/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/161118.mbx C L A S S A C T I O N R E P O R T E R Friday, November 18, 2016, Vol. 18, No. 231 Headlines 1220 MANAGEMENT GROUP: "Osorio" Suit Seeks Overtime Pay Recovery ACME DELIVERY: "Rager" Sues to Recover Overtime Pay, Damages AIU ONLINE: Hodge Moves to Certify Class and Subclass Under TCPA ALASKA: High Court Tosses Breach of Contract Claims in PERS Case AM (2015) LLC: Status Hearing in "Zeidel" Suit Reset to Dec. 15 AMAZON.COM LLC: "Morales" Labor Suit Removed to N.D. Cal. CAPITAL CONTRACTORS: Asks Court to Deny Sanchez's Bid to Certify CBE GROUP: Olbinski Seeks Certification of Class Under Damasco DALLAS, TX: Faces Class Action Over Bus Camera Violations DAMGAARD LANDSCAPE: Wins Prelim. OK to Settle "Corona" Class Suit DAVID'S BURRITO: "Rodriguez" Suit Seeks to Recover Overtime Pay DISCOVER FINANCIAL: Hearing in "Gingerich" Suit Set for Nov. 28 DL POOL SERVICE: Court Orders Compagnone to Revise Class Notice DOLLAR THRIFTY: Court Denies McKinnon's Bid to Certify Class EAGLE MARINE: Seeks to Certify "O'Neal" Suit as Collective Action FELT & LUKES: Certification of Class Sought in "Bentley" Suit FLOWERS FOODS: Class of Route Drivers Certified in "Neff" Suit FORT ZUMWALT: Certification of Class Sought in Videotaping Suit GRAPER LAW: Jahr Moves for Certification of Class Under Damasco GUARDIAN HEATING: Muir Seeks Class Certification Under FLSA HONEYWELL SAFETY: McKnight Seeks Class Certification Under FLSA KEANE FRAC: "Meals" Suit Seeks Unpaid Wages and Bonuses KING LIVE POULTRY: "Nunez" Sues Over Overtime, Spread of Hours Pay LEAL MEDICAL: "Morgan" Suit Seeks Overtime Pay, Reimbursements LIFESTATION INC: Dolemba Seeks to Certify TCPA and ICFA Classes LOS ANGELES, CA: Court Wants More Filings in "Chua" Class Suit LOUISIANA, USA: Davis Seeks Certification of Prisoners Class MAGNUSON HOTELS: Certification of Class Sought in Gorss Suit MIDLAND CREDIT: "Sperber" Sues Over Deceptive Collection Letters MILSTEAD & ASSOCIATES: Parties Move to Settle "Fequiere" Suit NANOOSH MADISON: "Varela" Sues Over Unpaid Minimum Wage PHH CORP: Obtains Favorable Ruling in CFPB RESPA Case PREMIER HEALTHCARE: Criddell Seeks Certification of Three Classes PRIORITY ENERGY: Court Grants Matthews' Bid to Certify Class PRODUCTION TESTING: Class of Operators Certified in "Brown" Suit Q CLUB HOTEL: Dear Wants to Certify Residential Unit Owners Class RECEIVABLES PERFORMANCE: Rivera Seeks Certification of Class RHD JR INC: Mechanics Class Certification Sought in "Jordan" Suit ROMERO BROTHERS: "Rodriguez" Action Seeks Unpaid Wages SAMSUNG ELECTRONICS: "Schmidt" Sues Over Defective Smartphone SANTA FE, TX: Cert. of Class and Subclass Sought in "West" Suit SAW ENTERTAINMENT: Hughes Seeks to Certify Exotic Dancers Class SCHNEIDER PUBLISHING: Gorss Moves for Certification of Class SPEEDPAY INC: Ct. Orders Pincus to File Redacted Motion to Certify SUNTRUST MORTGAGE: Feb. 6 Settlement Final Approval Hearing Set TAYLOR SMITH: Law Seeks Certification of Driver Helpers Class TAYLOR SMITH: Ntuk Seeks to Certify Class of Onsite Supervisors TWIN RIVERS: Certification of Two Classes Sought in "Minor" Suit UGL: Class Action Over Ichthys LNG Project Ongoing UNITED STATES: Tea Party Group Gets Favorable Ruling in IRS Case VERIZON INC: Says FCC Must Not Prohibit Arbitration Clauses VIRGIN AMERICA: Class of Attendants Certified in "Bernstein" Suit VOLKSWAGEN AG: Defeat Device Software Discovered in Audi Models YASSER AWAAD: Faces Class Action Over False Epilepsy Diagnoses ZEEKREWARDS: Seeks Court Approval of Claims Filing Documentation * California Supreme Court's Recent Rulings Not Business-Friendly * CPSC May Need to Review Product Safety Inspection Practices * DOL's New Overtime Rule to Impact Companies, Non-Profits * Federal Agencies Avoid Use of Formal Class Action Procedures * New Jersey's Consumer Contract Statute to Impact Businesses * Obama's BICE Rule to Impact Investors and Investment Advisers * SCOTUS Set to Tackle Issues on Mandatory Arbitration Clauses Asbestos Litigation ASBESTOS UPDATE: 3 Attys OK'd Pro Hac Vice Practice in "Waugh" ASBESTOS UPDATE: Crane Co. Has Until May to Perfect Appeal ASBESTOS UPDATE: Georgia-Pacific Junked as Defendant in "Johnson" ASBESTOS UPDATE: 3 Attys OK'd Pro Hac Vice Practice in "Hanson" ASBESTOS UPDATE: Bid for Allowance of Appeal in "Campbell" Denied ASBESTOS UPDATE: Asbestos Present in 344 Kent Schools ASBESTOS UPDATE: Over Half of Liverpool Schools May Have Asbestos ASBESTOS UPDATE: Mesothelioma Risk in Seaman Hard to Quantify ASBESTOS UPDATE: Plaintiff Hopes for New Day With New Trial ASBESTOS UPDATE: Court Awards EUR200,000 to Heirs of Worker ASBESTOS UPDATE: Asbestos Found During Stratford Highway Project ASBESTOS UPDATE: EPA Finds Asbestos in Corkman Pub Rubble ASBESTOS UPDATE: Couple Fined $21,600 for Asbestos Project ASBESTOS UPDATE: Ex-Senator Diagnosed With Mesothelioma ASBESTOS UPDATE: Claims Lodged For Asbestos Disease Pay Down ASBESTOS UPDATE: Asbestos Found on Sydney Harbour Bridge ASBESTOS UPDATE: OSHA Cites Cayuga Centers for Asbestos Removal ASBESTOS UPDATE: Asbestos Removed From Brisbane Dam ASBESTOS UPDATE: Man Steps Closer to Justice After Record Appeal ASBESTOS UPDATE: Contractor Defense May Work in Asbestos Cases ASBESTOS UPDATE: Kin of Asbestosis Victims Denied Relief ASBESTOS UPDATE: Honeywell, Ford May Access Rule 2019 Exhibits ASBESTOS UPDATE: Crane Co. Has 36,450 Asbestos Claims at Sept. 30 ASBESTOS UPDATE: Crane Co. Still Awaits Ruling in "Nelson" ASBESTOS UPDATE: Crane Co. Paid $6.6MM Judgment in "Dummitt" ASBESTOS UPDATE: Crane Co. Paid $0.2MM Judgment in "Suttner" ASBESTOS UPDATE: Pa. High Court Heard Oral Arguments in "Amato" ASBESTOS UPDATE: Damages Award in "Peraica" Cut to $4.25MM ASBESTOS UPDATE: Crane Co. Awaits Ruling in "Holdsworth" ASBESTOS UPDATE: Crane Co. May Pursue Further Appeal in "Sweberg" ASBESTOS UPDATE: Crane Co. Awaits Ruling in "DeLisle" ASBESTOS UPDATE: Crane Co. Appeals $10.8MM Judgment in "Poage" ASBESTOS UPDATE: Crane Co. Brings "Rabovsky" to Third Circuit ASBESTOS UPDATE: Crane Co. Brings "Coulbourn" to Ninth Circuit ASBESTOS UPDATE: Crane Co. Recorded $487MM Liability at Sept. 30 ASBESTOS UPDATE: Manitowoc Continues to Defend Suits at Sept. 30 ASBESTOS UPDATE: AT&T Pays Cricket-Linked Waste Disposal Penalty ASBESTOS UPDATE: CBS Faces 34,400 Asbestos Claims at Sept. 30 ASBESTOS UPDATE: Rogers Corp. Had 570 Claims at Sept. 30 ASBESTOS UPDATE: General Cable Had 322 Asbestos Cases at Sept. 30 ASBESTOS UPDATE: Suit v. Vertex Unit Remains Pending at Sept. 30 ********* 1220 MANAGEMENT GROUP: "Osorio" Suit Seeks Overtime Pay Recovery ---------------------------------------------------------------- Jose Osorio, and other similarly situated individuals, Plaintiffs, v. 1220 Management Group, LLC d/b/a Bodega Taqueria y Tequila, Justin Levine and Keith Menin, Defendants, Case No. 1:16-cv-24617 (S.D. Fla., November 4, 2016), seeks actual damages for unpaid wages and overtime compensation for hours worked in excess of forty weekly, double damages and liquidated damages and reasonable attorneys' fees and costs of suit and such other and further relief pursuant to the Fair Labor Standards Act. 1220 Management Group, LLC operates as Bodega Taqueria y Tequila, a food truck owned by Justin Levine and Keith Menin where the Plaintiff worked. Osorio claims to have been denied overtime pay. Plaintiffs are represented by: R. Martin Saenz, Esquire SAENZ & ANDERSON, PLLC 20900 NE 30th Avenue, Ste. 800 Aventura, Florida 33180 Telephone: (305) 503-5131 Facsimile: (888) 270-5549 Email: msaenz@saenzanderson.com ACME DELIVERY: "Rager" Sues to Recover Overtime Pay, Damages ------------------------------------------------------------ Weldon Rager, individually and on behalf of other similarly situated employees, Plaintiff, v. Acme Delivery, Inc. and Albert R. Dellinger, Defendants, Case No. 1:16-cv-03635 (D. Md., November 4, 2016) seeks to recover unpaid wages, liquidated damages, interest, reasonable attorneys' fees and costs under Section 16(b) of the Federal Fair Labor Standards Act of 1938 and the Maryland Wage and Hour Law, Maryland Code Annotated and Maryland Wage Payment and Collection Law. Acme Delivery Inc., is a courier service company, located in Baltimore, Maryland, transporting primarily dental supplies throughout the State of Maryland and Washington D.C. Defendants hired Plaintiff to work as a delivery driver/dispatcher. Rager claims to have been denied overtime pay. Plaintiff is represented by: George E. Swegman, Esq. Benjamin L. Davis, Esq. THE LAW OFFICES OF PETER T. NICHOLL 36 South Charles Street, Suite 1700 Baltimore, MD 21201 Phone No.: (410) 244-7005 Fax No.: (410) 244-8454 Email: gswegman@nicholllaw.com bdavis@nicholllaw.com AIU ONLINE: Hodge Moves to Certify Class and Subclass Under TCPA ---------------------------------------------------------------- Mary A. Hodge asks the Court to certify that the claims set forth in her complaint in the lawsuit entitled Mary A. Hodge Individually and on behalf of all others similarly situated v. AIU Online, LLC, an Illinois Corporation, and Career Education Corp. a Delaware Corporation, Case No. 1:16-cv-10383 (N.D. Ill.), may proceed on behalf of these class and subclass: Class: (1) All persons in the United States (2) who Defendants or some person on Defendants' behalf (3) called on their cell phone (4) using the same system that called Plaintiff (5) where the recipient did not give prior express written consent to Defendants to receive automated marketing calls (6) in the period between four years prior to the filing of this action and the date of judgment. Subclass: (1) All persons in the United States (2) who Defendants or some person on Defendants' behalf (3) called on their cell phone (4) using the same system that called Plaintiff (5) after the recipient requested Defendants not to call (6) in the period between four years prior to the filing of this action and the date of judgment. The lawsuit is brought against AIU Online and CEC for violations of the Telephone Consumer Protection Act. Ms. Hodge also asks the Court to name her as class representative, to appoint her lawyers as counsel for the classes, and allow her to file a memorandum in support of the Motion after further class discovery. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=suk4gz9g The Plaintiff is represented by: Keith J. Keogh, Esq. Donald Sawyer, Esq. KEOGH LAW, LTD. 55 West Monroe Street, Suite 3390 Chicago, IL 60603 Telephone: (312) 726-1092 Facsimile: (312) 726-1093 E-mail: Keith@KeoghLaw.com ALASKA: High Court Tosses Breach of Contract Claims in PERS Case ---------------------------------------------------------------- Craig Tuten, writing for Alaska Commons, reports that with a decision on Nov. 4, the Alaska Supreme Court at least temporarily left the door open for up to 85,000 former participants in the State's Public Employees' Retirement System (PERS) who may want to reenter PERS and restore their benefits. Peter Metcalfe, a former building maintenance worker, was hired in 1972. Mr. Metcalfe cashed out his PERS contributions in 1981, but under state law, he could have restored his PERS status by paying back his contributions plus interest. Over the succeeding 24 years, the State gradually reduced PERS benefits for new hires, creating separate benefit tiers. Finally, after errors by Mercer Consulting helped create an unfunded liability in the public retirement system of $5.7 billion, the legislature passed SB 141 during a 2005 special session with encouragement from then-Gov. Frank Murkowski. The bill eliminated the pension-style defined benefit retirement plan, replacing it with a 401(k)-style defined contribution plan under Tier IV. SB 141 also repealed the statute allowing former PERS participants to buy back into PERS, though there was a five-year grace period. The State sent a letter to former participants advising them that their window to return to PERS would close on July 1, 2010. When Mr. Metcalfe asked about his PERS status in 2012, the State told him he could not return to Tier I status. Mr. Metcalfe filed a class action suit based on Article XII section 7 of the Alaska Constitution, which reads, "Membership in employee retirement systems of the State or its political subdivisions shall constitute a contractual relationship. Accrued benefits of these systems shall not be diminished or impaired." By denying him the option to buy back into PERS under the statute as it existed when he was hired, Mr. Metcalfe argued, the State was diminishing the value of his lifetime contractual retirement benefits under Article XII section 7. "If the State makes a deal that lasts the lifetime of a public employee, the State doesn't get to argue later, 'Well, I really regret making that deal. It's too expensive,'" Metcalfe's attorney Jon Choate said during oral arguments, as reported by the Juneau Empire. "Changing health care costs are a significant concern, but they don't trump constitutional protection." But Superior Court Judge Trevor Stephens agreed with the State that Mr. Metcalfe's claim was barred by a three-year statute of limitations that took effect when the legislature passed SB 141 in 2005. Mr. Metcalfe, who filed suit in June of 2013, had argued that the clock started when the bill took full effect and his buy back option was actually repealed on July 1, 2010. The Alaska Supreme Court rejected Mr. Metcalfe's claim for breach of contract damages on Nov. 4, concluding that a proper remedy, consistent with its decision in McMullen v Bell, would be to provide a choice between remaining outside PERS or keeping the available benefits. Judge Stephens' decision on the statute of limitations was in error, the Court ruled, because the doctrine of laches -- excessive delay in seeking legal remedy -- would be the relevant time limitation based on the type of relief Mr. Metcalfe is seeking. And even laches is inapplicable because Mr. Metcalfe's claim is "prospective in nature and seeks to challenge future enforcement of a statute as constitutionally infirm." Yet the Court agreed with Stephens that Mr. Metcalfe does not have to return to State employment or rejoin PERS at a lower tier before the courts can reach a decision in his case. In Brause v State, Department of Health & Social Services, the Court noted, "The ripeness doctrine requires a plaintiff to claim that either a legal injury has been suffered or that one will be suffered in the future." [emphasis added] "Although we have rejected his claim of monetary injury, Metcalfe nonetheless has raised a claim that his asserted PERS rights have been wrongfully diminished, and he has demonstrated a need for decision: As the superior court recognized, Metcalfe and others in his position need to know their PERS status to make decisions about pursuing employment opportunities with the State," Justice Daniel Winfree wrote on Nov. 4. Justices Craig Stowers and Joel Bolger did not participate in the case, prompting the Court to avoid a decision on whether Mr. Metcalfe has a vested right in PERS, instead remanding the case to the superior court. "At the point where a former employee has withdrawn his contributions, the State and that former member have gone their separate ways," Assistant Attorney General Kevin Wakley said during oral arguments. "That contract, as far as the obligations of each side, has been fulfilled." Then-Chief Justice Dana Fabe agreed with Mr. Wakley. In a concurring opinion, Justice Fabe noted that Article XII section 7 refers to "membership" in retirement systems, but the statutory definition of a "former member" is one who has "received a total refund of the balance of the employee contribution account." Even in 1981, when Mr. Metcalfe cashed out his PERS account, statute said the term "member . . . does not include former members." Justice Fabe, who has since retired, replaced by Justice Stowers as Chief Justice, concluded Mr. Metcalfe had no claim for relief under Article XII section 7 and the case should therefore not be remanded. Under Alaska's Rules of Appellate Procedure, any two-to-one decision does not have precedential effect. Since the class that Mr. Metcalfe seeks to represent -- all former PERS members -- has not been certified, the Court worried that a split would resolve Mr. Metcalfe's claim, but leave future Courts the option to rule inconsistently for similarly-situated plaintiffs. The superior court now must collect more information to determine whether Mr. Metcalfe, and potentially the other 85,000 former PERS members who could join his suit, has a vested reinstatement right to PERS at his previous tier. AM (2015) LLC: Status Hearing in "Zeidel" Suit Reset to Dec. 15 --------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on November 3, 2016, in the case styled Freida Zeidel, et al. v. AM (2015) LLC, et al., Case No. 1:13-cv-06989 (N.D. Ill.), relating to a hearing held before the Honorable Daniel G. Martin. The minute entry states that: -- Plaintiffs' motion for class certification and Defendant's second motion for summary judgment are under advisement before the District Court; and -- Status hearing set for November 10, 2016, at 9:30 a.m., is stricken and reset to December 15, 2016, at 9:30 a.m. A copy of the Notification of Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=uXnlsnIX AMAZON.COM LLC: "Morales" Labor Suit Removed to N.D. Cal. --------------------------------------------------------- The case captioned Carlos Morales, on behalf of himself, all others similarly situated, Plaintiff, v. Amazon.com, LLC, Peach, Inc. and Does 1-50, inclusive, Defendants, Case No. RG16832863 (Cal. Sup., September 27, 2016), was removed to the U.S. District Court for the Northern District of California on November 4, 2016. Amazon.com LLC was founded in 1994 and is based in Hebron, Kentucky. Amazon.com LLC operates as a subsidiary of Amazon.com Inc. Plaintiff, a delivery driver working jointly for the Defendants, claims unpaid overtime under California Labor Laws. The Defendant is represented by: John S. Battenfeld, Esq. MORGAN, LEWIS & BOCKIUS LLP 300 South Grand Avenue, 22nd Floor Los Angeles, CA 90071-3132 Tel: (213) 612-2500 Fax: (213) 612-2501 Email: john.battenfeld@morganlewis.com - and - Christopher J. Banks, Esq. MORGAN, LEWIS & BOCKIUS LLP One Market, Spear Street Tower San Francisco, CA 94105-1596 Tel: (415) 442-1000 Fax: (415) 442-1001 Email: christopher.banks@morganlewis.com - and - Marina C. Gruber, Esq. marina.gruber@morganlewis.com MORGAN, LEWIS & BOCKIUS LLP 1400 Page Mill Road Palo Alto, CA 94304-1124 Tel: (650) 843-4000 Fax: (650) 843-4001 CAPITAL CONTRACTORS: Asks Court to Deny Sanchez's Bid to Certify ---------------------------------------------------------------- The Defendant in the lawsuit entitled LILLIANA SANCHEZ, YOLANDA CAMEY, JUAN CARLOS RAMIREZ, individually and on behalf of all others similarly situated v. CAPITAL CONTRACTORS INC., a New York Corporation, dba CAPITAL BUILDING MAINTENANCE SERVICES INC., Case No. 3:14-cv-02622-MMC (N.D. Cal.), asks the Court to deny the Plaintiffs' motion class certification. Lilliana Sanchez, Yolanda Camey and Juan Carlos Ramirez are all current and former owners and operators of janitorial services business entities, and it was their businesses -- not themselves as individuals -- that formerly contracted with Capital in a legitimate, arm's-length contractor/subcontractor relationship, the Defendant tells the Court. Notwithstanding this undisputed fact, the Defendant argues, the Plaintiffs bring, in their individual capacities, various claims against Capital for alleged wage and hour violations including unpaid overtime, meal and rest breaks, and minimum wages, among others -- all based on a theory that they were somehow Capital employees. The Defendant contends that the Plaintiffs attempt to bring these claims as a class action, seeking to represent over 200 other business owners whose companies also contracted with Capital throughout the state of California since April 25, 2010. The Defendant argues that certification of the proposed class is improper because the named Plaintiffs do not have valid individual claims, their personal interests conflict with existing members of the putative class, and their character and credibility will become a focus at trial, eroding the interests of other putative class members. The Court will commence a hearing on December 16, 2016, at 9:00 a.m., to consider the Motion. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=X20ck7lk The Defendant is represented by: Christopher Ward, Esq. Krista M. Cabrera, Esq. Archana R. Acharya, Esq. FOLEY & LARDNER LLP 555 South Flower Street, Suite 3500 Los Angeles, CA 90071-2411 Telephone: (213) 972-4500 Facsimile: (213) 486-0065 E-mail: cward@foley.com kcabrera@foley.com aacharya@foley.com - and - Kamran Mirrafati, Esq. Yesenia Garcia Perez, Esq. FOLEY & LARDNER LLP 555 California Street, Suite 1700 San Francisco, CA 94104-1520 Telephone: (415) 434-4484 Facsimile: (415) 434-4507 E-mail: kmirrafati@foley.com ygarciaperez@foley.com CBE GROUP: Olbinski Seeks Certification of Class Under Damasco -------------------------------------------------------------- Helene Olbinski moves the Court to certify the class described in the lawsuit entitled HELENE OLBINSKI, Individually and on Behalf of All Others Similarly Situated v. THE CBE GROUP, INC., Case No. 2:16-cv-01475-WED (E.D. Wisc.), and further asks the Court to both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Damasco and decisions like it imposed significant burdens on the Court and on Plaintiff's Counsel, the Plaintiff asserts, citing Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence, the Plaintiff states. The Plaintiff asserts that the Plaintiff is obligated to move for class certification to protect the interests of the putative class. As the Motion is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiff contends. The Plaintiff also asks to be appointed as class representative and further asks the Court to appoint Ademi & O'Reilly, LLP as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=IUCssVUG The Plaintiffs are represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com dmorris@ademilaw.com DALLAS, TX: Faces Class Action Over Bus Camera Violations --------------------------------------------------------- Jamie Stengle, writing for Claims Journal, reports that a lawsuit claims two Texas cities are illegally using cameras to ticket drivers accused of ignoring stop signs that extend from school buses as students get on and off the vehicles, arguing that among other issues, the state Legislature hasn't authorized cities to take such action. "To me, it's just beyond belief that cities would plunge down this path and spend the taxpayers' money on these systems -- and these systems are very expensive -- with so many red flags along the way," said LeDouglas Johnson, the attorney who recently filed the lawsuit in October in Dallas County. Noting that state law already makes ignoring a school bus stop sign a criminal offense, the lawsuit argues that Dallas and Carrollton "took conduct that is a crime" and "devised a civil penalty in an attempt to transform it into a civil matter." The lawsuit says local authorities can't enact an ordinance that conflicts with state law without authorization, and adds that the ordinances violate rights guaranteed in the Texas Constitution. However, some attorneys say such ordinances don't conflict with state law and guarantees of such constitutional rights don't apply to civil penalties. The lawsuit was filed on behalf of five motorists and asks for class-action status on behalf of all those who have gotten the $300 tickets since Dallas and Carrollton enacted their ordinances in 2012 and 2014, respectively. The lawsuit was filed against the two cities and Dallas County Schools, which is the governmental entity that operates the ticket programs in those cities and 13 others across Texas. About 110,000 tickets have been issued in Dallas and Carrollton resulting in about $29 million in fines, according to Dallas County Schools. Mr. Johnson said a ruling in his clients' favor could cause other Texas cities to abandon such programs for fear of being sued. The lawsuit says that since 2007, four bills proposed in the Legislature seeking to give local authorities authorization to issue civil penalties for such violations didn't pass. State law makes passing a school bus with its stop sign extended a misdemeanor punishable by a fine of $500 to $1,250. Mick McKamie, a city attorney for Amarillo and Alpine, neither of which have such ordinances, said state law doesn't prohibit cities from issuing such civil penalties. He says the plaintiffs will have "a big hill to climb" in their argument that there's a conflict. The lawsuit also says the ordinances violate various constitutional rights, including the right to a jury trial and the right against self-incrimination by presuming the registered owner was driving. But Mr. McKamie said there's no guarantee of a jury trial related to civil proceedings and that the right of self- incrimination only applies to criminal matters where jail is possible. Melissa Hamilton, a visiting criminal law scholar at the University of Houston Law Center, said the lawsuit tries to argue that the violations are "civil in name only." "They'll have to convince the judge that a civil violation is akin to criminal, but it's really not," she said. But attorney Russell Bowman sees merit in the lawsuit. A judge ruled in his favor this summer in a lawsuit over a red light camera ticket he'd received from the Dallas suburb of Richardson. And Mr. Bowman notes that Johnson's lawsuit alleges the same constitutional violations that he did. "Those ordinances (regarding school bus camera tickets) have the same constitutional problems as what was involved in my case and then it's got the even bigger problem that there's no state law that would even allow the city to do that," Bowman said. The judge found Bowman wasn't liable for the ticket and ordered Richardson to pay him $27,500 in legal fees. The city is appealing. Dallas County Schools board president Larry Duncan said he couldn't comment on the pending litigation. But he said the school bus ticket programs improve safety, noting that from the first year to the third of Dallas' program, violations decreased by 37 percent. Carrollton officials declined comment, saying they hadn't been served with the lawsuit. Dallas officials didn't respond to a request for comment. Charlie Hood, executive director of the National Association of State Directors of Pupil Transportation Services, said the tickets are among the tools that help prevent school bus stop sign violations. He said another is training bus drivers to stop in a way that they're less likely to be illegally passed. It's a complex issue, though, Mr.Hood said. The "main message" is that such tickets "have value but there's way more to it than that," he said. DAMGAARD LANDSCAPE: Wins Prelim. OK to Settle "Corona" Class Suit ----------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on November 3, 2016, in the case titled Oscar Corona, et al. v. Damgaard Landscape Management, Case No. 1:16-cv-00819 (N.D. Ill.), relating to a hearing held before the Honorable Jorge L. Alonso. The minute entry states that: -- Parties' agreed motion for preliminary approval of the parties' joint stipulation and agreement to settle class action claims and for approval of class certification is granted; and -- Fairness hearing is set for March 28, 2017, at 11:00 a.m. A copy of the Notification of Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=DIioV2xe DAVID'S BURRITO: "Rodriguez" Suit Seeks to Recover Overtime Pay --------------------------------------------------------------- Adrian Rodriguez and Alfredo Gonzalez Trejo, individually and on behalf of other employees similarly situated, Plaintiffs v. David's Burrito Express LLC, and David Rodriguez, individually, Defendant, Case No. 1:16-cv-10349 (N.D. Ill., November 4, 2016), seeks overtime wages due, statutory damages, reasonable attorneys' fees and costs of this action and such other and further relief under the Fair Labor Standards Act and the Illinois Minimum Wage Law. Defendants operate a restaurant, David's Burrito Express, located at 870 N Roselle Rd, Hoffman Estates, Illinois where the Plaintiffs worked. They claim to have been denied overtime pay. Plaintiff is represented by: Valentin T. Narvaez, Esq. CONSUMER LAW GROUP, LLC 6232 N. Pulaski, Suite 200 Chicago, IL 60646 Direct: 312-878-1302 Email: vnarvaez@yourclg.com DISCOVER FINANCIAL: Hearing in "Gingerich" Suit Set for Nov. 28 --------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on November 7, 2016, in the case titled Rachel Gingerich v. Discover Financial Services, Inc., Case No. 1:16-cv-10226 (N.D. Ill.), relating to a hearing held before the Honorable Sharon Johnson Coleman. The minute entry states that: -- Status hearing is set for November 28, 2016, at 9:00 a.m.; and -- Plaintiff's motion to certify class is entered and continued until November 28, 2016. A copy of the Notification of Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=YF1vzucV DL POOL SERVICE: Court Orders Compagnone to Revise Class Notice --------------------------------------------------------------- The Hon. John E. Steele entered an opinion and order in the lawsuit entitled BRITTANY COMPAGNONE, on behalf of herself and those similarly situated v. DL POOL SERVICE, LLC, a Florida Limited Liability Company, Case No. 2:15-cv-00647-UA-MRM (M.D. Fla.), relating to the Plaintiff's motion for an order permitting supervised notice to potential opt-in plaintiffs and conditional certification as a collective action. The Court granted the Motion to the extent that the case is conditionally certified as a collective action, but the request to permit notice is denied without prejudice pending the Court's review of a revised proposed notice to be filed by the Plaintiff on or before November 21, 2016. The Defendant will file any objections to the revised proposed notice by December 1, 2016. Plaintiff Brittany Compagnone has filed a one-count Amended Complaint against her former employer, DL Pool Service, LLC, on her own behalf and on behalf of other similarly situated individuals, for overtime compensation relief under the Fair Labor Standards Act. In the Motion, she seeks to facilitate notice to all current and former service technicians, who worked for the Defendant any time within the last three years, and who were subjected to Defendant's illegal practice of not paying full and proper overtime compensation for all overtime hours worked. A copy of the Opinion and Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=84x8lq7G DOLLAR THRIFTY: Court Denies McKinnon's Bid to Certify Class ------------------------------------------------------------ The Hon. Yvonne Gonzalez Rogers grants the Plaintiffs' motion to allow Roger Tien and Jaime Gavilan Cabello to intervene permissively in the litigation, and the Plaintiffs' motion to file a fifth amended complaint in the lawsuit captioned SANDRA MCKINNON, ET AL. v. DOLLAR THRIFTY AUTOMOTIVE GROUP, INC., ET AL., Case No. 4:12-cv-04457-YGR (N.D. Cal.). The Court denies with prejudice the Plaintiffs' motion for class certification and denies as moot the Defendants' motion to exclude the opinions of the Plaintiffs' expert Dr. Donald Lichtenstein. The gravamen of the case concerns the Defendants' alleged practice of selling collision or liability damage waiver policies ("LDW") in connection with vehicle rentals to the Plaintiffs without providing adequate notice (through signage, oral statements, and otherwise) that the coverage might be duplicative of other policies (e.g., through auto insurance or credit card protection plans) already held by the Plaintiffs. The Plaintiffs has sought to certify this class: All persons who reside in the United States who, since January 1, 2009, obtained a rental car from a Dollar or Thrifty rental car location operated by defendants at one of the following locations in the State of California: Los Angeles International Airport, Lindbergh Field (San Diego) International Airport, or John Wayne (Orange County) International Airport, where the location failed to post signage regarding Loss Damage Waiver ("LDW") in the manner required by Cal. Civ. Code Section 1936(g)(1), and who were charged for LDW, excluding those who (a) were part of a pre-paid tour reservation or approved LDW as part of a membership program; (b) made a claim and received full coverage under LDW; and (c) received a full refund. The Court sets a case management conference for December 12, 2016, at 2:00 p.m. The Court also rules that by December 5, 2016, the parties will file a case management statement consistent with the requirements of the Local Rules and the Court's Standing Order in Civil Cases. This Order terminates Docket Numbers 168, 169, and 188. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=o0hMJ974 EAGLE MARINE: Seeks to Certify "O'Neal" Suit as Collective Action ----------------------------------------------------------------- The parties jointly ask the Court to conditionally certify the case entitled IVAN O'NEAL, on behalf of himself and all other similarly situated persons v. EAGLE MARINE CONTRACTING, LLC, d/b/a EM CONTRACTING and d/b/a EM CONTRACTING, LLC, RAPHAEL G. BURCHFIELD, Case No. 1:16-cv-00401-KD-B (S.D. Ala.), as a collective action and approve notice to the Plaintiffs. Plaintiff Ivan O'Neal filed the lawsuit on behalf of himself and similarly situated persons on August 1, 2016, claiming that he and similarly situated employees were not properly paid under the Fair Labor Standards Act. Specifically, Mr. O'Neal and others were paid a "per diem" in addition to hourly wages. The per diem was not included in the calculation of employees' regular rate for overtime purposes. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=j9F4kY6f The Plaintiff is represented by: Ian D. Rosenthal, Esq. ROSENTHAL PARKS, LLP P. O. Box 1924 Mobile, AL 36633 Telephone: (251) 338-0949 E-mail: idr@rosenthalparks.com The Defendants are represented by: Arnold W. Umbach III, Esq. Breanna H. Young, Esq. STARNES DAVIS FLORIE LLP 100 Brookwood Place, Seventh Floor Birmingham, AL 35209 Telephone: (205) 868-6000 E-mail: tumbach@starneslaw.com byoung@starneslaw.com FELT & LUKES: Certification of Class Sought in "Bentley" Suit ------------------------------------------------------------- Curtis Bentley and Candace Bentley move the Court to certify the class described in the complaint of the lawsuit styled CURTIS BENTLEY and CANDACE BENTLEY, Individually and on Behalf of All Others Similarly Situated v. FELT & LUKES, LLC, Case No. 2:16-cv- 01476-PP (E.D. Wisc.), and further ask that the Court both stay the motion for class certification and to grant the Plaintiffs (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Damasco and decisions like it imposed significant burdens on the Court and on Plaintiff's Counsel, the Plaintiffs contend, citing Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence, the Plaintiffs say. The Plaintiffs assert that they are obligated to move for class certification to protect the interests of the putative class. As the Motion is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiffs argue. The Plaintiffs also ask to be appointed as class representative and further ask the Court to appoint Ademi & O'Reilly, LLP as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=t4IMZUaa The Plaintiffs are represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com dmorris@ademilaw.com FLOWERS FOODS: Class of Route Drivers Certified in "Neff" Suit -------------------------------------------------------------- The Hon. Geoffrey W. Crawford grants in part the Plaintiffs' motion for conditional certification filed in the lawsuit captioned NICK NEFF and MATTHEW McCREA, individually and on behalf of all similarly situated individuals v. FLOWERS FOODS, INC., LEPAGE BAKERIES, PARK STREET, LLC, and CK SALES CO., LLC, Case No. 5:15-cv-00254-gwc (D. Vt.). In their complaint, the Plaintiffs claim that the Defendants violated the Fair Labor Standards Act by misclassifying their bakery distributor drivers as independent contractors, thus, depriving them of overtime pay due under the FLSA. The Plaintiffs seek conditional certification of a class of plaintiffs under the FLSA, which authorizes collective enforcement of FLSA violations. The proposed class consists of distributors (commonly known as "route drivers" in the bakery business). The Motion is granted in part, regarding the Distributors employed in Vermont, New Hampshire, Massachusetts, Connecticut, Rhode Island, and New York, and denied with respect to Distributors in Maine, who are already subject to a similar lawsuit brought by the same counsel. The Court concludes that for purposes of conditional certification, all Distributors, who have contracted with CK Sales should receive notice. The exception is Distributors working in Maine because these individuals are already the subject of an identical action, filed by the same attorneys, seeking overtime pay for CK Sales distributors in Maine. "There is no good reason for sending overlapping notices inviting the same people to join two lawsuits. With respect to distributors in the other states, however, the common feature of their employment relationship is that they signed contracts with the same company for the same type of work and that CK Sales relies upon the same provisions in these contracts in denying them overtime pay," Judge Crawford opined. Judge Crawford also approves the form of notice supplied by the Plaintiffs as well as the posting of a placard at each warehouse. Judge Crawford ordered the Defendants to post copies of the Notice at each warehouse location where Distributors pick up bakery products for delivery. A copy of the Opinion and Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=eFkcHYoT FORT ZUMWALT: Certification of Class Sought in Videotaping Suit --------------------------------------------------------------- The Plaintiff in the lawsuit entitled JOHN DOE, as Next Friend of JAMES DOE v. MATTHEW HANSEN, et al., Case No. 4:16-cv-00546-JAR (E.D. Mo.), and certain district defendants jointly ask that the Court enter an order certifying class in this matter for the purpose of determining potential liability only. The District Defendants are Superintendent Dr. Bernard DuBray, former Assistant Superintendent Mike Clemens, former Assistant Superintendent Patty Corum, Assistant Superintendent Jackie Floyd, Greg Solomon, Nelda Wetzel, Jill Hutchenson, Unknown John and Jane Doe Defendants employed as principals or principal designees, Dan Hadfield and Unknown John and Jane Doe Defendants employed as fifth grade teachers. The Parties agree that the class will be defined as the 78 current and former students of the Fort Zumwalt R-II School District, who attended the School District's summer camp at Cuivre River State Park between 2007 and 2011, and who allegedly were unknowingly videotaped in the nude by Defendant Matthew Hansen. Plaintiff John Doe is appointed as the Class representative by the Parties. They also agree that the Class claims will be those as set forth in the Second Amended Complaint, and the issues and defenses will be those set forth in the Second Amended Complaint and the Answer filed by the Defendants to the Second Amended Complaint. The Parties also ask the Court to appoint Larry A. Bagsby, Esq., of The Bagsby Law Firm, and Deborah Alessi, Esq., of Shea, Kohl & Alessi, as class counsel for the Plaintiffs. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=75OzcU0N The Plaintiff is represented by: Larry A. Bagsby, Esq. THE BAGSBY LAW FIRM 125 North Main Street, Suite 204 St. Charles, MO 63301 Telephone: (636) 244-5595 Facsimile: (636) 244-5596 E-mail: larrybagsby@aol.com - and - Deborah J. Alessi, Esq. SHEA, KOHL, ALESSI, & KUHL, L.C. 400 North Fifth Street, Suite 200 St. Charles, MO 63301 Telephone: (636) 946-9999 Facsimile: (636) 946-8623 E-mail: dalessi@skaklaw.com District Defendants Dr. Bernard Dubray, Mike Clemens, Patty Corum, Jackie Floyd, Greg Solomon, Nelda Wetzel, Jill Hutchenson, Unknown John and Jane Doe Defendants, and Dan Hadfield are represented by: Celynda L. Brasher, Esq. Michael J. Curry, Esq. TUETH KEENEY COOPER MOHAN & JACKSTADT, P.C. 34 N. Meramec, Suite 600 St. Louis, MO 63105 Telephone: (314) 880-3600 Facsimile: (314) 880-3601 E-mail: cbrasher@tuethkeeney.com mcurry@tuethkeeney.com GRAPER LAW: Jahr Moves for Certification of Class Under Damasco --------------------------------------------------------------- The Plaintiffs move the Court to certify the class described in the complaint of the lawsuit entitled JOHN JAHR and KAREN JAHR, Individually and on Behalf of All Others Similarly Situated v. GRAPER LAW OFFICES, LTD., Case No. 2:16-cv-01472-DEJ (E.D. Wisc.), and further ask that the Court both stay the motion for class certification and to grant the Plaintiffs (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Damasco and decisions like it imposed significant burdens on the Court and on Plaintiff's Counsel, the Plaintiffs assert, citing Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence, the Plaintiffs state. The Plaintiffs assert that they are obligated to move for class certification to protect the interests of the putative class. As the Motion is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiffs contend. The Plaintiffs also ask to be appointed as class representatives and further ask the Court to appoint Ademi & O'Reilly, LLP as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=XJA5ZK3p The Plaintiffs are represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com dmorris@ademilaw.com GUARDIAN HEATING: Muir Seeks Class Certification Under FLSA ----------------------------------------------------------- The Plaintiffs in the lawsuit styled Michael Muir And Bradley Stock individually and on behalf of all persons similarly situated as members of the Collective as permitted under the Fair Labor Standards Act v. Guardian Heating and Cooling Services, Inc. And Robert (Bob) Lange and Andrea Lange as employers under the FLSA, IMWL and IWPCA, Case No. 1:16-cv-09755 (N.D. Ill.), moves for certification of a collective action, for disclosure of potential opt-in plaintiffs' contact information and Court-approved notice. Michael Muir and Bradley Stock also ask the Court to direct the Defendants to produce the full names, aliases, addresses, phone numbers, e-mail addresses and last date(s) of performance of all potential putative class members who worked for the Defendants. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=OlHhyZMW The Plaintiffs are represented by: John C. Ireland, Esq. THE LAW OFFICE OF JOHN C. IRELAND 636 Spruce Street South Elgin, IL 60177 Telephone: (630) 464-9675 Facsimile: (630) 206-0889 E-mail: attorneyireland@gmail.com HONEYWELL SAFETY: McKnight Seeks Class Certification Under FLSA --------------------------------------------------------------- Representative Plaintiffs Barbara McKnight and Sheila Anderson move the Court for an order granting conditional certification and notice to be issued pursuant to the Fair Labor Standards Act. The lawsuit is styled BARBARA MCKNIGHT and SHEILA ANDERSON, Individually and On Behalf of All Other Persons Similarly Situated v. HONEYWELL SAFETY PRODUCTS USA, INC. AND HONEYWELL INTERNATIONAL, INC., DAVID M. COTE, CARL JOHNSON, and MARK R. JAMES, in their Official and Individual Capacities, Case No. 1:16- cv-00132-ML-PAS (D.R.I.). A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=5UCgOdVO The Plaintiffs are represented by: Louise A. Herman, Esq. LAW OFFICES OF LOUISE A. HERMAN 321 South Main Street, Suite 300 Providence, RI 02903 Telephone: (401) 277-4110 Facsimile: (401) 453-0073 E-mail: lherman@lhermanlaw.com - and - Amato A. DeLuca, Esq. DELUCA AND WEIZENBAUM, LTD. 199 North Main Street Providence, RI 02905 Telephone: (401) 354-7233 Facsimile: (401) 453-1501 E-mail: bud@delucaandweizenbaum.com KEANE FRAC: "Meals" Suit Seeks Unpaid Wages and Bonuses ------------------------------------------------------- Christopher Meals, on behalf of himself and all others similarly situated, Plaintiffs, v. Keane Frac GP LLC, Keane Frac, LP and Keane Group Holdings, LLC, Defendants, Case No. 2:16-cv-01674, (N.Y. Sup., November 4, 2016), seeks overtime pay, liquidated damages, attorneys' fees and court costs under the Fair Labor Standards Act as well damages for failure to include bonuses into employees' regular rate of pay in violation of the Pennsylvania Minimum Wage Act. Defendants constitute an oilfield services company that operates throughout the United States including in Pennsylvania, West Virginia, Texas, and North Dakota. Meals worked for them as a Treater-in-Training from approximately April 2014 to November 2015. Plaintiff is represented by: Rowdy B. Meeks, Esq. ROWDY MEEKS LEGAL GROUP LLC 8201 Mission Road, Suite 250 Prairie Village, Kansas 66208 Tel: (913) 766-5585 Fax: (816) 875-5069 Email: Rowdy.Meeks@rmlegalgroup.com KING LIVE POULTRY: "Nunez" Sues Over Overtime, Spread of Hours Pay ------------------------------------------------------------------ Noe Ruben Nunez, individually and on behalf of others similarly situated, Plaintiff, v. King Live Poultry Inc., Doubao Live Poultry Inc., Li Baoxi and Zheng Chang, Defendants, Case No. 1:16- cv-06124 (E.D. N.Y., November 4, 2016), seeks unpaid minimum and overtime wages, spread of hours pay, applicable liquidated damages, interest, attorneys' fees and costs pursuant to the Fair Labor Standards Act of 1938 and New York Labor Laws. King Live Poultry is a poultry distributor with its main office located at 39 St., Nicholas Avenue, Brooklyn, New York, 11237, with Li Baoxi and Zheng Chang as owners/managers. Nunez work included attending to customers, cleaning and maintaining the store, cleaning cages, dressing chickens and opening the store. He claims to have been denied overtime pay. Plaintiff is represented by: Michael A. Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 2540 New York, NY 10165 Tel: (212) 317-1200 Facsimile: (212) 317-1620 LEAL MEDICAL: "Morgan" Suit Seeks Overtime Pay, Reimbursements -------------------------------------------------------------- Gilberto Lino Morgan, and all others similarly situated under 29 U.S.C. 216(b), Plaintiff, vs. Leal Medical Center, LLC, ABC-ALSY Adult Day Care Centers, LLC, Leal Pharmacy, LLC, Jhacnea P. Leal, Yaima Delgado, Daniel Orozco, Henry Mullales, Sr., Defendants, Case No. 1:16-cv-24621 (S.D. Fla., November 4, 2016), requests damages and reasonable attorney fees, jointly and severally, along with fees, costs and interest, for unjust enrichment and violation the Fair Labor Standards Act. Defendants is a medical services group based in Homestead, FL where Plaintiff worked. He claims to have been denied overtime pay and well as reimbursement for the weekly fuel and toll expenditures. The Plaintiff is represented by: J.H. Zidell, Esq. 300 71st Street, Suite 605 Miami Beach, FL 33141 Tel: (305) 865-6766 Fax: (305) 865-7167 Email: ZABOGADO@AOL.COM LIFESTATION INC: Dolemba Seeks to Certify TCPA and ICFA Classes --------------------------------------------------------------- The Plaintiff in the lawsuit captioned SCOTT DOLEMBA, on behalf of plaintiff and the class defined below v. LIFESTATION, INC., and DOES 1-10, Case No. 1:16-cv-10348 (N.D. Ill.), moves for class certification pursuant to the Telephone Consumer Protection Act and the Illinois Consumer Fraud Act. The Plaintiff seeks to represent these classes: (1) With respect to Count I, alleging violation of the TCPA, plaintiff defines a class consisting of (a) all persons (b) who, on or after a date four years prior to the filing of this action (28 U.S.C. Section 1658), and on or before a date 20 days following the filing of this action, (c) received calls from defendants on their cell phones, (d) placed using an automated dialer or a prerecorded or artificial voice; and (2) With respect to Count II, alleging violation of the ICFA, plaintiff defines a class consisting of (a) all persons with telephone numbers in Illinois area codes (b) who, on or after a date three years prior to the filing of this action (815 ILCS 505/10a), and on or before a date 20 days following the filing of this action, (c) received calls from defendants on their cell phones, (d) placed using an automated dialer or a prerecorded or artificial voice. Scott Dolemba 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=GuCGdpPA The Plaintiff is represented by: Daniel A. Edelman, Esq. Cathleen M. Combs, Esq. James O. Latturner, Esq. Julie Clark, Esq. Heather Kolbus, Esq. EDELMAN, COMBS, LATTURNER & GOODWIN, LLC 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 jclark@edcombs.com hkolbus@edcombs.com LOS ANGELES, CA: Court Wants More Filings in "Chua" Class Suit -------------------------------------------------------------- In a civil minutes filed in the lawsuit titled Charmaine Chua, et al. v. City of Los Angeles, et al., Case No. 2:16-cv-00237-JAK-GJS (C.D. Cal.), the Hon. John A. Kronstadt stated the tentative views that the Court is inclined to grant in part the Plaintiffs' motion for class certification. Judge Kronstadt directs the Plaintiffs to file a supplemental brief, not to exceed five pages, which will address the issue of whether the National Lawyers Guild has standing. The Defendants may also file a brief but it is not required. The Motion is taken under submission and a ruling will be issued upon review of the parties' submissions, according to the Civil Minutes. The Court confers with counsel regarding settlement. The Plaintiffs are open to participating in a settlement conference now while defense counsel believes it is premature at this time. The Court encourages counsel to work together in an effort to have a meaningful settlement conference with Magistrate Judge Standish. A copy of the Civil Minutes is available at no charge at http://d.classactionreporternewsletter.com/u?f=kDNG8FP6 LOUISIANA, USA: Davis Seeks Certification of Prisoners Class ------------------------------------------------------------ Robert Davis, one of the Plaintiffs in the lawsuit captioned Robert Davis, et al. v. Sandy McCain, et al., Case No. 1:16-cv- 01534-DDD-JPM (E.D. La.), asks the Court to certify a class of similarly situated persons, who suffered exposure to second-hand smoke at the Raymond Laborde Correctional Center (RLCC), in Cottonport, Louisiana. The Plaintiff appears pro se. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=R5TlWN65 MAGNUSON HOTELS: Certification of Class Sought in Gorss Suit ------------------------------------------------------------ The Plaintiff in the lawsuit titled GORSS MOTELS, INC. a Connecticut corporation, individually and as the representative of a class of similarly-situated persons v. MAGNUSON HOTELS INTERNATIONAL, LLC, MAGNUSON HOTELS USA, LLC, Washington limited liability companies, and JOHN DOES 1-5, Case No. 2:16-cv-01832 (D. Conn.), moves for class certification. Gorss Motels also asks the Court to take the Motion under submission and deferring further activity on it until after the discovery cutoff date to be set in the Court's upcoming Rule 23 scheduling order. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=4zoZbiF2 The Plaintiff is represented by: Aytan Y. Bellin, Esq. BELLIN & ASSOCIATES LLC 85 Miles Avenue White Plaines, NY 10606 Telephone: (914) 358-5345 Facsimile: (212) 571-0284 E-mail: Aytan.Bellin@bellinlaw.com - and - Brian J. Wanca, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: (847) 368-1500 Facsimile: (847) 368-1501 E-mail: bwanca@andersonwanca.com MIDLAND CREDIT: "Sperber" Sues Over Deceptive Collection Letters ---------------------------------------------------------------- Meyer Sperber on behalf of himself and all other similarly situated consumers, Plaintiff, v. Midland Credit Management, Inc., Midland Funding, LLC and Encore Capital Group, Inc. Defendants, Case No. 1:16-cv-06146 (E.D. N.Y., November 4, 2016), seeks statutory damages provided under the Fair Debt Collection Practices Act. Defendants are debt collectors tasked to collect a consumer debt from the Plaintiff. Defendants, through its letters, imposed a made up deadline to pay on the alleged debt. Plaintiff alleges that these letters were deceptive and harassing. Plaintiff is represented by: Maxim Maximov, Esq. MAXIM MAXIMOV, LLP 1701 Avenue P, Brooklyn, NY 11229 Tel: (718) 395-3459 Fax: (718) 408-9570 E-mail: m@maximovlaw.com MILSTEAD & ASSOCIATES: Parties Move to Settle "Fequiere" Suit ------------------------------------------------------------- The parties in the lawsuit entitled DANNY FEQUIERE, on behalf of herself and all others similarly situated v. MILSTEAD & ASSOCIATES, LLC, Case No. 1:15-cv-07541-RMB-AMD (D.N.J.), jointly move the Court for an order certifying the case to proceed as a class action and granting preliminary approval of the Parties' class settlement agreement. The Parties define the class as: All consumers with a New Jersey address to whom Milstead & Associates, LLC mailed a written communication in the form of Exhibit A to the Plaintiff's Complaint during the period beginning October 15, 2014, and ending November 4, 2015 where the letter stated in relevant part: "4. The Fair Debt Collection Practices Act entitles you to dispute the debt, or any portion thereof, within thirty (30) days of your receipt of this letter. If you do not dispute the debt within that period, it will be presumed to be valid." The Plaintiff filed the class action lawsuit pursuant to the Fair Debt Collection Practices Act alleging that Milstead violated the FDCPA by mailing consumers initial collection letters, which allegedly failed to provide required disclosure because the initial collection letters omitted the term "by the debt collector" or its equivalent from the disclosure as required. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=hiLPVHrw The Plaintiff is represented by: Ryan Gentile, Esq. LAW OFFICES OF GUS MICHAEL FARINELLA PC 110 Jericho Turnpike - Suite 100 Floral Park, NY 11001 Telephone: (201) 873-7675 Facsimile: (212) 675-4367 E-mail: rlg@lawgmf.com The Defendant is represented by: Sean X. Kelly, Esq. MARKS, O'NEILL, O'BRIEN, DOHERTY & KELLY, P.C. Cherry Tree Corporate Center 535 Route 38 East, Suite 501 Cherry Hill, NJ 08002 Telephone: (856) 663-4300 E-mail: skelly@moodklaw.com NANOOSH MADISON: "Varela" Sues Over Unpaid Minimum Wage ------------------------------------------------------- Alvaro Varela, individually and on behalf of others similarly situated, Plaintiff, v. Nanoosh Madison LLC, Nanoosh Rocks LLC, David Kostman, Zwika Pres and Hugo Doe, Defendants, Case No. 1:16- cv-08603 (S.D. N.Y., November 4, 2016), seeks unpaid minimum wages, applicable liquidated damages, interest, attorneys' fees and costs pursuant to the Fair Labor Standards Act of 1938 and N.Y. Labor Laws. Defendants own, operate, or control a set of Mediterranean restaurants one of which is located at 173 Madison Avenue, New York, New York 10016, which operates under the name Nanoosh. Varela was ostensibly employed as a delivery worker, but also performed non-tipped, non-delivery duties, including stocking, taking out the garbage, cleaning, doing errands, packing deliveries, refilling condiments and bar tending. Varela's actual duties in payroll records designated him as a delivery worker instead of a non-tipped employee allowing Defendants to pay him below the minimum wage rate. Plaintiff is represented by: Michael A. Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 2540 New York, New York 10165 Tel: (212) 317-1200 Facsimile: (212) 317-1620 PHH CORP: Obtains Favorable Ruling in CFPB RESPA Case ----------------------------------------------------- Maria B. Earley and Robert M. Jaworski, writing for The National Law Journal, report that a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit issued a landmark decision earlier in October related to the Consumer Financial Protection Bureau. Although the constitutional issue the court decided concerning the structure and power of the CFPB has dominated news coverage, some of the most important -- and likely, more permanent -- aspects of the decision in PHH v. Consumer Financial Protection Bureau have received relatively little notice. The case concerned the legality of certain arrangements between PHH Corp. and several mortgage insurance companies in which PHH would refer its residential mortgage loan borrowers to the mortgage insurance companies and they would in turn purchase mortgage reinsurance from a PHH affiliate The CFPB determined that these arrangements violated Section 8 of the Real Estate Settlement Procedures Act (RESPA) and ordered PHH to pay $109 million. PHH appealed the CFPB's decision to the D.C. Circuit. "UNCHECKED" POWER Finding no historically comparable example of a single-director structure in which the director is only removable for cause, and where his power is unchecked by "diverse perspectives and different points of view" often found in a multiple-member commission or board structure, the court held that structure to be unconstitutional. This news immediately rippled throughout the financial industry. The court's remedy, however, was narrow: allow the CFPB to continue its operations but sever the statutory language that makes the director removable for cause. Although this aspect of the decision is certainly important and newsworthy, it is also the one least likely to stand. An appeal is almost certain, and it seems likely the D.C. Circuit en banc or the U.S. Supreme Court will set aside this finding since, based on the court's other findings, it was simply unnecessary to have reached the constitutional issue. These other findings, however, while less heralded, are themselves game-changers and, we predict, likely to prevail when the final outcome is handed down. The most important of these findings is the court's conclusion that all CFPB enforcement actions are subject to a statute of limitations. The CFPB has consistently taken the position that no statute of limitations applies when it pursues enforcement actions through administrative proceedings. Responding to court skepticism that the CFPB could punish conduct occurring decades ago, the CFPB asserted it would exercise its prosecutorial discretion in such a case to refrain from doing so. The court found that premise absurd. Accordingly, it invalidated a major pressure point that the CFPB has exerted in settlement negotiations by holding that the applicable statute of limitations applies in both administrative and federal court proceedings. Notably the court's ruling appears to encompass all 19 statutes over which the CFPB has jurisdiction. REINTERPRETATION OF RESPA Another key finding concerns the agency's reinterpretation of RESPA Section 8(c)(2), which states: "Nothing in this section shall be construed as prohibiting . . . the payment to any person of a bona fide salary or compensation or other payment for goods or facilities actually furnished or for services actually performed." Rejecting PHH's defense that the section permitted its arrangements with mortgage insurance companies, the CFPB interpreted this language as merely a "clarification" of, rather than an exception to, Section 8, and only relevant "if there is a question as to whether the parties actually did enter into [a referral] agreement." The court forcefully disagreed, stating that: (1) the statutory question was "not a close call," (2) "[n]othing means nothing" and (3) PHH's interpretation of Section 8(c)(2) was consistent with the U.S. Department of Housing and Urban Development's long-standing interpretation, RESPA's multiple purposes and its legislative history. Because the legality of other types of arrangements involving referrals have been based on Section 8(c)(2) -- such as marketing service agreements -- the importance of this finding is magnified. Finally, the court held essentially that it was a violation of fundamental fairness for the CFPB to reinterpret RESPA Section 8 and then apply its new interpretation retroactively. In entering into these arrangements, PHH primarily relied on a widely disseminated 1997 Housing and Urban Development letter advising that such arrangements are permissible if the payments to the reinsurer are for reinsurance services actually provided and are bona fide compensation not exceeding their value. The CFPB concluded otherwise in 2015 and sought to punish PHH for establishing these arrangements going back to 2008. The court rightly held that this violated the due process clause, analogizing it to a police officer telling a pedestrian she can lawfully cross the street in the middle of the block and then giving her a ticket when she does so -- a significant win for PHH and a significant setback for the CFPB. Signs are clear that the CFPB will appeal -- in fact, in a filing in an unrelated case, the CFPB asserted that the PHH case was "wrongly decided and is not likely to withstand further review." Whether the CFPB chooses to present its arguments to the full panel of the D.C. Circuit or through an emergency appeal directly to the Supreme Court, this case will continue to be one to watch. PREMIER HEALTHCARE: Criddell Seeks Certification of Three Classes ----------------------------------------------------------------- The Plaintiff in the lawsuit titled MYLINDA CRIDDELL, individually and on behalf of all others similarly situated v. PREMIER HEALTHCARE SERVICES, LLC, Case No. 2:16-cv-05842-R-KS (C.D. Cal.), moves the Court for an order granting certification of three classes. (1) Class for Count I of the First Amended Complaint for violation of the Fair Credit Reporting Act: All individuals who: (1) signed Premier Healthcare Services, LLC's form entitled "Background Investigation Authority" attached to the First Amended Complaint as Exhibit 2 or a substantially similar document; and (2) on whom Premier Healthcare Services, LLC procured a consumer report for employment purposes in the period beginning two years prior to the filing of this First Amended Complaint. (2) Class for Counts III, IV, V, and VI of the First Amended Complaint, collectively referred to as the California statutory claims, stemming from the Defendant's alleged failure to provide accurate wage statements and failure to reimburse for business expenses in violation of the California Labor Code and California Business & Professions Code: All individuals who have been employed as Home Care Aides by Premier Healthcare Services, LLC in the State of California at any time since the date four years preceding the filing of this action; and (3) Collective for Count II of the Plaintiff's First Amended Complaint for violation of the Fair Labor Standards Act: All Home Care Aides employed by Premier Healthcare Services, LLC at any time between October 13, 2015 and the date that Defendant began paying Home Care Aides overtime wages pursuant to federal law. The Plaintiff also (i) seeks appointment as Class Representative for both all Classes and as Collective Representative for the Collective, (ii) asks the Court to appoint Stueve Siegel Hanson LLP and Weinhaus & Potaschnick as Class Counsel to represent both Classes and Collective, and (iii) asks the Court to require the parties to meet and confer to agree upon a Class Notice for each certified Class, a Collective Notice for the Collective, and a Consent to Join Form for the Collective. A copy of the Notice is available at no charge at http://d.classactionreporternewsletter.com/u?f=KJQ0GH7k The Court will commence a hearing on December 5, 2016, at 10:00 a.m., to consider the Motion. The Plaintiff is represented by: Jason M. Lindner, Esq. STUEVE SIEGEL HANSON LLP 550 West C Street, Suite 1750 San Diego, CA 92101 Telephone: (619) 400-5822 Facsimile: (619) 400-5832 E-mail: lindner@stuevesigel.com - and - George A. Hanson, Esq. Alexander T. Ricke, Esq. STUEVE SIEGEL HANSON LLP 460 Nichols Road, Suite 200 Kansas, MO 64112 Telephone: (816) 714-7100 Facsimile: (816) 714-7101 E-mail: hanson@stuevesiegel.com ricke@stuevesiegel.com - and - Mark Potashnick, Esq. WEINHAUS & POTASHNICK 11500 Olive Blvd., Suite 133 St. Louis, MO 63141 Telephone: (314) 997-9150 Facsimile: (314) 997-9170 E-mail: mark@wp-attorneys.com PRIORITY ENERGY: Court Grants Matthews' Bid to Certify Class ------------------------------------------------------------ The Hon. Robert W. Schroeder, III, entered an order in the lawsuit titled STEVEN MATTHEWS, individually and on behalf of others similarly situated v. PRIORITY ENERGY SERVICES, LLC, et al., Case No. 6:15-cv-00448-RWS-KNM (E.D. Tex.), adopting the report and recommendation of United States Magistrate Judge, which contains her findings, conclusions and recommendation regarding the Plaintiff's motion to certify class. The Report and Recommendation issued on September 14, 2016, recommends that the Motion be granted because the Plaintiff presents a reasonable basis to conclude a class of similarly situated individuals exists and Defendants Priority Energy Services, LLC, Priority Well Testing, LLC and Priority Coiled Tubing, LLC's remaining arguments do not prevent conditional certification. Neither party filed written objections. Accordingly, the findings and conclusions of the Magistrate Judge are adopted as those of the Court. In light of the findings in the Report and Recommendation, Judge Schroeder granted the Plaintiff's Motion and the Court conditionally certifies the collective action. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=xWNX3QeE PRODUCTION TESTING: Class of Operators Certified in "Brown" Suit ---------------------------------------------------------------- The Hon. Vanessa D. Gilmore granted the Plaintiff's amended unopposed motion for conditional certification in the lawsuit titled SHELBY BROWN, Individually and on behalf of others similarly situated v. PRODUCTION TESTING SERVICES INC. and ROBERT A. HOFF, Case No. 4:16-cv-01152 (S.D. Tex.). The Court conditionally certified this class: All current and former field operators of Defendant Production Testing Services, Inc. and/or predecessor companies of said entity, employed as LBOs (Limited Benefit Only operators) paid a day rate, who performed surface well operations, including frack flowback and exploration well testing, or similar job positions that included similar job duties, from April 28, 2013, through the present. On April 28, 2016, the Plaintiff filed a complaint against all the Defendants, alleging that the Defendants violated the Fair Labor Standards Act and the Alaska Wage and Hour Act. The Plaintiff alleges that the Defendants failed to pay him and other similarly situated employees for overtime during a three-year work period. The Court granted the Plaintiffs a 30-day Opt-in period and that Defendants must produce to the Plaintiff's counsel, within 10 days of entry of the Court's Order, a list in electronic format, of all individuals, who worked for the Defendants as field operators during the past three years. The Court finds that the proposed Notice and Consent forms are accurate, timely, and informative and must be sent to all field operators, who worked as LBOs for Defendants from April 28, 2013 to the present. The Defendants are prohibited from communicating, directly or indirectly, with the Class about any matters, which touch or concern the settlement of any outstanding wage claims or other matters related to the lawsuit during the opt-in period. The order will not restrict the Defendants from discussing with any current employee matters that arise in the normal course of business, nor will it apply to Class Members, who have not opted into the lawsuit after the deadline for opting-in has passed. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=B11ln47r A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=IHe0yPH9 The Plaintiff is represented by: John David Hart, Esq. LAW OFFICES OF JOHN DAVID HART Wells Fargo Tower 201 Main Street, Suite 1720 Fort Worth, TX 76102 Telephone: (817) 870-2102 Facsimile: (817) 332-5858 E-mail: johnhart@hartlaw.com Q CLUB HOTEL: Dear Wants to Certify Residential Unit Owners Class ----------------------------------------------------------------- Gary Dear moves the Court for an order certifying the action captioned GARY DEAR, as Class Representative of those similarly situated v. Q CLUB HOTEL, LLC, a Delaware Limited Liability Company, Case No. 0:15-cv-60474-JIC (S.D. Fla.), as a class action, on behalf of the "Class" and "Class Members" defined as: Residential Unit Owners who, during the five-year period preceding the filing of this action (the "Class Period"), paid Q CLUB or persons acting on its behalf costs, expenses and charges which were billed as a Residential Unit Owner's allocated share of Shared Costs4 identified in Exhibit 7 to the Declaration. Excluded from the Class are: Q Club Hotel, LLC, Costa Dorada Assoc., LTD., Costa Dorada Associates, Inc., Hilton Worldwide, Inc., and other Hilton-branded entities, their subsidiaries, principals, partners, agents, employees, and representatives, and the Court, its personnel, and those individual relatives within the third degree of relationship of the District Court judge and Magistrate presiding over this case as defined in Chapter 2, Canon 3, of the Code of Conduct for United States Judges. Mr. Dear also asks the Court to appoint him as Class Representative and to appoint his counsel as class counsel. He further asks the Court to direct that reasonable and adequate notice be provided to Class Members at the Defendant's expense under Rule 23(c) of the Federal Rules of Civil Procedure. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=MCyIexyO The Plaintiff is represented by: Steven R. Jaffe, Esq. Mark S. Fistos, Esq. Matthew D. Weissing, Esq. FARMER, JAFFE, WEISSING, EDWARDS FISTOS & LEHRMAN, P.L. 425 North Andrews Avenue, Suite 2 Fort Lauderdale, FL 33301 Telephone: (954) 524-2820 Facsimile: (954) 524-2822 E-mail: steve@pathtojustice.com mark@pathtojustice.com matt@pathtojustice.com - and - Robert A. Sweetapple, Esq. SWEETAPPLE, BROEKER & VARKAS, PL 20 SE 3rd Street Boca Raton, FL 33432 Telephone: (561) 392-1230 E-mail: pleadings@sweetapplelaw.com Defendant Q Club Hotel, LLC, is represented by: Laurence S. Litow, Esq. BURR & FORMAN, LLP 350 East Las Olas Blvd., Suite 1420 Fort Lauderdale, FL 33301 Telephone: (954) 414-6200 Facsimile: (954) 414-6201 E-mail: lslitow@burr.com - and - Ronald Pena, Esq. John C. Lukacs, Sr., Esq. HINSHAW & CULBERTSON, LLP 2525 Ponce de Leon Blvd., 4th Floor Coral Gables, FL 33134 Telephone: (305) 358-7747 E-mail: rpena@hinshawlaw.com jlukacs@hinshawlaw.com RECEIVABLES PERFORMANCE: Rivera Seeks Certification of Class ------------------------------------------------------------ Kelley Rivera asks the Court to certify the class described in the complaint of the lawsuit titled KELLEY RIVERA, Individually and on Behalf of All Others Similarly Situated v. RECEIVABLES PERFORMANCE MANAGEMENT, LLC, Case No. 2:16-cv-01480-NJ (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Damasco and decisions like it imposed significant burdens on the Court and on Plaintiff's Counsel, the Plaintiff asserts, citing Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence, the Plaintiff states. The Plaintiff asserts that the Plaintiff is obligated to move for class certification to protect the interests of the putative class. As the Motion is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiff contends. The Plaintiff also asks to be appointed as class representative and further asks the Court to appoint Ademi & O'Reilly, LLP as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=5pxPsKWM The Plaintiff is represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com dmorris@ademilaw.com RHD JR INC: Mechanics Class Certification Sought in "Jordan" Suit ----------------------------------------------------------------- The Plaintiffs in the lawsuit styled MARK JORDAN and BRANDON WATKINS, Individually and on Behalf of All Others Similarly Situated v. RHD, JR., INC., d/b/a MAYFLOWER RV SALES & SERVICE; and ROBERT H. DUDLEY, JR., Case No. 2:16-cv-02227-PKH (W.D. Ark.), ask the Court to conditionally certify this class: All mechanics (or similar positions) employed by Defendants RHD, Jr., Inc. d/b/a Mayflower RV Sales & Service; and Robert H. Dudley, Jr., at any time after September 12, 2013. The Plaintiffs brought the lawsuit on behalf of certain former and current hourly-paid mechanic employees of the Defendants to recover overtime wages and other damages pursuant to the Fair Labor Standards Act, among other claims. In addition, the Plaintiffs ask for approval and distribution of notice and that the Defendants be ordered to provide the names and current or last known mailing and e-mail addresses of all potential class members. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=8ru5O5oO The Plaintiffs are represented by: Chris Burks, Esq. Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 S. Shackleford, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: chris@sanfordlawfirm.com josh@sanfordlawfirm.com The Defendants are represented by: Allen C. Dobson, Esq. Shelley Fleisch-Djurica, Esq. BAXTER, JEWELL & DOBSON, P.A. One Information Way, Suite 210 Little Rock, AR 72202 Telephone: (501) 664-9555 Facsimile: (501) 664-9559 E-mail: adobson@bjd-law.com sdjurica@bjd-law.com ROMERO BROTHERS: "Rodriguez" Action Seeks Unpaid Wages ------------------------------------------------------ Carlos Rodriguez, and all others similarly situated Plaintiff, v. Romero Brothers Lumper Services LLC and Richard A. Romero, individually, Defendants, Case No. 1:16-cv-24618, (S.D. Fla., November 4, 2016), seeks to recover monetary damages, liquidated damages, interests, costs and attorney's fees for willful violations of overtime pay and minimum wages under the Fair Labor Standards Act. Defendants re-palletizes and re-distributes goods throughout the United States where Plaintiff was employed by the Defendants as an unloader and palletizer of dry goods. Rodriguez seeks payment of overtime wages. Plaintiff is represented by: Daniel T. Feld, Esq. LAW OFFICE OF DANIEL T. FELD, P.A. 2847 Hollywood Blvd. Hollywood, FL 33020 Tel: (305) 308-5619 Email: DanielFeld.Esq@gmail.com - and - Isaac Mamane, Esq. MAMANE LAW LLC 1150 Kane Concourse, Fourth Floor Bay Harbor Islands, FL 33154 Telephone (305) 773 - 6661 E-mail: mamane@gmail.com SAMSUNG ELECTRONICS: "Schmidt" Sues Over Defective Smartphone ------------------------------------------------------------- George Schmidt, individually and on behalf of all others similarly situated, Plaintiff, v. Samsung Electronics America, Inc.; Samsung Electronics Co., Ltd. and Samsung SDI America, Inc., Defendants, Case No. 2:16-cv-01725 (W.D. Wash., November 4, 2016), seeks temporary and permanent enjoinment of Samsung from selling the Galaxy Note 7; injunctive relief, including public injunctive relief; costs, restitution, damages and disgorgement of illegally obtained profits; revocation of acceptance; declaratory relief as the court deems appropriate; treble and/or punitive damages as permitted by applicable laws; pre- and post-judgment interest on any amounts awarded; costs and attorneys' fees and such other or further relief resulting from breach of warranty of merchantability, unjust enrichment and violation of Washington's Consumer Protection Act and Product Liability Act. The Class suit alleges that the Defendant's Galaxy Note 7 spontaneously bursts into flames. Samsung Electronics America, Inc. is a corporation existing under the law of the State of New York and is headquartered at 85 Challenger Rd, Ridgefield Park, New Jersey 07660. Samsung Electronics Co., Ltd. is a foreign corporation existing under the law of South Korea with its principal place of business at 129, Samsung-Ro, Yeongtong-Gu, Suwon-Shi, Gyenggi-do, South Korea 16677. Samsung Electronics Co., Ltd. is the parent company of Samsung Electronics America, Inc. Samsung SDI America, Inc. is a corporation existing under the law of the State of California and is headquartered at 3655 North First Street, San Jose, CA 95134. Plaintiff is represented by: Lynn Lincoln Sarko, Esq. Derek W. Loeser, Esq. Gretchen Freeman Cappio, Esq. Cari Campen Laufenberg, Esq. Lisa A. Nowlin, Esq. KELLER ROHRBACK L.L.P. 1201 Third Avenue, Suite 3200 Seattle, WA 98101 Tel: (206) 623-1900 Fax: (206) 623-3384 Email: lsarko@kellerrohrback.com dloeser@kellerrohrback.com gcappio@kellerrohrback.com claufenberg@kellerrohrback.com lnowlin@kellerrohrback.com SANTA FE, TX: Cert. of Class and Subclass Sought in "West" Suit --------------------------------------------------------------- The Plaintiffs in the lawsuit styled GEORGE WEST, ROBERT JONES, and BRADY FULLER, on behalf of themselves and all others similarly situated v. CITY OF SANTA FE, TEXAS; CARLTON GETTY, Municipal Judge, in his individual capacity; and JEFFREY POWELL, Chief of Police, in his official capacity, Case No. 3:16-cv-00309 (S.D. Tex.), seek certification of a class and subclass: Class: All people who are subject to an open capias pro fine warrant issued by Santa Fe Municipal Court. Damages subclass: All people confined in the Santa Fe Jail since November 3, 2014, under a capias pro fine warrant resulting from an uncounseled misdemeanor prosecution in Santa Fe Municipal Court. In their complaint, the Plaintiffs challenge the City of Santa Fe's alleged unconstitutional policies of jailing people for failure to pay their fines. The Plaintiffs also move for appointment of their counsel to represent the certified class under Rule 23(g) of the Federal Rules of Civil Procedure. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=nGqsqW1K The Plaintiffs are represented by: Trisha Trigilio, Esq. Rebecca Robertson, Esq. ACLU OF TEXAS 1500 McGowen Street, Suite 250 Houston, TX 77004 Telephone: (713) 942-8146 Facsimile: (713) 942-8966 E-mail: ttrigilio@aclutx.org rrobertson@aclutx.org SAW ENTERTAINMENT: Hughes Seeks to Certify Exotic Dancers Class --------------------------------------------------------------- The Plaintiffs ask the Court to conditionally certify the action styled NICOLE HUGHES, ANGELYNN HERMES, and PENNY NUNEZ, individually and on behalf of all others similarly situated v. S.A.W. ENTERTAINMENT, LTD, d/b/a Larry Flynt's Hustler Club, and GOLD CLUB - S.F., LLC d/b/a Gold Club San Francisco, Case No. 4:16-cv-03371-YGR (N.D. Cal.), as a collective action under the Fair Labor Standards Act. The Plaintiffs also ask the Court to order that notice informing them of their right to opt-in to the case be issued to all dancers, who have worked for the Defendants during the last three years. The Plaintiffs performed as exotic dancers at adult entertainment clubs operated by the Defendant. They have brought the action seeking to recover wages they claim they are owed under the Fair Labor Standards Act, as well as state law. The Court will commence a hearing on December 13, 2016, at 2:00 p.m., to consider the Motion. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=psWbYyb6 The Plaintiffs are represented by: Shannon Liss-Riordan, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Telephone: (617) 994-5800 E-mail: sliss@llrlaw.com - and - Michael Freedman, Esq. Matthew D. Carlson, Esq. LICHTEN & LISS-RIORDAN, P.C. 466 Geary St., Suite 201 San Francisco, CA 94102 Telephone: (415) 630-2651 E-mail: mfreedman@llrlaw.com mcarlson@llrlaw.com SCHNEIDER PUBLISHING: Gorss Moves for Certification of Class ------------------------------------------------------------ The Plaintiff in the lawsuit captioned GORSS MOTELS, INC. a Connecticut corporation, individually and as the representative of a class of similarly-situated persons v. SCHNEIDER PUBLISHING COMPANY, INC., a California corporation, and JOHN DOES 1-5, Case No. 2:16-cv-01833 (D. Conn.), moves for class certification. Gorss Motels also asks the Court to take the Motion under submission and deferring further activity on it until after the discovery cutoff date to be set in the Court's upcoming Rule 23 scheduling order. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=tiTmqG3r The Plaintiff is represented by: Aytan Y. Bellin, Esq. BELLIN & ASSOCIATES LLC 85 Miles Avenue White Plaines, NY 10606 Telephone: (914) 358-5345 Facsimile: (212) 571-0284 E-mail: Aytan.Bellin@bellinlaw.com - and - Brian J. Wanca, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: (847) 368-1500 Facsimile: (847) 368-1501 E-mail: bwanca@andersonwanca.com SPEEDPAY INC: Ct. Orders Pincus to File Redacted Motion to Certify ------------------------------------------------------------------ The Hon. Kenneth A. Marra granted the Plaintiff's unopposed request for motion for class certification and accompanying exhibits to be filed under seal in the lawsuit entitled CARYN PINCUS, an individual, on behalf of herself and all others similarly situated v. SPEEDPAY, INC., a New York corporation, Case No. 9:15-cv-80164-KAM (S.D. Fla.). The motion to certify class is denied without prejudice. The Court has examined the Motion and the attached exhibits and concludes that sealing the exhibits is appropriate, but sealing the entire Motion and memorandum of law in support is unnecessary. Hence, Judge Marra directed the Plaintiff to file a new redacted version of the Motion and memoranda of law. The redacted version should allow the public to see what arguments are made in support of the Motion, but may redact proprietary or private information that is extracted from the exhibits. Docket entry 78 will remain sealed for one year after the resolution of any appeals in this matter, at which time the sealed filings should be destroyed. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=tt6cVSa3 SUNTRUST MORTGAGE: Feb. 6 Settlement Final Approval Hearing Set --------------------------------------------------------------- IF YOU PREPAID AN FHA-INSURED LOAN WITH SUNTRUST, YOUR LEGAL RIGHTS MAY BE AFFECTED, AND YOU MAY BE ENTITLED TO BENEFITS FROM A PROPOSED CLASS ACTION SETTLEMENT 1. Why did I get this Notice? If you received this Notice and it is addressed to you, then the parties believe that you may be a member of the Class. 2. What is this lawsuit about? On April 4, 2016, Plaintiff Sarah Felix filed a lawsuit in the U.S. District Court for the Northern District of Georgia entitled Sarah Felix, et al. v. SunTrust Mortgage, Inc., No. 2:16-CV-00066- RWS ("Felix") asserting individual and class-wide claims for breach of contract against SunTrust. The lawsuit claims that SunTrust breached a uniform note it entered into with Plaintiff and the Class when it collected post- payment interest on FHA-insured loans that were (i) entered into between June 1, 1996 and January 20, 2015 and (ii) prepaid within the statute of limitations applicable to the loan. Plaintiff contends that under the uniform note SunTrust entered into with her and the Class, SunTrust can only collect post-payment interest as permitted by HUD regulations incorporated into the note, and that SunTrust did not comply with those regulations. In particular, Plaintiff contends that, in response to inquiries, requests for payoff figures and tenders of pre-payment, SunTrust did not comply with the HUD regulation requiring it to provide borrowers with certain information about post-payment interest in a form approved by the FHA/HUD Commissioner. Plaintiff contends that because SunTrust did not comply with HUD regulations incorporated into the note, SunTrust had no right to collect post- payment interest, and breached the note by doing so. Plaintiff also contends that SunTrust violated Georgia's usury laws by collecting post-payment interest when it was not permitted to do so under the note. SunTrust denies Plaintiff's and the Class's claims, and denies that it is liable for any of the claims asserted in the lawsuit. 3. What is a class action? In a class action lawsuit, one or more people called class representatives sue on behalf of other people that allegedly have similar claims. All of the people who have claims similar to the class representatives are a "class" or "class members," except for those who exclude themselves from the class. 4. Who is in the Class certified by the Court? On September 9, 2016, for purposes of settlement only, the Court preliminarily certified a class defined as: Any person who had a FHA-insured loan for which (i) the date of the note is during a period beginning on June 1, 1996 and ending on January 20, 2015; (ii) SunTrust or a SunTrust affiliate - as of the date the total amount due on the loan was brought to zero - was the lender, mortgagee, or otherwise held legal title to the note; (iii) SunTrust collected interest for any period after the total amount due on the loan was brought to zero (i.e., SunTrust collected "post-payment interest"); and (iv) SunTrust collected post-payment interest during the statute of limitations period applicable for the loan as shown by Exhibit A (the "Class"). Persons who had a loan brought to zero on the last calendar day of a month or on the first business day of a month are not included in the Class. Also excluded from the Class is anyone who received a payoff form SunTrust began using on or after April 1, 2016. You can view Exhibit A at www.FelixMortgageSettlement.com or request a copy by contacting the Administrator at the address below. Any person who meets the definition above is a "Class Member." Felix Mortgage Settlement Administrator P.O. Box 43034, Providence, RI, 02940-3034 THE TERMS OF THE SETTLEMENT 5. What does the Settlement provide? The Settlement provides that SunTrust will provide injunctive and monetary relief as follows: Injunctive Relief For a period of three years from the Effective Date, SunTrust agrees that in response to a pre-payment inquiry, request for payoff figures or tender of pre-payment, it will provide the required disclosures relating to post-payment interest in a form approved by the FHA/HUD Commissioner. The injunctive relief component of the Settlement applies only to borrowers with FHA- insured loans entered into between June 1, 1996 and January 20, 2015. Further, nothing in the injunctive relief requires SunTrust to violate any law or regulation. Monetary Relief SunTrust agrees to pay Three Million Five Hundred Thousand Dollars ($3,500,000) to settle the class action (the "Settlement Fund"). The Settlement Fund will be used to pay Class Members their Settlement proceeds, as well as to pay any Class Representative Service Award (see Paragraph 11 below) and any Fee & Expense Award (see Paragraph 11 below). SunTrust also agrees to pay all fees, costs and expenses associated with providing notice and administering the Settlement, which shall be in addition to the $3.5 million Settlement payment above. Class Member Awards - Each Class Member who does not timely opt out of the Settlement will be entitled to receive a "Class Member Award." The amount of the Class Member Award will be determined as follows: (i) First, the Administrator will sum the total amount of post- payment interest SunTrust collected from all Class Members who do not opt out of the Settlement; (ii) Second, the Administrator will divide each Class Member's individual post-payment interest by the sum of all post-payment interest collected by SunTrust as calculated in (i) immediately above; and (iii) Third, the Administrator will multiply the percentage calculated in (ii) immediately above by the Net Settlement Fund, with that number constituting the Class Member Award. Thus, by way of hypothetical example, if SunTrust collected $100 in post-payment interest from Class Member X, $10,000,000 from all Class Members who do not opt out and the Net Settlement Fund is $2.5 million, then Class Member X's recovery would be $25; i.e. 100/10,000,000 x $2.5 million. The "Net Settlement Fund" is the amount of the $3.5 million Settlement Fund remaining after deductions for any Class Representative Service Award and Fee & Expense Award (see Paragraph 11 below). If the Settlement is finally approved, all Class Members who do not timely opt out shall be deemed to have released, relinquished and forever discharged SunTrust as well as its past, present and future parent corporation(s), wholly and majority-owned company(ies), affiliates, subsidiaries, predecessors, successors, successors-in-interest, and assigns, as well as any lender, mortgagee or other title holder (the "Released Parties") of any notes of a Class Member, from all of the "Released Claims," as that term is defined in the Settlement Agreement. For clarity, the notes referenced in the preceding sentence pertain to only those notes for which SunTrust or a SunTrust affiliate was the lender, mortgagee, or otherwise was the holder of legal title at the time the outstanding balance was paid to zero. All Class Members who do not opt out will agree not to institute, assign, maintain, collect on or prosecute any further action against the Released Parties arising out of, based upon, or relating in any way to the Released Claims. The Released Claims include all claims, whether known or unknown, that relate to SunTrust collecting post-payment interest on FHA-insured loans that you prepaid within the statute of limitations. You may review the entire release and the definitions of "Released Claims" in the Settlement Agreement, which you can find at www.FelixMortgageSettlement.com. 6. How do I get a payment from the Settlement Fund, and when will I get it? If the Settlement is approved by the Court after the Final Approval Hearing (see Paragraphs 12-14 below) and becomes final, the Settlement funds will be distributed to Class Members under a schedule and distribution procedure approved by the Court. The Settlement will not become final until the time to appeal the Court's approval has expired or any appeals of that approval are resolved. YOUR RIGHTS AND OPTIONS IN RESPONSE TO THIS NOTICE 7. How do I opt out of the Settlement? If you wish to remain in the Class you do not need to do anything at this time. Class Members who do not timely and validly exclude themselves from the Class in the manner described below will be bound by the proposed Settlement and judgment, including the release of claims described above. You have the right to exclude yourself from the Settlement and the Class. If you do so, you will not be bound by the proposed Settlement or judgment, including the release of claims described above, and you will not be entitled to any of the benefits of the proposed Settlement, including any right to receive a share of the Settlement Fund. Further, if you exclude yourself from the Settlement and the Class, you will not be entitled to object to the terms of the proposed Settlement. To exclude yourself from the Settlement and the Class, you must send or deliver a written request stating your election to do so to the Administrator at the following address: Felix Mortgage Settlement Administrator, P.O. Box 43034, Providence, RI 02940-3034. In order for your opt-out to be valid, the written statement you provide to the Administrator must meet the following requirements: (i) it must be in writing; (ii) include your name and last four digits of your social security number; (iii) be personally signed and dated by the Class Member; (iv) be received by the Administrator no later than January 2, 2017; and (v) clearly state that you are opting out of the Class and understand that you will receive no money from the Settlement. 8. How do I object to or comment upon the Settlement? If you are a member of the Class you may comment upon or object to the Settlement. For example, if you do not believe that the Settlement is fair, reasonable or adequate, you may file an objection to the Settlement. You may also comment upon or object to the motions by Class Counsel for reimbursement of expenses, for an award of attorneys' fees or for Plaintiff to receive a service award (see Paragraph 11). If you want your comment or objection to be considered by the Court, you must send a letter that contains all of the following: -- The name of the lawsuit, Felix, et al. v. SunTrust Mortgage, Inc., No. 2:16-CV-00066-RWS; -- A statement that you object to or wish to comment upon the Settlement or the motions by Class Counsel for reimbursement of expenses, for an award of attorneys' fees or for a service award for the Plaintiff (see Paragraph 11); -- A statement of the specific legal and factual basis for each objection; -- Copies of any evidence or documents you want the Court to consider; -- A statement, and documentation, demonstrating that you are a member of the Class; -- Identification, with specificity, of each instance in which you or your counsel has objected to a class action settlement in the last five years; -- If you (or your lawyer) want to appear and speak at the Final Approval Hearing, a statement that you wish to appear and speak; and -- The identity of any witnesses you want to call to testify at the Final Approval Hearing Your objection must be personally signed by you and must be mailed to the Court and received no later than January 2, 2017. The Court's address is: United States Courthouse & Federal Building 121 Spring Street, SE Room 201 Gainesville, GA 30501 Copies of your objection must also be mailed to the following lawyers and received no later than January 2, 2017: Steven Rosenwasser BONDURANT, MIXSON & ELMORE, LLP 3900 One Atlantic Center 1201 West Peachtree Street NW Atlanta, GA 30309-3417 Class Counsel Jeffrey Willis ROGERS & HARDIN LLP 2700 International Tower 229 Peachtree Street NE Atlanta, GA 30303 SunTrust's Counsel If you file a timely and valid objection or comment, the Court will consider your views. If the Court overrules your objection and approves the Settlement, you will still be bound by the terms of the Settlement and you may still participate in the Settlement. 9. Can I appear in this lawsuit through my own lawyer? If you are a Class Member you may (but do not have to) appear in this lawsuit and speak to the Court about the Settlement. This is called making an appearance. You may make an appearance on your own, or you may have your own lawyer do so at your own expense. If you want your own lawyer to appear and speak to the Court about the Settlement, your lawyer must file a "Notice of Appearance" with the Court no later than January 2, 2017 and send copies to the lawyers listed in Paragraph 8 above. THE LAWYERS REPRESENTING YOU 10. Do I have a lawyer in this case? Yes. The Court has appointed the following lawyers to represent you and all Class Members: Steven Rosenwasser Naveen Ramachandrappa Frederic J. Bold, Jr. Bondurant Mixson & Elmore, LLP 3900 One Atlantic Center 1201 West Peachtree Street NW Atlanta, GA 30309-3417 Adam Hoipkemer Kevin Epps Jeff DeLoach Epps, Holloway, DeLoach & Hoipkemier, LLC 1220 Langford Dr. Bldg. 200 Suite 101 Watkinsville, GA 30677 Together, these lawyers are called Class Counsel. Fees for Class Counsel's work will be paid from the Settlement Fund in an amount to be approved by the Court. Paragraphs 5 and 11 explain how Class Counsel's fees and expenses will be deducted from the Settlement Fund. 11. How much will Class Counsel be paid? What will the Class Representative receive? At the Final Approval Hearing, Class Counsel will ask the Court to approve payment of attorneys' fees and expenses of no more than 33% of the Settlement Fund (the "Fee & Expense Award"). The Court may approve this amount or a lower amount. In return for the Plaintiff's contributions to the lawsuit, including reviewing and providing records, providing insight and opinions regarding the case and Settlement, and otherwise bearing the burdens of assisting the prosecution of this lawsuit, the Plaintiff intends to ask the Court for a service award not to exceed $7,500 (the "Class Representative Service Award"). Payment of this amount requires Court approval and would be in addition to any payment Plaintiff would receive from the Settlement Fund. As stated above, any Fee & Expense Award and/or Class Representative Service Award will be deducted from the Settlement Fund, and the amount remaining to pay Class Member Awards after those deductions is the Net Settlement Fund. The motion of Class Counsel for an award of attorneys' fees and for reimbursement of expenses, as well as any motion for a service award to the Plaintiff, as described above, will be filed with the Court by December 16, 2016. These documents will be available from the PACER website, the Court or Class Counsel. THE COURT'S FINAL APPROVAL HEARING The Court will hold a hearing to consider everyone's views and to decide whether to finally approve the Settlement. You may attend and you may ask to speak, but you don't have to. 12. When and where will the Court decide whether to approve the Settlement? The Court will hold a Final Approval Hearing on February 6, 2017. The Court is located at the United States Courthouse & Federal Building, 121 Spring Street, SE, Room 201, Gainesville, GA 30501, and the hearing will be held before Judge Richard Story. At the hearing, the Court will consider all timely and valid objections, and will consider whether the Settlement is fair, adequate and reasonable. The Court will also consider the motions of Class Counsel for a Fee & Expense Award and for a Class Representative Service Award as described in Paragraph 11. The Court will listen to people who have timely and validly asked to speak at the hearing. After the hearing, the Court will decide whether to approve the Settlement. 13. Do I have to come to the Final Approval Hearing? You don't have to come to the Final Approval Hearing. But you and/or your lawyer are welcome to come at your own expense. If you send a timely and valid written objection or comment, you don't have to come to the hearing for the Court to consider it. 14. Can I speak at the Final Approval Hearing? If you send a timely and valid objection, you can ask to speak about it at the Final Approval Hearing. To do so, your objection must say that you want to speak at the hearing as described in Paragraphs 8 and 9 above. CHANGE OF ADDRESS 15. What should I do if my address is different or I move? Please remember that you must notify the Administrator of any change of address after you receive this Notice. You can contact the Administrator, by writing to Felix Mortgage Settlement Administrator, P.O. Box 43034, Providence, RI 02940-3034. GETTING MORE INFORMATION 16. Are more details about the lawsuit and the Settlement available? This Notice summarizes the lawsuit and Settlement. More details are in the pleadings and other documents filed in this lawsuit. You can read these documents on the PACER federal court website or at the Office of the Clerk, United States District Court for the Northern District of Georgia, located at United States Courthouse & Federal Building, 121 Spring Street, SE, Room 201, Gainesville, GA 30501. Further information can also be found at www.FelixMortgageSettlement.com. Please do not contact the Clerk or the Court, as they cannot answer any questions about the lawsuit or the Settlement. TAYLOR SMITH: Law Seeks Certification of Driver Helpers Class ------------------------------------------------------------- The Plaintiffs in the lawsuit titled William J. Law, Jason Blackshear, Jonas Nelson, Frederico Daniels, and Donald McAfee on Behalf of Themselves and All Others Similarly Situated v. Taylor Smith Consulting, LLC and Tracy T. Smith, Case No. 4:16-cv-01164 (S.D. Tex.), move the Court for an order to send notice to potential class members in the case as a collective action on behalf of this class of similarly situated persons: All of Defendants' current and former employees employed as Driver Helpers and who were paid pursuant to a flat daily rate with no payment for hours worked beyond 40 hours before the filing of this Complaint up to the present. The case arises under the Fair Labor Standards Act. In their complaint, the Plaintiffs allege that they did not receive all overtime compensation due because Taylor Smith Consulting and Defendant Smith did not credit the Plaintiffs with overtime hours worked, thereby, violating the FLSA by not paying the Plaintiffs overtime compensation for hours worked over 40 in each workweek. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=URXJwqdq The Plaintiffs are represented by: Charles M.R. Vethan, Esq. David L. Bergen, Esq. THE VETHAN LAW FIRM, PC 3501 Allen Parkway Houston, TX 77019 Telephone: (713) 526-2222 Facsimile: (713) 526-2230 E-mail: cvethan@vethanlaw.com TAYLOR SMITH: Ntuk Seeks to Certify Class of Onsite Supervisors --------------------------------------------------------------- The Plaintiffs in the lawsuit captioned CEDRIC NTUK, JOHN CLARK, DRACHAN JOHNSON, and KEVIN MALLARD on Behalf of Themselves and All Others Similarly Situated v. TAYLOR SMITH CONSULTING, LLC, Case No. 4:16-cv-01165 (S.D. Tex.), move the Court for an order to send notice to potential class members in the case as a class action on behalf of this class of similarly situated persons: All of Defendant's current and former employees employed as Onsite Supervisors and who were paid pursuant to a flat salary with no overtime payment for hours worked beyond 40 hours before the filing of this Complaint up to the present. In their Complaint, the Plaintiffs allege that they did not receive all overtime compensation due because the Defendants did not credit the Plaintiffs with overtime hours worked. By failing to pay the Plaintiffs overtime compensation for hours worked over 40 in each workweek, the Defendants violated the Fair Labor Standards Act, the Plaintiffs allege. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=8yW0EWxX The Plaintiffs are represented by: Charles M.R. Vethan, Esq. David L. Bergen, Esq. THE VETHAN LAW FIRM, PC 3501 Allen Parkway Houston, TX 77019 Telephone: (713) 526-2222 Facsimile: (713) 526-2230 E-mail: cvethan@vethanlaw.com TWIN RIVERS: Certification of Two Classes Sought in "Minor" Suit ---------------------------------------------------------------- Christopher Minor and Donald Skaggs move the Court for an order: (1) conditionally certifying the action styled CHRISTOPHER MINOR, et al., for themselves and others similarly situated v. TWIN RIVERS CONSTRUCTION INC., Case No. 2:16-cv-01002-EAS-EPD (S.D. Ohio), as a collective action under the Fair Labor Standards Act. The FLSA class is defined as: All current and former Laborers and Laborer Foremen employed by Defendant between October 19, 2013 and the present, who were paid hourly and have not been paid overtime pay for all hours worked in a week in excess of 40 for the time spent traveling from the Columbus shop to the jobsite, or from the jobsite back to the Columbus shop; (2) certifying the action as a class action under Rule 23 of the Federal Rules of Civil Procedure. The Rule class is defined as: All current and former Laborers and Laborer Foremen employed by Defendant between October 19, 2014 and the present, who were paid hourly and have not been paid overtime pay for all hours worked in a week in excess of 40 for the time spent traveling from the Columbus shop to the jobsite, or from the jobsite back to the Columbus shop; and (3) designating Mansell Law, LLC, as Class Counsel pursuant to Rule 23(g) of the Federal Rules of Civil Procedure, and authorizing the Plaintiffs to send notices of the lawsuit to the putative class members, informing them of their rights and providing them with an opportunity to join the action by way of the Proposed Notice of Collective Action and Class Action. On October 19, 2016, the Plaintiffs, on behalf of themselves and other similarly situated current and former employees, commenced the action alleging that Twin Rivers unlawfully failed to pay overtime compensation for all hours worked in excess of 40 in a workweek, including compensable travel time in violation of the Fair Labor Standards Act and Ohio law. Count One of the Complaint seeks relief under the FLSA. Count Two of the Complaint seeks relief under the Ohio Minimum Fair Wage Standards Act, pursuant to Rule 23 of the Federal Rules of Civil Procedure. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=mugnZ129 The Plaintiffs are represented by: Greg R. Mansell, Esq. Carrie J. Dyer, Esq. MANSELL LAW, LLC 1457 S. High St. Columbus, OH 43207 Telephone: (614) 610-4134 Facsimile: (513) 826-9311 E-mail: Greg.Mansell@Ohio-EmploymentLawyer.com Carrie.Dyer@Ohio-EmploymentLawyer.com UGL: Class Action Over Ichthys LNG Project Ongoing -------------------------------------------------- Tony Boyd, writing for Financial Review, reports that when the 40- year history of engineering contractor UGL is written, the last chapter will be all about the one project in the Northern Territory that destroyed the company's independence. UGL's existence as an independent company listed on the ASX is coming to end following the board's recommendation in favour of a $3.15 a share takeover offer from Spanish owned construction group CIMIC. The contract that, in effect, killed the company was the Ichthys LNG project in the Northern Territory. It comprises two joint ventures. There is the $740 million Ichthys SMP project, which is a joint venture between UGL and Kentz Corporation for the structural, mechanical and piping construction package for the LNG trains. The second contract is the $550 million Ichthys CCPP project, which is a joint venture between UGL and CH2M Hill for the construction of a combined cycle power plant. Both joint venture vehicles awarded the contracts for construction to JKC Australia, a joint venture between JGC Corporation, KBR and Chiyoda Corporation. So far the two contracts have cost UGL shareholders $375 million in provisions. But the costs could rise beyond this. It is the uncertainty over future claims that played a key role in convincing a majority of UGL directors to recommend the CIMIC takeover offer. UGL reckons the blame for these two contracts going off the rails can be blamed on the client failing to deliver and changes in scope. But there is a question mark over the disclosure by the board and management of UGL in relation to the Ichthys project in late 2014. At that time, CH2M said things to the US Securities and Exchange Commission which were not revealed to Australian shareholders until several months later. Alleged lack of disclosure by the board is at the core of the class action against UGL funded by IMF Bentham and handled by Slater & Gordon. UGL has rejected the class action and attempted to have it permanently stayed. But it makes sense for UGL shareholders to join the class action now that CIMIC is likely to win control of the company. Prior to the board recommendation in favour of the CIMIC offer there would have been shareholders who thought it was against the company's interests to join a class action. But once the company becomes a subsidiary of CIMIC the potential conflict of interest will have been removed. UGL chairman Kate Spargo admitted on Nov. 7 at the company's annual meeting that the uncertainty surrounding the Ichthys project was one reason to accept the CIMIC offer. "One of the primary risks of remaining a UGL shareholder is the fact that our debt levels are higher than most of our peers," she said. "We are therefore at greater risk if unforeseen events negatively impact our base business or the Ichthys projects and extend us beyond our available headroom. "In such circumstances, we may need to seek alternative funding sources including a potential equity raising. "On the other hand, the $3.15 offer is cash which provides near term certainty for UGL shareholders." Ms. Spargo referred to the independent expert's report prepared by Grant Samuel, which highlighted the additional risk factors that shareholders "may like to take into consideration given there are a number of adverse circumstances which make the outlook for UGL and the future value of its share price uncertain". Grant Samuel found the bid fair and reasonable and within its valuation range of $3.11 to $3.94. Ms. Spargo said: "The board believes that in the absence of the CIMIC offer and if no superior proposal emerges, UGL's share price may fall below $3.15 immediately following the close of the offer." It is hard to underestimate the scale of the damage caused to UGL by the Ichthys project. It basically stopped the payment of dividends and wiped out a couple of year's worth of earnings. It made the company vulnerable to takeover and it has left an unquantified amount of contingent liabilities from the class action. Grant Samuel said it was not possible to make any estimate of the cost of the potential class actions against UGL. The liability held by the company's insurers, however, must be known to the company's board. It has not revealed this information. There were many reasons why a majority of the UGL board recommended the CIMIC offer including the lack of an alternative offer, the premium to the prevailing share price and certainty of having cash in the hand now. But in Chanticleer's opinion the uncertainty created by the Ichthys liability was ultimately the single most important factor in favour of CIMIC's bid. UGL chief executive Ross Taylor did everything he could to turn around UGL but it was a multi-year project made all that much harder by the uncertainty over the ultimate cost of the Ichthys project. One lasting lesson from the demise of UGL as an independent company is that if a company gets one single project wrong it can determine its future. That raises the broader question of how to value engineering contracting companies. If one project can wipe out several years worth of earnings then how do you calculate the fair value of a company with a pipeline of contracts? UNITED STATES: Tea Party Group Gets Favorable Ruling in IRS Case ---------------------------------------------------------------- Cortney O'Brien, writing for Townhall, reports that The Texas Patriots Tea Party emerged as victor in its case against the IRS. On Nov. 4, U.S. District Court Judge Michael R. Barrett ruled that the agency must process TPTP's application for tax exempt status after a long (and seemingly politically motivated) delay. It's now clear the IRS segregated TPTP's application in 2012 because it was a conservative political organization. It was just one instance in a larger scandal in which the IRS targeted conservatives and unfairly stalled their applications. The agency has insisted it no longer practices such political bias, yet the court said that doesn't solve TPTP's issue. "Regardless of the fact the IRS purports to have stopped applying the inappropriate political advocacy criteria in 2013, the evidence is undisputed that the IRS continued to delay processing TPTP's until August of 2016," the judge wrote in his decision." Mark Meckler, president of Citizens for Self Governance, applauded the judge's decision. "In the closing days of the election, we have further proof of deeply rooted corruption by Democrats," he said in a statement. "The federal judge in a class action funded by our organization (Citizens for Self-Governance) on behalf tea party and other conservative organizations, has ruled against the IRS in their Summary Judgment motion and in favor of Plaintiff Texas Patriots Tea Party on a request for a Preliminary Injunction. The Judge ruled that the plaintiff is likely to prevail on the merits in proving that IRS officials targeted American citizens for harassment based on their political beliefs." VERIZON INC: Says FCC Must Not Prohibit Arbitration Clauses ----------------------------------------------------------- C. Ryan Barber, writing for The National Law Journal, reports that the fight over forced arbitration in consumer contracts found its latest front in the lobbying over the Federal Communications Commission's sweeping broadband privacy proposal. In advance of the Oct. 27 vote on the proposal, which is designed to give consumers greater control over how their data is used, Verizon Inc. pushed to preserve its ability to require customers to resolve disputes in arbitration. According to a disclosure form posted on the FCC's website on Oct. 24, in-house lawyers for Verizon met with an aide to Commissioner Mignon Clyburn and "noted that the commission cannot -- and should not -- prohibit arbitration clauses in consumer contracts." Verizon's disclosure, signed by assistant general counsel Catherine Hilke, pointed to the Federal Arbitration Act in urging the commission not to restriction arbitration. "Nothing in the Communications Act or any other statute authorizes the commission to supersede Congress' policy judgment favoring arbitration clauses," Ms. Hilke wrote. Representatives from Comcast Corp., Charter Communications and the industry group NCTA-The Internet & Television Association made similar appeals to an aide to FCC Chairman Tom Wheeler and officials in the commission's wireline competition bureau. In a summary of two Oct. 18 meetings with FCC officials, an NCTA lawyer argued that the commission has no authority to restrict arbitration. "The Supreme Court has repeatedly upheld mandatory arbitration clauses in commercial contracts in the face of laws that seek to invalidate such provisions, including in the communications context," Loretta Polk, vice president and associate general counsel for NCTA-The Internet & Television Association. (Davis Wright Tremaine partner Christin McMeley and Mintz Levin partner Christopher Harvie also attended the meetings, according to the form.) Verizon's closest competitor, AT&T Inc., has not addressed arbitration in recent filings with the FCC. But it's stance on arbitration is well-known. AT&T Mobility LLC won the U.S. Supreme Court case in 2011 that let companies enforce class-action waivers, forcing consumers into arbitration. Since that decision, arbitration agreements have proliferated and also drawn increased scrutiny from federal regulatory agencies, including the Consumer Financial Protection Bureau and U.S. Health and Human Services Department. Both agencies have taken steps in recent months to restrict the use of class-action waivers. Clyburn has emerged as the FCC's leading advocate against arbitration agreements. On Oct. 23, Time posted an op-ed that Clyburn co-authored with U.S. Sen. Al Franken, D-Minnesota, arguing that communications companies have used class action waivers to "evade accountability by effectively locking the courtroom doors on their customers." "They do it through the use of what are known as mandatory arbitration clauses, buried deep in the fine print of the contracts you have to sign in order to get internet service," wrote Clyburn and Franken, a member of the Senate Judiciary Subcommittee on Privacy, Technology and the Law. "These clauses force you to sign away your right to go to court in the event of a dispute, in favor of a private arbitration process that is inherently biased towards corporations and offers no meaningful appeals process." On Oct. 20, the same day Verizon met with the Clyburn aide, the watchdog group Public Knowledge met with an aide to Commissioner Jessica Rosenworcel and urged the FCC to prevent internet service providers from enforcing arbitration clauses. "At a minimum, even if the commission were to determine that it did not intend to prohibit such clauses based on the record, the Commission should clarify that it has such authority and will revisit its determination if evidence of the abusive effects of these clauses becomes more manifest," Harold Feld, Public Knowledge's senior vice president, wrote in a disclosure form filed with the FCC. Echoing arguments in support of the CFPB's proposal to prohibit class-action waivers, Public Knowledge argued that arbitration clauses prevent consumers from joining together as a class and complementing the FCC's enforcement efforts. The watchdog group noted the recent U.S. Court of Appeals for the Ninth Circuit's decision in AT&T Mobility Services v. FTC, which restricted the Federal Trade Commission's ability to regulate common carriers under the FCC's regulatory umbrella. "Without the ability to sue for relief in court, consumers have no replacement for the loss of the FTC as a partner with the FCC," Mr. Feld wrote. "Furthermore, the proliferation of mandatory arbitration clauses effectively forecloses consumers from enforcing their rights." VIRGIN AMERICA: Class of Attendants Certified in "Bernstein" Suit ----------------------------------------------------------------- The Hon. Jon S. Tigar grants the Plaintiffs' motion for class certification and denies the Defendant's motion to strike the expert report of David Breshears filed in the lawsuit styled JULIA BERNSTEIN, et al. v. VIRGIN AMERICA, INC., Case No. 3:15-cv-02277- JST (N.D. Cal.). The Plaintiffs' motion for class certification is granted as to these class and subclasses: Class: All individuals who have worked as California-based flight attendants of Virgin America, Inc. at any time during the period from March 18, 2011 (four years from the filing of the original Complaint) through the date established by the Court for notice of certification of the Class (the "Class Period"). California Resident Subclass: All individuals who have worked as California-based flight attendants of Virgin America, Inc. while residing in California at any time during the Class Period. Waiting Time Penalties Subclass: All individuals who have worked as California-based flight attendants of Virgin America, Inc. and have separated from their employment at any time since March 18, 2012. The Court appoints the Plaintiffs as class representatives and appoints Duckworth Peters Lebowitz Olivier LLP and Kosinski + Thiagaraj, LLP as class counsel. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=Y2n3RDN7 VOLKSWAGEN AG: Defeat Device Software Discovered in Audi Models --------------------------------------------------------------- William Boston, writing for The Wall Street Journal, reports that regulators in California recently discovered software installed on some of Volkswagen AG's Audi models that appears to have allowed the cars to cheat carbon-dioxide emissions testing standards, according to people familiar with the matter. The Audi software was designed to mask emissions implicated in global warming, instead of smog as in the Volkswagen emissions- cheating scandal that erupted last year, the people said. The newly discovered software was detected four months ago during laboratory tests by the California Air Resources Board, one of the people said. Neither Volkswagen nor U.S. regulators have publicly disclosed the discovery. Officials at CARB, which has been heavily involved in a continuing U.S. probe of Volkswagen engines, didn't respond to requests for comment. Audi, Volkswagen's luxury-car unit, declined to comment, citing the Justice Department investigation into the Volkswagen scandal, which broke more than a year ago when U.S. environmental authorities disclosed that the German auto maker used illegal software on many of its diesel-engine models to cheat emissions testing for nitrogen oxides. It isn't clear how seriously officials in California and federal officials in Washington view the latest discovery, or whether Volkswagen, under intense regulatory scrutiny around the world, had identified it privately to regulators. Whatever the case, the discovery threatens fresh anger from officials, investors and car owners just as Volkswagen is wrapping up billions of dollars in settlements with states and owners of diesel-powered vehicles in the U.S. and a recall of nearly nine million tainted diesel vehicles in Europe. Volkswagen's previously disclosed "defeat device" software was used on Volkswagen and Audi diesel engines to make it appear that they complied with emission standards for nitrogen oxides during lab tests. The newly discovered software, installed on Audis with both diesel and gasoline engines, did the same with CO2 emissions standards in the U.S. and Europe, according to the people familiar with the matter. The CARB caught the emissions-cheating software through lessons learned from the earlier probe of Volkswagen diesel engines, according to Germany's weekly Bild am Sonntag newspaper, which earlier reported the software's discovery. CARB technicians conducting lab tests on Audi's vehicles made them react as if on a road by turning the steering wheel, the people said. When the cars deviated from lab conditions, their CO2 emissions rose dramatically. The latest discovery comes at a sensitive moment for Volkswagen. The company said on Nov. 6 that a German criminal investigation related to the diesel emissions scandal has widened to include its chairman. The auto maker said prosecutors in the city of Braunschweig, near Volkswagen headquarters, had widened their investigation of former Chief Executive Martin Winterkorn and Herbert Diess, head of the Volkswagen brand passenger cars division, to include Chairman Hans Dieter Poetsch. The investigators allege that the company's management willfully kept the company's shareholders in the dark about the U.S. diesel investigation and the potential financial risks. The company said it has found no indication that management failed to inform investors in a timely manner. Before becoming chairman in September 2015, Mr. Poetsch was Volkswagen's finance chief, responsible for communications with financial markets. He became chairman in a management shake-up in the wake of the emissions scandal. U.S. environmental authorities disclosed on Sept. 18, 2015, that the company installed software on about 500,000 diesel-powered vehicles in the U.S. that American authorities consider illegal. Volkswagen later admitted to installing the software on nearly 11 million vehicles world-wide. Volkswagen agreed in June to a $14.7 billion settlement with state authorities and owners of 475,000 two-liter diesel vehicles affected in the U.S. The company is still in talks on a settlement for owners of 85,000 vehicles with three-liter diesel engines that were built by Audi. Volkswagen and Audi management discussed the CO2 defeat-device software in detail during a "Summer Drive" event in South Africa in the second half of February 2013, according to one person familiar with the situation and excerpts from the minutes of the meeting, which were reviewed by The Wall Street Journal. According to the minutes, Axel Eiser, the head of Audi's powertrain division, said, "the shifting program needs to be configured so that it runs at 100% on the treadmill but only 0.01% with the customer." Audi declined to make Mr. Eiser available for comment. It isn't clear which Audi models might contain the newly discovered software, which could raise fresh questions in Europe, where regulators have been stricter on emissions of greenhouse gases like CO2 than on nitrogen oxides. Volkswagen insists that its software didn't violate European law. In Germany, Volkswagen hasn't been charged with violating the law. Criminal probes and civil lawsuits are instead focusing on whether Volkswagen's management violated securities law or committed fraud and should be held liable for damages suffered by investors and consumers. News of the U.S. investigation last year sparked a massive selloff in Volkswagen shares, causing the company to lose 35% of its market value by Sept. 22, when Volkswagen first warned investors of financial risks stemming from the probe. Mr. Winterkorn, then CEO, resigned under pressure the next day. Mr. Diess has acknowledged the investigation but has declined to comment. Mr. Winterkorn has declined to comment through his attorney. Volkswagen faces nearly $9 billion in damages claims from hundreds of investors, including the California Public Employees' Retirement System of the U.S., Norway's huge oil fund, and several German states that hold Volkswagen shares. The plaintiffs allege that Volkswagen's top executives intentionally withheld information from shareholders, who later suffered huge losses when Volkswagen's shares plunged. Volkswagen said no evidence has emerged to suggest that the company's management failed to disclose the diesel issue to markets as early as possible, reaffirming its belief that its management board "duly fulfilled its disclosure obligation under German capital markets law." YASSER AWAAD: Faces Class Action Over False Epilepsy Diagnoses -------------------------------------------------------------- Alan Stamm, writing for Deadline Detroit, reports that this medical nightmare is familiar locally: A doctor falsely claimed that hundreds of patients have a serious disease, according to a lawsuit. Health care reporter Jay Greene reports on the case at Crain's Detroit Business blog in a magazine-length blog post that exceeds 2,100 words: Depositions are underway for a potential jury trial next year for Yasser Awaad, M.D., a pediatric neurologist formerly with Oakwood Hospital and Medical Center in Dearborn who is accused in a class action lawsuit of falsely diagnosing epilepsy in hundreds of children in Southeast Michigan in the mid-2000s. Dr. Awaad has been compared by the attorneys of the children and their families to Farid Fata, M.D., the Crittenton Hospital-based oncologist who has been jailed and fined for health care fraud in misdiagnosing cancer patients. Attorneys for Dr. Awaad and Oakwood have denied all allegations against the Egyptian-born doctor. No criminal prosecution is involved, unlike in the nationally covered case of Dr. Fata, dubbed "Dr. Evil" in media reports. The former physician, now 51, was arrested in 2013 and convicted by jurors in mid-2015 of Medicare fraud for over-treating, misdiagnosing or under-treating more than 550 patients so could receiver more than $17 million in fees. He's serving a 45-year prison term. Dr. Awaad, 62, has been licensed since 1994 and served his medical residency in Detroit at Children's Hospital of Michigan and worked at Oakwood from 2005-07. He's now medical education consultant at Beaumont Health in Royal Oak, which "restricts him from direct patient care," according to Crain's. Mr. Greene's deeply reported account describes the legal filing on behalf of 247 families: According to the class action lawsuit in Wayne County Circuit Court, Dr. Awaad advised hundreds of children they had epilepsy and needed to undergo a variety of unnecessary treatments and procedures, and many were prescribed strong anti-epileptic medicine with which they had negative side-effects. Specialists who have reviewed the cases have stated in sworn affidavits that they found some of Dr. Awaad's diagnoses and treatments to be dubious or unnecessary, according to the lawsuit. Dr. Awaad left Detroit in 2007 for the Middle East "while allegations of poor patient care were swirling," the blog post, says and came back two years ago. The reporter, whose two requests to interview the defendant's lawyer were unanswered, speaks with Brian McKeen, a downtown Detroit medical malpractice attorney who's co-counsel for the families seeking damages. He writes: Mr. McKeen told Crain's that Dr. Awaad, Beaumont and Oakwood have not been especially forthcoming in helping him and families understand what happened to their misdiagnosed children. . . . "This guy came to Oakwood (in 2005), bragged about a huge practice in epilepsy at Children's Hospital and laid out an unrealistic plan to generate revenue," Mr. McKeen said. "(Oakwood) put him in business with an incentive-laden contract tied to billing, and business shot through the roof." Mr. McKeen . . . said more than 2,000 children were treated by Dr. Awaad during about a four-year period. . . . "[He] diagnoses everybody [98 percent] as having epilepsy whether they had it or not." Some children suffered from seizures, other lesser medical issues or were just sleep deprived, the lawyer tells Mr. Greene. ZEEKREWARDS: Seeks Court Approval of Claims Filing Documentation ---------------------------------------------------------------- Richard Craver, writing for Winston-Salem Journal, reports that the receiver for ZeekRewards.com wants court approval for requiring victims to complete the necessary documentation on their claims by Dec. 31 or forfeit their potential restitution. Kenneth Bell says on www.zeekrewardsreceivership.com that 38,587 claimants are in that category. The deadline for filing a claim was in 2013. Mr. Bell said in a filing on Nov. 3 that he has sent restitution checks on more than 100,000 qualified claims. Mr. Bell has said there is $92.6 million in a reserve account that could be dispersed to victims who complete their requirement release and tax statements. The total money in reserve for the 38,587 claimant group is $42.2 million. Forfeited funds would be released after Dec. 31 for additional payments to claimants with qualified claims. Mr. Bell said he sent a notice to affected victims on Nov. 1 and will again for the final time on Dec. 1. In August 2012, the Securities and Exchange Commission accused Rex Venture Group LLC (RVG), Zeekler, ZeekRewards and founder Paul Burks of raising more than $800 million through unregistered securities, also known as penny auctions, and another $96 million in subscription fees. The Lexington companies raised the money from at least 2.2 million customers, including more than 230,000 in the United States, with 47,000 of those in North Carolina. In 2016, federal prosecutors raised the amount to $939 million before Mr. Burks' criminal trial, calling it one of the largest Ponzi schemes in U.S. history. As of Sept. 30, Mr. Bell has recovered $362 million and disbursed $269.8 million to victims. Many victims have received funds accounting for between 60 percent and 70 percent of their losses. Another $17 million could be dispersed to about 18,000 victims who live outside the United States. Only 530 victims have completed the process to receive a wire financial transfer. The total of recognized claims is $494 million, Mr. Bell said. On July 21, a federal jury found Burks guilty of wire and mail- fraud conspiracy, wire fraud, mail fraud, and tax-fraud conspiracy. The wire and mail-fraud conspiracy charge, the mail-fraud charge and the wire-fraud charge each carry a maximum prison term of 20 years and a $250,000 fine. The tax-fraud conspiracy charge carries a maximum prison term of five years and a $250,000 fine. The U.S. attorney's office said Burks will remain free on bond while a sentencing date is set. It is possible Burks could spend the rest of his life in prison. In February 2015, Mr. Bell gained court permission to certify about 9,400 "net winners" as defendants in a class-action lawsuit. Mr. Bell has defined net winners as those who had a net gain of at least $1,000. The amounts include interest owed by each individual. The overall net winner list contained 15 individuals from Forsyth County, 105 from the Triad and Northwest N.C., and 390 statewide. Mr. Bell has cautioned that although there is more than $200 million in judgments that could be awarded, "the actual amount recovered by the receivership is likely to be substantially lower." Federal judge Graham Mullen has approved setting a trial date for mid-February on Mr. Bell's attempt to retrieve a combined $669,365 from six net winners. The requests were filed against Catherine Parker, Leon Killam, Yong Sheng Wang, Brian Fussey, James Macelwain and Mel-Ping Liang. Each was found in default Dec. 19, 2015. Mr. Bell has called "pure fiction" an attempt by five other participants to keep their net winnings even after Burks was found guilty. Named in the defendants' response are Aaron Andrews, Shara Andrews, Durant Brockett, Rhonda Gates and Innovations Marketing LLC. None are from North Carolina. Brockett was listed as having gained $1.72 million, Gates at $1.42 million, and Aaron and Shara Andrews, doing business as Innovation Marketing LLC, at $1 million. Bell has been granted permission to pursue up to $13.17 million in assets from three financial institutions -- Payza, Payment World LLC and VictoriaBank SA of Moldova. * California Supreme Court's Recent Rulings Not Business-Friendly ----------------------------------------------------------------- Does business have a foe or friend at the California Supreme Court? That's an important question, writes Seth Sandronsky for the Northern California Record. Much is at stake, as the Golden State is the sixth largest economy in the world. "Courts can be friendly or unfriendly to business," former California Supreme Court Justice Cruz Reynoso told the Northern California Record. "Courts are influenced by their view of what the law means and what is best (for) society." Governors appoint justices to the state's high court, comprised of a Chief Justice and six Associate Justices. Current Democratic Gov. Jerry Brown's newest trio of appointments tilted away from business in a recent decision, said one attorney. "With the addition of Justices (Goodwin H.) Liu, (Mariano- Florentino) Cuellar, and (Leondra R.) Kruger (the author of Nickerson v. Stonebridge Life Insurance Co.)," attorney Evan Tager -- etager@mayerbrown.com -- of Meyer Brown in Washington, D.C. blogged, "the current court may be among the least business-friendly in decades." The Nickerson case decision calculates a constitutional limit in a ratio of punitive damages (beyond necessary compensation) of 10 times' compensatory damages (necessary compensation) in bad faith insurance cases by in part including attorneys' fees (Brandt fees). "The California Supreme Court is sometimes business-friendly and sometimes not," Kim Stone, president of the Civil Justice Association of California, told the Northern California Record. She disagrees with Mr. Tager's view that the state's high court tilts away from the interests of business now in contrast to decades past. Definitions matter in the language and usage of words in the practice of law. What does a term such as "business-friendly" mean for the California high court? UC Hastings Law Professor David Levine told the Northern California Record the answer is in the eye of the beholder (e.g., whose interest are harmed or helped in high court decisions). Mr. Levine said when business loses litigation it describes such rulings as "business unfriendly." "When a business wins a case then the court is business-friendly," Mr. Levine said. It is a little like calling a court "activist," meaning how are you are using the term depends on your perspective, Mr. Levine said. In late July, the California Supreme Court released its opinion in People ex rel. Kamala Harris v. Pac Anchor Transportation. In that case, "the issue is whether an action under the UCL (unfair competition law) against a trucking company for treating individuals who drive trucks for them as 'individual contractors' instead of 'employees' is preempted by the Federal Aviation Administration Authorization Act (FAAAA)," Stone said. The California high court ruled that UCL preempts the FAAAA. Companies such as the ride-hailing firm Uber also face litigation over the status of drivers that labor as independent contractors, not employees, across the U.S. The California Supreme Court going back quite some time prior to Gov. Brown has been quite protective of consumers' interest in arbitration cases, Mr. Levine said. That trend does not extend to the highest court in the land though, he said. "The U.S. Supreme Court has pushed very hard back against the Golden State's high court decisions making it easier for corporations to force individuals into arbitration agreements that exclude class-action lawsuits in banking, health care and telecommunications," Mr. Levine said. Under Chief Justice Roberts, the current U.S. Supreme Court is quite pro-business, he said. There are exceptions to pro-consumer protection decisions in the Golden State's high court. In the Sanchez v. Valencia Holding Co. decision of early August, the California Supreme Court held the challenged arbitration agreement valid in all respects, Stone said. A California Supreme Court decision in late July held that class- wide arbitration must be decided on a case-by-case basis in Sandquist v. Lebo Auto., Inc. In upcoming decisions, California's high court will rule on employer liability for employees, their family and friends in take-home asbestos cases. Two cases of note are Haver v. BNSF Railway Company, and Kesner v. Superior Court (Pneumo Abex, LLC). The California Center for Jobs and the Economy and the University of San Francisco Law School declined requests for comment from the Northern California Record. California high court's annual reports on appeals for the 2013-14 fiscal year do not show dramatic changes in its decisions for or against business, Mr. Levine said. For the 2013-2014 court year, the Supreme Court filed opinions in a total of 33 civil matters out of an overall figure of 83. Four of the current seven California Supreme Court justices are GOP governor appointees. By contrast, the electorate in the Golden State is a Democratic majority including the governor and both houses of the state Legislature, putting the California GOP at a disadvantage. That the Golden State is rock-solid blue is beyond dispute in 2016, but such has not always been true, with implications for California's high court. In 1986, for instance, GOP Gov. George Deukmajian backed the death penalty, a political wedge that helped to seal the fate of then-Supreme Court Justice Cruz Reynoso, one of three jurists who were ousted in an historic vote under the state system of electoral judicial-retention. "The high court took a clear turn to the right in terms of protecting insurance companies and other businesses," he said. Democratic Gov. Jerry Brown had appointed him, Chief Justice Rose Bird and Associate Justice Joseph Grodin to the state Supreme Court. Thirty years ago the Republican Party was more powerful in California, a shadow of its former self today in the face of Democratic majority. "I think Gov. Brown's appointees -- Justices Liu, Cuellar and Kruger -- have been pretty reasonable," the CJAC's Stone said. "I would not say they differ tremendously from the general California electorate." * CPSC May Need to Review Product Safety Inspection Practices ------------------------------------------------------------- Richard Chiu, writing for Jobs & Hire, reports that authorities may soon be looking into existing consumer product safety inspections and regulations with the recent recalls of regular household items that pose safety risks for the public. This, after a recent voluntary recall of about 2.8 million Samsung top-load washing machines which may cause harm to users operating it due to a faulty top that could detach while in use. This is the second massive recall by Samsung after it was reeling from the battery problem of their recently released best-selling smartphone model. According to CNBC, there have already been 733 incidents reported of excessive vibration during operation and the top being detached from the main body. At least nine cases of injuries have been recorded ranging from impact injuries, broken jaw, and shoulder injuries. Industry safety experts believe that authorities should review current practices and processes involving product safety inspections and testing. This could also mean having to review current policies and regulatory practices governing it. The Unite States Consumer Product Safety Commission, in their website, indicates that aside from the washing machine recall, there are already four different consumer products that have already been highlighted for recall only this November. The list includes an off-road motorcycle due to crash hazards, an imported glass knob allegedly causing lacerations, several dehumidifiers due to burn and fire hazards and a bicycle model believed to cause fall hazards and injury to the rider. But the questions currently being raised is how come these products were cleared for release to the market and could have avoided causing damage and injuries in the first place. Recently, law firm Lieff Cabraser filed a class- action suit seeking damage compensation against Samsung for the defective washing machines. According to Statistics Brain, the most recalled products during the past 12 months are home products ranging from electrical to electronic household appliances, with the United States ranking second from China by having the most number of product recalls per country. The top reason for product recalls is fire and fire- related injuries, raising questions if product recalls are worth it instead of nipping it in the bud. * DOL's New Overtime Rule to Impact Companies, Non-Profits ---------------------------------------------------------- Rebekah Mintzer, writing for The National Law Journal, reports that employers and their counsel have plenty in the labor and employment world to keep them busy at the moment -- from navigating the U.S. Department of Labor's overtime rule to managing new employment relationships that have emerged from the sharing economy. These matters and others were discussed in New York on Oct. 18 at a conference held by employment law firm Epstein Becker & Green that featured David Weil, administrator of the DOL's Wage and Hour Division, and two U.S. Chamber of Commerce officials -- James Plunkett, director of labor law policy, and Marc Freedman, executive director of labor law policy. Here are five takeaways from the conference: 1. Overtime rules are still contentious. The DOL's new overtime rule, which goes into effect Dec. 1, raises the income level below which workers must be paid overtime, thus giving overtime to a DOL-estimated 4 million new workers. The rule is controversial. The Oct. 18 session showed that the Chamber, which sued in September to stop the rule, is still strongly opposed. Mr. Freedman emphasized the effect of the regulation on companies and nonprofits -- which are also covered. He said companies "will have to give up some margin" and nonprofits "will have to sacrifice mission," to pay more workers overtime. Mr. Weil countered that the regulation leaves room for employers to adjust hours worked and shift workload to comply with the new rule. "We're not in this to play some big 'gotcha' game," he said of the DOL's attitude toward overtime compliance. 2. Business is still concerned about greater disclosure of demographic and pay data. The Equal Employment Opportunity Commission's updated annual EEO-1 form, which as of March 2018 will require employers to disclose demographic and pay data about their workforce in 10 job categories and 12 pay bands, is still causing agitation for employers. To demonstrate the compliance burden the U.S. Chamber of Commerce sees in the new form, Mr. Plunkett took out a hard copy of the new EEO-1 form and unrolled it until it took up most of the length of the conference stage. "This has been approved under the Paperwork Reduction Act," he said. "Only in Washington, D.C., right?" 3. "Sub-regulations" may get companies down. Regulatory burden on businesses also came up frequently, including what the business group's Mr. Freedman calls "subregulatory" work -- guidance and rules that are released by agencies without going though the usual evaluation and comment periods. Mr. Freedman said in an interview after the session that the next president's administration "needs to be much more restrained on how they use subregulatory activities." He cited two examples of these initiatives from the DOL -- one on employee misclassification and another on joint employer relationships. Mr. Weil released these two guidance documents to explain, respectively, how the department will evaluate employee versus independent contractor status under the Fair Labor Standards Act, and how it will test whether two employers should share joint liability for labor law violations. 4. Labor Department continues scrutiny of "fissured" workplace. DOL's Weil said his team will continue to focus on what he calls the "fissured workplace" -- companies' use of subcontractors, franchising and outsourcing to operate parts of its business. Weil said that when a company uses a partner entity like a staffing agency and exercises control over employees of that agency they have "skin in the game." "Therefore, we need to think about [the company's] role as a party to the employment relationship," he said. 5. Do "sharing economy" workers need a new classification? The emergence of the "sharing economy" has raised questions about employee classification for workers like on-demand drivers, who have sued Uber Technologies Inc. over their status as independent contractors. Some have suggested a third category is necessary to accommodate the unique tech platform-enabled work performed by those in the sharing economy. Mr. Weil disagrees. "For a lot of what we see in this small space, [workers] are still reasonably evaluated with the existing kinds of designations," Mr. Weil said in an interview after the session. * Federal Agencies Avoid Use of Formal Class Action Procedures -------------------------------------------------------------- Michael Sant'Ambrogio and Adam Zimmerman, writing for RegBlog, report that federal agencies in the United States hear almost twice as many cases each year as the federal courts. But agencies routinely avoid using tools that courts rely on to efficiently resolve large groups of claims: class actions and other complex litigation procedures. As a result, across the administrative state, cases often languish for years without remedy -- denying justice for plaintiffs ranging from wounded veterans to students duped by dishonest for-profit colleges. A handful of federal administrative programs, however, have quietly bucked this trend. The U.S. Equal Employment Opportunity Commission (EEOC) created an administrative class action procedure, modeled after rules that exist in federal court, to resolve federal employees' "pattern or practice" claims of discrimination before federal administrative judges. The National Vaccine Injury Compensation Program (NVICP) uses "Omnibus Proceedings" to pool together common claims that allege a vaccine injured large groups of children. And facing an "existential" backlog of claims, the Office of Medicare Hearings and Appeals (OMHA) recently instituted a new "Statistical Sampling Initiative" to resolve hundreds of common medical claims at a time by statistically extrapolating the results of a few hearing outcomes. Based on our prior work, the Administrative Conference of the United States--a government body that issues guidance and policy for all federal agencies--invited us to study administrative programs that aggregate claims like these. With this unusual access to agency policymakers, staff and adjudicators, we took a unique look inside administrative tribunals that use mass adjudication in areas as diverse as employment discrimination, mass torts, and health care. Overall, we found that even though most agencies enjoy substantial authority to aggregate cases, very few do so. Indeed, we identified more than 50 federal agencies with rules permitting some form of aggregation, yet we found that only a fraction of them used the formal class action or other complex litigation procedures that they had on their books. This is somewhat surprising because agencies often enjoy even more power than federal judges to group together common cases. Agencies are not constrained by Article III standing requirements or the Rules Enabling Act, which limit the ways federal courts use class actions and other complex procedures. That being said, when agencies do employ collective procedures, they serve as vital tools for responding to rising case volumes while promoting legal access. Collective procedures can take a variety of forms. Agencies may, for instance, aggregate using formal rules, like class actions, or they may aggregate through more informal techniques, like assigning separate cases to the same adjudicator, venue, or expedited docket. In many cases, agencies have recognized the power of these collective procedures, finding that they enhance efficiency, improve consistency, and promote legal access. For example, although OMHA's statistical sampling initiative is in its early stages, sampling will permit OMHA to resolve thousands of similar claims by the same appellants, sometimes involving the same beneficiary with only a different service date, in a handful of proceedings. Since launching the program, OMHA has been urged by medical providers to expand opportunities to aggregate and settle large numbers of claims. Aggregate procedures also improve uniformity. The EEOC's class action procedure helps it resolve "pattern or practice" claims of discrimination by federal employees. The EEOC deems this process indispensable in light of the volume of claims it processes each year and the potential for inconsistent judgments. Finally, aggregation has improved access to legal and expert assistance by parties with limited resources, so that individuals can pursue claims that otherwise would be difficult to bring on their own. For example, the NVICP allows any party alleging a vaccine-related injury to benefit from the record developed in large "test cases" by the most qualified experts and experienced legal counsel. Of course, aggregate adjudication poses challenges of its own. Aggregating cases may stretch courts' capacity to administer justice to many people, undermine the perceived "legitimacy" of a process without individual hearings, and increase the consequences of error. But many programs we studied took steps to address these concerns. OMHA has cautiously piloted its statistical sampling program to avoid replacing old backlogs with new ones. The NVICP has relied on panels of adjudicators to reduce concerns about having one decision maker decide thousands of cases. Judges at both the EEOC and the NVICP ensure that lawyers in big cases possess the skill to represent large groups and that individuals voluntarily participate in the process. Other agencies considering class actions or other complex procedures can learn from the experience of the EEOC, NVICP and OMHA. This summer, we proposed a series of recommendations to federal agencies on the use of aggregation based on our research. These recommendations were ultimately adopted by the Administrative Conference of the United States in June 2016. First, agencies should determine whether they have a sufficient number of common claims to justify adopting rules governing aggregation. This may require developing a database to identify and track similar cases. Second, agencies can borrow rules from complex litigation in federal courts to identify cases suitable for class treatment. These may include rules to determine: whether enough cases exist to justify aggregation and whether aggregating cases "materially advances" the resolution of those cases. In addition, agencies should determine whether they can accomplish similar goals through other tools, like informal rulemaking. Third, agencies should ensure aggregate proceedings are transparent and legitimate. They should publish written policies for aggregating cases, assign cases to experienced, independent adjudicators, and ensure lawyers adequately represent different interest groups. Finally, agencies should consider how to harness aggregation to coordinate and improve the way they make policy. Large cases give agencies an opportunity to discover problems that might escape their attention in scattered, individual trials. At a minimum, agencies should publish their outcomes and consider whether to codify them into more generally applicable rules. Our look inside the way that agencies use complex procedures offers important lessons for an often-overlooked bottleneck in ordinary citizens' access to justice: the millions of cases stuck in administrative courts. Even as some fear that collective procedures may stretch the limits of adjudication, our study supports a very different conclusion: group procedures can form an integral part of public regulation and the adjudicatory process itself. * New Jersey's Consumer Contract Statute to Impact Businesses ------------------------------------------------------------- Deborah Renner, Esq. -- drenner@bakerlaw.com -- of Bakerhostetler, and Kimberly Kalmanson, Esq., of Kalmanson Law Office, in an article for Law.com, report that a little-known New Jersey statute has been causing big headaches for businesses across the county. The New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (the TCCWNA) was enacted as part of New Jersey's consumer protection statutes. It was designed some 35 years ago to ensure that consumers would not fall victim to contractual provisions that were unenforceable. Importantly, the TCCWNA reaches online contracts, warranties and notices, increasing the number of suits brought against nationwide companies in recent years. The plaintiffs' bar typically brings these cases against retailers, online service providers and others as purported class actions. But the pushback from the defense bar has been strong, as the statute raises issues of whether there must be an underlying harm for a TCCWNA claim to be viable, and relatedly, whether an uninjured plaintiff has standing to pursue a TCCWNA claim. The statute also draws, and perhaps crosses, that fine line between a seller's responsibility for providing an adequate disclosure on the one hand and a seller's obligation and perhaps its right not to provide legal advice. The TCCWNA itself does not create consumer rights or seller responsibilities. Rather, it is a derivative statute that imposes both actual and/or statutory damages ($100 per violation), in addition to reasonable attorneys' fees and court costs against sellers for including provisions in their contracts, warranties and notices that violate state or federal law. The TCCWNA applies to "seller[s]," "lessor[s], creditor[s], lender[s], or bailee[s]" of consumer products and services. In addition to demonstrating that some portion of a contract, notice or warranty violates a state or federal law, to proceed under the statute, a plaintiff must be a " consumer." A consumer is defined as: -- An individual who -- "Buy[s], lease[s], borrow[s] or bail[s]" any " money, property or service;" where -- The money, property or services are "primarily for personal, family or household purposes." The property can be tangible or intangible. The TCCWNA flips the "buyer beware" model on its head. A recent spate of litigation has resulted in a broad interpretation of the statute. As a result, sellers (and their counsel) must be aware of the potential reach of the statute in order to protect against litigation. There are some basics all sellers in New Jersey, or those selling on-line to New Jersey consumers, should know: It isn't easy to contract your way out of the TCCWNA: The statute proscribes waivers of consumer rights under the TCCWNA. It also prohibits any "consumer contract, notice or sign" from "stat[ing] that any of its provisions is or may be void, unenforceable or inapplicable in some jurisdictions without specifying which provisions are or are not void, unenforceable or inapplicable within the State of New Jersey." In other words, sellers cannot escape liability merely by including broad disclaimers stating that unspecified provisions, for instance, may not be enforceable in some jurisdictions (commonly seen in consumer contracts). This is of particular import for online sellers, who often include catch-all provisions to simultaneously protect themselves and avoid a cost-prohibitive analysis of state-by-state law. That said, thoughtful contract language can be crafted that walks the line between protecting the seller and avoiding the trap of the TCCWNA. No signature? Doesn't matter: Contracts, notices and warranties need not be executed to be covered by the TCCWNA. Online purchases, even without a signed agreement, may be deemed to be "consumer contracts" under the TCCWNA. According to some courts, a seller only must "present" a non-compliant writing to a consumer for a violation to occur. But such a view of the TCCWNA begs the question of whether there must be an actual injury for a seller to be liable under the statute. Also under the category of "seller beware," courts have interpreted the term "contract" or "notice" to include an array of noncontractual writings. For example, in Restaurant.com, Inc., the New Jersey Supreme Court found that printed terms of use on consumer certificates for discounted restaurant meals constituted "notices" under the TCCWNA. "But it's not enforceable in court": Defendants have raised the argument that, where provisions "would not be enforced by a court" they "cannot form the basis of a TCCWNA violation." This seems to be a nonstarter. The very purpose of the TCCWNA is to discourage unenforceable provisions from being included in covered writings. Thus, courts have held that unenforceable provisions"fall[s] directly within the TCCWNA's ambit." The net effect of the case law is that contracts subject to New Jersey law must be carefully constructed. Both common and statutory laws are subject to the TCCWNA, and research is often necessary to determine whether a contractual clause complies with the law. For this reason, statutes like the TCCWNA change the game for online sellers in particular, erecting high barriers to entry, in an arena where, generally, they do not otherwise exist. From the perspective of the plaintiffs' bar, the TCCWNA serves a critical purpose in enforcing consumer rights. However, from a defense perspective, the statute is replete with issues, not the least of which is a consumer's standing to bring a TCCWNA suit without having suffered any injury. * Obama's BICE Rule to Impact Investors and Investment Advisers --------------------------------------------------------------- Anthony Scaramucci, writing for Daily Times, reports that the Obama administration's new fiduciary rule, finalised by the Labour Department in April, will one day serve as a case study in government overreach, a clear example of how faulty regulation can have severe unintended consequences. The new rule requires financial advisers and broker-dealers handling retirement assets to either move to a fee-based compensation model or, if they want to continue receiving variable compensation such as commissions and 12b-1 fees, sign a Labour Department "best-interest contract exemption," or BICE, with clients. The BICE stipulates advisers can only earn "reasonable compensation" on non-fee-based products. If those clients feel their "best interests" have been violated, they can file class- action lawsuits against advisory practices. Firms need to be compliant on broader provisions of the rule by April 2017 and fully compliant by 2018. Putting the word "fiduciary" in the title was a clever rhetorical trick. How could someone oppose a rule requiring financial advisers to act in the best interests of clients? The problem is the new rule doesn't actually protect investors. It makes sound retirement advice harder to get and more expensive. Plaintiffs including the US Chamber of Commerce have filed six separate lawsuits to prevent the new regulation from taking effect. They argue the rule would expose financial advisers to significantly higher regulatory costs and litigation risks while preventing small account holders from getting good, affordable advice. Out of an abundance of caution, most firms have reluctantly begun the transition to fee-only accounts, but Morgan Stanley bucked the trend by announcing it would take the risk of continuing to offer client choice. Here are a few of the undesirable effects the new rule will likely have on investors and investment advisers: Push investors excessively into passive index funds. The investment adviser's job is to create a long-term asset allocation mix for clients producing the highest possible risk-adjusted return-and the new fiduciary rule prevents him from doing that job effectively. Indexes have outperformed actively managed funds in the post crisis era due to zero interest rates and quantitative easing, leading to a surge in popularity for passive strategies. Over the past decade, passively managed index funds have nearly doubled their market share to around 30% of 401(k) assets, contributing to frothy valuations for indexed stocks. The new fiduciary rule will accelerate the growth of the indexing bubble by making it impractical and uneconomical for advisers to allocate client money to more-expensive actively managed funds-even if they are deemed more appropriate based on market conditions. As a result, investors will likely be more defenceless than ever heading into the next downturn. Cost investors more money. Like many federal regulations, the new fiduciary rule will hurt the very people it purports to protect. The rule is designed to save retirees money by eliminating excessive commissions, but research shows it could lead to tens of billions of dollars in new costs. According to Morningstar Inc., fee-based accounts often yield up to 60% more than commission-based accounts, which could translate into another $13 billion in revenue for the financial industry. Punish small and independent registered investment advisers, or RIAs. Dodd-Frank was supposed to end "too-big-to-fail," but instead unduly punished small community banks, which couldn't afford significantly higher compliance costs, leading to further consolidation in the industry. The new fiduciary rule will have the same effect on retirement planning. Large wire houses will be able to adapt and survive, but small and independent RIAs lacking the resources to set up expensive new compliance systems based on the 1,023-page rule will be forced to exit the business or pursue mergers. Punish small savers. The increased threat of litigation over commission-based accounts will cause most advisers to switch to fee-based systems that don't make economic sense for accounts with low balances. Advisers will drop smaller accounts, forcing less- wealthy individuals to use robo advisers, whose technology is unproven in more volatile environments. Financial crises and market crashes are often the result of overregulation creating bad incentives. Economist Milton Friedman once said, "One of the great mistakes is to judge policies and programs by their intentions rather than their results." The Community Reinvestment Act of 1977, for example, aimed to reduce discriminatory lending practices against low-income households, but instead paved the way for the housing crisis by forcing banks to give mortgages to people who couldn't afford them. The Affordable Care Act has made insurance premiums significantly more expensive by reducing competitiveness in the health-care industry. The Obama administration's new fiduciary rule is the latest example of onerous regulation that may have good intentions but will lead to disastrous outcomes. Let the free market dictate where assets flow. Firms putting client interests first thrive organically in a capitalist system. * SCOTUS Set to Tackle Issues on Mandatory Arbitration Clauses -------------------------------------------------------------- Arthur Bryant, writing for The National Law Journal, reports that the current eight-member U.S. Supreme Court is not agreeing to hear many highly contested cases, including class actions, where a 4-4 disagreement might be expected. One enormously important class action issue, however, is likely to be considered soon: Can employers use mandatory arbitration clauses in employment contracts to ban workers' collective and class actions? That's the basic question presented in four cases now up for review. All involve employees claiming they were cheated out of overtime pay. And all involve mandatory arbitration clauses that forbid employees from bringing collective or class actions. First, in National Labor Relations Board v. Murphy Oil USA, the NLRB says the U.S. Court of Appeals for the Fifth Circuit erred when it held the company could use a mandatory arbitration clause in its form employment contract to prohibit all workers at more than 1,000 stores in 21 states from pursuing collective actions under the Fair Labor Standards Act and class actions in federal and state court. The clause says each worker has to proceed individually and alone. The NLRB believes that violates Section 7 of the National Labor Relations Act (NLRA), which gives employees "the right to . . . engage in . . . concerted activities for the purpose of . . . mutual aid and protection." The Supreme Court has previously said these "concerted activities" include actions pursued in "administrative and judicial forums." Because the NLRB is charged with enforcing America's labor laws, its interpretation is entitled to substantial deference. That interpretation underscores what's at issue: "the right to engage in collective action -- including collective legal action -- is the core substantive statutory right protected by the NLRA and the foundation on which the Act and Federal labor policy rest." Second, in Epic Systems v. Lewis, brought under the Fair Labor Standards Act and Wisconsin law, Epic is challenging the Seventh Circuit's refusal to enforce the collective and class action ban in the mandatory arbitration clause in its form employment agreement. Relying on the Supreme Court's recent decisions in AT&T Mobility v. Concepcion and American Express v. Italian Colors Restaurant, Epic argues that arbitration agreements must be "enforced according to their terms" unless the Federal Arbitration Act's mandate has been "overridden by a contrary federal command." Because the NLRA contains no such command, Epic claims, its mandatory arbitration clause prohibiting joint actions must be enforced. Third, in Morris v. Ernst & Young, the accounting firm is asking the Supreme Court to overturn a Ninth Circuit decision agreeing with the Seventh Circuit's ruling in Epic. In both cases, the courts rejected the employers' assertions that the Federal Arbitration Act (FAA) effectively overrides the NLRA. Both courts found no conflict between the statutes and noted that the FAA's savings clause says arbitration clauses are enforceable except "upon such grounds as exist at law or in equity for the revocation of any contract." Since the NLRA exists "at law" and is grounds "for the revocation of any contract," the courts held the FAA's savings clause confirms that concerted and class action bans in mandatory arbitration clauses cannot be enforced. Fourth, in Patterson v. Raymours Furniture, a collective and class action under FLSA and New York law, the plaintiff says the Second Circuit erred by enforcing a collective and class action ban in an employment contract's mandatory arbitration clause. ARGUING THAT A 1932 LAW APPLIES In addition to the NLRA, the plaintiff, Connie Patterson, relies on the Norris-La Guardia Act, enacted in 1932, seven years after the FAA. Sections 2 and 3 nullify "any undertaking or promise" that conflicts with workers' rights to "be free from the interference, restraint, or coercion of employers" in pursuing "concerted activities for the purpose of . . . mutual aid or protection." Section 3 says any such undertaking or promise "shall not be enforceable in any court of the United States and shall not afford any basis for the granting of equitable or legal relief by any court." Section 15 says, "All acts and parts of acts in conflict with the permissions of this chapter are repealed." Based on these, Patterson argues that the FAA was "overridden by a contrary federal command" -- the Norris-La Guardia Act. One other point may affect how the Supreme Court rules on this issue: the distinction the NLRA is drawing between procedural and substantive rights. In all of these cases, the NLRA argues, unlike in any previous case, the class and collective action bans violate the plaintiffs' substantive rights: the "right to concerted action" created by Section 7 of the NLRA, "the NLRA's only substantive provision." They are, the NLRA maintains, like "contracts providing that employees can be fired on the basis of age contrary to the ADEA or will not be paid the minimum wage dictated by the FLSA." Asbestos Litigation ASBESTOS UPDATE: 3 Attys OK'd Pro Hac Vice Practice in "Waugh" -------------------------------------------------------------- In the case captioned JACK JUNIOR WAUGH, Plaintiff v. ADVANCED AUTO PARTS, INC., el al., Defendants, No. 1:16 CV 310 (W.D.N.C.), Judge Dennis L. Howell of the United States District Court for the Western District of North Carolina, Asheville Division, issued an order dated October 21, 2016, granting Christopher B. Major's application for admission to practice pro hac vice of Moffatt M. McDonald, W. David Conner, and Scott E. Frick, and that they are admitted to practice, pro hac vice, before the Bar of the court while associated with Christopher B. Major. A full-text copy of the Order with respect to Mr. McDonald is available at http://tinyurl.com/jc569jlfrom Leagle.com. A full-text copy of the Order with respect to Mr. Conner http://tinyurl.com/zw8tjf2is available at from Leagle.com. A full-text copy of the Order with respect to Mr. Frick is available at http://tinyurl.com/zzry4rsfrom Leagle.com. Jack Junior Waugh, Plaintiff, represented by Sabrina G. Stone, Dean Omar Branham, LLP, pro hac vice. Jack Junior Waugh, Plaintiff, represented by William M. Graham, Wallace & Graham. Advance Auto Parts, Inc., Defendant, represented by Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Air & Liquid Systems Corporation, Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP & William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP. Bechtel Corporation, Defendant, represented by Jennifer M. Techman, Evert Weathersby Houff. Blackmer Pump Company, Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP & William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP. CBS Corporation, Defendant, represented by Jennifer M. Techman, Evert Weathersby Houff. CertainTeed Corporation, Defendant, represented by Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Crane Co., Defendant, represented by Marla Tun Reschly, K&L Gates LLP. Dana Companies LLC, Defendant, represented by Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Daniel International Corporation, Defendant, represented by Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Deere & Company, Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP & William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP. Fluor Constructors International, Defendant, represented by Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Fluor Constructors International, Inc., Defendant, represented by Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Fluor Daniel Services Corporation, Defendant, represented by Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Fluor Enterprises, Inc., Defendant, represented by Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Ford Motor Company, Defendant, represented by Christopher Ray Kiger, Smith Anderson & Kirk Gibson Warner, Smith Anderson. General Electric Company, Defendant, represented by Jennifer M. Techman, Evert Weathersby Houff. Genuine Parts Company, Defendant, represented by Matthew Patrick McGuire, Alston & Bird LLP & Heather B. Adams, Alston & Bird LLP. Georgia-Pacific LLC, Defendant, represented by Kenneth Kyre, Jr., Pinto Coates Kyre & Bowers, PLLC. Goulds Pumps, Inc., Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP & William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP. Grinnell, LLC, Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP & William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP. Honeywell International, Inc., Defendant, represented by H. Lee Davis, Jr., Davis & Hamrick, L.L.P.. Metropolitan Life Insurance Company, Defendant, represented by Keith E. Coltrain, Wall, Templeton & Haldrup, PA. O'Reilly Automotive Stores, Inc., Defendant, represented by Eric T. Hawkins, Hawkins, Parnell, Thackston & Young. Pfizer, Inc., Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP & William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP. Pneumo Abex, LLC, Defendant, represented by Timothy W. Bouch, Leath Bouch Crawford & von Keller. Sequoia Ventures, Inc., Defendant, represented by Jennifer M. Techman, Evert Weathersby Houff. Union Carbide Corporation, Defendant, represented by Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Viad Corporation, Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP & William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP. Warren Pumps, LLC, Defendant, represented by Joshua H. Bennett, Bennett & Guthrie, P.L.L.C.. Whirlpool Corporation, Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP & William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP. William Powell Company, Defendant, represented by David B. Oakley, Poole Brooke Plumlee PC. Yuba Heat Transfer, LLC, Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP & William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP. ASBESTOS UPDATE: Crane Co. Has Until May to Perfect Appeal ---------------------------------------------------------- The Appellate Division of the Supreme Court of New York, First Department, in a decision dated November 10, 2016, enlarged Crane Co.'s time to perfect appeals to the May 2017 Term in the New York City Asbestos Litigation cases captioned ACEVEDO, v. A.P. GREEN INDUSTRIES, INC.; LIMAN, v. AIR & LIQUID SYSTEMS CORP.; MARKOU, v. AIR & LIQUID SYSTEMS CORP.; BRESCHARD v. A.O. SMITH WATER PRODUCTS, CO.; and MALDONADO v. A.O. SMITH WATER PRODUCTS, CO., Motion Nos. M-5062, M-5063, M-5066, M-5067, M-5069 2016 NY Slip Op 90961(U)(N.Y. App. Div.). ASBESTOS UPDATE: Georgia-Pacific Junked as Defendant in "Johnson" ----------------------------------------------------------------- Judge Edward M. Chen of the United States District Court for the Northern District of California, San Francisco Division, issued an order dated November 7, 2016, a full-text copy of which is available at http://tinyurl.com/zjvhxu8from Leagle.com, dismissing, without prejudice, Georgia-Pacific LLC, f/k/a Georgia- Pacific Corporation, as defendant in the case captioned MARCELLA JOHNSON, et al., Plaintiff, v. PUGET SOUND COMMERCE CENTER, INC., et al., Defendants, Case No. 3:15-cv-02664-EMC (N.D. Calif.). Richard Johnson, Plaintiff, represented by David R. Donadio, Brayton Purcell LLP. Richard Johnson, Plaintiff, represented by Alan R. Brayton, Brayton Purcell LLP & Kimberly Joy Wai Jun Chu, Brayton Purcell LLP. Marcella Johnson, Plaintiff, represented by David R. Donadio, Brayton Purcell LLP, Alan R. Brayton, Brayton Purcell LLP & Kimberly Joy Wai Jun Chu, Brayton Purcell LLP. Devin Johnson, Plaintiff, represented by David R. Donadio, Brayton Purcell LLP & Alan R. Brayton, Brayton Purcell LLP. Tiffaney Johnson, Plaintiff, represented by David R. Donadio, Brayton Purcell LLP & Alan R. Brayton, Brayton Purcell LLP. Puget Sound Commerce Center Inc, Defendant, represented by Demian David Steele, Yaron & Associates, George D. Yaron, Yaron & Associates & Michael C. Guasco, Yaron & Associates. Georgia Pacific, LLC, Defendant, represented by Eric Dean Sentlinger, Perkins Coie LLP & David T. Biderman, Perkins Coie LLP. Fireman's Fund Insurance Company on behalf of its suspended insured Associated Insulation of California, Inc., Defendant, represented by Michael Eric Sandgren, Selman Breitman LLP. ASBESTOS UPDATE: 3 Attys OK'd Pro Hac Vice Practice in "Hanson" --------------------------------------------------------------- In the case captioned LISA HANSON, Individually, and as Executrix of the Estate of DELMONT D. HANSON, Deceased, and TONY HANSON, Plaintiffs, v. 3M COMPANY, a/k/a Minnesota Mining & Manufacturing Company, et al., Defendants, No. 1:16-cv-328 (W.D.N.C.), Magistrate Judge Dennis L. Howell of the United States District Court for the Western District of North Carolina, Asheville Division, granted Christopher B. Major's application for admission to practice pro hac vice of Moffatt G. McDonald, W. David Conner, and Scott E. Frick, and they are admitted to practice, pro hac vice, before the Bar of the court while associated with Christopher B. Major. A full-text copy of the Order dated November 3, 2016, with respect to Mr. McDonald is available at http://tinyurl.com/j5kuph7from Leagle.com. A full-text copy of the Order dated November 3, 2016, with respect to Mr. Conner is available at http://tinyurl.com/h453hwdfrom Leagle.com. A full-text copy of the Order dated November 3, 2016, with respect to Mr. Frick is available at http://tinyurl.com/z2k4nowfrom Leagle.com. Lisa Hanson, Plaintiff, represented by William M. Graham, Wallace & Graham. Tony Hanson, Plaintiff, represented by William M. Graham, Wallace & Graham. 3M Company, Defendant, represented by Michael Casin Griffin, Bradley Arant Boult Cummings LLP. American Biltrite, Inc, Defendant, represented by Eric T. Hawkins, Hawkins, Parnell, Thackston & Young. Domco Products Texas, L.P, Defendant, represented by Timothy Peck, Smith Moore Leatherwood LLP. General Electric Company, Defendant, represented by Jennifer M. Techman, Evert Weathersby Houff. H.B. Fuller Company, Defendant, represented by Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Metropolitan Life Insurance Company, Defendant, represented by Keith E. Coltrain, Wall, Templeton & Haldrup, PA. Pfizer, Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP & William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP. Warren Pumps, LLC, Defendant, represented by Joshua H. Bennett, Bennett & Guthrie, P.L.L.C.. CBS Corporation, Defendant, represented by Jennifer M. Techman, Evert Weathersby Houff. ASBESTOS UPDATE: Bid for Allowance of Appeal in "Campbell" Denied ----------------------------------------------------------------- The Supreme Court of Pennsylvania, Western District, issued an order dated November 2, 2016, denying the petition for allowance of appeal in the case captioned BETTY WELLES CAMPBELL, EXECUTRIX OF THE ESTATE OF SAMUEL P. CAMPBELL, SR., AND BETTY WELLES CAMPBELL, IN HER OWN RIGHT v. A.O. SMITH CORPORATION, IN ITS OWN RIGHT AND AS SUCCESSOR IN INTEREST TO THE CLARK CONTROLLER COMPANY AND A.O. SMITH CORPORATION; A.W. CHESTERTON COMPANY; AGCO CORPORATION, AS SUCCESSOR IN INTEREST TO ALLIS CHALMERS CORPORATION; AIR & LIQUID SYSTEMS CORPORATION, AS SUCCESSOR BY MERGER TO BUFFALO PUMPS, INC.; AJAX MAGNETHERMIC CORPORATION; ALLIED GLOVE CORPORATION; AMERICAN OPTICAL CORPORATION; AMERICAN STANDARD COMPANY, INC.; ARMSTRONG INTERNATIONAL, INC., ARMSTRONG PUMPS, INC.; AQUA-CHEM, INC., CLEAVER-BROOKS DIVISION; AURORA PUMP COMPANY; BEAZER EAST, INC. IN ITS OWN RIGHT AND AS SUCCESSOR TO KOPPERS COMPANY, INC. AND OTHER RELATED COMPANIES INCLUDING THIEM CORPORATION, BEAZER USA, INC., AND BEAZER, PLC; BLACKMER PUMP COMPANY; BW/IP INTERNATIONAL INC., F/K/A BORG WARNER INDUSTRIAL PRODUCTS, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO BYRON JACKSON PUMPS; CASHCO, INC.; CATALYTIC CONSTRUCTION COMPANY; CBS CORPORATION, A DELAWARE CORPORATION, F/K/A VIACOM INC., SUCCESSOR BY MERGER TO CBS CORPORATION, A PENNSYVLANIA CORPORATION, F/K/A WESTINGHOUSE ELECTRIC CORPORATION; CHAMPLAIN CABLE CORPORATION, AS SUCCESSOR IN INTEREST TO HERCULES INC; COLUMBUS McKINNON; COMMONWEALTH EDISON COMPANY; COPES-VULCAN, INC; CRANE CO.; CROWN CORK & SEAL COMPANY; DEZURIK, INC.; DRAVO CORPORATION; DURAMETALLIC CORPORATION; EATON CORPORATION, AS SUCCESSOR IN INTEREST TO CUTLER HAMMER, INC. EICHLEAY CORPORATION; ELECTROLUX HOME PRODUCTS; ELSA BENSON, INC; EXELON CORPORATION; FLOWSERVE U.S., INC., F/K/A FLOWSERVE FSD CORPORATION, AS SUCCESSOR TO DURCO INTERNATIONAL, DURIRON COMPANY AND DURAMETALLIC; FMc CORPORATION, INDIVIDUALLY AND ON BEHALF OF ITS FORMER PEERLESS PUMPS; FOSECO, INC.; FOSTER WHEELER CORPORATION; GENERAL CABLE CORPORATION; GEORGIA PACIFIC CORPORATION; GENUINE PARTS COMPANY; GOULDS PUMPS, INC; GREENE TWEED & COMPANY; GRINNELL LLC; HEDMAN RESOURCES LIMITED; HONEYWELL, INC., HONEYWELL INTERNATIONAL, INC., FORMERLY KNOWN AS ALLIED SIGNAL, INC., AS SUCCESSOR IN INTEREST TO THE BENDIX CORPORATION; IMO INDUSTRIES, INC., F/K/A IMO DELAVAL, INC., F/K/A TRANSAMERICAN DELAVAL, INC., F/K/A DELAVAL TURBINE, INC., DELAVAL TURBINE, INC., DEVALCO CORPORATION; INDUSTRIAL HOLDINGS CORPORATION F/K/A CARBORUNDUM COMPANY; INGERSOLL RAND; INSUL COMPANY, INC.; ITT CORPORATION, F/K/A ITT INDUSTRIES; JOY TECHNOLOGIES F/K/A JOY MANUFACTURING COMPANY D/B/A JOY MANUFACTURING COMPANY, INC; KAISER GYPSUM COMPANY, INC.; MALLINCKRODT US LLC, IN ITS OWN RIGHT AND AS SUCCESSOR IN INTEREST TO IMcERA GROUP, INC., AND INTERNATIONAL MINERALS AND CHEMICAL CORPORATION, AND AS SUCCESSOR IN INTEREST TO E.J. LAVINO; MARLEY COOLING TOWER; McCANN SHIELDS PAINT COMPANY; McCARLS, INC.; McJUNKIN RED MAN CORPORATION, IN ITS OWN RIGHT AND AS SUCCESSOR IN INTEREST TO McJUNKIN CORPORATION; MET-PRO CORPORATION AND ITS DEAN PUMP DIVISIONL METROPOLITAN LIFE INSURANCE COMPANY A/K/A METROPOLITAN INSURANCE COMPANY; MILWAUKEE VALVE COMPANY; MINE SAFETY APPLIANCE COMPANY; MINNOTTE CONTRACTING CORPORATION; MORGAN ENGINEERING, IN ITS OWN RIGHT AND AS SUCCESSOR IN INTEREST TO ALLIANCE MACHINE COMPANY; NAGLE PUMPS, INC; OAKFABCO, INC.; OGLEBAY NORTON COMPANY, AND ITS DIVISION FERRO ENGINEERING; OWENS- ILLINOIS, INC.; PHELPS DODGE INDUSTRIES, INC; POWELL VALVE COMPANY; POWER PIPING; PREMIER REFRACTORIES, INC., F/K/A ADIENCE, INC, SUCCESSOR IN INTEREST TO ADIENCE COMPANY, LP, AS SUCCESSOR TO BMI, INC.; RILEY STOKER CORPORATION; ROCKWELL AUTOMATION, INC., IN ITS OWN RIGHT AND AS SUCCESSOR IN INTEREST TO ALLEN BRADLEY; SAFETY FIRST INDUSTRIES, INC., IN ITS OWN RIGHT AND AS SUCCESSOR IN INTEREST TO SAFETY FIRST SUPPLY, INC.; SAINT-GOBAIN ABRASIVES, INC., FORMERLY KNOWN AS NORTON COMPANY; SARGENT & LUNDY, LLC; SPIRAX SARCO, INC; SQUARE D COMPANY; TASCO INSULATION, INC., F/K/A/ THE ASBESTOS SERVICE COMPANY; THE ELECTRIC CONTROLLER AND MANUFACTURING COMPANY; THIEM CORPORATION, AND ITS DIVISION, UNIVERSAL REFRACTORIES; TRECO CONSTRUCTION SERVICES, INC., F/K/A THE RUST ENGINEERING COMPANY; TYCO FLOW CONTROL COMPNAY, LLC AS SUCCESSOR IN INTEREST TO CROSBY VALVE; UNIFRAX CORPORATION F/K/A CARBORUNDUM; UNION CARBIDE CORPORATION AND ITS LINDE DIVISION; UNITED CONVERYOR CORPORATION; UNITED STATES STEEL CORPORATION; WASHINGTON GROUP INTERNATION, F/K/A RAYTHEON ENGINEERS AND CONTRACTORS, INC., AND ALL ITS DOMESTIC SUBSIDIARIES, INCLUDING THE BADGER COMPANY, INC., WHITING CORPORATION; YARWAY CORPORATION; YEOMANS CHICAGO CORPORATION, IN ITS OWN RIGHT AND AS SUCCESSOR IN INTEREST TO MORRIS PUMPS, INC., ZURN INDUSTRIES, INC., A/K/A ERIE CITY IRON WORKS PETITION OF: MARK CAMPBELL, SAMUEL CAMPBELL JR., THOMAS CAMPBELL, CHRISTINE NOONAN AND DEBORAH SULLIVAN, No. 304 WAL 2016 (Pa. Sup.). A full-text copy of the Order is available at http://tinyurl.com/goprh95from Leagle.com. Timothy P. Creech, Creech & Creech LLC, for Mark Campbell, Petitioner. Timothy P. Creech, Creech & Creech LLC, for Samuel Campbell, Petitioner. Timothy P. Creech, Creech & Creech LLC, for Thomas Campbell, Petitioner. Timothy P. Creech, Creech & Creech LLC, for Christine Noonan, Petitioner. Timothy P. Creech, Creech & Creech LLC, for Deborah Sullivan, Petitioner. Thomas Jude Gohsler, Pennsylvania Department of Revenue, for Department of Revenue, Respondent. John R. Kane, Savinis & Kane L.L.C., for Betty Welles, Respondent. ASBESTOS UPDATE: Asbestos Present in 344 Kent Schools ----------------------------------------------------- Kent Live reported that hundreds of Kent schools operate in buildings containing potentially lethal asbestos. The county council has confirmed the cancer-causing substance is present at 344. These include everything from infant and special schools to sixth forms and pupil referral units. Exposure to asbestos, when disturbed, can cause mesothelioma, a terminal lung disease. Charlotte Perkins, a solicitor in asbestos related injuries at specialist legal firm Hugh James, said: "The teaching profession has been particularly hit by this terrible illness. Since 1980, 228 teachers have been diagnosed with mesothelioma having previously worked at schools throughout the UK." Claims against the council To date 12 Kent County Council employees have brought cases against the council. It has admitted liability on eight of these claims, paying out GBP842,958 as a result. Kent County Council says it carries out asbestos management surveys on a rolling three year programme, during which all suspected asbestos-containing material is recorded and samples taken away for analysis. Responding to a Freedom of Information request, the authority said: "All details are recorded in the asbestos survey report that becomes the site management plan that is delivered to the school. "On receipt of the site management plan the schools are then responsible for managing their own site for the next three years and this includes updating the management plan to reflect any changes. The management plans are required to be available to any contractor that visits the school to enable both the contractor and the school to take the appropriate action and safety precautions when planning and carrying out work on the premises." The 344 schools listed at http://tinyurl.com/jdy5qfcdo not include academies and independents, which are responsible for their own asbestos management. ASBESTOS UPDATE: Over Half of Liverpool Schools May Have Asbestos ----------------------------------------------------------------- Daisy Collingwood, writing for Liverpool Echo, reported that over half of schools in Liverpool are thought to have asbestos containing materials within them it has been revealed. In September 2016, 51 out of 87 schools in the area had been identified by Liverpool City Council as potentially having asbestos within them, or 59%. That figure has remained unchanged since the academic year September 2014 to July 2015, when there were 56 schools thought to contain asbestos and five of them were rebuilt, involving the complete demolition of the old asbestos containing buildings. Asbestos is a fibrous rock found in many materials including insulation, ceiling tiles and boilers in buildings built before 2000. Despite being banned from use in new buildings, asbestos is responsible for around 5,000 deaths a year. Whilst there is no risk to health if the asbestos containing materials are untouched, if they are damaged or disturbed by things like construction work, toxic fibres are released into the air which can cause cancer and other serious lung diseases. During the three year period from September 2013 to September 2016, the council spent GBP74,820.60 on directly removing asbestos from schools. But that figure doesn't include the cost of work carried out by contractors or direct removal action by schools. A Liverpool City Council spokesman said: "The clear advice from health and safety experts is that asbestos is better left encapsulated if it is in good condition and unlikely to be disturbed, and that the risk is managed. Proactively removing asbestos potentially creates more risks. "When work is being carried out that may disturb asbestos there is always a comprehensive survey conducted to manage the risk, and if it does become a risk its removal is treated as a priority and by suitably qualified experts. "Schools manage their asbestos risk individually, and our own schools are audited on it every three years. "Asbestos in Liverpool schools is reducing as a result of rebuilding and replacing more than 30 schools since 1999." ASBESTOS UPDATE: Mesothelioma Risk in Seaman Hard to Quantify ------------------------------------------------------------- Alex Strauss, writing for Surviving Mesothelioma, reported that thousands of people who worked aboard commercial ships may be at higher risk for developing malignant mesothelioma. Unfortunately, although the mesothelioma risk for merchant seamen has been acknowledged since the 1970s, there is still little information on how high the risk may be. That news comes from a new report on commercial seamen and mesothelioma published in the journal Inhalation Toxicology. Mesothelioma Risk and Commercial Seamen Seamen are thought to be more prone to pleural mesothelioma because of exposure to asbestos, a common but toxic mineral used primarily as an insulator in many ships built in the early part of the 20th century. By the mid-1900s, cases of malignant mesothelioma had begun to arise in workers in asbestos product manufacturing and asbestos mining and milling industries. But, according to David Dodge and Barbara Beck of the environmental and risk sciences consulting firm, Gradient, the danger of asbestos exposure on commercial ships was largely ignored for several more decades. "We found that attention to the potential health risk of asbestos to merchant seamen began in the mid- to late- 1970s and early 1980s," write Dodge and Beck. Asbestos and Mesothelioma: Making the Connection Although tests found the level of asbestos exposure during routine repairs aboard commercial ships was likely to be low, it was enough to send up red flags for people who worked on these ships. "Responses to this evolving information served to warn seamen and the merchant shipping industry and led to increased precautions regarding asbestos exposure," conclude Dodge and Beck. As rates of lung cancer and pleural mesothelioma among merchant seamen began to climb in the 1990s, some researchers finally began to make a connection between shipboard asbestos exposure and cancer. Asbestos Use in Ships Asbestos, which was used throughout both commercial and naval vessels, is a naturally-occurring fibrous mineral. When it becomes airborne, the fibers can lodge in body tissues, causing irritation and inflammation that can eventually cause mesothelioma. Toxicology experts now know that there is no safe level of exposure to asbestos. People who built both commercial and naval ships, sailed on them, repaired them, or decommissioned them, all face a potentially higher lifetime risk of pleural mesothelioma. It can take decades for mesothelioma to develop but, once it does, it is extremely difficult to treat and there is no cure. An italian study published earlier this year found that the risk of malignant mesothelioma among shipyard workers remains high even thirty years after their jobs ended. Even if they are unaware of specific instances of asbestos exposure, people who have worked aboard older commercial or military ships should be aware of the symptoms of mesothelioma and should have regular medical exams. Source: Doge, DG and Beck, BD, Historical state of knowledge of the health risks of asbestos posed to seamen on merchant ships, November 10, 2016, Inhalation Toxicology, Epub ahead of print ASBESTOS UPDATE: Plaintiff Hopes for New Day With New Trial ----------------------------------------------------------- Gordon Gibb, writing for Lawyers and Settlements, reported that an asbestosis lawsuit that originally found for the plaintiff but was overturned on appeal, has seen the appellate ruling upheld after the Fourth District Court of Appeal for the State of Florida refused to revisit its ruling. Thus, any hope for asbestosis compensation for the plaintiff will hinge on the outcome of a new trial ordered for defendant R. J. Reynolds. A co-defendant, Crane Co. was granted a verdict's entry. The original asbestosis claim was filed by plaintiff Richard DeLisle, a laborer diagnosed with asbestos mesothelioma, a form of asbestosis disease. The plaintiff charged that his adverse health problems hinged on two scenarios: working with gaskets manufactured by Crane and alleged to contain asbestos, and a smoking habit involving Kent cigarettes, a brand manufactured by R.J. Reynolds Tobacco Co. The allegation was that Kent cigarettes were manufactured with filters that contained asbestos. DeLisle claimed in his asbestosis lawsuit that he smoked Kent brand cigarettes through the early, to mid-1950s. A lower court awarded $8 million in asbestosis compensation to DeLisle. R.J. Reynolds and Crane appealed the verdict, and this past September the Florida appellate court overturned the lower court's ruling. Earlier this month, the same court refused to revisit its original ruling of September 14. Crane can now move beyond the accusations while R.J. Reynolds will face a new trial, allowing for some hope for the asbestosis lung disease victim to realize some financial compensation. There were numerous testimonies by expert witnesses in the original trial, according to court records. However, the appellate court determined that for the majority of expert testimony, there was insufficient data to support various claims made by the expert witnesses. One expert witness, identified as Dr. James Dahlgren and a medical doctor with a specialty in occupational and environmental medicine, had testified that chrysotile asbestos allegedly associated with the gaskets manufactured by Crane Co. had contributed to the plaintiff's asbestosis disease. While Dahlgren's testimony satisfied the lower court, the appellate court found insufficiencies. "There was no data presented at the hearing showing that chrysotile asbestos in low levels is associated with mesothelioma. Indeed, the other experts testifying for DeLisle all rejected such an association," the appellate court said. "Dr. Dahlgren's testimony was more of the nature of ipse dixit, i.e., that it should be reliable merely because he is an expert. This is insufficient to satisfy Daubert." (Daubert v. Merrell Dow Pharmaceuticals, 509 US 579 of 1993). The original testimony of two other expert witnesses were dismissed by the appellate court in similar fashion, given a lack of data by which to verify, or disprove claims made by the expert witnesses. The plaintiff's asbestos lawyer attempted to have the appellate court revisit their ruling of September 14 through an en banc rehearing, but the appellate court refused. The Court did note, however, in its subsequent ruling that in its view the $8 million originally awarded to the plaintiff was "substantially higher" than any previous award for a mesothelioma, or asbestosis victim. The plaintiff's asbestosis lawsuit lives on however, with a new trial ordered for R.J. Reynolds. The case is Crane et al. v. DeLisle et al., Case Numbers 4D13-4351 and 4D14-146, in the Fourth District Court of Appeal of the State of Florida. ASBESTOS UPDATE: Court Awards EUR200,000 to Heirs of Worker ----------------------------------------------------------- The Times of Malta reported that the heirs of a man whose death was attributed solely to the cancer caused through his contact with asbestos because of his job were awarded over EUR200,000 in damages by the courts. Paul Pullicino had passed away, aged 46, in 2010, following a battle with cancer. The man had been employed at the government garage in Kirkop between November, 1981 and January, 1983 as a full time trainee /apprentice. The court heard how during this period, his work consisted in inspecting vehicles, servicing machines and changing brake-pads and clutches. Since the brake linings contained asbestos, Mr Pullicino inhaled asbestos powder which, the court observed, has been scientifically been proved to be a direct cause of cancer. The court noted that the victim had never been given adequate protective gear to avoid inhaling the toxic and carcinogenic fumes. Throughout his employment, Mr Pullicino worked on a shift basis alternating between three days of labour in the garage and two days of academic training. The court observed that after quitting the job, the victim had taken up other jobs which never again placed him in contact with the deadly asbestos. Mr Pullicino was admitted to hospital in 2008 complaining of respiratory problems. A biopsy had revealed he was suffering from mesothelioma, a type of cancer caused exclusively by asbestos inhalation. After being admitted to Boffa hospital and undergoing chemotherapy, the patient succumbed to his illness in 2010. In calculating compensation, the First Hall Civil Court presided by Mr Justice Silvio Meli, considered that the patient had spent over EUR8,000 in medical treatment, even though he had received assistance from the Malta Community Chest Fund. The court awarded his heirs, represented by Dr Joseph Zammit Maempel, the sum of EUR200,000 by way of damages. ASBESTOS UPDATE: Asbestos Found During Stratford Highway Project ---------------------------------------------------------------- Jillian Duff, writing for Mesothelioma.com, reported that the Connecticut State Department of Transportation (CTDOT) announced asbestos was discovered during the Interstate 95 Exit 33 highway project. All construction and roadside maintenance activities in the surrounding stretch of the interstate are being prohibited "until the situation can be more completely assessed." The asbestos waste was caused by Raymark Industries -- a manufacturer of auto brakes, clutch discs, and other friction components. Unfortunately, the contaminated soil was used as a fill in several areas around Stratford, Connecticut. "The asbestos was detected during preliminary design work for this project. CTDOT found the presence of both Raymark Industries waste and asbestos in surface soils at several locations, although the source of the surface asbestos contamination has not been pinpointed," said DOT. Residents are worried about the dangerous substance becoming disturbed during the construction. Over 2,000 signatures were collected by Stratford Action for the Environment (SAFE) to fight against the project. "This area was not previously investigated during the testing of more than 500 properties by EPA in the 1990s because there was no evidence of Raymark waste being dumped there," said Environmental Protection Agency (EPA) Regional Administrator Curt Spalding. "Fortunately, in September, the EPA announced its final cleanup plan for several Raymark waste areas which provides funding and will allow the Exit 33 area to be addressed in a consistent manner that ensures protection of public health," said Spalding. Currently, a bedrock is keeping the asbestos from being disturbed, so residents say they'll need volatile organic compound units if the project continues to move forward as officials expect it will next year. According to DPH Commissioner Dr. Raul Pino, "There is no reason to believe at this time that the asbestos, which is a known carcinogen, found at the Exit 33 project site is posing an exposure concern to workers or the community." Moving forward, a testing and monitoring program will be in place to measure asbestos levels in the air around Exit 33. DOT and the EPA will coordinate with the Department of Energy and Environmental Protection (DEEP), the Department of Labor, ConnOSHA, and the Occupational Safety and Health Administration (OSHA) to respond to the asbestos soil contamination. "The air and ground monitoring is a prudent and precautionary strategy. In the coming weeks, motorists may see crews along the highway conducting these tests," said DOT Commissioner James P. Redeker. "To date, we are not aware of any adverse effects to anyone in this vicinity. We will continue to advise workers and the people of Connecticut as developments warrant," said Redeker. ASBESTOS UPDATE: EPA Finds Asbestos in Corkman Pub Rubble --------------------------------------------------------- Andrew Jefferson, writing for The Herald Sun, reported that asbestos from an illegally demolished Carlton pub remains at a western suburbs property declared safe by the Environment Protection Authority Victoria just days earlier. In an embarrassment to the EPA, it says building sheet fragments from the Corkman Irish pub containing asbestos remain in rubble at Cairnlea. This was despite the EPA declaring the site safe following an inspection. EPA Executive Director of Regional Services, Damian Wells, says the EPA has now been forced to revise its earlier advice following new information. Mr Wells said EPA received an asbestos clearance letter from the solicitors of the site occupiers last Friday, produced by specialist asbestos contractors, confirming asbestos was safely removed from two stockpiles of material allegedly taken from the Corkman Irish Pub. "As a precaution, EPA officers inspected the site to conduct a walk-through and visually identified some material that resembled asbestos sheet fragments, which was surprising and of concern given the asbestos clearance letter that we'd received from the company last Friday evening," Mr Wells said. "EPA's test results have now confirmed these fragments are asbestos." Mr Wells said the site owner must maintain a covering over rubble at the site until all asbestos material is safely removed. This was despite saying that a covering was no longer required because the asbestos risk was no longer present. The notices issued by the EPA also require the site owner to maintain signage at the site advising asbestos is present and ensure there are controls in place to prevent stormwater discharge. They must also inform the local primary school and surrounding residents before any asbestos material is removed. In addition, the site owner must inspect the property daily to ensure the waste covering remains free of rips and tears and completely covers the rubble. "The risk to community remains extremely low and the actions we've taken are a precaution to give the community confidence that they're protected from any harm," Mr Wells said. EPA will issue the site owner with a clean up notice requiring all waste to be removed from the Cairnlea site in coming weeks. The EPA and Brimbank Council will hold an information session tonight at the Cairnlea Town Centre shopping centre, on Furlong Rd, from 4-7pm. ASBESTOS UPDATE: Couple Fined $21,600 for Asbestos Project ---------------------------------------------------------- KATU.com reported that the owners of a Portland building are facing a more than $21,000 fine for letting an unlicensed contractor to take care of some asbestos work, the Department of Environmental Quality said. According to the DEQ, John Reilly and Jennifer Doherty-Reilley hired an unlicensed contractor for an asbestos abatement, and openly kept waste that contained asbestos at their home in Portland. The Reillys were fined $21,600 for the infraction and cited for failing to submit an asbestos abatement project notification at least 10 days before the project started. According to DEQ, the Reillys have appealed the penalty. From state officials: "DEQ requires building owners and project managers to have an asbestos survey performed before a renovation or demolition. Such work can release asbestos fibers into the air and expose workers and the public to asbestos. When released into the air, asbestos fibers are a respiratory hazard proven to cause lung cancer and other illnesses. There is no known safe level of exposure." ASBESTOS UPDATE: Ex-Senator Diagnosed With Mesothelioma ------------------------------------------------------- Kelsey Bagwell, writing for Newschannel9.com, reported that from the dirtiest city in America to one of the most livable, Chattanooga's turnaround story is well known. Part of the city's renaissance has involved developers breathing new life into old buildings. Many of those old buildings turned out to be full of airborne poison. NewsChannel 9's Kelsey Bagwell began digging into the problem when she first brought us the story of asbestos, discovered in the downtown library back in August. Since then, she's learned more about the effects of ingesting that poison from a man who is now paying with his life. That man is Ray Albright, and you may remember his name. He shaped legislation for years as a vital member of Chattanooga's delegation in the Tennessee General Assembly. Albright's run as a Tennessee legislator came to a close in 1994. His exposure to asbestos in the workplace decades before that now leaves him struggling to fill his lungs. "I planned my life, my wife and I did, to have a good life. A life that we wouldn't have any problem. It just doesn't work out," he says. In 1953, Albright took a job at Combustion Engineering to provide for his growing family. For nineteen years, he made covers for boilers by cutting steel with a band saw; a process that spewed deadly dust into the air. "It was so thick, you couldn't see ten feet in front of you, hardly," he adds. Albright had no idea that thick dust contained asbestos. He says the other workers didn't either. They didn't even know what asbestos was. But forty years later, Albright was diagnosed with mesothelioma, a type of cancer in the lungs. "Asbestos was the cause of this. And, you don't know it, but forty years later, you find out what you were exposed to was extremely dangerous." You can hear the struggle to speak, to breathe, in his voice. Albright believes the management at Combustion knew about the dangers of asbestos, and there is reason to believe he's right. The U.S. Department of Labor has fined other companies millions of dollars for exposing workers without protection. Albright is one of hundreds of clients who have sued Combustion and others. He's represented by attorney Jimmy Rodgers. "They're in enjoyment of retirement, enjoying their grand kids and traveling, or that's their ideas, typically. Then they get hit with that type of diagnosis," says Rodgers. Albright isn't alone. Chattanooga's former life as a manufacturing city has resulted in hundreds of cases like his. "There was just a large concentration of industrial job sites," Rodgers adds. Asbestos wasn't just a problem on the assembly line. For decades, it was also used to insulate and fire-proof buildings. Most of the city's older structures have it, according to removal expert, David Bashor. "Pretty much from the 20's through the 70's, almost all the buildings had some form of asbestos in them. Almost always," says Bashor. When intact, asbestos isn't a hazard. But when it's broken into dust, like during a renovation, it becomes dangerous. Bashor's job is to remove the asbestos before renovation begins. Working on Chattanooga's buildings keeps him busy. "Chattanooga is an older city. So older cities are going to have higher amounts of asbestos present," he says. There are now strict rules from the Environmental Protection Agency about asbestos. But for many already diagnosed, it's decades too late. Albright admits he can't properly say the name of the disease that is taking his life. "If I stay around long enough, I'll learn to pronounce that thing," he jokes. He's filed lawsuits to hold his former employers accountable for cutting short the "good life" he planned for himself many years ago. "There's no cure for what I have. And you're going to die. It's just a matter of time," he says. Albright's case is still pending. He tells us his doctor estimates he has another six months to live. ASBESTOS UPDATE: Claims Lodged For Asbestos Disease Pay Down ------------------------------------------------------------ Dylan Slater, writing for Creamer Media's Mining Weekly, reported that during the financial year to February 29, the Kgalagadi Relief Trust (KRT) paid out 35 claims, totalling R3.42-million, to persons who have contracted illnesses related to exposure to asbestos stemming from South African mines. Workers who were employed by or lived near qualifying asbestos mines, or the families of mineworkers who have died of mesothelioma or asbestos-related lung cancer, could claim for compensation. Speaking at KRT's annual general meeting earlier this week, chairperson Brian Gibson, who succeeded Phiroshaw Camay, who passed away on October 1, said there had been a notable increase in the evolution of some claims previously brought to the KRT. Of the 35 claims paid out by the KRT during the financial year, 11 were previously lodged with the KRT but had subsequently been reclassified as more severe, thereby enabling them further compensation. The asbestos-related disease (ARD) classifications are ARD1 -- asbestos dust disease (pneumoconiosis); ARD2 -- asbestos dust disease with severe lung-function impairment; ARD3 -- asbestos- related lung cancer; and ARD4 -- mesothelioma. During the 2016 financial year, KRT paid compensation for 14 claims related to ARD1, one claim related to ARD2, five claims related to ARD3 and 15 claims related to ARD4. Gibson pointed out that there were five cases in which claimants with no prior history of ARD had lodged claims for the most severe form of ARD -- mesothelioma. There were also three cases where claimants with ARD1 had progressed to ARD4. He noted that although there were some cases where ARD had progressed to more severe forms of ARDs, the volume of claims has been on an overall downward trend since 2010/11, having stabilised to the current trend of about 35 cases a year. Since it was established in February 2006, up to February 29, KRT has paid compensation of R90.66-million to 1 350 claimants (some claimants have more than one claim owing to progression of their ARD). ASBESTOS UPDATE: Asbestos Found on Sydney Harbour Bridge -------------------------------------------------------- The Australian Associated Press reported that a surprise cache of asbestos has been found on Sydney's iconic Harbour Bridge during road works. While workers were removing the northern toll booth they uncovered a small amount of asbestos under concrete road slabs thought to be installed in the 1950s, Roads Minister Duncan Gay said. A qualified hygienist tested the asbestos and said it had low potential for airborne exposure, Mr Gay said. Authorities will be checking where excess material removed from the site went and how it was disposed of as part of an investigation into the incident. ASBESTOS UPDATE: OSHA Cites Cayuga Centers for Asbestos Removal --------------------------------------------------------------- Gwendolyn Craig, writing for Auburn Pub, reported that the U.S. Department of Labor's Occupational Safety and Health Administration has cited Cayuga Centers in Auburn for improper asbestos removal and fined the organization $8,016.75. OSHA issued Cayuga Centers three "serious" violations including not having a competent person conducting an asbestos exposure assessment, not conducting an asbestos exposure assessment and lack of engineering control during the removal process, said Carmelle Durand, acting area director of the Syracuse OSHA branch. Serious violations, Durand said, may result in an injury to an employee as a result of exposure to the hazard. The citation issued on Oct. 24 comes after a nearly three-month investigation following construction work at the administrative building, 101 Hamilton Ave. According to the inspection detail, OSHA said four people were potentially exposed. Durand said they've received abatement paperwork, showing that the asbestos has been properly removed. Cayuga Centers has also paid the fine, which had been reduced from an original $10,689. Durand said citations are based on a low, medium and high gravity scale, and those that are low or medium have the opportunity to reduce the fine by 25 percent if they do not contest the citation. Cayuga Centers' citation was considered a medium or moderate citation, she added. Edward Hayes, chief executive officer of Cayuga Centers, told The Citizen in June that asbestos was found in floor tiles that were being removed as part of office renovations. Hayes said that air quality tests showed that the asbestos was never airborne, and therefore never a health hazard. He said no employees have claimed they are sick because of it, though they have complained about the smell of paint during some of the construction work. "This has created a greater sense of awareness about being careful around certain materials and not making assumptions about certain materials," Hayes said. "Sometimes you drop the ball. "We feel that this was a fair response on their (OSHA's) part," Hayes added, "because they recognized it was an honest mistake, and we responded once we made an honest mistake." Durand said she expects the case file to be closed soon now that the penalties have been paid, and the abatement process is finished, though OSHA still could do a follow up inspection. "At this point it (Cayuga Centers) has not been targeted," Durand said, "but that's not a definite no." ASBESTOS UPDATE: Asbestos Removed From Brisbane Dam --------------------------------------------------- Kathy McLeish, writing for ABC News, reported that dam operator Seqwater has admitted residents living near Leslie Harrison Dam on Brisbane's bayside were not warned about asbestos-contaminated soil being removed from the area yesterday. Seqwater said up to 300 cubic metres of contaminated soil had been illegally dumped around the Capalaba dam site. Local resident John Brown said his family knew nothing about the nearby asbestos issue until trucks began rolling into the area past his driveway. He said about 40 truckloads of soil had been removed since then. "No-one from the council or Seqwater has told us exactly what they're doing," he said. "One of the truck drivers was pulled up outside and he said that they were moving hazardous waste. "Nobody likes to have that happen right on your doorstep -- I'd like to be reassured that it's not going to happen again." Former local MP and Labor deputy premier Jim Elder also lives near the site. "This has been appalling behaviour by Seqwater," Mr Elder said. He and Mr Brown told the ABC the workers were not wearing hazardous protection equipment yesterday. Mr Elder said the authority had allowed the dam site to become degraded over the past four years. Seqwater spokesman Mike Foster conceded they had failed to communicate properly. "The communication from the organisation to the local neighbours wasn't good enough," he said. "What is occurring today, the neighbours will get a belated letterbox drop from Seqwater advising them of what's occurred and the timeframe. "In terms of any contamination getting into the water from the particular site, we've been advised that is not the case, the Capalaba water treatment plan has a design capability to remove asbestos fibres, people can be very confident and comfortable that their water supply is very safe." Contractors were expected to finish clearing the contaminated soil today. ASBESTOS UPDATE: Man Steps Closer to Justice After Record Appeal ---------------------------------------------------------------- Daily Record reported that a man whose mum died from asbestos- related cancer says he is closer to finding justice -- after witnesses came forward following a Record appeal. Alexander Culbert lost his mother Martha to mesothelioma in May. She was 72. The 50-year-old believes his mum was exposed to asbestos when she would shake the dust from her husband Joseph's work clothes before washing them. Joseph, who was a labourer at Colvilles Steel Mill at Ravenscraig, Lanarkshire, in the late 60s, died from multiple myeloma, another asbestos-related disease, in 2007. He was 74. We told how Alexander and his wife Vanessa, 56, are making a "loss of society" claim. They instructed law firm Harper Macleod to investigate Joseph's exposure to the deadly dust and fibres, which they say led to Martha's secondary exposure. Alexander said: "I was extremely happy to hear from my father's former colleagues and welcome their information, which I hope will go a long way to getting the justice both my parents deserve. "A number of the people who called also had loved ones who passed away from this terrible disease. "The warmth and kindness of those who have assisted us in this appeal has been overwhelming and we're extremely grateful." ASBESTOS UPDATE: Contractor Defense May Work in Asbestos Cases -------------------------------------------------------------- Deborah Elkins, writing for Virginia Lawyers Weekly, wrote that the 4th Circuit reverses a district court order remanding to Virginia state court an asbestos products liability suit removed to federal court pursuant to the federal officer removal statute; the district court erred in remanding the case under precedent denying the government contractor defense in failure to warn cases, as the Eastern District of Virginia is "clearly an outlier" in so ruling. A former boilermaker at Norfolk Naval Shipyard, who was diagnosed with malignant mesothelioma in 2014, sued in Newport News state court alleging failure to warn of asbestos hazards in products manufactured for the Navy by Foster Wheeler LLC and Foster Wheeler Energy Corp. The federal officer removal statute allows a defendant to remove a case from state to federal court if the defendant establishes 1) it is a federal officer or a person acting under that officer; 2) a "colorable federal defense"; and 3) the suit is for an act under color of office, which requires a causal nexus between the charged conduct and asserted official authority. The government contractor defense only applies if a contractor's obligations to the government conflict with state law such that the contractor may not comply with both. We must decide whether the Supreme Court's pronouncement in Boyle v. United Technologies Corp., 487 U.S. 500 (1988), holding the government contractor defense applicable in design defect cases, likewise shields defendants against failure to warn claims and thus provides a basis for federal jurisdiction pursuant to 28 U.S.C. Section 1442. In this case, given the "thousands of asbestos cases that have preceded" it in the Eastern District of Virginia, the district court determined that the government contractor defense is not available in failure to warn cases. However, the Eastern District of Virginia is clearly an outlier in this regard. No other jurisdiction in the country to have considered the issue is in accord with the Eastern District of Virginia. Indeed, the 2nd, 5th, 6th, 7th, 9th and 11th Circuits have all applied the defense to failure to warn cases. Although we have not yet had the opportunity to consider this issue directly, we have recognized that these decisions of our sister circuits are reasoned soundly. The multidistrict litigation court for asbestos products also has applied the defense and allowed removal on this basis in failure to warn cases. The rationales identified in Boyle remain applicable in failure to warn cases. Given the weight of opposing precedent and the rationales supporting the defense, we now join the chorus and hold that the government contractor defense is available in failure to warn cases. We leave it to the district court to decide whether appellants have presented sufficient proof to warrant removal pursuant to Section 1442. Reversed and remanded. Ripley v. Foster Wheeler LLC (Thacker) No. 15-1918, Nov. 1, 2016; USDC at Newport News, Va. (Allen) Erik D. Nadolink for appellants; William Harty for appellee. VLW 016-2-149, 9 pp. ASBESTOS UPDATE: Kin of Asbestosis Victims Denied Relief -------------------------------------------------------- Rosamma Thomas, writing for The Times of India, reported that kin of those dead of asbestosis in Udaipur villages find that local authorities will not release money due to them as compensation after the death of their dear ones without proof the death was indeed caused by asbestosis. Ram Lal, whose wife is now a panchayat member at the Netaji Ka Bara village in Jhadol of Udaipur district says he has been attempting to help the families of those who lost loved ones to asbestosis but is finding it a near impossible battle. "We have made several trips to different offices, but we are told that we must produce proof that the death was caused by asbestosis. Some of the deaths occurred as far back as 2012. The families have not received even a paisa in compensation. We have been running from pillar to post but how can we possibly establish, after all these years, how the deaths happened?" After a global campaign to ban asbestos once its deleterious impact on health was known, the state government banned asbestos mining and stopped issuing leases for it in 1986. However, it was not until 2005 that the last mines actually shut. By 2013, the state government began to offer Rs1 lakh as compensation to patients of silicosis -- once the patient died, his or her kin were entitled to compensation of Rs3 lakh. If the death occurred without the Rs 1 lakh being released to the patient, the kin can claim Rs 4 lakh. The benefits were meant even for those who suffered irreparable damage to their lungs after working in asbestos mines. However, in the absence of clear guidelines to local authorities, there are a host of rules cited to deny these benefits to poor mineworkers and their families. Latest Comment On Sunday, Ram Lal told TOI that Desab Bullah of Kada village nearby had died over a year ago. His wife and children have received no support from the government, although he died a painful death after prolonged suffering because of asbestosis. Delu Hokra of Netaji Ka Bara died in 2012. His family too has been approaching authorities, who insist on proof that Hokra died of asbestosis. Hamira, who lost his wife, now lives with his only son. Seven daughters are married. The death in family was caused by asbestosis and all the neighbours know how painful and slow it was. The family, however, has received no support from the government. "These are people who do not have mobile phones. I could have got them to speak with you, but their homes are not near," Ram Lal told TOI. District collector Rohit Gupta said, "The cause of death has to be established. Even if the death occurred a few years ago, it is possible for the medical board to certify the death as caused by asbestosis by looking at the medical history. Once the certificate is obtained, the compensation will be released." ASBESTOS UPDATE: Honeywell, Ford May Access Rule 2019 Exhibits -------------------------------------------------------------- Judge Kevin Gross of the United States Bankruptcy Court for the District of Delaware granted Honeywell International, Inc., and Ford Motor Company limited access to the 2019 Exhibits filed with the bankruptcy court in compliance with the 2019 Order or Bankruptcy Rule 2019. The cases are In re: Owens Corning, Case No. 00-03837, Armstrong World Industries, Inc., Case No. 00-4471, W.R. Grace & Co., Case No. 01-1139, USG Corp., Case No. 01-2094, US Minerals Products Company, Case No. 01-2471, Kaiser Aluminum Corp., Case No. 02- 10429, ACandS, Inc., Case No. 02-12687, Combustion Engineering, Inc., Case No. 03-10495, The Flinkote Company, Case No. 04-11300, Debtors (Bankr. D. Del.). The nine captioned cases are bankruptcy cases which resulted from the entities' asbestos related liabilities. Honeywell, joined by Ford, sought access to statements and exhibits, which asbestos claimants submitted in the captioned cases pursuant to the orders entered by the Bankruptcy Court, which standardized disclosures required by Rule 2019 of the Federal Rules of Bankruptcy Procedure throughout the mass tort bankruptcies filed in the Third Circuit. They sought access to these documents under the public right to access of the Bankruptcy Code Section 107 and the common law. The North American Refractories Company Asbestos Personal Injury Settlement Trust Advisory Committee ("NARCO TAC"), joined by others, objected to the motion. Honeywell is a diversified technology and manufacturing company which has been a global supplier of automotive brake friction materials and aftermarket brake products. The "Bendix" products are the subject of numerous lawsuits alleging asbestos exposure from Bendix products. Honeywell is also obligated to fund all distributions which the NARCO Trust makes up to capped amounts (which exceed $100 million) and all of the NARCO Trust's expenses. Honeywell's purpose in seeking access to the Rule 2019 Exhibits is to investigate fraudulent claims and produce the Rule 2019 Exhibits to the NARCO Trust for its own review of claims, and for lobbying activities. Honeywell cites several sources to support its view that fraudulent claims have been filed against Honeywell and the NARCO Trust. Ford is an automobile manufacturing company, and has been named as a defendant in asbestos cases by plaintiffs claiming to have worked with or around chrysotile containing brake pads. Judge Gross was satisfied that the presumption of public access applies to the Rule 2019 Exhibits because they are judicial records. The judge pointed out, however, that notwithstanding the presumption, a court retains the authority to seal documents "when justice so requires." Judg Gross held that the nature of the information contained in the Rule 2019 Exhibits, while not enough to automatically rebut the presumption, does call for judicial discretion in considering a grant of access. Honeywell and Ford both sought limitless access from the court for use outside judicial proceedings. Judge Gross explained, however, that in the Third Circuit, access to court records has been denied where court files could potentially become a vehicle for improper purposes, and that he could not find any Third Circuit case law holding or otherwise considering whether lobbying is a proper purpose under Rule 2019. Accordingly, Judge Gross limited Honeywell's and Ford's use of the Rule 2019 Exhibits. The judge stated that "They may not be used for 'lobbying efforts.' Honeywell and Ford may use the Rule 2019 Exhibits to investigate fraud in the claims process and may share the information with the NARCO Trust in an aggregate format. In other words, Honeywell and Ford may not share the identity of individuals by name or other identifying means with the NARCO Trust. Honeywell and Ford are granted three months to complete their work and must comply with the Protocol Order which requires the destruction of the Rule 2019 Exhibits at the conclusion of the work. Honeywell's and Ford's efforts will be at their expense. In addition, the Court will appoint a party to oversee the production of the Rule 2019 Exhibits. Given Honeywell's opposition to the appointment of the person who the NARCO TAC suggested, the parties are directed to confer and submit a name or names to the Court. Honeywell and Ford will bear the cost of the person who the Court names." A full-text copy of Judge Gross' November 8, 2016 opinion is available at http://bankrupt.com/misc/deb00-03837-21172.pdf ASBESTOS UPDATE: Crane Co. Has 36,450 Asbestos Claims at Sept. 30 ----------------------------------------------------------------- Crane Co. is facing 36,450 pending claims alleging injury or death as a result of exposure to asbestos as of September 30, 2016, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. As of September 30, 2016, the Company was a defendant in cases filed in numerous state and federal courts alleging injury or death as a result of exposure to asbestos. Of the 36,450 pending claims as of September 30, 2016, approximately 18,300 claims were pending in New York, approximately 1,500 claims were pending in Texas, approximately 4,800 claims were pending in Mississippi, and approximately 200 claims were pending in Ohio, all jurisdictions in which legislation or judicial orders restrict the types of claims that can proceed to trial on the merits. The gross settlement and defense costs incurred (before insurance recoveries and tax effects) for the Company for the nine-month periods ended September 30, 2016 and 2015 totaled $57.5 million and $52.5 million, respectively. In contrast to the recognition of settlement and defense costs, which reflect the current level of activity in the tort system, cash payments and receipts generally lag the tort system activity by several months or more, and may show some fluctuation from quarter to quarter. Cash payments of settlement amounts are not made until all releases and other required documentation are received by the Company, and reimbursements of both settlement amounts and defense costs by insurers may be uneven due to insurer payment practices, transitions from one insurance layer to the next excess layer and the payment terms of certain reimbursement agreements. The Company's total pre-tax payments for settlement and defense costs, net of funds received from insurers, for the nine-month periods ended September 30, 2016 and 2015 totaled $41.5 million and $36.2 million, respectively. A full-text copy of the Form 10-Q is available at https://is.gd/DrW9S1 Crane Co. is a diversified manufacturer of engineered industrial products. ASBESTOS UPDATE: Crane Co. Still Awaits Ruling in "Nelson" ---------------------------------------------------------- Crane Co. is still awaiting ruling by the Supreme Court of Pennsylvania of the lawsuit over James Nelson's asbestos claim, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. The Company has tried several cases resulting in defense verdicts by the jury or directed verdicts for the defense by the court. The Company further has pursued appeals of certain adverse jury verdicts that have resulted in reversals in favor of the defense. On March 23, 2010, a Philadelphia, Pennsylvania, state court jury found the Company responsible for a 1/11th share of a $14.5 million verdict in the James Nelson claim, and for a 1/20th share of a $3.5 million verdict in the Larry Bell claim. On February 23, 2011, the court entered judgment on the verdicts in the amount of $0.2 million against the Company, only, in Bell, and in the amount of $4.0 million, jointly, against the Company and two other defendants in Nelson, with additional interest in the amount of $0.01 million being assessed against the Company, only, in Nelson. All defendants, including the Company, and the plaintiffs took timely appeals of certain aspects of those judgments. The Company resolved the Bell appeal by settlement, which is reflected in the settled claims for 2012. On September 5, 2013, a panel of the Pennsylvania Superior Court, in a 2-1 decision, vacated the Nelson verdict against all defendants, reversing and remanding for a new trial. Plaintiffs requested a rehearing in the Superior Court and by order dated November 18, 2013, the Superior Court vacated the panel opinion, and granted en banc reargument. On December 23, 2014, the Superior Court issued a second opinion reversing the jury verdict. Plaintiffs sought leave to appeal to the Pennsylvania Supreme Court, which defendants have opposed. By order dated May 20, 2015, the Supreme Court of Pennsylvania is holding, but not acting on, the plaintiffs' petition pending the outcome of another appeal in which the Company is not a party. ASBESTOS UPDATE: Crane Co. Paid $6.6MM Judgment in "Dummitt" ------------------------------------------------------------ Crane Co. paid judgment, with interest, in the amount of $6.6 million in the third quarter 2016 in the lawsuit filed by Ronald Dummitt, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. On August 17, 2011, a New York City state court jury found the Company responsible for a 99% share of a $32 million verdict on the Ronald Dummitt claim. The Company filed post-trial motions seeking to overturn the verdict, to grant a new trial, or to reduce the damages, which the Company argued were excessive under New York appellate case law governing awards for non-economic losses. The Court held oral argument on these motions on October 18, 2011 and issued a written decision on August 21, 2012 confirming the jury's liability findings but reducing the award of damages to $8 million. At plaintiffs' request, the Court entered a judgment in the amount of $4.9 million against the Company, taking into account settlement offsets and accrued interest under New York law. The Company appealed, and the judgment was affirmed in a 3-2 decision and order dated July 3, 2014. The Company appealed to the New York Court of Appeals. The court heard oral arguments on May 3, 2016 and affirmed the judgment in a decision dated June 28, 2016. The judgment, with interest, in the amount of $6.6 million was paid in the third quarter 2016. ASBESTOS UPDATE: Crane Co. Paid $0.2MM Judgment in "Suttner" ------------------------------------------------------------ Crane Co. paid judgment, with interest, in the amount of $0.2 million in the third quarter 2016 in the lawsuit filed by Gerald Suttner, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. On October 23, 2012, the Company received an adverse verdict in the Gerald Suttner claim in Buffalo, New York. The jury found that the Company was responsible for four percent (4%) of plaintiffs' damages of $3 million. The Company filed post-trial motions requesting judgment in the Company's favor notwithstanding the jury's verdict, which were denied. The court entered a judgment of $0.1 million against the Company. The Company appealed, and the judgment was affirmed by order dated March 21, 2014. The Company sought reargument of this decision, which was denied. The Company sought review before the New York Court of Appeals, which was accepted in the fourth quarter of 2014. The court heard oral arguments on May 3, 2016 and affirmed the judgment in a decision dated June 28, 2016. The judgment, with interest, in the amount of $0.2 million was paid in the third quarter 2016. ASBESTOS UPDATE: Pa. High Court Heard Oral Arguments in "Amato" --------------------------------------------------------------- The Supreme Court of Pennsylvania accepted Crane Co.'s petition for review and heard oral arguments on September 13, 2016, in the asbestos case filed by Thomas Amato, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. On February 25, 2013, a Philadelphia, Pennsylvania, state court jury found the Company responsible for a 1/10th share of a $2.5 million verdict in the Thomas Amato claim and a 1/5th share of a $2.3 million verdict in the Frank Vinciguerra claim, which were consolidated for trial. The Company filed post-trial motions requesting judgments in the Company's favor notwithstanding the jury's verdicts or new trials, and also requesting that settlement offsets be applied to reduce the judgment in accordance with Pennsylvania law. These motions were denied. The Company appealed, and on April 17, 2015, a panel of the Superior Court of Pennsylvania affirmed the trial court's ruling. The Supreme Court of Pennsylvania accepted the Company's petition for review and heard oral arguments on September 13, 2016. ASBESTOS UPDATE: Damages Award in "Peraica" Cut to $4.25MM ---------------------------------------------------------- A panel of the New York Appellate Division, First Department, affirmed the rulings in the asbestos lawsuit filed by Ivo Peraica against Crane Co., and further reduced the damages award to $4.25 million, which after settlement offsets is calculated to be $1.94 million, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. On March 1, 2013, a New York City state court jury entered a $35 million verdict against the Company in the Ivo Peraica claim. The Company filed post-trial motions seeking to overturn the verdict, to grant a new trial, or to reduce the damages, which the Company argues were excessive under New York appellate case law governing awards for non-economic losses and further were subject to settlement offsets. After the trial court remitted the verdict to $18 million, but otherwise denied the Company's post-trial motion, judgment was entered against the Company in the amount of $10.6 million (including interest). The Company appealed. The Company took a separate appeal of the trial court's denial of its summary judgment motion. The Court consolidated the appeals, which were heard in the fourth quarter of 2014. In July 2016, the Company supplemented its briefing based on the New York Court of Appeals Dummitt/Suttner decision. On October 6, 2016, a panel of the Appellate Division, First Department, affirmed the rulings of the trial court on liability issues but further reduced the damages award to $4.25 million, which after settlement offsets is calculated to be $1.94 million. Plaintiff has the option of accepting the reduced amount or having a new trial on damages. The Company is considering its further appellate options. ASBESTOS UPDATE: Crane Co. Awaits Ruling in "Holdsworth" -------------------------------------------------------- Crane Co. is awaiting ruling on Lee Holdsworth's motion to enter judgment in the trial court in the amount of approximately $1.0 million, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. On July 31, 2013, a Buffalo, New York state court jury entered a $3.1 million verdict against the Company in the Lee Holdsworth claim. The Company filed post-trial motions seeking to overturn the verdict, to grant a new trial, or to reduce the damages, which the Company argues were excessive under New York appellate case law governing awards for non-economic losses and further were subject to settlement offsets. Post-trial motions were denied, and the court entered judgment in the amount of $1.7 million. On June 12, 2015, the Appellate Division, Fourth Department, affirmed the trial court's ruling denying the Company's motion for summary judgment. The court denied reargument of that ruling. The Company pursued a further appeal of the trial court rulings and judgment, which was argued on May 16, 2016. On July 8, 2016, the Court vacated the judgment and granted the Company a new trial on the issue of whether the Company is subject to joint-and-several liability under New York law. Plaintiff filed a motion to enter judgment in the trial court in the amount allegedly unaffected by the appellate ruling, approximately $1.0 million, and the Company opposed the motion. ASBESTOS UPDATE: Crane Co. May Pursue Further Appeal in "Sweberg" ----------------------------------------------------------------- Crane Co. is considering its further appellate options in the lawsuit filed by Ivan Sweberg, according to the Company's Form 10- Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. On June 16, 2014, a New York City state court jury entered a $15 million verdict against the Company in the Ivan Sweberg claim and a $10 million verdict against the Company in the Selwyn Hackshaw claim. The two claims were consolidated for trial. The Company filed post-trial motions seeking to overturn the verdicts, to grant new trials, or to reduce the damages, which were denied, except that the Court reduced the Sweberg award to $10 million, and reduced the Hackshaw award to $6 million. Judgments have been entered in the amount of $5.3 million in Sweberg and $3.1 million in Hackshaw. The Company appealed. Oral argument on Sweberg took place on February 16, 2016, and oral argument on Hackshaw took place on March 9, 2016. On October 6, 2016, two panels of the Appellate Division, First Department, affirmed the rulings of the trial court on liability issues but further reduced the Sweberg damages award to $9.5 million and further reduced the Hackshaw damages award to $3 million, which after settlement offsets are calculated to be $4.73 million in Sweberg and $0 in Hackshaw. Plaintiffs have the option of accepting the reduced awards or having new trials on damages. The Company is considering its further appellate options in Sweberg. ASBESTOS UPDATE: Crane Co. Awaits Ruling in "DeLisle" ----------------------------------------------------- Crane Co. is still awaiting ruling in the asbestos lawsuit filed by Richard DeLisle, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. On September 17, 2013, a Fort Lauderdale, Florida state court jury in the Richard DeLisle claim found the Company responsible for 16 percent of an $8 million verdict. The trial court denied all parties' post-trial motions, and entered judgment against the Company in the amount of $1.3 million. The Company has appealed. Oral argument on the appeal took place on February 16, 2016. On September 14, 2016 a panel of the Florida Court of Appeals reversed and entered judgment in favor of the Company. Plaintiff filed a motion for rehearing and/or certification of an appeal to the Florida Supreme Court, and the Company opposed the motion. ASBESTOS UPDATE: Crane Co. Appeals $10.8MM Judgment in "Poage" -------------------------------------------------------------- Crane Co. is pursuing an appeal from a ruling granting judgment in the amount of $10.8 million to James Poage, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. On July 2, 2015, a St. Louis, Missouri state court jury in the James Poage claim entered a $1.5 million verdict for compensatory damages against the Company. The jury also awarded exemplary damages against the Company in the amount of $10 million. The Company filed a motion seeking to reduce the verdict to account for the verdict set-offs. That motion was denied, and judgment was entered against the Company in the amount of $10.8 million. The Company is pursuing an appeal. ASBESTOS UPDATE: Crane Co. Brings "Rabovsky" to Third Circuit ------------------------------------------------------------- Crane Co. is pursuing an appeal to the Third Circuit Court of Appeals of the ruling granting judgment in the amount of $0.4 million to Valent Rabovsky, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. On February 9, 2016, a Philadelphia, Pennsylvania, federal court jury found the Company responsible for a 30 percent share of a $1.085 million verdict in the Valent Rabovsky claim. The court ordered briefing on the amount of the judgment. The Company argued, among other things, that settlement offsets reduce the award to plaintiff under Pennsylvania law. A further hearing was held April 26, 2016, after which the court denied the Company's request and entered judgment in the amount of $0.4 million. The Company filed post-trial motions, which were denied in two decisions issued on August 26, 2016 and September 28, 2016. The Company is pursuing an appeal to the Third Circuit Court of Appeals. ASBESTOS UPDATE: Crane Co. Brings "Coulbourn" to Ninth Circuit -------------------------------------------------------------- Crane Co. is pursuing an appeal to the Ninth Circuit Court of Appeals of the ruling granting judgment in the amount of $6.8 million to George Coulbourn, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. On April 22, 2016, a Phoenix, Arizona federal court jury found the Company responsible for a 20 percent share of a $9 million verdict in the George Coulbourn claim, and further awarded exemplary damages against the Company in the amount of $5 million. The jury also awarded compensatory and exemplary damages against the other defendant present at trial. The court entered judgment against the Company in the amount of $6.8 million. The Company filed post- trial motions, which were denied on September 20, 2016. The Company is pursuing an appeal to the Ninth Circuit Court of Appeals. ASBESTOS UPDATE: Crane Co. Recorded $487MM Liability at Sept. 30 ---------------------------------------------------------------- Crane Co. record $487 million in asbestos liability as of September 30, 2016, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. The Company states: "With the assistance of Hamilton, Rabinovitz & Associates, Inc. (HR&A), effective as of December 31, 2011, the Company updated and extended its estimate of the asbestos liability, including the costs of settlement or indemnity payments and defense costs relating to currently pending claims and future claims projected to be filed against the Company through 2021. The Company's previous estimate was for asbestos claims filed or projected to be filed through 2017. As a result of this updated estimate, the Company recorded an additional liability of $285 million as of December 31, 2011. The Company's decision to take this action at such date was based on several factors which contribute to the Company's ability to reasonably estimate this liability for the additional period noted. First, the number of mesothelioma claims (which although constituting approximately 8% of the Company's total pending asbestos claims, have accounted for approximately 90% of the Company's aggregate settlement and defense costs) being filed against the Company and associated settlement costs have recently stabilized. In the Company's opinion, the outlook for mesothelioma claims expected to be filed and resolved in the forecast period is reasonably stable. Second, there have been favorable developments in the trend of case law which has been a contributing factor in stabilizing the asbestos claims activity and related settlement costs. Third, there have been significant actions taken by certain state legislatures and courts over the past several years that have reduced the number and types of claims that can proceed to trial, which has been a significant factor in stabilizing the asbestos claims activity. Fourth, the Company has now entered into coverage-in-place agreements with almost all of its excess insurers, which enables the Company to project a more stable relationship between settlement and defense costs paid by the Company and reimbursements from its insurers. Taking all of these factors into account, the Company believes that it can reasonably estimate the asbestos liability for pending claims and future claims to be filed through 2021. While it is probable that the Company will incur additional charges for asbestos liabilities and defense costs in excess of the amounts currently provided, the Company does not believe that any such amount can be reasonably estimated beyond 2021. Accordingly, no accrual has been recorded for any costs which may be incurred for claims which may be made subsequent to 2021. "Management has made its best estimate of the costs through 2021 based on the analysis by HR&A completed in January 2012. Through September 30, 2016, the Company's actual experience during the updated reference period for mesothelioma claims filed and dismissed generally approximated the assumptions in the Company's liability estimate. In addition to this claims experience, the Company considered additional quantitative and qualitative factors such as the nature of the aging of pending claims, significant appellate rulings and legislative developments, and their respective effects on expected future settlement values. Based on this evaluation, the Company determined that no change in the estimate was warranted for the period ended September 30, 2016. Nevertheless, if certain factors show a pattern of sustained increase or decrease, the liability could change materially; however, all the assumptions used in estimating the asbestos liability are interdependent and no single factor predominates in determining the liability estimate. The Company continues to monitor trend factors, such as the number and type of claims being filed each year, case management orders and legislation restricting the types of claims that can proceed to trial, significant appellate rulings and developments affecting the post- bankruptcy trusts for asbestos claimants to assess whether the existing forecast period is appropriate. Because of the uncertainty with regard to and the interdependency of such factors used in the calculation of its asbestos liability, and since no one factor predominates, the Company believes that a range of potential liability estimates beyond the indicated forecast period cannot be reasonably estimated. "A liability of $894 million was recorded as of December 31, 2011, to cover the estimated cost of asbestos claims now pending or subsequently asserted through 2021, of which approximately 80% is attributable to settlement and defense costs for future claims projected to be filed through 2021. The liability is reduced when cash payments are made in respect of settled claims and defense costs. The liability was $487 million as of September 30, 2016. It is not possible to forecast when cash payments related to the asbestos liability will be fully expended; however, it is expected such cash payments will continue for a number of years past 2021, due to the significant proportion of future claims included in the estimated asbestos liability and the lag time between the date a claim is filed and when it is resolved. None of these estimated costs have been discounted to present value due to the inability to reliably forecast the timing of payments. The current portion of the total estimated liability at September 30, 2016 was $75 million and represents the Company's best estimate of total asbestos costs expected to be paid during the twelve-month period. Such amount is based upon the HR&A model together with the Company's prior year payment experience for both settlement and defense costs. "Insurance Coverage and Receivables. Prior to 2005, a significant portion of the Company's settlement and defense costs were paid by its primary insurers. With the exhaustion of that primary coverage, the Company began negotiations with its excess insurers to reimburse the Company for a portion of its settlement and/or defense costs as incurred. To date, the Company has entered into agreements providing for such reimbursements, known as "coverage- in-place", with eleven of its excess insurer groups. Under such coverage-in-place agreements, an insurer's policies remain in force and the insurer undertakes to provide coverage for the Company's present and future asbestos claims on specified terms and conditions that address, among other things, the share of asbestos claims costs to be paid by the insurer, payment terms, claims handling procedures and the expiration of the insurer's obligations. Similarly, under a variant of coverage-in-place, the Company has entered into an agreement with a group of insurers confirming the aggregate amount of available coverage under the subject policies and setting forth a schedule for future reimbursement payments to the Company based on aggregate indemnity and defense payments made. In addition, with ten of its excess insurer groups, the Company entered into policy buyout agreements, settling all asbestos and other coverage obligations for an agreed sum, totaling $82.5 million in aggregate. "Reimbursements from insurers for past and ongoing settlement and defense costs allocable to their policies have been made in accordance with these coverage-in-place and other agreements. All of these agreements include provisions for mutual releases, indemnification of the insurer and, for coverage-in-place, claims handling procedures. With the agreements, the Company has concluded settlements with all but one of its solvent excess insurers whose policies are expected to respond to the aggregate costs included in the updated liability estimate. That insurer, which issued a single applicable policy, has been paying the shares of defense and indemnity costs the Company has allocated to it, subject to a reservation of rights. There are no pending legal proceedings between the Company and any insurer contesting the Company's asbestos claims under its insurance policies. "In conjunction with developing the aggregate liability estimate, the Company also developed an estimate of probable insurance recoveries for its asbestos liabilities. In developing this estimate, the Company considered its coverage-in-place and other settlement agreements, as well as a number of additional factors. These additional factors include the financial viability of the insurance companies, the method by which losses will be allocated to the various insurance policies and the years covered by those policies, how settlement and defense costs will be covered by the insurance policies and interpretation of the effect on coverage of various policy terms and limits and their interrelationships. In addition, the timing and amount of reimbursements will vary because the Company's insurance coverage for asbestos claims involves multiple insurers, with different policy terms and certain gaps in coverage. In addition to consulting with legal counsel on these insurance matters, the Company retained insurance consultants to assist management in the estimation of probable insurance recoveries based upon the aggregate liability estimate and assuming the continued viability of all solvent insurance carriers. Based upon the analysis of policy terms and other factors by the Company's legal counsel, and incorporating risk mitigation judgments by the Company where policy terms or other factors were not certain, the Company's insurance consultants compiled a model indicating how the Company's historical insurance policies would respond to varying levels of asbestos settlement and defense costs and the allocation of such costs between such insurers and the Company. Using the estimated liability as of December 31, 2011 (for claims filed or expected to be filed through 2021), the insurance consultant's model forecasted that approximately 25% of the liability would be reimbursed by the Company's insurers. While there are overall limits on the aggregate amount of insurance available to the Company with respect to asbestos claims, those overall limits were not reached by the total estimated liability currently recorded by the Company, and such overall limits did not influence the Company in its determination of the asset amount to record. The proportion of the asbestos liability that is allocated to certain insurance coverage years, however, exceeds the limits of available insurance in those years. The Company allocates to itself the amount of the asbestos liability (for claims filed or expected to be filed through 2021) that is in excess of available insurance coverage allocated to such years. An asset of $225 million was recorded as of December 31, 2011 representing the probable insurance reimbursement for such claims expected through 2021. The asset is reduced as reimbursements and other payments from insurers are received. The asset was $112 million as of September 30, 2016. "The Company reviews the aforementioned estimated reimbursement rate with its insurance consultants on a periodic basis in order to confirm its overall consistency with the Company's established reserves. The reviews encompass consideration of the performance of the insurers under coverage-in-place agreements and the effect of any additional lump-sum payments under policy buyout agreements. Since December 2011, there have been no developments that have caused the Company to change the estimated 25% rate, although actual insurance reimbursements vary from period to period, and will decline over time, for the reasons cited. Crane Co. is a diversified manufacturer of engineered industrial products. ASBESTOS UPDATE: Manitowoc Continues to Defend Suits at Sept. 30 ---------------------------------------------------------------- The Manitowoc Company, Inc., continues to defend asbestos-related lawsuits at September 30, 2016, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2016. The Company is involved in numerous lawsuits involving asbestos- related claims in which the Company is one of numerous defendants. After taking into consideration legal counsel's evaluation of such actions, the current political environment with respect to asbestos-related claims, and the liabilities accrued with respect to such matters, in the opinion of management, ultimate resolution is not expected to have a material adverse effect on the financial condition, results of operations, or cash flows of the Company. ASBESTOS UPDATE: AT&T Pays Cricket-Linked Waste Disposal Penalty ---------------------------------------------------------------- AT&T INC. reached a monetary settlement with the San Diego County Air Pollution Control District for alleged violations of California regulations governing an independent dealer's waste disposal of asbestos containing materials, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. In February 2014, the San Diego County Air Pollution Control District began inquiring into alleged violations of California regulations governing removal, handling and disposal of asbestos containing materials arising from an independent dealer's demolition and construction activity in preparation to install upgraded point of purchase and fixtures in accordance with Cricket dealer guidelines. While the independent dealer was in sole control of contractors performing the work at issue, the County has focused on Cricket Communications dealer agreement terms and interactions with the independent dealer as a basis for asserting direct liability against Cricket Communications, Inc. After discussions, in November 2015, the County issued a penalty demand in excess of one hundred thousand dollars. In October 2016, the Company reached a monetary settlement with the County of this matter for an immaterial amount. AT&T Inc. is a holding company. The Company offers communications and digital entertainment services in the United States and the world. ASBESTOS UPDATE: CBS Faces 34,400 Asbestos Claims at Sept. 30 ------------------------------------------------------------- CBS Corporation had approximately 34,400 asbestos claims as of September 30, 2016, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. The Company states: "The Company is a defendant in lawsuits claiming various personal injuries related to asbestos and other materials, which allegedly occurred principally as a result of exposure caused by various products manufactured by Westinghouse Electric Corporation, a predecessor, generally prior to the early 1970s. Westinghouse was neither a producer nor a manufacturer of asbestos. The Company is typically named as one of a large number of defendants in both state and federal cases. In the majority of asbestos lawsuits, the plaintiffs have not identified which of the Company's products is the basis of a claim. Claims against the Company in which a product has been identified principally relate to exposures allegedly caused by asbestos-containing insulating material in turbines sold for power-generation, industrial and marine use. "Claims are frequently filed and/or settled in groups, which may make the amount and timing of settlements, and the number of pending claims, subject to significant fluctuation from period to period. The Company does not report as pending those claims on inactive, stayed, deferred or similar dockets which some jurisdictions have established for claimants who allege minimal or no impairment. As of September 30, 2016, the Company had pending approximately 34,400 asbestos claims, as compared with approximately 36,030 as of December 31, 2015 and 37,190 as of September 30, 2015. During the third quarter of 2016, the Company received approximately 930 new claims and closed or moved to an inactive docket approximately 1,320 claims. The Company reports claims as closed when it becomes aware that a dismissal order has been entered by a court or when the Company has reached agreement with the claimants on the material terms of a settlement. Settlement costs depend on the seriousness of the injuries that form the basis of the claims, the quality of evidence supporting the claims and other factors. In 2015, as the result of an insurance settlement, insurance recoveries exceeded the Company's after tax costs for settlement and defense of asbestos claims by approximately $5 million. In 2014, the Company's costs for settlement and defense of asbestos claims after insurance and taxes were approximately $11 million. The Company's costs for settlement and defense of asbestos claims may vary year to year and insurance proceeds are not always recovered in the same period as the insured portion of the expenses. "The Company believes that its reserves and insurance are adequate to cover its asbestos liabilities. This belief is based upon many factors and assumptions, including the number of outstanding claims, estimated average cost per claim, the breakdown of claims by disease type, historic claim filings, costs per claim of resolution and the filing of new claims. While the number of asbestos claims filed against the Company has trended down in the past five to ten years and has remained flat in recent years, it is difficult to predict future asbestos liabilities, as events and circumstances may occur including, among others, the number and types of claims and average cost to resolve such claims, which could affect the Company's estimate of its asbestos liabilities." CBS Corporation is comprised of the following segments: Entertainment (CBS Television, comprised of the CBS Television Network, CBS Television Studios, CBS Studios International, and CBS Television Distribution; CBS Interactive and CBS Films), Cable Networks (Showtime Networks, CBS Sports Network and Smithsonian Networks), Publishing (Simon & Schuster), Local Media (CBS Television Stations) and Radio (CBS Radio). ASBESTOS UPDATE: Rogers Corp. Had 570 Claims at Sept. 30 -------------------------------------------------------- Rogers Corporation had 570 outstanding asbestos claims at September 30, 2016, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. The Company states: "We, like many other industrial companies, have been named as a defendant in a number of lawsuits filed in courts across the country by persons alleging personal injury from exposure to products containing asbestos. We have never mined, milled, manufactured or marketed asbestos; rather, we made and provided to industrial users a limited number of products that contained encapsulated asbestos, but we stopped manufacturing these products in the late 1980s. Most of the claims filed against us involve numerous defendants, sometimes as many as several hundred. "The table presents information about our recent asbestos claims activity: Asbestos Claims Activity Claims outstanding at December 31, 2015 488 New claims filed 210 Pending claims concluded (128) Claims outstanding at September 30, 2016 570 "For the nine months ended September 30, 2016, 119 claims were dismissed and 9 claims were settled. Settlements totaled approximately $1.9 million for the nine months ended September 30, 2016. "We recognize a liability for asbestos-related contingencies that are probable of occurrence and reasonably estimable. In connection with the recognition of liabilities for asbestos related matters, we record asbestos-related insurance receivables that are deemed probable. Our estimates of asbestos-related contingent liabilities and related insurance receivables are based on an independent actuarial analysis and an independent insurance usage analysis prepared annually by third parties. The actuarial analysis contains numerous assumptions, including general assumptions regarding the asbestos-related product liability litigation environment and company-specific assumptions regarding claims rates (including diseases alleged), dismissal rates, average settlement costs and average defense costs. The insurance usage analysis considers, among other things, applicable deductibles, retentions and policy limits, the solvency and historical payment experience of various insurance carriers, the likelihood of recovery as estimated by external legal counsel and existing insurance settlements. "We review our asbestos-related forecasts annually in the fourth quarter of each year unless facts and circumstances materially change during the year, at which time we would analyze these forecasts. Currently, these analyses project liabilities and related insurance receivables over a 10-year period. It is probable we will incur additional costs for asbestos-related claims following this 10-year period, but we do not believe that any related contingencies are reasonably estimable beyond such period based on, among other things, the significant proportion of future claims included in the analysis and the lag time between the date a claim is filed and its resolution. Accordingly, no liability (or related asset) has yet been recorded for claims that may be asserted subsequent to 2025. "As of December 31, 2015, the asbestos-related claims and insurance receivables for the 10-year projection period were $56.6 million and $53.4 million, respectively. As of September 30, 2016, there have been no changes to these projections. To date, the defense and settlement costs of our asbestos-related product liability litigation have been substantially covered by insurance. We have identified continuous coverage for primary, excess and umbrella insurance from the 1950s through the mid- 1980s, except for a period in the early 1960s, with respect to which we have entered into an agreement for primary, but not excess or umbrella, coverage. In addition, we have entered into a cost sharing agreement with most of our primary, excess and umbrella insurance carriers to facilitate the ongoing administration and payment of claims by the carriers. The cost sharing agreement may be terminated by any party, but will continue until a party elects to terminate it. As of the filing date for this report, the agreement has not been terminated. As previously disclosed, however, we expect to exhaust individual primary, excess and umbrella coverages over time, and there is no assurance that such exhaustion will not accelerate due to additional claims, damages and settlements or that coverage will be available as expected. Accordingly, while we believe it is reasonably possible that we may incur losses and defense costs in excess of our accruals in the future, we do not have sufficient data to provide a reasonable estimate or range of such losses and defense costs, at this time. "The amounts recorded for the asbestos-related liability and the related insurance receivables were based on facts known at the time and a number of assumptions. However, projecting future events, such as the number of new claims to be filed each year, the average cost of disposing of such claims, the length of time it takes to dispose of such claims, coverage issues among insurers and the continuing solvency of various insurance companies, as well as the numerous uncertainties surrounding asbestos litigation in the United States could cause the actual liability and insurance recoveries for us to be higher or lower than those projected or recorded. "There can be no assurance that our accrued asbestos liabilities will approximate our actual asbestos-related settlement and defense costs, or that our accrued insurance recoveries will be realized. We will continue to vigorously defend ourselves and believe we have substantial unutilized insurance coverage to mitigate future costs related to this matter." ASBESTOS UPDATE: General Cable Had 322 Asbestos Cases at Sept. 30 ----------------------------------------------------------------- General Cable Corporation is a defendant in approximately 322 asbestos cases brought in state and federal courts throughout the United States as of September 30, 2016, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. The Company states: "We have been a defendant in asbestos litigation for the past 28 years. Our subsidiaries have been named as defendants in lawsuits alleging exposure to asbestos in products manufactured by us. As of September 30, 2016, we were a defendant in approximately 322 cases brought in state and federal courts throughout the United States. In the nine months ended September 30, 2016, 65 asbestos cases were brought against us. In the calendar year 2015, 99 asbestos cases were brought against us. In the last 28 years, we have had no cases proceed to verdict. In many of the cases, we were dismissed as a defendant before trial for lack of product identification. As of September 30, 2016, 50,942 asbestos cases have been dismissed. In the nine months ended September 30, 2016, 67 asbestos cases were dismissed. As of December 31, 2015, 50,875 cases were dismissed. With regards to the approximately 322 remaining pending cases, we are aggressively defending these cases based upon either lack of product identification as to whether we manufactured asbestos-containing product and/or lack of exposure to asbestos dust from the use of our product. "As of September 30, 2016, plaintiffs have asserted monetary damages in 165 cases. In 56 of these cases, plaintiffs allege only damages in excess of some dollar amount (about $681 thousand per plaintiff); in these cases there are no claims for specific dollar amounts requested as to any defendant. In 108 other cases pending in state and federal district courts, plaintiffs seek approximately $430 million in damages from as many as 50 defendants. In one case, plaintiffs have asserted damages related to General Cable in the amount of $4 million. In addition, in relation to these 165 cases, there are claims of $270 million in punitive damages from all of the defendants. However, many of the plaintiffs in these cases allege non-malignant injuries. As of September 30, 2016 and December 31, 2015, we had accrued, on a gross basis, approximately $4.3 million and $4.1 million, respectively, and as of September 30, 2016 and December 31, 2015, had recovered approximately $0.4 million of insurance recoveries for these lawsuits. The net amount of $3.9 million and $3.7 million, as of September 30, 2016 and December 31, 2015, respectively, represents our best estimate in order to cover resolution of current asbestos-related claims. "The components of the asbestos litigation reserve are current and future asbestos-related claims. The significant assumptions are: (1) the number of cases per state, (2) an estimate of the judgment per case per state, (3) an estimate of the percentage of cases per state that would make it to trial and (4) the estimated total liability percentage, excluding insurance recoveries, per case judgment. Management's estimates are based on the Company's historical experience with asbestos related claims. The Company's current history of asbestos claims does not provide sufficient and reasonable information to estimate a range of loss for potential future, unasserted asbestos claims because the number and the value of the alleged damages of such claims have not been consistent. As such, the Company does not believe a reasonably possible range can be estimated with respect to asbestos claims that may be filed in the future. "Settlement payments are made, and the asbestos accrual is relieved, when we receive a fully executed settlement release from the plaintiff's counsel. As of September 30, 2016 and December 31, 2015, aggregate settlement costs were $9.8 million and $9.7 million, respectively. For the nine months ended September 30, 2016 and October 2, 2015, settlement costs totaled less than $0.1 million and $0.2 million, respectively. As of September 30, 2016 and December 31, 2015, aggregate litigation costs were $26.9 million and $26.1 million, respectively. For the nine months ended September 30, 2016 and October 2, 2015, litigation costs were $0.8 million and $1.1 million, respectively. "In January 1994, we entered into a settlement agreement with certain principal primary insurers concerning liability for the costs of defense, judgments and settlements, if any, in all of the asbestos litigation. Subject to the terms and conditions of the settlement agreement, the insurers were responsible for a substantial portion of the costs and expenses incurred in the defense or resolution of this litigation. However, one of the insurers participating in the settlement that was responsible for a significant portion of the contribution under the settlement agreement entered into insurance liquidation proceedings and another became insolvent. As a result, the contribution of the insurers has been reduced and we have had to bear substantially most of the costs relating to these lawsuits." General Cable Corporation is engaged in the development, design, manufacture, marketing and distribution of copper, aluminum and fiber optic wire and cable products for use in the energy, industrial, construction, specialty and communications markets. ASBESTOS UPDATE: Suit v. Vertex Unit Remains Pending at Sept. 30 ---------------------------------------------------------------- E-Source Holdings, LLC, the wholly-owned subsidiary of Vertex Energy Operating, LLC, continues to face a lawsuit relating to asbestos abatement and remediation operations performed at a Jefferson County, Texas facility, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. The Company states: "E-Source Holdings, LLC, the wholly-owned subsidiary of Vertex Operating, was named as a defendant (along with Motiva Enterprises, LLC, in a lawsuit filed in the Sixtieth (60th) Judicial District, Jefferson County, Texas, on April 22, 2015. Pursuant to the lawsuit, Whole Environmental, Inc., made certain allegations against E-Source and Motiva. The claims include Breach of Contract and Quantum Meruit actions relating to asbestos abatement and remediation operations performed for defendants' at Motiva's facility in Port Arthur, Jefferson County, Texas. The plaintiff alleges it is due monies earned. Defendants have denied any amounts due to plaintiff. The suit seeks damages of approximately $864,000, along with pre-judgment and post- judgment interest, the fair value of certain property alleged to be converted by defendants and reimbursement of legal fees. We intend to vigorously defend ourselves against the allegations made in the complaint. The Company has no basis of determining whether there is any likelihood of material loss associated with the claims and/or the potential and/or the outcome of the litigation." Vertex Energy, Inc. is an environmental services company that recycles industrial waste streams and off-specification commercial chemical products. Vertex Energy Operating, LLC is its subsidiary. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2016. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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