang and Husam filed a suit "on behalf of all Malaysian citizens" in which they sought damages and the return of property and other assets which they alleged were purchased using money stolen from 1MDB. The suit said the money raised through bond offerings by 1MDB was used to fund Red Granite, which financed the film "Wolf of Wall Street". Red Granite was founded in 2010 by Prime Minister Najib Razak's stepson, Riza Aziz, and his friend, Joey McFarland. Riza was among those named in a suit filed by the US Department of Justice (DoJ), which claimed that more than USD3.5 billion was diverted from the 1MDB fund that Najib founded in 2009, shortly after coming to power. ROCKWELL INT'L: April 28, 2017 Settlement Fairness Hearing Set -------------------------------------------------------------- Berger & Montague, P.C. on Sept. 19 issued a statement regarding the Rocky Flats class action settlement. Did you own property near and downwind from the former Rocky Flats Nuclear Weapons Plant in Denver, Colorado on June 7, 1989? Are you an heir of someone who did? Are you the successor of an entity that did? If so, you could get money from a proposed $375 million class action settlement. A $375 million Settlement has been proposed in a lawsuit against the former operators of the Rocky Flats Nuclear Weapons Plant. The lawsuit claims that Rockwell International Corp. and The Dow Chemical Co. caused the properties owned by the Class Representatives and the other Class Members in the Property Class Area (see map at www.RockyFlatsSettlement.com) to be contaminated with plutonium, a hazardous radioactive substance, which caused the properties' values to be less than they otherwise would have been and which substantially interfered with Class Members' use and enjoyment of their property. The case is Cook et al. v. Rockwell International Corp. and The Dow Chemical Co., Civil Action No. 90-00181-JLK (D. Colo.). The parties have agreed to settle to avoid additional delay and uncertainty in a case that already is over 26 years old but, before any money is paid, the proposed settlement must be approved by the Court. Who is a Class Member? The Property Class (or "Class") includes all persons and entities that owned an interest (other than mortgagee and other security interests) in real property within the Property Class Area on June 7, 1989 (one day after a famous FBI raid of the plant site). If you are an heir of someone (or the successor of an entity) who owned property on June 7, 1989 in the Property Class Area, you may also file a claim. What Does the Settlement Provide? Defendants will pay $375 million (the "Settlement Fund") to pay Class Members and to pay attorneys' fees (not to exceed 40% of the Settlement Fund) and costs and expenses. Also, Class Counsel will ask for service awards totaling $780,000 to the Class Representatives for their efforts during over 26 years of litigation. Additionally, the Settlement Fund will pay for the costs of Notice and settlement administration. The remainder (the "Net Settlement Fund") will be divided among Class Members. What are my options? To get a share of the Net Settlement Fund, you must file a claim by June 1, 2017. Payments will be calculated as a percentage of the Net Settlement Fund based on the value of the property owned and located within the Class Area as of June 7, 1989. You may opt out of the Class and Settlement by March 1, 2017. If you opt out you will not receive any money if the Settlement is approved, but you retain your right to pursue your own lawsuit with your own lawyer. Your own lawyer can advise you about whether your claims may be barred by the statute of limitations. If you do not opt out, you can object to any part of the Settlement on or before March 1, 2017. If you do not opt out, you will remain in the Class and be bound by the terms of the Settlement. A public hearing will be held on April 28, 2017 at 11:00 a.m. MDT, in Courtroom A802 at the United States District Court for the District of Colorado, Alfred A. Arraj United States Courthouse, 901 19th Street, Denver, CO 80294. The Court will consider whether the Settlement is fair, reasonable and adequate. If there are objections, the Court will consider them. If the hearing time/date changes, it will be posted at www.RockyFlatsSettlement.com After the hearing, the Court will decide whether to approve the Settlement. You or your attorney may attend the hearing at your own expense, but you don't have to. This is a summary only. For more information, including a longer Notice, the Settlement, the claim form, the proposed Plan of Allocation, the motion for attorneys' fees, reimbursement of costs and expenses and for service awards (when filed on or before January 12, 2017), and a list of important deadlines, visit www.RockyFlatsSettlement.com or call 1-844-528-0187. ROOT9B TECHNOLOGIES: Court Dismisses Securities Class Action Suit ----------------------------------------------------------------- root9B Technologies (OTCQB: RTNB) announced on September 22 that the United States District Court for the District of Colorado has dismissed, with prejudice, the securities class action litigation originally filed in June 2015 against root9B Technologies and certain of the Company's officers and directors. "We are very pleased with the Court's decision and believe the ruling supports our position that the lawsuit was frivolous and without merit," said Joseph Grano, Chairman and Chief Executive Officer of root9B Technologies. "We have always had tremendous confidence in the platform that Eric Hipkins and his team at root9B have built and are proud of the company's ability to develop best-in-class cybersecurity solutions." The plaintiffs have a right to file an appeal to the United States Court of Appeals for the Tenth Circuit within 30 days of the District Court's judgment. A full copy of the United States District Court for the District of Colorado's judgment issued on September 21, 2016 is posted at: http://www.root9btechnologies.com/news/root9b-announces-dismissal- of-class-action-lawsuit.html ROYAL CROWN: Court OKs 3rd Party Funding w/o Notice to Defendants ----------------------------------------------------------------- Sonia Bjorkquist -- sbjorkquist@osler.com -- of Osler Hoskin & Harcourt LLP, in an article for Lexology, reports that should a court hear from a defendant before approving third party funding of a class action against that defendant? As we have previously commented, courts in Ontario have usually answered "yes" to that question. However, in Schneider v Royal Crown Gold Reserve Inc a Saskatchewan court took a different approach: Chief Justice Popescul approved a litigation financing and indemnity agreement ("LFA") without any notice to the defendants. Although he left open the possibility of the defendants challenging the LFA in the future, his reasons suggest that generally courts do not need to hear from defendants before approving third party funding. The Schneider Decision The plaintiff started a class action claiming that he and other class members lost money investing in a gold property because of the defendants' alleged deceit, negligent and statutory misrepresentations, negligence, and breach of contract. That class action was certified in 2012. In 2015, Saskatchewan went from being a "no costs jurisdiction" to a "costs jurisdiction" as a result of amendments to that province's Class Actions Act, exposing the plaintiff to the risk of a significant costs award if his action was eventually dismissed. To address that risk, the plaintiff entered into the LFA and then applied for court approval of that agreement. Relying on decisions in other provinces approving similar agreements, Chief Justice Popescul concluded that the court has jurisdiction to approve the LFA. He also decided to approve the LFA and grant a sealing order requested by the plaintiff. Chief Justice Popescul then considered whether the plaintiff should have given notice of his motion to the defendants. He concluded that the defendants did not have any legal interest in the motion, and notice was not required because it did not matter "from whose pocket an adverse cost award is paid". However, Chief Justice Popescul also stated that a copy of his order should be served on the defendants and, because the motion had been brought without notice, the defendants could apply to set aside or vary the order in the future. Implication for Defendants The decision in Schneider, like earlier decisions in Alberta and New Brunswick, can be contrasted with the approach taken in Ontario and British Columbia, where courts have concluded that the defendants' participation is of assistance to the court. In Fehr v Sun Life Assurance Company of Canada and in Bayens v Kinross Gold Corporation, Justice Perell held that defendants are affected by third party funding motions and they should be given the opportunity to participate in such motions. However, more recently in Berg v Canadian Hockey League, Justice Perell was willing to modify that approach and exclude the defendants from part or all of the process because of the unique nature and sensitivities of the agreement before him in that case. Unlike Berg, the decision in Schneider was not restricted to the particular agreement before the court. Rather, contrary to the approach in Ontario, the decision suggests that defendants are generally not affected by third party funding agreements such that plaintiffs will usually not be required to provide notice when seeking court approval of such agreements. That being said, the decision does not leave defendants without any recourse. As noted, Chief Justice Popescul observed that the defendants could apply to set aside or vary his order. That process puts the onus on defendants to take steps that they would not generally have to take in Ontario to ensure participation (especially in cases where the agreement and the court record are subject to a sealing order). As these issues increasingly come before the courts, defendants who face parallel class actions in more than one province may have very different rights if a third party funding motion is brought in one province versus the next. Further, disclosure of materials in one province may effectively undermine a confidentiality order made in another. Unless and until the approaches taken in different provinces becomes more harmonious, defendants must be mindful of these inconsistent rights of participation in third party funding motions. SALINAS ECUADORIAN: Faces "Alfaro" Suit Under FLSA, NY Labor Law ---------------------------------------------------------------- DELMY ALFARO, on behalf of herself and Plaintiffs, Plaintiff, v. SALINAS ECUADORIAN BAR & RESTAURANT CORP. and MANUEL MOROCHO, Defendants, Case No. 1:16-cv-05252 (E.D.N.Y., September 21, 2016), seeks to recover from Defendants: (1) unpaid minimum wages, (2) unpaid overtime, (3) liquidated damages and (4) attorneys' fees and costs under the Fair Labor Standards Act; and (1) unpaid minimum wages, (2) unpaid overtime, (3) unpaid spread of hours premium, (4) statutory penalties, (5) liquidated damages; and (6) attorneys' fees and costs under the New York Labor Law. Salinas Ecuadorian Bar & Restaurant Corporation. is a small, fairly new organization in the drinking places industry located in Corona, NY. It opened its doors in 2011 and now has an estimated $178,714 in yearly revenue and 7 employees. The Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, Second Floor New York, NY 10016 Phone: 212-465-1188 Fax: 212-465-1181 SAMUEL JEWELERS: "Jafari" Seeks to Recoup Pay Under Labor Code -------------------------------------------------------------- Nazila Jafari, individually and on behalf of all persons similarly situated, Plaintiff vs. SAMUEL JEWELERS, INC., a Delaware corporation; GITANJALI USA, INC., a New York Corporation; and DOES 1 through 50, inclusive, Defendants, Case No. BC 634106 (Cal. Super., County of Los Angeles, September 15, 2016), seeks to recover alleged unpaid minimum and overtime compensation, unpaid split shift premium wages, wages for meal and rest break violations, statutory penalties, restitution, punitive damages, as well as other damages owed pursuant to the California Labor Code, California Civil Code, and California Business and Professions Code. SAMUELS JEWELERS, INC. owns and/or operates numerous jewelry stores within the State of California. The Plaintiff is represented by: Shadie L. Berenji, Esq. Tsolik Kazandjian, Esq. Kiran Preet Dhillon, Esq. BERENJI LAW FIRM, APC 8383 Wilshire Blvd., Suite 708 Beverly Hills, CA 90211 Phone: (310) 855-3270 Fax: (310) 855-3751 Email: berenji@employeejustice.law kazandjian@employeejustice.law dhillon@employeejustice.law SANTA FE, NM: Inmates Sue Over Delayed Conditions of Release ------------------------------------------------------------ Matt Howerton, writing for KOAT, reports that a federal class action lawsuit against the Santa Fe County Sheriff's Office and the Santa Fe County Jail says inmates aren't seeing judges fast enough to have their conditions of release set. Under New Mexico law, anyone charged or indicted must have their conditions of release set by a judge within 15 days of their arrest. An inmate's bond that he or she has to pay to get out of jail is set when a judge finalizes their conditions of release. Yet some inmates in the Santa Fe County Jail have to wait weeks, even months, before they see a judge, said attorney Todd Coberly. Mr. Coberly is representing two inmates who spent an estimated 30 and 60 days behind bars before seeing a judge. But after researching booking and court documents, Mr. Coberly said at least 150 inmates have not seen judges to have their conditions of release set within 15 days. He said the longest delay was more than four months. "This is not Guantanamo Bay where people can just be detained for long periods of time without due process," Mr. Coberly said. "There's a systemic issue happening in Santa Fe. People's constitutional rights are being violated on a regular basis." Mr. Coberly couldn't explain why inmates weren't seeing judges fast enough to have their conditions of release set, but said by law the burden of getting inmates to a judge falls on the sheriff's office and the jail. "Under state law, they are the ones who are ultimately responsible for ensuring the detainees at the jail get their due process," Mr. Coberly said. Mr. Coberly showed Action 7 News e-mails from the sheriff's office responding to a public records request for any policies or procedures on file related to getting inmates to judges to have their conditions of release set. In those e-mails, the sheriff's office said it did not have any such records on file. Action 7 News contacted Santa Fe County's legal department to understand what's the issue, but calls were not returned. SCHOOL DISTRICT OF LANCASTER: Issa Seeks ELL Class Certification ---------------------------------------------------------------- The Plaintiffs in the lawsuit titled Khadidja Issa; Q.M.H., a minor, individually, by and through his parent, Faisa Ahmed Abdalla; Alembe Dunia; Anyemu Dunia; V.N.L., a minor, individually, by and through her parent Mar Ki; Sui Hnem Sung; and all others similarly situated v. The School District of Lancaster, Case No. 5:16-cv-03881-EGS (E.D. Pa.), move the Court for an order provisionally certifying their proposed class, and clarifying and extending the terms of the Court's August 26, 2016 injunction order to Class Members. According to the Plaintiffs' emergency motion for provisional class certification, the Plaintiffs return to the Court seeking specific relief for similarly-situated immigrant English Language Learners who, without the Court's protection, will continue to allegedly suffer irreparable harm caused by the District's refusal to honor the Court's August 26, 2016, preliminary injunction ruling. Hence, the Plaintiffs ask that the Court modify its August 26 Order to: (a) expressly enjoin the District from continuing its illegal enrollment and placement practices; (b) provisionally certify the class proposed in the Plaintiffs' motion for class certification; (c) expressly extend the injunction order to Class Members; (d) authorize the Plaintiffs to serve additional discovery requests aimed at identifying Class Members and determining their enrollment status; and (e) order the Defendant to respond to the Plaintiffs' discovery requests. A copy of the Emergency Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=WEbCvJNj The Plaintiffs are represented by: Witold J. Walczak, Esq. AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA 247 Fort Pitt Blvd. Pittsburgh, PA 15222 Telephone: (412) 681-7736 Facsimile: (412) 681-8707 E-mail: VWalczak@aclupa.org - and - Molly Tack-Hooper, Esq. Michelin Cahill, Esq. AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA P.O. Box 60173 Philadelphia, PA 19102 Telephone: (215) 592-1513 Facsimile: (215) 592-1343 E-mail: MTack-Hooper@aclupa.org MCahill@aclupa.org - and - Kathleen A. Mullen, Esq. Megan Morley, Esq. Hedya Aryani, Esq. PEPPER HAMILTON LLP 3000 Two Logan Square Eighteenth & Arch Streets Philadelphia, PA 19103-2799 Telephone: (215) 981-4000 Facsimile: (215) 981-4750 E-mail: mullenk@pepperlaw.com gurneyk@pepperlaw.com morleym@pepperlaw.com - and - Maura McInerney, Esq. Kristina Moon, Esq. Alex Dutton, Esq. EDUCATION LAW CENTER 1315 Walnut Street Suite 400 Philadelphia, PA 19107 Telephone: (215) 238-6907 Facsimile: (215) 772-3125 E-mail: mmcinerney@elc-pa.org kmoon@elc-pa.org adutton@elc-pa.org - and - Seth F. Kreimer, Esq. UNIVERSITY OF PENNSYLVANIA LAW SCHOOL 3501 Sansom Street Philadelphia, PA 19104 Telephone: (215) 898-7447 E-mail: skreimer@law.upenn.edu SHINE LAWYERS: Faces Risk of Shareholder Class Action ----------------------------------------------------- Chris Merritt, writing for The Australian, reports that a second listed law firm, Shine Lawyers, faces the risk of a shareholder class action after the collapse of its share price. Shine Lawyers is being targeted by a newly launched class action adviser over a series of announcements that preceded February's 75 per cent decline in its share price. That wiped more than $253 million from Shine's market capitalisation. Investor Claims Partner, which is being launched on September 22, is assembling a register of institutional shareholders who bought Shine shares in the five months before February. ICP's research shows that throughout that period Shine provided annual earnings guidance of between $52m and $56m before downgrading this on January 29 to between $24m and $28m. Shine joins Slater & Gordon, which is also being targeted for possible class actions by rival law firms ACA Lawyers and Maurice Blackburn. Shine, which has 48 offices and more than 700 staff, disclosed in August month that its net profit for the year to June had fallen by 50 per cent to $14.8m. In February Shine revealed that its net profit had plunged by 90 per cent for the six months to December from $13.3m to $1.3m. However, Shine is still pursuing several class actions of its own and uses US legal identity Erin Brockovich as its "ambassador". The possible claim against Shine was referred to ICP by litigation specialist Quinn Emanuel Urquhart & Sullivan after an approach from shareholders. It is one of three potential class actions that ICP is unveiling on September 22. Quinn Emanuel partner Damian Scattini said Shine had been over- estimating how much it would be able to recover from the firm's work in progress. "They record the hours they have spent and they record it as revenue, whereas it is only hours they have spent. They have not recovered it at all," Mr Scattini said. "They grossly over-estimated the amount they would recover." Shine issued a statement denying any wrongdoing. "Shine has not been contacted by the firm in question in relation to any potential cause of action," it says. "Shine has, at all times, met its continuous disclosure obligations including compliance with the Australian accounting standards and refutes any statements to the contrary." ICP's chief executive and founder is John Walker, a former executive director of Bentham IMF, which is the nation's largest litigation funder. His new company is not a funder but instead acts as an adviser to institutional shareholders that identifies potential claims (see accompanying report). The other possible claims he has unveiled are against Sims Metal and Spotless, which have both suffered significant falls in their share price. ICP's research shows the market capitalisation of Sims Metal fell by $530m in November last year after it effectively halved its earnings guidance. It had stated in September that its targets had been reviewed and were realistic. The possible claim against Spotless concerns a decline in market capitalisation of $961m in December when the company said its earnings outlook was flat and profit would be down 10 per cent. In October, ICP's research shows Spotless shareholders were told to expect the annual results to materially exceed those of the year before. Shine was floated in 2013 and subsequently has acquired several small practices including Western Australia's Stephen Browne Personal Injury Lawyers and north Queensland's Emanate Legal. SIRIUS XM: Aware of Potential Class Action Lawsuit -------------------------------------------------- Sirius XM Canada Holdings Inc., the parent of Sirius XM Canada Inc., announced that the Company is aware of Applications for Authorization to Institute a Class Action that have been filed with the Superior Court (Quebec). The Applications seek to authorize the bringing of class action litigation against the Company in connection with Quebec's Consumer Protection Act and includes bringing a class action litigation against certain other prominent Canadian companies in the media, technology, telecommunication and financial sectors in addition to the Company. The Company has retained legal counsel and intends to vigorously defend itself against any potential class action litigation. The Company does not intend to comment further upon this matter unless and until it deems further disclosure is appropriate or required by law. SIZMEK INC: Faces "Burns" Lawsuit Over Sale to Vector Capital ------------------------------------------------------------- JOSEPH BURNS, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. JOHN R. HARRIS, NEIL H. NGUYEN, SCOTT K. GINSBURG, XAVIER A. GUTIERREZ, ADAM KLEIN, CECIL H. MOORE, STEPHEN E. RECHT, ALEX MERUELO LIVING TRUST, MERUELO INVESTMENT PARTNERS LLC, ALEX MERUELO, SIZMEK, INC., SOLOMON HOLDING, LLC, SOLOMON MERGER SUBSIDIARY, INC., VECTOR SOLOMON HOLDINGS (CAYMAN), LTD., VECTOR CAPITAL IV, LP, VECTOR CAPITAL IV INTERNATIONAL, LP, and VECTOR ENTREPRENEUR FUND II, LP, Defendants, Case No. 1:16-cv-01073 (W.D. Tex., September 15, 2016), alleges violation of the Securities Exchange Act in connection with the ongoing private transaction between Sizmek and Vector, whereby Vector will acquire Sizmek through a tender offer for the inadequate consideration of $3.90 per share. SIZMEK, INC. is an open ad management company. The Plaintiff is represented by: Murtaza Sutarwalla, Esq. George Edwards, Esq. EDWARDS SUTARWALLA PLLC 2555 N. MacGregor Way, Suite 100 Houston, TX 77004 Phone: (832) 717-2562 Fax: (713) 583-8715 Email: murtaza@eslawpartners.com george@eslawpartners.com - and - Nadeem Faruqi, Esq. FARUQI & FARUQI, LLP 685 Third Avenue, 26th Floor New York, NY 10017 Phone: 212-983-9330 Fax: 212-983-9331 Email: nfaruqi@faruqilaw.com - and - Derrick B. Farrell, Esq. FARUQI & FARUQI, LLP 20 Montchanin Road, Suite 145 Wilmington, DE 19807 Phone: (302) 482-3182 Email: dfarrell@faruqilaw.com - and - Juan E. Monteverde, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Avenue 59th Floor New York, NY 10118 Phone: (212) 971-1341 Fax: (212) 601-2610 Email: jmonteverde@monteverdelaw.com SOLARCITY CORP: Faces Securities Class Action Lawsuit ----------------------------------------------------- Adam Russell, writing for Market Exclusive, reports that SolarCity Corp is facing accusations of violating federal securities laws, leading to losses for some of its investors. A class action lawsuit against the company has commenced in a U.S. District Court for the Northern District of California. Securities litigation law firm Brower Piven is representing the affected investors and search for the lead plaintiff in the class action litigation is on. The Class Period The class action lawsuit against SolarCity covers the period from May 5, 2015 through Feb. 9, 2016. However, Brower Piven recently said in a press release that no class has been certified. Investors who acquired or held shares of SolarCity during the class period and suffered losses of more than $100,000 can apply to be lead plaintiff in the class action lawsuit. However, time seems to be running out because candidates for lead plaintiff have until October 14, 2016 to make their application. The court will be involved in the selection of the lead plaintiff who should be among those who suffered the highest losses. The lead plaintiff will play a number of critical roles in the litigation. For instance, the lead plaintiff will take charge of directing the litigation on behalf of other class investors. As such, the lead plaintiff will participate in the making of important decisions such as accepting or rejecting a settlement offer in the lawsuit. The lead plaintiff will also choose the counsel for the case. What's the complaint? The complaint against SolarCity says that the company failed to disclose to shareholders that demand for its products was shrinking. So investors kept buying the stock until SolarCity began to lower its financial performance guidance, thus sparking a selloff that destroyed value for the class investors. Cash-strapped solar company SolarCity is currently in a difficult financial situation that it has been trying to sell off some of its assets to stay afloat. The company has agreed to be acquired by electric car maker Tesla Motors Inc (NASDAQ:TSLA) for $2.3 billion. But Tesla recently warned that closing the deal with SCTY was likely to be delayed by shareholder litigations. SOUTHERN PACPIZZA: Tony Suit Seeks Minimum Wages Under FLSA ----------------------------------------------------------- TONY SANCHEZ, individually and on behalf of similarly situated persons, the Plaintiff, v. SOUTHERN PACPIZZA, LLC, the Defendant, Case No. 4:16-cv-05434-DMR (N.D. Cal., Sept. 22, 2016), seeks relief on a collective basis challenging SPP's practice of failing to pay drivers the federal minimum wage, pursuant to the Fair Labor Standards Act (FLSA). The Defendant allegedly failed to reasonably reimburse Class members for using their own vehicles to deliver Defendant's pizzas and other food items. SPP's systematic failure to adequately reimburse automobile expenses constitutes a "kickback" to SPP such that the hourly wages it pays to Plaintiff and SPP's other delivery drivers are not paid free and clear of all outstanding obligations to SPP. The Plaintiff is represented by: Jonathan Weissglass, Esq. ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421 7151 Facsimile: (415) 362 8064 E-mail: jweissglass@altber.com - and - Mark A. Potashnick, Esq. WEINHAUS & POTASHNICK 11500 Olive Boulevard, Suite 133 St. Louis, MO 63141 Telephone: (314) 997 9150 Facsimile: (314) 997 9170 E-mail: markp@wp-attorney.com - and - Jack D. McInnes, Esq. PAUL MCINNES LLP 601 Walnut St., Suite 300 Kansas City, MO 63106 Telephone: (816) 984 8100 Facsimile: (816) 984 8101 E-mail: mcinnes@paulmcinnes.com SPECTRUM PHARMACEUTICALS: Faces "Ayeni" Securities Suit Over Drug ----------------------------------------------------------------- OLUTAYO AYENI, Individually and on behalf of all others similarly situated, Plaintiff, v. SPECTRUM PHARMACEUTICALS, INC., RAJESH C. SHROTRIYA, KURT A. GUSTAFSON, JOSEPH TURGEON, and LEE ALLEN, Defendants, Case 2:16-cv-07074 (C.D. Cal., September 21, 2016), alleges violation of the Securities and Exchange Act in connection with disclosures relating to its apaziquone product. Defendant Spectrum is a biotechnology company focused on acquiring, developing, and commercializing drug products, with a primary focus in Hematology and Oncology. The Plaintiff is represented by: Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, P.A. 355 South Grand Avenue, Suite 2450 Los Angeles, CA 90071 Phone: (213) 785-2610 Fax: (213) 226-4684 Email: lrosen@rosenlegal.com STATE FARM: Racketeering Suit Obtains Class-Action Status --------------------------------------------------------- Becky Yerak, writing for Chicago Tribune, reports that a federal racketeering lawsuit involving State Farm and allegations of funneling money into the election of a state judge has been granted class-action status, potentially benefiting more than 4 million policyholders. In 2012, plaintiffs that included Mark Hale of New York and Todd Shadle of Texas filed a two-count, class-action lawsuit in a U.S. District Court for the Southern District of Illinois. The class could include 4.7 million policyholders, court documents show. They alleged that, starting in 2003, State Farm conducted a racketeering enterprise to enable the insurer to evade payment of a $1.05 billion judgment that had been affirmed by the Illinois Appellate Court. The underlying case had involved a class action suit filed in 1997 regarding claims for damage to cars between 1987 and 1998 that were repaired with nonoriginal equipment manufacturer parts. It led to the $1.05 billion verdict. In a 29-page order on Sept. 16, U.S. District Judge David Herndon recapped the plaintiff's allegations, which sought to disqualify Judge Lloyd Karmeier from participating in the appeal, "having received reliable information that State Farm had exerted financial and political influence" to get Judge Lloyd Karmeier elected to the Illinois Supreme Court. The request was denied and in August 2005, "with now-Justice Karmeier participating in the court's deliberations and casting his vote in State Farm's favor, the Illinois Supreme Court issued a decision overturning the $1.05 billion judgment," Herndon wrote. State Farm "recruited Karmeier, directed his campaign, had developed a vast network of contributors and funneled as much as $4 million to the campaign," according to Herndon's summary of the complaint. "Then, after achieving Karmeier's election, State Farm deliberately concealed all of this from the Illinois Supreme Court while its appeal was pending." State Farm spokeswoman Missy Dundov said the insurer is "disappointed in the court decision on the class certification question and respectfully disagree with it." Ms. Dundov said State Farm plans to ask the appellate court to review the ruling. On Sept. 19, the Illinois Supreme Court said Judge Karmeier would be its next chief justice. Judge Karmeier is not a defendant in the lawsuit. The 2012 case, if successful, could result in a more than a $7.6 billion payout from State Farm for the class, due partly to the interest that has accrued, according to Clifford Law Offices, which is representing policyholders. A copy of the Court's decision is available at https://is.gd/TEE8Id from Leagle.com. TESLA MOTORS: Shareholders Suits Hamper SolarCity Merger -------------------------------------------------------- David Welch, writing for Bloomberg News, reports that Tesla Motors Inc. faces a potential delay in its acquisition of SolarCity Corp. from four shareholder lawsuits, creating added urgency as both companies use up cash. The suits by four different shareholders, outlined in a regulatory filing Sept. 19, all allege that Tesla's executives and board breached their fiduciary duty by entering into the pact because Chairman Elon Musk and other Tesla insiders hold shares in both companies. One plaintiff seeks an injunction to stop the transaction, potentially holding up a deal until a hearing on Oct. 18 at the earliest. The cases are without merit, Tesla said in the filing. While shareholder litigation is common in deals and Delaware courts tend to side with management, the companies' entwined nature may bring greater scrutiny. That could be troublesome for both firms: Tesla plans to raise cash later this year both to further develop electric cars and to fund the merged company's operations, and SolarCity disclosed after its second-quarter earnings that it was getting close to default on its existing debt. "It will be very difficult for the courts to blow this off," said James Cox, a professor at the Duke University School of Law. "It's a high-profile case, it's a self-dealing case. This gets a much deeper look than most others would." Tesla will oppose the lawsuits, the company said in an e-mailed statement. "Simply because someone uses litigation to try to delay an acquisition does not mean it will be successful," the statement said. "At this point, it is not yet known if anyone will even end up pursuing such a request." Need for Cash Both companies are unprofitable and need cash. In this year's first half, SolarCity spent $1.3 billion on operations and investments in its business, about twice what Tesla spent. The combined company will have about $5.2 billion in debt, according to pro forma financial statements in the regulatory filings. "There is a bit more urgency for the Tesla-SolarCity deal to go through sooner so that SolarCity can get the access to capital that it needs," Barclays analyst Brian Johnson wrote in an Aug. 31 research note. Shareholder votes were possible by early to mid- October, he wrote at the time. Four Lawsuits The lawsuits were filed by the City of Riviera Beach Pension Fund, Arkansas Teacher Retirement System, and individual shareholders P. Evan Stephens and Ellen Prasinos. They seek to force Tesla to rescind the merger proposal and pay damages to the shareholders, and one seeks to establish a class action against Tesla. According to the filing, the Delaware Chancery Court set a schedule on Sept. 16 to consolidate the actions and determine a leadership structure for the plaintiffs. In court documents, Tesla argued that there is no need to hold up the deal because the plaintiffs could seek damages from the merged company later. The plaintiff in the Prasinos case countered that shareholders would sustain irreparable harm if the deal goes through as planned in the fourth quarter and asked the judge to expedite the case. The merger proposal initially met resistance in part because Musk owns more than 20 percent of both companies and his cousins Lyndon Rive and Peter Rive are SolarCity's chief executive officer and chief technical officer, respectively. Tesla shares, which had fallen 10 percent the first trading day after the deal was proposed, rose 1.2 percent to $207.85 at 11:20 a.m. in New York. SolarCity announced a week ago that it raised $305 million through two deals. The first was selling future cash flows from SolarCity developments to Quantum Strategic Partners Ltd., a fund advised by the billionaire George Soros; the second was an 18-year-loan from a syndicate of five lenders. TOPCO ASSOCIATES: Faces Class Action Over "All Natural Label" ------------------------------------------------------------- Michael Abella, writing for Madison-St. Clair Record, reports that a Monroe County woman is suing a drink products manufacturer, alleging unfair merchandising practices with "all natural" label. April Dugan filed a class action complaint, individually and on behalf of all other similarly situated who are current citizens of Illinois, Aug. 24 in St. Clair County Circuit Court against Topco Associates LLC, alleging violation of the Illinois Consumer Fraud and Deceptive Practices Act. According to the complaint, Ms. Dugan suffered financial damages for paying a premium for an almond milk product that is worth less than what was represented. The plaintiff alleges Topco prominently represented that its almond milk product is "all natural" when it contains synthetic, unnatural substances. The suit also says Topco misled consumers into thinking its product contains less sugar than it actually does. Dugan seeks trial by jury, an order certifying this case as a class action, appointing the plaintiff and her counsel as class representative, compensatory damages, enjoining the defendant from engaging in false marketing of its product, pre- and post-judgment interest, attorney fees, court costs and all other relief. She is represented by attorneys David C. Nelson of Nelson & Nelson in Belleville, Matthew H. Armstrong of Armstrong Law Firm in St. Louis, and by Stuart L. Cochran of Cochran Law PLLC in Dallas. St. Clair County Circuit Court case number 16-L-446 Organizations in this Story St. Clair County Circuit Court TRANSAMERICA LIFE: Policyholders File Bad Faith Insurance Suit -------------------------------------------------------------- Gordon Gibb, writing for Lawyers and Settlements, reports that rip off is a harsh term, although one plaintiffs embroiled in Life Insurance Rip Off lawsuits use with complete comfort. At the very least, consumers holding universal life insurance policies currently facing massive rate increases are stuck with a classic catch 22 situation, in that policyholders annoyed with rising premiums, or unable to pay them, have few alternatives given their age. Consumers Hit with Massive Universal Life Premiums Join Class Action In most instances, any individual 55-plus shopping for life insurance would be facing high premiums unless their health proved pristine. Few people at middle age are without some health issues. An increasing 'catch 22' faced by consumers having had the foresight to buy universal life insurance policies -- products which have a cash value and are designed for long-term (as opposed to shorter-term 'term insurance') -- represents an environment whereby premiums for universal life policies are skyrocketing. One couple identified in The New York Times (05/20/16) are facing a conundrum over rising rates on their universal life policy. Lloyd Tanner, of Hot Springs Village, Arkansas, purchased a universal life insurance policy from Transamerica in 1992 for $250,000. Mr. Tanner and his wife Carolyn have been told their monthly premiums could quadruple in the coming years, escalating their monthly premium to as high as $2,900 per month. Lloyd Tanner is in his seventies and is in poor health. The Tanners can't afford such an increase. "We still do not understand how Transamerica can do this," Carolyn Tanner told The New York Times. Transamerica, which defends the increases as necessary, takes the position that policyholders are not being charged anything above maximum rates specified in the contractual language of their polices. Policyholders are having none of it, and have filed a Bad Faith Life Insurance lawsuit. The litigation is proposed as a class action. The New York Times notes in its report that universal life policies -- unlike basic life insurance or straight term insurance -- feature a savings component or 'cash value' that accrues over time. The cash value accrues based on interest rates that were agreed to at the time the policies were put in force. In the 1980s and 1990s -- the decades during which universal life policies were most popular -- interest rates were much higher than they are now. The Life Insurance Rip Off lawsuit filed in February takes Transamerica to task for sharp increases in the monthly deduction rate, which The New York Times describes as the amount taken from policyholders' accounts to cover premiums, the cost of the policy's death benefit and other expenses and fees. The lawsuit asserts that Transamerica is putting through these increases as a pretext to avoid paying policyholders the higher interest rates agreed to when the policies were sold. The Bad Faith Life Insurance lawsuit holds that Transamerica is breaching the terms of its universal policies by doing so. Transamerica disagrees. "In 2015, based on its expectations about future performance of certain universal life policies, Transamerica prospectively increased monthly rates of these older policies," said Gregory Tucker, a spokesman for Transamerica, in an emailed statement to The New York Times. No policyholders are being charged more than the maximum rates specified in their policies, with premiums based on multiple factors, including "interest, mortality, taxes and expenses associated with the policy. "Transamerica is in full compliance with its contractual obligations and intends to contest vigorously the recently filed litigation," Mr. Tucker said. Transamerica is not the only player raising their rates. Other companies, such as AXA Equitable Life Insurance Company and Voya Financial, are reported to be also pushing through rate increases. Some policyholders have reported rate increases of as much as 38, or 40 percent. Policyholders can opt not to pay the increased premiums, but the consequences are not in their favor, since insurance companies can get their money anyway by deducting from the cash value of the universal life policy until the cash value is depleted. At that point, without the policyholder paying the increased premiums and with a depleted cash value, the policy suddenly lapses. Policyholders have the option of surrendering their policies (rather than pay the higher premiums) and take whatever cash value there is -- but they could be taxed on the income. And by surrendering their policy, they have summarily discontinued their life insurance coverage. Shopping for a new policy -- and finding a viable and affordable option -- would prove difficult given the seeker's advancing age and potential for health issues, which makes insurance more expensive. Faced with the inability to pay increased premiums with their existing policy, and with an inability to source an affordable alternative, many consumers will be filing a Denied Life Insurance Claim lawsuit. Some policyholders have, indeed, surrendered their universal life policies due to the rate increases. The class action Life Insurance Rip Off lawsuit against Transamerica is seeking reinstatement of any policy surrendered as the result of the rate increases. The lawsuit also seeks a reversal of the premium increases, and damages. The Consumer Federation of America is urging the National Association of Insurance Commissioners to examine the justification of rate increases at the state level. "It does not take much imagination to imagine that millions of [universal life] policyholders will be adversely affected if insurers are free to raise" their rate schedules, says James H. Hunt, the consumer federation's life insurance actuary, in a letter to the association. Class plaintiffs in the Bad Faith Life Insurance lawsuit argue that language in existing universal life policies bar Transamerica from recovering "past losses by changing the monthly deduction rates." The Life Insurance Rip Off lawsuit was filed in Los Angeles. The case is Feller et al v. Transamerica Life Insurance Company, Case No. 2:16-cv-01378, US District Court, Central District of California. Lead plaintiff Mary Feller is a freelance writer in San Francisco. According to The New York Times, Ms. Feller and her husband Gordon purchased universal life policies from Transamerica in 1989 as security for their retirement years. "It's represented as the best of both worlds," Ms. Feller, now 62, said in a phone interview. "It has life insurance to protect your family, and a nest egg when you choose to cash out." Their rates have increased over 40 percent, and Ms. Feller fears increases will be even bigger. The Fellers expect they would have to work longer just to pay the higher rates to maintain the policies, or to make up the six years of retirement income they would lose were the policies to be surrendered. TRANSWORLD SYSTEMS: Frausto Seeks Certification of FDCPA Class -------------------------------------------------------------- The Plaintiff in the lawsuit captioned DIEGO FRAUSTO, on behalf of himself and the class members described below v. TRANSWORLD SYSTEMS, INC., Case No. 1:16-cv-09016 (N.D. Ill.), asks the Court to enter an order determining that his Fair Debt Collection Practices Act action may proceed as a class action against TSI. Mr. Frausto defines the class as (a) all individuals (b) from whom TSI sought to collect a purported debt (c) from the recipient of a Federal Express shipment (d) including a collection fee (e) where any correspondence or other collection activity occurred on or after a date one year prior to the filing of this action. The Plaintiff further asks 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=RmnCqZl3 The Plaintiff is represented by: Daniel A. Edelman, Esq. Cathleen M. Combs, Esq. James O. Latturner, Esq. Francis R. Greene, Esq. Sarah M. Barnes, Esq. EDELMAN, COMBS, LATTURNER & GOODWIN, L.L.C. 20 S. Clark Street, Suite 1500 Chicago, IL 60603 Telephone: (312) 739-4200 Facsimile: (312) 419-0379 E-mail: dedelman@edcombs.com ccombs@edcombs.com jlatturner@edcombs.com fgreene@edcombs.com TROPICAL SMOOTHIE: Faces Class Action Over Hepatitis Outbreak ------------------------------------------------------------- Steven M. Sellers, writing for Bloomberg BNA, reports that Tropical Smoothie Cafe LLC should be ordered to notify customers of their possible exposure to hepatitis A in strawberry smoothies served between January and August, according to a class action complaint filed in a Georgia state court Sept. 2 (Kiker v. Tropical Smoothie Cafe, LLC, Ga. Super. Ct., No. 2016CV279710, filed 9/2/16). Two classes are proposed in the complaint: One for all persons in the U.S. who consumed food at the restaurants, and another to compensate customers who develop the virus. Named plaintiff Samantha Kiker, of Roswell, Ga., says she decided to get a vaccination after she "consumed food products from Tropical Smoothie Cafe LLC that contained strawberries between January 2016 and August 2016." She also contends Tropical Smoothie Cafe "concealed, and then only partially disclosed, the fact that its foods were contaminated with Hepatitis A," depriving customers of a two-week window within which a vaccination would be effective. A spokeswoman for Tropical Smoothie Cafe declined to comment. The action is the third filed over the outbreak, which the the U.S. Food and Drug Administration traced to strawberries imported from Egypt. Two other suits, including a would-be class action seeking compensation for required vaccinations, are pending against the company in Virginia. Tropical Smoothie Cafe, based in Atlanta, recalled all of the suspect strawberries Aug. 8, and switched to another supplier for all of its restaurants, according to the Centers for Disease Control and Prevention. The CDC's Sept. 8 update on the outbreak states: "Information available at this time does not indicate an ongoing risk of hepatitis A virus infection at Tropical Smoothie Cafes." 89 Sickened in 7 States The outbreak total may grow larger still because hepatitis A symptoms may develop as long as 50 days after exposure, according to the CDC. The first cases were reported in Virginia in early August, and the outbreak has since sickened at least 89 people in seven states, according to the CDC. Of those cases, 70 were in Virginia as of Sept. 8, with other cases in Maryland (10), New York (1), North Carolina (1), Oregon (1), West Virginia (5) and Wisconsin (1), the CDC said. Hepatitis A is a highly contagious liver disease usually transmitted by ingestion of even microscopic amounts of fecal matter; by contact with an infected person; or by consumption of contaminated objects, food or drinks. TRUMP PAC: Faces Class Action Over Robocalls -------------------------------------------- Andrew Kaczynski, writing for BuzzFeedNews, reports that a pro- Donald Trump political action committee that has raised almost $800,000 responded to an inquiry from the Federal Election Commission asking why the group's filings lack basic information about its spending and contributions. BuzzFeed News reported in August that Liberty Action Group has run radio ads soliciting donations to help elect Trump but has provided little evidence in its FEC filings as to where that money is being spent. The PAC is currently being sued in federal court in a class action complaint alleging the group robocalled thousands of people without their consent. The FEC sent a letter to the group in August requesting more information about the organization's donors and about those who received payments from the group. The PAC's director, 24-year-old Josiah Cammer, responded to FEC, writing in a letter that the group was unaware that they needed to list basic information about their donors in public filings and said they are attempting to ask their donor base for that information to refile to the FEC. "The organization is committed and in agreement on resolving both outlined issues," Mr. Cammer wrote in his letter. "Regarding requested donor occupation information, the organization was not informed nor aware that such information was required therefore, the data was not captured during the initial request. After receiving the letter requesting this information, we've emailed the contributor base requesting this information." "As of Sept. 20, we have received a response from more than 10% of our donors. As soon as we receive the response from 80% of the donors, we will update and resubmit our first quarter reports," he said. "Regarding requesting address and purpose of the itemized disbursements, we've re-submitted as requested." Mr. Cammer said in the letter that they had refiled information in their April quarterly report on where money was spent, but a review of refiled paperwork reveals that basic information, such as addresses for those who received disbursements, is still lacking. Filings from the July report also do not list the purpose for money spent, or the address of those who received the payments. Mr. Cammer did not respond to a request to comment. Other listed contacts for the PAC, such as Robert Reyes of Modern Media Group LLC and Matt Tunstall, who sources said is involved with running the PAC, also did not respond for a request for comment. TWITTER INC: "Shenwick" Sues Over Share Price Drop -------------------------------------------------- Doris Shenwick, as Trustee for the Doris Shenwick Trust, individually and on behalf of all others similarly situated, Plaintiff, v. Twitter, Inc., Richard Costolo and Anthony Noto, Defendants, Case No. 3:16-cv-05314, (N.D. Cal., September 16, 2016), seeks damages and injunctive relief for violation of the Securities Exchange Act of 1934. Twitter is a social media company operating online as Twitter.com. Its main source of revenue is advertising. Twitter stock plummeted $5.30 per share to close at $31.24 per share on July 29, 2015, a one-day decline of nearly 15% on volume of nearly 93 million shares after reporting lower monthly average users for the period. The stock has not recovered and presently trades at less than $20 per share. Plaintiff acquired Twitter common stock between February 6, 2015 and July 28, 2015 and lost substantially. Plaintiff is represented by: Shawn A. Williams, Esq. ROBBINS GELLER RUDMAN & DOWD LLP Post Montgomery Center One Montgomery Street, Suite 1800 San Francisco, CA 94104 Telephone: (415) 288-4545 Fax: (415) 288-4534 - and - David C. Walton, Esq. Daniel S. Drosman, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-8498 Tel: (619) 231-1058 Fax: (619) 231-7423 - and - Jeffrey S. Abraham, Esq. ABRAHAM, FRUCHTER & TWERSKY, LLP One Pennsylvania Plaza, Suite 2805 New York, NY 10119 Telephone: (212) 279-5050 Fax: (212) 279-3655 TWITTER INC: Faces Securities Class Action in California -------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC notifies investors that a securities class action has been filed in the United States District Court, Northern District of California on behalf of those who purchased shares of Twitter, Inc. ("Twitter" or the "Company") between February 6, 2015 and July 28, 2015 both dates inclusive (the "Class Period"). This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws under the Securities Exchange Act of 1934 (the "Exchange Act"). Twitter is an online global social networking service that enables users to send and read short 140-character messages called "tweets". Twitter's main source of revenue is advertising. Advertising income is driven by the number of users the level of engagement of such users. The complaint alleges that during the Class Period, the Company made materially false and/or misleading statements and/or failed to disclose: (1) that by early 2015, Twitter's daily active users (DAUs) had switched the timeline views metric as the main user engagement metric which is tracked internally by Twitter management; (2) that the trend in user engagement growth was lessening; (3) that new product initiatives were not having a significant impact on monthly active users (MAUs) or user engagement; (4) that Twitter stated "acceleration" was the result of low-quality monthly active user growth; (5) and that Twitter lacked a basis for its previously disclosed estimates of about 20% MAU growth and 550 million MAU in the immediate term. On April 28, 2015, Twitter announced its first quarter 2015 financial results and its projections for the second quarter of 2015, with an estimated second quarter revenue between $470 million to $485 million. Twitter also reduced its full year 2015 revenue forecast from a previous guidance of $2.30 billion to $2.35 billion to $2.17 billion and $2.27 billion. Following this news, Twitter stock dropped $9.39 per share, or 18.18%, to close at $42.27 on April 28, 2015. Later, on July 28, 2015, post-market, Twitter announced its second quarter 2015 financial results and projections for the third quarter of 2015, estimating revenue between $545 million to $560 million. Twitter also projecting revenue for 2015 full year in the range of $2.20 billion to $2.27 billion. Following this news, Twitter stock dropped $5.30 per share, or 14.51%, close at $31.24 on July 29, 2015 No Class has yet been certified in the above action. To discuss this action, or for any questions, please visit the firm's site: http://www.bgandg.com/twtror contact Peretz Bronstein, Esq. or his Investor Relations Analyst, Yael Hurwitz of Bronstein, Gewirtz & Grossman, LLC at 212-697-6484 or via email info@bgandg.com. Those who inquire by e-mail are encouraged to include their mailing address and telephone number. If you suffered a loss in Twitter, you have until November 15, 2016 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Bronstein, Gewirtz & Grossman, LLC is a corporate litigation boutique. It represents institutions and other investor plaintiffs in class action security litigation, the firm's expertise includes general corporate and commercial litigation, as well as securities arbitration. UBER TECHNOLOGIES: Lamour Amends Bid to Certify Class of Drivers ---------------------------------------------------------------- The Plaintiff in the lawsuit captioned JEAN EDNER LAMOUR and all others similarly situated under 29 U.S.C. Section 216(b) v. UBER TECHNOLOGIES, INC., a Delaware corporation, Case No. 1:16-cv- 21449-JEM (S.D. Fla.), amends his motion to conditionally certify a collective action under the Fair Labor Standards Act. Mr. Lamour has sued Uber under the FLSA seeking minimum wages, overtime wages, and undistributed tips for all similarly situated Uber drivers nationwide -- specifically, on behalf of these persons: Every person who (a) drove for Uber as UberX, Uber Black or Uber SUV drivers within the United States in the applicable statute(s) of limitations and through the entry of judgment in this case (the "Collective Action Period"), and (b) has not timely opted out of the arbitration provision contained in his/her applicable services agreement with Uber and/or any of Uber's subsidiaries. In addition, Mr. Lamour seeks an order authorizing the dissemination of proposed notice to the collective action members. A copy of the Amended Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=v8QNfBj1 The Plaintiff is represented by: Gerald F. Richman, Esq. Adam M. Myron, Esq. Joshua L. Spoont, Esq. RICHMAN GREER, P.A. One Clearlake Center, Suite 1504 250 Australian Avenue South West Palm Beach, FL 33401 Telephone: (561) 803-3500 Facsimile: (561) 820-1608 E-mail: grichman@richmangreer.com amyron@richmangreer.com jspoont@richmangreer.com - and - Stephen J. Schultz, Esq. MERRILL, SCHULTZ AND BENNETT, LIMITED 2240 Fifth Avenue San Diego, CA 92101 Telephone: (619) 501-4540 E-mail: schultz@sbemp.com - and - Thomas G. Schultz, Esq. LSRCF Law, PLLC 1111 Brickell Ave. #2200 Miami, FL 33131 Telephone: (305) 760-8544 E-mail: TSchultz@LSRCF.com Defendant Uber Technologies, Inc., is represented by: Courtney B. Wilson, Esq. LITTLER MENDELSON, P.C. Wells Fargo Center 333 SE 2nd Avenue, Suite 2700 Miami, FL 33131 Telephone: (305) 400-7500 Facsimile: (305) 603-2552 E-mail: cwilson@littler.com kljackson@littler.com UBER: Joins Betterment to Provide IRAs -------------------------------------- Alicia H. Munnell, writing for MarketWatch, reports that the contingent workforce and retirement plans have been very much on my mind. Contingent workers, who by definition do not have an employer, are not covered by any type of retirement plan. These contingent workers are a portion of a larger group of private sector workers who lack coverage. Some of this "coverage gap" would be closed by President Obama's Auto-IRA proposal, which would require private sector employers not offering a plan to auto enroll their employees in an IRA. Of course, this proposal has not been enacted, so several states - California, Connecticut, Illinois, Maryland, and Oregon are well on their way to setting up their own Auto-IRA plans. But all these initiatives are aimed at employers, and therefore do not reach contingent workers. So the question remains how the 16 percent of the workforce classified as contingent workers in one recent study is ever going to get coverage under a retirement plan. The new Uber-Betterment initiative will shed some light on whether coverage can be improved simply by making the process easy. Uber has just announced -- in the wake of the scuttling of its $100 million settlement proposal of a class-action suit -- a plan that would enable its drivers to sign up for Individual Retirement Accounts (IRAs) through their Uber App. To accomplish this goal, Uber is partnering with Betterment Inc., a robo-advice provider. As a pilot, the program will be introduced in four areas - Boston, Chicago, Seattle, and New Jersey. Betterment pioneered the business of offering inexpensive investment advice using algorithms to allocate assets. That is, it uses answers to various questions that gauge risk tolerance to assign customers to various baskets of low-cost exchange-traded funds. The deal with Uber gives Betterment direct access to tens of thousands more customers to add to its current base of about 80,000. Betterment is waiving its fee for the first year that drivers use the system and then will charge 0.25 percent of assets under management. Generally, the company charges 0.35 percent for portfolios with less than $10,000 in assets and 0.15 percent for those with more than $100,000. In all cases, Betterment does not require an investment minimum. Uber's initiative takes place against the background of an all-out battle to prevent its workers from being classified as employees. In the class-action suit, Uber drivers in California and Massachusetts had argued that Uber should treat them as employees and reimburse them for expenses such as gasoline. For Uber, treating their drivers as employees would sharply increase their costs through required payroll taxes and other benefits. Uber had proposed a settlement, but in August a federal judge rejected the offer as unfair. Beyond the important issue of whether Uber drivers should be treated as independent contractors or employees is the question of how independent contractors can be ensured coverage by a retirement plan. The data clearly show that, left on their own, few Uber drivers will open an IRA. The interesting and important question is how many Uber drivers will sign up now when they can do so easily through their Uber app. If the Betterment approach works, that will be big news. UNITED BEHAVIORAL: Court Certifies Class in Mental Health Case -------------------------------------------------------------- In a significant mental health ruling, the United States District Court for the Northern District of California has come one step closer to ordering health insurance giant United Behavioral Health (UBH) to revamp its medical necessity criteria and reprocess thousands of outpatient, intensive outpatient and residential treatment claims it denied since 2011. Plaintiffs in two companion class-action lawsuits, Wit et al. v. UnitedHealthcare et al. and Alexander et al. v. United Behavioral Health, allege that UBH systematically denies coverage for mental health treatment by developing and applying "medical necessity" criteria that are far more stringent than generally accepted standards of care. "The class certification order is an important victory in the fight for mental health parity," said Meiram Bendat, president of Psych-Appeal, Inc. and co-counsel for the plaintiffs. "It signals that health insurers can be held responsible, on a class-wide basis, for denying insurance coverage for mental health treatment to those desperately in need. Without class certification, few, if any, patients will have the financial or emotional resources necessary to challenge this type of misconduct individually." The plaintiffs' health plans, governed by the Employee Retirement Income Security Act (ERISA), require UBH to evaluate medical necessity according to generally accepted standards of care. UBH's proprietary medical necessity criteria purport to reflect these standards. However, the plaintiffs allege that a push for profits has led UBH to develop criteria that overemphasize acute mental health and substance use disorder symptoms and disregard chronic or complex conditions that require ongoing care, in contravention of generally accepted standards. UBH is a subsidiary of UnitedHealth Group and is the country's largest managed behavioral health care organization, serving more than 60 million members. Psych-Appeal, Inc. and Zuckerman Spaeder LLP have been appointed class counsel by the federal court and also represent plaintiffs in similar cases against Health Care Service Corporation (Blue Cross and Blue Shield of Illinois, Texas, New Mexico, Montana and Oklahoma), Magellan Health Services of California and Blue Shield of California. About Psych-Appeal, Inc. Los Angeles-based Psych-Appeal, Inc. -- http://www.psych-appeal.com-- is a law firm exclusively dedicated to mental health insurance claims, advocating on behalf of patients, clinicians and treatment facilities to overcome insurer denials of treatment. UNITED SERVICES: Judge Chides Attorneys Over Late Forum Shopping ---------------------------------------------------------------- Perry Cooper, writing for Bloomberg BNA, reports that a recent Arkansas news article tipped off a federal judge that plaintiffs' attorneys dismissed their insurance class action from his court only to refile it in a state court where they believed a pending settlement would have an easier time getting approved. The news led the judge to formally reprimand some of the plaintiffs' attorneys involved. He also gave a warning to some of the defense counsel in the case for their complicity in what he characterized as improper, late-in-the-game forum shopping of a settlement he characterized as unfair. It's hard to say how often this kind of maneuvering occurs because federal judges rarely find out what happens with cases after they leave their courts. But two ethics professors commend the court for shining a light on a settlement and a practice the court found wanting -- one that benefited class counsel and the defendant at the expense of the class. However, the sanctions in this case are being appealed by both the plaintiffs' attorneys and defense counsel who incurred the court's wrath. And, one consumer advocate warns, "forum shopping" shouldn't be used as a pejorative term across the board. The attorneys may have just been zealous advocates for their clients -- doing what they thought they needed to do to get the deal approved in this instance. The fact that the deal was found by a court to be unfair -- a claims-made settlement with a 4 percent claims rate -- is the real issue, he said. Newsworthy Settlement Approval The underlying class action at issue here was originally filed by Mark and Katherine Adams in Arkansas state court. They challenged the method used by insurer United Services Automobile Association to calculate the value of their homeowner's insurance claims. USAA removed the case to federal court under the Class Action Fairness Act, 28 U.S.C. Sec. 1332(d). The case proceeded before Judge P.K. Holmes III of the U.S. District Court for the Western District of Arkansas for 17 months until the parties reported that they had reached a settlement and sought dismissal from federal court. Judge Holmes granted the motion. Typically, that would have ended Judge Holmes' involvement in the case. However, a subsequent article in Arkansas Business made Judge Holmes take the unusual step of reexamining the case, the federal judge said in his initial Dec. 21, 2015 order contemplating sanctions. As it turns out, the day after Judge Holmes dismissed the case from his court, the parties refiled the suit in the original state court with a settlement attached. The state court approved the deal, and awarded class counsel $1.85 million in fees despite a 4 percent claims rate from the $3.45 million settlement fund. The settlement also provided that any unclaimed funds would go back to USAA. Many of those details were spelled out in the news article. Arkansas Business covered the case because one of the plaintiffs' attorneys involved in the suit, John Goodson, is married to Arkansas Supreme Court Justice Courtney Goodson. She was running for chief justice that winter and there were allegations that she had received a significant amount of money from class action lawyers in that race. Rule 11 Sanctions Judge Holmes took umbrage with the amount of time and energy his court put into the case only to have the parties dismiss the case from federal court and win easy settlement approval in state court. Judge Holmes formally reprimanded five of the plaintiffs' attorneys, including John Goodson, under Fed. R. Civ. P. 11 in a Aug. 3 opinion. He found they acted in bad faith by engaging in "improper mid-litigation forum shopping in a manner calculated to evade federal review and prevent the court from carrying out its obligation to putative class members" (17 CLASS 799, 8/12/16). The law of the Eighth Circuit prohibits a party from dismissing "merely to escape an adverse decision" or "to seek a more favorable forum," Judge Holmes said. He was more lenient on the three attorneys who represented USAA. USAA's directive to settle the suit put them "between the proverbial rock of asking the court to do something they knew it could not do -- grant a motion to dismiss so they could pursue this action in a more favorable forum and avoid an adverse decision -- and the hard place of violating their ethical duty to settle as directed by their client," he said. Judge Holmes said the conduct of the three defense attorneys was characterized "more by a sense of helplessness in the face of ethical obligations to their client than it was by bad faith." He decided that a finding that they violated Rule 11 would be sufficient to deter them from future misconduct, so no formal sanction was necessary. He cleared 10 other attorneys involved in the case, finding they abused the judicial process but not in bad faith. Headed to Eighth Circuit Attorneys for both sides have appealed the Rule 11 findings to the Eighth Circuit. On Sept. 6, the appeals court granted leave for Ted Frank, director of the Competitive Enterprise Institute's Center for Class Action Fairness, to appear as an amicus supporting the district court's order. Mr. Frank, in seeking to weigh in on the case, argued that no one would defend Judge Holmes' order on appeal even though the sanctions were necessary to curb class action abuses. He pointed out that class counsel justified their decision to seek approval of the deal in state court because Arkansas law doesn't allow class members who object to a settlement to appeal its approval. Class counsel had said that class members would actually benefit from the limitation because Arkansas's requirement that objectors formally intervene to appeal would limit "serial objectors" and result in a faster payout to the class. Back to the Bad Old Days The propriety of the underlying settlement and the type of forum shopping the parties engaged in here will no doubt receive further scrutiny as the appeal works its way through the Eighth Circuit. But how often does this type of thing happen? And is this kind of last-minute court shuffling really improper anyway? Requests for comment to several attorneys involved in the case were unsuccessful. So their own arguments in defense of their actions will have to await their appellate briefing. Those interviewed by Bloomberg BNA said it's unclear how frequent this practice is because judges usually have no reason to know what happens to a case after it leaves their courtrooms. Here, Judge Holmes only found out about the case's afterlife from a news story that involved local politics. "It is uncommon for judges to pay attention to a case after it has been dismissed from their court," Howard Erichson, who specializes in the ethics of complex litigation at Fordam University School of Law in New York told Bloomberg BNA in an e-mail. Mr. Erichson said he was surprised that the judge found a Rule 11 violation here, but "that does not mean I'm unhappy about it." "I am pleased to see the court taking seriously the problem of the breakdown of the adversary system that occurs with settlement class actions," he said in an e-mail. He said the situation harkens back to the "bad old days" when plaintiffs would seek out "magnet jurisdictions" that were lenient on class deals. Defendants would do anything they could to avoid those jurisdictions, "with the big exception that defendants would seek those jurisdictions along with plaintiffs' lawyers when they wanted to get a judge to rubber-stamp an inadequate class settlement," he said. CAFA was supposed to curb this problem by expanding federal jurisdiction over class actions. "But as this case demonstrates, settling parties may try to work around CAFA by agreeing to file their settlement class action in state court," he said. Another complex litigation ethics professor says it's not hard to justify the conduct of defense counsel here. "Defense counsel were likely serving the best interests of their clients," Joshua Davis of the University of San Francisco School of Law told Bloomberg BNA in an e-mail. Some legal ethicists say that defense counsel have an obligation not to be complicit in conduct that might harm the class, he said. But he and others find that "hard to square with our adversarial system." Why Is 'Forum Shopping' a Dirty Word? Professor and consumer advocate Brian Wolfman said courts throw around "forum shopping" as a pejorative when really the problem in instances like this may be unfair underlying settlement terms. He declined to comment specifically on the USAA case because he hasn't followed it closely. "The lawyer is actually not fulfilling her responsibility to be a zealous advocate for her client if she's not forum shopping," Mr. Wolfman, who runs the Georgetown Law appellate litigation clinic in Washington, told Bloomberg BNA. But he wonders why it is always the plaintiffs' attorneys that come under fire when courts complain of forum shopping. "It takes two to tango," he said. "The defendants are the ones agreeing to the deal." Mr. Wolfman said forum shopping isn't the real problem -- the concern is that this settlement seems like a bad deal. "If the plaintiffs say to themselves, 'We want to do this because we suspect that the federal district court will reject this deal but we actually think this is a great deal for our clients,' sure they want to go back to state court to get the deal approved," he said. Changing forums late in the game should certainly raise red flags for the court tasked with approving a settlement, he said. But the law gives plaintiffs options on where to pursue cases. And robust removal gives an option for the defendant too. "The law is intended to give options," Mr. Wolfman said. Forum shopping isn't the kind of conduct that should be "automatically sanctionable." UNITED STATES: Patients Await Disability Benefits Settlement ------------------------------------------------------------ Bob Egelko, writing for SFGate, reports that state officials removed San Francisco physician Frank Chen from their disability screening panel in December 2013 after numerous complaints about his exams -- that they sometimes lasted 10 minutes or less and that he ignored a patient's broken bones, bleeding disorder and use of a cane in his reports following those visits. Yet, even after his removal, the Social Security Administration used Chen's patient evaluations to determine that applicants were ineligible for disability benefits. Now, in a court settlement, the federal government has agreed to take another look at 6,500 applicants who were rejected, most of them from the Bay Area. "Instead of telling people about it, and warning them (that Chen had been dropped), they let those reports sit in the system, and adjudicators continued to rely on the reports to deny people benefits," said Trinh Phan, a lawyer at Justice in Aging, one of the organizations representing the applicants. "We did this class action to hold Social Security accountable." She said the amounts at stake were potentially significant. For example, someone who was wrongly turned down in 2001 for disability benefits, on average about $1,200 a month, would be entitled to a retroactive payment of nearly $100,000 in 2017. The Social Security Administration declined to comment about the settlement or its treatment of applicants who were examined by Chen. Chen no longer practices medicine in the area, and efforts to locate him were unsuccessful. A staff member at Bay View Medical Clinic in San Jose, one of four Bay Area facilities where he examined applicants for disability benefits, said he had left several years ago and was no longer in contact with the clinic. In a letter to state regulators responding to a complaint against him in 2011, Chen said he had been a licensed physician for more than 40 years and had practiced internal medicine in the Bay Area for more than 30 years. Since at least 2007, the state Department of Social Services had included him on a regional panel of doctors who perform "consultative examinations" for applicants seeking disability benefits under the federal Social Security Disability Insurance and Supplemental Security Income programs. The applicants are mostly moderate- or low-income patients who lack medical documentation to support their claims of disability. One applicant was Kevin Hart, the lead plaintiff in the case. According to the lawsuit, Mr. Hart was hit by a car in 2007, shattering his right leg. Formerly employed as a construction worker, janitor and groundskeeper, he was unable to work and was granted disability benefits. He then suffered further injuries, including a fractured rib and a lacerated kidney, in an assault by a group of teenagers in Mr. San Francisco in April 2013. Needing to renew his benefits, Hart, who then lived in San Mateo, was referred to Chen for an exam in August 2013. According to the lawsuit, Chen spent 10 minutes with him, never touched his body, cut him off when he tried to describe his past diagnoses, and apparently never reviewed his records. Chen's report to Social Security said Mr. Hart was suffering only from hypertension and shortness of breath and was capable of sitting or standing for six hours during an eight-hour workday. Chen failed to mention Mr. Hart's leg injuries or the fact that he needed a cane to walk, the suit said. A month later, Social Security told Mr. Hart that he was no longer disabled and reaffirmed the decision in March 2014, three months after Chen had been removed from the medical review panel. Hart appealed and eventually won restoration of his benefits of $909 a month, his sole source of income. "That was a nightmare," said Mr. Hart, 52, who now lives in Elk Grove (Sacramento County) and relies on both a walker and a cane to get around. "I was telling him about my surgery, my leg, my back, my kidney disease, and he said, 'Who told you that?' . . . He did not care." Another plaintiff, Nina Silva-Collins, 38, applied for disability in 2013, suffering from a severe menstrual bleeding disorder, anemia and other ailments that she said made sustained work impossible. Referred to Chen at his Oakland clinic in August of that year, she said he gave her a cursory examination, then reported that she suffered only from obesity and was capable of standing and walking for long periods. The following January, a Social Security hearing officer found Ms. Silva-Collins ineligible for disability benefits, citing Chen's report. The officer failed to note that Chen had been removed as a consultant, the suit said. Chen responded indignantly to one complaint by a patient who said he had spent exactly seven minutes and 46 seconds examining her in a filthy, foul-smelling clinic in San Francisco in July 2010. She said he never touched her and refused to look at her medical records. The complaint was "totally untrue," Chen said in a January 2011 letter to the state Department of Social Services office overseeing the medical panel. He said he always questioned applicants about their condition and medical history, conducted a long series of examinations, and reviewed medical records provided by other doctors and hospitals. "I do not need unrelevant record files" from a patient, Chen wrote, adding that it would be "impossible to complete the above protocol in seven minutes and 46 seconds." But the state agency said the complaints kept coming in. In an October 2013 warning letter, the agency told Chen that patients were reporting he treated them rudely and saw them for only a few minutes before issuing evaluations that ignored their obvious impairments, such as a spinal degeneration and the effects of a recent stroke. Finally, in December 2013, the agency told clinics in San Francisco, Oakland, San Jose and Pacific Grove that Chen had been removed from the panel because of his "unprofessional manner and failure to adequately correct deficiencies in his (consultative) reports." Neither the state nor the federal government notified Chen's patients of his removal, however, and Social Security continued to use his evaluations to deny benefits, patients' advocates said in the lawsuit, filed in February 2015. The government argued in court filings that Social Security officials were aware of Chen's shortcomings and were providing that information to reviewers of disability claims. But U.S. District Judge Jon Tigar refused to dismiss the suit. The plaintiffs, Judge Tigar said in his ruling, were seeking action that the government was unwilling to take -- new assessments of their claims that disregarded Chen's findings. The settlement, which awaits Judge Tigar's approval, would entitle the 6,500 rejected applicants to a new evaluation of their disability claims, which could include another examination or reconsideration of their past medical information apart from Chen's reports. Patients Chen examined between 2007 and the end of 2010 would be reconsidered only if they said they were still disabled. UNIVERSAL PICTURES: Court Snobs Fitzgerald's Bid to Certify Class ----------------------------------------------------------------- The Hon. David A. Baker denied without prejudice the Plaintiff's motion to certify class and concurrent request for extension to certify class in the lawsuit styled CHARLIE FITZGERALD, III v. UNIVERSAL PICTURES, Case No. 6:16-cv-01193-CEM-DAB (M.D. Fla.). In his order, Judge Baker wrote that the Motion to Certify Class is premature. Judge Baker directed the parties to proceed with preparation of the Case Management Report and class discovery in the normal course as dictated by the Local and Federal Rules of Civil Procedure. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=Tq3Wi83f VERIZON WIRELESS: Robocall Class Action Suits Filed in Calif. ------------------------------------------------------------- Gordon Gibb, writing for LawyersandSettlements.com, reports that there can be little doubt that nuisance call lawsuit plaintiff Denise Menichiello has done everything right. She has never knowingly given any entity her permission to reach out to her cellphone with unsolicited calls. In fact, her number has been on the 'do-not-call' list since the summer of 2003. One can imagine, therefore, Menichiello's surprise and dismay when she started receiving auto-dialed calls from Verizon Wireless Services LLC (Verizon) to her mobile phone without her permission. The illegal robocalls landed Menichiello in her attorney's office to discuss an illegal telemarketing lawsuit (Menichiello v. Verizon Wireless Services LLC et al., Case No. 8:16-cv-01635, in the US District Court for the Central District of California). Her do not call suit alleges breaches of the Telephone Consumer Protection Act (TCPA). Service providers and telemarketers have stepped up their activity in recent years -- especially with the introduction of mobile communication devices that provide the technical capacity to reach out to a 'prospect' at any time regardless of where they are, as opposed to restricting all robocalls and telemarketing calls to the supper hour, when it is assumed prospects are home. However, consumers are understandably protective of their mobile phones given the cost of data plans which may eat up their minutes on incoming calls, or the inconvenience and danger of having a cellphone ring in the midst of what could be a potentially unsafe situation. To that end, the TCPA has been explicit on rules involving telemarketing and cell phones, requiring telemarketer to obtain "prior express consent" from the owner of the mobile device to receive autodialed or pre-recorded messages, "absent of an emergency." Such rules are in place regardless of whether an individual signs up for the do-not-call registry. And yet, Verizon "continued to call plaintiff in an attempt to solicit its services and in violation of the national do-not-call provisions of the TCPA," Menichiello says, in her do not call list lawsuit. "Upon information and belief, and based on plaintiff's experiences of being called by defendant despite plaintiff's cellular telephone number being on the National Do Not Call Registry, and at all relevant times, defendant failed to establish and implement reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations." The illegal telemarketing calls lawsuit, filed earlier this month in California, is proposed as a class action that would represent two classes of consumers: The first covers any US resident who may have received a robocall from Verizon in the last four years without having given prior consent. The second class of consumers would represent any member of a do-not-call list having been registered as a list participant for at least a month, have neither given Verizon permission to call or have no "prior established business relationship" with Verizon, and who may have received more than one auto-dialed telemarketing call over a 12-month period from Verizon within the last four years. Menichiello alleges in her illegal telemarketing calls class action that she received "numerous" calls on her cell phone. Each individual violation could result in $1,500 in total compensation. Meanwhile, other Robocall lawsuits keep coming. VOLKSWAGEN AG: Settlement Final Court Hearing Set for Oct. 18 ------------------------------------------------------------- Marty Cook, writing for Arkansas Business, reports that thousands of dollars and an apology may not be enough for the German automobile maker Volkswagen to win back Brooke Johnson's trust. Ms. Johnson, of Little Rock, is one of 2,540 Arkansas buyers of VW and Audi automobiles in the years 2009-15 who are eligible for a buyback program after the discovery that Volkswagen AG used "defeat device" technology to avoid emission compliance on its four-cylinder Volkswagen and Audi diesel cars. The deceit was discovered in 2015 by researchers at West Virginia University who were studying emissions and fuel economy. "I was disappointed," Ms. Johnson said in an email. "The thought of VW lowering their ethical standards to skew emissions tests seemed unnecessary. The overall outcome has been devastating for their brand image." Volkswagen stopped the sale of its vehicles, but 11 million had already been sold worldwide, including approximately 482,000 in the United States. Ms. Johnson, the owner of a 2014 VW Jetta that she purchased used from Landers Toyota in Little Rock in 2015, filed a lawsuit Sept. 22, 2015, in Pulaski County Circuit Court against Volkswagen Group of America, the U.S. subsidiary of Volkswagen AG. Ms. Johnson was joined in the suit, filed by Allison Koile of the Sanford Law Firm of Russellville, by Dennis Shipley of Russellville. That lawsuit, the first filed in Arkansas, was later moved to federal court, where another Arkansas lawsuit had subsequently been filed. Eventually all the lawsuits filed nationally against Volkswagen were combined in a multidistrict litigation in the U.S. District Court for the Northern District of California. In July, a settlement was announced in which Volkswagen agreed to pay approximately $14.7 billion to settle the class-action lawsuit. VW agreed to pay $2.7 billion to support environmental programs, $2 billion to promote nonpolluting cars and $10 billion to either buy back the affected vehicles or have the car's emissions system corrected. "They admitted liability within a matter of moments," Ms. Koile said. "For us to process approximately half a million consumer claims within less than a year from the time that it came out that the vehicles were doing what they were doing, it's simply unheard of in the legal field. I can't think of a single other time something like this has settled so quickly." Ms. Johnson has decided to sell back her car if the settlement is approved by Judge Charles R. Breyer. The final court hearing is scheduled for Oct. 18 in San Francisco. "I plan to participate in the buyback program that is stated in the settlement package and purchase an alternate vehicle," Ms. Johnson said. "I believe VW is taking full responsibility for their unethical decisions. As a result of those wrongdoings, I have recently received a settlement offer that I am satisfied with." VOLKSWAGEN AG: Ex-Chief Aware of Emissions Cheating, Data Shows --------------------------------------------------------------- Derek Scally, writing for The Irish Times, reports that Volkswagen's ex-chief executive Martin Winterkorn was reportedly informed about the car firm's efforts to cheat emissions tests -- and a plan to make only a partial disclosure to US authorities -- seven weeks before the scandal broke. Mr. Winterkorn stepped down shortly after the revelations in September 2015, claiming to have known nothing about the use of software to manipulate diesel emissions during official testing, although documents suggest he knew about VW's illicit efforts as early as July last year. A document dated July 30th, 2015, leaked to the Bild am Sonntag newspaper, suggests Mr Winterkorn agreed days earlier in a meeting with the company strategy not to admit the full scale of the wrongdoing. 'Problem issue' The strategy document states that two VW employees would meet with a Californian environment official for an unofficial exchange. In this discussion the two VW employees were authorized to "partially" admit the "problem issue" of software engineered to make VW diesel exhausts appear cleaner than they were. The document continues that this strategy "was confirmed with Prof Winterkorn on Tuesday, the 28.7.2015". The meeting took place in California on August 5th, after which one of the two VW employees attending wrote of a "positive discussion". The US official had reacted "sympathetically" to the admission that VW's diesels "did not meet the legal demands" and that the German company was working on a fix. However the memo warns to expect "head wind in further discussions with technical personnel" on the US side. Weeks later, VW was forced to make a full and humiliating confession of the full scale of its cheating. Mr. Winterkorn resigned and VW's share price tumbled ahead of multibillion criminal and compensation claims. According to the leaked document, US investigators offered the engineers involved in the preliminary talks suspended sentences and fines of up to EUR150,000 if they made a confession. The German engineers denied the offer, apparently fearing they would lose protection by VW and have to pay their own legal costs. A spokesman for VW declined to comment. Legal challenges As well as the belated diesel admission VW -- and software partner Bosch -- have urged US authorities not to make 20 million pages of documents in their investigation available to parties involved in European legal challenges against the companies. Several motorists are taking cases with VW Group thorough the Irish courts relating to the scandal, which involved 11 million cars worldwide, including an estimated 110,000 in Ireland. State prosecutors in Braunschweig have opened a separate criminal investigation into the company and its lead employees for market manipulation, claiming senior executives withheld relevant information from investors. However VW and Bosch told a San Francisco court on Sept. 24 that the documents lodged as part of the US legal case had no business being shared with the Braunschweig investigation, as it was a civil case. German lawyers representing 100 VW shareholders have argued that Mr. Winterkorn was an expert on car emissions and was aware of the problems with VW diesel engines from as early as 2014, when the first indications came from the US of manipulated VW software. WAL-MART: Mexican Unit Bribery Suit Obtains Class-Action Status --------------------------------------------------------------- Anne D'Innocenzio, writing for The Associated Press, reports that a federal judge has granted class-action status to Wal-Mart investors suing the world's largest retailer over allegations that it covered up a bribery scheme in Mexico to help its business there. The allegations included that Wal-Mart's Mexican unit paid millions of dollars in bribes to speed building permits and gain other favors. In a ruling, U.S. District Judge Susan Hickey in Fayetteville, Arkansas, dismissed Wal-Mart's argument that a Michigan retirement fund could not lead a class-action suit because it suffered no related financial losses. Wal-Mart's stance was based on a certain accounting method. But Judge Hickey ruled that the pension fund, the City of Pontiac General Employees' Retirement System, showed losses using another accounting method and that Wal-Mart failed to adequately explain why its accounting method was preferable. "Judicial economy and the best interests of the class members favor class certification," Judge Hickey wrote. Randy Hargrove, a spokesman for Bentonville, Arkansas-based Wal-Mart, said the company is considering its options, including an appeal. "We continue to believe that the claims here are not appropriate for certifying a class," he said. Investors said Wal-Mart knew about the bribery scheme as early as 2005, seven years before allegations were made public by The New York Times. The newspaper reported that top executives had covered up the finding of an internal investigation and didn't alert U.S. or Mexican authorities until after the paper said it was investigating the issue. In July, a federal appeals court rejected a shareholder lawsuit filed against key directors at Wal-Mart that claimed they allowed and concealed alleged bribery in the company's Mexico division. Chief Judge William Riley wrote for the 8th U.S. Circuit Court of Appeals that shareholders, including the Louisiana Municipal Police Employees' Retirement System, did "not give rise to a reasonable reference" that the board of directors learned of the suspected bribery while it was being covered up and the internal investigation squashed. That upheld an Arkansas district court's dismissal. WELLS FARGO: Faces Class Action Over Accounts Scandal ----------------------------------------------------- Paul Blake, writing for ABC News, reports that three Utah residents have filed what may be the first class-action lawsuit brought by customers against Wells Fargo in the ongoing fallout over allegations that more than 2 million bank accounts or credit cards were opened or applied for without customers' knowledge or permission. Wells Fargo declined to comment on the suit which was filed on Sept. 16 in U.S. District Court in Utah. The plaintiffs are seeking class-action status on behalf of up to a million people who may have been affected and damages. The suit accuses Wells Fargo of "knowing theft, engagement in a continuous pattern of fraud, [and] conspiracy to commit fraud." Wells Fargo was slapped with a $100 million fine from the Consumer Financial Protection Bureau (CFPB), on Sept. 8. It was also hit with fines from the Office of the Comptroller of the Currency for $35 million and the County and City of Los Angeles for another $50 million. About 5,300 Wells Fargo employees were fired in connection to the allegations. How the Wells Fargo Unauthorized Accounts Crackdown Affects Customers The bank said in a statement at the time that it takes responsibility "for any instances where customers may have received a product that they did not request." Bank officials have also said that they believe all affected customers have been refunded, and sought to downplay the terminations, saying that they represented only about one percent of their workforce. Total refunds, the bank said earlier this month, amounted to about $2.6 million. A portion of the banks' unauthorized deposit accounts generated about $2 million in fees, while a chunk of the credit card accounts generated about $400,000 in fees, according to a CFPB document reviewed by ABC News. Wells Fargo spokeswoman Aimee Worsley told ABC News previously that the bank believes it has identified and refunded all affected customers, though it encourages customers who think they may have been affected to come forward. Since the announcement of the fines against the bank, the FBI and federal prosecutors have opened an investigation, a U.S. House of Representatives committee has said it's launching an investigation and the Senate has scheduled a hearing for tomorrow. The bank did not comment on the announcement of a federal investigation. Regarding the House investigation, Wells Fargo said that it welcomed "the opportunity to provide the Committee with information on this matter and to discuss steps we have taken to affirm our commitment to customers." A Wells Fargo official said CEO John Stumpf would attend the Senate hearing. WELLS FARGO: Customers May Never See Their Day in Court ------------------------------------------------------- Martha C. White, writing for NBC News, reports that a class-action lawsuit filed against Wells Fargo might be hamstrung at the starting line, legal experts say. Customers who had bank or credit card accounts opened in their name without their knowledge face an uphill battle even getting a court to hear their case because of mandatory arbitration contract clauses that protect banks from class-action suits, consumer advocates say. "It's going to be a serious obstacle," said David Seligman, an attorney and contributor to the National Consumer Law Center. "These clauses are hidden in boilerplate contracts," he said. "They often require you to bring disputes in to private arbitration, and almost always force you to bring them individually." The Consumer Financial Protection Bureau, which spearheaded the regulatory action against the banking giant, has proposed rolling back the broad latitude that banks have granted themselves to settle disputes outside the legal system this way. But that won't help these Wells Fargo customers. "They're going to come up against that arbitration clause," said Amanda Werner, arbitration campaign manager for the Americans for Financial Reform and Public Citizen. "We see things like this all the time," she said. Five years ago, a Supreme Court ruling said it was legal for companies to shield themselves from lawsuits by requiring that customers address grievances through a private arbitration system. Since then, consumers seeking redress from banks, even earlier cases against Wells Fargo in California, have been effectively stopped at the courthouse door. Part of the problem, Werner said, is that banks -- and Wells Fargo in particular -- use far-reaching language in their arbitration clauses. In other words, even if an account was opened fraudulently, a legal argument could be made that the arbitration clause on a customer's existing, legal account would be enough to grant immunity to the bank. "There's no question that it's very difficult to overturn an arbitration clause, although the facts in this case are pretty damning," said Ed Mierzwinski, consumer program director for U.S. PIRG. The arbitration issue has been on the agency's radar for some time. Last year, it submitted a report on arbitration to Congress that found such clauses are common in contracts for credit cards and checking accounts, covering roughly half of credit cards and nearly half of bank deposit accounts. The lion's share of those clauses were put in place by the biggest financial institutions, the CFPB noted. In May, it submitted a proposed rule that would put the kibosh on mandatory arbitration clauses that prohibit class-action suits in financial-services contracts. The rule got nearly 52,000 responses during its public comment period, with consumer advocates and regular Americans supporting the rule, and business and banking interests weighing in with opposition. At a Congressional hearing on September 27, CFPB director Richard Cordray was asked if the rule would have helped out customers, had it been in place already. "It will be very difficult to get any relief other than through a class action," he acknowledged. "And yet I believe an arbitration clause here would -- might -- might defeat a class action." As Wells Fargo CEO Faces Senate Panel, Elizabeth Warren Calls for Criminal Charges Consumer watchdogs say they hope the harsh spotlight being shone on the Wells Fargo case will spur the CFPB to action, or that the bank will voluntarily step out from behind the legal shield afforded by its arbitration policies. (Wells Fargo had no comment.) Those advocates say it's not enough for Wells Fargo just to refund fees that were assessed on accounts opened without customer approval. Some of those people subsequently may have had to pay higher interest rates on mortgages or credit cards because the unauthorized accounts damaged their credit, a point Senators pressed Wells Fargo CEO John Stumpf about in the hearing on September 27. Without being able to pursue their case in a courtroom, "There's a lot of people who won't be made whole," Seligman said. "This has been a longstanding challenge for consumers who want to recoup their losses," said Suzanne Martindale, a staff attorney at Consumers Union. "This is precisely why consumers deserve their right to a day in court." WELLS FARGO: Former Employees File Class Action Over Sale Quotas ---------------------------------------------------------------- Reuters reports that two former Wells Fargo employees have filed a class action in California seeking $2.6 billion or more for workers who tried to meet aggressive sales quotas without engaging in fraud and were later demoted, forced to resign or fired. The lawsuit on behalf of people who worked for Wells Fargo in California over the past 10 years, including current employees, focuses on those who followed the rules and were penalized for not meeting sales quotas. "Wells Fargo fired or demoted employees who failed to meet unrealistic quotas while at the same time providing promotions to employees who met these quotas by opening fraudulent accounts," the lawsuit filed on Sept. 22 in California Superior Court in Los Angeles County said. Wells Fargo has fired some 5,300 employees for opening as many as 2 million accounts in customers' names without their authorization. On Sept. 8, a federal regulator and Los Angeles prosecutor announced a $190 million settlement with Wells. The revelations are a severe hit to Wells Fargo's reputation. During the financial crisis, the bank trumpeted being a conservative bank in contrast with its rivals. A Wells Fargo spokesman on Sept. 24 declined to comment on the lawsuit. The lawsuit accuses Wells Fargo of wrongful termination, unlawful business practices and failure to pay wages, overtime, and penalties under California law. Former employees Alexander Polonsky and Brian Zaghi allege Wells Fargo managers pressed workers to meet quotas of 10 accounts per day, required progress reports several times daily and reprimanded workers who fell short. Messrs. Polonsky and Zaghi filed applications matching customer requests and were counseled, demoted and later terminated, the lawsuit said. While executives at the top benefited from the activity, the blame landed on thousands of $12-per-hour employees who tried to meet the quotas and were often required to work off the clock to do so, the lawsuit said. Employees with a conscience who tried to meet quotas without engaging in fraud were the biggest victims, losing wages, benefits and suffering anxiety, humiliation and embarrassment, the lawsuit said. Wells Fargo was aware many accounts were illegally opened, unwanted, carried a zero balance, or were simply a result of unethical business practices, the lawsuit said. "Wells Fargo knew that their unreasonable quotas were driving these unethical behaviors that were used to fraudulently increase their stock price and benefit the CEO at the expense of the low level employees," the lawsuit said. WHIRPOOL CORP: Oct. 11 Deadline for Filing Settlement Claims ------------------------------------------------------------ Bob Segall, writing for WTHR, reports that when Karen Freeman purchased a new Kenmore Elite washer and dryer 11 years ago, she was elated to have new appliances -- especially a front-loading washing machine. "They were the latest, greatest newest thing," she recalls. "You use less water. You use less soap. You use less everything. They were going to save us all kinds of money." Within just a few months, however, Freeman discovered her $3,000 washer and dryer came with an unexpected feature. "It just smelled terrible. It's probably the worst, almost like a sewer gas smell," she said. And the odor didn't impact only the washing machine. It also impacted Freeman's clothes. "The minute you take them out, you can smell that foul, sour smell to them, so them you have to wash them all over again," Freeman explained. "I thought it was just me. But then I found out it was the dirty little secret that women don't want to talk about. It's an epidemic." Freeman and other frustrated owners of front-loading washers filed class-action lawsuits. A decade later, those lawsuits have been settled, resulting in a potential cash payout or rebate for more than 6 million Americans. But with the claim deadline just a few weeks away, few people have filed a claim because most washing machine owners don't know they are entitled to benefits under the massive settlement. "Isn't that disgusting?" Black mold. Mildew. Slime. That horrible smell reminiscent of a rotten egg that fell into a backed up sewer. 13 Investigates got to see and smell all of it while producing this report on front-loading washing machines. Jen Martin says it means a constant battle in her laundry room. "It smells disgusting, like the load [of laundry] has been sitting there for a week or a month, even though it's just been 15 minutes," she said. Martin, a mom to three young boys, washes two or three loads of clothes every day in a Kenmore high efficiency front-loading washing machine. She inherited the washer when she bought her home in Westfield. Because of the constant mold and odor issues, Martin routinely wipes out her washing machine and purchases products to help reduce the smell. "It's just a process that's never ending, but you do what you need to do when you've got three boys," Martin said. Freeman does the same thing, trying to find strategies to help her deal with a moldy washer. Before running each load of laundry, she runs the "drain and spin" cycle for 12 minutes to flush out any stagnant water that has collected in the washer. She has a cabinet full of liquids, powders and other products that claim they will prevent mold from growing in her washer. And she wipes out her front-loading washing machine after every load, then props the door open to promote air circulation inside. "I've spent more money on products to clean this washing machine than I've ever spent on laundry detergent," Freeman said. "And I spend more time washing my washing machine than washing the clothes." While her washer looks clean, a closer inspection shows mold is still growing inside. Freeman took out the soap dispenser to reveal large patches of black mold growing above the tray. "Isn't that appalling? Isn't that disgusting?" she asked. "I'm always surprised how quickly the mold grows back. You will never stay ahead of this. It's just impossible. It's not an isolated incident." Not an easy fix Appliance repairmen tell WTHR they see the problem frequently. "We see this all the time. This is a very common issue," said Zach Crowe, co-owner of Vogel Appliance. "If you have a mold issue, I've seen a lot of people where it actually ruins their laundry because their clothes smell so bad, and there's really nothing they can do to fix it. If you put your clothes into a stinky washer, you're clothes are going to become stinky." 13 Investigates watched Crowe work on a washing machine that had mold growing inside its gasket. The large piece of circular rubber -- sometimes also referred to as the bellow, seal or boot -- is found near the opening of a front-loading washer. It is often a breeding ground for mold because water can easily get trapped inside. "I'd definitely recommend replacing this bellow because the drain holes are clogged up and it's covered in mold," Crowe said. "If we replace this, it's around $200 for the repair." Repairs might get rid of some mold, but they don't always get rid of the smell. That's because stagnant water can get trapped deep inside the washing machine, where you can't see it. So many of the products that claim they'll keep your washer clean and get rid of odors only mask the problem rather than eliminating it. When faced with thousands of complaints about smelly washers, Whirlpool's solution was not to repair the washing machines. Instead, it began marketing Affresh, a product that "gets under residue, breaks it up, and washes it away leaving the washer smelling fresh and clean." Critics complain the company has made tens of millions of dollars by selling a product that addresses design flaws in its front-loading washers. Unable to find any product that eliminates the mold and odor problem in her washing machine, Freeman decided to fight back. Ten year battle Freeman's class action lawsuit claims Whirlpool and Sears made and sold millions of front-load washers that are defective. The lawsuit alleges Whirlpool, Kenmore and Maytag washing machines manufactured between 2001 and 2010 did not adequately clean themselves of laundry residue, causing them to accumulate mold that resulted in a bad odors and smelly laundry. The lawsuit produced more than 1 milllion pages of documents and evidence, including a nearly 7-hour deposition in which Freeman says she was "grilled" by Whirlpool attorneys. During the lawsuit, a group of lawyers and biochemists also visited her Illinois home and took apart her washing machine. "They found lots of mold, and they also found parasites living inside the washer," Freeman told WTHR. "When they were done, they cleaned and sanitized it, and put it all back together. For a while, it was fine, but the smell came back four months later." According to a 2013 report on NBC's Today Show, Whirlpool was aware of the problem a long time ago: "A 2004 internal memo shows the company identified the problem and was trying to fix it, the company's lead engineer saying that while mold can exist in any washer, their front-load machines are the 'ideal environment for molds . . . we are fooling ourselves if we think we can eliminate mold . . .' But the lawsuit says Whirlpool kept selling the machines anyway." Despite the alleged memo, Whirlpool and Sears have consistently disputed plaintiffs' allegations during a full decade of litigation, insisting their front-loading washers are not defective in design. But earlier this year, the defendants decided to settle the case to avoid "the substantial costs and disruptions of continued litigation" and the risk of the class-action case going to trial. A federal judge was expected to give final approval for the settlement later last week. Options for Whirlpool, Kenmore or Maytag owners The lengthy settlement provides three options for consumers who purchased a 2001-2010 Whirlpool, Kenmore or Maytag front-loading washer: 1. $50 cash payment 2. A cash rebate of either 20% or 5% off the retail purchase price of a new washing machine or dryer 3. Reimbursement of up to $500 for out-of-pocket repair expenses or replacement of affected washers due to a mold or odor problem To receive the $50 payment or a 20% cash rebate, washing machine owners must submit a claim form electing the benefit option they want, provide their washer model and serial number (or alternate proof of purchase or ownership of a class washer), provide their names and contact information, check several eligibility boxes, and sign a statement under oath attesting that they experienced a mold or odor problem with their front-loading washer within five years of purchase. The cash reimbursement of up to $500 requires far more proof. In addition to the proof-of-ownership requirements listed, washing machine owners must also provide copies of service tickets, receipts, cancelled checks, or other documented proof of out-of- pocket costs to repair their washer due to a mold or odor problem. To claim the reimbursement for purchasing a replacement washing machine, you would have to submit a receipt for the new appliance in addition to documentation showing at least three complaints, service call requests or attempts to remedy the problem were made prior to purchasing a new washer. Such documentation could include service tickets, complaints to Whirlpool or Sears, receipts for purchase of washing machine cleaner, or other documentation showing repeated mold or odor problems. The first documented service call, complaint, or manifestation of mold or odor must have occurred within the first five years after purchase, and no replacement expenses will be reimbursed if they were incurred after December 31, 2015. Washing machine owners who did not experience mold or odor problems are eligible for a 5% rebate. Please note, all claims for this settlement must be filed no later than October 11. Options for LG owners If you own a front-loading washer made by LG, there is a separate class-action settlement for you, too. It applies only to those who purchased an LG front-loading washing machine manufactured between 2002 and 2006. The settlement options include either: 1. A cash payment of $35 2. A $105 washer rebate certificate that applies if you buy an LG front-loading washer within a year after the settlement receives final approval To get the LG settlement, consumers must submit one of the following along with their claim form: * A photograph of the washer's serial number if you still own the washing machine * A document showing proof of purchase of the washer such as: a credit card receipt, cancelled check, warranty card, invoice/receipt from an authorized LG USA dealer, proof of purchase of an extended warranty, etc. All LG front-loading washers made between 2002 and 2006 are eligible for the settlement. Like Sears and Whirlpool, LG denies any wrongdoing. Please note, all claims for the LG settlement must be filed or post-marked no later than October 10. Time running out to file a claim Karen Freeman scrubs mold out of her front-load washer. Freeman says her 10-year battle has a happy ending. Following her lawsuit, millions of people now qualify for a rebate or cash settlement. Freeman will use her settlement proceeds to buy a new washing machine. It won't be a front-loader. "I'm going back to the old-fashioned top-loader. No more $3,0000 washer and dryer for this house. That much I can tell you," Freeman told WTHR. "The experts all tell me 'More is not better. Buy the simplest machine that has the least bells and whistles.'" She hopes others will take advantage of the washing machine settlements to pay themselves back for the time, hassle and cost expended on moldy washing machines. Approximately 6.3 million people qualify for one of the settlements but, so far, less than 5% of those people have filed a claim form. The October deadlines are just a few weeks away. Advice for dealing with a front-loading washer In recent years, manufacturers have made design changes to some of their washers to help prevent mold and odors. Some new washers have a magnet that props the door open to allow fresh air to circulate inside. Others have a special clean cycle designed to remove residues and odors. And some new models have redesigned their door gaskets to allow water to drain more easily. Despite the design changes, appliance repair experts say consumers cannot let their guard down when dealing with a front-loading washer. "You really have to do regular maintenance yourself to prevent problems," Crowe said. He suggests always leaving the washer door open when it is not in use. (If you have toddlers or young children who might be inclined to crawl into a washing machine, do not leave them unattended near an open front-loading washer.) Not using too much soap and fabric softener is also important, according to Crowe, because excess soap builds up inside the tub and fosters the growth of mold. And make sure to use soap and softeners that are specifically designed for high efficiency front-loading washing machines. Other suggestions for preventing or limiting mold growth and bad odors in your front-loading washer: * Remove your wet clothes as quickly as possible after each load is complete. * Wipe down the inside of the washer tub with a towel until it is dry. * Occasionally run a hot water wash -- with no clothes -- to clean the washing machine tub. Adding one cup of bleach to the hot water wash can help kill bacteria and remove mildew and odors. WHITEWAVE FOODS: Faces Securities Class Action in Colorado ---------------------------------------------------------- Robbins Geller Rudman & Dowd LLP ("Robbins Geller") on Sept. 19 disclosed that a class action has been commenced by an institutional investor on behalf of holders of The WhiteWave Foods Company ("WhiteWave") (WWAV) common stock on August 25, 2016, in connection with the acquisition of WhiteWave by Danone S.A. and certain of its subsidiaries (collectively, "Danone"). This action was filed in the District of Colorado and is captioned City of Dearborn Heights Act 345 Police & Fire Retirement System v. The WhiteWave Foods Company, et al., No. 16-cv-2355. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from September 19, 2016. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Darren Robbins of Robbins Geller at 800/449-4900 or 619/231-1058, or via e-mail at djr@rgrdlaw.com. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. The complaint charges WhiteWave, its Board of Directors and Danone with breaches of fiduciary duty, aiding and abetting breaches of fiduciary duty and/or violations of the Securities Exchange Act of 1934 ("1934 Act") arising out of defendants' efforts to complete the sale of WhiteWave to Danone pursuant to an unfair process and for an unfair price (the "Proposed Acquisition"). WhiteWave manufactures, markets and sells branded plant-based foods and beverages, coffee creamers and beverages, premium dairy products and organic produce. On July 7, 2016, WhiteWave and Danone announced they had entered into an Agreement and Plan of Merger (the "Merger Agreement"), pursuant to which WhiteWave stockholders will receive $56.25 in cash for each share of WhiteWave stock they hold. The Merger Agreement provides that a Danone subsidiary will merge with and into WhiteWave, with WhiteWave continuing as the surviving corporation and becoming a direct or indirect wholly-owned subsidiary of Danone. On August 15, 2016, WhiteWave announced that the stockholder vote on the Proposed Acquisition will be held on October 4, 2016. The complaint alleges that in an attempt to secure shareholder support for the Proposed Acquisition, on July 29, 2016, defendants issued a materially false and misleading Preliminary Proxy Statement on Schedule 14A (the "Proxy"). The Proxy, which recommends that WhiteWave shareholders vote in favor of the Proposed Acquisition, omits and/or misrepresents material information about the unfair sales process for the Company, conflicts of interest that corrupted the sales process, the unfair consideration offered in the Proposed Acquisition and the actual intrinsic value of the Company on a standalone basis and as a merger partner for Danone, in contravention of Secs. 14(a) and 20(a) of the 1934 Act and/or defendants' fiduciary duty of disclosure under state law. The omitted and/or misrepresented information is material to the impending decision of WhiteWave shareholders on whether or not to vote in favor of the Proposed Acquisition. Plaintiff seeks injunctive relief on behalf of holders of WhiteWave common stock on August 25, 2016. The plaintiff is represented by Robbins Geller, which has extensive experience in prosecuting investor class actions including actions involving financial fraud. Robbins Geller -- http://www.rgrdlaw.com-- is a law firm advising U.S. and international institutional investors in securities litigation and portfolio monitoring. It has 200 lawyers in 10 offices. YAHOO INC: Faces Class Action Over Massive 2014 Hacking ------------------------------------------------------- Jonathan Stempel, writing for Reuters, reports that Yahoo Inc. was sued on Sept. 23 by a user who accused it of gross negligence over a massive 2014 hacking in which information was stolen from at least 500 million accounts. The lawsuit was filed in the federal court in San Jose, California, one day after Yahoo disclosed the hacking, unprecedented in size, by what it believed was a "state-sponsored actor." Ronald Schwartz, a New York resident, sued on behalf of all Yahoo users in the United States whose personal information was compromised. The lawsuit seeks class-action status and unspecified damages. A Yahoo spokeswoman said the Sunnyvale, California-based company does not discuss pending litigation. The attack could complicate Chief Executive Marissa Mayer's effort to shore up the website's flagging fortunes, two months after she agreed to a $4.8 billion sale of Yahoo's Internet business to Verizon Communications Inc. Yahoo on Sept. 22 said user information including names, email addresses, phone numbers, birth dates and encrypted passwords had been compromised in late 2014. But the lawsuit suggested that the breach might have been warded off had Yahoo, having been targeted by hackers before, lived up to its promise of taking user privacy "seriously" and bulked up its security measures. It also faulted Yahoo for taking roughly three times longer than organizations typically need to uncover the breach. Yahoo demonstrated "reckless disregard for the security of its users' personal information that it promised to protect," according to the complaint. Mr. Schwartz is represented by two large U.S. class-action specialists, the law firms Robbins Geller Rudman & Dowd and Labaton Sucharow. The case is Schwartz v Yahoo Inc, U.S. District Court, Northern District of California, No. 16-05456. * 75% of Bank Account Agreements Include Arbitration Clauses ------------------------------------------------------------- Sheryl Nance-Nash, writing for DepositAccounts, reports that while America is no doubt a most litigious society, guess who it's getting harder to sue? Your bank. According to The Pew Charitable Trust, many account agreements restrict the legal recourse available to consumers who have disputes with their banks. You may not have even been aware of the clauses in contracts that can be hard to find in all the fine print. But often, whether you're signing on for a credit card, payday loan, or student loan, you give up your right to participate in a group lawsuit if a company breaks the law, or otherwise harms you. In Pew's latest research of the dispute resolution policies and practices disclosed by the 50 largest retail banks in the U.S., which represent two-thirds of deposits nationwide, they found that nearly 75% of the banks' account agreements include clauses that mandate pre-dispute arbitration -- a private process involving a third-party decision-maker whose decision is largely binding, giving the consumer limited opportunity to appeal. Worse still, it prohibits consumers from seeking remedy in court. Nearly 75% of the banks studied prohibit class-action lawsuits, which allow consumers to band together to challenge the big guns in a case that might not make sense financially or otherwise to bring on their own. Ninety-one percent of the banks also bar consumers from having their disputes heard by a jury rather than a judge. According to Pew, more than 90% of these banks include at least one provision restricting consumer's dispute resolution options. Consumers are none too happy. A Pew survey last year found that generally most consumers don't feel that banks should be allowed to deny them access to the legal system, particularly to have the ability pursue a class-action lawsuit. There is strength in numbers. How else can people put banks too big to fail in check? Almost 90% of consumers polled by Pew said they want to be able to participate in a group lawsuit. But getting what they want may be more than a notion. However, the Dodd-Frank Wall Street Reform and Consumer Protection Act authorizes the Consumer Financial Protection Bureau to limit or ban provisions in account agreements that restrict access to class-action litigation, and the bureau proposed rules in May that would bar financial institutions from denying customers this access. Pew urges the CFPB to get on with finalizing rules that give consumers the ability to choose how they pursue a dispute, as opposed to allowing financial institutions to shut them down by limiting their options. Pew concludes, "Consumers should be able to pursue legal action against their banks. Class actions, in particular, are a cost- effective dispute resolution option for groups of consumers with small claims. Pew urges the CFPB to move forward expeditiously with these new regulations." In the meantime, says Sean Coffey, media and program evaluation manager with the California Reinvestment Coalition, "We're eagerly waiting to see what happens with the CFPB's proposal to end forced arbitration. For now, if direct outreach to your bank doesn't work, airing your concerns via your bank's social media channels can also be another way to grab their attention. You can also submit a complaint to the CFPB." * Collective Cost of Late Fees Totals $286MM, Research Shows ------------------------------------------------------------ Esther Han, writing for The Sydney Morning Herald, reports that one-third of Australians admitted to paying a bill late, with the top reasons being "forgot when it was due", "didn't have enough money", and "misplaced/deleted the bill". The Commonwealth Bank's survey of more than 1000 people found the average fee for a late payment of a bill was $24, leading it to conclude Australians were unnecessarily forking out $286 million a year. Generation X customers, those born between the mid-1960s and the early 1980s, accounted for nearly half of all late fees paid. Gen Y paid $88.5 million, and Baby Boomers $46.4 million. A quick scan of the websites of major telcos and energy providers showed late payment fees of up to $15. EnergyAustralia and Origin charge $12 for the late payment of a bill. Telstra and Optus whack their customers with a $15 penalty. Telstra was once the target of a multi-million dollar class action, accused of fleecing customers with its late payment fees. At the time, it was claimed Telstra alone had collected $272 million in "late fees and other miscellaneous fees" in the 2014 financial year. The Commonwealth Bank is using the startling survey findings to launch its new "Better Bill Experience" feature on its Commbank app and Netbank platforms, which may help customers avoid paying late fees. The new feature allows customers to have their bills sent directly to the CommBank app and NetBank, rather than via the post or email, view new bills in a calendar, providing a snapshot of where upcoming bills are scheduled and when they are due, and choose to automatically pay bills. For the first time, customers with an Apple iPhone 5 or newer model can take a photo of the bill using the app. The app will prepopulate the BPAY, amount and due date fields, making bill paying quicker and easier. "Photo-a-bill in the CommBank app not only ensures fewer mistakes, but it gives our customers a much easier way to pay their bills," said Danielle Murrie, the bank's general manager of deposits and transactions. "It also speeds up the process, as we know Australians are spending on average 15 hours a year managing their bills." The survey also found 61 per cent, or 10 million Australians, considered themselves "very organized" when it came to paying bills, 31 per cent said they had missed or forgotten a bill in the past, and 2 per cent admitted they often forgot to pay bills on time. About one-third said they mostly received their bills online, half said they used a mix of paper and email, while 9 per cent said they solely relied on paper bills. Ian Johnson, a self-employed builder from Haberfield, estimated that over the course of a year he could be paying up to $200 in various late payment fees. "It can be high pressure, business wise, to keep up with what's happening, especially when you don't have someone just doing the admin. If you're a one-man band, it can be hard to always check, know what's in the account, invoices, what bills need to paid," he said. "The fees can build up very quickly. I used to go overseas on a semi-regular basis and missed the mail, so I paid late fees," he said. "It's happening less now, I've really clamped down on it, by setting up automatic payments and doing as much as possible online." * Defense Attorney Says Companies Must Improve Customer Outreach ---------------------------------------------------------------- Jessica Karmasek, writing for Legal Newsline, reports that as the number of class action filings seem to grow by the day, particularly over product liability and marketing issues, one class action defense attorney argues companies would be wise to improve their customer outreach. Michael Mallow, Esq. -- mmallow@sidley.com -- an attorney with Sidley Austin LLP and co-leader of the firm's Consumer Class Action Defense practice, should know. Mr. Mallow defended Campbell-Ewald Company in a putative class action alleging that a text message recruiting campaign that the company undertook for its client, the U.S. Navy, violated the Telephone Consumer Protection Act, or TCPA. Plaintiff Jose Gomez appealed to the U.S. Court of Appeals for the Ninth Circuit, which reversed the decision. The case was then appealed to the U.S. Supreme Court with other counsel, and the justices confirmed the reversal in a precedent-setting decision in January. Mr. Mallow contends companies first need to recognize there is a problem with their goods or services and then try to take care of it on their own, that way there is no need for or ability to bring a class action lawsuit. "Instead of having to settle a case as a class action, companies have the ability and incentive to take care of it, in an effort to avoid the expense or threat of class action activity," he explained in an interview with Legal Newsline. It's what he calls "self-initiated unilateral market action." Basically, a company reaches out to its customer base when there is a problem with a product or service before plaintiffs' attorneys can file a lawsuit. Mr. Mallow made a presentation at an American Bar Association conference earlier this year, extolling the benefits of better customer outreach. "If a company recognizes that its product is causing a problem or the advertising or marketing of it is confusing to consumers, it's better for them to say, let's go take care of it," he said. "That can possibly thwart the filing of litigation. And if it doesn't prevent it, it certainly will help in their defense." Of course, there are those plaintiffs who still file class actions even if companies voluntarily reimburse customers, Mr. Mallow said. "They may say the claims aren't moot because of some type of damage you're not addressing," he explained. "But it can be a hard argument to address." Especially if the company offers a full refund or is willing to fix the product for free or provide a longer warranty at no charge, Mr. Mallow said. "But all of those don't address the 'if we had known, we wouldn't have bought it in the first place' argument," he pointed out. Still, self-initiated market actions work. Mr. Mallow pointed to Maidenform, the women's underwear company. Maidenform and Wacoal were both sued in class actions as co-defendants over caffeine-infused undergarments. The undergarments supposedly slimmed hips and thighs and reduced the appearance of cellulite, but there was no scientific evidence to back up the claims. In 2013, Maidenform was sold to Hanes. After buying the brand, Hanes decided it wasn't comfortable with the product and told retailers to pull it, and stopped selling it on their website. "They let people know that if they had the garment and are unhappy, send it back and you'll get your money back," Mr. Mallow explained. As a result, Maidenform was voluntarily dismissed from the class actions after filing a motion to dismiss based on the market action and a relatively nominal settlement with the plaintiffs. Wacoal, on the other hand, did not reach out to customers and got hit by the Federal Trade Commission. "The market action can be before or after," Mr. Mallow said. "The concept is, without a settlement in place, the company is addressing an issue that impacts a broad number of its customers, not just a specific person." And even if litigation is pending, companies should consider it, he contends. "If a company does it on its own, it controls the message," he explained. "When there's a class action settlement, a notice goes out that says it's been sued and alleges the following. In the minds of the public, if a company is accused in a class action, it must be guilty." Mr. Mallow said it's about controlling the message. "You don't have to ask the plaintiffs or court what they think," he said. In Gomez, the plaintiff alleged Campbell-Ewald violated the TCPA by sending -- through a third-party vendor -- unsolicited text messages on behalf of the Navy. The TCPA restricts telephone solicitations, i.e. telemarketing, and the use of automated telephone equipment. Generally, the act makes it unlawful "to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party" except in emergencies or in circumstances exempted by the Federal Communications Commission. The law permits any "person or entity" to bring an action to enjoin violations of the statute and/or recover actual damages or statutory damages ranging from $500 to $1,500 per violation. Campbell-Ewald offered Gomez full relief on his claims -- $1,503 per violation, plus reasonable costs -- but the offer was rejected. The Ninth Circuit held that the unaccepted offer did not moot the named plaintiffs' individual claims or the putative class claims. The Supreme Court ruled 6-3 that the Ninth Circuit's 2014 decision was correct. Mr. Mallow, who represented Campbell-Ewald in federal district court and was still counsel of record when the case was before the Ninth Circuit, said he has "a lot of opinions" on the Supreme Court's decision. The nation's high court, while it may have answered the question of whether a class action can be rendered moot, failed to address variations on that theme, he argues. "For example, instead of making a settlement offer, you have someone who has bought a product and they're not happy with that product in some way, so the company offers to do something about it," Mr. Mallow explained. "Well, I don't know how Gomez will apply to that type of situation." Mr. Mallow said the decision "clearly" doesn't apply to a self- initiated unilateral market action. "I think the court really missed an opportunity to address a very specific type of litigation involving statutory damages," he said. And as a result, federal courts are being flooded with TCPA class actions, in particular, he noted. "I don't know that Gomez causes all of those filings," Mr. Mallow said. "But it certainly took away a tool for addressing many of them in a very quick and efficient manner." Now, companies will have to get more creative in how they handle similar cases, he said. "I think companies are going to continue to press and figure out ways around (the decision), while plaintiffs' counsel will try to use Gomez to their benefit," Mr. Mallow said. "This is far from over." Asbestos Litigation ASBESTOS UPDATE: Intervenors OK'd to Appear in "Steinebach" ----------------------------------------------------------- The unopposed motion to intervene by Great American Insurance Company, Chubb & Son, RiverStone Claims Management, and American International Group, on behalf of their suspended insured, Defendant Plant Products & Supply Company, in the case captioned WILLIAM STEINEBACH, et al., Plaintiffs, v. CRANE CO., et al., Defendants, Case No. 16-cv-04687-THE (N.D. Calif.), according to a September 19, 2016, order by Judge Thelton E. Henderson of the United States District Court for the Northern District of California. According to Judge Henderson, intervenors may appear in this action under the name of their insured. They shall file their complaint in intervention no later than September 23, 2016, and this will be considered a timely response to Plaintiffs' complaint, the judge said. A full-text copy of Judge Henderson's Order is available at https://is.gd/QHI4J5 from Leagle.com. William Steinebach, Plaintiff, represented by David R. Donadio, Brayton Purcell LLP. William Steinebach, Plaintiff, represented by Alan R. Brayton, Brayton Purcell LLP & Kimberly Joy Wai Jun Chu, Brayton Purcell LLP. Glenda Steinebach, Plaintiff, represented by David R. Donadio, Brayton Purcell LLP & Alan R. Brayton, Brayton Purcell LLP. Crane Co., Defendant, represented by Michele Cherie Barnes, K&L Gates LLP & Peter Edward Soskin, K&L Gates LLP. Metropolitan Life Insurance Company, Defendant, represented by Erika Aspericueta & Lisa Marie Petrovsky, Steptoe and Johnson LLP. Fraser's Boiler Service, Inc., Defendant, represented by Kathleen Burnam Ebrahimi, Pond North LLP, Kevin Douglas Jamison, Pond North LLP, Patrick J. Glinka, Pond North LLP & Sandra Lucia Gryder, Pond North LLP. Plant Products & Supply Company, Defendant, represented by Carol L. Healey, Esq. -- chealey@bishop-barry.com -- Bishop Barry Howe Haney & Ryder. Hill Brothers Chemical Company, Defendant, represented by Michael Quinn Eagan, Jr., Morgan Lewis and Bockius LLP. Puget Sound Commerce Center, Inc., Defendant, represented by George D. Yaron, Yaron & Associates & Demian David Steele, Yaron & Associates. Puget Sound Commerce Center, Inc., Defendant, represented by Erica Lynn Morris, Yaron & Associates. ASBESTOS UPDATE: Court Won't Review Order Denying Dismissal Bid --------------------------------------------------------------- In the case captioned LESTER D. SHIRAH, Plaintiff, v. AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants, Case No. 4:15 CV 1636 CDP (E.D. Mo.), Plaintiff Lester D. Shirah alleges he was injured after being exposed to asbestos while serving as a boiler tender in the U.S. Navy in the 1960s. Although he claims his exposure occurred outside the state of Missouri, he filed this lawsuit in Missouri state court. It was then removed to the United States District Court for the Eastern District of Missouri, Eastern Division, by defendant Crane Co. After removal, defendant CBS Corporation filed a motion to dismiss the plaintiff's claims against it based on lack of personal jurisdiction. After a hearing on the record, U.S. District Judge Catherine D. Perry concluded that although CBS is a foreign corporation, it consented to personal jurisdiction in Missouri by appointing an agent for service in the state, and denied CBS's motion to dismiss. In the motion now before the court, CBS asks for reconsideration of the denial of its motion to dismiss. Alternatively, CBS asks that the court certify the issue of personal jurisdiction by consent for appeal to the Eighth Circuit in accordance with 28 U.S.C. Section 1292(b). Also before the court is a joint motion for voluntary dismissal filed by the plaintiff and defendant Crown Cork & Seal Company. In a memorandum and order dated September 19, 2016, a full-text copy of which is available at https://is.gd/AWvh1m from Leagle.com, Judge Perry concluded that because CBS's motion for reconsideration makes no new legal or factual arguments that convince me that my prior decision was in error, the motion for reconsideration will be denied. Judge Perry also denied CBS's motion to certify the issue for interlocutory appeal, noting that it has "long been the policy of the courts to discourage piece-meal appeals." Judge Perry pointed out that a district court should grant certification only where: (1) the order involves a controlling question of law; (2) there is substantial ground for difference of opinion; and (3) certification will materially advance the ultimate termination of the litigation. Here, certification will not materially advance the ultimate termination of the litigation, the judge said, pointing out that there are currently approximately 20 defendants in this matter, each of whom may or may not be liable for the plaintiff's asbestos exposure. If CBS were ultimately dismissed due only to lack of personal jurisdiction, it would not change the course of the case except to potentially delay resolution, the judge said. While a dismissal of CBS would obviously advance the case as to that defendant, an interlocutory appeal would only prolong the ultimate resolution of the action, the judge held. Judge Perry granted the joint motion for voluntary dismissal and the case is dismissed with prejudice as to Crown Cork & Seal Company only. Lester D. Shirah, Plaintiff, represented by Erin Rafferty Burton, FLINT AND ASSOCIATES LLC. Lester D. Shirah, Plaintiff, represented by Laci M. Whitley, FLINT AND ASSOCIATES, LLC, Luke Perry Pfeifer, FLINT AND ASSOCIATES LLC & Timothy Paul Hulla, FLINT AND ASSOCIATES LLC. Air & Liquid Systems Corporation, Defendant, Cross Claimant, Cross Defendant, represented by Gregory C. Flatt, HEYL AND ROYSTER. ALFA Laval, Inc., Defendant, Cross Defendant, represented by Marcie J. Vantine, Esq. -- mvantine@smbtrials.com -- SWANSON AND MARTIN, LLP & Paul W. Lore. CBS Corporation, Defendant, Cross Defendant, represented by Daniel G. Donahue, FOLEY AND MANSFIELD, P.L.L.P. & Michael R. Dauphin, FOLEY AND MANSFIELD, P.L.L.P.. Crane Co., Defendant, Cross Defendant, represented by Benjamin John Wilson, HEPLER BROOM. Crane Co., Defendant, represented by Carl J. Geraci, HEPLER BROOM. FMC Corporation, Defendant, Cross Defendant, represented by Alison R. Helgeson, Esq. -- ahelgeson@smbtrials.com -- SWANSON AND BELL & Marcie J. Vantine, SWANSON AND MARTIN, LLP. Gardner Denver, Inc., Defendant, Cross Defendant, represented by William R. Irwin, SEGAL AND MCCAMBRIDGE. General Gasket Corporation, Defendant, Cross Defendant, represented by Albert J. Bronsky, BROWN AND JAMES, P.C. & Agota Peterfy, BROWN AND JAMES, P.C.. Grinnell, LLC, Defendant, Cross Defendant, represented by Julia Yasmin Tayyab, MORGAN AND LEWIS, LLP. IMO Industries, Inc., Defendant, Cross Defendant, represented by Matthew R. Fields, Esq. -- Fields@archcitylawyers.com -- JACOBSON AND PRESS, P.C.. Ingersoll-Rand Company, Defendant, Cross Defendant, represented by Benjamin John Wilson, HEPLER BROOM & Carl J. Geraci, HEPLER BROOM. John Crane, Inc., Defendant, Cross Defendant, represented by Albert J. Bronsky, Esq. -- ajbronsky@bjpc.com -- BROWN AND JAMES, P.C. & Agota Peterfy, Esq. -- apeterfy@bjpc.com -- BROWN AND JAMES, P.C.. The J.R. Clarkson Company, Defendant, Cross Defendant, represented by Julia Yasmin Tayyab, MORGAN AND LEWIS, LLP. Lamons Gasket Company, Defendant, Cross 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.. Trane US, Inc., Defendant, Cross Defendant, Cross Claimant, represented by Benjamin John Wilson, HEPLER BROOM & Carl J. Geraci, HEPLER BROOM. Warren Pumps, LLC, Defendant, Cross Defendant, Cross Claimant, 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, Cross Defendant, represented by Marcie J. Vantine, SWANSON AND MARTIN, LLP. ASBESTOS UPDATE: Calif. Man Drops Asbestos Claims vs. 2 Companies ----------------------------------------------------------------- In the case captioned JERRY FLOYD, Plaintiff, v. ASBESTOS CORPORATION, LTD., et al., Defendants, Case No. 15-cv-05382-JST (N.D. Calif.), Plaintiff Jerry Floyd has filed two stipulations of dismissal dated September 15, 2016. In a minute order dated September 16, 2016, a full-text copy of which is available at https://is.gd/0sskPt from Leagle.com, Judge Jon S. Tigar of the United States District Court for the Northern District of California ordered that all claims between Jerry Floyd and Metalclad Insulation LLC and Certainteed Corporation have been dismissed without prejudice. The Clerk is directed to terminate Metalclad Insulation LLC and Certainteed Corporation as parties in this case. Jerry Floyd, Plaintiff, represented by Stephen Michael Fishback, Keller Fishback & Jackson LLP. Jerry Floyd, Plaintiff, represented by Cassiana Aaronson, Keller Fishback & Jackson LLP, Daniel Lee Keller, Keller Fishback & Jackson LLP & John Bruce Jackson, Keller Fishback & Jackson LLP. BW/IP, Inc., Defendant, represented by Dennis Michael Young, Foley & Mansfield, PLLP, Arturo Esteban Sandoval, Foley & Mansfield, PLLP, Holly Elizabeth Acevedo, Foley & Mansfield, P.L.L.P. & Keith Michael Ameele, Foley & Mansfield, P.L.L.P.. Goulds Pumps, Inc., Defendant, represented by Amy Jo Talarico, Morgan Lewis & Bockius, LLP. Honeywell International, Inc., Defendant, represented by David Scott Shaffer, Perkins Coie LLP & David T. Biderman, Perkins Coie LLP. IMO Industries, Inc., Defendant, represented by Bobbie Rae Bailey, Esq. -- bbailey@leaderberkon.com -- Leader & Berkon LLP & Frederick W. Gatt, Esq. -- fgatt@leaderberkon.com -- Leader & Berkon LLP. ITT Corporation, Defendant, represented by Joseph Duffy, Morgan, Lewis & Bockius LLP, Amy Jo Talarico, Morgan Lewis & Bockius, LLP, Michael Quinn Eagan, Jr., Morgan Lewis and Bockius LLP & Taylor Carl Day, Morgan, Lewis and Bockius LLP. Owens-Illinois, Inc., Defendant, represented by Jamie Lynn Lanphear, Schiff Hardin LLP & Renee Christine Kelley, Schiff Hardin LLP. ASBESTOS UPDATE: Travelers Policies Exhausted as of July 2015 ------------------------------------------------------------- In the Complex Commercial Litigation Division case captioned CNH INDUSTRIAL AMERICA LLC, Plaintiff, v. AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, et al., Defendants, C.A. No. N12C-07-108 EMD CCLD (Del. Sup.), Plaintiff CNH Industrial America LLC filed a declaratory relief and breach of contract case against several insurance companies, including Travelers Indemnity Company. CNH's complaint alleges Travelers breached its duty to defend CNH in underlying asbestos-related lawsuits filed against CNH. The parties filed numerous summary judgment motions related to Travelers's duties. On October 7, 2014, CNH filed Plaintiff CNH Industrial America LLC's Motion for Partial Summary Judgment Against Travelers Regarding Exhaustion. On May 18, 2015, the Court held oral argument on CNH's motions, and made several bench rulings. On June 8, 2015, the Court issued two orders memorializing its bench rulings. First, the Court held that Wisconsin law applied to the policies. Second, the Court held that CNH was the policies' proper assignee under 1994 reorganization agreements. On July 6, 2015, prior to the Court's written decisions on the remaining issues, Travelers filed a letter with the Court. In it, Travelers outlined its pending $1.6 million payment to CNH for indemnity and defense costs. Travelers paid $600,000 as indemnity for CNH's prior settlements. Travelers calculated its indemnity payments by taking six underlying cases CNH tendered in 2008-09, and spreading the remaining policy limits amongst them. Further, Travelers paid $1.0 million for all substantiated, post-tender defense costs CNH allegedly incurred through May 18, 2009. Travelers contends that the payment fully exhausted the policies' remaining limits. On July 9, 2015, CNH replied. CNH disagreed with Travelers' position, arguing the payments did not impact or influence the pending motions. On August 21, 2015, the Court issued a series of opinions. The Court partially granted CNH's motion for summary judgment on exhaustion, holding all but three policies were fully exhausted. After a series of briefs filed since December 2015, the Court heard oral argument on March 15, 2016. In resolving the issue, the Superior Court of Delaware took a straight forward approach and apply the language of the policies. Under Wisconsin law, an insurer's obligations are fully discharged after it pays the maximum amount under the policy, the court held. The court noted that the language of these policies clearly provides that Travelers shall not be obligated to pay any additional claim or judgment or to defend any suit after Travelers exhausts the applicable limit of liability. The language is straightforward and requires Travelers, and not the insured, to make the payment on any claim or judgment before Travelers' obligations terminate due to exhaustion of policy limits, the court pointed out. Travelers cannot, under the terms of the policies, retroactively exhaust its policies, the court said. The policies were exhausted as of the date Travelers made its payment, not the date CNH did, the court added. Travelers made payments that exhausted the applicable limit of liability on or about July 6, 2015 and not May 2009. Accordingly, the terms of the applicable policies excuse Travelers from any further payments that CNH contends are owed under the policies after July 6, 2015, the court concluded. The court clarified that the decision does not address the amounts Travelers may owe for defense costs incurred by CNH prior to July 6, 2015, and will address this remaining issue at a hearing schedule among the parties on October 17, 2016 at 9:30 a.m. (Eastern). A full-text copy of the Decision dated September 21, 2016, is available at https://is.gd/Y6ixU4 from Leagle.com. Brian M. Rostocki, Esq. -- brostocki@reedsmith.com -- and John C. Cordrey, Esq. -- jcordrey@reedsmith.com -- Reed Smith LLP, Wilmington, Delaware and James M. Davis, Esq. -- jdavis@reedsmith.com -- Thomas A. Marrinson, Esq. -- tmarrinson@reedsmith.com -- Evan T. Knott, Esq. -- eknott@reedsmith.com -- and Emily E. Garrison, Esq. -- egarrison@reedsmith.com -- Reed Smith LLP, Chicago, Illinois. Attorneys for CNH Industrial America LLC. Neal J. Levitsky, Esq. -- nlevitsky@foxrothschild.com -- and Seth A. Niederman, Esq. -- sniederman@foxrothschild.com -- Fox Rothschild LLP, Wilmington, Delaware and Richard L. McConnell, Esq. -- rmcconnell@wileyrein.com -- and Dale E. Hausman, Esq. -- dhausman@wileyrein.com -- Wiley Rein LLP, Washington, DC. Attorneys for Travelers Indemnity Company. ASBESTOS UPDATE: Cooper Wins Partial Summary Judgment vs. Wyman --------------------------------------------------------------- The case captioned COOPER INDUSTRIES, LLC, Plaintiff, v. PRECISION CASTPARTS CORP. and WYMAN-GORDON COMPANY, Defendants, Civil Action No. H-15-0576 (S.D. Tex.), arises out of asbestos personal-injury claims stemming from the operations of Cameron Iron Works at its Katy Road facility. Cooper acquired Cameron Iron Works in 1989. From 1989 to 1994 Cameron Iron Works operated primarily in two business units at the Katy Road facility: the Oil Tools Division and Forged Products. In January of 1994 Wyman purchased the Forged Products business from Cooper pursuant to the Amended and Restated Stock Purchase Agreement at issue in this action. In January of 1995 Cooper transferred the Oil Tools division to Cameron International Corporation pursuant to an Asset Transfer Agreement. Cooper then brought this action, asserting two claims: (1) a declaratory judgment interpreting the SPA and confirming that the Defendants assumed personal-injury asbestos liabilities related to the Forged Products division and are required to indemnify and defend for those liabilities pursuant to the SPA; and (2) a declaratory judgment that the arbitration panel's decision in the Cooper-Cameron arbitration has collateral estoppel or res judicata effect in this action. Following the completion of fact discovery, both parties moved for summary judgment. Cooper seeks summary judgment that Wyman is liable for asbestos personal-injury claims under the SPA as a matter of law, and the Defendants seek summary judgment in their favor on both of Cooper's claims. Judge Sim Lake of the United States District Court for the Southern District of Texas, Houston Division, granted Cooper's Motion for Summary Judgment in part and denied the Defendants' Motion for Summary Judgment. Summary judgment in Cooper's favor is appropriate on its first claim regarding construction of the SPA's indemnity provisions as they apply to Wyman, Judge Lake held. The parties' agreement unambiguously assigns the duty to indemnify and defend asbestos personal-injury claims stemming from employment at the Katy Road site to Wyman, the judge noted. However, fact issues remain regarding the meaning of the $100,000 "aggregate amount of Losses" in Section 5.22(c), Precision's liability as a non-signatory to the SPA, and Cooper's estoppel claims, the judge said. A full-text copy of the Memorandum Opinion and Order dated September 14, 2016 is available at https://is.gd/w59iz0 from Leagle.com. Cooper Industries, L.L.C., Plaintiff, is represented by Samantha Porphy Ade, Esq. -- sade@kslaw.com -- King and Spalding LLP. Cooper Industries, L.L.C., Plaintiff, is represented by Franz Michael Stenglein, Esq. -- fstenglein@kslaw.com -- King Spalding LLP. Precision Castparts Corp., Defendant, is represented by Thomas Melvin Gregor, Esq. -- Gregor Rippy PLLC, Joel A. Mullin, Esq. -- joel.mullin@stoel.com -- Stoel Rives LLP & Reed W. Morgan, Esq. -- reed.morgan@stoel.com -- Stoel Rives LLP. Wyman-Gordon Company, Defendant, is represented by Thomas Melvin Gregor, Gregor Rippy PLLC, Joel A. Mullin, Stoel Rives LLP & Reed W. Morgan, Stoel Rives LLP. ASBESTOS UPDATE: New Trial in Suit vs. RJ Reynolds Directed ----------------------------------------------------------- In the case captioned CRANE CO., R.J. REYNOLDS TOBACCO CO., and HOLLINGSWORTH & VOSE CO., Appellants, v. RICHARD DELISLE and ALINE DELISLE, his wife, Appellees, Nos. 4D13-4351 and 4D14-146 (Fla. App.), the District Court of Appeal of Florida, Fourth District, reversed and remanded the case for entry of a directed verdict for Crane and for a new trial on all issues as to R.J. Reynolds as the court abused its discretion in admitting expert testimony. Crane Co. and R.J. Reynolds appeal from an adverse jury verdict in favor of DeLisle in which the jury found that both appellants' products containing asbestos were substantial contributing causes to appellee DeLisle's mesothelioma and awarded substantial damages. Crane primarily argues that the court erred in not excluding expert causation testimony, in denying its motion for directed verdict, and in excluding Fabre defendants from the verdict form. R.J. Reynolds argues that the court erred in admitting expert testimony and in refusing a non-standard jury instruction. Both Crane and R.J. Reynolds argue that the court abused its discretion in failing to grant a remittitur. DeLisle cross-appeals the inclusion of a Fabre defendant on the verdict form. The District Court of Appeal said that at a new trial, the court should also reconsider the prior inclusion of Owens-Corning on the verdict form as a Fabre defendant, as raised on cross-appeal by DeLisle. Dr. Rasmuson testified that DeLisle's exposure to Owens- Corning products containing asbestos would be a substantial contributing factor to DeLisle's mesothelioma, but his testimony on this issue did not meet the test of Daubert, the court said. A full-text copy of the Opinion dated September 14, 2016, is available at https://is.gd/iT3OLn from Leagle.com. Rebecca C. Kibbe, Esq. -- rebecca.kibbe@klgates.com -- K&L Gates LLP, Miami, for appellant Crane Co. Elliot H. Scherker, Esq. -- scherkere@gtlaw.com, Sabrina R. Ferris, Esq., Julissa Rodriguez, Esq. -- rodriguezju@gtlaw.com, Brigid F. Cech Samole, Esq. -- cechsamoleb@gtlaw.com, and Stephanie L. Varela, Esq. -- varelas@gtlaw.com -- Greenberg Traurig, P.A., Miami, for appellants R.J. Reynolds Tobacco Company and Hollingsworth & Vose Co. Gary M. Farmer, Sr., Esq. -- farmergm@att.net -- Farmer Jaffe Weissing Edwards Fistos & Lehrman P.L., Fort Lauderdale, and David A. Jagolinzer. Esq. -- The Ferraro Law Firm, Miami, for appellees. ASBESTOS UPDATE: Lockheed's Summary Judgment Bid in "George" OK'd ----------------------------------------------------------------- In the case captioned LEONA GEORGE, as Executrix of the Estate of Peter George, Deceased, and LEONA GEORGE, in her own right, Plaintiffs, v. A.W. CHESTERTON CO., et al., Defendants. No. 2:16- cv-00115-CB (W.D. Pa.), Judge Cathy Bissoon of the United States District Court for the Western District of Pennsylvania granted Defendant Lockheed Martin Corporation's Motion to Dismiss for lack of personal jurisdiction and remanded the case to the Court of Common Pleas of Allegheny County, Pennsylvania. The lone issue presented in Lockheed's Motion is whether it consented to personal jurisdiction in Pennsylvania by registering to do business in the state as a foreign corporation. Pennsylvania filing-records indicate that Lockheed has been registered to do business in Pennsylvania from 1996 through the present. The parties agree that no other basis for personal jurisdiction exists. Peter George died of mesothelioma on July 20, 2014. The executrix of his estate, Plaintiff Leona George alleges that George's death was the result of his exposure to asbestos dust and fibers contained in products manufactured by one or more of the Defendants. Plaintiff avers that George was in the Navy from 1955- 1957, and the Reserves from 1957-1961 and later worked for the Carpenters Union from 1959-mid 1970s, Superior Steel from the mid- 1970s-1979, and was self-employed from mid-1970s-2000s. George allegedly encountered asbestos products during an unspecified portion of his work history. Judge Bissoon pointed out that in the instant case, Lockheed first registered to do business in Pennsylvania in 1996. George's military service, during which time he allegedly was exposed to asbestos in Lockheed's products, extended from 1955 to 1961. Assuming, without deciding, that consent-by-registration remains viable post-Daimler, Lockheed's registration to do business in Pennsylvania occurred decades after the alleged injury, and it provides no basis for exercising jurisdiction, the judge said. A full-text copy of the Order dated September 16, 2016, is available at https://is.gd/kpsHmv from Leagle.com LEONA GEORGE, Plaintiff, is represented by David P. Chervenick, Esq. -- Goldberg, Persky & White, P.C.. LEONA GEORGE, Plaintiff, is represented by Jason T. Shipp, Esq. -- Goldberg, Persky, Jennings & White, David P. Chervenick, Esq. -- Goldberg, Persky & White, P.C. & Jason T. Shipp, Esq. -- Goldberg, Persky, Jennings & White. ADVANCE AUTO PARTS, INC., Defendant, is represented by Jennifer E. Watson, Esq. -- Wilbraham Lawler & Buba. CBS CORPORATION, Defendant, is represented by Eric L. Horne, Esq. -- ehorne@eckertseamans.com -- Eckert, Seamans, Cherin & Mellott & Daniel J. Sinclair, Esq. -- dsinclair@eckertseamans.com -- Eckert, Seamans, Cherin & Mellott. CURTISS-WRIGHT CORPORATION, Defendant, is represented by John C. McMeekin, II, Esq. -- jmcmeekin@rawle.com -- Rawle & Henderson LLP. DANA CORPORATION, Defendant, is represented by Jennifer E. Watson, Esq. -- Wilbraham Lawler & Buba. EATON CORPORATION, Defendant, is represented by Jason W. Rubin, Goldberg, Miller & Rubin, pro hac vice. GENERAL ELECTRIC COMPANY, Defendant, is represented by Bryan S. Neft, Esq. -- BSN1@Pietragallo.com -- Pietragallo Gordon Alfano Bosick & Raspanti, LLP. J-M MANUFACTURING COMPANY, INC., Defendant, is represented by Joseph L. Orszulak, II, Esq. -- jorszulak@moodklaw.com -- Marks, O'Neill, O'Brien, Doherty & Kelly. LOCKHEED MARTIN CORPORATION, Defendant, is represented by Richard C. Polley, Esq. -- rpolley@dmclaw.com -- Dickie, McCamey & Chilcote, Brian T. Clark, Esq. -- clark@glazieryee.com -- Glazier Yee, LLP, pro hac vice, Guy P. Glazier, glazier@glazieryee.com -- Glazier Yee LLP, pro hac vice & Laura P. Yee, Esq. -- yee@glazieryee.com -- Glazier Yee LLP, pro hac vice. SEARS, ROEBUCK & COMPANY, Defendant, is represented by Jennifer E. Watson, Wilbraham Lawler & Buba. THE GOODYEAR TIRE & RUBBER COMPANY, Defendant, is represented by Jennifer E. Watson, Wilbraham Lawler & Buba. ASBESTOS UPDATE: 3rd Circ. Reverses Ruling on Switchgear Claim -------------------------------------------------------------- The United States Court of Appeals for the Third Circuit affirmed in part and reversed in part the District Court's order, and remanded the action styled In the case captioned IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (NO. VI) relating to Steven Frankenberger, Special Administrator for the Estate of Howard L. Frankenberger*, Appellant. *(Amended pursuant to the Clerk's order entered March 21, 2016), No. 15-1988, for further proceedings consistent with this opinion. Steven Frankenberger, on behalf of the estate of Howard Frankenberger, appeals an order of the District Court dismissing his civil suit against CBS Corporation. He asserts state law causes of action arising from Howard Frankenberger's exposure to asbestos during his forty-five years working as a pipefitter at various facilities in Illinois and Indiana, which he alleges was caused by asbestos-containing turbines and switchgears at those facilities. Following discovery, CBS Corporation moved for summary judgment, and the District Court granted the motion. While the Third Circuit agrees with the District Court that Frankenberger's turbine-related claim fails to demonstrate CBS Corporation was a cause of his asbestos exposure, the Third Circuit disagrees with its conclusion that the switchgear-related claim is similarly deficient. A full-text copy of the Opinion of the Court dated September 13, 2016, is available at https://is.gd/BGeH0V from Leagle.com Robert G. McCoy, Esq. [ARGUED], Cascino Vaughn Law Offices, 220 South Ashland Avenue, Chicago, IL 60607, Counsel for Appellant. Christopher G. Conley, Esq. -- cgconley@ewhlaw.com [ARGUED], Evert Weathersby & Houff, 200 Cleveland Road, Suite 6, Bogart, GA 30622, Counsel for Appellee. ASBESTOS UPDATE: Valid Assignment of Insurance Rights to Viking --------------------------------------------------------------- In the case captioned IN RE VIKING PUMP, INC. AND WARREN PUMPS, LLC INSURANCE APPEALS, Nos. 518, 2014, 523, 2014, 525, 2014, 528, 2014 (Del.), the Supreme Court of Delaware affirmed the Superior Court's judgment in part and reversed in part with respect to its determination of the Excess Policies' coverage for defense costs. This is a consolidated appeal in an insurance-coverage dispute from separate judgments by the Court of Chancery and the Superior Court. Viking Pump, Inc., and Warren Pumps, LLC, seek to recover under insurance policies issued to a third company, Houdaille Industries, Inc. In the 1980's, Viking and Warren acquired pump manufacturing businesses from Houdaille. As a result, Viking and Warren have been confronted with potential liability flowing from personal injury claims made by plaintiffs alleging damages in connection with asbestos exposure claims dating back to when the pump manufacturing businesses were owned by Houdaille (the "Houdaille- Era Claims"). Each year from 1972 through 1985, Houdaille purchased occurrence-based primary and umbrella insurance from Liberty Mutual Insurance Company. Above the Liberty umbrella layer, Houdaille purchased layers of excess insurance. In total, Houdaille purchased 35 excess policies through 20 different carriers. Houdaille's 14-year insurance tower offered $17.5 million in primary coverage, $42 million in umbrella coverage, and $427.5 million in excess coverage. Viking and Warren now seek to fund the liabilities arising from the Houdaille-Era Claims using the comprehensive insurance program originally purchased by Houdaille. The insurance companies that issued the Excess Policies contend that Viking and Warren are not entitled to use the Excess Policies to respond to the Houdaille- Era Claims. The Excess Insurers also dispute the extent of any coverage available, particularly with respect to defense costs. The Supreme Court held that the Court of Chancery correctly held that there were valid assignments of insurance rights to Warren and Viking under the Excess Policies. The Supreme Court further held that the Superior Court correctly held that the 1980-1985 Liberty Primary Policies are exhausted, but held that the Superior Court erred with respect to the trigger of coverage under the Excess Policies. A full-text copy of the Opinion dated September 12, 2016 is available at https://is.gd/jOsVoI from Leagle.com. David J. Baldwin, Esquire -- dbaldwin@potteranderson.com, Jennifer C. Wasson, Esquire -- jwasson@potteranderson.com, Michael B. Rush, Esquire, Potter Anderson & Corroon LLP, Wilmington, Delaware. Of Counsel: Robin L. Cohen Esquire (Argued) -- rcohen@mckoolsmith.com, Keith McKenna, Esquire -- kmckenna@mckoolsmith.com -- McKool Smith, New York, New York, for Appellant Warren Pumps LLC. Paul Cottrell, Esquire, Tighe & Cottrell, P.A., Wilmington, Delaware. Of Counsel: Laura S. McKay, Esquire -- lmckay@hww- law.com -- Hinkhouse Williams Walsh LLP, Chicago, Illinois; AND Anthony G. Flynn, Esquire -- aflynn@ycst.com, Timothy Jay Houseal, Esquire -- thouseal@ycst.com, Jennifer M. Kinkus, Esquire -- jkinkus@ycst.com -- Young Conaway Stargatt & Taylor LLP, Wilmington, Delaware. Of Counsel: Lynn H. Murray, Esquire (Argued) -- lhmurray@shb.com -- Shook, Hardy & Bacon LLP, Attorneys for The Continental Insurance Company as successor by merger to Fidelity & Casualty Company of New York. Lisa A. Schmidt, Esquire -- schmidt@rlf.com, Travis S. Hunter, Esquire -- hunter@rlf.com, Richards, Layton & Finger, P.A., Wilmington, Delaware. Of Counsel: Michael P. Foradas, Esquire (Argued) -- michael.foradas@kirkland.com, Lisa G. Esayian, Esquire -- lisa.esayian@kirkland.com, William T. Pruitt, Esquire -- william.pruitt@kirkland.com -- Kirkland & Ellis LLP, Chicago, Illinois, for Appellant Viking Pump, Inc. Kenneth J. Nachbar, Esquire (Argued), Morris, Nichols, Arsht & Tunnell LLP, Wilmington, Delaware AND Garrett B. Moritz, Esquire and Nicholas D. Mozal, Esquire, Ross Aronstam & Moritz LLP, Wilmington, Delaware. Of Counsel: Tancred Schiavoni, Esquire and Gary Svirsky, Esquire, O'Melveny & Myers LLP, New York, New York; AND John D. Balaguer, Esquire, White and Williams LLP, Wilmington, Delaware. Of Counsel: Brian G. Fox, Esquire and Lawrence A. Nathanson, Esquire, Siegal & Park, Mount Laurel, New Jersey, Attorneys for Defendants TIG Insurance Company, f/k/a International Insurance Company, with respect to policies numbered 5220113076 and 5220282357, and Westchester Fire Insurance Company, with respect to policy numbered 5220489339, by operation of novation; ACE Property & Casualty Insurance Company (f/k/a CIGNA Property & Casualty Insurance Company), as successor-in-interest to Central National Insurance Company of Omaha, but only as respects policies issued through Cravens, Dargan & Company, Pacific Coast (improperly named as The Central National Insurance Company of Omaha); and Century Indemnity Company, as successor to CCI Insurance Company, as successor to Insurance Company of North America and Century Indemnity Company as successor to CIGNA Specialty Insurance Company (f/k/a California Union Insurance Company). Paul Cottrell, Esquire, Tighe & Cottrell, P.A., Wilmington, Delaware. Of Counsel: Laura S. McKay, Esquire, Hinkhouse Williams Walsh LLP, Chicago, Illinois; AND Anthony G. Flynn, Esquire, Timothy Jay Houseal, Esquire, Jennifer M. Kinkus, Esquire, Young Conaway Stargatt & Taylor LLP, Wilmington, Delaware, Attorneys for Certain Underwriters at Lloyd's, London and certain London Market Insurance Companies, Granite State Insurance Company, Lexington Insurance Company And National Union Fire Insurance Company of Pittsburgh, PA. Robert J. Katzenstein, Esquire, Smith Katzenstein & Jenkins LLP, Wilmington, Delaware. Of Counsel: Christopher R. Carroll, Esquire, Heather E. Simpson, Esquire, Carroll McNulty & Kull LLC, Basking Ridge, New Jersey, Attorneys for TIG Insurance Company, as successor by merger to International Insurance Company, as successor by merger to International Surplus Lines Insurance Company (Policy No. XSI 5217 only). Thaddeus J. Weaver, Esquire, Dilworth Paxson LLP, Wilmington, Delaware. Of Counsel: Laura S. McKay, Esquire, Douglas M. DeWitt, Esquire, Hinkhouse Williams Walsh LLP, Chicago, Illinois; AND Anthony G. Flynn, Esquire, Timothy Jay Houseal, Esquire, Jennifer M. Kinkus, Esquire, Young Conaway Stargatt & Taylor LLP, Wilmington, Delaware, Attorneys for OneBeacon America Insurance Company as successor to Commercial Union Insurance Company, XL Insurance America, Inc., as successor to Vanguard Insurance Company, and Republic Insurance Company, n/k/a Starr Indemnity & Liability Company. James W. Semple, Esquire, Cooch & Taylor P.A., Wilmington, Delaware. Of Counsel: Kristin Suga Heres, Esquire, Zelle LLP, Framingham, Massachusetts, Attorneys for Defendant Westport Insurance Corporation. Robert M. Greenberg, Esquire, Tybout Redfearn & Pell, Wilmington, Delaware. Of Counsel: Amy R. Paulus, Esquire, Mark D. Paulson, Esquire and Don R. Sampen, Esquire, Clausen Miller P.C., Chicago, Illinois, Attorneys for Old Republic Insurance Company. Neal J. Levitsky, Esquire, Seth A. Niederman, Esquire, Fox Rothschild LLP, Wilmington, Delaware. Of Counsel: Kathleen D. Monnes, Esquire, Joseph K. Scully, Esquire and John W. Cerreta, Esquire, Day Pitney LLP, Hartford, Connecticut, Attorneys for Defendant, Travelers Casualty and Surety Company f/k/a The Aetna Casualty and Surety Company. ASBESTOS UPDATE: Grant of Summary Judgment in "Mitchell" Urged -------------------------------------------------------------- In the case captioned JIMMY R. MITCHELL AND CONNIE MITCHELL, his wife Plaintiffs, v. ATWOOD & MORILL CO., et al., Defendants, Civil Action No. 15-958-SLR-SRF (D. Del.), Magistrate Judge Sherry R. Fallon of the United States District Court for the District of Delaware recommended granting both Defendants Nash Engineering Co.'s motion for summary judgment and Foster Wheeler's motion for summary judgment. The Plaintiffs allege that Mr. Mitchell developed lung cancer as a result of exposure to asbestos-containing products, in part during the course of his employment as a boiler fireman with the U.S. Navy from 1976 to 1979. The Plaintiffs contend that Mr. Mitchell was injured due to exposure to asbestos-containing products that the Defendants manufactured, sold, distributed, or installed. Accordingly, the Plaintiffs assert negligence, punitive damages, strict liability, and loss of consortium claims. Nash argues that because Mr. Mitchell did not identify exposure to any Nash product, Nash is entitled to judgment as a matter of law. Nash contends that Plaintiffs may not establish causation by showing that Nash products were merely present somewhere at Mr. Mitchell's workplace. The Plaintiffs respond that a genuine issue of material fact remains because Mr. Mitchell testified that he worked on all the pumps in Fire Room Number Two, and Navy purchase orders show Nash's asbestos gaskets were used on centrifugal pumps on the USS Gridley. Foster Wheeler argues that summary judgment is warranted because there is no evidence Mr. Mitchell was exposed to an asbestos- containing Foster Wheeler product. Judge Fallon held that the Plaintiffs have not submitted evidence indicating that exposure to a Nash pump was a substantial factor in causing Mr. Mitchell's alleged injuries. Therefore, the court should grant Nash's motion for summary judgment. Judge Fallon also held that because there was absence of evidence that original Foster Wheeler components remained on the Foster Wheeler boilers on which Mr. Mitchell worked, or that replacement components were manufactured by Foster Wheeler, the Plaintiffs cannot support the assertion that exposure to Foster Wheeler boilers was a substantial factor in causing Mr. Mitchell's lung cancer. Moreover, the court recommends that summary judgment based on the government contractor defense is not warranted. However, Foster Wheeler is, nonetheless, entitled to summary judgment based upon lack of causation under maritime law, the judge said. A full-text copy of the Report and Recommendation dated September 16, 2016 is available at https://is.gd/qJM0hT from Leagle.com. Jimmy R. Mitchell, Plaintiff, is represented by Allen Dale Bowers, II, Esq. -- Law Office of A. Dale Bowers. Connie Mitchell, Plaintiff, is represented by Allen Dale Bowers, II, Law Office of A. Dale Bowers. Atwood & Morrill Co., Defendant, is represented by Eric Scott Thompson, Esq. -- ethompson@fandpnet.com -- Franklin & Prokopik & Paul D. Sunshine, Esq. -- psunshine@mklaw.us.com -- McGivney & Kluger, P.C.. Carrier Corporation, Defendant, is represented by Armand J. Della Porta, Jr., Esq. -- ajdellaporta@mdwcg.com -- Marshall, Dennehey, Warner, Coleman & Goggin & Jessica Lee Tyler, Esq. -- Marshall, Dennehey, Warner, Coleman & Goggin. Foster Wheeler LLC, Defendant, is represented by Beth E. Valocchi, Esq. -- bvalocchi@swartzcampbell.com -- Swartz Campbell LLC, Allison L. Texter, Esq. -- atexter@swartzcampbell.com -- Swartz Campbell LLC & Shawn Edward Martyniak, Esq. -- smartyniak@swartzcampbell.com -- Swartz Campbell LLC. Goulds Pumps, Inc., Defendant, is represented by Kelly A. Costello, Esq. -- kelly.costello@morganlewis.com -- Morgan Lewis & Bockius LLP. Nash Engineering Company, Defendant, is represented by Eric Scott Thompson, Franklin & Prokopik & Paul D. Sunshine, McGivney & Kluger, P.C. ASBESTOS UPDATE: PCS' Bid to Dismiss "Richardson" Partially OK'd ---------------------------------------------------------------- In the case captioned JAMES NORMAN RICHARDSON, Plaintiff, v. PCS PHOSPHATE COMPANY, INC. (formerly known as AQUITANE, formerly known as TEXAS GULF) and BROADSPIRE SERVICES, INC., Defendants, Civil Action No. 3:16-cv-00068-GCM (W.D.N.C.), Judge Graham C. Mullen of the United States District Court for the Western District of North Carolina, Charlotte Division, granted the Defendants PCS Phosphate Company Inc.'s and Broadspire Services, Inc.'s Motions to Dismiss in part and denied in part, and dismissed with prejudice the Plaintiff's claim for Unjust Enrichment. Richardson initiated this Complaint on February 9, 2016, alleging that the Defendants have not promptly paid for the medical treatment of asbestos-related conditions through Richardson's workers' compensation claim, including the treatment paid for by Medicare and Richardson's Medicare supplemental insurance plan. Richardson's Complaint alleges: (1) Medicare Private Right of Action under 42 U.S.C. Sections 1395y(b)(3)(a); (2) breach of contract; (3) unfair and deceptive trade practices; and (4) unjust enrichment. Defendants move to dismiss the Complaint for lack of subject matter jurisdiction and failure to state a claim. The Defendant contends that because the Plaintiff has asserted a breach of contract claim, he may not sue for unjust enrichment. The Plaintiff's claim for unjust enrichment expressly incorporates by reference all of the allegations alleging the existence of an express contract. It appears to the Court at this point in the litigation that there are factual issues as to when the "demonstrated responsibility" arose, and whether the obligation was in fact paid in full. Accordingly, at this point, the Court cannot conclude that this action is moot, Judge Mullen said. The Plaintiff's Fourth Cause of Action alleges a claim for unjust enrichment. Judge Mullen pointed out that "In order to prevail on a claim for unjust enrichment, a plaintiff must prove that (1) it conferred a benefit on the defendant, (2) the benefit was not conferred officiously or gratuitously, (3) the benefit is measurable, and (4) the defendant consciously accepted the benefit." Under North Carolina law, "[a]n unjust enrichment claim is available only in the absence of an express contract between the parties," the judge further pointed out. The Defendant contends that because the Plaintiff has asserted a breach of contract claim, he may not sue for unjust enrichment. The Plaintiff's claim for unjust enrichment expressly incorporates by reference all of the allegations alleging the existence of an express contract, the judge noted. Accordingly, Plaintiff's claim for unjust enrichment must be dismissed, Judge Mullen concluded. A full-text copy of the Order dated September 9, 2016 is available at https://is.gd/Tn1yNU from Leagle.com. James Norman Richardson, Plaintiff, is represented by Michael B. Pross, Esq. -- Wallace & Graham. James Norman Richardson, Plaintiff, is represented by Vernon Rollins Sumwalt, Esq. -- vernon@sumwaltlaw.com -- Sumwalt Law Firm. PCS Phosphate Company, Inc., Defendant, is represented by S. McKinley Gray, III, Esq. -- smg@wardandsmith.com -- Ward and Smith & William A. Oden, III, Esq. -- wao@wardandsmith.com -- Ward and Smith P.A.. Broadspire Services, Inc., Defendant, is represented by Jon A. Berkelhammer, Esq. -- jon.berkelhammer@elliswinters.com -- Ellis & Winters LLP. ASBESTOS UPDATE: Cedarcroft Wins Summary Judgment in "Umphrey" -------------------------------------------------------------- In the case captioned RALPH E. UMPHREY, Plaintiff, v. CEDARCROFT HOME INC., et al., Defendants, Case No. 3:15-cv-01094 (M.D. Tenn.), Magistrate Judge E. Clifton Knowles of the United States District Court for the Middle District of Tennessee, Nashville Division, granted the instant Motion for Summary Judgment filed by Defendants Cedarcroft Home Inc., Peggy Zide, T.A. Bryan, and John Bryan and dismissed the Plaintiff's claims against the Cedarcroft Defendants. The Plaintiff filed this pro se, in forma pauperis action alleging that the Defendants committed perjury and fraud to the Social Security Administration, and that they had asbestos and formaldehyde in their main building, resulting in personal injury to him. The Plaintiff seeks $777,000.00 for detriment of character and damages due to Asbestos and Phamyldihide. In their motion for summary judgment, the Cedarcroft Defendants argued that they are entitled to Summary Judgment because the undisputed facts show that the Plaintiff was not exposed to asbestos or formaldehyde when he resided at Cedarcroft's facility, and that the Plaintiff personally authorized Cedarcroft to receive his Social Security benefits while he was a resident at Cedarcroft; thus, Cedarcroft did not commit any fraud when it submitted a form to the Social Security Administration that Plaintiff expressly executed. Magistrate Knowles held that although the Plaintiff avers that he was exposed to asbestos and formaldehyde during his residency at Cedarcroft, the undisputed facts establish that: (1) Cedarcroft completed its asbestos remediation work in 2005, prior to the Plaintiff's residency; (2) TOSHA inspected the premises and concluded that no other asbestos remediation work was required; (3) no remediation work was performed when the Plaintiff was a resident at Cedarcroft; and (4) Cedarcroft has never maintained or stored any formaldehyde or formaldehyde products on its premises. Accordingly, it is undisputed that the Plaintiff was not exposed to either asbestos and formaldehyde during his residency at Cedarcroft, and Cedarcroft Defendants are entitled to a judgment as a matter of law on this claim, the magistrate said. A full-text copy of the Report and Recommendation dated August 22, 2016, is available at https://is.gd/6QStqA from Leagle.com. Ralph E. Umphrey, Plaintiff, Pro Se. Cedarcroft Homes Incorporated, Defendant, is represented by Tricia T. Olson, Esq. -- Adams and Reese LLP & Rocklan W. King, III, Esq. -- rocky.king@arlaw.com -- Adams and Reese LLP. Peggy Zide, Defendant, is represented by Tricia T. Olson, Adams and Reese LLP & Rocklan W. King, III, Adams and Reese LLP. Aleks Osipchuk, Defendant, is represented by F. Laurens Brock, Esq. -- larry.brock@arlaw.com -- Adams and Reese LLP & Tricia T. Olson, Adams and Reese LLP. J. A. Bryan, Defendant, is represented by Tricia T. Olson, Adams and Reese LLP & Rocklan W. King, III, Adams and Reese LLP. Thomas Bryan, Defendant, is represented by Tricia T. Olson, Adams and Reese LLP & Rocklan W. King, III, Adams and Reese LLP. ASBESTOS UPDATE: Court Remands "Bozeman" to La. State Court ----------------------------------------------------------- Judge Ivan L.R. Lemelle of the United States District Court for the Eastern District of Louisiana granted William Gregory Bozeman's Emergency Motion to Remand the case captioned WILLIAM GREGORY BOZEMAN, v. WYETH HOLDINGS CORPORATION, ET AL,Civil Action No. 16-14606 (E.D. La.), to the Civil District Court for the Parish of Orleans. This case arises out of Plaintiff's alleged exposure to asbestos and asbestos-containing products, which purportedly caused him to contract malignant mesothelioma. Bozeman, a citizen of Louisiana, worked for Arizona Chemical Company, later known as International Paper Company, from 1975 to 1981 and 1981 to 1999. During those years, he worked for International Paper in Louisiana and was repeatedly exposed to asbestos. He also claims that he was exposed to asbestos secondarily due to asbestos fibers brought home on the clothes and person of his father, William H. Bozeman, from approximately 1956 to the late 1970s as a result of his father's work at Arizona Chemical Company. Bozeman filed suit in Orleans Parish CDC on October 29, 2015 against a number of defendants. Bozeman filed the instant motion after Defendant Wyeth Holding Company, formerly known as American Cyanamid Company removed the case from Civil District Court for the Parish of Orleans on the eve of trial. According to Judge Lemelle, the Defendant submits three pieces of evidence in an attempt to negate the possibility of recovery against Taylor: the deposition testimony of Plaintiff, the deposition testimony of three of his co-workers, and Plaintiff's Social Security Earnings Report. According to Cyanamid, this evidence shows that the Plaintiff and his co-workers had no knowledge of Taylor and that the Plaintiff never worked for Taylor. Even assuming the evidence does support such conclusions, it still does not negate the possibility of the Plaintiff's recovery against Taylor, Judge Lemelle said. The Plaintiff contends that Taylor supplied Cyanamid and International Paper facilities throughout Louisiana with asbestos- containing insulation and other asbestos related products during the relevant period in which the Plaintiff and/or his father worked for International Paper. Judge Lemelle noted that none of the evidence submitted by the Defendant precludes the Plaintiff's chance of recovery based on these allegations. The fact that the Plaintiff and his coworkers did not know the name of a potential supplier is not convincing evidence as to whether that supplier actually provided the Plaintiff's employer with asbestos- containing products at a time and place where he was working with, and exposed to, such products, the judge said. For the same reason, the Plaintiff's Social Security Earnings Report is also unpersuasive, the judge added. Judge Lemelle pointed out that even though the burden here is on Defendant, the Plaintiff submits affirmative evidence to the contrary. The affidavit of Dwight Corcoran lends some support to the Plaintiff's allegation that Taylor supplied asbestos- containing products to the Plaintiff's employer during the relevant time period, the judge noted. While it is far from conclusive, it certainly raises a material issue of fact as to Taylor's liability, the judge said. Consequently, and considering all unchallenged factual allegations in the light most favorable to the plaintiff, Cyanamid has failed to meet its heavy burden of proving improper joinder, the judge concluded. A full-text copy of the Order dated September 14, 2016, is available at https://is.gd/kvxg8J from Leagle.com. William Gregory Bozeman, Plaintiff, is represented by Mickey P. Landry, Esq. -- mlandry@landryswarr.com -- Landry, Swarr & Cannella, LLC. William Gregory Bozeman, Plaintiff, is represented by Amanda Jones Ballay, Esq. -- aballay@landryswarr.com -- Landry, Swarr & Cannella, LLC, Barrett Naman, Esq. -- Nemeroff Law Firm, Frank J. Swarr, Esq. -- fswarr@landryswarr.com -- Landry, Swarr & Cannella, LLC, Jeffrey A. O'Connell, Esq. -- Nemeroff Law Firm, Matthew C. Clark, Esq. -- mclark@landryswarr.com --Landry, Swarr & Cannella, LLC & Philip C. Hoffman, Esq. -- phoffman@landryswarr.com -- Landry, Swarr & Cannella, LLC. Wyeth Holdings Corporation, Defendant, is represented by Erin Fury Parkinson, Esq. -- eparkinson@mcglinchey.com -- McGlinchey Stafford, PLLC, Jose L. Barro, III, Esq. -- jbarro@mcglinchey.com -- McGlinchey Stafford, PLLC & Shannon Suggs Sale, Esq. -- ssale@mcglinchey.com -- McGlinchey Stafford, PLLC. ASBESTOS UPDATE: Sister Sues Companies Over Sibling's Death ----------------------------------------------------------- Michael Abella, writing for Madison-St. Clair Record, reported that a St. Clair County woman is suing dozens of companies, alleging their negligence caused her sister to die of asbestos- related causes. Fredetta Johnson, individually and as special administrator of the estate of Diane Walton, deceased, filed a lawsuit Aug. 29 in St. Clair County Circuit Court against Aurora Pump Co., Borg-Wagner Morse TEC LLC, CBS Corp., Certain-Teed Corp., Cleaver-Brooks, et al, alleging negligence in failing to exercise reasonable care and caution for the safety of people working with asbestos-containing products. According to the complaint, on Nov. 25, 2015, Diane Walton first became aware she had developed lung cancer, an asbestos-induced disease, which was caused by defendants' negligence. The suit says due to the course and scope of her employment, which began in 1964 as a cleaner at Quality Maintenance, she was exposed to or absorbed great amounts of asbestos fibers that caused her to develop lung cancer. This ultimately led to her death Feb. 21, 2016, the lawsuit states. The plaintiff alleges the defendants negligently included asbestos in their products and failed to provide adequate warnings and instructions concerning the safe methods of working with products containing asbestos. Johnson seeks trial by jury, judgment against the defendants of more than $50,000 for economic damages and at least $50,000 to compensate for Walton's injuries. She is represented by attorneys Randy L. Gori and Barry Julian of Gori, Julian & Associates PC in Edwardsville. St. Clair County Circuit Court case number 16-L-446 ASBESTOS UPDATE: Fla. Tightens Reins on Proving Causation --------------------------------------------------------- Walter Latimer, Esq. -- walter.latimer@wilsonelser.com -- at Wilson Elser, in an article for JD Supra Business Advisor, wrote that on September 14, 2016, Florida joined a growing number of jurisdictions that reject the "any exposure" theory of proving causation. Variously known as the "cumulative exposure" or "each and every exposure" theory, it is based on a form of junk science that cannot meet the Daubert test for the admissibility of scientific evidence. According to proponents, the actual level of exposure that a claimant may have had to asbestos doesn't matter. Instead, a person's asbestos-related disease is caused by any exposure he or she may have had to an asbestos product that was above the background level naturally occurring in the environment. The "any exposure" theory can be difficult to challenge. With it, plaintiffs proceed without industrial hygienists and avoid any sort of an exposure assessment. Essentially, plaintiffs can rely on medical testimony that a disease is consistent with asbestos exposure, coupled with a bare-bones occupational history that the plaintiff performed work that is known to expose workers to any level of asbestos. Plaintiffs' experts opine that since no level of asbestos is known to be safe, any exposure is a substantial contributing cause of the disease. This approach can be applied to any disease, such as mesothelioma, asbestosis or lung cancer, since all may be caused by exposure to asbestos. The key to a successful defense is to challenge the expert opinions at the pretrial stage and preclude the jury from considering this "junk science." In Crane Co. v. DeLisle, 41 Fla. L. Weekly D2133a (September 14, 2016), that is exactly what the defendants did. Unfortunately, the trial judge allowed all of the plaintiff's experts to testify. Florida's Fourth District Court of Appeal reversed and held that such opinions could not meet the rigors of the Daubert standard, which is used by most states and became effective in Florida in 2013. In short, Florida now requires that expert testimony be based on sufficient facts and be the product of reliable principles and methods, and that those principles and methods are applied reliably to the facts of the case. This threshold must be established to the satisfaction of the trial court before the jury may hear the expert opinions. Even though it is based on the federal standard, the Daubert standard is still fairly new in Florida, so there have not yet been many published opinions interpreting it. This decision comes out strongly in support of the trial court's gatekeeper function and requires the trial courts to critically examine the bases underlying any expert opinions. It is an important decision that should have ramifications far beyond causation in asbestos cases. It can be expected to affect the admissibility of all expert opinions in every type of case, but particularly in toxic tort cases. The trial court's decision on these issues will not be overturned unless it has abused its discretion. Even with this high standard, the appellate court found the trial judge abused his discretion by allowing the testimony of plaintiffs' four experts. ASBESTOS UPDATE: EPA To Remove Asbestos From New York Factory ------------------------------------------------------------- The U.S. Environmental Protection Agency (EPA) is working to stop the potential spread of asbestos at the former Arkell and Smiths Sack Co. facility in Canajoharie, N.Y. Exposure to asbestos can lead to lung cancer and mesothelioma. "At the request of the local government, the EPA sent staff and federal resources to stop the potential release of asbestos," said EPA Regional Administrator Judith A. Enck in an EPA press release. "EPA will make sure that the buildings are taken down properly and that asbestos is not spread into the community." The EPA took building and debris samples from the site in February 2016 after originally being notified by Mayor Francis Avery of Canajoharie in November 2015 about hazardous conditions posed by the dilapidated and collapsing buildings at the complex. It was determined that the asbestos from deteriorating structures on the site has the potential to impact the surrounding area, as asbestos within the building has deteriorated to a point that it could spread beyond the property. Homes are located within 30 feet of the site. Going forward, the EPA will demolish the buildings, and asbestos- containing materials will be either removed or secured at the site and disposed of properly at permitted facilities. The air will also be monitored during operations to ensure that asbestos is not spreading. While this site is not on the Superfund National Priorities List, the Superfund program operates on the principle that polluters should pay for the cleanups rather than passing the costs to taxpayers. The EPA will seek to hold any liable parties accountable for the costs of the investigation and cleanup. The original factory, which was built in the 1860s, sits on a 2.6 acre site and contains seven interconnected buildings covering 65,000 square feet. The property was sold in 2007 before eventually falling into disrepair. The EPA is coordinating with the Village of Canajoharie and local police to minimize disruptions during its cleanup work. ASBESTOS UPDATE: Energy Future Holdings Estimation Motion Filed --------------------------------------------------------------- Brandy Chetsason, writing for Bankrupt Company News, reported that Energy Future Holdings Debtor affiliate Texas Competitive Electric Holdings Company (TCEH), together with its direct parent company, Energy Future Competitive Holdings Company (EFCH) and certain of TCEH's direct and indirect subsidiaries filed with the U.S. Bankruptcy Court a motion for entry of an order determining the maximum value for distribution purposes only of the asbestos bodily injury claims filed against the TCEH Debtors. The motion explains, "In connection with the Asbestos Bar Date, claimants filed approximately 32,000 Asbestos Proofs of Claim. Based on the Debtors' and their advisors' preliminary analysis of the Asbestos Proofs of Claim, the Debtors have preliminarily identified approximately 5,000 Asbestos Proofs of Claim asserted against the TCEH Debtors (the 'TCEH Asbestos Claims') . . . . As noted in Exhibit F to the TCEH Disclosure Statement, the Debtors anticipate that the aggregate liability of the Class C5 Claims will be approximately $145,000,000. . . . The TCEH Debtors believe that $17.2 million is a reasonable representation of the nominal maximum aggregate value of the TCEH Asbestos Claims, solely for purposes of calculating distributions to Holders of Allowed Class C4 and C5 Claims." The motion continues, "After a thorough review of the TCEH Debtors' claims history and these chapter 11 cases, Dr. Vasquez has identified a reasonable estimate of the aggregate maximum potential value of the TCEH Asbestos Claims. In the Summary Ankura Report, Dr. Vasquez examined the prepetition asbestos bodily injury claims filed against the TCEH Debtors, including settled claims, claims dismissed with zero settlement payment, and the handful of asbestos claims filed against the TCEH Debtors that were pending at the Petition Date." The Court scheduled an October 21, 2016 hearing to consider the motion, with objections due by October 6, 2016. ASBESTOS UPDATE: Machinist Family Gets New Shot at Asbestos Case ---------------------------------------------------------------- Rose Bouboushian, writing for Courthouse News Service, reported that the Ninth Circuit vacated a summary judgment award in favor of two asbestos-laden product manufacturers accused of causing a Navy machinist's lung disease and death. Robert Dale Gottschall worked as a marine machinist for the U.S. Navy, Army and the Department of Defense from 1952 to 1989. His many jobs exposed him to asbestos as the products he had to handle contained the poisonous substance, according to a lawsuit his daughter filed in 2012. Gottschall's repeated inhalation of toxic asbestos fibers at work allegedly gave him cumulative, progressive and incurable lung diseases. Following Gottschall's death in April 2010, his daughter, Kimbra Gottschall, and four other heirs -- Debra Gaball, Raymond Gottschall, Robert W. Gottschall, and Ronald Gottschall -- sued asbestos product manufacturers in San Francisco federal court. The four-count amended complaint brought claims for negligence, products liability, survival and wrongful death. But after dismissing several defendants, the court granted summary judgment to two Virginia-based defendants, General Dynamics Corp. and Huntington Ingalls Inc. The Gottschall family appealed, and the Ninth Circuit vacated the lower court's ruling Wednesday. The lower court never ruled on the defendants' essential claim that "the government made me do it" -- its government-contractor defense, according to the four-page ruling. "The defendant 'must show that it acted in compliance with reasonably precise specifications imposed on it by the United States in deciding whether to provide a warning,'" the unsigned ruling states. "Here, the parties pointed to conflicting evidence regarding the Navy's labeling policies, so summary judgment is not appropriate." The three-judge panel also wrote, "The California Supreme Court has recently made clear that the summary judgment entered by the district court, in reliance on a decision by the multi- district litigation court in Pennsylvania, was based on an incorrect understanding of California law." California's high court held that a product supplier must show that it actually and reasonably relied on a knowledgeable intermediary to warn end users in order to establish a defense under the sophisticated-intermediary doctrine, the ruling states. The Gottschall family's attorneys with Brayton Purcell in Novato, Calif., did not return requests for comment emailed Thursday. Huntington's San Francisco-based attorneys with Tucker Ellis and General Dynamics' attorneys with Brydon Hugo & Parker and Jackson Jenkins Renstrom also did not return requests for comment. ASBESTOS UPDATE: Mother, Son Launch Asbestosis Lawsuit in Tex. -------------------------------------------------------------- Gordon Gibb, writing for Lawyers and Settlements, reported that an asbestosis lawsuit has been filed against the giant multinational petroleum enterprise Chevron alleging gross negligence that led to the death of a husband and father from Texas. Plaintiff Margaret Stephens, who hails from Spring Branch in Texas, is joined by her Australian-based son Gary Stephens in her lawsuit against Chevron USA. According to the Southeast Texas Record (08/22/16), the late Charles Stephens -- who died August 8 of last year -- was an employee of Chevron. The asbestosis claim alleges that Stephens was exposed to asbestos fibers during his time at Chevron. Asbestos is a known carcinogen that is most dangerous when free- floating. While asbestos was used in construction and insulation applications for decades before its carcinogenic properties became better understood and more widely known in the 1970s, proper management of asbestos can minimize health risks. This includes allowing hidden asbestos to remain in an undisturbed state out of range from human exposure -- or, if removed, the use of proper protective gear including breathing apparatus to prevent ingestion of asbestos fibers. Exposure can lead to asbestos cancer, asbestosis and mesothelioma -- all of which can incubate and remain hidden in the body for decades before suddenly emerging into a health hazard for which there is no cure. Death can be painful -- as it is alleged to have been for Stephens. His family consulted an asbestosis lawyer in determining grounds for a lawsuit to pursue asbestos compensation. Margaret Stephens and her co-plaintiff son allege in their asbestosis disease claim that Chevron failed to warn Charles Stephens in a timely manner as to the risks and dangers inherent with exposure to asbestos, and the long-term health implications of ingesting asbestos fibers. The plaintiffs also assert Chevron did not do enough to prevent Stephens from exposure. While Margaret Stephens does not knowingly have asbestosis or similar health implications of her own, there have been cases whereby asbestos workers infect their spouses with asbestos by wearing their fiber-laden work clothes home from the workplace. This can place asbestos fibers in the family car, on household furniture or in the laundry room, where spouses often undertake their spouse's laundry. There have been cases where the spouses of asbestos workers have died from asbestosis disease without ever having set foot in the workplace. Rather, asbestos fibers have been ingested from laundering their husband's work clothes. The plaintiffs seek trial by jury, exemplary/punitive damages and legal costs. The asbestosis lawsuit is Margaret Stephens and Gary Stephens v. Chevron USA, Case No. D-198815, in Jefferson County District Court. ASBESTOS UPDATE: Retired Farmer Dies of Asbestos-Related Cancer --------------------------------------------------------------- Jon Macpherson, writing for Accrington Observer, reported that a retired farmer died of an incurable cancer linked to asbestos exposure, an inquest heard. Harry Boys, from Accrington, was admitted to Royal Blackburn Hospital on June 7 this year and lung biopsy tests later confirmed he was suffering from mesothelioma. An inquest at Blackburn Coroners Court heard how the 85-year-old's disease was 'considered to be incurable' and he was given palliative care until his death on July 1. Coroner Michael Singleton ruled that Mr Boys died of the occupational disease mesothelioma and said he has a 'very strong association with exposure to asbestos'. The inquest heard how Mr Boys, of Pinewood Drive, previously ran a pig and poultry farm in Burnley after leaving school. His son Howard Boys told the hearing that his father then worked at Associated Dairies in Accrington. Mr Singleton told the inquest that it was 'known locally' at the time that 'there were known to be buildings that had asbestos in them'. The inquest also heard how it was 'not uncommon' for farm outbuildings in the 1960s to be 'roofed in asbestos sheeting'. Concluding the inquest, Mr Singleton said: "Doctors tell me than in 95 per cent of cases of mesothelioma there is a direct link with exposure to asbestos. "There's a school of thought that says that five per cent are entirely natural. There's also a school of thought among doctors that say those five per cent simply cannot establish the link, but it would be there if there was only evidence to support that. "There is a divergence of medical opinion but within the coroners court I work on the balance of probabilities. Having heard the evidence I take the view that it is more likely than not that it was during his working life that Harry Boys was exposed to asbestos, as a consequence of which he developed the mesothelioma from which he died." Mr Singleton added: "Mesothelioma is a very aggressive, distressing and debilitating tumour. It's distressing for not only the person that has it but also for their loved ones. "The fact that the period of time between diagnosis and your father dying, no doubt at the time seemed tragically short, I have to tell you from my experience that actually it was a great blessing. "That your father would not have wished, and nor would you, to have seen him go through days and months of this most distressing condition." ASBESTOS UPDATE: Coroner Issues Warning Over Asbestos Deaths ------------------------------------------------------------ Jon Macpherson, writing for Accrington Observer, reported that a coroner has warned of a "ticking timebomb" relating to deaths connected with asbestos exposure. Michael Singleton, who is the senior coroner for Hyndburn, said the number of deaths from the incurable cancer mesothelioma is continuing to rise despite experts predicting a decline from 2014. Mr Singleton's stark warning came following the conclusion of an inquest into the death of Oswaldtwistle man Trevor Brennand who was exposed to asbestos during his working life. The 72-year-old, of Ward Avenue, died on July 11 this year after a lung biopsy found malignant mesothelioma. The inquest at Blackburn Coroners Court heard Mr Brennand had previously worked as a joiner at RP Townley Ltd in Accrington between 1959 and 1965 and used to cut asbestos sheets as an apprentice to lay girders and for bespoke fire doors. In a statement made during his life by Mr Brennand in respect of a civil claim read at the hearing, he said: "I was not exposed to asbestos every week but overall I would estimate I was exposed to asbestos for an overall period of about one month out of every year and I believe this was my most significant exposure to asbestos." Mr Brennand later worked at Shop Fitters Lancashire Ltd in Oswaldtwistle between 1965 and 1988 and was again exposed to asbestos as he used it to cover radiators and for suspended ceilings, the hearing was told. Mr Singleton ruled that Mr Brennand died from the occupational disease of mesothelioma. He told the inquest: "It seems quite remarkable that something we were doing 30, 40, or even 50 years ago, which at the time we seemed to think was some sort of miracle substance, because of its ability in terms of conductivity and insulation, that it took many decades for anyone to suddenly think 'hang on a minute, maybe there are problems here'. "I was told by those who are far more learned than I that we would see a peak of cases around 2014 followed by a gradual dropping off. "I have to say that's not my experience. In this part of the world at least, the number of cases continues to rise. "Which leads me to the conclusion that there were many people who were exposed to asbestos that are walking around like ticking time bombs. "What it makes me wonder is what are we doing now that in 20 or 30 years time we will be saying 'Really? We allowed people to do that?'" ASBESTOS UPDATE: Perth Man Dies After Asbestos Battle ----------------------------------------------------- Liam Croy, writing for The West Australian, reported that a Perth mesothelioma sufferer who won a record compensation payout from James Hardie has died a week after marrying his partner. Simon Lowes, 47, developed mesothelioma after playing as a child in asbestos waste dumped at the Castledare miniature railway. The father of two was diagnosed with mesothelioma of the stomach in 2009. He had organs removed that year and was given a 50 per cent chance of living until 2014. Mr Lowes was awarded $2.07 million in damages in 2011 after a Supreme Court Justice found James Hardie had caused or significantly contributed to his cancer. It was the highest award by a court for an asbestos claim in WA. Asbestos tailings from the James Hardie factory were dumped near the railway and Christian Brothers orphanage in the 1960s and 1970s. Evidence showed the company ignored warnings from its own safety expert and a health official to stop the dumping in the early 1970s. Mr Lowes questioned how many lives had been changed by exposure to the toxic dust. Mr Lowes married Boossakorn Ammarin on Friday, September 16. ASBESTOS UPDATE: Tribunal Affirms Prohibition Notice ---------------------------------------------------- Roise Connolly, writing for Irish Legal News, reported that an Employment Tribunal unanimously dismissed an appeal brought by an asbestos removal company, and affirmed the Prohibition Notice issued by the Health & Safety Executive for Northern Ireland (HSENI) due to the company's contravention of statutory provisions governing asbestos removal that heightened the personal injury risks at the site. Cullen Asbestos Limited, licensed by HSENI to carry out asbestos removal, sought to appeal a Prohibition Notice issued upon it on 3 December 2015. A three-member employment tribunal consisting of Employment Judge Drennan QC, Mr H Stevenson, and Mr J Law heard the appeal in August 2016. Cullen Asbestos was contracted to perform asbestos removal works at a site at 90 Ballybarnes Road, Newtownards, by the principal building contractor, Gareth Roddy, who was engaged by the owner of the site to undertake the refurbishment and extension of premises. The work included the demolition of outbuildings, all of which contained asbestos and one contained licensed asbestos. Prohibition Notice On 3 December 2015, the asbestos removal works at the site were substantially completed and were awaiting a 'four stage clearance' by the independent analyst. Dr Rowland Jones and Ms Kellie McNamara carried out an inspection of the site on this day, and issued the contested Prohibition Notice during the course of the inspection. The Prohibition Notice issued on 3 December 2015 under Article 24 of the Health & Safety at Work (Northern Ireland) Order 1978, stated that the removal of asbestos work at the site "will involve, a risk of serious personal injury" due to insufficient power to operate the main decontamination unit (DCU) and negative pressure unit (NPU) on site at time of inspection. This was in contravention of the Control of Asbestos at Work (NI) Regulations 2012 because 'the DCU could not be used whilst the NPU and ancillary equipment was switched on'. The Prohibition Notice also stated that the said activities could not be carried on unless the contraventions had been remedied, and that the measures specified in the Schedule, which formed part of the Prohibition Notice, required to be taken to remedy the said contraventions or matters. Approximately two hours after the Prohibition Notice was issued, Mr Cullen, who had not been present on the site at the time of the visit of Dr Jones and Ms McNamara, contacted Dr Jones and told him the full mains electricity had been restored to the site and assured Dr Jones this meant the DCU and NPU could both be fully working at the same time. Dr Jones accepted, at face value, what Mr Cullen had said to him and did not ask him for further details on how this had been achieved. Consequently, he did not consider it necessary for him and/or Ms McNamara to re-visit the site. Dr Jones was satisfied, in light of what he was told by Mr Cullen, the measures required to remedy the contraventions set out in the Prohibition Notice had now been complied with and work could therefore be resumed on site. Tribunal Hearing The tribunal was not satisfied with evidence provided by the main contractor of the site and consequently dismissed statements made by him. Similarly, the tribunal was critical of the inconsistent statements made by an employee of Cullen Asbestos who had been present during the inspection. In reaching its decision, "the tribunal was fully aware that it was not limited to reviewing the genuineness and/or the reasonableness of the inspector's opinion but rather was required to form its own view, paying due regard to the expertise of the inspector" as per Railtrack v Smallworld [2001] ICR 714; and to determine the risk at the relevant time of the inspection on 3 December 2015, when the Prohibition Notice was issued. The tribunal was satisfied that the inspectors' evidence regarding the absence of power to the DCU at the time of inspection was correct, and having due regard to the expertise of the inspectors, it concluded that it would have reached the same decision and issued a Prohibition Notice, when faced with a similar situation. According to the statutory provisions, the DCU is required to be fully operational before any other work begins, which includes clearance by a UKAS accredited analyst. Given the absence of power, that there was a reasonably foreseeable risk of exposure to asbestos to those on the site, given the well-known dangers and serious consequences of health of any exposure of asbestos. In the situation as found by the inspectors -- with no power to the DCU; with the analyst due to arrive to carry out the relevant four stage clearance; and three employees working in the vicinity of the enclosure -- the tribunal was satisfied there was a risk of serious personal injury. Hindsight Evidence Employees of Cullen Asbestos attempted to suggest there had been, at the time of the inspection, an alternative power supply for the DCU from the mains power supply at the farmhouse; but this was not what the inspectors saw at the time of their inspection or indeed were told to them by Mr Adams at the time of the inspection. Given the fact Mr Adams did not make any mention of this alternative power source for the DCU, the inspectors could not have known or being expected to know of it. The tribunal concluded that the subsequent evidence given at the hearing by aforementioned employees was what, 'with hindsight', should have been done rather than what was actually the position at the time of the inspection. Following Chilcott v Thermal Transfer Ltd [2009] EWHC 2086 and HM Inspector of Health & Safety v Chevron North Sea Ltd [2016] CSIH 29, 'hindsight evidence' cannot be taken into account in assessing the relevant risk and the tribunal therefore did not do so. The Prohibition Notice, dated 3 December 2015, issued by HSENI, was therefore affirmed. ASBESTOS UPDATE: Orlando Won't Be Fined for Firefighter Exposure ---------------------------------------------------------------- Beth Swantek, writing for Asbestos.com, reported that the City of Orlando and Orlando Fire Department officials will not face any fines after firefighters were exposed to asbestos during a training exercise in February. Investigators met with Orange County Environmental Protection Division (EPD) officials and decided not to impose any penalties, which could have amounted to $25,000 for each violation. Instead, fire department officials will initiate an asbestos training program they expect to implement by November. "The EPD Air Quality Management Section has asked for this training as a Supplemental Environmental Project, in lieu of paying the assessed civil penalty," EPD supervisor Renee Parker told Asbestos.com in an email statement. WFTV-Channel 9 reported a total of 42 area companies paid asbestos exposure violation fines ranging from $650 to $90,000, the news agency reported. Deputy Fire Chief Gerald Lane said the incident was a "learning experience" that "has improved the communication between the fire department and the EPD office and helped us understand our obligations." Officials Create Mandatory Asbestos Training Class Officials with both departments met to clarify guidelines and requirements to develop a mandatory asbestos awareness class for all fire department staff. The training includes asbestos notification and removal requirements as well as regulations surrounding burn training. "The master draft is finished and waiting for the EPD approval," Lane said. Parker added: "The asbestos training session the fire department will be conducting will help EPD with fulfilling our mission statement, 'Serving our community by protecting the environment through education, participation and conservation.'" Lane called the class a "win-win for everybody involved" and said the course will serve as a model and be shared with other Central Florida agencies. Firefighters Removed Asbestos Floor Tiles Without Protection Last winter, more than a dozen Orlando firefighters prepared an abandoned apartment building for a training exercise. "We were scraping on our hands and knees," said firefighter Anthony Donohoe, who explained they were removing old asbestos floor tiles from some of the rooms without wearing protective suits or respirators required by law. Supervisors told the firefighters to remove the tiles despite a pre-demolition survey obtained by the fire department from a Tampa company that identified asbestos in the building. One of the firefighters involved in the cleanup recognized the danger and called WFTV reporters. In response to the firefighter's claims, the city secured the site, submitted an asbestos survey of the property and filed a notice of Demolition or Asbestos Renovation reporting form to the EPD, Parker said. City officials hired an abatement contractor to properly remove the asbestos-tainted materials, reports show. Asbestos Fibers Cannot Be Disturbed When cracked, scraped or broken, asbestos floor tiles release thousands of lethal microscopic fibers into the air. If inhaled, these fibers permanently lodge in lung tissue. In some cases, cancerous tumors can develop around the fibers. Symptoms emerge 10-50 years after exposure. Mesothelioma ranks as one of the deadliest cancers with an average fatality rate of one year after initial diagnosis. Firefighters Face a High Risk of Asbestos Exposure Because firefighters often enter older buildings containing damaged asbestos, they face a higher risk of exposure and developing mesothelioma. The National Institute for Occupational Safety and Health conducted a study between 1987 and 2003 that showed a strong association between firefighting and asbestos-related cancers such as mesothelioma, kidney cancer, bladder cancer and leukemia. While Lane looks forward to the department's improved preparedness for asbestos incidents, he said it won't clear the department's culpability for those already exposed. "Unfortunately, it does not provide a shield for the Orlando Fire Department for any potential litigation given the asbestos-related illnesses that some firefighter may have suffered," he said. ASBESTOS UPDATE: More WorkSafe Violations for B.C. Contractor ------------------------------------------------------------- Jennifer Saltman, writing for Vancouver Sun, reported that a Lower Mainland asbestos-removal contractor said he plans to continue fighting the almost $280,000 in penalties he has been ordered to pay after being found in contravention of health and safety rules. The fines, which were imposed on Seattle Environmental Consulting Ltd. in December and are related to incidents that took place from 2013 to 2015, were upheld last month by WorkSafe B.C.'s review division. Seattle Environmental's owner, Manoj (Mike) Singh said he's planning to appeal to the Workers' Compensation Appeal Tribunal, and will take the issue to court for a judicial review if necessary. "The game's not over yet," said Singh. "They want to close me down for something that I have not done. All these fines are based on exposure (to asbestos), and to date there's no exposure." According to the WorkSafe B.C. penalties database, the fines were assessed on Dec. 4 and 7 and related to work done at sites in Vancouver, Surrey, Richmond, Burnaby, Maple Ridge and North Vancouver where the firm was conducting hazardous materials surveys, removing asbestos-containing materials from houses or issuing clearance letters. The violations are described as "repeated" and "high risk." Al Johnson, vice-president of prevention services at WorkSafe B.C., called Seattle Environmental unusual, in that when faced with escalating fines and increased enforcement, the vast majority of employers comply with orders and pay their fines. He said Singh has done neither. "For whatever reason, I would say this employer is an exception to us," Johnson said. "We're not overly pleased with his company's actions and how they carry on business." That's why WorkSafe has added Singh's company to a "focus list" and inspectors go out of their way to find Seattle Environmental's work sites and conduct inspections. Singh maintains that his sites are safe and he is following all of the rules and regulations. He claims that he is the subject of racial discrimination because he is South Asian, and has filed a lawsuit to that effect. Johnson called the allegation "absolutely false." Singh has a long history with WorkSafe B.C. Seattle Environmental Consulting Ltd. was fined $75,000 in 2013 for violations. A company where Singh was previously the manager and his son was an employee -- Skylite Building Maintenance Ltd. -- was issued more than 200 violations between 2007 and 2012 and assessed hundreds of thousands of dollars in penalties. In February, a B.C. Supreme Court judge ruled the men were not in contempt of court for violating a 2012 court order. WorkSafe B.C. appealed the decision, and Singh has filed a cross-appeal to have the 2012 order nullified and his costs covered. He has also filed a half dozen lawsuits against WorkSafe B.C., the most recent of which accuses the organization, its lawyers and its board of malicious prosecution. "They say I'm litigious, but if you're going to prosecute me for something that's not true, that's my right," Singh said. In a news release, the B.C. Insulators Union said it was "appalled" at the latest fines and called on the province to introduce mandatory licensing of asbestos removal and testing firms so that rule violators can have their operating licence suspended when breaches occur. ASBESTOS UPDATE: Suit Says Tyler Pipe Trust Not Paying Up --------------------------------------------------------- Skylar Gallop, writing for KLTV.com, reported that a 16-year-old asbestos exposure settlement against Tyler Pipe is now the focus of a federal lawsuit. Plaintiffs say the trust charged with paying out the settlement, is not paying up. In 2000, the parent company of Tyler Pipe, Swan Transportation, lost two multi-million dollar lawsuits and still faced hundreds of other unresolved claims over the exposure of asbestos and silica by their workers. Tyler resident Larry Martin says he, too, was exposed, "I had worked at the plant for 41 years... I got exposed to it to, just like a lot of these other people, they got exposed, too." In the fallout of the suits, Swan filed for bankruptcy and a trust was created to pay current and future claims. Martin says that includes him, "We are concerned about getting our funds out of this trust." This summer, a federal suit was filed by a group of other former Tyler Pipe workers, alleging the money in that trust is being misused. Martin says, "It don't [belongs] to them. It belongs to the people who've been sick and exposed." Martin says they should pay up, before it is too late, "[A] dead person can't spend [any] money. These people want they money while they living... They can't take it with them. Whatever they do have coming to them, they can't take it with them." He says the severity of affect varied among his former coworkers, "Some people went to the third stage and second stage, first stage. The ones that went to the fifth stage, they deceased. a lot of them deceased." Asbestos was not the only problem Martin says he witnessed while punching the clock at Tyler Pipe, "You can write a book about what's happened in the last 40 years out there... A lot of people got hurt, a lot of people got injured, a lot of people got killed... I've seen it all at that plant." We reached out to attorneys of all parties involved in this latest federal suit. They either didn't call back or declined comment. ASBESTOS UPDATE: Children in Tongan Hospital Inhaling Asbestos -------------------------------------------------------------- RadioNZ.com reported that several patients at the paediatric ward of a hospital in Tonga's Vava'u islands are suffering from health issues due to the inhalation of asbestos. Radio Tonga reports the toxic chemical is contained within roofing materials of the Prince Wellington Ngu hospital. Chief Medical Superintendent John Lee Taione said there is evidence that several children are being affected, because of exposure to asbestos from the leaking roof after heavy rain. Dr Taione said asbestos can cause lung cancer. Government spokesman Paula Ma'u said a New Zealand company will be in Tonga next month to remove all asbestos from the hospital. Dr Taione said the removal of the roof will have to be conducted one room at a time as there is no place for patients to be evacuated to. He said if people need medical treatment, staff may have to conduct treatment in patients' homes. ASBESTOS UPDATE: Take-Home Case Ruling Could Have Ripple Effect --------------------------------------------------------------- Dennis J. Dobbels, Esq. -- ddobbels@polsinelli.com -- and Luke J. Mangan, Esq. -- lmangan@polsinelli.com -- at Polsinnelli, in an article for The National Law Review, wrote that companies facing "take-home" asbestos or other toxic tort exposure claims in Arizona, or in other jurisdictions applying Arizona law, now have a new case to cite in dispositive motions. With the Sept. 20 Arizona Court of Appeals decision in Quiroz v. Alcoa, Inc., Arizona recently joined the list of states that have refused to allow claims for "take-home" asbestos exposures. In the ruling, the Court of Appeals affirmed a trial court's ruling granting a defendant's Motion for Summary Judgment in a case in which plaintiffs alleged their decedent contracted mesothelioma as a result of exposure to asbestos via his father's work at defendant's factory. Plaintiffs claimed decedent's father brought asbestos dust home on his clothing after working with asbestos-containing products at defendant's factory and that this "take-home" exposure caused decedent's mesothelioma. In a case of first impression in Arizona, the Court found that a premises owner owes no duty to the child of an employee in such "take-home" asbestos exposure cases. In considering the issue, the Court distinguished Arizona law from other states, in that Arizona does not consider foreseeability of injury in determining whether a defendant owes a plaintiff a duty of care. The Court likewise declined to apply the Restatement (Second and Third) of Torts, Sections 371 and 54 respectively, finding that such application would "substantially change Arizona's long-standing conceptual approach to negligence law by effectively eliminating duty as one of the require elements of a negligence claim . . . " Id. at 5.. The Court also rejected Plaintiff's argument that finding no duty in "take-home" cases would violate public policy considerations. In doing so, the Court expressed concern over the potential for limitless liability for defendants, stating: We share this concern because, as noted above, Appellants offer no way to limit the duty they seek either to employees' family members or to asbestos exposure. Absent these constraints, any company that made or used a potentially hazardous substance could be liable to anyone who ever came into contact with an employee who arguably could have carried said hazardous substance off-site. Such a dramatic expansion of liability would not be compatible with public policy. Id. at 13-14 (internal citations omitted). While Quiroz addressed "take-home" exposure with respect to a premises owner and is silent as to claims against product manufacturers, the Court's reasoning finding no duty exists should arguably apply to both types of defendants. Other state courts have likewise indicated, to varying degrees, that no duty to warn exists for "take-home" exposures. This majority trend includes decisions from Georgia, New York, Michigan, Texas, Maryland, Iowa, Ohio and Delaware. California appellate courts are split, though the California Supreme Court is expected to rule on the issue soon. An Illinois appellate court has ruled that an employer owed no duty to warn of "take-home" exposures before 1964, when the first study on the issue was published. See Holmes v. Pneumo Abex, et al., 55 N.E.2d 1173 (Ill.App. 4th 2011). ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2016. All rights reserved. ISSN 1525-2272. 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